744 
FOREST AND STREAM. 
[Nov. 18, 1911. 
Federal Protection for Migrants. 
Bennington, Vt., Nov. 10 .—Editor Forest and 
Stream: Since the publication of my letter in 
Forest and Stream of Oct. 28, I have received 
a number of communications from prominent 
game protectionists—some doubting the cor¬ 
rectness of the position I there assumed, and 
others requesting more light upon the subject 
—so I believe Forest and Stream will be 
justified in going into the question more fully 
and thoroughly. It is one of the most im¬ 
portant questions in its way now before the 
game conservationists of the country, and was 
so recognized at the recent meeting in Kansas 
City of the National Conservation Congress. 
It would seem of late years that upon every 
suitable occasion some enthusiastic advocate of 
protection of our migratory birds rises in his 
place and proclaims that he is in favor of na¬ 
tional laws for this purpose. Owing to the 
conflict and confusion of State laws, and the 
lack of all laws whatever upon the subject in 
some States, he argues, the wildfowl and other 
migratory birds are slowly, but nevertheless 
surely, decreasing in number, and we look for¬ 
ward with considerable concern and apprehen¬ 
sion to the time when these valuable creatures 
to mankind will be totally exterminated. Such 
an event would be nothing short of a national 
catastrophe. We all agree with this, and many 
good men, who are conversant with the situa- 
ation, are convinced that only Federal laws and 
rigid Federal enforcement can save these birds. 
These men are enthusiastic for such measures. 
President Burnham, of the American Game 
Protective and Propagation Society, in explain¬ 
ing the purpose of this new organization, among 
other things, says: “There is no general ef¬ 
fective protection of migratory game birds, such 
as wildfowl and woodcock, over a large part 
of the country,” and he goes on to say that it 
will be one of the objects of his society “to 
work for a national law protecting migratory 
birds.” And in writing to Mr. Burnham re¬ 
garding the objects of this association, even so 
good an authority (as some people think) as 
ex-President Roosevelt remarks that “there 
should be national legislation to protect migra¬ 
tory birds.” 
Only a few years ago Congressman Weeks 
of Massachusetts introduced a bill in the House 
of Representatives with this object in view, and 
great and united efforts were made by the game 
commissions of the various States to enlist sup¬ 
port for this measure. It failed of passage, 
however, and as the agitation for such legis¬ 
lation continues, it is evident that a large ma¬ 
jority of its adherents do not understand why 
it failed. They should be informed at once, 
unless they intend to work for an amendment 
to our Federal constitution, cease their efforts 
in this line and devote the same to channels 
more promising of results. 
Now, just why did the Weeks bill fail? Cer¬ 
tainly, not from lack of effort and able support. 
Not at all, but simply because it is settled be¬ 
yond controversy that Congress has not the 
power to enact such legislation under our sys¬ 
tem of constitutional government. To under¬ 
stand this, we must first learn what powers the 
Federal Government possesses. This cannot 
be briefly explained in more concise language 
than that used by Mr. Justice Story in the case 
of Martin vs. Hunter’s Lessee (I. Wheat, 305), 
when lie said: “The Government, then, of the 
United States can claim no powers which are 
not granted to it by the constitution, and the 
powers actually granted must be such as are 
expressly given, or given by necessary implica¬ 
tion.” In the first place, then, let it be under¬ 
stood that the Federal Government has no gen¬ 
eral police power. It has only such power of 
police as is incidental to its enumerated or im¬ 
plied powers, and none of these powers can be 
so extended as to assert authority over the 
game and fish in the States. Continuing in the 
above case, Justice Story said: “On the other 
hand, it is perfectly clear that the sovereign 
powers vested in the State governments by their 
respective constitutions remain unaltered and 
unimpaired, except so far as they were granted 
to the Government of the United States. These 
deductions do not rest upon general reasoning, 
plain and obvious as they seem to be. They 
have been positively recognized by one of the 
articles in amendment of the constitution, which 
declares that ‘the powers not delegated to the 
United States by the constitution, nor pro¬ 
hibited to it by the States, are reserved to the 
States respectively, or to the people.’ ” But in 
connection with the interpretation of the powers 
of the Federal Government it is now well 
understood that the National Government pos¬ 
sesses what are called “inherent powers.” It 
is under this doctrine, of course, that Col. 
