68 
FOREST AND STREAM. 
tJui-y 28, 1900. 
some of the statutes. * * * There are also cases 
where the vaUdity of some particular method of en- 
forcement provided in some of the statutes has been 
drawn in question." (Citing a case from Kansas and one 
from Idaho, with both of which the court disagrees on 
the very point involved.) The court says further: 
■ "While the fundamental principles upon which the com- 
mon property in game rests ha\c undergone no change, 
the development of free instituaons has led to the recog- 
nition of the fact that the power or control lodged in 
the State, resulting from this 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 dis- 
tinguished from the public good. Therefore, for the pur- 
pose of exercising this power, the State, as held by this 
court in Martin vs. Waddell, 41 U. S., 16, Pet. 480, repre- 
sents its ix;oplc, and the ownership is that of the people in 
their united sovereignty. The common ownership, and 
Its resulting responsibility in the State, are thus stated in 
a well-considered opinion of the Supreme Court of Cali- 
fornia : The wild game within a State belongs to the 
people in their collective sovereign capacity. It is not the 
subject of private ownership, except in so far as the people 
may elect to make it so ; and they may, if they see fit, ab- 
solutely prohibit the taking of it, or any traffic or com- 
merce in it, if deemed necessary for its protection or 
preservation or the public good.' Ex parte Maier, supra." 
And the court in the same case quotes with approval, 
and by so doing adopts as its own, the following language 
from Magner vs. People, 97 111., 320: "The ownership 
being in the people of the State, the repository of the 
sovereign authority, and no individual having any prop- 
erty rights to be affected, it necessarilj^ results that the 
Legislature, as the representative of the people of the 
State, may withhold or grant to individuals the right to 
hunt and kill game, or qualify or restrict, as in the opinion 
of its members, will but subserve the public welfare — 
stated in other language, to hunt and kill game — -is a 
boon or privilege granted either expressly or impliedly 
by the sovereign authority, not as a "right inherent in 
each individual, and consequently nothing is taken away 
from the individual when he is denied the privelege at 
stated seasons of hunting and killing game. * * * in 
any view, the question of individual enjoyment is one of 
pulDlic policy and not of private right." 
And the court hi that case cites and relies upon the 
case of Phelps vs. Racey, 60 N. Y., 10, and many other 
cases to the same point. 
The point first mentioned is therefore forever settled— 
that there can be no unqualified, absolute private owner- 
ship in game, and that therefore the act in question was 
a valid law. 
The next point, which must alsp be borne in mind in 
dealing with this subject, is that game taken subject to 
such a law cannot be an article of interstate commerce, at 
least so far as the State enacting the law is concerned, and 
this is so clearlj' and logicallj^ set forth in the opinion of 
the Court in the Geer case already quoted from that 
I want to quote it here and tirge every person who may 
see your paper to read and reread the language care- 
fully, for it will give them the best exposition of the game 
laws as relating to interstate commerce yet announced. 
Here is what the court says : 
"The foregoing analysis of the principles upon which 
alone rests the right of an individual to acquire a quali- 
fied ownership in game, and the power of the State, de- 
duced therefrom, to control such ownership for the 
common benefit, clearly demonstrates the validity of the 
statute of the State of Connecticut here in controvers3\ 
The sole consequence of the provision forbidding the 
transportation of game killed within the State, beyond the 
State, is to confine the use of such game to those who 
own it — the people of the State. The proposition that the 
people of the State may not forbid carrying it beyond 
her limits involves, therefore the contention that a State 
cannot allow its own people the enjoyment of the benefits 
of property belonging to them in common, Avithout at the 
same time permitting the citizens of other States to par- 
ticipate in that which they do not own. It was said in 
the discussion at the bar, although it be conceded that 
the State has an absohite right to control and regulate the 
killing of game as its judgment deems best in the interest 
of its people, inasmuch as the State has been chosen to 
allow the people witliin her borders to take game, to 
dispose of it, and thus cause it to become an object of 
State commerce, as a resulting necessity such property 
has become the subject of interstate commerce, hence 
controlled by the provisions of U. S. Const., Art. i, Sec. 
