FOREST AND STREAM. 



47 



to be shot and luaikcled whether Missouri tiuys one of them 

 Of not. If we don't choose to eat them the people iil other 

 States will get them all the cheaper, and all the effect of oiil- 

 law which makes the possession of grouse before Oct. 15 

 illegal, will be to keep the birds out of out mouths in ordef 

 to let Eastern people enjoy them. 



"The supply for Missouri has for years past cut no figure 

 in the St. Loiiis market. It may also be said that grouse 

 shot after the middle of October are scarcely worth eating, 

 as they are then dry and hal'd. They are also then very dif- 

 ficult to obtain, as they have packed into large fliglits by that 

 date. The birds are well grown in Southern Kansas and the 

 Indian Territory by July 30, and if they are not to be mar- 

 keted here until they are too tough to be a delicacy, the while 

 they are passing us to the Eastern markets, the questions 

 arise, of what are we here for, and who are the grouse for? 

 In the Territory the Indians don't shoot chickens, and white 

 men have an unwritten law which confines their sport to be- 

 tween July 10 and Oct. 4. After the latter date the birds arc 

 jiardiy considered worth shooting.' " 



New Ekoxand ForkSts.— No one wlio visits the White 

 Mountains in these days can fail to deplore the evidences of 

 spoliation that marlc the advance of civilization to their 

 region and along the most uccessi!)le of their wooded slopes. 

 The cry raised agfdusl tlie deslruction of the Adirondack 

 forests needs to be raided, and cannot be raised too loud or 

 too soon against the destnictiou of the tuuber region which 

 constitutes the White hills. From the crest of any of these 

 mountains you can see only the trackless forest, aud the 

 mountain climber woidd confidently say that the river 

 SDui-ces of New England had not been rudely assailed by the 

 woodman"s axe, but in numerous places, and with increasing 

 vigor, the work of devastation ha.s begun about the sources 

 of'the Merrimac, the Sfico aud the Connecticut rivers; and, 

 if the work goes on, there will soon be a pereei^lible diminu- 

 tion of these streams, and a loss to New England industry 

 which can hardly be regained in the lifetime of the average 

 man. The timber lands in the White Mountain district have 

 within a few years passed from the earlier proi>rietors into 

 the hands of speculators, railroad companies, and other par- 

 ties, who have no interest in them beyond the sale of the 

 timber for the making of money. Nobody has said any- 

 thing about this as yet, and comp;iratively few have detected 

 it. The New Hampshire Legislature has been asleep, as 

 usual, and the drying up of the streams Avhich feed the 

 busiest portion of the new world that Columbus 

 discovered has been attributed to "the dry sea- 

 son,-' which comes usually once a year. Any one 

 who happens to malie a toiir along the railroads that pass 

 through the notches and wind around the mountains can see 

 for himself what seriotis havoc has been made in the I'egion 

 that iiolds in its embrace much of what constitutes the 

 ihatei-ial prosperity of New England ; and it requires no 

 stretch of the imaa^ination to anticipate the renewal of this 

 havoc when the lumbering season begins again. New Hamp- 

 shire has the legal (;ontrol of this region, but Massachusetts 

 and Conu(icticut are deeply interested in the question of 

 water supply, Avhich the cutting off of the dense forests that 

 hold it back will soon destroy. There arc thousands of mills 

 which, more or less, are run by these streams. There are 

 thousands of acres of land that are made arable because 

 these streams from the mouutains and their tributaries pass 

 through them. The water supply in Maine has been visibly 

 affected by the incessant click of the woodman's axe, and 

 the danger that affects the industrial life of the busiest part 

 of New England from the use of that axe, with its adjunct, 

 the steam .sawmill, in the White Mountains, is one of the 

 most serious questions nffecting this part of the country. It 

 has ec:emed to be a remote d'-insier, but the reports of those 

 Who have visited Northern New Hampshire during the 

 present season go to show that not a day is to be lost in 

 arousing public sentiment against the wholesale destruction 

 of the resources of the water supply for our agricultural aud 

 manufacturing industries. — Boston Herald. 



