302 



RECREATION. 



though the entry upon the reserve is not 

 for that purpose. But, the right to forbid 

 intrusion for the purpose of killing game 

 is one thing, and the right to forbid and 

 punish the killing, per se, and without ref- 

 erence to any trespass on the property, is 

 another. The "first may be forbidden as a 

 trespass and for the protection of the prop- 

 erty; but when a person is lawfully there, 

 and not a trespasser or intruder, the ques- 

 tion is different. 



I am decidedly of opinion that Congress 

 may forbid and punish the killing of game 

 on these reserves, no matter if the slayer 

 is lawfully there and is not a trespasser. 

 If Congress may prohibit the use of these 

 reserves for one purpose, it may for an- 

 other; and while Congress permits persons 

 to be thereupon and use them for various 

 purposes, it may fix limits to such use and 

 occupation and prescribe the purposes and 

 objects for which they shall not be used, 

 as for the killing, capture or pursuit of 

 specified kinds of game. Generally, any 

 private owner may forbid, on his own land, 

 any act that he chooses, although the act 

 may be lawful in itself; and certainly Con- 

 gress, invested also with legislative power, 

 may do the same thing, just as it may pro- 

 hibit the sale of intoxicating liquors, 

 though such sale is otherwise lawful. 



After considerable attention to the whole 

 subject, I have no hesitation in expressing 

 my opinion that Congress has ample power 

 to forbid and punish any and all kinds of 

 trespass upon, or injury to, the forest re- 

 serves, including the trespass of entering 

 upon or using them for the killing, capture 

 or pursuit of game. 



The exercise of these powers would not 

 conflict with any State authority. Most of 

 the States have laws forbidding the kill- 

 ing, capture or pursuit of different kinds 

 of game during specified portions of the 

 year. This makes such killing, etc., lawful 

 at other times, but only lawful because not 

 made unlawful. It is lawful only when the 

 State has power to make it lawful, by 

 either implication or direct enactment. 

 But, except in those cases already referred 

 to, such as eminent domain, service of 

 process, etc., no State has power to author- 

 ize or make lawful a trespass on private 

 property. So that, though Congress should 

 prohibit such killing, etc., on its own lands, 

 at all seasons of the year, this would not 

 conflict with any State authority or con- 

 trol. That the preservation of game is 

 part of the public policy of those States 

 and for the benefit of their own people is 

 shown by their own legislation, and they 

 can not complain if Congress, on its own 

 lands, goes even farther in that direction 

 than the State, as long as the open season 

 of the State law is not interfered with in 

 any place where such law is paramount. 



It has always been the policy of the Gov- 

 ernment to invite and induce the purchase 

 and settlement of its public lands ; and 

 as the existence of game thereon and in 

 their localities adds to the desirability of 

 the lands, and is a well known inducement 

 to their purchase, it may well be considered 

 whether, for this purpose alone, and with- 

 out reference to the protection of the lands 

 from trespass, Congress may not, on its 

 own lands, prohibit the killing of such 

 game. 



Your other questions relate to the method 

 of enforcing these federal powers, if they 

 exist — to the nature and kind of laws there- 

 for. While such questions are peculiarly 

 for Congress, yet, as you request it, I will 

 suggest what occurs to me. 



You very properly suggest the power of 

 Congress over interstate commerce as tend- 

 ing indirectly to this end, by prohibiting 

 interstate transportation of game, living or 

 dead, or of the skins or any part thereof. 

 There is some legislation on that subject. 

 I do not take the pains to examine this 

 to see how sufficient it is. If not al- 

 ready done, something to the end desired 

 may be accomplished in this way ; but, as 

 a remedy, this would fall far short of what 

 is required. 



You allude to the aid and co-operation 

 of forest rangers and those in charge, for 

 the enforcement of State laws. This would 

 be well ; especially in the way of se- 

 curing good feeling and harmonious action 

 between federal and State authorities. 

 . There is a provision for that in the Act 

 of March 3, 1899 (2 Sup. Rev. Stat., 993), 

 but it simply imposes a general duty, and 

 should be more specific as to what acts 

 are required to be done. 



In this connection, and with reference 

 also to the general protection of these re- 

 serves and the other public lands from 

 fires, cutting timber, killing game, and 

 other depredations, I suggest, in view of 

 the existing law as to arrest without a war- 

 rant, that it might be well to give 

 marshals and their deputies, and the su- 

 perintendents, supervisors, rangers and 

 other persons charged with the protection 

 of these reserves, power, on the public 

 lands, in certain cases approaching "hot 

 pursuit," to arrest without warrant. Com- 

 plaints come to this Department that very 

 often the place of illegal acts is so far 

 from the office of any magistrate, and the 

 means of communication are such that, be- 

 fore formal complaint can be made and an 

 officer with a warrant sent there, the of- 

 fenders are beyond successful pursuit. I 

 commend this to your consideration. No 

 matter what laws we may have for the 

 protection of these reserves, the public 

 lands generally, or the game, they are in 

 many cases wholly inefficient, owing to 



