70 



k C 



FOREST AND STREAM. 



[Feetjabv 34, 1881. 



that the government, under its police powers, may make 

 regulations for tin- preservation of game and fish, restricting 

 their taking and molestation to certain seasons of the year, 

 although laws to this effect, it is believed, have been in force 

 in many of the older States since the organization of the Fed- 

 eral Government. On the contrary, the constitutional right 

 to enact such laws has been expressly affirmed in regard to 

 fish by Massaehusettss, in Buriiliam vs. Webster, 5 Mass. 266, 

 Nickerson vs. Brackett, 10 Id. 312, and by Indiana in Gen- 

 tile vs. The State, 29 Ind. 409 ; and in regard tn game by 

 New York, in Phelps vs. Racey, mpra; and by Vermont in 

 State vs. Norton, 4n Vermont, 308 ; and upon principle the 

 right is clear. 



The ownership being in the people of the State— the re- 

 pository of the sovereign authority— and no individual hav- 

 ing any property rights to be affected it necessarily results 

 that llie Legislature, as the representative of the people of 

 the State, may withhold or grant to individuals the rictht to 

 hunt aud kill game, or qualify and restrict it, as in the opinion 

 of its members will best subserve the public welfare. 

 Stated in other language, to hunt aud kill game is a boon or 

 privilege granted, either expressly or impliedly by the sover- 

 eign authority — not a right inhering in each individual ; and 

 consequently nothing is taken away from the individual when 

 he is denied the privilege, at stated seasons, of hunting aud 

 killing game. It is. perhaps, accurate to say that the owner- 

 ship of The sovereign authority is in trust for all the people of 

 the State, and hence, by implication, it is the duty of the 

 Legislature to enact such laws as will best preserve the sub- 

 ject of the trust, and secure its beneficial use in the future to 

 the people of the State. But in any view, the question of in 

 dividual enjoyment is one of public policy and not of private 

 right. 



Our attention has been called to no law of Congress, and 

 we are aware of none, in regard to the transportation of 

 game ; still, if this law may be regarded as a restriction upon 

 inter-State commerce, that is of no importance, for it was 

 held in Weltou vs. The Slate of Missouri, 91 U. S. (1st Otto) 

 275, that the non-exercise by Congress of its power to regu- 

 late commerce among the several States is equivalent to a 

 declaration by that, body that such commerce shall be free 

 from any restriction. The inquiry then arises, Is the pro- 

 hibition of the possession and sale of game as enacted in this 

 State a restriction of inter-Stale comme<ce? 



In Gibbons vs. Ogden, 9 Wheaton, at page 203, Chief- 

 Justice Marshall classifies as belonging to and forming a por- 

 tion of that "immense mass of legislation, which embraces 

 everything within the territory of a Slate, not surrendered to 

 a general government; all which can be most advantageously 

 exercised by the States themselves," "inspection laws, 

 quarantine laws, health laws of every des ription, as well as 

 laws for regulating the internal commerce of a State, and 

 those which respect turnpike roads, ferries," etc. And he 

 adds : "No direct general power over these objects is granted 

 to Congress, and consequently they remain subject to State 

 legislation." So in The Daniel Ball, 10 Wallace 564, the 

 Court said: "There is undoubtedly an internal commerce 

 which is subject to the control of the States. The power 

 delegated to Congress is limited to commerce ' among the 

 several States,' with foreign nations, ana with the Indian 

 tribes. This limitation necessarily excludes from Federal 

 control all commerce not thus designated, and of course 

 that commerce which is carried on entirely within the 

 limit* of a Stale, and does not extend to or affect other 

 States." And upon this principle, in the United Slates vs. 

 Dewitt, 9 Wallace 41, it was held that a statute of the United 

 States, making it a penal offence to mix naphtha aud illumi- 

 nating oils, was beyond the legislative authority vested in 

 Congress, and it was said : " But this express grant or power 

 to regulate commerce among the States has always been 

 understood as limited by its terms : and as a virtual denial of 

 any power to interfere with the internal trade and business 

 of the separate States." 



