Game Laws by Charles E. Whitehead

Laws for the preservation of wild animals are a product of civilization. The more civilized a nation, the broader and more humane will be these laws.

Our ancestors of the flint age were lawless. After the fall "thorns also and thistles" came forth, and man ceased from eating herb-bearing seed and fruit, and turned his hand to killing and eating flesh—"even as Nimrod, the mighty hunter before the Lord." Many great and dangerous animals then existed, and it was a necessity to kill off the cave bear, the cave tiger and the mastodon. The earliest of Chaldean poems indicates the equally great fishing of those days: "Canst thou draw out leviathan with an hook, or his tongue with a cord which thou lettest down?" All savage nations are still ruthless and wasteful in their destruction of animal life. An example is found on the plains, where a thousand buffalo were driven over the walls of a cañon that a tribe might have a feast, although the tribe might, and often did, starve during the coming winter.

With the slow progress of civilization, at first customs grew up, and then laws were enacted consonant with the degree of education of the lawmakers. In ancient Oriental nations only a few animals were protected for the use of the rulers. Thus the elephant, the cheetah and the falcon in the East came under royal protection. The Normans, when they were not at war, followed the chase with ardor, and passed laws for the protection of deer, wolves and the wild boar. The Saxons, like the Romans, guarded their forest preserves, but left the open country free for chase to all the people. After the Conquest the new Norman rulers applied their own stern and selfish laws over all England. Not only was the chase forbidden, but the bearing of arms used in the chase as well, and the conquerors thus preserved the game for their own use, and also kept in subjection the disarmed people. Their punishments were barbarous, and comprised maiming and death, and the killing of a deer or a wild boar was punished with putting out the eyes or death. No greater penalty was inflicted for the killing of a man.

The underlying principle maintained was that all wild game was the property of no one, and that to which no one had title belonged to the sovereign. So the king held all lands not apportioned, and granted permission to his chiefs to hunt therein. He also created the right of free chase, warren and free fishery, thus authorizing a designated person to protect game and to follow the chase on the land of others, or protect and take fish from rivers and streams that flowed over the properties of other men. These claims of right became numerous and so burdensome that they were subsequently restricted by Magna Charta. The fascination of the chase, indulged in for years, became so inwrought in the English mind that it formed the principal recreation of the people, shared in alike by nobles, priests and peasants, evoking a world of romance and legend in Robin Hood tales, and a sturdy, semi-warlike pride. The exercise formed a school of stalwart out-of-door men, whose descendants of like taste have invaded the remotest isles of the sea, and girdled the earth with the colonies of England. The taste made its fair mark on English verse from the early date of Chevy Chase, when,

To chase the deer with hawk and hound
Earl Percy took his way,

down to this present year of grace, when Conan Doyle's archer sings:

So we'll drink all together
To the grey goose feather,
And the land where the grey goose flew.

The pomp and dignity of the chase, its pursuit by the highest clergy and the sad result of want of skill by an archbishop are quaintly disclosed in the trial of the Archbishop of Canterbury for accidentally killing a game-keeper instead of a deer in the forest of Bramshill in the year 1621, as reported at length in Vol. II. of Cobbett's State Trials.

The right in the crown to all wild game, thus claimed and established in England, became part of the common law, and was inherited by the American colonies; and thus wild game in our Republic became the property of the people, and the duty of its care and protection fell upon the different States of the Republic, and in the territories upon Congress.

It is unnecessary to enumerate the different game laws and the various cruel judgments entered therein in the English courts, or to refer to the many essays and orations written and delivered against the game laws of the various European States. They met the condemnation alike of philanthropists, statesmen and poets. Charles Kingsley wrote in 1848, on behalf of the people, the bold and pathetic song:

The merry brown hares came leaping
Over the crest of the hill.

It defended the poacher lad, but lost for the writer his lawn sleeves.

The great distinction to be ever borne in mind between the game laws of Europe and those of America is, that the former were passed for the protection of game for a class, while the laws of a republic are passed for the preservation of game for the use of all the people. The former encountered the hostility of all the people save the aristocracy; the latter should obtain the approbation of all the people, rich and poor, for they are passed and maintained for the good of the people at large.

