816 
SUPPLEMENT TO FOREST AND STREAM. 
[Nov. 24, 1906. 
of authority, and, on the other hand, the asser¬ 
tion of any Federal power derogatory to a neces¬ 
sary and purely functional right of a State or any 
political sub-division therein is not genuine 
centralization, but an illegal invasion of a form 
of government prescribed by the Constitution, 
and, as such, always susceptible to restraint by 
the Federal judiciary. The so-called “rights” of 
either a State or the National government should 
be measured by the great test as to whether they 
concern simply the rights of a citizen within a 
State or whether the rights are of such a char¬ 
acter as to belong, naturally and inherently, to 
the United States, in the necessary discharge of 
its duties, when standing as the general govern¬ 
ment of not only forty-five great States, but for 
the Territories and our new colonial possessions; 
for, it must be borne in mind that our Federal 
system now includes thousands of square miles 
of territory not within a State and millions of 
people who, while they may be citizens of the 
United States, are not citizens of any State. Our 
nationality now differs materially from that of 
the old days when a little confederacy, with its 
puny population, existed in scattered settlements 
along the Atlantic coast. How best to meet 
such complicated changes is the work of the 
present day, and is enlisting the best thought 
of our statesmen and patriots. 
National Sovereignty Includes Police Power. 
Taking, therefore, the view which now or 
certainly in the near future must obtain, that 
the Federal government stands for a “unity of 
States”—an expression fairly synonymous with 
United States—it is important to analyze those 
powers which belong (1) to a nation in its purely 
sovereign capacity, and (2) those formal pre¬ 
rogatives with which it is invested, by its 
creators, when subject to a written constitution. 
Every living organization possesses life and 
form, spirit and substance, action and material 
means, and hence it has come to pass that the 
law of nations has written into the jurisprudence 
of the world that every free and independent 
government possesses within its purely corpo¬ 
rate form a sovereignty that cannot be so 
limited from within that it cannot exercise all 
the essential parliamentary functions upon which 
its life and general well being depend. "We 
the people of the United States,” are the 
sovereigns and in our collective capacity wholly 
supreme, and it is our will to-day that the 
United States shall possess and perform all those 
powers actually necessary for the maintenance 
of its supreme authority. 
During the discussion of Federal game regu¬ 
lation the past year, in your journal, but two 
writers have denied the constitutionality of the 
legislation proposed, although they, doubtless, 
represent a considerable class, for, as I said 
in previous communications, many lawyers who 
have not examined this question carefully, have 
at first sight taken a similar view, but with 
scarcely an exception have informed me that, 
after mature consideration, they believed in the 
constitutionality of the general principles in¬ 
volved. In my judgment, the propositions ad¬ 
vanced by Mr. J. B. Thompson against the 
legality of Federal control of the migratory game 
and fish, cover, in detail and in the broadest 
sense, the vital differences which exist between 
us on this subject. His positions are plainly 
stated, and in the main were doubtless accepted 
thirty or forty years ago, and even, I am pre¬ 
pared to admit, up to a later date in regard to 
such legislation as relates particularly to wild 
game. 
As a matter of fact, the legislative powers I 
depend upon have been exercised for years, 
though in an ever-increasing extent. The fact 
is that the very powers which Mr. Thompson 
thinks have always been reserved to and ex¬ 
ercised by the State have also been most fre¬ 
quently and extensively asserted by our govern¬ 
ment, and that he has failed to recognize them, 
arises wholly from the circumstance that they 
have been masquerading under a series of false 
aliases so long that he, like the great majority 
of the lawyers and the courts, have never looked 
behind the masks, and if he had he would have 
discovered some very familiar faces. 
The gradual extension of our Federal juris¬ 
diction is evidenced by the advanced ground 
occupied each year by Congress, and the readi¬ 
ness of our Federal courts to sustain certain 
supervisory powers, in matters relating more 
particularly to public health and safety, public 
morals, trade monopolies, unfair and fraudulent 
commercial transactions, which, heretofore, were 
supposed to be subject only to the police power 
of the State. Nevertheless, the evolution has 
been continuous with the increase and concentra¬ 
tion, in population, in business, and in the grow¬ 
ing homogeneity of the people. Certain prin¬ 
ciples when advancing slowly may, for the time, 
apparently stand apart, and the general doctrine, 
which they represent collectively, may escape 
notice. But like its counterpart in plant crea¬ 
tion, it must eventually receive its proper title. 
So in the growth of nationalism there have de¬ 
veloped many sovereign powers, concerning 
public welfare, that are based upon new con¬ 
ditions and necessities. The method by which 
these new problems are to be met is not to 
be denied, because heretofore unrecognized, or 
because, in many cases, left previously to the 
separate States for action. In this way we have 
come face to face with a governmental doctrine, 
in the recognition of which, in my judgment, 
lies the only escape from the almost farcial 
efforts of Congress and our Federal courts to 
keep within the written words of isolated clauses 
in the Constitution, and at the same time assert 
Federal powers utterly at variance with the true 
meaning and spirit of the narrow phraseology 
usually relied upon. National sovereignty 
abides within the Constitution, and under its 
inspiration alone can the corporate body perform 
its separate and collective functions effectively. 
