Forest and Stream 
A Weekly Journal of the Rod and Gun. 
Copyright, 1900, by Forest and Stream Publishing Co. 
Terms, f4 a Year. 10 Cts, a Copy. | 
Six Months, $2. f 
NEW YORK, SATURDAY, JUNE 16, 1900. 
J VOL. LIV.— No. 24. 
( No. 846 Broadway, New York 
JThe Forest and Stream is the recognized medium of entertain- 
ment, instruction and information between American sportsmen. 
The editors invite communications on the subjects to which" its 
pages are devoted. Anonymous communications will not bt re- 
garded. While it is intended to give wide latitude in discussion 
of cunent topics, the editors are not responsible for the views of 
correspondents. 
Subscriptions may begin at any time. Terms: For single 
copies, $4 per year, $2 for six months. For club rates and^fall 
particulars respecting subscriptions, see prospectus on page iv. 
forest and Stream Platform Plank 
*' The sale of game should be forbidden at all seasotis." 
NAILS DRIVEN IN J900. 
I.— MASSACHUSETTS.— Act passed June 7. Section 2 
For a period of three years after the passage of this act, it shal^ 
ako be unlawful to buy, sell, offer for sale or have in possession 
tor sale any woodcock or ruffed grouse, commonly called par" 
tridge, whenever or wherever the said birds may have been 
taken or killed. 
We congratulate most warmly the sportsmen of Massa- 
chusetts upon their splendid achievement of putting this 
law on the statute books. We congratulate Secretary 
Kimball, who has been indefatigable in his labor for the 
law, and Messrs. Kinney, Hunt, Fay and their associates 
upon the outcome of their excellent work in behalf of 
the measure. We congratulate the game protective organi- 
zations of Massachusetts that their union and co-operation 
have been rewarded by the victory. We congratulate the 
sportsmen of other States, of the country at large, upon 
the existence of such a law in Massachusetts. It closes 
the Boston market not only to the grouse and the wood- 
cock of the Commonwealth, but to the game of other fields 
in other States, which have been robbed to supply the 
Boston demand. We congratulate all workers in the 
cause of game protection everywhere that thus the idea 
first promulgated by the Forest and Stream in 1894 is 
spreading and gaining power and appealing more and 
more widely every year to the deliberate opinion of the 
public as an efficient protective system. 
THE MARTHA'S VINEYARD REMNANT.- 
We give elsewherq some editorial comments of the Bos- 
Ion Herald upon recent remarks in these columns on the 
threatened extinction of the heath hen of Martha's Vine- 
yard; and there is added the pertinent reply sent to the 
Herald by Mr. Charles H. Ames, of Boston. Mr.. Ames 
writes with a warmly sympathetic appreciation of the 
spirit which has prompted our plea for the salvation of 
the birds — a motive which the Herald has woefully mis- 
construed. Our appeal was and is that the heath hen may 
be preserved not for the purposes of sport, but that a 
diminishing species of American wild life may survive. 
We plead for the heath hen as we would have pleaded for 
the great auk. This is a reason, as we are perfectly well 
aware, which does not have any weight with the prosaic, 
matter of fact, utilitarian mind; and unhappily it is the 
prosaic and utilitarian mind which rules and determines 
the attitude of the public in such matters and makes so 
hopeless any endeavor to arouse a sentiment which shall 
stay the blotting out of a species. Mr. Ames writes 
eloquently, but how many of the readers of the Boston 
Herald, think you, will give his plea a second thought? 
The extinction of the Martha's Vineyard heath hen, 
when the record shall come to be written, may be charged 
to the account of the sportsman, or the market-hunter, or 
the naturalist. The bird may have been killed off for 
sport, or for eating, or for "scientific purposes." But 
whatever active agency shall be determined to have 
wrought the end. back of it and giving the free license to 
its operation we must put that public indifference and 
apathy which permitted the destruction to take place and 
the extinction to be wrought. 