The value of the fish and game to the people of the State of Maine is greater and brings into the State more money than its hay crop or its potato crop. The value of a mountain stream is nothing except as it may water people or kine. Stock and protect that river by suitable laws, and the fishing privileges may be rented for an annual rental that will pay all the taxes of every county through which it runs. Yet often it is that the inhabitant of that county complains of the injustice of preventing him from taking fish therein at his pleasure at any season of the year.

The earliest recorded game law is found in the twenty-second chapter of Deuteronomy, where it is forbidden to take a bird from her nest. The earliest law upon this subject in America that we find was the act of the Assembly of Virginia of 1699, II. William III., wherein the killing of deer between January and July was prohibited under a penalty of 500 pounds of tobacco. In Maryland an act was passed on the same subject in 1730, which recites the evils of constant shooting—"Which evil practice, if not put a stop to, may in a few years entirely destroy the species of deer, to the great damage of the good people of this province; be it enacted by the Right Honorable the Lord proprietary, by and with the consent of his Lordship's Governor and the upper and lower Houses of Assembly, that it should not be lawful that any person (Indians in amity with us excepted), between January first and July last, to kill any deer under the penalty of 400 pounds of tobacco." South Carolina followed in 1769 with an act prohibiting the killing of deer during the same period, "under a penalty of forty shillings proclamation money." Both of these acts prohibited night hunting with fire-light, as did also the Statutes of the Mississippi Territory.

The earliest laws upon this subject in Kentucky were passed in 1775 by the Legislature, appropriately holding its sessions under the greenwood trees, and their author was Daniel Boone.

The earliest law in the State of New York was passed in 1791 (2 Session Laws of 1791, p. 188), and it prohibited the killing of "heath hen, partridge, quail or woodcock" on Long Island, or "in the city and county of New York," under penalty of twenty shillings.

Laws upon this subject thereafter multiplied in New York, varying in their scope and character with every Legislature. Sometimes the prosecution was left to the county prosecutor; sometimes it was permitted to the informer, who shared the penalty; sometimes the power of enacting laws was reserved to the State; sometimes it was delegated to the supervisors. In 1879, by the influence of the Society for the Preservation of Game, a complete act was passed, entitled "An Act for the Preservation of Moose and Wild Deer, Birds, Fish and other Game," which for many years was vigorously enforced by that Society, and became the model for like laws in many other States. This law made the possession of game during the close season the offense, and not prima facie evidence of killing, and also it removed from the various local supervisors the power of making laws upon this subject.

These two essential features of law cannot be too strongly insisted upon with all lawmakers. Under this statute hundreds of prosecutions were made and convictions had in the markets of the great cities. The bidding for game by wealthy cities is the incentive to unlawful killing, and the closing of the markets stops the poacher's business more thoroughly than the conviction of an occasional poacher. When the law permitted game killed in other States during the open season to be sold in the State of New York in the close season, there was no lack of evidence to show that every head of game was killed elsewhere and in the open season, and the petit jury always found in favor of the oppressed market man. When the law was changed so that all game, wherever killed, was decreed illegal, the defense was plead that such a law restricted commerce and was unconstitutional; and it was not until the Society carried the case of Royal Phelps, President of the Society for the Preservation of Game, against Racey, through to the court of last resort, as reported in 60th New York Reports, that this defense was decreed insufficient. That case was followed in Illinois (97 Ill., 320), and Missouri (1st Mo. App., 15), and in other States, until it became the established law of the land. The Supreme Court of the United States held (125 U. S., 465), that a State cannot prohibit the importation of merchandise from another State, but can the sale. That court also sustained the right of States to protect fisheries and destroy illegal nets (Lawton vs. Steel, 152 U. S.), and it affirmed the right of States to compel the maintenance of fishways in dams erected in rivers (Holyoke Co. vs. Lyman, 82 U. S.). The United States courts also maintained purchaser's title to marsh lands and enjoined trespassers from shooting thereon in Chisholm vs. Caines (U. S. Circuit Court of the 4th District). Thus, step by step, the game laws of the land were sustained, held to be constitutional and enforced.