Iu the celebrated license cases, 5 Howard 504, laws pro- 

 hibiting sales of liquors except in large, quantities and under 

 stringent regulations were sustained as within the police pow- 

 er, notwithstanding they interfered indirectly with inter- 

 State commerce. Ch. J. Taney said: "These State laws 

 act altogether upon the retail or domestic traffic, within their 

 respective borders. They act upon the article after it has 

 passed the line of foreign commerce, and become a part of 

 the general mass of property in the State. These laws 

 may, indeed, discourage imports and diminish the price 

 which ardent spirits would otherwise bring. But although a 

 State is bound to receive and permit the sale by the import- 

 ers of any article of merchandise which Congress authorizes 

 to be imported, it is not bound to furnish a market for it, 

 nor to abstain from the passage of any law which it may 

 deem necessary or advisable to guard the health or morals of 

 its citizens, although such a law may discourage importa- 

 tions or diminish the profits of the importers, or lessen the 

 revenue of the General Government." 



So, upon like principle, it has since been held that as a 

 measure of police regulation, looking to the preservation of 

 public morals, a State law entirely prohibiting the manufac- 

 ture and sale of intoxicating liquors is not repugnant to any 

 clause of the Constitution of the United States. Bootmeyer 

 vs. Iowa, 18 Wall, 129. Beer Co. vs. Massachusetts (97 U. 

 S ) 7 Otto 25. 



Very clearly this law relates only to the internal commerce 

 of the State in the article of game. As in the license cases, 

 it acts altogether upon the retail or domestic traffic within 

 the Slate, iuid as there said so it maybe said here: " The 

 State is not bound to furnish a market" for game; and by 

 parity Of reasoning is not bound to furnish game for a tnar- 

 et. 



And it would seem to be a legal truism, if a State may con- 

 stitutionally prohibit the killing and possession of game dur- 

 ing certain seasons, the prohibition of the transportation of 

 gatut killed and possessed in violation of such prohibition 

 cannot he unconstitutional. There cannot be a constitutional 

 right to transport property which cannot legally bo brought 

 into existence. 



The principle finds sanction in Munn vs. Illinois, 94 LI. S. 

 (4 Otto) 113. Slaughter-house cases, 16 Wallace 36. Fer- 

 tiliz ng Co. vs. Hyde Park. 97 U. S. (7 Otto) 650. 



The Mrds. ■which are here admitted to have been brought 

 from Kansas, as appears by the laws admitted in evidence by 

 the agreement of the parties, we>e there killed and possessed 

 in violation of a law of that State, and heuce never legiti- 

 mately became an article of commerce. 



Theie is no question here of discrimination in favor of the 

 game of this State as against 'hat of another State, so as to 

 apply the doctrine of Welton vs The Slate of Missouri, 

 si/pra, and kindred cases. Nor is there in R. R. Co. vs. Hu- 

 Een, 95 U. S. (5 Otto) 465, and other like esses, any question 

 of the right to transport commerce from one State to another. 



For the 7th section of the statute expressly provides that : 

 " The provisions of this act shall not be construed as appli- 

 cable to any express company or common carrier into whose 

 possession any of the animals, wild fowls or birds herein 

 mentioned shall come in the regular course of their business 

 for transportation while they are in transit through this 

 State from any place without this State, where the. killing of 

 said animals, wild fowls or birds shall be lawful." 



Arid herein our statute is directly the opposite of the 6th 

 section of the Kansas act, which was held unconstitutional ir 

 The State vs. Saunders, 19 Kausas 127. There the prairie 

 chickens were lawfully killed and lawfully became an article 

 of commerce, aud their transportation was prohibited. Here 

 the quail were unlawfully taken and killed, and their pos- 

 session aud sale in this State were unlawful. But bad they 

 been lawfully taken and killed their transpor'ation to a place 

 where they might be lawfully sold could not be interfered 

 with by the statulc. 



The questions we have been considering were all raised in 

 Phelps vs. Racev, supra. The opinion iu that case, by the 

 late Chief Justice of the Court of Appeals, is well considered 

 and reaches the same conclusion at which we have arrived. 



The judgment is affirmed. 



