Forest and Stream. 
A Weekly Journal of the Rod and Gun. 
Copyright, 1899, by Fores* and Stream ?i!blisiiinc Co. 
''^''''''^'irlM^.Jlir- NEW YORK, SATURDAY, SEPTEMBER 2, 1899. {no. X.o'^l'^k^Xl'yo... 
tU Jm$t ana Stream Platform Plank. 
sale of game should be forbidden at all seaso?is." 
— Forest and Stream, Feb. 3, 1894. 
Concefningf wolvs, it is ordered that if any one 
shall kill a woIfe hee shall have twenty schillings 
for his paines, all soe if any Indian shall kill a 
wolfe and bring the head to the constable: The 
Indian soe doing shall have for his reward Twenty 
gilders provided it can bee dicerned that it killd 
within ten miles of the towne. — ^Middletown^ N. 
Towne Book, J 668. 
"THE CHALLENGE." 
Here in the high mountains the September morning- 
is very cold as the sun rises clear over the sharp peaks. 
Heavy frost hangs on grass and weed stalks, and 
there is a skim of ice on the rocks, which at midday will 
be wet with a thin trickle of water. The beautiful au- 
tumn flowers which bloom on these heights are frozen and 
shriveled now, yet as the sun rises higher and the heat 
grows stronger they wiH again appear fresh and fair. 
Along the sides of the mountains far and near white 
clouds and tufts of mist are rising, blotting out in their 
slow motion bits of the landscape which lie in their 
track, and then revealing them as they pass higher. 
In the ravines which seam the sharper peaks and on 
the sumttiits of the more rounded mountains lie streaks 
and fields of snow left over from the last winter, which 
will soon be buried beneath other snows of the advancing 
autumn. Down in the deeper ravines and stream valleys 
are the black masses of evergreen trees, brightened here 
and there by patches of paler aspens, and as they climb 
higher on the hillsides, yielding little by little to the 
alders, until finally the conifers run up in lessening points 
toward the bare rocks, and at last disappear. 
It is very still here. There is no song of bird; not 
even the whistle of the mountain marmot, nor the piping 
cry of the little chief hare is heard. Only from a distant 
ravine comes the shrill sweet whistle of a great bull elk, as 
he utters his bold challenge to all rivals far and near. 
You can see him plainly as he walks out from: the tim- 
ber and slowly climbs the hill, followed by the group of 
watchful cows; and he is a splendid picture. Short- 
bodied, strong-limbed, round and sleek-coated, he is a 
maiwel of strength,, if not of grace. His yellow body is 
in sharp contrast with the dark brown head and mane, 
and the hugely branching antlers, wide-spreading and 
reaching far back over his shoulders, seem almost too 
much for him to carry; so that as he marches along with 
ponderous tread each step seems to shake the earth. At 
intervals he throws back his head and utters his wild call, 
and before its first notes reach the ear you can see 
the white steam of his breath as it pours forth into the 
frosty air. His cows feed near to him as he steps along, or 
if one straggles too far he moves slowly toward her, and 
shaking his mighty horns warns her to return. It you 
fire a shot at one of that band, speedily the old bull will 
show himself the herder ana protector of liis family. 
E-ushing about from point to point, he will gather up 
cows and calves into a close bunch, and will drive them 
off over the hills, threatening the laggards with his 
mighty horns, using those horns, too, with cruel effect 
if the cows do not hurry. 
No chivalry this on the part of the old bull. Y^et in 
such a case he always travels in the rear, for these cows 
are his and he does not propose to have them taken 
from him. He drives them forward at top speed, not 
because he wishes to protect them from death, but because 
at this season of the year he does not intend to be robbed 
of wives and children. 
Very musical is the challenge of the bull elk; sweet, 
clear and plaintive when heard from afar, echoing along 
the hillside and across the ravines and tossed back from 
point to point of the hills in notes that grow ever fainter, 
but not less pleasing. Perhaps in all the mountains 
there is no sound that appeals so strongly to the im- 
agination of him who hears it. Nor is there in the 
mountains any other voice of nature that brings up to 
the mind of the old hunter so many memories of hunts 
gone by, of mountains traversed, of hunting companions 
loved, but living no longer; dead by hostile bullet, by 
winter's cold; overborne in the deep waters, or con- 
quered by lingering illness. 
