Forest and Stream. 



A Weekly Journal of the Rod and Gun. 



NEW YORK, SATURDAY, MARCH 24, 1894. \ 



For Prospectus and Advertising Rates see Page vii. 



A PREMIUM ON CRIME. 



The killing of ten buffalo in the National Park by a 

 skin hunter from Cooke City and his capture by the Gov- 

 ernment scout is announced in another column. The 

 news comes to us by telegraph from a staff correspondent 

 now on the ground, and while for the present full details 

 are lacking, the capture is unquestionably the most im- 

 portant that has ever been made in the National Park. 



The occurrence calls public attention again and most 

 forcibly to the criminal negligence of which Congress has 

 been guilty for all these years in failing to provide any 

 form of government for the Park, or to establish any pro- 

 cess of law by which crimes against the public committed 

 within its borders can be punished. The result is that, 

 although misdemeanors and crimes of many different 

 grades have been perpetrated in the Park, only in excep- 

 tional cases has any punishment been meted out to the 

 offenders. Practically the only punishment that can be 

 visited on the criminal is to lock him up in the guard- 

 house. In other words, a man while in the National 

 Park is not subject to the law of the land; within its 

 borders he may without fear of punishment do those 

 things which are forbidden in all other parts of the 

 country. 



Such a condition is not only an anomaly under our form 

 of government, but a disgrace to every American citizen. 

 Every citizen shares with all the others the ownership in 

 the wonders of our National pleasure ground, and when 

 its natural features are defaced, its forests destroyed, and 

 its game butchered, each one is injured by being robbed 

 of so much that belongs to him. 



There is at present no remedy. Representatives elected 

 by the people to guard their interests have steadily refused 

 to enact bills brought before Congress for the protection 

 of the National Park, or if willing to enact them have 

 insisted on nullifying the good that they might do by 

 coupling with the good provisions, others wholly bad and 

 menacing the Park and all that it contains. A measure 

 which should merely protect the National Park has in it 

 nothing to excite the enthusiasm of the politician; there 

 is the hope neither of gain nor of political preferment — 

 nothing but the public good— and the average politician 

 is not looking about him to see how he can benefit the 

 public. His ambitions are more modest. He is quite 

 satisfied if he can benefit himself. 



The man Howell, who has just been arrested, has de- 

 stroyed property belonging to the Government — that is, 

 to the people— which was worth from $2,500 to $5,000; 

 yet if we may judge the future by the past, he will be 

 allowed to go on his way practically without punishment. 

 If he had committed a similar act anywhere else — if he 

 had destroyed Government horses or mules or grain or 

 supplies of any sort to this extent — he would have served 

 a long time in prison. So long as these lewd fellows of 

 the baser sort, who lack only daring to be' horse thieves 

 and rustlers, know that they will not be punished for 

 their invasions of the Park, ten regiments of troops could 

 not protect it against their raids, but let it once be known 

 that punishment will follow swiftly on the heels of cap- 

 ture, and they will give the Park a wide berth. As things 

 stand at present, they laugh at the troops. 



Behind the miserable scoundrels who commit the dep- 

 redations are the still more cowardly wretches, who by 

 offering high prices for skins and heads, tempt the poach- 

 ers. These men are more contemptible than their tools, 

 for they have not the courage to face the cold and snows 

 of the mountains, the fatigues of the chase or the chances 

 of capture. They merely buy the spoils. They are the 

 "fences." 



In the Yellowstone Park the buffalo — remnant of a 

 continent — have increased year by year, until now they 

 number perhaps 500; the most curious ornaments, the 

 rarest of the living wonders of our American Wonder- 

 land. But Congress, by its continued neglect, encourages 

 the evil-minded to believe that they may penetrate even 

 here and destroy this last remnant of a race long nearly 

 extinct. It puts a premium on this crime. 



A year ago this winter several buffalo were killed; last 

 spring and the spring before, a number of calves were 

 captured; this winter ten buffalo have been slaughtered 

 at a single killing. At this rate it will not be long before 

 the last shall have been shot down. It is for the people 

 to say whether or no they desire this. 



FROM THE COURTS. 



Unlawful Nets as Nuisances. 



