The Game Law Problem
Every American sportsman who has attained even middle age knows how rapidly game has decreased in the United States, even within the period of his recollection, and that the time is not far distant when it will be virtually exterminated unless it is protected by uniform, intelligent laws regulating its destruction.
No protection, legislative or otherwise, can be devised to restore large game, deer excepted, to the country east of the Mississippi; but, under proper restrictions, deer, turkeys, ruffed grouse, prairie chickens, quail, woodcock, snipes, and all varieties of water fowl, waders and shore birds, may be preserved in large numbers for an indefinite period, in all parts of the country where they still exist, and may be brought back to many places whence they have been driven.
Indiscriminate slaughter is but one of the principal causes threatening the extinction of game in the East. The increased density of population in many places has hopelessly banished the more wary varieties, which will not abide in the neighborhood of man. But many kinds of small game, animals and birds, will, under proper conditions, remain and multiply even in populous communities. Population is only one factor in the problem. Game will disappear from uninhabited sections if they do not furnish the food and cover necessary for sustenance and protection.
There are large areas in the East where the slaughter has not been great, and the population has not increased, yet in which, owing to changed agricultural conditions, game has visibly decreased. When I was a boy, New Jersey, Delaware, Maryland and Virginia were the favorite quail shooting grounds of the American sportsman. The abundant food and cover furnished by these crops caused the birds to multiply, although shot closely every year. Then came the trans-continental railway lines, brining cereals from the West and delivering them in the East cheaper than the eastern farmers could raise them. This, and the abolition of slavery in the section named, led to the abandonment of small grain, and the farmers turned for a living to the cultivation of potatoes, vegetables and trucking. With this change, the quail disappeared from the fields. When the crops are in the green state, they are too dense and damp to furnish a range for the birds; when they are ripe and gathered, the grounds on which they stood are left too bare and barren either to furnish feed for the birds or protection from their enemies. Thus it has come about that, from what was once the most attractive shooting ground in the country, the birds have gone; and while a few still linger, averse to abandoning altogether their natural home, such as remain are compelled to live in woods and swamps and in the tangled underbrush and vines upon the borders of the fields, where, if they are found at all, they give the sportsman but a single shot at the rise of the bevy, as they scurry away to the impenetrable depths of the swamps or morasses which are the only safe cover left them. Never again will these sections be restocked with quail, unless they are converted into game preserves, and cultivated so as to restore the old conditions. Whenever that occurs, the game supply will be promptly replenished to its old abundance, for the region is the natural habitat of the quail, and given half a chance, it will return and be fruitful and multiply and replenish the earth.
The changes referred to have produced exactly opposite results touching other kinds of game. The abandoned lands in Virginia have grown up in pines and underbrush, and the deer, turkeys and ruffed grouse, which had been almost or entirely driven off by close cultivation, have returned in large numbers. Thus we see that other causes than the actual killing of the game operate to increase or diminish the supply in many places.
The fate of the bison, the elk, the antelope, and other large game in America seems to be the same as that of the Indian. The few left have, for the most part, gone to territory still controlled by the United States Government, where we may hope for uniform legislation and the wise exercise of power to enforce the laws protecting them.
The pinnated grouse is almost gone from the country east of the Mississippi River. I remember when there was good shooting in Ohio, Indiana and Illinois, but it is not so any longer. When I first began shooting prairie chickens, a man need go no further than Central Minnesota for the best of sport; but a few years ago I went as far as Dakota, found but a few, and was told that they were rapidly moving on towards the sunset.
The Southern States still have an abundance of quail, turkeys, ruffed grouse, and in some sections, deer; but, so far as legislation goes, they extend very little protection to game, and the enforcement of the laws is not seriously attempted.
Nevertheless, there is a widespread waking up among our people to the necessity of protective laws before the quail is exterminated. The difficulties in the way spring chiefly from legislative indifference to a subject which many consider beneath their dignity; from the over-enthusiasm of some, who with the best intentions, would place too many restrictions upon the taking or possession or sale game; from the pitiable lack of uniformity in the legislation of the States, and from the lack of power in the United States to legislate upon the subject.
