820 
SUPPLEMENT TO FOREST AND STREAM 
[Nov. 24, 1906. 
right to regulate the rates, the bulk, weight, the 
perishable or dangerous character of the articles 
offered for transmission was, of course, a primary 
and unquestioned one. The present scope of its 
regulations and extensive criminal jurisdiction ex¬ 
ercised by it in the efforts to stop and restrict 
any form of business and social intercourse ap¬ 
parently harmful to the individual and the coun¬ 
try at large, represents, in the aggregate, one 
of the Inost powerful pieces of governmental 
machinery that could be devised to correct those 
manifest evils which, from a series of causes, 
lie beyond the practical control of the local 
police regulations of the States. While the com¬ 
merce clause has been worked to the limit as a 
police statute covering offenses against every¬ 
thing that could be possibly associated with law¬ 
ful trade, the Post-Office Department has 
stepped into the breach and assumed to regulate 
illegal trade and all forms of social de¬ 
linquencies, from the bunco-steerer to the man 
who writes defamatory letters. Experience has 
shown that all those various and practically un¬ 
limited systems of fraudulent promotion, the 
circulation of scurrilous and obscene matter and 
all the unscrupulous methods of selling noxious 
drugs or quack medicines have never been 
capable of extermination by the local authori¬ 
ties of the States. Schemes and conspiracies in 
one State have been put into effect at distant 
points, so that the offenders avoid local super¬ 
vision or punishment, and the thousands of vic¬ 
tims, scattered throughout forty or more States, 
lack co-operation in asserting their rights and 
generally prefer to keep silent from motives of 
privacy or are deterred by the cost of uncertain 
and expensive legal proceedings. In the course 
of time it is not strange that Congress author¬ 
ized the exclusion of lottery tickets, fraudulent 
and obscene matter et al. Finally came the 
resolve to punish by fine and imprisonment 
those guilty of deceptive and immoral acts. 
These prosecutions now range from the recent 
conviction of a man who sent a rude postal 
card to his wife saying, “You are a nice old 
bird,” to the breaking up of great brokerage, 
mining and industrial schemes, possessing all 
the outward evidences of prosperity and re¬ 
spectability, under which cloak millions of 
dollars are extracted, in rapid campaigns of 
plunder, preceding the eventual smash up and 
departure of the figure heads. While all this 
is very well, the time has come when the police 
power of the nation should be asserted under 
a code of statutes relieving the Post-Office De¬ 
partment and the Department of Justice from 
instituting investigations and criminal proceed¬ 
ings upon a whim or fancy of postal inspectors 
who were never intended to be so employed. 
When the time comes that Congress is recog¬ 
nized as having a plenary police power, then 
will such necessary subterfuges be laid aside. 
STATE AND FEDERAL NATURALIZATION. 
Hardly a better illustration exists of the 
former disposition to confer upon the States 
every possible legislative power they were 
deemed capable of exercising, than in the case 
of the naturalization of aliens. In the light of 
to-day there could be very little question that the 
authority vested in Congress by the Constitu¬ 
tion “to establish a uniform rule of naturaliza¬ 
tion” should be construed to mean a primary, 
and probably a supreme and exclusive right to 
regulate, by Federal statute, under general pro¬ 
visions. the terms and conditions upon which 
such citizenship should be predicated. Yet, in 
the year 1790, Congress passed the first act in 
relation thereto, and conferred upon the State 
courts the artitrary right to admit aliens to 
citizenship under the terms of the law. The re¬ 
sult is, to-day, that forty-five States may, each 
for itself, determine the qualifications of such 
aliens, but when thus admitted, such citizen, be 
he an anarchist, a criminal, or one wholly lack¬ 
ing in proper qualifications, may nevertheless, 
subsequently, become a citizen of any other 
State, by simply complying with the same regu¬ 
lations, as to length of residence, that applies 
11 a native born citizen coming therein. Not 
oiny has such a result taken away from the 
National government a sovereign police power 
which becomes each day more important in the 
maintenance of proper safeguards over the ad¬ 
mission of individuals or inferior races, but in 
recent years has resulted in the wholesale 
naturalization frauds in States where such laws 
are corruptly or carelessly administered. 
THE LACEY GAME ACT A POLICE MEASURE. 
It is so frequently assumed that the National 
government has never asserted a custodianship 
over game and fish which might properly come 
within its general police jurisdiction, that it is 
well to point out what it has already done, be¬ 
fore taking up for consideration just what it 
ought to do in the future. 
The Lacey law has so far proven most bene¬ 
ficial in its general operations; for, among 
other things, it has conferred on the Federal 
courts a criminal jurisdiction for the preserva¬ 
tion of game of the most far-reaching char¬ 
acter. Under it the State regulations for the 
protection of game are molded into a Federal 
game law, in such a way that violators of cer¬ 
tain vital provisions in the State game laws, are 
made punishable in Federal tribunals within 
and without the jurisdiction where the original 
offense occurred. That all of the regulatory 
powers and penalties in this act are of a police 
nature is most apparent; and the fact that in 
the title of the act occur the words “to pro¬ 
hibit the transportation by interstate com¬ 
merce of game killed in violation of local 
laws,” in no wise alters the real character of 
such legislation, for a State may, if it chooses, 
regulate the internal shipment of game, and 
yet be acting wholly within its police powers 
by so doing. That it has been deemed neces¬ 
sary to tie this measure, for the protection of 
game, to the commerce clause, makes it no 
more objectionable pro forma, than in the 
case of the numerous other Federal police reg¬ 
ulations heretofore cited. 
