Mabch n, 1905.] 
FOREST^ AND STREAM. 
19S 
■iB thfi collier mho annually burns his thousands of 
bushels of charcoal/ have some notions about these 
things that do not exactly harmonize with the claims of 
the scientist in his laboratory, and it belongs to the 
latter to investigate and explain the apparent discrepan- 
cies that exist. The old i^mev, as he covers up the° 
half-burnt brands with the burning embers or reinforces 
the bed with a stick of hard wood, almost as sure of 
fire in the morning as he is of sunrise, is an experi- 
menter in a practical way, and his conclusions are 
worthy of consideration. The housemother, too, some- 
times takes up this job, if the husband lacks in forc'e 
and ingenuity, and becomes a true vestal to keep the 
fire alive on the family altar. Such a one was the 
good wife wdio, when the old curmudgeon tested her 
temper by bringing all crooked and knotted wood for 
the kitchen fire; as deftly arranged it about her pots and 
ketles and the flames wrapped around them, she called 
his attention to how nicely they fitted their purpose, and 
pleased her. She was a true philosopher, upon whose 
hearthstone the fire would never smoke, grow dim, 
or expire. T. S. Gold. 
The Cofbin Bttffalo* 
Boston, March s.— Editor Forest and Stream: Those 
who visited Fanueil Hall Market, in Boston, this week 
saw the carcass of "McKinley," the monarch buffalo of 
the Corbin preserve in New Hampshire, on sale at 35 
cents per pound. The salesman explained that this splen- 
did bull specimen of a fast declining race became so un- 
manageable and dangerous that it was found necessary to 
shoot him. 
What a pity! One wonders if it was the confinement 
which rendered this noble animal dangerous, or the lack 
of knowledge as to the ordinary care which nature 
furnishes for its property and paternal usefulness. With 
so few of its species in existence, it was sacrifice and 
sacrilege to kill this animal. Are there no- ranges where 
it could have been given the freedom of its forebears, 
that k, with its kind, could be safe from the fostering care 
of civilized man's efforts to improve on nature with the 
aid of a wire-fenced preserve? One's heart strings are 
pulled hard at the contemplation of the end of this species, 
which seems sure in the East, as there is not the natural 
food or environment for its propagation in any State east 
of the Mississippi. ■ A Boston Sportsman. 
Mid-Wmter Htimmmgbffds* 
Editor Forest and Stream: 
Do hummingbirds nest in February? The affirmative 
is made obvious by an instance within arm's reach; for 
close by in a garden there is a diminutive hummingbirds' 
nest with three little eggs in it, which were there on Feb- 
ruaiy 10. The parent birds are sitting, and the female 
comes many times a day to our yard to feed on the blooms 
of the (?), which I inclose. Strange to say, I have not 
seen a male feeding yet. Does he occupy the female's 
place while she is absent, or does he sit and fast while 
she gathers honey all the day? 
The inclosed is a tree shrub which is generally trained 
agamst the side of a building and grows some 15 feet 
high. I find no one to tell me the name of it, although 
It IS not uncommon. Charles Hallock. 
[The blossom inclosed for determination is that of 
Tecoma capensis, a member of the Bignonia family.] 
Federal Protection of Game. 
Editor Forest and Stream: 
I have read with much interest the article by Mr. 
Shiras in Forest and Stream of the i8th inst. in rela- 
tion to Federal protection of game, which seems to me 
to be mostly directed to the popular ear, and to the 
question that the power of the Federal Government ought 
to extend to such protection rather than that it docs. 
While his article goes somewhat into detail on minor 
differences between us on the merits of his bill, as well 
as into criticisms, some fair and some, I think, not en- 
tirely fair as to my position, I take it that further dis- 
cussion of these minor matters will not interest the pub- 
lic, and will try to ascertain and confine myself to the 
main issue between us. 
He makes the following statement, (the italics being 
mine) : ' 
"It is here that Judge Beaman and myself part com- 
pany on the question of State ownership of game and 
fish, and it is at this juncture that it becomes my duty 
to show, if I can, that the right of the nation to the con- 
trol of its migratory game birds and migratory fish for 
the benefit . of the people of the entire United States is 
just as clear and just as righteous as is the claim of the 
State to the control of the non-migratory species of game 
and fish for the benefit of the citizens within its own 
borders." 
Again he says : 
"The bill gives the Government control of the shooting 
seasons, and puts the migrants in the 'custody' of the 
country at large whenever they tarry long enough to need 
our protection. A very different thing from a declaration 
01 ownership, though, of course, there are some varieties 
of migratory birds which live wholly within the con- 
fines of the United States, and which kind we, doubtless, 
could declare an ownership therein which would be just 
as tangible as in the case of local birds within the 
State." 
