LAWS REGULATING THE TRANSPORTATION AND SALE

OF GAME.

I. GENERAL DISCUSSION OF LEGISLATION REGULATING SEASONS, SHIPMENT, AND SALE.

INTRODUCTION.

The term game has been variously defined,1 and is capable of various interpretations, but it may very properly be restricted to a few well-marked groups of mammals and birds. The game of North America is practically limited to four groups of mammals and four of birds. The game mammals are (1) ruminants and peccaries (Ungulata); (2) bears and raccoons2 (Carnivora); (3) rabbits and squirrels (Rodentia); and (4) opossums (Marsupialia). Game birds, as defined by the American Ornithologists' Union, comprise (1) Anatidæ, commonly known as swans, geese, brant, and ducks; (2) Rallidæ, including rails, coots, mud hens, and gallinules; (3) Limicolæ, or shore birds, comprising plovers, snipe, woodcock, sandpipers, and curlew; and (4) Gallinæ, including wild turkeys, grouse, prairie chickens, pheasants, partridges, and quail. Certain mammals and birds which are sometimes classed as game should, for various reasons, be otherwise regarded. Among such mammals may be mentioned ground squirrels, muskrats, and woodchucks; among birds, cranes, wild pigeons, doves, flickers, night hawks or bull bats meadow larks, reed birds, blackbirds, and robins. Ground squirrels, muskrats, and woodchucks are not held in high estimation for the table, nor are they usually hunted for sport. Cranes, pigeons, and doves are ordinarily considered legitimate game, but are now so rare that in most States they have been

'Game is defined by Bouvier's Law Dictionary as "Birds and beasts of a wild nature obtained by fowling and hunting." and by the Code of Mississippi as "all kinds of animals and birds found in the state of nature commonly so-called." Michigan, British Columbia, and New Brunswick define game birds as “any birds protected by this act." Maine declares "the term 'game birds' as used in this act shall be construed to mean the ruffed grouse or partridge, all species of the pheasant, woodcock, snipe, plover, quail, and all ducks enumerated in this act; and the term 'game animals' shall be construed to mean moose, caribou, and deer." (Acts of 1899, ch. 42, sec. 50.)

? These animals are seldom mentioned in game laws. As a rule, bears are accorded no protection, and bounties for their destruction are still offered in some States, but in Quebec they have a close season like other game.

practically removed from the game list. Flickers, night hawks, meadowlarks, blackbirds, and robins are insectivorous, and although considered good eating, are far too valuable to be killed for sport or market. Reedbirds or bobolinks are regarded as pests in the South and are highly esteemed as song birds in the North; they are treated as game in only five States along the middle Atlantic coast, where they are neither particularly beneficial nor injurious. They too may therefore be removed from the category of game.

In comparison with some of the continents of the Old World North America is deficient in big game. The true antelopes, which are found in such wonderful variety in Africa, are entirely unrepresented in this country, the nearest approach to them being the single species of prong horn, or so-called antelope. Wild sheep and goats, of which there are numerous species in Asia, are comparatively few in number in this country and are confined to the mountains of the West. In game birds, on the other hand, North America compares favorably with any part of the world. Upland game is represented by quail and grouse in great variety and by several species of one of the finest of all game birds-the wild turkey. Shore birds are abundant in some localities at certain seasons, and the ducks and geese which resort to our streams and coasts in winter have rendered certain feeding grounds famous the world over. When this list is increased by the addition of the finest of the Old World pheasants, several species of which have already been introduced, the variety of game birds will be unsurpassed by that of any other region of similar extent.

Improvidence and wantonness have, however, rapidly depleted the stock of game. Buffalo are gone; elk, moose, and caribou are rare, except in a few favored localities; and even deer, which are generally distributed, have been greatly reduced in numbers by unnecessary and unreasonable slaughter. Wild pigeons, like the buffalo, have been practically exterminated; the prairie chicken is no longer found in much of the country that was its native home half a century ago; wild turkeys and woodcock are almost extinct in many localities where they should be numerous; and ducks and geese, which only a few years ago were remarkably abundant in some sections, are rapidly growing scarcer. Even quail, the subject of more legislation and receiving better protection than any other kind of game, are now maintained in many places only by frequent restocking of depleted covers. This diminution in the game supply is due partly to lack of proper enforcement of game laws, partly to the pernicious practice of spring shooting, and partly to the rapid development of the trade in game in recent years.

