Nov. 24, 1906.] 
SUPPLEMENT TO FOREST AND STREAM. 
821 
cessity and the legality of the propositions 
advocated herein. In order to accentuate the 
principle of Federal control over migratory 
birds and fish of similar habits, I have used 
the word “migratory” in its analogous sense; 
i. e., those things which are transient, roving 
and going from place to place, in contradis¬ 
tinction to those things which are “local” or 
stationary. 
LOCAL. AND MIGRATORY DISEASES. 
When the States were isolated, sparsely _ set¬ 
tled, and business interests largely local, it is 
not strange that all regulations relating to 
public health, so important from the beginning, 
should emanate from a government specially 
charged with the protection of the local inter¬ 
ests of its inhabitants and possessing suffi¬ 
cient means to meet such demand. It was be¬ 
cause public health and sanitation required im¬ 
mediate consideration and action that the 
Slates made prompt provision for the discharge 
of such a manifest duty. On the other hand, 
the Federal government, in its early days, was 
overburdened with debt, its taxable resources 
extremely limited, and its expenditures for 
public purposes kept, so far as possible, with¬ 
in the narrow limits of its administrative ex¬ 
penses. There existing no necessity or de¬ 
mand for Federal legislation upon questions 
of public health, and the States, finding them¬ 
selves entirely able to meet satisfactorily the 
demands made upon them, it therefore came to 
pass that all regulations conservative of health 
were deemed to belong exclusively to the 
States, and for many years it constituted one 
of those numerous State’s rights which were 
accorded each commonwealth, regardless of 
the fact that in the future it might become 
necessary to divide such a responsibility be¬ 
tween the State and the Nation, whereby the 
former would entirely regulate its local, sani¬ 
tary matters, and the National government 
regulate all health matters that were inter¬ 
state or international in their character. When 
finally the United States became a great and 
powerful Nation, its treasury filled to over¬ 
flowing, the duty of expending its income in 
the furtherance of all projects that were 
National in scope became more and more mani¬ 
fest. It is interesting to note certain direc¬ 
tions in which the public money was first dis¬ 
bursed. Leaving aside the millions spent for 
the army and navy, we come to expenditure 
for public buildings, river, harbor and jetty 
improvements, canals, the Pacific railroads, 
pensions, and the like, against which many 
Constitutional arguments were made, and, 
finally, we come to those expenditures and 
regulations connected more particularly with 
the internal affairs of a State. While there 
has never been any trouble in giving a State 
or its citizens therein all the money that car¬ 
ried with it no obligation but the fun of spend¬ 
ing it, there has always existed a jealousy 
whenever the Federal government sought to 
use its means, under its own supervision, for 
the preservation of public health, a subject so 
sacred by prescription, if not actually coming 
under the reserved rights of a State. When 
the Department of Agriculture was created, 
its principal purpose was the furtherance of 
agricultural interests by a scientific study of 
plant and animal life; and as a necessary inci¬ 
dent there! o, were the investigation and abate- 
nient of diseases affecting the animal and plant 
industries. As a result, Congress now has ad¬ 
mitted jurisdiction over those contagious and 
infectious diseases which affect animal and 
plant life. The government’s right to examine 
into the contagious character of the diseases 
affecting domestic animals and prohibit their 
shipment or transportation from State to State 
is purely a police regulation, and as such fre¬ 
quently exercised, for similar purposes, by a 
State. 
But it also has a further meaning, to wit: 
That, in the protection of public welfare, Con¬ 
gress may authorize its agents to pass upon 
and determine what are contagious diseases 
in a given case, and to what extent the gov¬ 
ernment should assert its supreme right to 
suppress the spread of such diseases beyond 
the limits of a State. If such a disease is of a 
“migratory” character, it passes then from the 
jurisdiction of the local authorities to that of 
the Federal. O11 the same line exactly Con¬ 
gress has passed a law prohibiting the impor¬ 
tation into this country of all animals infected 
with communicable diseases, and its inspect¬ 
ors determine this question over the heads of 
the local authorities within a State, which, 
through its citizens, may have made the im¬ 
portation. States that would have regarded 
this supreme, supervisory power with disfavor, 
if applied to matters relating to the health of 
its citizens, were perfectly content to have the 
general government assume jurisdiction over 
contagious diseases injurious to domestic 
animals. But the principle is the same in either 
case. 
The same reasons that would justify Federal 
inspection and quarantine of diseased animals 
naturally, and even more strongly apply to 
those infectious diseases threatening the health 
of mankind, and at last we have had passed by 
Congress an interstate quarantine bill, already 
mentioned, which gives the Federal govern¬ 
ment supreme authority over one deadly form 
of contagious disease—yellow fever—and here 
again, Federal jurisdiction attaches because it 
is a migratory or roving disease, which refuses 
to acknowledge State lines or an allegiance to 
its sovereignty. Local or non-contagious dis¬ 
eases, are properly under the exclusive jurisdic¬ 
tion of the State, while diseases of an epidemic 
character, so destructive to human life, are prop¬ 
erly within the jurisdiction of the Federal gov¬ 
ernment. Wherein is this fallacious? 
LOCAL AND MIGRATORY INSECTS. 
It has been estimated that our farming in¬ 
terests suffer a loss of some seven hundred 
millions of dollars annually from the ravages 
of the boll weevil, the gypsy moth, the Color¬ 
ado beetle, the Russian fly, the codling moth, 
the white scale, and many other pernicious in¬ 
sects too numerous to mention. Congress has, 
from time to time, authorized the expendi¬ 
ture of sums now amounting to millions of 
dollars for the extermination of these pests, 
without making any pretense that it was for 
other than the public welfare, in preventing the 
spread of vagrant insect life, which could not 
safely be left to the States for exclusive action. 
