PbRfeSt AND StR£AM. 
^3S 
This Loon Dodged Twenty Loads of Shot. 
The article in this week's paper, about the loon that 
was killed by a bullet after being, hit by. over a hundred 
No. 6 shot and was apparently none the worse of the 
shot, reminds rne of one glorious June day some thirty 
years ago, on which the writer and a friend went fish- 
ing in White River below Indianapolis. As we drove 
several miles through forest-covered hills, the shotgun 
was taken along to take care of squirrels which might 
offer convenient shots. There was a loon on the river, 
the first one we had ever seen, and, of course, we just 
had to have him. The loon seemed to be about as 
curious about us as we were about him, and swam back 
and forth in front of us at a distance of twenty-five 
to forty yards. As head, neck, shoulders and back 
were exposed, he looked an easy shot, but he wasn't. 
Instead of being killed at the first shot, he was just 
gone. He soon came to the top of the water, but 
after the first shot showed nothing above the water 
but his head and about six inches of neck. 
We shot at him twenty-two times at a distance of 
thirty to forty yards, and when my friend did the 
shooting, I could plainly see that the head and neck 
were gone before the shot struck the water. Had not 
some strategy been used, it is not likely he would 
have been killed at all. While the loon was under 
water my friend hid behind a pile of drift wood, and I, 
provided with a stick about the length of a gun, kept 
in sight, acting as though trying to get a shot. The 
loon presently swam within range of the gun behind 
the drift pile, and that time enough shot hit his head 
and neck to instantly kill him. The above does not 
agree with what Mr. Linkletter tells us about the loon 
he killed, but it is not intended to cast any doubt on 
his statement. It is doubtless a fact that his loon 
could not dodge shot, but mine could. 
O. H. Hampton. 
Bitds in Migration. 
Coming from JPhila^elphia yesterday, I observed a vast 
flight of birds migrating. The hour was about , 5 o'clock 
in the afternoon, with a clear air and nd wind. ; At first 
1 thought the sky was becoming overcast, but on looking 
intently, discovered my mistake. The birds were at a 
great height, and I could not tell what species they were, 
but supposed they were robins. Formed in a dense 
column they stretched toward the south far as the eye 
could see. The train on which I was, was moving at the 
rate of about forty miles an hour, but the birds kept well 
up with it for a time; then suddenly they wheeled, dived, 
and ascended again. As a result of this evolution the 
column lost much of its compactness, and I observed 
several of the broken groups separating themselves com- 
pletely, and taking flight in a different direction. I sup- 
pose this is how the birds scatter themselves over the 
country. It was a most interesting sight and a novel one 
— at least for the writer. Is it not very unusual for birds 
to migrate thus during the daytime? F. M. 
New York, March 16. 
Foxes and Game. 
Editor Forest and Stream: 
A short time ago I sent you pretty positive proof that 
foxes do not harm poultry in certain mountain regions 
at Ticonderoga, New York, during the summer, even 
when the fowls are. allowed to range at will and to roost 
in trees at night. I now have to offer the testimony of a 
trapper and hunter of that town who has lived in the 
vicinity all his life, and has killed and caught hundreds 
of raccoons, skunks and foxes during the fall and winter 
months. He says that it is his belief that very few, if 
any, rufJed grouse, or partridges, as they are called in 
his locality, are killed by Reynard, summer or winter. 
He has occasionally found a few feathers lying on the 
snow as though a partridge had been pounced upon by 
some enemy, but he does not think the foxes did it, be- 
cause there were no tracks of foxes about such places. 
There are many hawks in that country, containing, as it 
does, vast tracts of forest and heavily wooded mountain 
lands, and there are some owls. In addition to the gos- 
hawk, which visits that region in the fall, there is the 
horned owl, the great eagle owl, and the many varieties 
of the hawk family, from the sparrow hawk to the hand- 
some red-tailed bird. A friend personally saw two large 
hawks make repeated attempts to capture some young 
partridges in that locality which were dodging them in 
a field of heavy clover and timothy where they had been 
surprised. The woods are full of small deer mice, which 
may serve as fox food. Peter Flint. 
The Loon^s Flight. 