Many people forget, or do not know, that the Unites States Government has no power to regulate fishing or hunting in the States, Our general Government is so strong, and has done so many things, that the mind of the average citizen does not always realize that there are some things which it has no power to do. It was created for special purposes, under a constitution formed by sovereign States which pre-existed it, and one of the first amendments adopted, reserved to the States and their people the powers not delegated to the general Government by the Constitution. That Constitution granted no power to the United States to regulate or control hunting or fishing; and the Supreme Court of the United States has repeatedly declared that it has no control over these subjects, except in certain incidental ways. True, the United States has exclusive control over the subject of navigation, and it has been held that fishing plants existing under State laws may not interfere with the navigation of streams under Federal laws. Otherwise fisheries are subject solely to State control. So, too, the United States has exclusive power to regulate commerce between the States and with foreign nations. This has been construed by a New York Court as protecting dealers who buy fish or game lawfully in one State and take it as an article of commerce into another State where its possession is forbidden in the close season. It was said that the fish or game becomes an article of commerce, and that the owner has a right to sell it anywhere, and that a State law forbidding his possession or sale of it at certain season within the State, is legislation restricting his commercial rights and violative of the exclusive power of Congress to control commerce. No Federal decision sustains this. It is remained for a State court to declare this limitation upon the rights of the State. This is a most unfortunate conflict of law. It tends to thwart and trammel State legislation enacted on a well-defined theory of game protection, and in my opinion, the decision is radically wrong. But its effects have been obviated recently through the passage by Congress of what is know as the Lacey Law, passed in 1900, which makes it unlawful for anybody to transport any game into any State as an article of commerce contrary to the laws of the State. The Lacey law came late, however, and after conflicting decisions, by State courts, not only on the above question, but concerning the interpretation of State laws which were substantially alike. The national Government is doing good service now. The Lacey law will accomplish much. It confides to the Department of Agriculture power to propagate game, and incidentally, power to collate and disseminate to all the States the legislation of all the other States, on game protection. Under this law the Agricultural Department has already done what no State has heretofore attempted; it has printed, in one pamphlet, the statutes of the several States on the subject of game protection, and distributed it in all parts of the country; it will be of invaluable service in educating the people and producing uniform State legislation hereafter.
I cannot hope to say anything new in this discussion. I can only repeat arguments that have been made by others, and make suggestions which are not novel.
In the legislation of the several States, there is a pitiful lack of uniformity; and even where the language in the acts of dif-
ferent States is similar, the constructions placed upon the same phraseology by the courts of different States have been divergent and conflicting.
The laws which have been passed for the protection of game may be classified as follows:
First: Those fixing a period in which game shall be protected.
Second: Those limiting the number of animals or birds which may be taken.
Third: Those limiting the class of hunters and the disposition of game after it is taken.
Let us discuss these in their order:
1. Concerning the period in which game may be killed or captured.
All agree that game should be protected during its breeding season. It is equally manifest that different States having the same climate, have, in fact, a uniform breeding season, and that their laws should be uniform upon the subject of protection. Mr. Charles Halleck was a pioneer of this idea and has advocated it most strenuously. He prepared a map dividing the United States into three grand territorial and climatic areas, contending that throughout each of those respectively the close and open seasons should be identical. The first area, called the northern, embraces a tier of States on the same parallel of latitude -- Virginia, Kentucky, Missouri, Kansas, and Colorado and all the States to the north; the second area, called the southern, embraces all of the States to the south of the northern tier; and the third area, called the Pacific, embraces the States on the Pacific slope. He is sustained in his position by the later investigations of scientific men, who conclude that the breeding season is practically identical in the States embraced in these grand divisions, respectively, and that the laws regulating the open and close season in all the States composing each, should be uniform. It would have required much more time, energy and money than may reasonably be supposed to have been at his disposal for any single individual to successfully present and enforce this very sensible idea before the State legislatures. But when the general Government takes the matter up, it is different. There is every prospect that the Government will now succeed, by properly presenting this subject to State legislatures, accompanied by the statistics and the promise of assistance in securing State laws which are intelligently uniform. For this prospect we are indebted to the Hon. John F. Lacey, of Iowa, whose good work is beginning to be appreciated, although the subject was treated as insignificant when he first brought to public notice.
