FOREST AND STREAM. 



185 



CA.ME PROTECTION. 



BY the courtesy of Cbas. E. Whitehead, Esq,,, counsel 

 for the New York Society for the Protection of 

 Game, we huve fieen favored with the subjoined important 

 opinion, General Term Marine Court, which will doubt- 

 less be read with interest by our subscribers all over Hit 

 country.— 



MARINE COUItT-GENKKAL TEEM. 



iioyal rimers, 11aUill.f and f^.-pondcut, 



(lyttiiist 



is and tic v is : ad s la, ■''/■ 



section 2t or the Act passed April ?»th, isti, for the preservation or 

 game, provi.l.'r. iln.i mi person Shall kill or expose, for sulci, or have iu Ins 

 or ln.-r possession after the. same has be™ killed, any miliuiiii trout or 

 lake trout In tiio months of October, Novernbtr.Ttoetit'ber, Jununry uud 

 February, under a penalty of ten dollars for iiicUfiSh. 



Tbe conrplnrnt blwisgesthe detendante with a violation of tin' provi- 

 sionsof rids section, In bavins had in I ln-ir nussession one hundred lake 

 irotit, on the 17th February, 1572, whereby Ihcy became liable in the sg- 

 .,,._. ii, .,. ria.ll.ies in the sura of,$l,0DQ. 



The fourth sub-division of the answer sets up that Hie said twenty - 

 rlrst section is in violationof the Constitution of the I'liiied M-ih - ; ml 

 the State of New York, and therefore void; the fifth attb-diVlslbll tlral 

 tile whole of said Act Ibr the preservation of game is munii orived by 

 and ia conflict With, the laws of the United States and tbe con.-th itlon of 



tliis State, and therefore void; the sixth suit -,i rfsta ■ Ml fM is 



propertv within the . meaniug of Hie laws of the tube'. States I oflhi 



Slate of "New York, and when caught or killed in or out of Season 

 cording to any frame laws in any State or Territory of the Coded Stales, 

 era foieign country, can be brooghl into this smre from any other State 

 or Territory, or foreign country, aud sold as an article ol nicrcluinilimi 

 witliont violating any law which Hie Slate "f Now Yolk has a riglu to 

 make. The plaintiff demurred to each of these defenses, anil the cdihi 



Tnfsfirsl inestton presented upon (lies pleadings is this: Hasltte 

 I , .. ; ;.]...,-, i, . ,',[ 1 >,:--, i ,i.. ,ii.; pj.vei in protect wild game, within lie tci ii- 



Tbe deer, fowl and tish embraced within the prohibitions of tbe Act 

 cferreil to. all come within the category of animals .;', m ;-r . a . In,, 

 rl\ in iliein beiMils and ends with possession. When abandoned, or 

 vlien tbev escape and return to their natural liberl). the properly in 



n i L.-rn 



, they 



a? either actually or co 

 A statute prohibiting t 



f trued as interfering \ 

 Muckstonc com. 413) i 

 injustice in them; for 



lekili: 

 ■ith an 

 ays o 



Ivelj in 



ig' or tal 

 - rights 



these 



property, or what Has 

 menus of acipiiring a f 

 the laws of nature w. 



n Id a 



io''"'hii 



sons allowed or forbidden to exercise it." 



The restrictions mid prohibitions referred to are said to be imposed 

 hv municipal laws for the purpose, among other reasons, of pretsexV- 

 im , lhl , .pv,.,,,! sprees of these animals, which would soon hn extirpated 



liijh Reports Show BoW tttrW*errnnteoU.J the comas have upheld and sue- 

 taiued such euuetmeuts. 



And in (his Slate. almo,-i from the very organization id the State Gov- 

 ernment, fame laws of tin' ea-neral clturuei er of that now (jm'-.iionetI have 



In the 

 .lily of C 



mactcd a prohibition, under penalties, 

 wafers of this State, between the -JOtll 

 l-\ ibrnarj thereafter. This Act was 



itotee, rati is now in force. HR.S., 

 nt, ii iv.s made unlawful for anvper- 



York county, in the months ot way, .J 

 In 1815 the fish known as 5 y i wrero | 

 theHudson Kiver for a period a live • 

 larsfor each offense. In 1851 ll W&E i" 

 theHudson River during the months 



any\vildde"V.i,.\' : ._,| 1; :anlu.ul-^Kd 



Julv, under penalty of Sy-5 for each of 



preservation of moose, wild deei, bird 



which the Act under which this acti 



These are lint few of the runny insui: 