Lawless Nkbkaskans. — Editor Foi'est and Stream: Al- 

 though our season for praiiie chickens in this State does not 

 open until Sept. 1, th.ey are being shot olf already at a rate 

 which promises to leave very few for those of us who prefer 

 to obey the law. The season opened very favorably and the 

 promise for a good chicken crop was excellent; but since the 

 first of July everybody has been shooting the bii'ds. Some 

 of the broods are scarcely big enough to fly even now, and 

 are, of coursCi utterly valueless as food; but they are killed 

 all the same. The poachers stai"t out with teams, concealing 

 their guns in the bottom of the wagon, and having their fish- 

 ing tods in plain sight. They announce that thej'' are going 

 fishing, and take their dogs along to give them "a run." 

 When they get well out of town the "sport" begins. I am 

 sorry to say that the district .judge, the sheriff of the county 

 and many of our best citizens are not ashamed to take part 

 in this despicable business. It strikes me that there is a good 

 chance for some one to do a good deal of missionary work 

 in this part of our State. — Koots (Duncan, Neb., July 30). 



The Name "Quah,."'— Rockingham, North Carolina.— 

 EdMor Farest and titream: 1 wish some of your readers 

 -Would tell why it is that most NorUieru people persist in 

 calling Bob White a quail. He has none of the distinctive 

 habit* of the quail. He is not migratory. Bob lives and 

 dies within a half mile of where he was ushered into this 

 "breathing world.'' He does not resemble the quail of 

 Europe in his wings, tail or head, but does greatly resemble 

 the nut broW^n— sometimes called the gray— partridge, whose 

 picture 1 have seen in ornithological works, and most recently 

 in Greener's book. I protest most earnestly against the name 

 of "quail." But I do not insist upon his being called par- 

 tridge, as is universal in the South. Let sportsmen speak of 

 him as Bob White. The quail of Europe breed in France 

 and fly across the channel into England. Who ever beard of 

 such a flight on the part of our bird? A half mile is rare 

 for him, — Wells. ' 



St'OKTSiNiEN's Display at tub Lo?fDON Exuibition.— 

 The American Exhibition, City Offices, 7 Poultry, London, 

 E. C, July 29, Editor Forest and Stream: Several 

 English gentlemen who have made colJectious of souvenirs 

 of American sport have formed a committee in connection 

 with our exhibition of next year. Their object is to make 

 an especial collection of skius, horns, stuffed Inrds, animals, 

 etc, , indigenous to our country. This will be a loan col- 

 lection, and will also comprise whatever relates to the 

 American Indians. We invite (he co-operation of gentlemen 

 in the States who ha ve similar coUectious.— 0. B. Norton, 

 Secretary. _„ 



Kansas PKAiKni ChicivEns. — Topeka, Aug. 4. — The quail 

 and chickens wintered well, although we had quite a severe 

 season. In the counties west of us" they are Very abundant, 

 and will well repay a visit. A great many arc being slaugh- 

 tered at present, although the law will not be out till Sept. 

 1.— H. B. 



mid Bivet 



Scranton, Fa., Aug. 3.— I have just returned from the 

 Pocono Mountains. The outlook liere in the Lackawanna 

 Valley for the coming fall shooting is now inviting. Quail 

 and gray squirrel will be plenty. Woodcock are scarce, but 

 partridge shooting will be the best that we have seen in 

 years. Saturday I returned from Stroudsburgh, fifty-two 

 miles south on the D., L. & W. R. R., and I found quail 

 very plenty. Deer ten miles from there will be numerous, 

 and some of the old sportsmen say that they expect to have 

 the finest deer shooting that they have had in five years. 

 Trout fishing was tine; a string of seventy was caught two 

 days before the law expired, and several weighed over 1^ 

 pounds each. The bass fishing here at Joneses Lake is good ; 

 one was caught a short time ago weighing 44 pounds. At 

 Scull Pond and Mud Pond, eight miles" from here, you will 

 find as good bass fishing as can be had in this' section. 

 Sportsmen who visit Stroudsburgh this fall should stop at 

 !\Ir. Derr's, who lives only a short distance from the depot. 

 — W. B. L. 



"Oahoot."— In this locality the words "in cahoot" or "in 

 cahoots" is a slang phrase used by the less intelligent classes 

 to denote a partnership or conspiracy to do an illegal act, 

 and frequently used instead of the word "partnership ' in 

 speaking of a business transaction. — ^R, E, S, (Newport, lud.). 