Roosevelt and other advocates of national pro¬ 
tection of migratory birds claim that Congress 
has authority to act in the matter. The true 
principle of “inherent powers” is explained in 
Andrews’ American Law (Vol. I., at page 253), 
as follows: ’“If the object sought to be ac¬ 
complished is an object which the State under 
no circumstances has the power to accomplish, 
and if the means does not invade the exclusive 
powers of the States, nor restrict the liberties 
of the citizen guaranteed in the constitution, 
and is the exercise of a power ordinarily exer¬ 
cised by nations, it has the inherent power to 
accomplish such object.” It will be at once 
noted that the means adopted must “not invade 
the exclusive powers of the States.” Is it not 
recognized at present that laws protecting game 
and fish within the States come exclusively 
within the police powers of the States? In this 
country the principle is fully acknowledged that 
the game and fish of a State belong to the 
people thereof in their collective sovereign 
capacity, and an individual can acquire only 
such qualified property right therein as the 
people of the State chose to give him. The 
privilege of taking game is not one of the priv¬ 
ileges and immunities of the citizens of the 
United States, nor of the citizens of the several 
States, but it is a privilege pertaining solely to 
the citizen who resides in the particular State 
in question, or a privilege “of citizenship and 
domicile united,” as Chief Justice Waite so 
aptly said in the case of McCready vs. Vir¬ 
ginia. (See 94 U. S. 395.) Therefore, matters 
regarding the game and fish of a State are fully 
recognized as coming within the powers of in¬ 
ternal police of the several States, and subject 
entirely to that power. In 1698 the Massa¬ 
chusetts colony enacted a law establishing a 
close season for deer, and making the posses¬ 
sion of the skin sufficient evidence for convic¬ 
tion, and a similar statute was passed for New 
York in 1705, so that for nearly a century be¬ 
fore this nation was established, and up to the 
present time, the States have exercised ex¬ 
clusive control over the game and fish within 
their borders. Within the memory of the 
present generation the highest courts in the 
several States from Maine to California, and 
from Michigan to Louisiana, have passed upon 
these laws and upheld them as a valid exercise 
of the police powers of the sovereign States. 
Can we change or get away from all this ancient 
custom now? 
The Supreme Court of the United States has 
asknowledged this exclusive power of the States 
in every case coming before it regarding mat¬ 
ters of game and fish. In the leading, and now 
famous, case of Geer vs. Connecticut (161 U. 
S. 519), Justice (now Chief Justice) White said: 
“Undoubtedly, this attribute of government to 
control the taking of animals ferae naturae, which 
was recognized and enforced by the common 
law of England, was vested in the colonial gov¬ 
ernments, where not denied by their charters or 
in conflict with grants of the royal prerogative. 
It is also certain that the power which the 
colonies thus possessed passed to the States 
with the separation from the mother country, 
and remains in them at the present day, in so 
far as its exercise may not be incompatible with, 
or restrained by the rights conveyed to the 
Federal Government by the constitution.” Can 
anything be plainer than this? After this ex¬ 
amination of the authorities, if one is still in 
doubt upon this question, we invite his atten¬ 
tion to an additional expression of this same 
great court in the case of Ward vs. Race Horse 
(163 U. S. 504), where it said: “The power of 
all the States to regulate the killing of game 
within their borders will not be gainsaid.” And 
finally, keeping in view that in the past it has 
been conceded that matters of game and fish 
relate entirely to the police power of the States, 
it was decided by the same court in the case 
of United States vs. DeWitt (9 Wallace 41), 
that the power to establish the ordinary regula¬ 
tions of police has been left with the individual 
States, and it cannot be taken from them, either 
wholly or in part, and exercised under legis¬ 
lation of Congress. Harry Chase. 
[It is not the intention of advocates of Federal 
protection for migratory game birds to pro¬ 
pose the passage of any Federal law which 
might take from the States their rights. If 
Federal laws are passed every effort will be 
made to so harmonize all regulations that both 
State and National laws may be enforced. It 
is not the intention to take away from. States 
their police powers, but to strengthen these 
powers. In other words, to secure what all the 
game protective societies have failed to secure— 
the nearest approach possible to uniform laws 
along the line of flight of migratory birds.— 
Editor.] 
Quick Work. 
Linville Fales, N. C, Nov. 9 .— Editor Forest 
and Stream: It did not take Mitchell Burleson 
and his son Commodore long to find the big 
game that Mr. and Mrs. F. T. Martin, of Canton, 
Ohio, were looking for. They left here at noon, 
drove ten miles and started the hounds out next 
morning. Before 10 o’clock they had three black 
bears and by night were back at Penland’s with 
