"While Congress certainly may by law prohibit and punish the entry upon or use of any part of those forest reserves for the purpose of the killing, capture or pursuit of game, this would not be sufficient. There are many persons now on those reserves by authority of law, and people are expressly authorized to go there, and it would be necessary to go further and to prohibit the killing, capture or pursuit of game, even though the entry upon the reserve is not for that purpose. But, the right to forbid intrusion for the purpose of killing, per se, and without reference to any trespass on the property, is another. The first may be forbidden as a trespass and for the protection of the property; but when a person is lawfully there and not a trespasser or intruder, the question is different.
"But I am decidedly of opinion that Congress may forbid and punish the killing of game on these reserves, no matter that the slayer is lawfully there and is not a trespasser. If Congress may prohibit the use of these reserves for any purpose, it may for another; and while Congress permits persons to be there upon and use them for various purposes, it may fix limits to such use and occupation, and prescribe the purpose and objects for which they shall not be used, as for the killing, capture or pursuit of specified kinds of game. Generally, any private owner may forbid, upon his own land, any act that he chooses, although the act may be lawful in itself; and certainly Congress, invested also with legislative power, may do the same thing, just as it may prohibit the sale of intoxicating liquors, though such sale is otherwise lawful.
"After considerable attention to the whole subject, I have no hesitation in expressing my opinion that Congress has ample power to forbid and punish any and all kinds of trespass, upon or injury to, the forest reserves, including the trespass of entering upon or using them for the killing, capture or pursuit of game.
"The exercise of these powers would not conflict with any State authority. Most of the States have laws forbidding the killing, capture or pursuit of different kinds of game during specified portions of the year. This makes such killing, etc., lawful at other times, but only lawful because not made unlawful. And it is lawful only when the State has power to make it lawful, by either implication or direct enactment. But, except in those cases already referred to, such as eminent domain, service of process, etc., no State has power to authorize or make lawful a trespass upon private property. So that, though Congress should prohibit such killing, etc., upon its own lands, at all seasons of the year, this would not conflict with any State authority or control. That the preservation of game is part of the public policy of those States, and for the benefit of their own people, is shown by their own legislation, and they cannot complain if Congress upon its own lands goes even further in that direction than the State, so long as the open season of the State law is not interfered with in any place where such law is paramount.
[Illustration: MOUNTAIN SHEEP AT REST]
"It has always been the policy of the Government to invite and induce the purchase and settlement of its public lands; and as the existence of game thereon and in their localities adds to the desirability of the lands, and is a well-known inducement to their purchase, it may well be considered whether, for this purpose alone, and without reference to the protection of the lands from trespass, Congress may not, on its own lands, prohibit the killing of such game."
In this opinion the Attorney-General further calls attention to the difficulties of enforcing the State law, and suggests that it might be well to give marshals and their deputies, and the superintendents, supervisors, rangers, and other persons charged with the protection of these forest reserves, power on the public lands, in certain cases approaching "hot pursuit," to arrest without warrant. All who are familiar with the conditions in the more sparsely settled States will recognize the importance of some such provision. A matter of equal importance, though as yet not generally recognized, is that of providing funds for the expenses of forest officers making arrests. It is often the fact that no justice of the peace resides within fifty or a hundred miles of the place where the violation of the law occurs. The ranger making the arrest is obliged to transport his prisoner for this distance, and to provide him with transportation, food and lodging during the journey and during the time that he may be obliged to wait before bringing the prisoner arrested before a proper court. This may often amount to more than the penalty, even if the officer making the arrest secures a conviction; but, on the other hand, the individual arrested may not be able to pay his fine, and may have to go to jail. In this case the officer making the arrest is out of pocket just so much. Under such circumstances, it is evident that few officers can afford to take the risk of losing this time and money.
In most States of the Union there exist considerable tracts of land, mountainous, or at least barren and unfit for cultivation. Legislation should be had in each State establishing public parks which might well enough be stocked with game, which should there be absolutely protected. Some efforts in this direction have been made, notably Massachusetts, New York, Pennsylvania and Minnesota. In many of the New England States there are tracts absolutely barren, unoccupied and often bordered by abandoned farms, which could be purchased by the State for a very modest compensation; and it is well worth the while of the Boone and Crockett Club to endeavor by all means in its power to secure the establishment in the various States of parks which might be breeding centers for game, great and small, on the same plan as the proposed refuges hoped for within the forest reservations. Michigan, Wisconsin, Minnesota, and practically all the States to the west of these, possess such areas of unoccupied land, which might wisely be acquired by the State and devoted to such excellent purposes. In Montana there is a long stretch of the Missouri River, with a narrow, shifting bottom, bordered on either side by miles of bad-lands, which would serve as such a State park. Settlers on this stretch of river are few in number, for the bottoms are not wide enough to harbor many homes, and, being constantly cut out by the changes of the river's course, are so unstable as to be of little value as farming lands. On the other hand, the new bottoms constantly formed are soon thickly covered by willow brush, while the extensive bad-lands on either side the stream furnish an admirable refuge for deer, antelope, mountain sheep and bear, with which the country is already stocked, and were in old times a great haunt for elk, which might easily be reintroduced there.
There is a tendency in this country to avoid trouble, and to do those things which can be done most easily. From this it results that efforts are constantly being made to introduce into regions from which game has been exterminated various species of foreign game, which can be had, more or less domesticated, from the preserves of Europe. Thus red deer have been introduced in the Adirondack region, and it has been suggested that chamois might be brought from Europe and turned loose in certain localities in the United States, and there increase and furnish shooting. To many men it seems less trouble to contribute money for such a purpose as this than to buckle down and manufacture public sentiment in behalf of the protection of native game. This is a great mistake. From observations made in certain familiar localities, we know definitely that, provided there is a breeding stock, our native game, with absolute protection, will re-establish itself in an astonishingly short period of time. It would be far better for us to concentrate our efforts to renew the supply of our native game rather than to collect subscriptions to bring to America foreign game, which may or may not do well here, and may or may not furnish sport if it shall do well.
[Illustration: MULE DEER AT FORT YELLOWSTONE]