Doubtless it would be interesting to trace the steps in the development of game legislation in this country, but it will be sufficient merely to refer to a few of the more important points. "The laws relating to game in the United States are generally, if not universally,

framed with reference to protecting the animals from indiscriminate and unreasonable havoc, leaving all persons free to take game under certain restrictions as to the season of the year and the means of capture. * * * As the most effective means of enforcing such statutes, most of them prohibit all persons, including licensed dealers, under penalty, from buying or selling or even having in possession or control any game purchased within a certain period after the commencement of the close season. "" 1 The principle that the game belongs to the State and that its capture is a privilege, but not a right, is becoming generally recognized. It has been upheld by several of the State courts; and the laws of Colorado, Illinois, Michigan, Minnesota, Texas, and Wisconsin declare specifically that the title to game is vested in the State.

Laws fixing seasons for the killing of game date back more than a century, as exemplified by the New York statute protecting heath hens, which was passed in 1791. The necessity for regulations controlling the manner of capturing game also attracted attention at an early date, as shown by the Virginia law of 1832, which prohibited killing wild fowl with swivel guns, or while they were at rest on the water at night. More recently, restrictive measures have been adopted which require licenses from nonresidents, limit the number of birds or animals which may be killed in a day or season, and authorize the maintenance of wardens for the special purpose of enforcing game laws. Of late years, legislation has also been directed toward restricting traffic in game. Laws prohibiting export of game from the State, at first experimental, have been generally adopted since their constitutionality was established by the Supreme Court in a decision. rendered March 2, 1896. Progress has also been made in restricting the sale of game and the killing for market. In several States, market hunting for deer and certain game birds is absolutely prohibited at all seasons; in others, laws against the sale of certain game are in force; while in three States at least-Kansas, Idaho, and Montana-the sale of all game protected by the State law is illegal.

BIG GAME.

The big game of the United States is rapidly disappearing. As already stated, buffalo are almost extinct; elk and antelope have been killed off in many localities in which they were formerly abundant; moose, caribou, mountain sheep, and mountain goats are now found in only a few States; and deer are rare in many places where they should be common. To such an extent has this decrease proceeded that vigorous measures are now necessary to prevent the

1 Bouvier's Law Dictionary.

2 Geer v. State of Conn., 161 U. S., 519.

extermination of all big game. Legislation has been directed toward stopping slaughter for hides, materially shortening the seasons, limiting the number which may be killed, prohibiting sale and shipment at all seasons, and in many cases prohibiting shooting indefinitely or for a term of years.1

In the case of deer, fawns are generally protected; in Arizona and California does, and in Vermont deer without horns are protected at all times. In five States the open season has been reduced to thirty days or less-in Pennsylvania, thirty; Michigan, twenty-three; Minnesota and Wisconsin, twenty; and Vermont, ten; and in seven others it has been withdrawn either temporarily or permanently. In New Jersey, and in four counties of New York and two of Wisconsin, deer are protected at all seasons until 1902; in Connecticut, Massachusetts, and four counties of Maine, until 1903; in Illinois, until 1904; in Rhode Island, until 1905; in Garrett County, Md., until 1906; and in Iowa, Oklahoma, and one county of Tennessee, indefinitely.

The killing of other big game has been still more restricted. Elk are protected in New Mexico, until 1904; in Oregon, until 1910; in Arizona, California, Iowa, New York, North Dakota, and Utah, indefinitely. Close seasons for moose continue in Wyoming until 1902; in Idaho, until 1904; and in New York, North Dakota, and Vermont, indefinitely. In Maine the killing of cow or calf moose, and in Minnesota the killing of moose without antlers at any time is prohibited. Caribou are protected in Idaho until 1904; in Maine, until 1905; and in New York, North Dakota, and Vermont, without limit. Killing unantlered caribou in Minnesota is illegal at any season. For antelope, the term of protection in Texas extends to 1902; and in Arizona (females only), California, New York, North Dakota, Oklahoma, and Utah it is unlimited. Protection at all seasons and without limit is given mountain sheep in Arizona, California, Colorado, Montana, North Dakota, and Utah; mountain goats, in Arizona and New Mexico; and bison, in Colorado, Montana, North Dakota, and Utah.

Only fifteen States and Territories permit the killing of big game other than deer. All but five of these limit the number that may be killed, and have cut down the open seasons until the maximum is only four and one-half months and the minimum but five days. Export is practically prohibited in all States where such game occurs except Minnesota, Montana, Nebraska, and New Hampshire, and in these States restrictions, in some cases little short of actual prohibition,

Similar laws are in force in Canada, but are not considered in the following discussion. It may be mentioned, however, that deer are protected in Nova Scotia until 1904; elk in Ontario indefinitely, in Nova Scotia until 1904, and in Newfoundland until 1906; moose in Ontario until 1903, and in Newfoundland until 1906; and caribou in Ontario until 1903.