The conservation of health, morals, safety and 
business prosperity depends, to a large extent, 
upon the proper exercise of one of those 
sovereign attributes, commonly called police 
power. This inherent governmental power 
has always been exercised by the States, and has 
proved most efficient in placing those restraints 
upon its citizens which experience has shown 
to have become necessary in the preservation of 
the general welfare of the local community; and 
each State has determined for itself, just how 
far it would place such restrictions upon its own 
citizens. Under the constitutional construction 
of the past it has been frequently said that all 
police power is exclusively reserved to the States, 
and that the National government is without that 
sovereign attribute because the State must em¬ 
ploy it in the preservation of the life, liberty and 
property of its citizens, and that ergo, such an 
exercise is incompatible for similar purposes, by 
the National government, even though it may be 
directed wholly toward subjects beyond the 
actual and effective jurisdiction of the States. 
Hence, when we now wish to legislate, through 
Congress, upon the subjects of public health, 
public morals, restraint of trade, and the in¬ 
numerable other subjects falling naturally under 
the police power of a sovereign, we turn to the 
Constitution, and there, under the commerce 
clause, the taxing clause, the clause covering 
transmission of mails, find some little peg to 
hang the exercise of National police power upon, 
and yet we ignore the very essence of such a 
power in failing to recognize that it is one of 
the highest attributes of National sovereignty, and 
is as inherent to all governments as life is in¬ 
herent in every living and growing organism. 
It should be remembered that police power, 
so-called, exists wholly independent of its ex¬ 
press recognition in the Constitution of a State, 
and in statutory form may partake of any such 
restrictive character as the welfare of its citizens 
demands. It exists because of the supreme 
sovereignty of a State within its own sphere of 
action; and consequently the courts have held 
that a State, by its own laws, may not part with 
or so suspend or delegate its police powers that 
it is unable to effectively exercise such an ele¬ 
ment of sovereignty in its own behalf. This 
failure to recognize the police or peace power 
as an inherent sovereign prerogative and its 
harmonious existence in two distinct spheres of 
legislative action, has caused the present con¬ 
fusion. Therefore, in the recognition of a 
National police power we lay the grounds for 
future progress, and at the same time provide 
the only apparently sensible escape from a per¬ 
fect jungle of evasion and illogical pretense, in 
which we have been wandering these many years 
simply because of the failure to recognize (or 
at least to acknowledge) those principles of 
national sovereignty which, when viewed col¬ 
lectively, must be classed sui generis and as such, 
given its proper name and effect. 
When Mr. Thompson asserts that the protec¬ 
tion of game and fish is based solely upon the ex¬ 
ercise of police power, and when he further con¬ 
tends that police power is wholly reserved to a 
State, it must be apparent that I am under the 
necessity of showing some error in his premises, 
or otherwise forego my advocacy of Federal 
action. Keeping in mind that police power is 
synonymous with sovereignty, and that it bears 
such a title merely because it is of a quasi 
criminal regulatory character, I am perfectly 
willing to admit that the Federal government 
must possess such a general power, if the con¬ 
stitutionality of Federal supervision over certain 
game and fish is to be sustained. 
Let me make three crucial statements: 
1. That we have a Federal police power as 
complete and far-reaching under the sphere of 
the general government as is that within the 
boundaries of a State. 
2. That for every instance that can be cited 
of a proper exercise of police power within a 
State there can be shown an equal number of 
cases where it is operative under National laws, 
and in most instances it will be found precisely 
similar in application. 
3. That the recognition of a National police 
power is not derogatory to, nor an impairment 
of, the police power of a State, but on the con¬ 
trary renders it more effective, and likewise 
affords the general government a supervisory 
power wholly incapable of use or exercise by the 
State beyond its own limits. 
The first and second propositions are identical 
so far as proof is concerned. They call for a 
long series of Federal decisions and acts of Con¬ 
gress which must necessarily be summarized in 
order to find a place in a limited discussion of 
this question. 
The third or last proposition must find its 
answer in the analysis of the Federal decisions 
and acts referred to. 
Definition of Police Power. 
I can conceive of no better method of show¬ 
ing the sovereign character of police power and 
its necessary existence as a governmental func¬ 
tion, be it National, State or such as may be prop¬ 
erly delegated to the minor municipalities, than 
by submitting definitions of the same as they 
appear in our best modern text books, and in 
those decisions of the higher courts relating 
thereto. In the American and English Encyclo¬ 
pedia of Law we have the following prefatory 
statement: 
“It has been found impossible to frame, and, indeed, 
deemed inadvisable to attempt to frame, any definition of 
police power which shall absolutely indicate its limits by 
including everything to which it may extend and exclud¬ 
ing everything to which it cannot extend, the courts 
considering it better to decide as each case arises whether 
the police power extends thereto.”—101 U. S., 814. 
This is based upon a case cited in the above 
volume of the Supreme Court. As sovereignty 
is a general and indeterminable power, such a 
declaration, therefore, is in harmony with my 
position; but in order to frame at least a tentative 
definition the same work gives the following: 
“Police power, in its broadest acceptation, means the 
general power of the government to preserve and promote 
the public welfare by prohibiting all things hurtful to the 
comfort, safety and welfare of society, and is established 
by such rules and regulations for the conduct of all 
persons and the use and management of all property as 
may be conducive to public interests.” 
Where, in this definition, does there aopear, in 
word or spirit, aught that is antagonistic to, or 
in conflict with, the National government pos¬ 
sessing, within its own sphere, such general 
police powers? 
And, again, I quote from the same work: 
“The police power is a governmental function, and 
neither the legislature nor any inferior legislative body 
to which a, portion of such power has been granted can 
alienate, surrender, or abridge the right to exercise such 