Listen then to the whis?ie of the elk. If you are young 
it will fire your blood to strive for the great trophy; if 
you are old it will thrill you with memories of a past 
which shall seem to you brighter and better than any- 
thing the later years can yield. 
NON-RESIDENT LAWS ARE CONSTITUTIONAL. 
Illinois has a law which forbids a non-resident to take 
game without having first obtained a license, the fee ex- 
acted for which is $io, No exception is made in favor of 
non-residents who may be owners or lessees of shooting 
territory in the State. The sportsmen of Burlington, 
Iowa, who have been accustomed to shoot in Illinois, re- 
sent the application of the non-resident law to them- 
selves, and in mass meeting assembled have denounced the 
discrimination as unconstitutional, and proclaimed their 
determination to make a test case and carry the question 
up to the Supreme Court of the United States. Mr. J. F. 
Breitenstein, of Burlington, has issued an appeal to sports- 
men to contribute the funds necessary for the purpose. 
If'^^e Burlington shooters shall succeed in taking up a 
colle'fetion and making the Supreme Court case, they will 
supply an interesting subject for the attention of the shoot- 
ing world, and will no doubt add to popular information 
as to the basic principles of game protection and game 
legislation. But aside from the application of these prin- 
ciples to the precise point involved in a non-resident 
statute, it is not probabie that the game would be worth 
the candle. For the principles which control here have 
already been enunciated in unmistakable language by the 
Supreme Court, and are perfectly familiar to all well in- 
formed persons who have given attention to the subject. 
In the light of the Supreme Court decisions handed down 
in the cases of Macready vs. Commonwealth of Virginia, 
and Geer vs. State, of Connecticut, no question may 
reasonably be entertained of the constitutionality of a law 
which places restrictions upon non-resident shooters. 
The foundation of all game legislation is in the principle 
that the State — ^by which term is meant "the people of the 
State in their united sovereignty" — owns the game. As 
owner of the game the State may prescribe when, how and 
by whom its game may be taken. 
In the case first cited, Macready, an oyster planter, was 
debarred from planting oysters in Virginia waters by a 
statute which restricted to citizens the privilege of oyster 
fishing. Mr. Macready contended that the statute was un- 
constitutional because a violation of the section of the 
Constitution which declares that "The citizens of each 
State shall be entitled to all privileges and immunities of 
citizens of the several States" ; and defeated in the lower 
courts, he carried the case to Washington, where this 
point of constitutionality was decided against him. In the 
opinion, written by Mr. Chief Justice Waite, it was said : 
"The principle has long been settled in this court that each 
State owns the beds of all tide waters within its jurisdiction unless 
they have been granted away. In like manner the States own the 
tide waters themselves and the fish in them, so far as they are 
capable of ownership while running. For this purpose the State 
represents its people, and the ownership is that of the people in 
their united sovereignty. The title' thus held is subject to the 
paramount right of navigation, the regulation of which, in respect 
to foreign and interstate commerce, has been granted to the 
United States. There has been, however, no such grant of power 
over the fisheries. These remain under the exclusive control of the 
State, which has consequently the right in its discretion to appro- 
priate its tide waters and their beds to be used by its people as a 
common for taking and cultivating fish, so far as it may be done 
without obstructing navigation. Such an appropriation is in eiTect 
nothing more than a regulation of the use by the people of their 
common property. The right which the people of the State thus 
acquire comes not from their citizenship alone, but from their 
citizenship and property combined. It is in fact a property right 
and not a mere privilege or immunity of citizenship." 
Again it was said : "Virginia, owning land under water 
adapted to the propagation and improvement of oysters, 
has seen fit to grant the exclusive use of it for that pur- 
pose to the citizens of the State. In this way the people 
of Virginia may be enabled to produce what the people of 
the other States cannot; but that is because they own 
property which the others do not." 
"The second section of the fourth article of the Con- 
stitution, which declares that 'The citizens of each State 
shall be entitled to all privileges and immunities of 
citizens of the several States' does not vest the 
citizens of one State with an interest in the 
common property of the citizens of another State." Hence 
it follows that the Virginia law, "by which only such per- 
sons as arc not citizens of that State are prohibited from 
planting oysters in the soil covered by her tide waters is 
neither a regulation of commerce nor a violation of any 
privilege or immunity of interstate citizenship." 