The forms of defense which offenders deem it righteous to make to game prosecutions are without number, and as fraudulent as their trade is wasteful. One instance will illustrate. The writer, as counsel for the Society for the Protection of Game, prosecuted one Clark, a prominent poulterer in State street in Albany, for having and offering for sale several barrels of quail. The case was tried at Albany, Hon. Amasa J. Parker appearing for the defense. After the plaintiff's witnesses had proved the possession of the birds, the offering for sale as quail, and the handling of several of them by the witnesses, the defendant testified that these birds were not quail at all, but were English snipe, and that their bills were pared down and the birds were thus sold as quail, as they brought a better price, and that he frequently did so in his trade. Probably no person in the court-room believed this evidence, but the jury found for the defendant.

The defense has been frequently interposed, that the birds in question were not the prohibited birds, but were some other or foreign variety, until it was found that it was necessary always to purchase and to produce in court, fresh or dried, some of the game in regard to which the suit was being tried.

Before leaving the litigation of the courts of the State of New York, and in order to show how early and ardently the gentlemen of the old school followed the diversions of the chase, it is well to cite the case of Post against Pierson, tried in 1805 before the venerable Judges Tompkins and Livingston, and reported in 3d Cain's New York Reports. It there appears that Mr. Post, a worthy citizen of that most traditional hunting ground, Long Island, organized a fox-hunt. The chase went merrily—

An hundred hounds bayed deep and strong,
Clattered an hundred [more or less] steeds along,

and they started a fox and had him in view, when one Pierson, of Hempstead, the defendant in the case, well knowing of the chase, yet with wicked and felonious mind intercepted, shot, killed and carried away the fox. Post brought suit for the value of the animal, and the injury to the outraged feelings of the members of the hunt. Counsel learned in the law declaimed, and the wise opinion of the court, citing all the authorities from Puffendorf down, covers five printed pages, and finally decided that, "However uncourteous or unkind the conduct of Pierson in this instance may have been, yet this act was productive of no injury or damage for which a legal remedy can be applied."

Probably to correct this ruling, the Statute of 1844 was passed, which provides that anyone who starts and pursues deer in the Counties of Suffolk and Queens shall be deemed in possession of the same.

A great responsibility is thrown upon the Government of the United States to protect the large game in the different national parks. In a few years they will contain the only remnants of the buffalo, elk, antelope and mountain sheep. Poachers, like wolves, surround these parks, killing only to sell the heads for trophies. Captain George S. Anderson and Scout F. Burgess have done a good work in the Yellowstone Park in capturing poachers, which efforts were recognized by the Boone and Crockett Club. If authority should be given to the army to try and punish these poachers by martial law, it would save many a herd elsewhere, and also relieve the Government from great expense for the transporting and trial of offenders.

When we reflect how many and valuable races of animals in North America have become extinct or nearly so, as the buffalo and the manatee; how many varieties of birds that afforded us food, or brightened the autumn sky with their migrations, have been annihilated, as have been the prairie fowl in the Eastern States and the passenger pigeon in all our States, the necessity of these laws appears urgent. A few suggestions that experience has taught us in regard to these matters are worthy of record.

We must remember that in a republic no law is effective without public opinion to back it. Therefore, contemporaneously with making our laws, we should by writing and speaking educate the public mind to appreciate and sustain them. Experience has taught that in these prosecutions the public prosecutor is a laggard. He prefers noted criminal cases and neglects these, which he regards as trivial offenses. Therefore the law should authorize private prosecutors, on giving security for costs and damages, to make search and conduct prosecutions in their own names.

Next, it is to be remembered that a single private person will make himself odious in the community by bringing such prosecutions, and is often deterred by the fear of revenge. Therefore, societies should be formed, composed of many good citizens; they should employ their own counsel, and prosecute in the name of the society or its president.

Next, the law should definitely fix a penalty for having in possession, transporting or exposing for sale. This is more important than prohibiting the killing, as it is the marketing of dead game that incites the killing. It is the market hunter that has destroyed all feathered life on our prairies, and the cold storage process has enabled him to transport to other States or countries, and make his gains there. Close the market and the killing ceases.

