498 
FOREST AND STREAM 
April 20, 1912 
Resolved further. That the Secretary of State be, and 
hereby is directed to transmit copies of this reso.ution 
to the Senate and House of Representatives of the 
United States and to the several members of said bodies 
representing this State therein, also to transmit copies 
hereof to the Legislature of all other States of the 
United States. 
A copy of this resolution has been sent to the 
game commissioners of every State, with the 
request that the Legislature of each State be 
urged to pass a similar resolution. 
Under the Roman law wild animals were con¬ 
sidered to belong in common to all of the 
citizens of the State. In the feudal as well as 
in the ancient law of the continent of Europe, 
in all countries, the right to acquire animals 
ferae naturae by possession was recognized as 
being subject to governmental authority and 
under its power, not only as a matter of regu¬ 
lation, but also of absolute control. 
The common law based property in wild game 
upon the principle of common ownership and 
therefore treated it as subject to governmental 
authority. 
This common property was deemed to belong 
generally to the people. 
The United States Supreme Court in Geer 
vs. Connecticut (161 U. S., 519) held that the 
fundamental principles upon which the common 
property in game rests have undergone no 
change; that because of this common owner¬ 
ship, under the development of free institutions, 
the power or control over such game lodged in 
the State as a trust for the benefit of all the 
people of the State, hot as a prerogative for the 
advantage of the Government as distinct from 
the people or for the benefit of private indi¬ 
viduals as distinguished from the public good. 
While this decision sustained the power of 
the State to regulate the taking of the game 
within its borders, yet it was clearly pointed 
out that the State acted merely as trustee for its 
people and that the ownership of the game was 
in the people in their united sovereignty. 
The doctrine expressed by the court in this 
case may be fairly applied to the question of 
the ownership of migratory game birds. 
These birds do not remain for any length of 
time within the boundary of any State. They 
fly from South to North and from North to 
South, and in their flight pass over some of the 
States without alighting. Even when they do 
alight they remain a very short time within the 
boundaries of the various States, as the entire 
time consumed in their flight from the South¬ 
ern to the Northern part of our country is less 
than two months. 
Therefore it can fairly be said that they be¬ 
long to the people of the United States and 
not to the people of any individual State. 
The question of the title to migratory game 
birds has never, as far as I can ascertain, been 
adjudicated, and if it were adjudicated it seems 
fair to assume that the decision of the Su¬ 
preme Court, which I have cited, would be ex¬ 
tended so as to hold that under the peculiar 
conditions relating to migratory wild game 
birds, the people of the United States would be 
deemed the owner of such game, and by rea¬ 
son of that fact the United States as the repre¬ 
sentative of all of its people would have the 
power to regulate the taking of such game. 
Senator Overman: Under what clause of the 
Constitution? 
Mr. Haskell: The Constitution provides that 
Congress shall have power to make all needful 
rules and regulations respecting the territory 
or other property belonging to the United 
States. I contend that title to the migratory 
game birds is in the people of the United States, 
that the United States has title as a trustee for 
its people to such game, and therefore has a 
special right of property in it to the extent that 
it may protect it. 
Senator Overman: I would think that the 
State would have the right to make such a law 
as to its own territory, but the question is, “Is 
that the property of the United States?” That 
is what I want to get at. 
Mr. Haskell: In the case of game birds which 
remain within the boundary of a State during 
all seasons of the year, the State has control 
over them, but in the case of the migratory 
game birds which pass rapidly through the 
various States, the power or control over them, 
I contend, is in the United States. 
Senator Overman: What about the laws of 
North Carolina? We have game laws there. 
What right have we to interfere with United 
States property, then, in birds, if your theory 
is correct? 
Mr. Haskell: There is such a thing as con¬ 
current jurisdiction. There are instances where 
Congress has not seen fit to pass laws regu¬ 
lating pilotage, and the States have passed such 
laws. The power of the States to do so has 
been upheld, because the courts say that where 
Congress has failed to exercise its power the 
States may make laws regulating matters over 
which Congress has jurisdiction. It seems to 
me that is our case here. If Congress fails to 
protect the migratory birds and the States 
choose to do so, they have a right to exercise 
that power; but that does not exclude the 
Federal Government from protecting them. 
There is a proviso in the Weeks bill: 
That nothing herein contained shall be deemed to 
affect or interfere with the local laws of the States and 
Territories for the protection of game localized within 
their borders, nor to prevent the States and Territories 
from enacting laws and regulations to promote and 
render efficient the regulations of the Department of 
Agriculture provided under this statute. 
Before the board of arbitration in the Bering 
Sea fur seal controversy the United States con¬ 
tended that the fur seals were its property be¬ 
cause they spent their time chiefly within the 
territory of the United States, going out of 
our jurisdiction only to obtain food. The arbi¬ 
trators decided, however, that the United States 
had no right of property in these seals when 
they were found outside of our territorial 
waters. In other words, that the United States 
did not have an exclusive property right in the 
seals. Applying this principle to the matter 
under consideration, the people of the various 
States over which the birds pass have no ex¬ 
clusive property right in the migratory game 
birds. 
Mr. Haskell: Such a law as this would be 
passed in the exercise of police power. It has 
been decided that the United States has inci¬ 
dental police power. It has power over its 
property analogous to the police power of the 
several States and the right to make rules and 
regulations with reference thereto. 
