CONGRESS HAS FULL POWER. 



201 



necessary for that purpose was either ex- 

 pressly or impliedly reserved — the latter of 

 which is not probable — or because the con- 

 stitutional provision referred to confers 

 that power ; and this would seem a quite 

 sufficient source of power. 



In Gibson v. Choteau (13 Wall., 92) 'it is 

 said in the syllabus that "The power of 

 Congress, in the disposal of the public 

 domain, can not be interfered with, or its 

 exercise embarrassed by any State legisla- 

 tion.'.' And on page 99, "With respect to 

 the public domain, the Constitution vests 

 in Congress the power of disposition and 

 of making all needful rules and regulations. 

 That power is subject to no limitations." 

 Nothing could be more conclusive that this 

 constitutional provision applies also to lands 

 within a State, and that the legislative 

 power thus conferred is paramount. 



In Jorden v. Bennett (4 How., 169) it is 

 said (p. 184) "By the Constitution, Con- 

 gress is given power to dispose of and 

 make all needful rules and regulations re- 

 specting the territory and other property of 

 the United States : for the disposal of the 

 public lands, therefore, in the new States 

 where such lands be, Congress may provide 

 by law; and having the constitutional 

 power to pass the law, it is supreme : so 

 Congress may prohibit and punish tres- 

 passers on the public lands. Having the 

 power of disposal and of protection, Con- 

 gress alone can deal with the title, and no 

 State law, whether of limitation or other- 

 wise, can defeat such title." 



This was the holding of the Supreme 

 Court up to the time when the Fort Leav- 

 enworth case was decided, and it is not 

 supposable that that Court intended to then 

 overrule these cases and deny this legisla- 

 tive power of Congress, and all other powers 

 save such as belong to an ordinary indi- 

 vidual proprietor, while making no refer- 

 ence whatever to its previous holdings. 

 That it did not so intend is manifest from 

 the only other case which I shall cite on 

 this question — that of Camfield v. United 

 States (167 U. S., 518), where it is said in 

 the syllabus : 



"The Government of the United States 

 has, with respect to its own lands within 

 the limits of a State, the rights of an ordi- 

 nary proprietor to 'maintain its possession 

 and to prosecute trespassers ; and may 

 legislate for their protection, though such 

 legislation may involve the exercise of the 

 police power." 



On pages 524, 525, the powers of the 

 Government, both as an individual proprie- 

 tor and as a sovereign are well stated : 



"The lands in question are all within the 

 State of Colorado. The Government has, 

 with respect to its own lands, the rights of 

 an ordinary proprietor to maintain its pos- 

 session and to prosecute trespassers. It 



may deal with such lands precisely as any 

 private individual may deal with his farm- 

 ing property. It may sell, or withhold them 

 from sale. It may grant them in aid of 

 railways or other public enterprises. It 

 may open them to pre-emption or home- 

 stead settlement; but it would be recreant 

 to its duties as trustee for the people of the 

 United States to permit any individual or 

 private corporation to monopolize them for 

 private gain, and thereby practically drive 

 intending settlers from the market." 



And on page 525 : 



"The General Government doubtless has 

 a power over its own property analogous 

 to the police power of the several States, 

 and the extent to which it may go in the 

 exercise of such power is measured by the 

 exigencies of the particular case. If it be 

 found necessary for the protection of 

 the public, or of intending settlers, to for- 

 bid all enclosures of public lands, the Gov- 

 ernment may do so, though the alternate 

 sections of private lands are thereby ren- 

 dered less valuable for pasturage. The in- 

 convenience, or even damage, to the individ- 

 ual proprietors does not authorize an act 

 which is in its nature a purpresture of 

 Government lands. While we do not un- 

 dertake to say that Congress 'has un- 

 limited power to legislate against nuisances 

 within a State which it would -have within 

 a Territory, we do not think the admission 

 of a Territory as a State deprives it of the 

 power of legislating for the protection of 

 the public lands, though it may thereby in- 

 volve the exercise of what is ordinarily 

 known as the police power, as long as such 

 power is directed solely to its own protec- 

 tion. A different rule would place the pub- 

 lic domain of the United States completely 

 at the mercy of State legislation." 



This, so manifestly the correct doctrine, 

 would seem to cover and to settle the whole 

 question, and to authorize the proposition 

 that, as to public lands within a State, the 

 Government has all the rights of an indi- 

 vidual proprietor, supplemented with the 

 power to make and enforce its own laws 

 for the assertion of those rights and for the 

 disposal and full and complete manage- 

 ment, control and protection of its lands. 



Among these undoubted rights is the 

 right of absolute or partial exclusion, 

 either at all, or at special times, and for 

 any or for special purposes. 



While Congress certainly may, by law, 

 prohibit and punish the entry upon, or use 

 of any part of, these forest reserves for the 

 purpose of the killing, capture or pursuit of 

 game, this would not be sufficient. There 

 are many persons now on those reserves by 

 authority of law, and people are expressly 

 authorized to go there, and it would be 

 necessary to go farther and to prohibit the 

 killing, capture or pursuit of game, even 