We printed last week the full text of the finding of the 

 Supreme Court of the United States, sustaining the con- 

 stitutionality of the New York law which provides that 

 fishing nets used unlawfully are public nuisances, and as 

 such may be summarily abated. This case has excited 

 wide interest, and the decision has been received with 

 satisfaction. Incidentally the Supreme Court has deliv- 

 ered much sound doctrine on the subject of fish and 

 game protection. The document is worthy of careful 

 study. The cause of protection is more firmly established 

 than before. Indeed, the trend of the courts is in that 

 direction. The fish and game laws are in principle so 

 reasonable that appeals to the higher courts only demon- 

 strate anew their strength. 



Responsibility for Bear Traps. 



The Maine Supreme Court has just rendered a decision 

 affecting the legal responsibility of bear trappers who set 

 their traps in wild or abandoned lands. Marshall P. 

 Whitney set a bear trap on abandoned land at Byron, and 

 in it caught Freeland D. Abbott's thoroughbred colt. 

 Abbott sued and recovered $733 damages. 



Game Sold in Close Season. 



The Supreme Court of Ohio has given a decision in the 

 case of Roth vs. The State, the point involved being the 

 right to sell imported game in the close season. Mr. E. N, 

 Roth, proprietor of the St. Nicholas Hotel, in Cincinnati, 

 having served quail to a guest after the open season had 

 closed, was prosecuted and fined in the lower courts, and 

 appealed the case, contending that the statute did* not 

 apply. The agreed statement of the facts was as follows: 



The defendant is the proprietor of the St. Nicholas Hotel, of Cincin- 

 nati, Ohio, and a citizen of said city; on the 21st day of October, 1891, 

 he had in his possession for the purpose of sale (not in the original 

 package) to his guests in said hotel in the city of Cincinnati, and State 

 of Ohio, six quails, which quails were by him purchased in the State 

 of New York and shipped to him for the purposes aforesaid. That he 



did sell one of said quails (not in the original package) to , for 



the sum of seventy cents, to be eaten by her as a guest in said hotel, 

 on the 21st day of October, 1891, in the said city of Cincinnati, and 

 State of Ohio. Said quail having been killed in the State of New York 

 at a time when the killing and selling thereof was not prohibited by law. 



Mr. Roth's counsel claimed that the law was not intended 

 to apply to these birds which had been imported from 

 New York; and that if it was so intended it was uncon- 

 stitutional, since it sought to regulate inter-state commerce 

 and interfered with property rights. This contention 

 was overruled by the Circuit Court, and the Supreme 

 Court has just affirmed the decision. This is in line with 

 the decision in Phelps vs. Racey, in New York, Magner 

 vs. the people, in Illinois, and numerous other precedents. 

 We see it stated that Mr. Roth will appeal to the Supreme 

 Court of the United States. 



A California Deer Skin Case. 



The great problem in certain districts of California is 

 to put an end to the killing of deer for their skins. The 

 hide-hunter or skin-butcher is the most destructive agent; 

 if he were suppressed, in some counties there would hardly 

 be need of any deer protection at all. California game 

 laws are now for the most part county ordinances; and 

 that of Humboldt county prescribes. 



Every person who in the county of Humboldt shall buy, sell or 

 offer for sale, transport or carry, or have in his possession any deer 

 or deer skins, or any hide or pelt from which the evidence of sex 

 has been removed, or any of the aforesaid game at a time when it 

 is unlawful to kill the same, shall be guilty of a misdemeanor. 



Two men convicted under this section came on habeas 

 corpus before Judge Hunter of the Supreme Court of 

 Humboldt county. Their counsel claimed that this pro- 

 vision of the law was intended to apply only to persons 

 who had in possession deer skins at a time when it 

 was unlawful to kill deer; and that such skins were 

 only those from which the evidence of sex was removed. 

 But the Court dissented from this view, and concluded its 

 opinion in these words: 



The object of the law undoubtedly was to prohibit entirely the 

 traffic in deer skins and in that manner to prevent the killing of 

 deer when it was unlawful to do so. 



It is for the Legislature or the Board of Supervisors to say what the 

 law shall be. With the policy of the law the courts have nothing to 

 do. Its plain duty is to declare the law as it finds it. 



I am satisfied that I have given the proper construction to the law, 

 and the deer under the provisions of this ordinance are so hedged in 

 that it is only possible for a person to kill male deer for three months 

 of the year, and then only for his own use. He cannot sell the hides. 

 He may utilize them for any purpose he wishes to during that time. 

 For the rest of the time he cannot buy the skins or transport them or 

 be found in their possession and he cannot be found in the possession 

 of skins from which the evidence of sex has been removed at any 

 time. 



