1 
The Shiras Bill* 
Committee on the Public Lands, 
House of Representatives, U.S. 
Washington, D. C, Feb. ii. — Editor Forest and 
Stream: On December 5, 1904, I introduced into the 
House of Representatives a bill I prepared for the protec- 
tion of migratory game birds, placing the control of the 
shooting seasons in the Federal Government. 
Immediately thereafter I sent to a number of sports- 
men's magazines a printed copy of the bill, with the re- 
quest that this proposed legislation be given prompt con- 
sideration, with a view of learning how the sportsmen 
throughout the country feel on the question of Federal 
supervision, and further for the purpose, of obtaining the 
opinion of lawyers, legislators and other persons familiar 
with game legislation, upon the constitutionality of the 
principles necessarily involved in a bill of this character. 
The past two months seem to show a practical 
unanimity among the papers devoted to the protection 
of game in favor of such legislation, which in turn has 
been echoed by other writers who expressed their views 
on this subject. Such a verdict has been very gratifying 
to me, and I shall endeavor in every way to reciprocate 
by giving my best efforts in behalf of such legislation in 
whatever form it may take. 
In regard to the second question submitted for con- 
sideration, viz., the constitutionality of the act, I find 
expression rather limited by editors and other writers, 
all apparently approving the same or expressing a hope 
that the bill will be sustained by the courts, without, as 
I can recall, any serious discussion of the legal phases. 
In the multitude of other duties I have neglected to en- 
large upon this feature of the bill, although realizing that 
something more should be said than appears in the pre- 
amble and the bill itself. In the issue of Forest and 
Stream of even date, I read to-day with great interest 
Judge Beaman's letter, dated January 3, 1905, and his 
rather blunt fiat that "it has been settled too long by 
judicial decision to admit of question, and any effort to 
interfere with this property by Federal legis- 
lation, based solely on game protection, will surely prove 
nugatory," and again, where he says any "attempted 
Federal protection of game on private lands, because it 
may happen to be migratory, as contemplated by the 
Shiras Bill, in my opinion is an invasion of State rights, 
no matter how desirable it may be." 
For the first time, therefore, I am confronted . with a 
direct challenge on the legality of the bill in its vital fea- 
tures. No pride of authorship leads me to resent this 
criticism, however sweeping it may be ; for I fully recog- 
nize the fact that it is an entirely new question in its 
present form, and I am glad to be called upon to defend 
it, for it is only by a candid interchange of views that I 
hope to be able, with the assistance of abler minds, to so 
perfect the measure as to bring adequate protection to 
our rapidly vanishing wildfowl. 
That I may not be misunderstood or considered dis- 
courteous, let me say that I have a high opinion of 
Judge Beaman's ability and a very high regard for_ the 
interest he has shown in progressive game legislation; 
and if I differ with him, it is because I feel that my 
worthy opponent has not given that thought to the ques- 
tion which would have been the case had he heard the 
other side more fully, and had realized that the principle 
of Federal control had never been decided adversely by 
any court wherein the distinction I have made was sub- 
ject to consideration, direct or remote. 
If Judge Beaman is in error, it therefore arises from 
taking the various decisions on the ownership of game by 
the State without distinguishing the fact that, while that 
part of the decision relating to the ownership of game 
localized within the State was right, it was wrong, on 
the other hand, if it possibly included that class of game 
which from its habits could never be subject to State 
ownership. 
Every lawyer knows it occasionally happens that a 
judicial decree goes beyond the pleadings or the jurisdic- 
tion of the court on some subject not properly considered 
at the time the question was determined, and that, at 
other times, ignores the rights of parties not of record 
in the case, and that as to them it has no binding force 
if they had a right to be heard. Therefore I must dis- 
sent from the staternent that the matter has been "too 
long settled by judicial decision to admit of question," 
for the reasons I have already stated, and for others 
which I shall attempt to show hereafter. 
Minor Features of the Bill. 
The phraseology of the bill, the methods provided for 
its enforcement, whether under the "Department" of 
Agriculture or the "Secretary" thereof, or by embody- 
ing all the regulatory provisions and penalties in the bill 
itself, are really of minor importance and subject to 
change whenever the conclusion was reached _ that the 
principle of Federal supervision was as sound in law as 
it would seem to be beneficial in its operation. 
Judge Beaman's assumption that regulation by tbe 
"Department" of Agriculture constitutes a "fatal defect" 
in the bill is in the face of an opinion of the Attorney- 
General, although it is true that several Federal Courts 
have taken the same view as the former. But these 
cases, as I recall, have never reached the Supreme Court. 
Many Departments do exercise the right, notably the 
War Department in its regulations over navigable 
streams, and exacts severe penalties for their violation. 
The Lacey Bill was introduced a number of times be- 
fore it took its present shape, and therefore I will pass 
over these minor questions, only touching on one other 
statement of Judge Beaman's which seems to merit a 
special reply. 
A Good Purpose Never Justifies an Illegal Statute. 