HoQuiAM, Wash., March i.— Editor Forest and 
Stream: _ I think from reading Mr. Dixmont's descrip- 
tion of his experience with a loon in Minnesota that he 
received from my letter the impression that I thought 
that a loon always flew in a circle in rising from the 
water, but they only do so when they have no room to do 
otherwise. With a lake not more than a hundred yards 
across and land fifty yards high all around it, and tall 
timber on that, they would have no chance to rise, flying 
straight away. There are a great many small lakes in 
Michigan; if they were in New York they would be 
called ponds if they were ten times as large. The loon 
that I refer to is the great northern diver, for I am not 
acquainted with any of the other varieties. 
W. A. Linkletter. 
All communications for Forest and Stream must he 
directed to Forest and Stream Pub. Co., New York, to 
receive attention. We have no other ofRce. 
The Shiras BiU. 
EdiPor Forest, and Stream: 
The correspondence which has been published in your: 
paper recently in relation to the proposed law of Con- 
gress, known as the Shiras Bill, has interested me deeply, : 
as it no doubt has done all those who are concerned in 
the protection of game. 
I am free to say that I favor any and every means 
whereby the game of the country will be effectively pro- 
tected; and while at times in recent yeaxs the slow pro- 
gress of the sentiment in favor of such protection among 
the several; States has been cause for occasional discour- 
agement, on the whole, and taking a comprehensive view 
of the subject, it would seem that there is good cause for 
congratulation. 
Everywhere the feeling is daily growing stronger in 
favor of adequate protection of the game and fish of the 
country. 
Personally I would be glad tO' see the entire matter of 
this protection placed with the Federal Government if 
laws to that end could be effectively administered; but I 
fear that without a very elaborate and costly equipment 
anjr laws that Congress may pass, assuming them to be 
valid, would be incapable of proper enforcement within 
the States ; at least from an economic standpoint. It 
would require such elaborate machinery and the employ- 
ment of so many persons, that no Congress would 
assume the responsibility of appropriating the money 
necessary to carry on such work. The expense of suc- 
cessfully executing such plans as are outlined in the bills 
introduced by Mr. Shiras for the protection of game and 
fish, would be impossible from a merely economic stand- 
point. If such laws were enacted by Congress, and if 
they were valid, their existence upon the statute books 
would serve to make the State authorities lax and in- 
different in the matter of game and fish protection; and 
thus the whole subject would receive a setback which 
years of effort would scarcely remedy. 
My impression is that the laws proposed by Mr. Shiras 
would be unconstitutional. It is an old-fashioned notion, 
but one which has been repeatedly declared by such 
respectable legal authorities as Chief Justice Marshall, 
Justice Story, and other eminent expounders of the 
Federal Constitution, that that instrument is one of dele- 
gated powers ; and that all powers not expressly given or 
necessarily inferred from those given, are reserved to the 
people of the several States. Among these powers so 
reserved are the powers to regulate personal and property 
rights among their people; the right to pass and enforce 
what are called police regulations, among the latter being 
the right to enact and enforce laws for the protection 
of game and fish. 
It has been already clearly stated, it seems to me, under 
the decisions of the Supreme Court of the United States 
as well as by the decisions of the highest courts of the 
various States, that the game of a State belongs to the 
people of the States in their collective capacity. This 
seems to me to be of common knowledge; and it is the 
foundation upon which the validity of all game laws rests. 
In addition to this I will quote the language of the 
Supreme Court of the United States in the case of Law- 
ton vs. Steele, 152 U. S., page 133, as to laws for the pro- 
tection of fish : "It is within the power of a State to 
preserve from extinction fisheries in waters within its 
jurisdiction by prohibiting exhaustive methods of fishing, 
or the use of such destructive instruments as are likely 
to result in the extermination of the young as well as the 
old fish." 
The case referred to arose in Jefferson county, New 
York, on the Black Bay River; and in the case of Smith 
vs. Maryland, i8 How. (U. S.), page 71, the same court 
^id, "that the State had a right to protect its fisheries 
in Chesapeake Bay_ by making it unlawful to take or 
capture oysters - 'by- ■ certain means determined by the 
Legislature to be harmful." 
The same court said in regard to this police power, in 
the case of^L. & N. R. R. Co. vs. Kentucky, 161 U. S., 
page 677 : "What is contrary to public policy or inimical 
to the public interest is subject to the police power of 
the State, and is within legislative control." 
Cases might be cited without end, almost, illustrative 
of this subject; but to go further in this direction seems 
wholly unnecessary. 
