GAME REFUGES. 7 



beginning with ancient times and coming on down through the 

 Colonics to the States. 



As I said, I feel that I have taken up more time than I should in 

 the presentation of this feature of the case, because, as a matter of 

 fact, State control over the hunting and taking of game is either 

 admitted by those who favor this legislation or they entirely avoid 

 that question, and the contention that it is the Federal Government 

 thai is the sovereign is not tenable for a moment in view of the fact 

 that in the case of Geer v. Connecticut that was one of the points 

 raised. The court held that the State was the sovereign and that its 

 sovereignty was absolute and exclusive. 



An effort is made, however, to find an excuse for this legislation 

 in the theory that the United States as a proprietor may assert con- 

 trol over the taking of game and that it may go as far in that direc- 

 tion as is proposed in this bill. That argument was made in the 

 Racehorse case and because of the fact that the lands on which the 

 Indians hunted belonged to the United States. The court brushed 

 the contention aside, calling attention to the fact that it was idle to 

 argue that the Federal Government, which lost, waived all control 

 over game by the admission of the State into the Union, still main- 

 tained some sort of control by reason of its land ownership. 



THE CLAIM AS A PROPRIETOR. 



But it is urged that Congress has the authority to legislate as is 

 herein proposed, under section 3 of Article IV of the Constitution of 

 the United States, which provides that "The Congress shall have the 

 power to dispose of and make all needful rules and regulations respect- 

 ing the territory and other property belonging to the Unted States." 

 It is claimed that as the land on which it is proposed to establish 

 these game preserves are lands of the United States, the power over 

 them and in respect to them granted by the constitutional provision 

 I have quoted is sufficient to authorize legislation of this character. 

 That argument is made in a report signed by the Secretary of Agri- 

 culture, under date of May 31, addressed to Hon. Carl Hayden and 

 now before this committee. The argument follows quite closely a 

 more elaborate argument made in a letter dated January 3, 1902, 

 signed by P. C. Knox, Attorney General, and addressed to the Hon. 

 John F. Lacey, chairman of the Committee on the Public Lands of the 

 House of Representatives. Not being a lawyer, it is perhaps presump- 

 tious on my part to attempt to answer the arguments of lawyers, like 

 the present Secretary of Agriculture and the former Attorney General ; 

 but I think that a careful perusal of their arguments will make it very 

 clear, even to the lay mind, that they have gone far afield in their argu- 

 ment and have necessarily left some very wide gaps in the thread of 

 their logic. 



We are, all of us, familiar with the general proposition that the 

 Federal Government is one of limited powers and that all of the 

 powers not granted are reserved to the States or the people and that 

 powers can not be implied or inf erred unless they are a necessary inci- 

 dent to powers clearly granted. I have no disposition to quarrel with 

 gentlemen who give a wide construction to the constitutional pro- 

 vision that has been quoted, provided that construction does not imply 

 power not necessary to carrying out the purposes of the granted 