Reared Fish in Public Waters. 



Fish Commissioner Richard E. Follett of Connecticut, 

 has become involved in lawsuits in Massachusetts over 

 netting some trout which he claims were his own fish 

 in his own waters, but which the authorities contend 

 could not be classed as any other than wild fish in pub- 

 lic waters. In addition to his duties as Fish Commis- 

 sioner of Connecticut, Mr. Follett is superintendent of a 

 private fish hatchery maintained by Mr. C. W. Barnum 

 on a farm leased for the purpose. Lee Brook, an outlet 

 of the hatchery ponds, is a stream several miles in 

 length, and Mr. Barnum also has under lease, but not 

 inclosed, portions of this stream. Last year there were 

 in one of the hatchery ponds, which was between 200 

 and 300 feet long by 75 to 100 feet in width, some 1,500 

 brown trout, which had been bought in Rhode Island. 

 In June it was noticed that these brown trout were 

 afflicted with fungus, that bane of fishculture establish- 

 ments. After trying in vain to rid them of this by salt 

 water baths, Superintendent Follett decided to turn 

 them out from the pond into Lee Brook, and to take 

 his chances of recovering them. They were set free in 

 the stream but were fed with liver by the. hatchery 

 employees through the summer and were regarded as 

 still belonging to the establishment. In September, when 

 spawning time came, Superintendent Follett and one of 

 his employes netted out some of these fish from Lee 

 Brook, carried them back into the hatchery pond, took 

 their spawn and finally returned the fish to the brook. 

 For this prosecution was instituted under three counts — 

 unlawfully taking 300 trout out of season, unlawfully 

 taking them with a net, and having them in pos- 

 session not alive. Trial was had on the second count. 



Superintendent Follett set up for a defense that he 

 had acted under license of that section of the Massa- 

 chusetts fish law which provides: 



Sec. 26. Fishes artificially propagated or maintained shall be the 

 property of the person propagating or maintaining them; and a 

 person legally engaged in their culture and maintenance may take 

 them in his own waters at pleasure, and may have them in his posses- 

 sion for purposes properly connected with said culture and main- 

 tenance, and may at all times sell them for these purposes, but shall 

 not sell them for food at seasons when their capture is prohibited by 

 law. 



He claimed that the porcion of Lee Brook into which 

 the fish had been put, inasmuch as it was leased by Mr. 

 Barnum, was a part of the hatchery waters, and that the 

 trout put into it and fed there came within the classifica- 

 tion of "fishes artificially propagated or maintained." It 

 does not appear that the leased portion of Lee Brook was 

 cut off from the rest of the stream, so that the trout 

 might not come and go; the only contention was that 

 these were hatchery trout, given leave of absence from 

 the hatchery for their health, fed by the hatchery, 

 recaptured by hatchery employees, and taken back to the 

 hatchery. 



Assuming that the only fish recovered by Mr. Follett 

 were brown trout, which he had put into the stream, the 

 netting of them was in itself an act hardly coming within 

 the category of those robberies of public waters by netters, 

 which the statute is intended to punish. On the other 

 hand, whatever may have been the merits of this particu- 

 lar case, there appears to be no question that it was a 

 technical violation of the statute forbidding netting of 

 trout, and we do not see how the trial could have re- 

 sulted otherwise than as it did, in a conviction. For 

 while the fish in Mr. Follett's ponds were within his con- 

 trol to do with them as Sec. 26 permits, the moment he 

 turned them out into Lee Brook, a public water within 

 the meaning of the law, he surrendered his special pro- 

 prietary rights in them, and thenceforward could recap- 

 ture them only with hook and line and in open season. 

 The occupation of the defendant as a trout culturist 

 and his purpose in taking the fish could not count for 

 anything, in an interpretation of the statute, when as a 

 matter of fact he was taking fish from a public stream. 

 Whether the trout were intended for breeding purposes 

 or for frying had no bearing on the case. They were 

 fish in public waters, captured in a mode plainly contrary 

 to the statute; and to the lay mind it will appear that Mr. 

 Follett has acted upon an ingenuous misconception of the 

 principles governing the case, which is not altogether to 

 the credit of one holding the office of State Commissioner 

 of Fisheries. 



The decision of the case, rendered by Judge Sanford, 

 was as follows, an appeal from it having been taken: 

 The statutes have surrounded with many restrictions the taking of 

 I rout in this Commonwealth, and the more recent legislation upon 



