Nov. 24, 1906.] 
SUPPLEMENT TO FOREST AND STREAM. 
hibited spring shooting, goes on to say that, 
while the Canadian sportsmen were more than 
willing that their vast country should be made 
the great and permanent breeding ground of 
the wild fowl, it was certainly very exasperat¬ 
ing each spring to hear the continuous boom 
of the American guns all along the northern 
boundary line, in some cases, like that of the 
St. Clair river, only a few rods separating the 
thoughtful and unselfish sportsman, on the 
Canadian line, from the ravenous and thought¬ 
less market-hunter on the American side. The 
writer then went on to say that in the natural 
order of things, many varieties of duck and 
snipe rear their young and were ready to leave 
for the United States late in August or early 
September, before even the fall shooting had 
opened in Canada. He then pertinently re¬ 
marks, if such birds are to be shot in the 
more northerly Slates during both migratory 
flights and also during all the fall, winter and 
spring in the southern waters, that there was 
practically an open season all the year around for 
such birds, in the United States. Therefore he 
asks, “Why should not the Canadian sports¬ 
men, in view of the coming destruction of the 
ducks, geese and snipe, get their fair share of 
the very birds which they harbored and pro¬ 
tected so considerately in their own country?” 
And he thereupon advocated spring shooting 
and an open law on all young birds, when 
capable of flight. In the absence of a fair 
reciprocity, this does not seem like an im¬ 
proper retaliation, considering that at the best 
the Canadian sportsmen only have a shooting 
season of about six weeks, while we shoot 
ducks, snipe and other wild fowl nearly ten 
months in the year. 
The Canadian government has prohibited spring 
shooting of wild fowl in all its great Provinces 
and it expects this Government to do likewise. 
Neither country is concerned about the State or 
provincial laws regulating the shooting of local 
birds in the home districts of their neighbor, 
but much interested in proper laws for the preser¬ 
vation of game in which each has a mutual in¬ 
terest and a mutual duty. The proposition for 
Federal regulation of migratory game birds has 
been warmly espoused by the leading Canadian 
sportsmen, and we are in honor bound to aid 
in the protection of those birds in which Canada 
has a half-ownership, according to the plainest 
ethics of sportsmanship. As fully seventy-five 
per cent, of the migratory game birds are raised 
in Canada, how utterly contemptible it is for a 
State, on the line of migratory flight, to claim the 
legal right to exterminate them, if it sees fit. 
Let a State wipe out its native game, if it so 
wishes, but let us stay its hand when it would 
destroy those birds in which the whole country 
and other nations have a vested interest. 
Under no consideration, should there be more 
than two months, each year, allowed for wild 
fowl shooting in any one locality in the United 
States, or about the legal period in the case of 
local game bird's, in those districts in which 
they are fairly abundant; moreover, the States 
under such a Federal close season should still 
retain the full power to enact all regulations 
deemed necessary for the reasonable preserva¬ 
tion of wildfowl during the open season. What 
sportsmen to-day will say that such a uniform 
close season will ever come, if left to the forty- 
five States for action? When we realize that 
our great bays are becoming, more and more 
unsuited for wild fowl, by reason of continuous 
shooting, the appropriation of these waters for 
oyster culture or their conversion into great 
highways of commerce and travel, wherein 
the noisy gasolene launch is such a conspicu¬ 
ous figure, it must be plain, particularly to 
eastern sportsmen, that now is the time to 
make a stand for wildfowl protection or give 
up the fight. 
Migratory—in a Jurisdictional Sense. 
Although in a previous article I have al¬ 
luded to the ease and certainty with which 
local and migratory game birds may be dif¬ 
ferentiated, it is well, at this juncture, to sum¬ 
marize this distinction. 
In the game bill (which, it must be remem¬ 
bered, was a tentative one only), migratory birds 
are defined as follows: 
“Sec. 1. That ail wild geese, wild swans, brant, wild 
ducks, snipe, plover, woodcock, rail and all other migra¬ 
tory game birds, which in their northern and southern 
migrations pass through or do not remain permanently 
the entire year within the borders of any State or Terri¬ 
tory, shall hereafter be deemed to be within the custody 
and protection of the government of the United States, 
and shall not be taken or destroyed contrary to the 
regulations hereinafter provided.” 
Thus, it will be seen, that such birds are 
practically classified by species, and also cov¬ 
ered by a clause intended to bring them within 
a reasonable definition of what shall consti¬ 
tute a migratory class. 
The word migratory, however, when used 
in this connection has a well-established mean¬ 
ing in ornithology, and is much more easily 
determined when a question of jurisdiction 
arises than in the case of what legally con¬ 
stitutes a “contagious” disease, or a “reason¬ 
able” rate, or a private or public nuisance, and 
the iike. In a contagious disease, for in¬ 
stance, upon which may directly depend the 
jurisdictional right of the Federal health au¬ 
thorities to intervene, two questions may arise; 
(1) What is a contagious disease? and (2) has 
the person or animal in question contracted 
such a disease? The first question may be a 
most difficult one at times to determine, be¬ 
cause the number of contagious diseases are 
as yet to be fully ascertained, while the second 
question involves not only the extent the 
symptoms may have developed, but also the 
skill of the person making the diagnosis; 
nevertheless the jurisdictional right of the 
public authorities to interfere depends wholly 
upon their accuracy in the determination of 
each of these two questions. 
In the case of migratory game birds, we have 
them definitely classified by species and vari¬ 
eties, and by the well-known scientific mean¬ 
ing attached to the word migratory when used 
in this connection. Then again, by a system 
of elimination it is easy to segregate into a 
definite class all the so-called local game birds, 
and thus we have a double means of determin¬ 
ing this question. 