The Government of the United States has 
the power to legislate for the protection of its 
property even where that property is situated 
within the limits of a State, and though such 
legislation may involve the exercise of police 
power. This was decided in Camfield vs. United 
States (167 U. S., 518). 
Senator Lodge: Right there, is it not true, 
as a matter of fact, that the States which have 
good game laws—and there are many of them, 
of course—are very desirous that there should 
be some National law, because their own laws 
are insufficient? Of course, they can not con¬ 
trol migratory birds beyond their borders. 
Mr. Haskell: That is the difficulty; that is 
just it exactly. 
Senator Lodge: I know that is the desire 
in my own State. 
Mr. Haskell: And in connection with that, I 
would like to read this telegram which we re¬ 
ceived a few days ago from the Game, Fish and 
Oyster Commissioner of Texas, where there is 
no law, I understand, to regulate hunting wild¬ 
fowl. 
American Game Protective and Propagation Association. 
Ill Broadway, New York city: 
Impossible to be present at hearings on protective bills 
before Congressional committees. Migratory birds be¬ 
long to no State, and no State has right to slaughter 
them at cost of other States. It is purely Federal ques¬ 
tion, and Congress, under most strict construction of 
the Constitution by Democrats like myself cannot avoid 
conclusion that interstate birds are as interstate com¬ 
merce. An open season for wild ducks all the year in 
Texas and a closed season for them in States lying 
north is an absurdity. W’e kill them as they leave and 
kill them as they come from Mexico on their way to 
their nests. 
W. G. Sterett, 
Game, Fish and Oyster Commissioner of Texas. 
Senator Overman: He seems to put it under 
the interstate-commerce clause of the Constitu¬ 
tion. 
Senator Lodge: He makes a parallel with 
that, and I think that is a proper one. 
Mr. Haskell: I call the attention of the com¬ 
mittee to the fact that this question of the 
power of Congress to control the taking of mi¬ 
gratory game birds has never been adjudicated 
by the courts. I have made a careful search and 
find no decisions which hold that Congress does 
not have the power to pass these bills. The 
subject of migratory game birds has never, so 
far as I can ascertain, been considered. If there 
were precedents which held that the proposed 
legislation was unconstitutional it would be ab¬ 
surd for me to be here urging that this com¬ 
mittee act favorably on this measure. But 
there are none. 
The Chairman: On page 2 of the Weeks bill 
there is a proviso which you have referred to, 
“That nothing herein contained shall be deemed 
to aflect or interfere with the local laws of the 
States and Territories for the protection of 
the game localized within their borders.” What 
do you consider is meant by the word “local¬ 
ized”? 
Mr. Haskell: I think that means the game 
which does not leave the State, which resides 
within the State during the entire year. There 
are certain classes of game- 
Senator Poindexter: Such as quail, par¬ 
tridges, rabbits- 
The Chairman: That are not migratory- 
Mr. Haskell: Yes. 
The Chairman: That ought to be a little 
clearer, perhaps. 
Mr. Haskell: Perhaps it ought to be. 
The Chairman: I think Mr. Shiras eight or 
ten years ago prepared a rather elaborate 
presentation of this question. 
Mr. Haskell: Yes, sir. 
The Chairman: And he put it, as I remem¬ 
ber it, on the ground that it was an exercise 
of one of the police powers of the Congress. 
Mr. Haskell: Yes; incidental police powder, I 
think. I have his brief here, and I would like 
to make it a part of the record. 
Senator Overman: You admit that we have 
no police power except incidental? 
Mr. Haskell: Yes. _■ 
The Chairman: It is a difference in point of 
view. 
Mr. Haskell: But I wish to be clearly under¬ 
stood. I deem this the property of the people; 
that the Government has the title as trustee for 
the people, and it has the right, therefore, under 
its incidental police power, to protect this prop¬ 
erty. That is my argument. 
Senator Overman: That it is the property of 
the Government? 
Mr. Haskell: Whether it is or not—is not 
that a question of fact and not of law? 
Senator Overman: Yes. 
Mr. Haskell: It seems so to me. 
Senator Overman: I have never looked into 
the question of property in wildfowl. 
Mr. Haskell: I have read that in the early 
forties Congress passed an act that the pro¬ 
ceeds of the sales of public lands should be dis¬ 
tributed among the several States, and many 
people thought that the act was unconstitu¬ 
tional. They thought that Congress had no 
right after the Government had sold its public 
lands, to provide that the money should be dis¬ 
tributed among the different States. But it was 
done. There is scarcely any proposed legisla¬ 
tion of any importance which is not objected 
to by some one on the ground that it is uncon¬ 
stitutional, and such an objection frightens 
many people. I do not think that in this par¬ 
ticular case there is any cause for alarm. I 
would like to quote from the decision of the 
Debs case. The Federal Government took con¬ 
trol in the Pullman strike in 1894 and _ sup¬ 
pressed the disorder in the State of Illinois. 
Senator Overman: What was the reason of 
that? They put it on the ground that it was 
interfering with the United States mails. 
Mr. Haskell: They put it on the ground that 
it was interfering with the United States mails 
and with commerce between the States. 
The court said in its decision: “We hold 
that the Government of the United States 
{Continued on page 514.) 