to the statutes of this State— in which 



lerfere with the destruction of fish and 



No case can be found in the reports I 



pow ers of the I 



referred to. has 



series of Btatutas 08 an argue 

 adopt them, It would be sufrici 

 that their enactment te an i 

 Ihe Federal nor State Const 



to possession within [his suite 





imposed any limitatio 



<es the provis 

 ignlati 



of the re 



pow 



the question, Tor the law ope 



on property, or move properly speaking, on things Bought to be made 



property, within our own terntooal limits. Constitution.! o Elections to 



Ihe Federal Constitution, or in our own State Consti! 1. 1 ion 



Article 14, See. 1, of the Constitution of the Tinted Slates, provides 

 1 1, ,, ,-,,-, fjtute shall deprive any person of life, libeny a property, without 

 due process of law, and our State Constitution at Article 1, See. ij, con- 

 tains a clause in almost the same language, ll is said, in argument, that 

 lake trout, under Ihe Act iu cjuestion are property, and utiiy he possessed, 

 ,,,, i_|i, ,, ,1 sold, assuch, in all other months of the year, except. October, 

 November, December, January, and February, land this proposition can. 

 not be controverted;) that in the mouths above enumerated, lite sellingand 

 nossESaon of them, (though they may be the identical fish held over from 

 other months, when it is lawful to keep aud sell,) is declared unlawful 

 under penalty; therefore, this section of the Act conflicts with the above 

 clauses of belli Constitutions, inasmuch, as the effect, of the enactment 



,,,.., , , - hi- r i, mi, :a v without, duo processor law; that process 



of law, as these terms are used iu the Constitution, menus, not the cuuet- 

 lm ,u it self, but a judgment of u conrt of competent jurisdiction pro 

 ccedin" according to the rules of the common law; f2 Kent Com. 1-3 



;-',, ry mi i.',,,----,;r'ii,,i, -, i , ■:■ unt this Act prevents Ave selling, 

 makes if unla-.i ,, to ei i p thi ii- b; in oilier wards, that of its own force 

 it ships the ti-h '."ii- Inl'l nv.-r of the attributes of property, anil that, 

 thurSoy, oni tadeprh del h properl lavMnlly acquired. (Wynchi r 



ill- [ , m|>1>, Sc.. 3 Rcinan, .Mb) These ]iroposiHous. when properly 

 applied, are donbtles.- On- law, Inn, they do not cover the fads of this 



\V , ii.-e i seen I 1 1 aceorfltt j tn rnndamt null principles there can be no 



propei iy in animals, c J,,, , ,,,,, anHI i,!ti,,,l 10 po-se— ion. Initio 

 i' xcicer of Its sovereignty Ihe State, tuouch iis I.ceislutiv functinn- ba- 

 the right to declare that no pars/ui shall hereafter ncpihv pvopevly in ibis 

 class of animals, hy killing and lAlclllg pos:-cs-ion of litem wuho. ii- 

 borth-rs, or, in other ',',,,: , I d leilS ii.illuol kill, sell ami have 



in possession any of them within its limits. Suoli a law is but a regula- 

 tion of internal commerce, or one of internal police. It is 

 snugly the exercise t>f the powej: to govern men and things 

 within the limit! -I it' "wn dominions, it would afierjt no 

 man's pre.-eni prnparty, Imi wnnjil barely aliridg,' him of one means 

 pf acquiring fit litre property, as lilackstoue exprc-se.s a It would nor. 

 deprive of property- hUl would pieieut the octjMWflfion of it. It is noti 

 therefore, wilbln the con~titiil.ioiiul proldl/itloii. To nbridgo om- of le- 

 riglit to acijnire any -i.icins of ptopot'ty fpt all time, includes the right 

 to limit the abridgment n given number ,,f ynar.-. or months. Tin's law 

 says to Hie cUteens of thisState, rm a ■" wr> you shall not kill, sell or 

 possess lnki trant, wiihiu Hut trial to ,a mi ! ■■ ,; irtuj Ihe 



mtJttthS of 11,'iob,:. NOM'inbfaa Ol Bl lob-:' .b.'.'larv ami | '. n , y, or n 



a',,, '. - lorina iii'a-'' ii',e moinlis or Hn- jr.ir V i ; r. ,; 'ii i".l iia 



tie a,'.|'.n-::i ai ol thisk-indof properly under a p. nan y ol ten Hol- 

 lars r.ir each offence. Far the- reasons al tft staled I atncleariy of opinion 

 il, ,, (ho -il-i nciion of ihe Act in question can b, upheld so far as it 

 affects ii-b csuglil, fcilled and reduced to posEfflsion within this siate. 