LOCAL AND MIGRATORY FISH. 
It has been conceded by Mr. Thompson, in 
denying the constitutional right of the general 
government to protect our wild fowl, that, in 
principle, there exists no difference between the 
Federal prQtection of migratory birds and mi¬ 
gratory fish; and as he, and most others, con¬ 
tend that the jurisdiction of the Federal govern- 
men over the public waters of the United States 
is limited solely to that which pertains to navi¬ 
gation. it must follow, if true, that the govern¬ 
ment possesses no power whatsoever for the 
preservation of health, our fisheries or any 
other of the many interests connected with such 
public waters. I am willing to admit that the 
legality or illegality of a Federal statute, which 
seeks to protect either class of migrants, is 
determinable by the same line of reasoning, but 
I beg to differ most earnestly with the state¬ 
ment that our general government now or 
in the future is without any supervisory power 
over our interstate waters other than in the 
regulation of navigation. I know that such an 
impression is most general, but in so much as 
the facts are at hand to prove the contrary, and, 
were they not. the necessities of the immediate 
future would lead the government to assert its 
sovereign jurisdiction over these waters, I will 
pass this question by, for the moment. 
Having in a previous article shown that the 
annual migration of anadromous fish, like the 
salmon and the shad, are influenced by the same 
general causes which induce certain birds to 
seek distant points for the purpose of repro¬ 
duction, and as they remain beyond the borders 
of the United States for the greater part of the 
year, it is plain that such fish may be easily dif¬ 
ferentiated from those that are local, like the 
bass, pickerel, white fish, perch and grayling, 
which, as in the case of local game birds, are 
ersily protected and fostered by the State, in 
whose waters they may be more or less abund¬ 
ant, according to the care taken in their preser¬ 
vation and culture. If, therefore, these fish 
upon coming from the ocean and into bays 
and rivers, on either coast, are netted to an un¬ 
reasonable degree, it finds “a deadly parallel” 
in the over-shooting of wildfowl during their 
vernal migration; and when the nets, weirs, 
fykes either destroy or totally intercept such 
fish on their way to their spawning ground, we 
have, in effect, that fearfully destructive method 
by which the passenger pigeon was completely 
wiped out, when netted or otherwise molested 
at the breeding ground. From the several re¬ 
ports of the U. S. Fish Commission I have been 
able to show that on the Atlantic coast, where 
certain fish hatcheries were established adjacent 
to the annual spawning ground, it became im¬ 
possible to obtain more than a few million eggs 
of the shad where the capacity of these hatch¬ 
eries was up in the hundreds of millions; and 
this solely because the market fishermen, un¬ 
hampered by any reasonable regulation of the 
State, were permitted to string their nets, in 
an unbroken line, across the public waters 
through which the fish had to pass in. reaching 
the spawning grounds. The loss of the myriad 
of young fish that would otherwise have come 
from these hatcheries was immensely increased 
by the exclusion of the female shad from their 
natural spawning beds. Whereas, in the case of 
fish which are purely local, like the black bass 
and the brook trout, the State usually exercises 
great care in their protection, especially during 
the period of spawning, because of the natural 
desire to permanently conserve the interests of 
its own citizens; but in the case of the shad and 
the salmon it is devil take the hindermost, with 
a result most destructive to some of the coun¬ 
try’s most valuable food fishes. Not content, 
however, with such slaughter, the local authori¬ 
ties while entirely willing to have the National 
government spend thousands of dollars in the 
effort to replenish the public waters, have, in 
many cases, refused any practical co-operation; 
and in one State a law was passed prohibiting 
non-residents from taking or offering for sale 
any shad captured within its waters, so that 
these valuable commercial fish, even when thus 
improvidently destroyed, were reserved for the 
enrichment of those directly responsible for such 
wholesale destruction. 
The Atlantic salmon by unreasonable and un¬ 
seasonable killing, by the pollution and the ob¬ 
struction in our northern rivers, are practically 
gone, while on the Pacific coast the same story 
will soon be told. It has been declared by com¬ 
petent authorities that Federal protection of these 
fish would add $20,000,000 annually to our wealth 
and conserve the supply indefinitely. 
My interest in Federal supervision over these 
fish was aroused when looking into the question 
of preserving our migratory wild fowl, and the 
two bills subsequently prepared were somewhat 
different in character. The first contemplated 
Federal control over certain migratory salt-water 
fish during the spawning period, while the other 
was much broader in scope, including all fish in 
all the interstate public waters of the" United 
States, inclusive, of course, of the migratory 
fish in the first bill. The former bill, by reason 
of its limitations and greater apparent necessity 
for action, would probably meet with less op¬ 
position, and as its enactment would involve the 
same question of Federal jurisdiction over public 
waters it may be the better one of the two for 
a test case, especially in view of a similar law, 
which, at one time, existed in the past. The 
first bill, covering all the interstate public waters 
of the United States, will be more fully men¬ 
tioned when considering the broad question of 
a general Federal jurisdiction over such waters. 
Some time ago I had occasion to talk with 
Dr. Palmer of the Bureau of Biological Survey, 
regarding a bill pending in Congress for the 
Federal protection, during the spawning season, 
of the sponge fisheries off the coast of Florida, 
a measure involving a government regulation 
of a very extensive order. As a result of this 
interview quite a discovery was made, as will 
appear from an extract in Dr. Palmer’s letter: 
‘‘Since our conversation, a day or two ago, on the 
subject of Federal jurisdiction for the protection of fish 
and game, I beg to say that I have looked into the mat¬ 
ter a little further, and through Dr. Hugh M. Smith, of 
