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^[[S.F. Chronicle 9/14/18]]

MIGRATORY BIRDS

Devastating Habits Raise Great National and International Questions

THE determination of the State and Federal authorities to prevent rice growers from defending themselves against the devastations of worthless ducks and geese is not only causing growing indignation in respect to the senseless destruction of property but is drawing more public attention than has hitherto been given to the legal foundations for the claim for the exercise of such tyranny.

Considering, for convenience, only one phase of the matter, by Federal law the sale of wild ducks and geese is prohibited within a state.  Obviously, that is a local police regulation for which, under the Constitution, as written, there is no shadow of Federal claim.  We do not know that there is even under the Constitution as "interpreted."

At any rate, Congress could find no such power, and, therefore, resorted to the "treaty power," treaties being declared to be "the supreme law of the land."  If that be literally true, then the President, Senate and Mexico, Canada or China can enact domestic law which the President, Senate and House of Representatives could not enact, and have done so.

The Constitution says:  "The Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."

The question is whether the treaties which are to be the supreme law of the land are treaties enacted, like laws, "in pursuance of the Constitution," or treaties which may happen to be made in defiance of the Constitution.

The legal argument for the former construction is familiar to all students and need not be stated here. If the duck question results in a thorough discussion of this fundamental question patriotic citizens can well afford to raise by subscription money to compensate the victims of Federal usurpation.

But it has been called to our attention that penal laws are to be construed strictly, the burden of proof being absolutely and completely upon the Government.

Therefore, if one is accused, under the Federal law of unlawfully selling wild ducks and geese, the Government must prove that the particular birds sold were hatched outside the State of California before conviction can be had under the treaty power or any other power.  And that cannot be done.  There is no presumption against that accused in a criminal case.

[[stamp]] Original copied by Smithsonian Archives [[/stamp]]