^ Little Rock, Ark.. Aug. 4.— Game prospects are good. 

 Squirrels plentiful. Wild turkeys unusually plentiful. I 

 saw a large flock of young ones this morning. I think the 

 game law is generally observed ayownd here.— Casvat,. 



Address all coiinnuwicatiOHS to the Forest and Stream Publish- 

 ing Co. ^ 



POSSESSION IN CLOSE SEASON. 



Editor Fored and Stream: 



The digest prepared by Mr. Samuels, of the various game 

 laws so far as they relate to the possession of game illegally 

 taken, is a valuable contribution to your paper, and now a 

 digest of decisions relating to game taken in one State or 

 Territory and exposed for sale in another, would he especially 

 valuable to tlie game and fish protective associations of the Pa- 

 cific coast. The Spokane River heads In Idaho, where there 

 is no fish protective law, and nms across the northeast cor- 

 ner of Washington, where we have a law which was in 

 tended to be very severe in its protective provisions. Pish 

 are sold in our market all the year round, and during the 

 close season the claim is invariably made that the fish were 

 caught in Idaho. Dmlng the month of Maich our rod and 

 gun club caused the aiTcst of a restaurateur for having 

 mmmtain trout in his posssssion, and he was bound over to 

 the District Court. His attorneys took the case before Judge 

 'Turner of the United States District Court upon a writ of 

 corpV)^. Judge Turner granted the writ and ordered 

 the release of the prisoner. As the decision touches upon the 

 subject of interstate commerce, it is of general interest, and 

 I inclose it for publication, with the hope that it may bring 

 forth suggestions which will enable us to so amend our law 

 as to makd it serve the object intended by its enactment. It 

 is proper to state that Judge Turner is a sportsman as well 

 as an able jurist, and is in sympathy with all laws for the 

 protection of game and fish; his decision, therefore, while 

 not in accord with his personal feehngs, may be reirarded as 

 a strict interi retation of the law. G. H. Morgan. 



Spokakb Falls, "W. T., July 1, 1885. 



The full text of Judge Tiirner's opinion is as follows: 

 Ex parte, Charles Carson. 



The petitioner, Charles Carson, having been bound over to 

 the next term of the disti-ict court for the alleged offense of 

 having in his possession moimtain or brook trout at a time 

 when it was unlawful to have such fisli in possession, and being 

 in the custody of a constable under a warraaat of commitment 

 issued by the justice before whom the preluuinary examina- 

 tion was had, pj'osecutes a writ of habeas corjjus to recover 

 his Uberty. 



The constable having made proper return upon the writ, 

 the district attorney, representing the Territory, and counsel 

 representing petitioner, appeared before me and agreed upon 

 the following, substantially, as the facts constituting the sup- 

 posed offense, namely, the petitioner had in his possession in 

 Spokane county, during the month of March, 188."j, mountain 

 trout wliicli had been taken in the Territory of Idaho, and 

 which petitioner had brought, or caused to be brought, from 

 Idaho to ttds Territory. 



The law which it is insisted for the Tenitory maltes this act 

 an offense is found in an act entitled "An act for the protection 

 of fish and game," approved Nov. 27, 1S83, Laws of Washing- 

 ton, 1S81-3, page 102. Section 7 of said act reads as follows: 

 "Every person who shall, within the Territory of W.'ishington, 

 dmnngtlie months of November, December, 'January, Febru- 

 ary and March of any year, catch, kill or have in possession, 

 self or offer for sale,' any mountain or brook trout, shall be 

 guilty of a misdemeanor."" 



Two questions are presented for consideration upon the law 

 and the facts: Firat, Does the law of 1888 make it an offense 

 to bave in possession during the prohibited season fish wliich 

 were taken outside the limits of Washington Territory ? Sec- 

 ond, If the first question is answered affirmatively, is the act 

 in conflict with section S Article I. of the Constitution of the 

 United States, wliich provides: "The Conp'ess shall haA-e 

 power * * to regulate commerce with foreign nations and 

 among the several States, and ^vith the Indian tribes"? 



Upon the first question it is true, as insisted hj counsel for 

 petitioner, that the act of 1883 is a pepal law and must be 

 strictly constnied. I underetand the doctrine that penal laws 

 must be strictly construed to be this: If the act is within the 

 letter of the law but not within the spuit, the act is no crime. 

