90 WILD LIFE PROTECTION FUND 



people, and that under cases like Gee?' v. Connecticut, 161 

 U. S. 19, this control was one that Congress had no power to 

 displace. The same argument is supposed to apply now with 

 equal force. 



Whether the two cases cited were decided rightly or not 

 they cannot be accepted as a test of the treaty power. Acts 

 of Congress are the supreme law of the land only when 

 made in pursuance of the Constitution, while treaties are de- 

 clared to be so when made under the authority of the United 

 States. It is open to question whether the authority of the 

 United States means more than the formal acts prescribed 

 to make the convention. We do not mean to imply that there 

 are no qualifications to the treaty-making power; but they 

 must be ascertained in a different way. It is obvious that 

 there may be matters of the sharpest exigency for the 

 national well being that an act of Congress could not deal 

 with but that a treaty followed by such an act could, and it 

 is not lightly to be assumed that, in matters requiring 

 national action, 'a power which must belong to and- some- 

 where reside in every civilized government' is not to be 

 found. Andrews v. Andrews, 188 U. S. 14, 33. What was 

 said in that case was regard to the powers of the States 

 applies with equal force to the powers of the nation in cases 

 where the States individually are incompetent to act. We 

 are not yet discussing the particular case before us but only 

 are considering the validity of the test proposed. With re- 

 gard to that we may add that when we are dealing with 

 words that also are a constituent act, like the Constitution 

 of the United States, we must realize that they have called 

 into life a being the development of which could not have 

 been forseen completely by the most gifted of its begetters. 

 It was enough for them to realize or to hope that they had 

 created an organism ; it has taken a century and has cost 

 their successors much sweat and blood to prove that they 

 created a nation. The case before us must be considered in 

 the light of our whole experience and not merely in that of 

 what was said a hundred years ago. The treaty in question 

 does not contravene any prohibitory words to be found in the 

 Constitution. The only question is whether it is forbidden 

 by some invisible radiation from the general terms of the 

 Tenth Amendment. We must consider what this country 

 has become in deciding what the amendment has reserved. 



The State as we have intimated founds its claim of ex- 

 clusive authority upon an assertion of title to migratory 