Just what he bases the Federal jurisdiction on is not 
entirely clear to me; but I take it that he will scarcely 
contend that the Federal Government can control the 
"shooting seasons" on private lands if the States at the 
same time retain the ownership of the game in question, 
or that he would rest his contention on that if he can 
make "just as clear" the Federal right to the control of 
migratory game as is the State right of control of that 
which is non-migratory, which latter he concedes in the 
following language: 
"To me the proposition is a simple one, that game hav- 
ing its permanent habitat within the State — like grouse, 
quail, wild turkey, etc. — should be controlled by the State 
laws, and any Federal interference in such a case would 
be utterly wrong in morals and in legal principles." 
He thus, in effect, states what he regards as the test of 
jurisdiction, namely, that the animal whose migration is 
not interstate is under State protection solely, while the 
one whose migration is interstate is under Federal pro- 
tection solely. 
As one reason why this should be, or is, so, he states 
as a "general maxim of law that possession is essential 
to the ownership of personal property, or that such prop- 
erty is so subject to control that it can be reduced to 
possession, or so brought within the sphere of action as 
to amount to a practical dominion thereover." 
Referring then to a flock of geese passing over 
Colorado four miles high (which at that height, howevei-, 
would need no protection), he states that ownership of 
these geese must in such case rest on the sole fact that 
they are within the State boundaries. 
I need take no issue on this proposition, as the rights 
of the owner of a mere town lot extend from the center 
of the earth to the sky, and even to the sun itself, to 
the extent that no other person can lawfully shut off the 
light by any structure directly over the land owned. 
But does not the same argument which denies the 
State ownership and control of geese, also deny a similar 
right of control by the Federal Government, in that 
neither has actual physical control of birds in flight 
whether it be high or low? 
Mr. Shiras misstates my position when he assumes that 
the State statutes declaring the game within a State to be 
the property of the State is the origin or foundation of 
such property right, and that I say "in effect that such 
statutes end the matter of Federal custody of migratory 
game birds." 
These statutes are merely confirmatory of what has 
been the common law for a hundred years or more, and 
\re put into the game statutes of the States more for the 
information of laymen and government of inferior courts 
than for any other purpose, and I have never claimed 
that these statutes had any real effect on the status of 
the game. 
In Geer vs. Connecticut, the leading game case in this 
country, the Supreme Court of the United States says: 
"Undoubtedly this attribute of government to control 
the taking of animals feres natures, which was thus 
recognized and enforced by the common law of England, 
was vested in the colonial governments, where not denied 
by their charters, or in conflict with grants of the royal 
prerogative. It is also certain that the power which the 
colonies thus possessed passed to the States widi the 
separation from the mother country, and remains in them 
at the present day, in so far as its exercise may. be not 
incompatible with, or restrained by, the rights conveyed 
to the Federal Government by the Constitution." 
This ownership to that same extent must be in every 
State of the Union, as each was admitted (except as to 
the ownership of public lands, etc.) "upon an equal foot- 
ing with the original States in all respects whatsoever." 
And this doctrine Mr. Shiras concedes as to non- 
migratory game in the language I have before quoted. 
It will not, I assume, be questioned by anyone that 
as between Germany, France and Spain (or any other 
independent nations) there exists no such comity, legal 
or otherwise, as would entitle one to demand of the other 
that it should not control the game birds that pass into 
it in course of migration between the Baltic and 
Mediterranean Seas. > 
Is there, then, under the doctrine of the Geer case any 
escape from the conclusion that each State of this 
Union has, the same as any independent nation, Ihe 
sovereign control of all game, migratory or otherwise, 
so long as it is within its boundaries, unless that right 
has been surrendered by the terms of the Federal 
Constitution? 
There has been thus surrendered the control of inter- 
state commerce, navigation, etc., but nowhere in express 
terms has the control of the game been referred to. 
In_ the : Geer case it was claimed that the State law 
prohibiting the taking of game out of Connecticut which 
had been lawfully killed in that State was an inter- 
ference with interstate commerce, but the Court held 
otherwise, and the language above quoted from that case 
.implies in the strongest terms that the right of State 
control as to^ game was not "incompatible with or 
restrained by the rights conveyed to the Federal Govern- 
ment by the Constitution." 
The migratory woodcock was one of the birds in ques- 
tion in that case, although no distinction was claimed or 
made on that account. 
The only definite suggestion of Federal constitutional 
power over migratory game thus far coming to my 
notice is, that under that clause of the Constitution giving 
Congress power to "provide for the common defense and 
general welfare of the United States," it may legislate 
on migratory game, and if I understand Mr. Shiras' 
position, it is his sole contention that the migratory 
character of the game must be the test of Federal juris- 
diction. It seems to me that the difficulties in the appli- 
cation of this doctrine are insurmountable. 
In Western Colorado the summer range of the deer 
is in the high mountains. Every fall the majority of 
them migrate to regions of less altitude, one hundred 
miles or more to the west, large numbers going into 
Utah, returning in the springy to their summer homes. 
