822 
SUPPLEMENT TO FOREST AND STREAM. 
[Nov. 24, 1906. 
a government had a title thereto, as trustees 
for its citizens, had not yet been devised. As 
game decreased in the more populous States, 
its preservation in the breeding season naturally 
followed, but, without exception, its early pro¬ 
hibitions applied wholly to local game; the quail, 
grouse, wild turkey, mating, nesting and rearing 
their young broods, and remaining within the 
borders of the State, were unmolested during 
the general period of reproduction; while, on 
the other hand, migratory birds, such as ducks, 
geese, brant, swans, snipe and the wild pigeon, were 
not protected at all for nearly one hundred 
years in the State in which they did not breed, 
although in the case of the wild pigeon the 
slaughter was particularly ruthless during the 
nesting period, because these unfortunate birds 
happened to spend a part of the year north or 
south of their breeding grounds, and hence were 
killed and netted by the millions in the very 
forests in which every tree contained the eggs 
and half grown young of the slaughtered parents. 
The fact that these game birds attempted to 
raise several broods a year, in different lo¬ 
calities, only doubled the opportunity for whole¬ 
sale destruction. 
The ideas that once prevailed in regard to 
migratory game birds were largely based upon 
ignorance—an explanation that can no longer 
palliate their unreasonable destruction to-day. 
The following extract from an Ohio Senate 
Committee’s report in 1857, recommending the 
passage of a law protecting local game birds, is 
most impressive: 
“The passenger pigeon needs no protection. Wonder¬ 
fully prolific, having the vast forests of the north as its 
breeding grounds, traveling hundreds of miles in search 
of food, it is here to-day and elsewhere to-morrow, and 
no ordinary destruction can lessen them or be missed 
from the myriads that are yearly produced.” 
In just twenty-five years after this recommen¬ 
dation this bird, which existed in countless mil¬ 
lions, became totally extinct, because it did need 
protection of the most urgent kind. Far from 
being a prolific bird (laying but one or two eggs), 
it is doubtful, under the condition that prevailed 
at the breeding grounds, if one bird in a dozen 
came to maturity, in striking contrast to the quail 
and grouse with their well protected broods of 
a dozen or more. Again the report says: 
“The snipe needs no protection. It does not breed in 
Ohio, but merely tarries a while in its migration to the 
breeding grounds in the extreme north, 'the snipe, too, 
like the pigeon, will take care of itself, and its yearly 
numbers cannot be materially lessened by the gun." 
Just think of it—these birds “will take care of 
themselves” with the entire country continually 
at war with them! Certain varieties of snipe are 
now extinct, and the remainder but a straggling- 
remnant, still being shot ten months in the year 
and their doom sealed unless the Federal govern¬ 
ment steps in. Can any one doubt that if the 
passenger pigeon had been a stationary or local 
game bird it would have been protected in, at 
least, the breeding period, and that it would be 
extant to-day? Yet the same selfish conditions 
prevail to-day in many of the States where the 
migratory flight occurs. When the market hun¬ 
ters are able, on such occasions, to make a hun¬ 
dred dollars a day, it often happens that the 
minor local authorities, either acting in a mer¬ 
cenary collusion, or for political or personal rea¬ 
sons, are so indifferent that every possible method 
of destruction is employed, by night and by day, 
in killing the more valuable of these game birds, 
as is natural, in a trade wherein killing is the 
necessary means of converting ducks into dollars. 
Those who may think that migratory game birds 
are getting, or ever will get, any adequate pro¬ 
tection under the State laws are possessed of a 
serious delusion. The ordinary migratory game 
bird is killed legally or illegally from eight to 
ten months each year, while the quail, the grouse 
and turkey have an open season averaging from 
a month to. six weeks, and sometimes such birds 
are protected by the States for a period of from 
two to five years. And the mere difference in 
the close season, or in the more effectual en¬ 
forcement of the laws, in the case of local birds, 
is not the most vital reasons for Federal pro¬ 
tection. Our geese, brant, swans, woodcock, 
snipe and most varieties of duck are incapable 
of restoration by the means now employed to 
replenish the native game when it becomes re¬ 
duced or exterminated within a certain area. A 
State may have permitted the complete destruc¬ 
tion of its quail, and yet later, by the aid of legis¬ 
lative appropriations, or by the liberality of its 
local sportsmen, is able to restore them in their 
usual numbers. The deer may have disappeared 
for generations, and yet become plentiful by im¬ 
portation: trout streams may be barren for half 
a century and again be teeming with those flash¬ 
ing forms of silver and red. But not so with the 
brant, the sickle billed curlew, the wood duck, 
the swan, or the sandhill crane. Should condi¬ 
tions permit their extermination at one or more 
points in the line of migratory flight, they are 
gone forever. As pointed out in a previous 
article some of these migratory birds are now 
entirely extinct, and others from the fact that 
they are only found on the Atlantic coast, and 
that during the spring and fall migrations, must 
become extinct whenever any State, on this nar¬ 
row avenue of flight, continues to permit the 
unrestricted killing of those varieties, whose 
growing scarcity only serves to make a more 
attractive target to a sufficiently large class of 
so-called sportsmen, who will crowd the shores, 
eager to slay the remnant of any rare bird, en 
route to the breeding grounds in the far north. 
The same cupidity or carelessness which leads 
one State to encourage the divorce industry, or 
charter predatory corporations, will be much 
stronger in the case of wild fowl, whose grow¬ 
ing scarcity becomes a selfish cause for their 
destruction rather than affording, as it ought, 
a reason for their careful preservation. 