Experience with a Swab— Rockingham, N. C. — While in 

 Arkausas a few weeks since aniucident was related to me by a 

 friend and confirmed by two other gentlemen who were pres- 

 ent, which, as I have never heard of the " like before," may 

 be something new to perhaps many of your readers. My 

 friend, while, in Colorado hist summer on a hunting excur- 

 sion, was attempting one day to Wipe out bis Sharps rifle 

 wth an ordinary buckskin swab. The swab became detached 

 from the rod and remained iu the barrel about five inches 

 from the i rid of the chamber. Ineffectual attempts were 

 made to drive it out with an iron rod, alternating first from 

 the breech and then from the muzzle. Not succeeding in 

 this, about 20 grs. of powder, Engle ducking No. 4, was put 

 in a shell, the Shell inserted, and with string tied to the trig- 

 ger and gun placed at a short distance, the string was pulled 

 and gun fired. Aliltlonoise was heard; the gun was taken 

 up and unbreeched, a little smoke was seen to come out of 

 th'- muzzle, but the swab was not moved. Thinking it proba- 

 bly best to fill up the space between the end of the chamber 

 and the swab, in order to succeed in driving it out, they did 

 so with paper driven in tightly. Twenty grains of powder 

 were put in shell and gun again placed off and string pulled. 

 This time no noise was heard. The gun was unbreeched and 

 with a considerable report the shell passed out at the breech to 

 the distance of 100 yards. Not at alt daunted they determined 

 to blow it open at all hazards, so they filled the shell with 

 about seventy grains of powder aud placed the gun a little 

 farther off, again pulling the string. As before, no noise was 

 heard, but in very cautiously unbreeching the gun a very 

 loud report was heard, and the shell was sent kiting to a very 

 great distance The swab still remained in its former posi- 

 tion. The batrel was then put in a stove, where it remained 

 several hours, was taken out, being red-hot, and the swab 

 having been burned to a crisp, it was removed. Tkceell. 



Pinnated GfiODBE Propagation — Philadelphia. — You will 

 be pleased to make known to your readers interested in the 

 stocking of our Eastern grounds win the pinnated rrrouse 

 that our mutual friend, Mr. John S. Davis, of Philadelphia, 

 •' put one up " late this fall, live miles from Hanimonton, N. 

 J,, while quail stO Hing. I had the pleasure of questioning 

 Air. Davis regarding what he hud gatherer! relative to other 

 birds of the kind while on 'his trip, and learned thai, one or 

 two had been seen and 1 think one killed in the same neigh- 

 borhood by a native. This is the section of the country 

 where the West Jersey Game Society liberated their grouse 

 several years ago, the region being covered with scrubby oaks 

 and dwarf pine trees. This report coming from so reliable 

 and well-known a gentleman as Mr. J. A. Davis, who with 

 the writer has killed many "a chicken," and knows the bird 

 as well as he does the quail, should cause it to lie recorded 

 that the experiment of the West Jersey Game Society has 

 proved a success. 



Capt. A. H. Clay, who was present, when your correspond 

 ent and Mr. Davis were conversing, stated, relative to the 

 "Purnell grouse "iu Maryland, that whib- duck-shooting on 

 the Sinnepuxent Soimd he killed a prairie chicken on his 

 way from Taylor's Creek to the town, not knowing what it 

 was when it jumped. This was three or four years after the 

 birds were planted; furthermore, lie stated thnt he saw u 

 brood rise some distance from him and make a flight of near- 

 ly half a mile as far as he could judge, and that the oystcr- 

 n en had killed not a few at different times and did not ob- 

 serve the mutual agreement of the inhabitants of that section 

 not to molest them. Homo. 



Trapping Hawks— Mt. Sterling, Ky.— Editor Forest and 

 Stream: I am glad the hawk questiou is so! thoroughly 

 handled by you, as I have long observed the terrible decima- 

 tion of partridges where they are. Our club (Sterling Shoot- 

 ing and Fishing Club) and" others made up a sum of money 

 to reward the killing of them, paying twenty-five cents per 

 head, and it is astonishing how many the country boys find. 

