FEDERAL PROTECTION OF WILDFOWL. 
The Existence of a National Police Power, Inclusive of Federal Control for the Protection of Migratory Wildfowl and 
of Fish in the Interstate Public Waters of the United States. 
Nearly two years have new elapsed since, with 
a view of testing the opinion of our American 
sportsmen, I prepared and introduced a bill into 
the National House of Representatives to -establish 
Federal supervision over the migratory wild fowl 
of the United States; followed by three other 
measures designed to give the general govern¬ 
ment effective jurisdiction over the coastal and 
interior waters of the country, so as to not only 
safeguard our great fishery interests, but like¬ 
wise protect the public health of the entire coun¬ 
try from the indiscriminate and unnecessary 
pollution of our interior interstate waters, the 
contamination of which is costing hundreds of 
thousands of lives each year, and, in the last 
decade, hundreds of millions of dollars for new 
systems of water supply and storage. All these 
bills involve precisely a similar question, viz.: 
Does there exist a sovereign power, in the Na¬ 
tional government, capable of meeting a situa¬ 
tion where experience shows that the States, act¬ 
ing alone, have been unable to afford relief? 
It is, therefore, not a problem of taking away 
from the States prerogatives capable of efficient 
exercise, but rather (i) supplementing the same 
by National co-operation, or (2) by entirely sup¬ 
planting State regulations, when incapable of en¬ 
forcement. Neither case entails a loss of 
powers "reserved to the States,” for a power in¬ 
capable of exercise is a legal fiction, and a power 
that can only be partially exercised is not in¬ 
fringed upon when the same is made fully effec¬ 
tive by the assistance of the central government. 
Recognizing the fact that the proposition, so 
far as it related to the preservation of our mi¬ 
gratory wild fowl, was a new one, and that in 
respect to the others the situation was in almost 
inextricable confusion, owing not so much to con¬ 
flicting decisions as to lack of public consider¬ 
ation, I submitted all of the proposed acts to 
those journals representing the several classes 
most likely to be interested in such legislation, 
in order to obtain expression thereon, not only 
in reference to the possible advantages, but also 
in relation to the legality, in the broad sense, of 
such Federal supervision. 
As your paper has already taken the respon¬ 
sibility of saying, editorially, that the support 
accorded the migratory game bill, by the sports¬ 
men generally, has been uniformly favorable, I 
will pass by this feature for the purpose of re¬ 
viewing the several constitutional questions in¬ 
volved. 
Since June 1, I have been so continuously in 
the woods with gun and camera, that, for the 
time being, I was more interested in immutable 
laws of nature than the rather uncertain and 
variable ones laid down by man in the effort to 
regulate his fellow creatures. This week for the 
first time I have hastily glanced over your files 
and can hardly realize that more than a year 
has passed since writing on the subject of Fed¬ 
eral game laws. However, I have had in mind 
the propriety of summarizing the principles upon 
which such legislation must apparently rest, for 
I am heartily in accord with the suggestion made 
by one of the only two writers who questioned 
the constitutionality of Federal control, that 
better no law at all by Congress, however de¬ 
sirable the objects, than one that must eventually 
be stricken off the statute books as beyond the 
power of the National government to enact. Not 
only would such a result be harmful in hamper¬ 
ing the States during the period of its temporary 
operation, but, of necessity, a reflection upon its 
author and advocates. 
That I have tried to act conservatively is shown 
by the. fact that the question of its alleged merits 
was left to the verdict of those interested, and 
no effort was made, meanwhile, for the considera¬ 
tion of the bill by the House committee to which 
By GEO. SHIRAS 3d 
it was referred. While we all seem to agree that 
the instant the Federal government prohibits spring 
shooting of ducks, geese and snipe, and makes 
night shooting, at any time, a crime, almost in¬ 
stantly the slaughter will be stopped at those 
points where extermination is on the programme; 
yet I am unwilling that the legality of govern¬ 
mental action shall be decided adversely by a too 
hasty presentation of the question. Better push 
the proposition slowly, steadily and cautiously 
than improvidently lose by not stating the case 
properly and at the most propitious time. 
Not having been a candidate for renomination, 
or re-election to the present Congress, I can con¬ 
sider with more freedom certain features of the 
bill than when I wrote before; for assertions that 
would have sounded dogmatic, perhaps, coming 
from a lawmaker, will only now be regarded as 
earnestness in behalf of a good cause. 
Arbitrary and Functional Rights of a State. 
On previous occasions I have largely confined 
myself to the broad proposition, that we should 
have National laws for the protection of our so- 
called migratory birds and fish, and State laws 
for all purely local game; citing a case of two, to 
illustrate the tendency of our Federal courts to 
sustain such a principle in the direction that I 
am traveling, especially where the result is not 
in derogation of any substantial State function. 