8. But the errors which this argument involves are 
manifest. It presupposes that where the killing of game 
and its sale within the State are alloAved. it thereby be- 
comes commerce in the legal meaning of that word. In 
view of the authority of the State to affix conditions to 
the killing and sale of game, predicated as is this power 
on the peculiar nature of such property and its common 
ownership by all the citizens of the State, it may well be 
doubted whether commerce is created by an authority 
given by a State to reduce game within its borders to 
pessession, provided such game be not taken, when killed, 
without the jurisdiction of the State. The common 
ownership imparts the right to keep the property if the 
sovereign so chooses, always within its jurisdiction for 
every purpose. The qualification which forbids its re- 
moval from the State necessarily entered into and formed 
part of every transaction on the subject, and deprived 
the mere sale or exchange of these articles of that element 
of freedom of contract and of full ownership which is 
an essential attribute of commerce. Passing, however, as 
we do, the decision of this question, and granting that 
the dealing in game killed within the State, under the 
provision in question, created internal State commerce, it 
does not follow that such internal commerce became 
necessarily the subject matter of interstate commerce and 
therefore under the control of the Constitution of the 
United States. The distinction between internal and 
external commerce and interstate commerce is marked, 
and has always been recognized by this court. In Gibbon 
vs. Ogden, 22 U. S,, 9, Wheat., 194. Mr. Chief Justice 
Marshall said: 
"It is not intended to say that these words comprehend 
that commerce which is completely internal, which is 
parrie4 on between man and man in a State, or between 
parts of the same State, and which does not extend to or 
affect other States. Such a power would be inconvenient 
and is certainly unnecessary. Comprehensive as the 
word "among" is, it may very properly be restricted to 
that commerce which concerns more States than one. The 
phrase is not one which would probably have been 
selected to indicate the completely interior traffic of a 
State, because it is not an apt phrase for that purpose; 
and the enumeration of the particular classes of commerce 
to which the power was to be extended w^ould not have 
been made, had the intention been to extend the power to 
every description. The enumeration presupposes some- 
thing not enumerated; and that something, if in regard 
to the language or the subject of the sentence, must be 
the exclusively internal commerce of the State. The 
genius and character of the whole Government seem to be 
that its action is to be applied to all the external con- 
cerns of the nation, and to those internal concerns which 
affect the States generally, but not to those which are 
completely wathin a particular State, w^hich do not affect 
other States, and with which it is not necessary to inter- 
fere, for the purpose of executing some of tlte general 
powers of the Government. The complete internal com- 
merce of a State, then, may be considered as reserved for 
the State itself." 
So again in the Daniel Ball vs. United States, 77 U. S., 
10 Wall., 564, the court, speaking through Mr. Justice 
Field, said : 
"There is undoubtedly an internal commerce wdiich is 
subject to the control of the States. The power dele- 
gated to Congress is limited to commerce 'among the 
several States,' with foreign nations, and 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 
limits of a State and does not extend to or affect other 
States. ; ' i * i ili 
"The fact that internal commerce may be distinct from 
interstate commerce destroys the whole theory upon 
which the argument of the plaintiff in error proceeds. The 
):>ower of the State to control the killing of and ownership 
in game being admitted, the commerce in game, which the 
State law permitted, was necessarily only internal com- 
merce, since the restriction that it should not become the 
subject of external commerce went along with the grant 
and was part of it. Al! ownership in game killed within 
the State came under this condition, which the State had 
the lawful authority to impose, and no contracts made in 
relation to such property were exempt from the law of 
the State consenting that such contracts be made, pro- 
vided only they were confined to internal and did not 
extend to external commerce." 