There are, however, certain branches of legislation, 
certain attributes of government, wherein the Federal 
authority is supreme /whenever it desires to assume the 
authority; and there are still others the authority to 
enact laws as to, whicli. is concurrent in the Federal and 
State governmeats. Are the subjects of the proposed 
legislation within either of these? I cannot be satisfied 
from what has been-said by Mr. Shiras that they are so. 
Under what head can it be assumed or asserted that 
Congress has power to enact and enforce laws for the 
protection of migratory game birds? Not under the 
'•general welfare" clause of the Federal Constitution, be- 
cause that has only to do with revenue. Not under the 
power to regulate commerce among the several States, 
large and comprehensive as such power is, for the protec- 
tion of game can scarcely be deemed a regulation of 
commerce among the several States. Not merely because 
the birds are migratory, for all game is such to "some ex- 
tent; and from its very nature and because of its wild 
state is incapable of individual ownership, and is thus 
owned, as has been repeatedly declared, by all the people 
ot the States in their collective capacity. Indeed, as 
your editor knows, I have always contended that wild 
animals dead or alive cannot be the subject of commerce 
at all. 
As to fish in navigable waters, there is no more reason 
to assume authority of Congress than in the case of 
game. Everyone knows that the civil and criminal juris- 
diction of the several States extends— indeed, for the 
peace and good order of society, it must ever extend- 
to all the lands and waters within the limits of the several 
States ; and it is immaterial that the waters are navigable. 
This does not, of course, apply to lands owned by the 
i^ederal Government within the borders of the States, 
such as post-office and custom house sites and military 
reservations. Upon these the Federal laws are supreme 
Assuming, however, that a valid law might be enaC 
by Congress on either or both of these subjects, I t 
that the law as embodied in the Shiras Bill is in'vaF 
the reason that it does not declare or define any c/ 
Its punishment, but undertakes to leave these to' 
ecutive branch of the Government. Congress, has' 
under the Constitution or otherwise to delegate - 
to make laws to any branch of the GoTexnment 
it is true, as had been done in several instances] 
to a department of ■ the Government the autfi 
adopt and enforce regulation to carry into effe 
enacted _ by Congress, where these do not invoh 
declaration of what shall be deemed crimes or n- 
meanors or fix their punishment. The latter Con- 
alone can do. 
If Mr. Shiras will read the cases of Merritt vs Jo 
106 U. S., 446; and U. S. vs. Eaton, 144 U. S 677'' 
will see clearly, I think, that if these laws are to be 'up 
held at all they must be so framed as to expressly de- 
clare what shall be deemed erimes or misdemeanors and 
fix the punishment for violations thereof. There are no 
common law offenses against the United States ; nor can 
there be any crime unless Congress so declares in ex- 
press terms ; and Congress alone can regulate the pun- 
ishment for violations of laws passed by that body 
J<EW York. JOSEPH B. THOMPSON. 
Death of CoL Enos M. Sto' 
Boston/ March 18.— Editor Forest and Strea 
death of Col. Enos M. Stoddard, of Marshfiel 
Massachusetts Fish and Game Protective As' 
lost one of its most faithful and devoted r ' 
Satuitiay morning, March 11, he was sud . 
with apoiplexy. He was unable to speak ■ 
passed away at 5 P. M. the following day 
was born m Ledyard, Conn., in 1824. 
Lo.ston, as a young man, he engaged in . 
m which he amassed a handsome fortur • - ' 
twenty years he has lived on his fa 
several hundred acres and managed by 
his deposition and temperament Mr 
accomplished entertainer,, and he of< 
string is always' out for all my friends ' 
whabmight almost be called "a craze' 
Ihe writer has heard him talk by th( 
with all the charm and enthusiasm 
many trips he made to Nova So 
(Maine), Currituck and other 
Among his companions on these 
Nathan Holbrook, Noah Curtis ? 
of Somerville. Mr. Holbrook d 
Curtis a few months since, ar 
ing. For years Mr. Stoddard 
mg of the Association. He 
nual dinner in February, ar 
never enjoyed an evening 1 
heart the cause for which 
was always an active won 
of protection. His naturau 
bmed with his devotion to outt 
kept him_ in a state of perennia. 
last. His two most promine"+ ✓ ' 
and generosity. I believe ' 
rived from aiding pp- 
and this he wa^ - 
tious way. O*- 
a private 
to pay ' 
who' 
/en 
■ A 
'C. 
his 
Sto, 
r ^°Ur it, 
present 
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rat 
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hon 