 If it is within the spiiit but not \vithin tfie letter, it is no 

 crime. The act which it is sought to make criminal must be 

 covered both by the letter and the spirit of the law. Bishop 

 on Statutoi-y Crimes, sections lOO, 230, 231 aaid authorities 

 cited. 



That the act of haviug possession of the, piohibited kinds of 

 lish taken outside the limits of Washington TeiTitory, is cov- 

 ered by tlie letter of the law under consideration, is too clear 

 to requh'e demonstration. That such act is within the mis- 

 chief intended to be remedied by the law, aud is therefore 

 within its spirit, is not so clear. The title of the law, which 

 may be looked to in aid of its meaning, is "an act to protect 

 fish and game," meaning fish and game within the Territoi'y 

 of Washington, The object of the law, genei-ally speaking, is 

 undoubtedly tQ preyeot the improv jdeni destruotiion <?£ flsb aiwi 



game in tlris Territory. Does it follow that the prohibition 

 against having fish in possession during certain months must 

 be construed as relating to fish only that are taken in Wash- 

 ington Territory. The imphcation' in favor of the afHrmitive 

 of this proposition would be strong if it were true, as claimed 

 by counsel for the petitioner, that the purpose of the cact is in 

 no way subserved by construtag such prohibit-on as relating 

 to flsh taken outside of Washington TeiTitoiy. But an examin- 

 ation of the statutes and judicial decisions of other States 

 shows that it has there been considered as an aid to the policy 

 of protecting game and fish to absolutely prohibit the having 

 of the same in possession at certain periods of the year, re- 

 gardless of when or where the same was taken or killed, 

 jame and fish of the same species is pretty much alike every- 

 where, and if the State in the prosecutioii of offenses against 

 the game laws, must negative the taking of the game outside 

 the State, or its taking at a time when it was lawful so to do, 

 it would make the conviction of offenders against such laws 

 exceedingly difficult and in some cases Impossible. 



This fact has led to the making of laws elsewhere denounc- 

 ing the simple offense of having game and fish of certain 

 kinds in possession at certain times of the year, regardless of 

 the time and place when and where such game and tish was 

 taken. It is insisted, however, that such construction ought 

 not to be given to Section 7 of the act in question, because an- 

 other section of the act completely covers the mischief which 

 such constniction would guard agamst. Section 10 of this 

 act provides that "proof of possession of any of the aforesaid 

 animals, fowls, buds or fish, at a time when it is unlawful to 

 take or kill the same in the county where the same is foimd, 

 shall be jjrana/ciet*^ evidence in any prosecution for a viola- 

 tion of any provision of this act, that the person or persons in 

 whose possession the same is found, took, kUled or destroyed 

 the same in the county vi^herein the same is found during the 

 period when it was unlawful to take, kill or destroy the 

 same." 



This latter section entii-ely guards against the mischief 

 which the first section, standing alone and restricted to fish 

 caught in this Territory, would leave unprovided for; and the 

 fact that the rule of evidence provided by it is general and 

 apphes as well to the offense of having fish as to that of taking 

 and killing the same, is very persuasive that the Legislatm-e 

 had in mind only fish taken or killed in Washington Territory . 

 A similar provision in the game laws of Massachusetts was 

 considered by the Supreme Court of that State as aiding 

 materially a construction that the prohibition in said laws 

 against having game bu'ds in possession at a certain season of 

 the year did not include birds taken outside the State, or taken 

 at a time when it Avas lawful to take them and preserved until 

 the time when the taking was unlawful.— Commonwealth vs. 

 Hall, l;38 Mass. 410. 



The Court of Appeals of New York, however, upon a law, 

 the prohibitory clause of which has greater similarity to ours 

 than that of Massachusetts, has held that theu- law did pro- 

 hibit the possession of tish and game taken outside the State.— 

 Phelps vs. Racev, 60 New York Court of Appeals, page 10. 



The New York law did not, so far as the opinion of the 

 court discloses, contain a provision hke that contained in 

 Section 10 of om' law, and it rhd contain other pro\aaions not 

 found in our law, from which the court deduced the intention 

 of the Legislature to include fish and game taken outside the 

 State. 



