200 



RECREATION. 



same subjects, as it does, for example, in 

 the District of Columbia? Or, on the other 

 hand, is the power of Congress within a 

 State limited to such acts, legislative or 

 otherwise, as are required for the disposal, 

 protection and control of such lands? Or 

 is there, between these, a limit to federal 

 power, legislative or executive? It is not 

 necessary to discuss here the first of these 

 questions, for no such general legislation 

 is contemplated ; and the other 2, also how 

 far federal control has been surrendered 

 by Acts admitting States into the Union, 

 may be examined in the light of another 

 consideration, namely the rights incident to 

 ownership. 



Subject to the eminent domain of the 

 State, the collection of taxes, the service of 

 process and other kindred superior rights, 

 the ownership of land carries with it, as 

 incident to and a part of such ownership, 

 the right of exclusive possession and con- 

 trol, which includes the right to forbid and 

 prevent intrusion thereon for any purpose, 

 and to prevent and remove trespassers. 

 The owner may forcibly prevent such in- 

 trusions if he can, or he may apply to the 

 courts for relief, or to recover damages ; 

 but a private individual may not himself 

 enact laws for the protection of his prop- 

 erty or to punish trespassers on his lands. 

 Is the United States in the same situation 

 as to its lands within a State? Is it with- 

 out power to itself enact laws for the dis- 

 posal or management of its public lands 

 within a State, or for their protection from 

 fires, or the preservation of its timber or 

 minerals thereon? This is undoubtedly the 

 case, if the United States, as to such lands, 

 has no other rights than those of an ordi- 

 nary proprietor. 



It must be admitted that much that is 

 said by the Court in Fort Leavenworth 

 R.R. Co. v. Lowe (114 U. S., 525) is di- 

 rectly to the effect that as to lands within a 

 State, unless jurisdiction is reserved in 

 admitting a State, or the land is acquired 

 by the United States with the consent of 

 the State for military purposes, etc., as 

 provided in the Constitution, the United 

 States has no other rights than those of an 

 ordinary proprietor, and that, like other 

 lands, they are subject to the sole jurisdic- 

 tion and sovereignty of the State. It is in 

 view of this that I discuss this question 

 more elaborately than I otherwise should ; 

 but, if what is there said is to be consid- 

 ered as a denial of all legislative power of 

 Congress over such lands, not only is it 

 opposed to the uniform practice of the 

 Government from the beginning, with the 

 frequent approval of that court, and to 

 ,many contrary declarations of that court, 

 but the contrary is directly held in later 

 cases. 



What is said in that case must be 



read with reference to, and in the light of, 

 the case then before the court. The ques- 

 tion in that case was that of the exclusive 

 jurisdiction, or not, of the United States 

 over that part of the reservation not used 

 for military purposes. On the admission 

 of Kansas no reservation of federal juris- 

 diction was made, but later the State ceded 

 that jurisdiction to the United States with 

 this saving clause, namely : the right to 

 serve civil and criminal State processes 

 therein, and "Saving further to said State 

 the right to tax railroad, bridge and other 

 corporations, their franchises and property 

 on said reservation." The State levied a tax 

 on a railroad on this reservation, and the 

 question of its power to do so depended on 

 whether the reservation was in the ex- 

 clusive jurisdiction of the United States. 

 The court held that, inasmuch as it was not 

 purchased with the consent of the State 

 "for the erection of forts, magazines, 

 arsenals, dock yards, and other needful 

 buildings," under Clause 17, Section 8, 

 Article I., of the Constitution, the United 

 States had no such exclusive jurisdiction; 

 that, under this saving clause, the 

 State had power to tax the railroad prop- 

 erty ; and that the only way by which the 

 United States could acquire this exclusive 

 jurisdiction within a State was that pro- 

 vided by the Constitution, namely : by pur- 

 chase with the consent of the State. The 

 question of concurrent jurisdiction, or of 

 federal jurisdiction for some purposes, 

 was not discussed, nor even mentioned, for 

 .it was not involved; nor was any allusion 

 made to that other constitutional provision 

 giving to Congress the power to make need- 

 ful rules, etc., which certainly gave to Con- 

 gress much greater power than is possessed 

 by an ordinary proprietor. If the 

 court decided that it did not do so, or did 

 not apply to lands within a State, or decid- 

 ed anything else upon a question of such 

 vast importance, it did so sub silentio by 

 saying nothing about it. That is not the 

 way in which that court settles questions of 

 such importance. 



From the beginning, the whole policy 

 and practice of the Government, in respect 

 of its public lands, has been based on the 

 generally unquestioned power of Congress 

 to legislate for their disposal, management 

 and protection, in both Territories and 

 States, and with the frequent approval of 

 the Supreme Court. It is needless to refer 

 to these various acts of legislation as to 

 lands in States and Territories. Their 

 name is legion ; but, each and every one of 

 these acts was the assertion and the exer- 

 cise of federal jurisdiction and sovereignty, 

 and of a right far superior to that of any 

 mere proprietor as to lands within a State. 

 This must have been either because, in the 

 admission of the State, the jurisdiction 



