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Bird - Lore 



think it wise to confer on the state of New 

 York, as well as on other states, a power 

 (which is practically that of prohibition 

 during the close season, at least for the 

 purpose of sale) over the importation of par- 

 tridges from New Jersey, Pennsylvania or 

 Connecticut, is equally applicable to the 

 importation of such birds from Canada. 

 The obstacle to the successful enforcement 

 of the game-law of the state would be as 

 great in the one case as in the other; and, as 

 Canada borders on the United States for a 

 distance of three thousand miles, the prac- 

 tical danger would be as great in the one 

 case as in the other, whatever it might be 

 in the case of an importation from Europe. 

 But it is said that Congress permits the im- 

 portation of foreign game and collects duty 

 thereon, and it cannot have intended to al- 

 low property thus imported to be confiscated. 

 The proposition that Congress allows the 

 importation of foreign game is true only in 

 a restricted sense. By the ' Lacey Act' 

 Congress determined to aid the states in the 

 enforcement of their game-laws, but did not 

 deem it wise to enact a game-law of its 

 own, and this for the very obvious reason 

 that the game-laws of the different states 

 vary greatly, a variation justified in no small 

 degree by varying climatic conditions. It 

 would be unwise to prohibit entirely the 

 importation of game into the country dur- 

 ing a part of the year, when in some of the 

 states the taking and consumption of such 

 game is lawful. So it is said practically 

 to the citizen : We do not prohibit the im- 

 portation of foreign game, but subject it to 

 the local laws, and you must see to it, at 

 your risk, that you do not violate those 

 laws. The term ' transported ' is used in 

 the Wilson Act of Congress relative to in- 

 toxicating liquors (enacted August 8, 1890) 

 as in the present act. Vet, it seems incredi- 

 ble that Congress intended to suffer the 

 state of Maine to seize liquor in original 

 packages when brought from Massachusetts 

 but not when brought from Canada or 

 Europe. The words of the section before 

 us are sufficiently comprehensive to include 

 all game brought into the state from what- 

 ever place, and we do not think it profita- 

 ble to enter into a verbal analysis, save in 



one respect. It is urged that the conclud- 

 ing sentence of the section, ' This act shall 

 not prevent the importation, transportation 

 or sale of birds or bird plumage manufac- 

 tured from the feathers of barn-yard fowl ' 

 excludes all birds from its operation. We 

 think not. The qualification ' manufac- 

 tured from feathers of the barn-yard fowl ' 

 applies as well to birds as to bird plumage. 

 Birds mentioned in this sentence are plainly 

 artificial birds, and so the Treasury Depart- 

 ment of the United States has ruled. The 

 case of Silz is somewhat different. Sub- 

 stantially all the questions raised by the affi- 

 davit, save one, are disposed of by the view 

 we have already expressed. The exception 

 is the statement in the affidavit ' that said 

 imported Golden Plover and imported 

 Grouse are different varieties of game-birds 

 from the game-birds known as Plover and 

 Grouse in the state of New York and from 

 any birds native to America." They are 

 different in form, shape, size, color and 

 marking from the game-birds known as-the 

 Plover and Grouse in the state of New York." 

 "Of course, if the birds, the possession of 

 which is charged against the relator, are 

 not Grouse or birds of the Grouse family, 

 then no crime is stated in the affidavit, and 

 the relator should be discharged. But in 

 view of the express allegation at the com- 

 mencement of the affidavit that the defen- 

 dant was possessed of one imported Grouse, 

 we are inclined to the view that the state- 

 ment quoted should be construed as mean- 

 ing not that the bird so possessed was not a 

 Grouse, but that it was a different variety 

 of Grouse from that which is native to the 

 state of New York. So construed this fact 

 constitutes no defense, nor does the allega- 

 tion that they are different in form, shape 

 and color from .native birds. It was for the 

 legislature to determine, in the protection 

 of native game, how far it was necessary or 

 wise to include within the penal provisions 

 of the statutes birds of the same family and 

 of a similar character, though differing in 

 some respects. Of course, this statement is 

 made within limits. To protect Pigeons, 

 Turkeys could not be excluded. In the 

 present case, however, we are clear that the 

 legislature has acted within its power." 