Another step to success is the procuring of the conformity of the laws in neighboring States. The laws of New York may prohibit the sale of quail, ruffed grouse and prairie fowl, and the societies may enforce them in New York city, and day by day see the monstrous wrong of carloads of prairie fowl and other valuable game brought into Jersey City, and sold to the population of that town and to the ocean vessels sailing from its docks. Our Western prairies are denuded of their birds, that are frozen in the close season and are afterward shipped to Europe, and sold in the markets there at a price often less than they would bring in New York city.

Again, laws on these subjects should be as simple as possible, including in the one open and close season as many kinds of game as possible, and creating a general public understanding that the shooting season opens at a fixed date, say October 1st, and that no shooting or possession of game is to be allowed prior to that date, and that the close season for all game should commence on another certain date, say February 1st.

Lastly, a defective law, that is permanent and uniform throughout the State, is more effective than a better and more detailed law varying in different counties and towns, and frequently altered. In illustration of the vagaries of lawmakers in this respect, it is to be remembered that the law of 1879, passed by the Legislature of the State of New York, was a complete and well-studied statute, made after much consultation, and meeting the approval of all the societies of the State, as well as the market men, and operated in the main satisfactorily to all. Since that date members of the Legislature from the different localities introduced bills making some exception or addition to the act, to benefit their little town or locality, to prohibit fishing in certain waters, to protect certain other animals, to provide certain restrictions as to weapons of chase or means of fishing, or times and seasons; or giving powers to county supervisors to legislate in addition to the general legislation of the State. Two hundred and fourteen such acts and ordinances have been passed since 1879, until the general law has been obscured and brought into contempt. These acts and ordinances include, among other curiosities, the protection of muskrats and mink, the preservation of skunks and other vermin, the prohibition of residents of one county from fishing in another county, and protecting parts of certain lakes or rivers in a different manner or season from other parts. In some of the acts words are misspelled; in one it is enacted that "wild birds shall not be killed at any time." Another act was passed defining the word "angling," as used in the general statute, thus—"taking fish with hook and line and by rod held in hands," leaving the troller or the happy schoolboy, that drops his hand-line from the bridge, exposed to the dire penalties of the law. While writing in this year of grace, eighteen hundred and ninety-five, the Legislature has passed a law permitting the sale of game at any time in the year, providing it is shown to have been killed 300 miles from the State.

This most unreasonable law was procured largely through the influence of the Chicago market men. The States lying west of Chicago have been endeavoring to protect their game. Salutary laws have been passed prohibiting the killing and freezing of game, and the transportation of it outside of those territories. The markets of Chicago and the other great cities of the West being closed to the public sale of game, the dealers sought to open the markets of New York, and they have thus done so by this law. The Governor was fully advised of the purpose and effect of the law, but the powerful societies of the market men were promoting it and the bill was approved. In a few years the conspicuous prairie fowl will exist only in the naturalists' books.

In olden times laws upon these subjects protected only animals which lent pleasure to the chase, and also certain royal fish which were deemed to belong to the king. These old laws were selfish and severe, and were enforced with the cruelty of the age. A gentler spirit has since dawned upon the world, and now most game laws shelter as well the song bird as the wild boar and the stag. The true hunter derives more pleasure in watching the natural life around him than in killing the game that he meets. His heart feels the poetry of nature in the "wren light rustling among the leaves and twigs," and in the train of ducks as,

Darkly seen against the crimson sky,
Their figure floats along.

He stops to enjoy the guttural syllables where "Robert of Lincoln is telling his name" in the summer meadow. At early dawn and eventide he listens to the bugle call of the great migration in the skies and exclaims:

Thou hast no sorrow in thy song,
No winter in thy year.

He feels the love that is begotten by contact with nature, and he it is in these later days who has extended the laws to protect all birds of meadow and woods, while in return he is rewarded by a choir of songsters giving thanks in musical numbers,

Better than all measures
Of delightful sound,
Better than all treasures,
That in books are found.