2 Department Circular 202 , U. 5. Dept, of Agriculture. 
RULING OF THE COURT. 
The Court (Hon. Samuel H. Sibley) ; The substance of this charge 
is that the defendant hunted and killed mourning doves, migratory 
birds. That is the language of the indictment, and it is said to be a 
crime against the United States. The statute making it a crime is the 
Act of Congress approved July 3rd, 1918, which prohibits, among 
other things, the hunting or killing of any migratory bird included 
in the terms of a convention between the United States and Great 
Britain for the protection of migratory birds, etc., and then enacts 
that any person, agency, partnership or corporation who shall violate 
the provisions of said convention, that is the Treaty, or of this Act, 
or who shall violate or fail to comply with any regulations made 
pursuant to this Act, shall be guilty of a misdemeanor and shall be 
fined. The complaint here is not of the violation of any regulation 
made by the Secretary of Agriculture, but of a violation of the 
Treaty, and in the first part of the Act it forbids the hunting or kill¬ 
ing of migratory birds protected by the Treaty. The Treaty itself 
provides: “ The closed season on migratory game birds shall be be¬ 
tween March 10th, and September 1st.” Prior to that agreement as 
to the closed season is the agreement that u The High Contracting 
Powers declare that the migratory birds included in the terms of 
this convention shall be as follows:” Then there are three classes, 
first, migratory game birds, second, migratory insectivorous birds, 
and, third, migratory non-game birds. Under the first heading, 
“ Migratory game birds,” a definition is made including in the 
Treaty, by name, a number of species of birds, among which are 
“ pigeons, including doves and wild pigeons.” This is the vital 
part, it seems to me, of the law relied upon to sustain this indictment. 
It is needless to say, of course, that the Treaty, being a solemn 
agreement of the United States made with another power, is to be 
scrupulously observed and fairly interpreted, and faithfully applied 
both by this Government and the courts, and every citizen is involved 
in the faithful upholding of any treaty we make with any foreign 
country. 
The question is whether or not the words of this Treaty, which 
are simply followed by the Act, prohibit the killing, prior to Septem¬ 
ber 1st, of the doves described in this indictment and spoken of in 
this evidence, 
I am of the opinion that the purpose of this Treaty was to deal 
only with migratory birds. I do not think there was any effort to 
protect migratory birds by covering others. That might have been 
a possible power, under the argument made here, but the mention of 
all these birds is in the definition of migratory birds and a part of it. 
The Migratory Bird Treaty Act. 
8 
I have been much interested in the argument that there may be 
distinct varieties of birds within some of these definitions that are 
indisputably non-migratory, and that an attempt to regulate them 
would be in excess of the treaty-making power and an invasion of 
some reserved power of the states. That argument is applied to 
ground doves which, from this evidence, appear never to have been 
anywhere in the neighborhood of Canada, or to mocking birds, which 
are u insectivorous perchers,” but which likewise are not shown ever 
to be found far North. If the case concerned them, it seems to me 
it would present an interesting and perhaps a serious question. But 
this mourning dove mentioned in the indictment and spoken of in 
the evidence as a mourning or turtle dove, does not appear to belong 
to such a distinct variety, so well established to be non-migratory 
as to be comparable with those two. I think what this Treaty means 
to say is this: Our purpose is to deal with migratory birds, but we 
do not want it left up in the air; we don’t want it subject to uncer¬ 
tainties that will inevitably arise, and differences of opinion that 
will exist in various localities; we don’t want hunters or birds under 
uncertainties of that sort, but we will proceed to examine and find 
out and agree as to what kind of birds we are talking about; and 
they mentioned doves. The evidence indicates that there are only 
two living varieties of doves, this mourning dove or turtle dove, and 
the ground dove. If, as contended by the defendant, the ground 
dove ought not to be considered in the Treaty, then it could not have 
meant by “ doves ” anything except the mourning dovfe or turtle 
dove. He is the only dove left that thd makers of it could have 
meant. 
Now it may be that there are individuals or families of doves that 
do not actually migrate, yet this evidence throughout, by every wit¬ 
ness, states that it is impossible to tell a migratory from a nonmigra- 
tory one. You can not, even after killing him, tell which you have 
killed, much less can you tell before you shoot, I think that this 
Treaty plainly states that it is agreed that doves (>vhich certainly 
must have included turtle or mourning doves if it included any) 
are migratory. If it be possible that it could be established that 
there are varieties so clearly non-migratory that they ought not to 
have been included or that they were not included; that can not be 
said of the variety of dove we are dealing with, because he is cer¬ 
tainly migratory in certain parts of the country, because he leaves 
there entirely at certain seasons. He may be non-migratory here, 
because his habits vary unquestionably. He probably resides here to 
some extent all the year around, though nobody can demonstrate that. 
So the case is that the treaty-making power said doves are migra¬ 
tory and this evidence fails to establish that they are not, oi that 
any distinct variety of them is clearly non-migratory. It seems to 