\V„„id lb,.! havethi ,:■!.;. under let ■■ I nl un ol the United stales, 

 lo hold and -n',1 as property in this Stale after haying thus acquired Hieui, 



itg rtti?ettS in certain articles to be illegal, one, or any number 0) tlwai 



limy nuliify i Ii,- lav, hygoitur nntsidcbi u ■ limits to possesa thamsalves 



0f» la,' ml calling, 

 nib the case bn different if the fish in question hadbee.niul.ro- 



, o i lb by n citizen of another State; for under see. a or 

 of tuc Constitution of the United Stales, on entering our juris- 

 e would be entitled lo Ihe same privileges and immunities as 

 ullssens— no more, no less. Our mnnieipul legislation operates 

 ab alike upon all persons found within onr borders, with the 



a-, Diyiomotic Representatives of foreign nations. 



1, section s. Of the Constitution of the United States rests 

 with the i'" '."i of regulating commerce with foreign nations 

 ig ihe States, In construing this provision it has been repc.aio.lly 



tomiii.'rce. iniiibon, c.'.'. Oeilrn, n U'lmai. 1: city of Nee York 



- ihislimintation. declare what 

 i of property among its citizeus. The 

 'urnishes a marked illustration on this 

 pertym negroes; othBrarecognized and 



domiciled ami held as property in New 



f. its statutes that, shivery and involun- 



I commerce of the 



ed a regulation ot 



nil destroys when 



h-ss they come in 



BBtn 



ered or 

 ■v of I 



red tbo worl 

 e policy, bus 



ford, 107; Ootomoi 

 Story on Com , Se 



Quariuliue laws iliiaei oo- e-ior, : ,,' ,.. i ,1;, a i of vessels, and require 

 them, with their crews, pas-i ngara autl I Itgoes to be detatued, and tor- 

 Health laws provide not only for the detention bin llnibatt , | 



Ihe cargOOSi if infected. 



itissaid by the Court in IheCity of New V.,rk es, Miln, -[hat till IhesC 

 ,,.,,,,: ,iu tie. - at -. I which relate, to merely mumcipal legislation, 01 



speaking of lbe-e laws in the li'-ei 16645, B»y»> "Such ■- 



e valid noleas they • ome in conflict with a law of Congress " 

 ne.aiiiing the vet in question-, as u police regulation, the poi 

 is under t - ■ . ... eil u oat ol Ihj • elusive powers 



■ - ■ or ono that may be exerdsed, suhiectto 

 ,-■,■■..- 



Hio'n the legnllU ■ 



ieqni 



ir lake 

 -cssion 



Ca-noi oiqiM-siioin-ii. 



The l.eeislaiuie lni'ii_- powor lo pa- It lawfoi I, p,, 

 game, u tin- entire control over .the means to bo -applied to secure thai 

 end; oibe.rwise, there would lie a limitation upon the pot 

 nngatory. The Legislature h.i- seen tii to intenliei t 

 trpnt during the cerl rear, and to deahtrt 



of them ilice-ul. as pneof tho appliance* to he anrplpyisl for prbicetion. 