A careful reading of this decision will show that one 
important point in regard to game protection is forever 
and finall}' settled, and that is that a State can i^egulate as 
it sees fit the taking of game within its borders and may 
also absolutely prohibit such taking; that in doing so it 
may permit the killing and dealing in game withm the 
borders of the State and at the same time prohibit the 
transportation beyond the State of such game lawfully 
killed or captured therein; and that game redrrced to pos- 
session under such a law as that in question in that case 
does not become an article of interstate commerce at all — 
at least while it is within the borders of the State. The 
Court does not expressly decide what the status of such 
game is after it leaves the borders of the State in which it 
was taken; but what the court says, considered in connec- 
tion with the well-known principles of law and the com- 
ity existing between different States, leaves small reason 
to doubt what the holding of the Court would be in a 
case Avhere that point was before it for decision. I am 
clearly of the opinion that the decision would be, as to 
such game, that it never could become an article of inter- 
-s^tate commerce at all ; and that while the laws of one 
State have no force or effect beyond the borders of the 
State enacting them, still one State might rightfully make 
it an offense to bring game into its borders or to have the 
same in possession, if brought from another State, and 
e_specially if brought there in violation of a law of another 
State. Certain it is that the States, generally speaking, 
can prohibit the sale of game at all within their borders, 
even, I take it, though such game may have come from 
another State, if such regulation is deemed necessary for 
the protection of the game of the State ; and of course if 
the game of a State is not an article of interstate com- 
merce, as it is not in States having laws like those of 
Connecticut, then it is only necessary for the protection 
of game for each State to prohibit transportation of its 
own game beyond its borders and also to prohibit the im- 
portation into the State from another State or the pos- 
session within the State of game unlawfully transported 
from another State. 
I make the broad assertion that game is not nor can it 
become under any circumstances an article of interstate 
commerce, and am satisfied that the Federal Supreme 
Court will so hold whenever the point comes before it for 
decision; but I may assume for the purpose of argument 
only that as soon as game leaves the border of a State, 
although such transportation is unlawful by the law of 
that State, it then becomes an article of interstate com- 
merce. This point the Court does not determine, and it 
IS just here that the Lacey Act is important on this one 
question ; for while that act does not undertake to say that 
game in any case or under any particular circumstances 
is an article of interstate commerce, because Congress 
cannot declare that to be an article of interstate com- 
merce which is not so in fact, it only undertakes to pro- 
hibit traffic therein between the States if it should be 
.subject to the constitutional provision as to interstate 
conunerce. If it is not so subject, then the law does not 
apply, and the law of the State where the game is found 
must apply. As about the sole recourse of the violators 
of the game laws is in this provision of the Constitution 
It will be seen that they are driven to the wall, no mat- 
ter what position thev may take, if the States will but 
enact proper laws. The Lacey bill therefore is only an 
aid to State legislation ; and because of it and of the in- 
terest which Congress has taken in the subject it behooves 
every State to pass such laws as will show that it is the 
intention to give proper protection to game within its 
borders. 
One other question which the Court referred to but 
did not decide because it was unnecessary so to do was 
whether QT TKXt tlie granting by State law of the privilege 
of dealing within the State in game killed therein made 
such game an article of State or internal commerce as 
contradistinguished from interstate commerce; but prac- 
tically the Court did decide that it was not even an arti- 
cle of internal commerce under such conditions — at least 
enough was said to clearly indicate that the Court would 
so hold whenever it had occasion to pass upon the ques- 
tion. However that may be, it is beyond doubt that rf 
the sale of or dealing in game was absolutely prohibited 
by the State, as the Legislature has the right to do, in 
such case game would not be an article of State or inter- 
nal commerce, because an article the dealing in which is 
unlawful cannot be an article of commerce at all, and it 
would be sure to follow from this that under such laws 
it could never become an article of interstate commerce. 
This whole subject of game protection and preserva- 
tion is one primarily for the States to deal with; and 
this must never be forgotten if game is to be protected. 
Congress can aid and supplement such legislation as the 
States may pass, but it cannot do more. 
Joseph B. Thompson, 
[to be concluded.] 