The same is true as to Wyoming, and in fact all of the , 
Rocky Mountain States, the migration being between 
varying altitudes, east and west, as the case may be, and 
the nearer the State lines are to the high ranges the 
greater the number that pass from one State into another. 
Thousands of ducks stay their northern flight in Colo- 
rado and other inland States and breed there, while 
others go on to British Columbia and elsewhere. Most 
of our song and insectivorous birds are also migratory. 
The trout of the States which embrace the Continental 
Divide move down the streams to the deep water to win- 
ter, often in adjoining States. In the sea, the tarpon, 
tuna and other big coast fishes winter at Tampico, 
Mexico and the Gulf of California, but summer on the 
Atlantic Coast, in Aransas Pass, Texas, and on the 
Pacific Coast ; and the salmon go back and forth from the 
sea to the headwaters of the rivers in several different 
States. 
So that the question of migration is, in most cases, 
one of degree merely, and a permanent State habitat de- 
pends much on the size of the State, or the proximity of 
a State line to the summer home and breeding ground 
of the animal in question, and if it is to be the test of 
Federal jurisdiction, the limit or dividing line between 
State and Federal jurisdiction will be so indefinite that 
the personal habits of each animal will have to be in- 
vestigated to determine whether it is entitled to fly the 
Stars and Stripes or the less imposing standard of a 
State. 
It is not the distance traveled by an animal after cross- 
ing a State line that is the test of migration, but the fact 
of crossing. 
I' can see also that many of the inland States might get 
the worst of it in case shooting was prohibited during 
the migratory period, as they would get little shooting 
except at the birds which stopped in those States to breed, 
although I believe the proposition is to prohibit spring 
shooting only, which would protect only on the north- 
ward flight. This would, in many places, however, pre- 
vent their getting any canvasbacks or redheads, as they 
breed far north and do not usually stop on their south- 
ward flight, except at night, and not always then. I 
imagine that some opposition would come from repre- 
sentatives of such States, and that they might plausibly 
contend that such a law did not promote the "general 
welfere" of all the States. 
The idea of the proprietorship of a State in the game 
within its boundaries has, on account of the transitory 
character of its stay, given many people a great deal of 
trouble, but it is really no more difficult to apply than 
that of the. citizenship, of people or the taxation of per- 
sonalty, both of which are quite as transitory as the 
game._ I think this proprietorship has become so firmly 
established by such a multitude of decisions — indeed, I 
believe it has never been judicially denied — that even the 
"general welfare" clause of the Constitution cannot be 
used to overthrow it, for, if it can, it would seem that no 
sovereign right of a State can stand against it. 
If and when aeriak navigation shall come, a murder be 
committed on an air ship bound from New York to San 
Francisco, and four miles high, can there be any ques- 
tion of the jurisdiction to try and punish the offender in 
the courts of the State over which the vessel was at the 
time, notwithstanding he may never have set foot on its 
soil ? 
_ Some enthusiastic patriot has suggested in the discus- 
sion of this bill that State sovereignty did not survive the 
Civil War; but that is too radical a view. I will go to 
any reasonable limit in favor of Federal protection of 
game, but it will not do to assume that an unconstitu- 
tional game law will stand, as the dealers in game are 
strong and will not give up until they are beaten in the 
courts, 
. As I stated in a former article, there can be no doubt 
of the power of the Federal Government to control the 
occupancy and use of the public domain, wherever situ- 
ated, hence no doubt of the power of Congress to pro- 
hibit ox regulate by law the entrance upon the public 
domain for the purpose of hunting. 
The same principle is thus involved as is involved in 
the_ unquestionable right of any owner of land to pro- 
hibit others from coming at any time on his land to hunt 
or hunting thereon, ^vhile permitting them to enter it for 
other purposes ; and notwithstanding the State laws may 
give the right to every one to hunt at particular seasons, 
such right to hunt confers no right to trespass on an- 
other's land for that purpose. 
The distinction between such a prohibition and one 
based on the protection of game alone is obvious. 
Mr. Shiras and I agree perfectly on the desirability 
v'of Federal game protection to the utmost extent that it 
can lawfully go ; our only difference being as to the basis 
of procedure and the extent; he basing the right on the 
migratory character of the animals and limiting the ex- 
tent to such, animals, while I base the right on the owner- 
ship and right of control of the land and water on or in 
which the animals for the time being are, and extend it 
tc all game quadrupeds, birds and fish. 
I have endeavored to treat the question not captiously, 
but fairly, and to point out what seem to me to be objec- 
tions and difficulties in the way of his plan. 
The proposed establishment of forest reserves as game 
preserves is too narrow even to protect the big game of 
the West, except in its summer range. In winter it 
ranges far ht\ow the alUitudes of the forest reserves, yet 
nearly always within the public lands. 
I suggest a Federal law regulating the entrance for 
hunting or fishing upon the public domain so compre- 
hensive that it will cover all the public lands, forest and 
Indian reservations, coast lands, navigable streams and 
inland waters, and the waters of bays, inlets and coasts; 