 To prevent the taking and kilHiuj, andyct lego ndglvi 



the sain lion oflaw to buying and selling, would be an absurdity in itseiT, 



The order stfttaining (he Beveral demiirrere tniml be aiiiimed wiib cosls, 



( II \.-. K. \\ IH'I IhU-AO, 



Counsel for Plaintiff, 

 Tilt; above case, which is of interest, to Sporting men, 

 but more particularly those of piscatorial proclivities, 'mmc 

 on for trirtl last week before judge Tail Bran!, in Hie tsu- 

 preiiic . C'oiirl, Circuit. The pluinlilTin thciiclioii is Royal 

 Phelps, President of Hie New York Spoilsmen 1 . ( 'bib. Two 

 Pulton Milrkct men— Messrs. Ohappell nnd Siorei-— wt in 

 cbnrged in the complaint with exposing- for side in Fulton 

 .Utrket, on July 9, 1878, fur'ty speokled trout, The netion 

 -was brought under the bi-.v pass cd by the Legislature three 

 years ago prohibiting Ihe sale of speckled Itout ill this city 

 between Ihe Lath of March nnd the lot 1 1 of JNoveiubef, uml 

 for ettch lish offered for sale, within Ibis time a penalty of 

 JS5 was attached, making the penally sougbi to be i ■ ■■ ■ 

 ered iu the present cuse, as will be seen by a i cry simple 

 matbeuitiiicnl ealeukitiou, si, OHO. The defence was ih:il, 

 these were not brook or .speckled trout, bul Oailttdiari ii 

 A number of witnesses were called for the itroseculiiin, 



Who gave their parlicular views upon Hie sulijcoi of .n.an 

 iu general. After these experts, bad cwliauslcd I licit pisca.- 

 toritil erudition— and some of them showed an inliiiiaey 

 with the subject reflecting no discredit upon themselves as 

 disciples of izaak Tf7altob--tJie counsel for the defence 

 moved a verdict for the defendants, or, iu otbet- froyds, a 

 dismissal of tlie compliiinl,. Thpugh claiming not to know 

 much about 3sllingJW ipsam, he did ptltim to know some- 

 thing about the law governing the case, lie Insisted fltal 

 it was not shown thai Ihe lish in question were caught in 

 New York waters, lint, having been caught in Canada, 

 were caught outside the jurisdiction of the State, and that 

 if the catching in Canada and exposing hcie lor sale stroh 

 trout came within the prohibitory clause of the Statute, that, 

 theslulule was unconstitutional and void. This motion 

 was denied, and thereupon ensued an examination of the 

 witnesses for the defence. The jury was absent two hours, 

 and then brought in a verdict for the defendants. 



p-lSO.M OtUl Sl'litl U, KMIl.lSU COi:I-.ESia>\oli.NTj 



THE Lincolnshire Field Trials, which proved the. 

 downfall of the celebrated Ranger, have been des- 

 tined to produce another contretemps in the retirement of 

 the editor of the Field from his honorary membership in 

 Ihe Kennel Club. This intention, announced by air. 

 Walsh at the luncheon on the day of the trials, is a tbing 

 to be deplored by the members, I bough perhaps it is a good 

 thing for the paper, for while its president was thus "con- 

 nected with the institution in ipie.-tion, I here was room for 

 every backbiter I o cast doubts on the impartiality cri' tbe 

 reporters, lliough in reality they have never been respecters 

 of persons or interests. Tbe leading article in the FM,/. 

 reflects on the working part of the commillec, and indulges 

 in some paternal lamentations over the intemperate lan- 

 guage used by "doggy' 1 men, their lack of good manners 

 and possession of bad morals, aud their rancor on the duel 

 beyond the seas, as it facetiously calls the nlacdona and 

 Ll'ewcllen controversy; but as FottrisT and Stream has 

 never sanctioned this internecine style 1 will not reproduce 

 the gentle reproofs. The. facts deposed to are that the chief 

 concoclor of the new code of rules, referred to in my las! 

 letter, had the opportunity of trying these thoroughly, and, 

 it is alleged, did so, whilst the other cornputitors were left 

 in the dark, though they made application in the proper 

 cpiarter for the card. 



As to the conclusion of the held trials, the Kennel Club 

 champion pri7,e was divided between Mr. Lloyd Price's 

 little Laverack setter bitch Queenie, andJIr. Wlnteli.Misr's 

 pointer dog Maegregor, Mr. Llewellyn's Kite, a red Irish 

 seller, ran up some birds and lost, though lie bad previously 

 worked well. Tbe result of the meeting went to show 

 area! superiority iu the pointers over the setters, and Ihe 

 defeat of Hanger, as I. maintained last week, was obviously 

 tnore a disgrace to the new system than to him, 



Tbe statement in the almanacs that pheasant shooting 

 began on 1st of this month is undeniably line, but never- 

 theless there will be fewer pheasants shot during Ihe next 

 four weeks than in any other lour weeks in the season. 

 There are, of emir -e, two kinds of pheasant shooting; Ihe 

 first of which is rough work round the hedge COWS and "in 

 lying plantations, and the second the mure ai'liiietal and 

 cosily pattUO. The latter is generally reserved lor the 

 Winter months. It tills up all those unpleasaut gaps in I he 

 programme of hunting men caused by frost, and amoug-.| 

 those country gentlemen who don't care, aboul ihe born 

 and the scarlet it provides the mnseuline portion of the 

 Christmas parlies with, amusement, and of course it can- 



