Oct. 28, 1911] 
FOREST AND STREAM. 
647 
Migratory Bird Protction. 
Bennington, Vt., Oct. 7.— Editor Forest and 
Stream: We are all looking forward and hop¬ 
ing for the success of the new American Game 
Protection and Propagation Society, of which 
our old friend, John B. Burnham, is president. 
What is more, I believe that under Mr. Burn¬ 
ham’s wise and energetic management the asso¬ 
ciation will certainly accomplish something defi¬ 
nite for game protection. However, among the 
objects of the organization I note that it will 
endeavor to obtain and “will work for a national 
law protecting migratory birds.” Are we to 
understand by this that the society proposes to 
get a migratory bird law through Congress? Un¬ 
doubtedly that would be a very laudable object, 
but can the association accomplish it? The 
question is, has Congress the power to enact 
such legislation? When the Weeks bill—which 
was drafted for this purpose—was before Con¬ 
gress, I spent many hours examining the authori¬ 
ties and reading the arguments upon both sides, 
and the general consensus of opinion among 
leading constitutional lawyers of the country at 
that time was that Congress possesses no such 
power. Of course we all regret this very much, 
as it appears impossible to protect the wildfowl 
and other migratory birds in any other way. 
State laws upon the subject are conflicting and 
ineffectual. Where spring shooting is forbidden 
in one State, it is countenanced in a neighbor¬ 
ing State. 
Nevertheless, it seems that the only way uni¬ 
formity of legislation can be secured on this 
matter will be by agreement of the States. So 
the association may possibly accomplish more 
by directing its efforts toward this end at once. 
But you inquire, how do we arrive at the con¬ 
clusion that Congress has no authority to en¬ 
act such legislation? In the first place it was 
long since settled by decisions of our highest 
court that the Federal Government has no gen¬ 
eral police power. It has on’y such police power 
as is incidental to its enumerated and implied 
powers, and neither of these powers can be so 
extended as to confer authority over the game 
and fish of the States. The only way this power 
can be secured without a constitutional amend¬ 
ment is by invoking the doctrine of the in¬ 
herent powers of the general government to un¬ 
known and unprecedented limits. 
Now, it is not my purpose in this letter to 
enter into a detailed discussion of the legal as¬ 
pects of a federal migratory bird law; I simply 
wish to call the attention of advocates of such 
a measure to the fact that they are wasting their 
time and energy, as there are constitutional ob¬ 
jections in their way which they cannot sur¬ 
mount. These objections are based principally 
upon the following points: The principle of in¬ 
herent powers of the National Government is 
summed up by Mr. Andrews in his work on 
“American Law” in this way: “If the object 
sought to be accomplished is an object which a 
State under no circumstances has the power to 
accomplish, and if the means does not invade 
the exclusive powers of the States, nor restrict 
the liberties of the citizen guaranteed in the con¬ 
stitution, and is the exercise of a power ordi¬ 
narily exercised by nations, it (the National 
Government) has the inherent power to accom¬ 
plish such object.” 
It will at once be observed that the means 
adopted must “not invade the exclusive powers 
of the States.” Property in and control of game 
and fish in this country lies within the exclu¬ 
sive power of the people in the several States. 
“Wild game of a State belongs to the people 
in their collective sovereign capacity, and is not 
the subject of private ownership, except in so 
far as the people may elect to make it so.” 
(Geer vs. Connecticut, 161 U. S. 519). And it 
is well sett’ed that the National Government may 
not through any of its departments or offices 
assume any supervision of the police regulations 
of the States. “All that the Federal authority 
can do is to see that the States do not, under 
cover of this power, evade the sphere of national 
sovereignty, obstruct or impede the exercise of 
any authority which the constitution has con¬ 
fided to the nation or deprive any citizen of 
rights guaranteed by the Federal constitution.” 
(Cooley’s Constitutional Limitations, 706). 
Why waste time arguing matters which are 
settled law? Since 1698, when Massachusetts en¬ 
acted a law to protect the deer in that State, the 
several States have continued to exercise this 
exclusive police power over game. The migra¬ 
tory birds of the country are the property of 
the people of the State in which they are found. 