With the close season thus uniformly fixed, we will confront another problem, to wit: The right of citizens to possess or sell game in the close season. Is it wise after forbidding the killing of game within a certain period, to permit citizens, nevertheless, to possess and sell any game during that period? Does not this virtually destroy the chance of successful prosecution by enabling every offender, when detected, to plead that the game possessed or sold by them was game killed in the open season and held over, or game brought in from another State where it was lawfully killed. Manifestly the legislatures in some States believed that such permission would be thus abused and, accordingly, laws passed forbidding the possession or sale of game in close season, whencesoever it came, except for a few days after the beginning of the close season, in order to allow the dealer to dispose of his stock on hand when the open season ended. In California, Illinois, Maryland, Massachusetts, Michigan and Missouri, the decisions rendered by State courts sustain laws forbidding the possession or sale of game in the close season, no matter whence it came, as reasonable regulations to prevent evasion of the game laws. In this they followed the English decisions on the same subject.
In New York, a recent decision has held that although the language was general, it was only intended to forbid possession or sale of game killed in the State. Here we have a conflict of constructions which will not be reconciled, even when the laws are uniform in the three grand division; for the close season will be different in three, and game from the Southern or Pacific sections may, according to this, be possessed or sold in New York during close season. It is a dangerous authority, and the State law of New York ought to be made so plain on the subject that the Courts cannot construe it away.
The States have all united in protecting pheasants and other introduced birds not
native to the state -- most of them for a limited period; but Virginia, Colorado, Oregon and Montana have given them unlimited protection.
Touching game birds which do not exist here and which, when imported dead from foreign counties, cannot be confounded with our own, such for example as Scotch blackcock and English woodcock, they ought to be admitted. They are neither in size nor appearance anything like any bird in America. Their possession and sale cannot be made a pretext for avoiding our own game laws; their enjoyment does not deplete any game stock in America, and our people ought to be allowed to enjoy them, and not educated to think that game laws are passed to enforce upon them senseless deprivations for the benefit of a few who shoot. The same may be said of the Egyptian quail, which cannot be confounded, dead or alive, with any American bird. It is much smaller than the American quail, its head and legs are different; its meat is not of the same color; and the fact that these birds are called grouse, or woodcock, or quail should not debar our people from their use. On the contrary, the right to import them would satisfy the cravings of large cities for game, and relieve the pressure upon dealers to risk violating the laws by serving native game. Such a permission would be invaluable as a protection to our native game, yet it is violently opposed by many ardent advocates of game protection, as if a violator of the law could escape by proving that an American grouse was a Scotch blackcock, or an American wood cock was an English bird twice its size, or an American quail an Egyptian quail, half its size and different in every way. For the above reasons, I strongly advocate the passage of laws permitting the importation of foreign game of varieties plainly distinguishable from American game.
Delaware and Kansas are the only States in the Union which offer no protection to deer, the reason being, perhaps, in case of Delaware, that there is not a deer in the State. Every State in the Union protects quail, but the woodcock is unprotected in Delaware, Kansas and Nebraska, and the only Southern States which restrict the shooting of that bird at all are South Carolina, Alabama and Tennessee.
2. Limiting the number of animals or birds which may be taken.
It seems to me that one of the most efficient measures for protecting game will be to limit the number to be killed by any gunner. Twenty-one States have laws limiting the game bags, but only eleven of them relate to birds. It is true that this limitation may be avoided as may all others, but it is a tangible, feasible and uniform requirement, operating on all classes alike. There is not a game preserve in Europe to which this rule is not applied.