Mt. Tom Then and Now* 
Editor Forest and Stream: 
In your issue of July 21 Mr. C. H. Ames drifts from 
stocking the Adirondacks with moose to making Mt. Tom 
in Massachusetts a wild turkey reservation. It is a happy 
thought. What better place in the New England States 
could we find ? Everything is there now that was there 
100 years ago, but of a second growth. At the base of the 
mountain are the same trout brooks that used to be there; 
they are not so large, but they would be if the forests w^ere 
preserved. There- are the same old ravines and ledges, 
the same old meadows and side hill pastures, but the 
pastures are gradual^ growing up to brush. The trout 
brook is the best brook that I ever knew of for trout to 
grow fast in. About thirty years ago a dain was placed 
across this brook in a narrow gulch, at a point about one- 
half mile before the brook entered the Connecticut River. 
This created a large deep pond of many acres in extent, 
and in two years' time the pond was alive wnth trout of 
from I to 3 pounds weight. In the spring and fall ducks, 
geese and brant made it their stopping place. Wood duck 
in goodly numbers nested there each year, for there was 
large timber with lots of hollow trees along the edge of 
the pond. But all this did not last long. Although the 
water in the pond did not actually overflow any one's 
property, it made some of the adjacent property damper 
than usual in a few places; and that caused law suits, 
which resulted in nothing. But later, dynamite did, and 
the dam was blown up. It would be a small expense to 
put the dam in good condition, and it would not take a 
large fortune to buy the easterly side of Mt. Tom, then 
fence it in, put heavers in the lake and turkeys on the 
itiountain. The trout are there yet, and partridges drum 
and squirrels bark as of yore; and old Mt. Tom .stands 
as a fitting monument of the past. Oftentimes when 1 
take a trip to Hampshire county I make it my business to 
walk along the side of the mountain through the old 
paths where I knew I could get a partridge under a certain 
apple tree when I was a boy; then to go and look in some 
of the holes in the brook wdiere I used to catch trout ; then 
to go and take a drink out of that ice-cold spring where 
we used to keep a cocoanut cup to drink out of. But the 
cup is not there now. and neither am I. 
Pri.nce's Bay, N. V , July 21. 
Game and Fish in the North Woods. 
Penn Yan, N. Y., July i8. — Editor Forest and Stream: 
I have just returned from a few days' trip in the North 
Woods, from Potsdam through to Childwold. the Jourdon. 
a portion of the Raquette, Crooked Pond, Church Pond, 
Round Pond, Killdeer, North Branch of the Grass River. 
I found the trout fishing all that could be desired (with 
reason). The game prospects are looking fine. I never 
before knew them better. I made special efforts to learn to 
that effect. As far as could be learned from the most 
reliable sources, I could only learn of one dead deer being 
found after the deep snow of March. Partridges are 
more plentiful than ever. I saw more broods than for 
years past. The season seems to be very favorable for 
them. 
Some illegal shooting has and is being done, but not so 
much as formerly. There is a growing tendency among 
the residents and woodsmen to a better observance of the 
game laws. 
For sportsmen going into the North Woods, I think 
there will be no better country than the region of the 
Jourdon. Church Pond, Crooked Pond. Foxe's Marsh, 
Hollywood Still Water of the Raquette or the North 
Branch of the Grass. E. P. S. 
Virginia, Game Conditions. 
Richmond, Va., July i8, — According to my reports and 
observations, quail will be more abundant this fall than 
for m,any years. We have had a very open winter and a 
very dry spring, hence few birds died, and the hatching 
and rearing has been under the most favoralale condi- 
tions, so much so that I fear it will prevent our secur- 
ing the necessary reforms in our many county game laws 
which are so confusing to sportsmen. Deer and grouse 
(pheasants) should be as plentiful as ever, and all are 
looking forward to a most pleasant seasorr: 
Franklin Stearns. 
Adirondack Deer. 
Am expecting to take my six weeks" outing in the 
Adirondacks beginning Aug. 20. The shortening of the 
open season will work hardship to many whose vacations 
of necessity terminate Sept. i. Inasmuch as the State 
preserve belongs to the people. I should wish that the 
abbreviation might go to the other end of the season, for 
I ani sure, now that hounding and jacking are outlawed, a 
minimmn of danger would accrue to the deer in August 
bv straight still-hunting, much less than for the "last 
fifteen days of the open season in November. But the 
dee4 is done. ' T, 