A State, by its indifference or lack of re¬ 
sources, may be wholly lacking in a proper 
system of sanitation; its general health board 
may. be inefficient; its minor local govern¬ 
ments without any sanitary officers; its sewer¬ 
age system may directly pollute the potable 
waters; its regulations of medical practice 
ineffective—yet if all this is true, it is not a 
matter for Federal interference, so long as such 
conditions do not affect the health of those 
residing beyond the limits of such a State. It 
is only when conditions existing within a State 
imperil the health or property rights of the 
country that the Federal authorities have a 
right to intervene. It is concededly one of the 
State’s “rights” to guard or neglect the purely 
domestic welfare of its inhabitants in all local 
matters of health, morals, trade, including of 
course, local fish and game. Would any one 
contend, however, for a moment that, because the 
Staie of Massachusetts, after spending a million 
of its own money in a war upon the gypsy moth, 
at last finds itself unable financially to continue 
such a warfare, the government of the United 
State should sit supinely by and permit the exten¬ 
sion of such insect life throughout the entire coun¬ 
try? Can it be possible that a State, given over to 
the ravages of small-pox, yellow fever, boll 
weevil, German carp, or the gypsy moth, can 
be permitted to incubate and spread such 
plagues because there exists no primary right 
in the Federal government, under its police 
power, to enter such a State and there, through 
its strong arm, stay the spread of such diseases 
and noxious life from State to State? Accord¬ 
ing to Mr. Thompson, the government pos¬ 
sesses no such right; but, as already shown, 
under the laws now in existence, we are exer¬ 
cising just such powers. 
Result: The migratory character of the 
thing is the basis of Federal jurisdiction. 
THE PREDATORY MONGOOSE. 
At times a great principle of law, or rule of 
action, may be best illustrated by a specific case. 
The right of a government to possess a supreme 
control over certain birds and animals may be 
shown in the case of the pestiferous mongoose. 
The history of this animal is one of deadly 
destruction to the material interests of every 
great country, wherever it has gotten a foothold. 
Imported into Australia for the apparently laud¬ 
able purpose of keeping in check wild rabbits, it 
in turn became an infinitely greater plague, 
utterly wiping out all ground breeding birds and 
many of the more valuable smaller varieties of 
game and domestic animals; in Jamaica the 
story was the same, and millions of dollars were 
expended in the effort to check its ravages; in 
Hawaii it became a pest beyond all control. 
Several years ago the Agricultural Department 
learned that two dozen pairs of these animals 
were on their way to California from Hono¬ 
lulu to be used in exterminating the gopher and 
ground squirrels in a limited agricultural por¬ 
tion of California, and in which section no one 
had special concern about the possible spread 
of this animal beyond their place of liberation. 
At this time the character of the mongoose 
was well known to the authorities in Washing 
ton and they instantly realized the great peril 
threatening the entire country. Unfortunately, 
no Federal law was then in existence by which 
the entry of these animals could be stopped, but 
an order nevertheless was immediately sent the 
Custom House officers, at San Francisco, to 
hold up the delivery until the State of Cali¬ 
fornia might interfere. It then appeared that 
this State had no law upon the subject, and it 
was only by moral suasion that these animals 
were destroyed on arrival. Shortly thereafter 
the Lacey Act, which was then in process of 
formulation, had added thereto a section which 
gave the Department of Agriculture the right to 
exclude all harmful animals, and therein spe¬ 
cifically mentioned the mongoose. This was a 
police regulation in the first place, and at the 
same time gave the government control over 
all animals and birds coming into the United 
States. Now, let us suppose that, as a matter 
of fact, this collection of noxious animals had 
gotten into California before the passage of the 
Lacey Act. Would Congress have had a 
sovereign right to pass an act prohibiting the 
breeding and liberation of those animals within 
the State? If not, then this would be the result 
—that the mongoose would spread rapidly from 
county to county in the State of California; that 
it would cross its boundary lines into adjoining 
States, and finally spread throughout the entire 
country, resulting in the eventual destruction 
of much of the bird and animal life, and, to a 
very large extent, the domestic poultry in the 
rural portions of the country, entailing the loss 
of millions of dollars, the destruction of our 
wild game and an outlay, on the part of the 
government, hard to approximate. 
LTpon what rational theory can it be con¬ 
tended that the harboring, within a State, of 
such an animal plague, is a matter of purely 
domestic concern, and in which the National 
government has no right to interfere? Or how 
can it be reconciled with the right of the govern¬ 
ment to prevent the citizens of a State from im¬ 
porting such animals? As I will attempt to 
show later, in the case of German carp, the same 
peril threatens all the public waters of the 
United States if a State is free to liberate with¬ 
in the interstate waters such a fish, which, pos¬ 
sessing all the. destructive characteristics of the 
mongoose, foretells the coming doom of nearly 
all our food and game fish, together with the 
fresh water ducking marshes of the entire conti¬ 
nent. That our government possesses a plenary 
“jurisdiction over every foot of soil within its 
territory” has been decided by the Supreme Court 
in the Debs case, and within this power is the 
primary control of all animals or insect pests 
which by reason of their migratory character are 
destructive to National interests. 
LOCAL AND MIGRATORY BIRDS. 
Originally wild game and fish belonged to him 
who could capture it, for the modern theory that 