Having seen that the Federal government, in 
many instances, has obtained complete jurisdic¬ 
tion over a class of subjects heretofore exclu¬ 
sively within that of the State, or which, from 
the absence of any demand, had never been 
brought within a legislative action of either, we 
will now consider more particularly, in its legal 
aspects, a subject toward which I have endea¬ 
vored to apply most of the preceding discussion, 
in the belief that the proposition would rest 
upon such a well defined and accepted mode of 
Congressional procedure that the burden of ad¬ 
vancing an entirely nezv theory of legislative 
power would be avoided and, instead, it would 
only be necessary to urge a further application 
of a power already in existence. 
The first thought, possibly, that will strike the 
casual reader, in my efforts, by analogy, to apply 
that rule to migratory wild fowl which Congress 
has already done toward those epidemic diseases, 
noxious insects, infected live stock, perambula¬ 
ting corporations and the like, will be that in all 
the cases cited, the regulatory powers of Con¬ 
gress have been exerted toward the extermina¬ 
tion, suppression, or adequate control of things 
harmful per se, or which, while lawfully created, 
have worked an injury to the public through an 
abuse of existing powers. In other words the 
police power of the general government has, in 
the above cases, been employed in regulating 
ails, which, without restriction, were necessarily 
injurious to the public welfare of the Nation: 
while, in the effort to preserve migratory wild 
fowl, the government would be asked to exer¬ 
cise this same power in behalf of that which was 
beneficial to mankind. While it is true that police 
power is usually directed toward the safeguarding 
of the public from the effect of harmful things, or 
conditions or circumstances which work an in¬ 
jury, nevertheless it is equally true that every 
government must frequently protect things bene¬ 
ficial to the general public from the harmful and 
improvident acts of the individual. And in prov¬ 
ing this I need only take the case of protecting 
potable waters from pollution, the atmosphere 
from contamination, and more especially all State 
game laws, where this principle is the entire 
basis of a restrictive legislation and the penalties 
provided thereunder. 
I have shown that the Federal authorities, under 
the power given them by Congress, have now 
assumed the right to enter a State and there 
assert a supreme and unlimited jurisdiction over 
yellow fever, a right that heretofore has always 
been denied, on the ground that matters of public 
health within a State were wholly beyond Fed¬ 
eral jurisdiction, and as such, subject only to 
the police power of the State. The yellow fever 
quarantine act establishes three things: (1) that 
the Federal government has complete jurisdic¬ 
tion; (2) that it also, has a plenary police power, 
and (3), that jurisdiction expressly attaches be¬ 
cause the disease sought to be controlled is not 
local, but belongs to a roving class which travels 
quickly from Slate to State, and therefore not a 
subject of exclusive State legislation. Is not this 
equally so of wild fowl ? 
President Roosevelt in a recent message to 
Congress pointed out the necessity of controll¬ 
ing certain corporations which, while nominally 
abiding within a particular State, as a matter of 
fact, had a free range of the entire country, and 
were therefore not “local” corporations doing a 
local business, but were in reality a class belong¬ 
ing to no State and occupying a field of enterprise 
within a Federal jurisdiction which has never 
been, but which ought to be, more fully asserted. 
1 quote the following extract from his message: 
“Experience has shown conclusively that it is useless I 
to try to get any adequate regulation and supervision of 
these great corporations by State action. Such regulation 
and supervision can only be effectively exercised, by a 
sovereign whose jurisdiction is co-extensive with the held of 
work of the corporations—that is, by the National govern¬ 
ment. I believe that this regulation and supervision can 
be obtained by the enactment of law by the Congress. 
There at present exists a very unfortunate condition of 
things, under which these great corporations doing an 
interstate business occupy the position of subjects without a 
sovereign, neither any State government nor the National 
government having effective control over them” 
Had the President used the words “migratory 
wild fowl,” instead of “great corporations,” the 
sense and the necessity would not have been 
altered. 
In State legislation upon those things which 
may be harmful or beneficial, as the case may 
be, we may make an important distinction be¬ 
tween contagious diseases and migratory birds; 
in the case of the former, a State, in its efforts 
to stamp out dangerous epidemic diseases, un¬ 
doubtedly favors and openly aids the flight of 
its citizens from infected districts, because the 
fewer the number within this area the less chance 
such diseases have to get a foothold; and con¬ 
sequently the local authorities gladly permit a 
hegira across State lines into those communities 
over which they have no official responsibility, 
and but a secondary interest therein; whereas, 
in the case of migratory birds and fish coming 
temporarily within the limits of a State, the State 
lines are thrown around these migrants like a great 
net, and the slaughter carried on as though ex¬ 
termination was the object in view. 
In other words, the State lines are down for 
the escape of deadly disease and up for the 
destruction of the wild fowl, the shad and the 
salmon. Is it not plain, therefore, that the 
same urgent, public necessity which impels 
Congress to regulate within a State epidemic 
diseases, destructive insects and infected cat¬ 
tle, should likewise induce it to protect bene¬ 
ficial migrants, which, by reason of their well- 
known and established habits, are not local in 
habitation or constituting, in a proper sense, 
subjects of internal regulation, upon which 
grounds alone has a State an exclusive juris¬ 
diction. If the time has come when the Na¬ 
tional government can relieve a State of the 
necessity of spending millions in the exter¬ 
mination of that which may imperil the 
National welfare, then the State ought not be 
in a position to assert the right to recklessly 
destroy that which is beneficial to the public 
at large, especially so when, under the prin¬ 
ciples involved, such Federal intervention would 
be employed in the attainment of the same re¬ 
sults—public welfare. 
Canada Desires Federal Protection of 
Wildfowl. 
Before concluding this particular branch, it 
is well to present another reason for future 
Congressional action. This spring I noticed, in 
one of the Canadian sportsmen papers a 
strong and entirely proper criticism of our State 
laws regulating wild fowl shooting in the United 
States. The writer, after alluding to the fact 
that the Dominion had, for many years, pro- 