3. Laws limiting the class of hunters, and the disposition which they may make of their game after it is taken.
Eight States have laws prohibiting the killing of game for sale; twenty-four States prohibit the same of certain enumerated game. What is accomplished by such a law? What difference does it make, after game is killed, whether it be sold, eaten or given away? Is any less game slaughtered by reason of such a prohibition. We understand the theory, of course, but a law like that can never be popular. In its essence it is discrimination between classes, touching a thing that belongs to all alike. It assumes that a rich game-hog is better entitled to shoot and will be more merciful to the game than the poor market-hunter. Is that true? It turns loose unrestrictedly all the appliances of inconsiderate wealth, to whom the price of ammunition is no object, and restricts the rights of the poor man, who has as much right and loves hunting as much as the rich, and derives as much pleasure from it, and who has not the appliances for destruction possessed by his rich neighbor. It denies a poor man opportunity to indulge his passion for hunting, because he is willing to forego the luxury of eating, or giving away what he kills of the common store, in order to provide himself with the means to go again; it deprives the farmer's boy of one of the sweetest pleasure he has, for he gets his pocket change from selling the little bunch of game he kills upon his father's farm; it antagonizes the residents of town who never hunt themselves, but enjoy the game which others shoot, and are glad to pay for it. It raises up a storm of unnecessary antagonism among people who would be ardent supporters of a less onerous and equally effective system of
protection. It seems to me this sort of legislation presses the idea of game protection unreasonably far; that it tends to class legislation, giving to a few the rights possessed by all; and that it tends to prevent general support of really effective laws. There is not a nobleman in England or France who thinks it beneath his dignity to sell game which has been killed upon his preserve. When game is killed and in possession of its captor, how can one argue that the manner of disposing of it will affect the question of game protection one way or another? The time to protect it is before it is killed, and the right to kill ought not to be decided by trying to ascertain the motive of the gunner when he is seeking it, or the disposition which he intends to make of it after he kills it. These things lie away behind the main question of protection. The State of Montana prohibits the sale of all game taken in the State, and this seems to me to press the doctrine just discussed to its legitimate limit. No wonder populism flourishes there and the poor natives hate the rich Easterners, who come and shoot and eat the game or give it away, while the residents cannot afford to shoot what is their own, or buy what really belongs to them. It is class legislation of the rankest sort. A similar law has been offered in the New York Legislature, and I predict that it will be defeated, as it should be.
Forty of the States prohibit the export of certain game, and all but three of these prohibit the shipment of quail. There is reason in this, and propriety. The game belongs to the people of the States; there is no State where it is so abundant that the people of the State cannot consume it. The right to export it is a temptation to exterminate it, and denial of that right is a means of limiting its use to those fairly entitled to enjoy it. Yet, it may well be contended that if the law permits a man to kill game, it becomes, when reduced to possession, as much part of his personal property as money in his pocket, and that a restriction upon his use of his property, after it has become absolutely his, is an unreasonable restraint upon his right of disposition, as right co-ordinate with absolute ownership.
Many of the States allow both the export and import of live game for breeding purposes under reasonable limitations during the close season, and this provision should be made universal, as territory depleted of game by extraordinary storms of droughts or other causes should be replenished from more fortunate neighborhoods; to whom, in reverse conditions, it may thereafter return the courtesy.
Another means of protecting game and, in my opinion, one of the most effective, is a system of encouraging the capture and paying rewards for the scalps, of the enemies of the game. It is impossible to exaggerate the depredations of weasels, hawks, owls, and other vermin upon the small game and upon the birds and their eggs. The danger becomes greater as cultivation destroy cover. The States should offer small rewards for the trophies of these game destroyers. The simplest method of dealing with hawks is to place small platform traps on poles in different parts of the farm. The hawks will surely alight on these. In my own experience on a small farm, we catch a great number of hawks by this method every year, and other birds are multiplying visibly. These traps cost about $1.80 a dozen to private individuals and could be bought much cheaper in large lots. If the State or Federal authorities would adopt a system of buying and distributing them I believe they would do more effective work in that way than in any other one way at their command.
The foregoing crude summary of the laws as they exist, shows that the subject of game protection is rapidly approaching proper consideration; that some of the unfortunate conflicts in the past have been obviated for the future; that others can and will be reconciled; that, on the whole, the outlook is more hopeful than it has ever been before; and that, in all likelihood, the American people, with that marvelous common sense and instinct of self-preservation which has made them what they are, will deal with this problem conservatively and sensibly, and transmit to their posterity a bountiful supply of many kinds of game which has been provided for them by a kind Providence.