 One of my sportsman friends in one week killed five large 

 hawks, another has trapped eleven this winter. We take an 

 old weather-beaten pole about twenty feet long, six inches 

 diameter; saw one end square, mud it to make it lookold, set 

 a small steel trap on top with three or four fence rails driven 

 so the heads will hold the trap secure, then we hoist it in a 

 convenient place for the birds to alight upon in their accus- 

 tomed liaunts, and have not long to wait for a catch. I have 

 caught Lwo in the town suburbs" this winter. The partridge 

 have not suffered in this locality as much as was feared, ow- 

 ing in a great measure to the large amount of corn left in 

 fields ungathered, as winter came in much earlier than usual 

 It has been very severe; one, farmer informed me three coveys 

 in all about seventy came to his stock feeding grounds daily 

 to get their rations, and became so tame that he could shell 

 corn and throw to them without their flying away. 



Amtwbkp. 



New Bkcnswiok. — This winter has been a peculiarly good 

 one in New Brunswick and Nova Scotia for hunting, and for 

 a number of years there have not been as many hunting and 

 trapping parties through the Provinces as there were this 

 year. Moose have been quite plentiful ; caribou verynumer- 

 oii8. and numbers of animals that are scarcely ever seen so far 

 South as Nova Scotia have fallen before the huntsman's gun 

 this season. Mr, John Conned, of Barlibogue, In two days 

 last week killed eleven caribou, which weighed from 18 to 40 

 lbs. each. The meat was sold in Mirimachi markets at eight 

 cents per lb. A good many moose have been got, and the 

 game protectors have had to put forth strenuous efforts to 



prevent moose-snaring- There seems to be an unusual abun- 

 dance of black fcvxc-s about the n >rth of the Province, and 

 several have been captured about Newcastle, and a number in 

 different parts of Nova Scotia, Eight skins were sold to a 

 Halifax furrier the other day at SI. 25 each. A good many 

 sportsmen have gone out from St. John, and if they didn't all 

 first get black 1oxes and moose they all came back with unu- 

 sual large supplies of the smaller and more common game. 

 In, JST.S. 



Roiun Roost.— A Glasgow, Kentucky, paper, has this re- 

 port of a robin roost in tii at vicinity, which is very like the 

 one reported in this journal last week : "A cellar thicket of 

 about sixty acres furnishes the birds a lodging place. About 

 sundown every evening constant streams from every direc- 

 tion' pour into" the grove and almost obscure the heavens in 

 their flight. Night finds almost every hush iu the thicket 

 bending with its red-brea-ted load. For the past few weeks 

 lovers of sport for miles around have visited the place and 

 every night the thicket is illuminated with the torches of 

 men with clubs and sacks gathering the feathery harvest. 

 Mr. Smith has killed over "two thousand, aud hundreds 

 are carried away every night, but they don't seem to 

 decrease. There are millions of them. Large, quantities 

 of them have been sold in town. They are very fat and 

 make, when' well conked, a dish good enough for anybody." 



No Moee Live Quail— Shelby ville, Tenn., Feb. 13.— I 



have been informed by some forty or fifty persons all over 

 the United States Cor rather Northern and Western States), 

 and parts of Canada, that a notice appeared in Fobest asi> 

 Stiucam on Feb. 6 that I could furnish live quail to parties 

 wauling them. I am fully convinced of the wide circulation 

 of your paper. lam doing all I cau to till orders received, 

 but owin^' to the season being so far advanced, will not be 

 able to supply one-twentieth part of birds wanted. If I had 

 heard from them earlier with a little effort could have fur- 

 nished all parties, as 1 have, without any exception, handled 

 some 5,000 birds. H, C. Rtat.i., 



lave quail can be procured of Mr. W. W. Titus, Monticel- 

 lo, Florida, at a cost of ten cents per bird. 



The Provtdknce Beast Club organized February 4 and 

 elected A. B. Gardiner, Esq., President aud J. H. Palmer 

 Treasurer and Secret ry. The club al present consists of the 

 fallowing gentlemen i <;. II- Perkins, A. B. Gardiner, II R. 

