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granted and as carrying with them authority to pass those acts which may be reasonably necessary to carry them into full execution; in other words, if the Constitution in its grant of powers is to be so construed that Congress shall be able to carry into full effect the powers granted, it is equally imperative that, where prohibition is placed upon the power of Congress, that prohibition or limitation should be enforced in its spirit and to its entirety. It would be a strange rule of construction that language granting powers is to be liberally construed, and that language of restriction is to be narrowly and technically construed."

Fairbank v. United States, 181 U. S. 283, 288.

"The constitution was ordained and established by the people of the United States for themselves, for their own. government and not for the government of the individual states. Each state established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and we think, necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes."

Barron v. Baltimore, 32 U. S. 243, 247.

"That the framers of the Constitution intended that it should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, is not inconsistent with the nature of our government and the relation between the States and the United States."

Holden v. Joy, 17 Wallace, 243, 21 L. Ed. 523.

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"What is unwarranted or forbidden by the Constitution can no more bedone in one way that in another. The authority of the national government is limited, though supreme in the sphere of its operation. As compared with the State governments, the subjects upon which it operates are few in number. Its objects are all national. It is one wholly of delegated powers. The States possess all which they have not surrendered; the government of the Union only such as the Constitution has given to it, expressly or incidentally, and by reasonable intendment. Whenever an act of that government is challenged a grant of power must be shown, or the act is void."

United States v. Rhodes, 1 Abb. U. S. Rep. 43, 44;
Fed. Cases 16151.

"It is also claimed that it is one of those implied attributes of sovereignty in which the national government has concurrent jurisdiction with the states; that it is a dormant right in the national government; and, where the state is clearly incompetent to save itself, the national government has the right to aid. To sustain the latter proposition stress is laid on the fact that it is impossible for any state to enact laws for the protection of migratory wild game, and only the national government can do it with any fair degree of success; consequently the power must be national and vested in the Congress of the United States. A similar argument was presented to the court in Kansas v. Colorado, 206 U. S. 46 89, 27 Sup. Ct. 655, 664 (51 L. Ed. 956), but held untenable.”

370

United States v. Shauver, 214 Fed. 154, 156-157.

"4th. No legislation can be proper which is inconsistent with the letter and spirit of the Constitution; hence the trial and conviction of Milligan to death by court-martial, though claimed to be a means for the preservation of the Union, was held unconstitutional, because such trial and conviction were forbidden by the Constitution; and where, taking the whole Constitution in its distribution of powers between the departments of government, and the relation it establishes between the granted powers to the Federal government and the re

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served powers to the States, the act is not in accord with the whole scheme, but inconsistent with it-it is unconstitutional.

"5th. If Congressional legislation be inconsistent with the reserved rights of the States and their autonomy, it is unconstitutional.

"6th. If legislation be contrary to the trust nature of the power of Congress-that is, to the duty which Congress owes in respect to the subject-matter of the legislation to all the States, or to any of them-it would be contrary to the letter and spirit of the Constitution."

Tucker on the Constitution, Vol. I, pp. 371-373.

The right of local self-government as known to our.system as a constitutional franchise belongs, under the Constitution, to the States and to the people thereof, by whom that Constitution was ordained and to whom, by its terms, all power not conferred by it upon the Government of the United States was expressly reserved."

Murphy v. Ramsey, 114 U. S. 15, 44.

If Congress, without an amendment to the Constitution, can take away from the states their control over wild game by means of a treaty, why cannot it in the same manner take away from the states their control over intoxicating liquors? Why amend the Constitution to have National prohibition instead of making a treaty to that end with Turkey or some other foreign power? Now that there is a prohibition amendment to the Constitution, why not disregard it and by means of a treaty with England-whom rumor says is not overly pleased with our aridity-provide for the sale of intoxicants in each and every state of the Union?

Why resort to the expensive and time-taking method of amendment to the Constitution in any instance if the assent of the people is not necessary in those things which affect so intimately their private lives, but may be taken from them by agreement with some foreign power? In the language of the Chief Justice of the United States:

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"I cannot conceive how it can be held that pledges made to an alien people can be treated as more sacred than is that great pledge given by every department of the government of the United States. to support and defend the Constitution."

Downes v. Bidwell, 182 U. S. 344, 45 L. Ed. 1088.

X.

Among those powers denied to the Federal Government until secured by amendment are those which are "reserved" to the states respectively or to the people. These reserved powers include those purely internal affairs which "concern the lives, liberties and properties of the people and the internal order, improvement and prosperity of the state." Without exception wild game has been held to be a part of this mass which is within the exclusive and absolute power of the state. When the power of the states over their purely internal affairs is destroyed, the system of government devised by the Constitution is destroyed.

Downes v. Bidwell, 182 U. S. 244, 312-313, 369-370;

Pierce v. State, 13 N. H. 536, 576, 578;

Hammer v. Dagenhart, 247 U. S. 251;

South Carolina v. United States, 199 U. S. 447,

451;

Collector v. Day, 11 Wall. 125, 127;

Tucker, Limitations on Treaty-making Power,

92, 93, 129-130;

Geofroy v. Riggs, 133 U. S. 258, 267;

George v. Pierce, 148 N. Y. 230, 237;

Tucker on the Constitution, Vol. II, pp. 726, 727;
Federalist, p. 145;

People v. Gerke, 5 Cal. 381, 382, et seq.

"The treaty power as expressed in the Constitution is in terms unlimited except by those restraints which are found in that instrument against the action of the Government, or of its department, and those arising from the nature of the Government itself and that of the states. It would not be contended

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that it extends so far as to authorize what the Constitution forbids or a change in the character of the government or in that of one of the states, or a cession of any portion of the territory of the latter without its consent."

Geofroy v. Riggs, 133 U. S. 258, 267.

"If the treaty-making power can absolutely, without the consent of Congress, incorporate territory, and if that power may not insert conditions against incorporation, it must follow that the treaty-making power is endowed by the Constitution with the most unlimited right, susceptible of destroying every other provision of the Constitution; that is, it may wreck our institutions The treaty-making power then, under this contention, instead of having the symmetrical functions which belong to it from its very nature, becomes distorted-vested with the right to destroy upon the one hand and deprived of all power to protect the government on the other."

Downes v. Bidwell, 182 U. S. 244, 312, 313.

The above was written by Mr. Justice White, now Mr. Chief Justice. Mr. Chief Justice Fuller did not agree with the conclusion reached in that case, and wrote a dissenting opinion; but in this dissenting opinion he expresses his agreement with Mr. Justice White upon this particular point as follows:

"The grant by Spain could not enlarge the powers of Congress, nor did it purport to secure from the United States a guaranty of civil or political privileges.

"Indeed a treaty which undertook to take away what the Constitution secured or to enlarge the Federal jurisdiction would be simply void.

"It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government.' The Cherokee Tobacco, 11 Wall. 616, 620."

Downes v. Bidwell, 182 U. S. 244, 369-370.