8 GAME REFUGES. 



power. There are two very weak spots in the arguments contained in 

 the opinions to which I have referred. One is that no court has ever 

 held, directly or indirectly, favorably to their contention, and second, 

 that giving the widest possible construction to the word " property" 

 and the word " territory" contained in the section of the Constitution 

 referred to, and admitting, for the sake of argument, that they apply 

 to and cover and embrace lands held in forest reserves by no possible 

 extension of authority or jurisdiction necessary to carrying out the 

 purpose of the section, can legislation of this kind be justified. 



The article in question provides that Congress shall have the power 

 to dispose of and make all " needful" rules and regulations respecting 

 the territory and other property belonging to the United States. 

 What is the property belonging to the United States in a forest 

 reserve? It is the land and all that grows upon it and all that it 

 contains. The water of the flowing streams is not the property of 

 the United States. The wild game that may feed upon or roam over 

 these lands has been declared by the courts, in the cases I have re- 

 ferred to, to be the property of all the people, under the exclusive 

 jurisdiction of the States. That includes the fish as well as the game, 

 because some of the decisions of the State courts are in regard to 

 fish. The courts have held that Congress has the power to legislate 

 to protect the property of the United States. I am one of those who 

 believe that it has the power to go far in doing that. The courts 

 have held that Congress in exercising this power to protect the prop- 

 erty of the United States may go farther than the individual in the 

 protection of his property, because it may actually legislate and pre- 

 scribe punishment for the destruction of or injury to its property. 

 I do not deny that, but when it attempts to do anything with wild 

 game, to protect, to destroy, or to regulate, it is attempting to manage 

 something that clearly is not the property of the United States. 

 That will not be denied by anyone in the face of the decisions. The 

 courts have held repeatedly that wild game is the property of the 

 people, held in trust for them by the sovereign, the State. That has 

 been repeated over and over in substance. 



It can not be argued that the Government needs to protect its 

 property against wild game, for the Government has no property 

 that the wild game will injure, and, at any rate, it is not attempting 

 in this legislation to protect the property against the game but to 

 increase the game on the property. The Government would have 

 a perfect right to fence its land against wild game, but that is not 

 what it is proposing to do. 



But it is further insisted that the Federal Government as the pro- 

 prietor has authority to forbid trespass, and the courts have held 

 that it may go further than an ordinary proprietor and provide 

 punishment for trespass or injury to lands in forest reserves, and it 

 is claimed that the Federal Government may keep people off of its 

 land altogether, or allow them on under certain conditions, and 

 therefore do what is proposed to be done in this bill. The fallacy 

 of that argument lies in the fact that the right of the Federal Gov- 

 ernment to protect its property and punish for injury to it is assumed 

 to include the right to punish in its sovereign capacity acts that do 

 not injure its property, affecting a kind of property that is in the 

 ownership of and under the complete control, according to the courts, 

 of another sovereign. 