The writer says that several game protectionists have 
taken the position on the bill that no true sportsman 
would attack its validity, and then remarks, "The passage 
of invalid game laws at . the instance of enthusiasts in 
game protection who often leave out of the question or 
ignore the constitutional limitations on legislative power 
(such as is popularly denoted as 'one-eyed legislation'), 
lias been one of the greatest obstacles to efficient laws and 
their rigorous enforcement.'^ While I am not charged 
with deliberately fathering an illegal measure, it seems to 
me that I possibly come under the head of an "enthusiast 
in game protection" who knows little law, but has a great 
abundance of misdirected energy; and in view of this sit- 
uation I am warned that it is "unwise in the extreme to 
favor the passage of any game law which has nothing 
but enthusiasm and necessity for its foundation, and the 
final overthrow of which will result only in weakening 
the cause of game protection." 
On the present question I was going to say that we 
agree, for in my judgment untenable laws passed with 
the idea that they will run the gauntlet of the courts long- 
enough to do some good, or such as are hastily framed 
by some novice and not the result of mature reflection 
and careful research, only in the end injure the object to 
be benefited, ' and cast discredit on the author, But per-' 
haps we do not agree, after all, on the ethics upon which 
we have expressed ourselves, for in the conclusion of 
Judge Beaman's letter is the following odd statement : 
"As to Federal protection of birds, migratory or other- 
wise, it is quite probable that it can be lawfully extended 
to ail inland navigable waters, and public waters along 
the coast, by prohibiting shooting thereon (under the 
guise of enhancing the safety of navigation or something 
of this kind), except under regulations promulgated by 
the Secretary of the Department having control of these 
waters." Now, it seems to me, that this scheme of pro- 
tecting all "birds, migratory or otherwise," on "all inland 
navigable waters and public waters," as he states, "under 
the gtcise of enhancing the safety of navigati\; or some- 
thing of that kind," would be a most beneficial way of 
throwing the navigation laws around our web-footed 
fowl. I fear, however, that the dull thud and tremendous 
splash which would follow the knockout blow given by 
the Federal Courts might cause a tidal wave on the 
navigable waters and all our little ducks might be 
drowned. 
History of Game Regulations. 
In the early days of the country, wild game and fish 
were regarded as no one's property, either State or indi- 
vidual, until reduced to possession, and thereupon the 
property right became a complete and unqualified one; 
later statutes creating close seasons for the protection of 
game were gradually passed in all States, followed by 
restrictions in the devices for killing game, and a multi- 
tude of other protective features, such as limiting the 
number that could be killed, prohibiting the sale or ship- 
ment of game out of the State, licenses, etc., culminating 
finally in many State Courts sustaining declaratory 
statutes that the wild game belonged to the State for the 
benefit and use of the citizens thereof. Upon the latter 
legislation, it seems to me, Judge Beaman relies for his 
position that the title to game being in the State, it is 
therefore beyond Federal control or interference. Of 
course he is right up to a certain point, but fails, in my 
judgment, to differentiate on the lines upon which my 
bill must necessarily depend for its validity. 
Like other sportsmen, I regarded this as very beneficial 
legislation, for, before such statutory declarations, there 
were many hunters who looked upon our wild game and 
wild birds as having no ownership until placed in the 
game bag, thus making it easy to ignore or violate State 
game laws on the plea that close seasons were an inter- 
ference with their inalienable rights to take freely that 
which belonged to nobody. Therefore, with others, I 
rejoiced in such legislation fixing the stability of prop- 
erty in game before it was reduced to individual owner- 
ship. But when Judge Beaman says, in effect, that such 
declaratory statutes end the matter of Federal custody 
of migratory game birds, we have, it seems to me, a 
good example of a State jumping a claim and asserting 
a title thereto on the sole basis of legislative pronun- 
ciamento; though, as a matter of fact, no statute goes so 
far. 
It is true the individual may sometimes acquire _ title 
in such a way if he holds on long enough; but national 
rights are, fortunately, not subject to_ loss by adverse 
possession or non-user, even though it were a State 
which sets up such a claim. To me the proposition is a 
simple one, that game having its permanent habitat 
within the State — like grouse, quail, wild turkey, etc. — 
should be controlled by the State laws, and any Federal 
interference in such a case would be- utterly wrong in 
morals and in legal principles. If such game is ruthlessly 
destroyed, the loss falls upon the citizens thereof; if the 
game is protected and fostered by wise State legislation 
and liberal appropriations, the citizens receive the direct 
benefit of these efforts; and thus as they sow they shall 
reap. 
"State's Rights" in Game and Fish. 
A review on my part of the conditions which explain 
the gradual growth of the National power and the asser- 
tion by the Government of that authority which, at one 
time, was never exercised or its exercise conceded to the 
State, would involve too much space in your journal; 
and yet it is a full understanding of such National 
growth and the relinquishment of the State's arbitrary 
claims to the exercise of rights purely National that_ we 
must look to the complete answer for the positions 
assumed by me in this matter of Federal control O' 
migratory game birds. 