Those State rights which are functional—that 
relate to the effective discharge of duties to its 
citizens, individually or collectively-—which are 
inherent because affording a direct, complete and 
responsive control of those subject-matters neces¬ 
sarily essential to life, liberty and property of 
the inhabitants thereof, as between themselves, 
in contradistinction to those complex relations 
which exist outside to the State itself—such rights 
as these must be preserved, for upon them de¬ 
pend representative government in the States and 
Nation alike. 
But when the rights claimed by a State are 
based solely upon prior use or upon conditions 
that have passed away—upon ancient dogmas 
which partake of the "divinity that doth hedge a 
King,” and are non-essential, often proving a 
menace to the Nation and a discredit to the Com¬ 
monwealth itself—then the time has come when 
a halt should be called upon this method of mis- 
representative government. 
For as “two wrongs don’t justify a right,” we 
can hardly say one right can justify forty-four 
wrongs against that number of co-States; yet this 
is the position we are in to-day, if we tried to 
weigh State sovereignty by any other rule than 
that it must be subordinate to the general wel¬ 
fare of the Nation; and in saying this, I hope 
to demonstrate that none of the legislation here¬ 
in specifically advocated, affects a single neces¬ 
sary prerogative of the State; and further that 
the harmonizing of the now conflicting .claims 
can be done on a basis that, in my mind, is 
logical, easily defined and free from the incon¬ 
sistencies and insincerities lying behind so many 
of the methods, now in vogue, to afford the Fed¬ 
eral government control over subjects supposed 
to be wholly confined to the States. 
In order to determine whether the Government 
has a right to exercise the supervision given it 
under the game and health bills referred to, it 
will be necessary, however irksome, to trace back 
to the beginning of the Constitution the pedigree 
of certain rights heretofore assumed by the States, 
in order to find out whether such rights are 
capable of severance into classifications suitable, 
respectively, for local and general conditions; 
thus permitting the State to wholly control its 
local affairs and yet make possible the protection 
of interests important to the Nation, and in which 
the States may have but a secondary concern. 
States Creating a Nation and Vice Versa. 
Constitutional construction has been unques¬ 
tionably influenced by the way in which this 
first great and enduring Republic came into be¬ 
ing. While the present Constitution, strictly 
speaking, was framed by popular conventions, 
yet it is within the fair meaning of history to 
say that the thirteen colonial States created the 
Federal Union and its form of government; 
hence as creators, relinquishing, with more or 
less hesitation, the power theretofore possessed 
by each State, we find, for many years, a 
tendency to regard the new Nation as the com¬ 
mon offspring of joint statehood and scrutiniz¬ 
ing, with rather severe countenance, any dis¬ 
position of their progeny to assert powers con¬ 
flicting with what might, in those days, be 
styled "paternal rights” of the State, in con¬ 
tradistinction to the present custom of calling 
all Federal aggression "National paternalism.” 
Just how the States and the Union gradually 
shifted their position is instructive, and will 
help explain the process of centralization on a 
reasonable basis, instead of treating it as a 
necessarily dangerous and manifest departure 
from those fundamental principles underlying 
the relations of the States to the Union. 
The States, at the outset, were isolated, lacked 
common interests, differed materially in social 
and economic conditions, and, above all else, 
possessed a positive and natural dread of all 
power centralized within a government erected 
over and above them, which, in their colonial 
days and in the history of the world, had al¬ 
ways stood for some form of coercion and, 
usually, downright despotism. It is therefore 
not surprising that a combination, in which com¬ 
mon defense against foreign and domestic foes 
was one of the great impelling causes for unit¬ 
ing, should attempt to limit in many respects 
the power of the central government; and where 
it was not so limited, that the States should con¬ 
tinue to exercise functions really belonging to 
the general government. 
Perhaps nothing has done more to bring about 
an accurate valuation of those rights which are 
necesary to the States for the administration 
of local affairs and those so-called “rights” ex¬ 
isting without regard to their essence than has 
been the admission from time to time of new 
States in the Union. The change that has taken 
place since thirteen “sovereign States” created 
a Union and the “Nation” created thirty-two 
States, is remarkable, not only in the material 
advancement of the country, but in the relations 
that the States now bear to the Nation, as co¬ 
ordinate parts of the Republic. 
Centralization and ^Decentralization Coexistent 
It is an undeniable fact that, as we increase 
the responsiveness of our local governments, 
we add to the growth of Federal unity. Cen¬ 
tralization and de-centralization are co-existent 
forces working in entire harmony in a true re¬ 
public—one extending downward in a hundred 
directions in the effort to reach the lowest form 
into which our governmental system may satis¬ 
factorily be divided—the other developing up¬ 
ward. concentrating the diverse minor powers 
into a central medium, representing the Nation 
at large, -and, like a sturdy tree, depending upon 
its roots to withstand the gales and tempests 
which might beset it. The right of Congress 
to have full and adequate powers to meet all 
National requirements, is a proper centralization 