Fish and game are both ferai naturae, and so of the same 
class in respect to the law ; if the Virginia statute forbid- 
ding non-residents to prosecute the fishing industry in 
its tide waters is constitutional, the Virginia statute also 
which forbids non-residents to shoot wUdfowl on its 
waters is constitutional. If this Virginia non-resident 
game law is constitutional, the Illinois game 'aw is con- 
stitutional. And for all three we have this United States 
Supreme Court decision in Macready vs. Virginia. 
A second and more recent decision is that of Geer vs. 
State of Connecticut, which was decided in the October 
term of 1895. The full text was published in these col- 
umns at the time, and may also be found in the April num- 
ber of the Game Lazvs in Brief and W oodcraft Magasine. 
Mr. GeerVas a game dealer who had a notion that the 
Connecticut law forbidding him to export partridges which 
he had bought and thus made his own "property" was un- 
constitutional because a violation of the interstate com- 
merce clause. To this view the Court did not assent; it 
found against Mr. Geer. Here, too. the points at issue 
were determined only after a searching examination of 
fundamental principles, and an enunciation anew of the 
basic principle that the people of the State own the game, 
and as owners of it have exclusive control of and right of 
enjoyment in it. For the benefit of the Burlington sports- 
men and others it may be worth while to quote these pas- 
sages from the text of the opinion as written by Mr. 
Justice White : 
"While the fundamental principles upon which the common 
property in game rests have imdergone no change, the develop- 
ment of free institutions has led to the recognition of the fact 
that the power or control lodged in the State, resulting from the 
common ownership, is to be exercised, like all other powers- of 
government, as a trust for the benefit of the people, and not as a 
prerogative for the advantage of the Government, as distinct from 
the people, or for the benefit of private individuals, as distin- 
guished from the public good. Therefore for the purposes of ex- 
ercising this power the State, as held by this court in Martin 
against Waddell, 16 Peters, 410, represents its people, and the 
ownership is that of the people in their united sovereignty. The 
common ownership is thus stated in a well-considered opinion of 
the Supreme Court of California: 
" 'The wild game within a State belongs to the people in their 
collective sovereign capacity. It is not the subject of private own- 
ership, except in so far as the people may elect to make it so, 
and they may, if they see fit, absolutely prohibit the taking of it or 
traffic and commerce in it if it is deemed necessary for the protec- 
tion or preservation of the public good.' — Ex parte Maier, 103' Cali- 
fornia, 476. 
"The same view has been expressed by the Supreme Court of 
Minnesota, as follows: 'We take it to be the correct doctrine in 
this country that the ownership of wild animals, so far as they 
are capable of ownership, is in the State, not as a proprietor, but 
in its sovereign capacity as the representative, and for the benefit 
of all its people in common.'— State against Rodman, 58 Minn., 
393." 
In conclusion, if the State of Illinois owns the game of 
Illinois, the State may constitutionally restrict the taking 
of its game to its own citizens, or if it elects to extend the 
privilege to citizens of other States, it may prescribe the 
conditions under which it will license them to enjoy tiiat 
privilege. While a test case proposed by the Burlington 
sportsmen would be regarded with interest, it could hardly 
add anything new to our present understanding of the 
principles of State ownership which underlie game pro- 
tective legislation. 
SNAP SHOTS. 
We suspect that the tall Yankee stroke in the story of a 
"Pull to Windward" was none other than Tarpon him- 
self, who relates the incident out of a life rich in stirring 
episode. By the way, commenting on a history of the 
Buccaneers, which we sent him the other day, our corre- 
spondent asks for reference to a copy of a book entitled 
"Tales of the Ocean" — an old book, he says, "which did 
more to send me to sea than anything else. I want to 
find a copy; I have a ctjriosity to see if it will read as 
it did fifty years ago." It would be a pleasure to supply 
the Tales, but the book is not necessary to satisfy Tarpon's 
curiosity — ^no book is the same fifty years after. 
M. Albert Menier, the chocolate manufacturer, who 
died the other day at his home in France, was a sports- 
man known in two hemispheres. His enterprise of con- 
verting the Island of Anticosti into a game preserve was 
an undertaking which received much attention in this 
country. Now that M. Menier has passed away, we may 
look for Anticosti's reversion \o a wild state. 