In the Colonial days, and for a long time thereafter 
the sovereign people of these communities were wont t< 
look with grave suspicion upon the Federal Governmen' 
in its dealings with the people. States that were side b^: 
side in those days were further apart socially, economj; 
cally, and I might say geographically, than are the State? 
of California and Maine to-day. This week we witnessed 
the strange sight of a joint meeting of the House o 
Representatives and the Senate of the United States t(| 
tabulate th(^ vote of the Electoral College, an institution 
constitutionally created so that the people were eveij 
denied the privilege of voting directly for the chief ex^ 
ecutive officer, and conferring this great power upon 
convention of electoral delegates who still retain the lega 
right to vote for whom they please ! 
In the present day the people are recognizing the fac 
that the National Government in many ways can bes, 
conserve their interests, and we now have before us i 
the two Houses of Congress many measures v.estinj 
Federal control in the Government over vast corpora' 
tions that heretofore were subject only to State super 
vision. The day is rapidly approaching when Federa 
laws will regulate the pollution of public waters, th 
manufacture and sale of adulterated foods and drugs, anc 
many similar matters of grave importance to the publi 
at large. 
At this point, permit me to say that I would apply ex- 
actly the same argument to local fish, whether game oj 
commercial in character ; and I think that Judge Beamaj 
will agree with me that there is no more reason fo: 
Federal control of bass, pickerel, perch and fish of sim- 
ilar nature that live permanently in ponds, rivers ani 
streams of the State, than in the case of game birds am 
animals having their permanent habitat within the State 
"United States Rights" Over Migratory Game and Fis! 
It is here that Judge Beaman and myself part compan|j 
on the question of State ownership of game and fish, anc 
it is at this juncture that it becomes my duty to show 
if I can, that the right of the nation to the control of itf 
migratory game birds and migratory fish for the benefl 
of the people of the entire United States is just as cleai 
and just as righteous as is the claim of the State to thi 
control of the non-migratory species of game and fisi 
for the benefit of the citizens within its own borders. 
It is a general maxim of law that possession is essen^ 
tial to the ownership of personal property, or that suc| 
property is so subject to control that it can be reducec 
to possession, or so brought within the sphere of actioi 
as to amount to a practical dominion thereover. There- 
fore the case turns Upon a question of fact — has the State 
acquired such a title, as evidenced by practical contro 
as justifies the claim to the ownership of migratory gaxm 
and fish? A flock of geese in their northern migrat®n 
flight, sweeping over the State of Colorado from the Sul; 
to Hudson's Bay, at the rate of 150 miles per hour,, threi 
or four miles high, invisible by night or by reason of in; 
tervening clouds which sometimes lie beneath them anc 
the earth, are mighty poor subjects for State ownershif 
and control. Theoretically they might be 1,000 milei 
high, for in principle there could be no line drawn; ano 
thus we must inevitably come to the conclusion that Stat« 
ownership in migratory game must really rest upon thi 
sole requisite that once over the State line the title vests 
When the moon is in the meridian the State of CoW 
rado might just as well lay claim to its fractional part 0; 
the luminary as to try to shoot effectively the sovereignty 
of the State into this flock of wild geese as it passes un- 
seen and unknown in the heavens above. But perhap; 
I should treat the subject in a more serious vein, 
the migratory game bill I did not attempt to declan 
ownership in the National Government, for many o 
these birds are international, wintering in the >southerni 
most part of South America and breeding beyond thi 
Arctic Circle in northern Canada. Tiic bill gives th< 
Government control of the shooting seasons, and put: 
the migrants in the "custody" of the country at larg(i 
whenever they tarry long enough to need our protection; 
A very different thing from a declaration of ownership 
though, of course, there are some varieties of migrators 
birds which live wholly within the confines of the Unitec^ 
States, and which kind we, doubtless, could declare ai.' 
ownership therein which would be just as tangible as it 
the case of local birds within the State. 
At present renewed efforts are being made by th\ 
United States, England and other countries, by treatty; 
to so fix the title of the seals which breed in, Alaskaii,! 
waters as will, in eft'ect, virtually make the several; coun- 
tries joint owners of these valuable animals, which, bj 
reason of their migratory character, have received n(i 
adequate protection, and whose annihiila-tion is certaii 
without proper adjustment of some character. And iv 
my humble judgment the day will yet come when, ii| 
recognition of the joint interest that the American conti; 
nent has in the proper protection of the migratory birds! 
aquatic animals and fish, we will enter into treaty oi 
other relations with Canada and possibly Central anc 
South America, for the better protection of such inter- 
ests. And when this happens, no State will be heard U 
set up a claim that it owns everything that comes in rifli. 
range or swims the sea. 
Respective Efficiency of State and National L?gisIation4 
I can quote here with propriety a paragraph from 1 
letter written several months ago: ; 
"The wild pigeon was practically exterminated be; 
cause each State permitted unlimited slaughter on ac- 
count of its being a migrant, and, therefore, to b 
killed in as great numbers as possible before it too| 