The court, however, placed its decision upon the other 

 ground that the law of tne State was plain and unambiguous, 

 and left no room for construction. If it meant by the lan- 

 guage used to intimate that, because the letter of the law was 

 plain the letter must be followed, it was, in my opinion, 

 clearly wrong. Criminal statutes will be contracted by inter- 

 pretation so as to avoid punishing those who, though breaking 

 ttieir letter, have not violated theu- spirit. The following are 

 instances of such contractions : 



An act of Congress made it punishable "to import or bring, 

 in any manner, into the United States or Territories thereof, 

 from" any foreign kingdom, place or country, any negro, 

 mulatto or person of color, with intent to hold, or person of 

 color as a slave, or to be held to service or labor." And this 

 act was adjudged in the time of slavery not to be violated by 

 carrying slaves from the Unilied States to Europe and thence 

 back, to be held again in bondage, because the object was to 

 put an end to the slave trade.— United States vs. The Garonne, 

 11 Peters, 93. 



The selling of a free negi-o into slavery, with his own con- 

 sent, imder the collusive agreement between him aud the seller, 

 to divide the proceeds, was adjudged not to be within a 

 statute against "selling a free person for a slave, knowing the 

 person so sold to be free."— Mercer vs. Commonwealth, 2 Va. 

 cases 144. 



A statute against stealing from a dwelling house is not 

 violated where one steals in his own house the goods of 

 another.— Bex vs. McDaniel, 2 East P. C, 644. 



These and similar cases are given by Mr. Bishop in his work 

 on statutory crimes, as instances of the contraction of the letter 

 of penal statutes so as to except from theu- operations acts not 

 within their sspirit. 



1 am of the opinion, in view Qf the foregoing, that the act of 

 having fish in possession in this Territoiy dunng the prohibited 

 period, which were taken outside the Territory, is not within 

 the act of 1883. 



I have not reached this conclusion without some difficulty, 

 and at first blush was iucUned to a different conclusion. I am 

 glad to reach it, however, because a contrary construction of 

 the law woidd bi-ing it into conflict with the constitution of the 

 United States, and might sweep it away entirely. 



It needs no citation of authorities to show that food flsh 

 which have been taken from the water and reduced to posses- 

 sion are pereonal property and as much the subject of trade 

 and traffic as any other species of property. The act of 1883 

 then, which makes it unlawful to have in possession, during 

 certain periods of the year, this species of personal property, 

 if the construction claimed by counsel for the territory be cor- 

 rect, in effect prohibits the importation of such property from 

 a foreign coimtry, or from a sister State or Tenitory, as fish, 

 dead or alive, when upon load, have no power of locomotion, 

 it is a necessary consequence that such property cannot come 

 into tbis Territory, ^cept in the possession of some individual, 

 and then the act of bringing the tish across the borders is made 

 an offense. 



This is a regulation of commerce between the States within 

 the meaning of the constitution of the United States. The 

 principles upon which the commerce clause of the constitution 

 is to be expounded may now be considered well settled, 

 although at the time of the decision of some of the earher 

 cases the members of the Supreme Court of the United States 

 were at variance on the subject. Some of those principles, so 

 far as they are necessary to be noticed ui this connection, may 

 be summarized as follows : 



Any charge on or obstiniction to the introduction and incor- 

 poration into and with the mass of propertj^ within the State 

 of commodities from abroad, is hostile to the power of Con^ 

 gress to regulate commerce, — Brown vs. State of Maryland, 13 

 AVheaton, 419; Railroad Co. vb. Huson, 9.5 U. S. 465. 



The right of Congress to regulate foreign and interstate 

 commerce in all its branches and to any extent, is supreme, 

 and as to all matters that admit of and require uniformity of 

 regulation, the power is national and exclusive of State au- 

 thority. The matters that are national and as to which the 

 right of Congress to act is exclusive, tu'e, among others, inter-^ 

 course and traffic with foreign countries and between the 

 States, "including in those terms navigation and the transpor- 

 tation and transit of persons and propeiiy, as well as the pm-- 

 chase, sale and exchange of commodities."— 12 Howard 399; 

 91 U. S. 275 ; 92 U. S. 259 ; 95 U. S. 465 ; 102 U. S. 691. 



As to matters that are not strictly national the States may 

 I legislate coji£e§?e^ly i» a^i^ o£ cominerce so lon^ m %lAQ\r legi?? 