 Barker, J. E. Allen, J. H, Palme, R. H. Purrington, F. J. 

 Kabbetb, Peleg Lippitt, Francis Colweli, L. Vaughn, Jesse 

 Howard, John Howe and D. H Smith. The clubhouse, 

 which is on a small island uear Chat ham, Mass., has just been 

 put iu complete order and newly-furnished and the season 

 will soon open. A. D. Coy. 



Onio— West Liberty, O., Jan. 15.— We have plenty of 

 quail and rabbits, some few snipe and pheasants and an oc- 

 casional woodcock. Squirrels by the thousands abound iu 

 the forests during the summer season Geese and ducks fly 

 iu great numbers' in the spring and fall, feeding in the large 

 stalk tie ds. The winter here has been very" hard on the 

 game. In Ross County, O., the winter has been very severe 

 also for game While walking over some of the high hills I 

 found a great number of dead quail. H. 



Emswoeth Association— Emsworth, Pa.— At the second 

 annual election of officers for the Emsworth Sportsman Asso- 

 ciation held last night the following persons were elected: 

 President. W. 0. Bcrringer; Vice-President, W. D. Court- 

 ney ; Secretary and Treasurer, Jno. S. Robb, Jr. ; Executive 

 f v'mmittee, D. D. Arthurs, W. M. Newbold, Chas. Craw- 

 ford. 



Montreal Gun Glob— Montreal', Feb. 17.— At the annual 

 meeting of the " Montreal Gun Club," held on the 11th hist., 

 the foliowina- ollicers were elected foi the year 1SS1 : Presi- 

 dent, Colonel Frank Bond ; 1st Vice-President, F. X. Orch- 

 ambault: 2d Vice-President, Alt'. T. Rudolf; Secretary and 

 Treasurer, E. Blackwood; Committee- (.'has. S. Ritchie, 

 P. E. Nonnandeau, It- A. Allan. Seo. 



Glasses pop. SnoorrxG.— If "Anon" will select a lens to 

 suit him and have it put in a Lyman peep sight with an extra 

 large peep hole, and have it attached to his gun, he will 

 always find it in the proper position to see. 



S. J. S. 



Scrinofikld, Mahb., Sportsmen propose to bring from the 

 West several varieties of live game birds, such as pinnated 

 and sharp^tuiled grouse, mountain anil valley quail, and to 

 free them, with a view of establishing one or more new vari- 

 eties of birds there. 



Rhode Island— Newport, Feb. 15.— Themild weather last 

 week brought the ducks within gun shot, and one hundred 



egCard ami He: 



■iRii 



Ki 



famous shooting grounds of the Wet 



Illinois— Aurora, Feb. 8.— "Oar i 

 get along all right Rabbits are vei 

 any quail ; am afraid the weather ha 



Texas — Huntsvihc, Jan. 24. — Duck-- and geese have been 

 very scarce in this part of the State this winter ; partridges 

 are plentiful. R 



I East Greenwich. 

 lines have as good 

 ed liv some of the 

 D. 



chickens seem to 

 idant. I don't see 

 oo cold for the] 



Kansas Sheep Farmers are calling for a stringent dog 

 law to leetrain the raiding of dogs on their flocks at night. 

 i i, i claimed that the sheep-raising industry is undeveloped 

 because land-owners are deterred from engaging in it by fear 

 of losing their stock in this way. Dogs which destr y sheep 

 should be killed. That a community shoidtl suffer such an 

 abomination at the expense of a profitable industry is outra- 

 geous. There arc many counties in the different States 

 whose hills should be covered by feeding flocks and would be 

 were the regions not: infested by hordes of cm- dogs. The first 

 step to develop the agricultural resources or many of these 

 sections must be to kill off the dogs. 



Garfield is said to have been a good deal of a sportsman 

 in his younger days. When a student al. niram College he 

 used to spend his" Saturdays hunting, discussing politics in 

 the evening and preaching the next, day In the field he was 

 generally successful and usually laid out the rest of the party 

 in his tramps after game. 



Tliat indigestion or atoraacn gas at night preventing rest and sleep 

 will disappear by using Hop Bitters, 