It is susceptible of clear showing that throughout the 
country at large, and as a general proposition, the sports- 
man — tha man who shoots game — has been the one to 
recognize the necessity of protecting the game, and the 
active agent in securing protection for it. Granted that 
his purpose in this has been to provide himself with game 
to shoot, the purpose is one which is perfectly legitimate. 
To provide game birds to shoot in the field is as reason- 
able, and quite as defensible in morals and economics, as 
it is to propagate chickens to wring the necks of. If any- 
body on the Boston Herald can demonstrate that it is right 
to raise steers for beef and wrong to raise deer for 
venison, we would like to see him or her essay the 
demonstration. 
The Forest and Stream believes in game protection. 
It believes in game protection for the end of having game 
to hunt, when and so far as the supply warrants the 
pursuit. But when any species of animal life becomes so 
rare, so peculiar and so pathetically a remnant as is the 
heath hen of Martha's Vinej^ard, according to our way of 
tliinking that species then passes out of classification in 
the category of game ; and its immunity and the cherish- 
ing and preservation of it are demanded on purely senti- 
mental grounds, if you will. For your sportsman is a 
sentimentalist. If there are among sportsmen any who 
being cognizant of the conditions surrounding the Mar- 
tha's Vineyard birds would harbor a wish to shoot them, 
or could be induced to shoot them — if there be such sports- 
men, we protest that we would not know where to look 
for them. On the contrary, the attitude of the field sports- 
manship of this country in its relation to such matters is 
precisely that which is exhibited by Mr. Ames. 
If it rested with the sportsmen, the Martha's Vineyard 
grouse would be secure. If, in spite of the desperate 
straits to which it is now reduced, the species shall sur- 
vive, it will owe its preservation to the sportsmen. And 
we submit that all who are interested in the heath hen 
and concerned for its cherishing, whether or not we class 
ourselves as sportsmen, would heartily welcome, in place 
of a questioning of our motives, the active co-operation 
and substantial support of so powerful and influential an 
ally as the Boston Herald. 
THE MARIN COUNTY CASE. 
By courtesy of Judge Ross of the United States Circuit 
Court, we are enabled to give the full text of the decision 
recently rendered by him in the case of W. A. Marshall, of 
Marin county, California, who had been convicted of 
the use of a magazine shotgun for killing game, in viola- 
tion of a county ordinance prohibiting the employment of 
such an arm for killing birds. 
Judge Ross finds in favor of Mr. Marshall, holding that 
the ordinance prohibiting the use of a magazine gun is 
unconstitutional, on the ground that to forbid the use of 
a repeating gun is virtually to deprive the possessor of 
his property, since a gun is valueless unless it can be 
used; and that this deprivation is unconstitutional, in- 
asmuch as it is not a reasonable exercise of the pohce 
power. "The absolute prohibition of the use of one's own 
property on his own land cannot be held to be a reasonable 
exercise of the police power when regulation will plainly 
attain the end desired." This end, the opinion holds, is to 
limit a person to the killing of twenty-five quail, partridge 
or grouse in any one day. 
Adopting this reasoning as sound, we must also concede 
that swivel guns, nets, snares and other devices may be 
used, so long as the legal limit of game taken shall not 
be exceeded; also with fishing, that in all cases where 
there exist limitations as to the number of fish caught 
the use of nets, jigs, snares and other devices is war- 
ranted for the capture of trout and bass, provided only that 
the fisherman shall keep within the prescribed limits of 
number. 
If then the principles enunciated in this Marin county 
decision shall be held to constitute good law and shall be 
extended in their application, this will be to brush aside 
as unconstitutional all regulations forbidding swivel 
gims, nets, traps and snares where there is a limitation 
of the amount of game to be taken. For instance, in the 
Adirondacks the clauses of the law which forbid hound- 
ing and jacking deer must be held unconstitutional, be- 
cause there is also in the statute a clause which limits the 
number of deer an individual may take in a season; and 
the hunter could employ a hound or a jack light to take 
the two deer the law allows him. 
