THIRD BIENNIAL STATEMENT 89 



Canada, that they were of great value as a source of food 

 and in destroying insects injurious to vegetation, but were 

 in danger of extermination through lack of adequate pro- 

 tection. It therefore provided for specified close seasons 

 and protection in other forms, and agreed that the two pow- 

 ers would take or propose to their lawmaking bodies the 

 necessary measures for carrying the treaty out. 39 Stat. 

 1702. The above mentioned act of July 3, 1918, entitled an 

 act to give effect to the convention, prohibited the killing, 

 capturing or selling any of the migratory birds included in 

 the terms of the treaty except as permitted by regulations 

 compatible with those terms, to be made by the Secretary of 

 Agriculture. Regulations were proclaimed on July 31, and 

 October 25, 1918. 40 Stat. 1812; 1863. It is unnecessary to 

 go into any details, because, as we have said, the question 

 raised is the general one whether the treaty and statute are 

 void as an interference with the rights reserved to the 

 States. 



To answer this question it is not enough to refer to the 

 Tenth Amendment, reserving the powers not delegated to 

 the United States, because by Article II, Section 2, the power 

 to make treaties is delegated expressly, and by Article VI 

 treaties made under the authority of the United States, 

 along with the Constitution and laws of the United States 

 made in pursuance thereof, are declared the supreme law of 

 the land. If the treaty is valid there can be no dispute about 

 the validity of the statute under Article I, Section 8, as a 

 necessary and proper means to execute the powers of the 

 Government. The language of the Constitution as to the 

 supremacy of treaties being general, the question before us 

 is narrowed to an inquiry into the ground upon which the 

 present supposed exception is placed. 



It is said that a treaty cannot be valid if it infringes the 

 Constitution, that there are limits, therefore, to the treaty- 

 making power, and that one such limit is that what an act 

 of Congress could not do unaided, in derogation of the pow- 

 ers reserved to the States, a treaty cannot do. An earlier 

 act of Congress that attempted by itself and not in pur- 

 suance of a treaty to regulate the killing of migratory birds 

 within the States had been held bad in the District Court. 

 United States v. Shauver, 214 Fed Rep. 154. United States 

 v. McSullagh, 221 Fed. Rep. 285. Those decisions were sup- 

 ported by arguments that migratory birds were owned by 

 the States in their sovereign capacity for the benefit of their 