OTHER FEDERAL GAME LAWS. ' 
The laws that Congress has already passed 
for the preservation of game and fish within 
the land and waters of the United States are 
too numerous to give in detail. In the case 
of Yellowstone Park, all wild animals and 
birds are protected at all times, while fishing 
is permitted under reasonable regulations. In 
the passage of these game regulations, the 
jurisdiction of the State of Wyoming, so far 
as relates to game and fish, has been specifi¬ 
cally withdrawn by the act of 1894. We now 
have a complete Federal game law over this 
area. Its enforcement must necessarily be 
under a National police power, possessed by 
the general government. In the case of game 
refuges in tbe forest reserves, we also have a 
good example of Federal ownership of certain 
game and its protection under National laws. 
The Wichita game refuge includes the en¬ 
tire forest reserve in which it is established 
(nearly 60,000 acres), and the game regula¬ 
tions there have entirely supplanted the Terri¬ 
torial game laws of Oklahoma, by making a 
close season throughout the year; so that we 
have Congress directly legislating upon game 
in an area heretofore under the legislative 
jurisdiction of the Territory. In the case of 
Alaska and the District of Columbia, we also 
have Federal game laws which, in form, are 
almost identical with the more progressive ones 
of the States. 
However, perhaps, the most striking instance 
of Federal game, legislation is the recent Act of 
June 28, 1906, entitled, “An act to Protect Birds 
and Their Eggs in Game and Bird Preserves;” 
because, thereunder, the general Government as¬ 
sumes custodianship over birds on land, within a 
State, heretofore wholly under the criminal juris¬ 
diction of the local game laws. 
President Roosevelt, while often regarded as 
one primarily interested in the preservation of 
big game animals, has, as a matter of fact, done 
more for the practical protection of bird life than 
any executive we have ever had. The several 
executive orders, under which the President set 
aside certain government lands in the Gulf, the 
Great Lakes, and elsewhere, as breeding grounds 
for water and sea fowl, necessarily lacked specific 
trespass penalties. The following letter contained 
the draft of a bill prepared by the United States 
District Attorney, of Louisiana, designed to put 
into practical effect the existing executive orders: 
“Nov. 28, 1905. 
“The White House, Washington. 
“My Dear Mr. Sliiras: 
“What I am doing in the effort to protect 
our birds I know has your most hearty sym¬ 
pathy. Will you look over the enclosed com¬ 
munication and see if you cannot get through 
the legislation suggested? 
"With regard, 
“Sincerely yours, 
“Theodore Roosevelt.” 
Major Lacey was likewise enlisted in behalf of 
Congressional action, and, after remodeling the 
above bill, had it passed through the House with 
the celerity which has made him famous in pre¬ 
vious legislation of this character. While its prog¬ 
ress through the Senate was slow, requiring the 
aid of many bird lovers throughout the entire 
country, the bill finally became a law just on 
the eve of adjournment. This act, assuming 
that it shall finally be sustained, will settle for 
all time, in the affirmative, that wild birds within 
a State may be subject to exclusive Federal cus¬ 
tody. The accepted principle that all game in a 
State is owned by the State, as trustee for the 
inhabitants thereof, irrespective of the ownership 
of the private or public land upon which the game 
was found has thus been changed. Under the 
provisions of this act the President may set apart 
a wild fowl preserve upon Government lands 
within a State and the jurisdiction over such 
game birds is transferred and becomes vested in 
the general Government, as trustee for the entire 
country. How do the writers who declare that 
the National Government cannot own or protect 
migrator}' wild game within a State reconcile this 
act with their views? 
Is it not plain that the old theory of State 
ownership of all game simply rested upon the 
proposition that until the general Government saw 
fit to assert its own title it was eminently right 
and proper for both the State and Federal courts 
to sustain the Slate custodianship of such game, 
because the only protective laws then in exist¬ 
ence, and upon which the preservation of game 
then depended, were the game statutes of the 
several States? 
It is well to recall that for years the. States 
were accorded an exclusive jurisdiction in 
naturalization; later, it became concurrent, and 
it will occasion no surprise, if the Government 
soon takes entire control; at least in the estab¬ 
lishment of uniform qualifications for citizenship. 
In order that the logic and the legality of the 
Government’s duty to preserve migratory birds 
and fish shall be made more apparent, I have 
set forth in detail the evolutionary history of the 
principle upon which this doctrine is based. 
While necessarily occupying considerable space it 
must be remembered that in the presentation of 
a new question much depends upon the stability 
and scope of (lie foundation. 
Federal Control of Things Migratory. 
We now come down to a subject more di¬ 
rectly relating to the sovereign right of the 
government to assert its jurisdiction, at that 
point where the actual or effective jurisdiction 
of the State ceases. Assuming, therefore, it 
has been satisfactorily shown that Congress 
can exercise all the essential attributes of a 
predominant government, inclusive of police 
power, it naturally suggests the consideration 
of the proposition, how can Congress most 
effectively and systematically extend its leg¬ 
islative dominion into a field where the limita¬ 
tions are more or less undetermined? New 
problems are always best approached by laying 
down certain tentative rules, wherein past ex¬ 
perience and the unquestioned necessity of 
action, should be the working basis. Bv con¬ 
sidering how far Congress has. already ac¬ 
cepted certain principles underlying the pro¬ 
posed legislation, and thence, by.analogy, ex¬ 
tending it to those limits justifiable under 
present conditions, we may create a fairly 
logical standard for measuring both the ne- 
