4 Department Circular 202 , U. S. Dept, of Agriculture. 
me clearly that it is the duty of the court to s&y and find that the 
effect of the Treaty, ratified by the Senate and backed by this Act of 
Congress, and then reinforced by the interpretation of the Secretary 
of Agriculture, who was the executive officer selected to enforce it, 
is to say expressly that the mourning cloves of Georgia are migratory. 
That being true, the question raised can not be heard in any court 
before a jury. I can see that this evidence, taken as a whole, may 
show that there may be a doubt as to whether mourning doves killed 
in Georgia have migrated or not. That is as far as it can go. Then, 
if that is in dispute, can it be said that no legislative power exists to 
prohibit their killing? To illustrate what is in my mind, if the 
Legislature of Georgia, in an attempt to keep down the boll weevil, 
should legislate against the killing of quail,—I don't know whether 
quail are insectivorous or not,—I know they eat grain and I think 
they eat insects,—but suppose a man were to come into court and say 
“ my quail are not that sort, they clonk eat insects, in fact they never 
saw a boll weevil, and I know my quail don’t eat insects.” That is 
the very point that the Legislature has settled, though, and it does 
not lie in the mouth of any citizen to raise the issue. And I think 
this Treaty is almost in that condition, except that there might be 
limits to the treaty-making power that are not on the Georgia Legis¬ 
lature. But I do not think those limits appear to be so clearly trans¬ 
gressed by the Treaty here as to make this a question for a jury. I 
think it will have to be treated, under the evidence here as to turtle 
or mourning doves in this country, as being a matter established by 
law that they are migratory and can not be killed contrary to the 
provisions of this Treaty and of the Act of Congress and the regu¬ 
lations of the Secretary of Agriculture. 
Entertaining that view, gentlemen, I do not think there is any 
issue that can be submitted to the jury here except the single one of 
whether or not the defendant did hunt or kill mourning doves. If 
he did, then that they are migratory birds, as alleged in the indict¬ 
ment, follows as a matter of law, and the only question of fact that 
we have here in the case is whether or not the defendant, prior to 
September 1st, or on the date named in this indictment, killed 
mourning doves or hunted them. 
CHARGE TO THE JURY. 
The Court : Gentlemen of the Jury, this indictment has three 
counts in it, charging the defendant with hunting, killing, and pos¬ 
sessing, mourning doves, migratory birds, contrary to the Act of 
Congress and Treaty made between the United States and the King¬ 
dom of Great Britain forbidding the killing of them prior to Septem-* 
ber 1st, or between March 10th and September 1st. He pleads not 
guilty to the charge, and that is the issue you are to try. 
The Migratory Bird Treaty Act. 
5 
The fact is that in 1916, the United States, through the President 
and the Senate, acting in conformity with the Constitution, and of 
course by the consent of the States that made the Constitution, 
negotiated a treaty and agreement with Great Britain whereby cer¬ 
tain matters affecting the migration of birds between Canada and the 
United States were to be settled and determined by agreement rather 
than in any other way. The making of these agreements with foreign 
nations is left, by the laws of this Union, to the President and the 
Senate. No state of this Union has any right to make any agree¬ 
ment whatever with any foreign country, because if there is any 
dispute or any fighting with a foreign country the United States 
has to clo it, under the Constitution, and not the states. And with 
the purpose largely of avoiding disputes and disagreements and 
fights, the whole matter of dealing with them by treaties has been 
left to the President to negotiate the agreement and to the Senate 
to ratify and confirm, and after that it becomes binding and a part 
of the supreme law of this country; higher than the State laws; it 
is as high as the Acts of Congress and a part of the supreme law of 
the land. 
Now in this matter a treaty was made in 1916, between Great 
Britain and the United States, and that agreement was that from 
March 10th to September 1st, there should be no killing in either 
country or any destruction by their citizens of various birds that 
were described therein as migratory birds. But the agreement went 
further than that and undertook to settle what were to be considered 
as migratory birds both in Canada and in the United States. Under 
this Treaty, among the birds that they agreed to consider migratory 
birds were doves, with no description added. Just the plain word 
a doves.” Each of the parties agreed that their legislatures should 
enact laws that would enforce and carry out all these agreements 
in each of the two countries, and Congress did enact a law making 
it a misdemeanor, punishable by a fine, for any person to do any act 
in contravention of this Treaty. And that brings you to the charge 
made here, that this defendant, in contravention of that Act and of 
that Treaty, did, in August, which of course was prior to September 
1 st, kill cloves, which are described as mourning doves. The only 
issue made in the case, after the ruling I have made as to what the 
law is, is whether or not you are satisfied beyond a reasonable doubt 
that he killed mourning doves prior to September 1st, or in August 
as it is charged in this indictment. If he did, then I charge you 
as a matter of law, by which I am bound and you are bound, that 
they are migratory birds. You need not consider the question 
whether or not they actually went out of Georgia, or were raised in 
Georgia, or whether they came from Canada or anywhere else at all. 
If they were mourning doves, they were migratory birds, as settled 