Flying at their liberty, when these birds leave 
the borders of one State and enter those of an¬ 
other, they immediately become the property, 
and subject to the control of the laws, of the 
latter State. This being true, it fol’ows that 
Congress has no power to make laws for the 
protection of game found within the borders of 
the several States, and we can only hope to se¬ 
cure better laws protecting migratory birds by 
a systematic appeal to the Legislatures of the 
States. So it has occurred to me that Mr. Burn¬ 
ham’s organization might accomplish this end by 
having a comprehensive measure drafted by ex¬ 
perts and then work in conjunction with the 
State authorities in securing its adoption. The 
association cou'd undoubtedly secure the co¬ 
operation of the members of the Biological Sur¬ 
vey, State commissions and all of the sports¬ 
men’s associations throughout the country. For 
instance, the Weeks bill might be taken as a 
model which would command support every¬ 
where. On the other hand, if the society spends 
its energy and means in attempting to get a 
measure through Congress, it is sure to meet 
with failure. Harry Chase. 
Game in North Carolina. 
Linville Falls, N. C., Oct. io.- — Editor Forest 
and Stream: The protection of the trout in the 
Linville River has been followed by a strong 
effort to conserve the game in this locality. The 
State law of North Carolina forbids hunting 
on the lands of another at any time or in any 
place without the consent of the owner. In the 
settled portion of the State the shooting privi¬ 
leges have quite generally been sold, either to 
Northern or local sportsmen who pay the taxes 
and enforce the law, greatly to the satisfaction 
of the farmers. Up here in the mountains, how¬ 
ever, no attempt has been made until this year 
to enforce any sort of regulation. The last Legis¬ 
lature passed a law, applying only to Burke 
county, in which Linville canon and most of the 
wild mountain land of this locality lie, prohibit¬ 
ing the killing of quail or grouse (known here 
as pheasants) and squirrels between Feb. 1 and 
Nov. 15. The law is being observed here. 
It happens that the entire canon of the Lin- 
viile River, Linville mountain and the moun¬ 
tains along the east s ; de of the river, including 
Gingercake, Hawksbill, Table Rock, Shortoff, 
etc., are owned by two companies, and they have 
agreed to protect deer, bear, pheasants, quail, 
wild turkeys and song birds absolutely for a few 
years at least and give these natives of the 
mountains a chance to repopulate the wilderness 
from which they have been so ruthlessly hunted. 
’Coons, ’possums, squirrels and rabbits may be 
hunted under written permits. A few deer are 
still reported to be running wild on Linville 
mountain, and the sentiment is universal among 
the mountain people to protect them. In regard 
to bears it is not so. Last year fifteen black 
bears were killed within a short distance of this 
place. The signs are plenty, showing the pres¬ 
ence of bears this season, as they are coming in 
from other places where more hunted and where 
lumbering operations have driven them out as 
in the Black Mountains. 
The dry summer has been an ideal one for 
quail and grouse to breed, and they are quite 
numerous, much more so than I have seen dur¬ 
ing the four years I have been here. With proper 
protection these birds will be very numerous in 
a few years. The bears, as a’l experience has 
shown, soon learn where they are safe and come 
in considerable numbers. They are not a menace 
to stock except where hogs or young cattle are 
turned out in the wild part of the mountains 
away from the settlements, and this is forbid¬ 
den by law now. The day when stock was per¬ 
mitted to run at large is past, and every man is 
supposed to look after his own on his own land. 
So the man whose hogs are killed by bears out 
on the mountain has really no cause for com¬ 
plaint. These losses are very small. The sea¬ 
son for ’coons and ’possums is now on and these 
animals, of which the mountaineers are so fond, 
are very plenty hereabouts. 
This is considered by many to be the most 
beautiful season of the year to visit these moun¬ 
tains, as the color is just coming to the fohage 
and for the next four or five weeks will be most 
gorgeous. With our great variety of trees, more 
extensive than any other section of the country 
can show, the mountain sides present a color 
scheme that is nowhere equaled. With maples, 
gums, sourwoods, chestnuts, seven species of 
oaks, combined with conifers and many other 
evergreens, such as rhododendrons and laurel, 
the ruggedness of the rocky cliffs, peaks, canons 
and mountain sides is softened and beautified 
with charming effect. Frank W. Bicknell. 
All the game lazus of the United States and 
Canada, revised to date and now in force, are 
given in the Game Lazvs in Brief. See adv. 