In like manner applied to fishing this principle would 
make unconstitutional the Maine law against taking trout 
otherwise than by angling, because there is in the law 
also a limitation of the number of trout a person may 
take in a day. In fact, in the great majority of the States 
a large body of the game and fish kws would he swept 
away as the logical carrying out of the reasoning adopted 
by Judge Ross, if his reasoning should be accepted as 
final. We do not believe that it will be accepted as final, 
however, since it appears to us to be based on a fallacy. 
The fundamental error is in the reading of the prohibition 
of magazine arms as intended only to strengthen the 
provision limiting the number of birds lawfully killed in a 
day. We fail to find anything in the statute to warrant 
this assumption. There are two distinct prohibitions. 
One forbids the taking of more than twenty-five birds in a 
day. The other forbids the use of certain implements for 
taking what? The twenty-five birds? No; any birds 
whatever. The two provisions are separate and di-tinct. 
One is not intended to secure the effect of the other. Each 
one stands by itself. 
To sustain the contrary view taken by the Court, it 
would be necessary to interpret the clause. 
Every person who shall take, kill or destroy more than twenty- 
five quail, partridge or grouse in one day, etc., 
as in effect declaring that a person is entitled to twenty- 
five birds in a day, and may take them in any way he can 
get them. If this were the intent of the law, Judge Ross's 
finding as to the further prohibition of a certain style of 
-gun for taking the game would be sustained; for if the 
gunner were by law entitled to twenty-five birds, clearly 
it would not matter how he got them. But the statute for- 
bidding the taking of more than twenty-five birds is not in- 
tended to parcel out the game to the citizens of the county 
and to assert that each shooter is entitled to twenty-five 
birds, fake them how he may. It means in this particu- 
lar case that he may take twenty-five if he can secure 
them by such means and only such means as are legalized 
by the statute. Or to put it in another way, the law says 
to the gunner, you may use only certain appliances, and 
with these certain appliances you may take only so much 
game. 
The f ramers of the Marin ordinance we may assume were 
influenced by some such considerations as these: Using 
single and double guns, the shooters of the county, expert 
and inexpert all together, are capable of killing a certain 
total amount of game. We will put the limit which the 
expert individual may take in a day at twenty-five ; such 
limitation will apply to the expert only; for the inexpert 
no such restriction is required, since their bags will of 
necessity be smaller. By restriction of the most skillful, 
to twenty-five birds in a day, the average killed by all the 
shooters will be less than twenty-five, and the aggregate 
killed by all will be such a reasonable drain on the supply 
as it can stand. But if weapons of greater efficiency than 
double guns were to be used, their employment would in- 
crease the capacity of the inexpert shooters and so would 
increase the execution of the county shooters as a whole. 
We will therefore forbid the use of such weapons. And 
in doing this they were quite within the limits of well 
established and recognized constitutional authority. 
The Marin county ordinance by these two separate and 
distinct prohibitions was designed to operate in two 
separate and distinct ways : first, to limit excessive de- 
struction by expert shooters; second, to prevent the use 
of an arm which by reason of its effectiveness would 
increase the common expertness — that is to say, the de- 
structive capacity — of the shooters as a body. Whatever 
may be the relative efficiency of the repeating shotgun and 
the double-barrel arm (the Marin county testimony was to 
the . effect that the double-barrel was the more effective) 
does not affect the principle involved. If the repeater is 
unduly destructive the Legislature has a constitutional 
right to forbid its employment If the double-barrel gun 
is unduly destructive there is like constitutional warrant 
for prohibiting its use. The lawmakers may forbid either 
one; they may forbid both. Indeed they may go further, 
and acting still within constitutional authority, may, to use 
the language of Judge Ross, prohibit "all but muzzle- 
loading guns, and so on until the pop-gun only is permitted 
to be used." They may go even beyond that and forbid 
the pop-gun. They may forbid absolutely the taking by 
anv means whatever. 
The convention of seven great Powers to consider the 
question of African game supply is the most impressive 
fact in game protection in this . closing year of the 
century. The programme adopted at the London con- 
ference contains many most admirable provisions. Just 
how far the enforcement of the several articles may prove 
to be practicable only time can disclose ; but the situation 
appears tp he om which is full of encouragement. 
