Chapter 9
BIRD-PROTECTIVE LAWS AND THEIR ENFORCEMENT--HOW LAWS ARE MADE
Laws for the protection of wild birds and animals have been enacted in greater numbers in the United States than in any other country in the world. In a Government Bulletin on American Game Protection, Dr. T. S. Palmer states that the earliest game laws were probably the hunting privileges granted in 1629 by the West India Company to persons planting colonies in the New Netherlands, and the provisions granting the right of hunting in the Massachusetts Bay Colonial Ordinance of 1647. As soon as the United States Government was formed, in 1776, the various States began to make laws on the subject, and these have increased in numbers with the passing of years. For example, between the years 1901 to 1910, North {168} Carolina alone passed three hundred and six different game laws. As various forms of game birds or animals showed indications of decreasing in numbers new laws were called into existence in an attempt to conserve the supply for the benefit of the people. Not infrequently laws were passed offering bounties or otherwise encouraging the killing of wolves, pumas, and other predatory animals, or of birds regarded as injurious to growing crops or to poultry raising.
State laws intended primarily for the protection of wild life may be grouped as follows: (1) naming the time of the year when various kinds of game may be hunted; these hunting periods are called "open seasons." (2) The prohibition of certain methods formally employed in taking game, as, for example, netting, trapping, and shooting at night. (3) Prohibiting or regulating the sale of game. By destroying the market the incentive for much excessive killing is removed. (4) Bag limit; that is, indicating the number of birds or animals that may be shot in a day; for example, in Louisiana one may kill twenty-five {169} Ducks in a day, and in Arizona one may shoot two male deer in a season. (5) Providing protection at all seasons for useful birds not recognized as game species.
_Definition of Game._--Game animals as defined today include bears, coons, deer, mountain sheep, caribou, cougars, musk oxen, white goats, rabbits, squirrels, opossums, wolves, antelopes, and moose. Game birds include Swans, Geese, Ducks, Rails, Coots, Woodcocks, Snipes, Plovers, Curlews, Wild Turkeys, Grouse, Pheasants, Partridges, and Quails. Sometimes other birds or animals have been regarded as game. Robins and Mourning Doves, for example, are still shot in some of the Southern States as game birds.
_The Audubon Law._--Little was done in the way of securing laws for the benefit of song and insectivorous birds and birds of plumage until 1886, when the bird-protection committee of the American Ornithologists' Union drafted a bill for this specific purpose. This bill, besides extending protection to all useful {170} non-game birds, gave the first clear statutory terminology for defining "game birds." It also provided for the issuing of permits for the collecting of wild birds and their eggs for scientific purposes. The States of New York and Massachusetts that year adopted the law. Arkansas followed eleven years later, but it was not until the Audubon Society workers took up the subject in 1909 that any special headway was made in getting States to pass this measure. To-day it is on the statute books of all the States of the Union but eight, and is generally known as the Audubon Law.
_Game Law Enforcement._--In all the States but Florida there are special State officers charged with enforcing the bird and game protective laws. Usually there is a Game Commission of three or more members whose duty it is to select an executive officer who in turn appoints game wardens throughout the State. These men in some cases are paid salaries, in others they receive only a _per diem_ wage or receive certain fees for convictions. License {171} fees are usually required of hunters, and the moneys thus collected form the basis of a fund used for paying the wardens and meeting the other expenses incident to the game law enforcement.
_The Lacey Law._--The Federal Government is taking a share of the responsibility in preserving the wild life of the Union.
On July 2, 1897, Congressman Lacey introduced in the House a bill to prohibit the export of big game from some of the Western States. In 1909 amendments were made to the Lacey Law, one of which prohibited the shipment of birds or parts thereof from a State in which they had been illegally killed, or from which it was illegal to ship them. The enforcement of this by Federal officers has been most efficacious in breaking up a great system of smuggling Quails, Grouse, Ducks, and other game birds.
_Federal Migratory Bird Law._--Probably the most important game law as yet enacted in the United States is the one known as the Federal Migratory Game Law or the McLean Law. A somewhat {172} extended discussion of this important measure seems justifiable at this time.
When, in 1913, the first breath of autumn swept over the tule sloughs and reedy lakes of the North-west, the wild fowl and shore birds of that vast region rose in clouds, and by stages began to journey toward {173} their winter quarters beneath Southern skies. If the older birds that had often taken the same trip thought anything about the subject, they must have been impressed, when they crossed the border into the United States, with the fact that changes had taken place in reference to shooting.
It is true that in Minnesota, for instance, the firing of guns began in September, as in other years; but those Ducks that reached the Mississippi River below St. Paul found no one waiting to kill them. As they proceeded, by occasional flights, farther down the river there was still a marked absence of gunners. The same conditions prevailed all the way down the valley until the sunken grounds of Arkansas and Mississippi came into view. What did this mean? Heretofore, at this season, hunters had always lined the river. This had been the case ever since the oldest Duck could remember. The Missouri River, too, was free from shooting throughout the greater part of its length, which was sufficient cause for many a grateful quack.
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What was the reason for this great change? Had the killing of wild fowl suddenly lost its attraction for those who had been accustomed to seek pleasure afield with gun and decoys? No, indeed, banish the thought, for it is written that so long as man shall live, Wild Duck shall grace his table and gratify his palate.
The remarkable changes which had so affected the fortunes of the wild fowl were due to the enactment of a United States law known as the Federal Migratory Game Law. Let us see something of this law and of what led to its establishment.
_History of Game Laws._--When the United States of America became a free and independent nation the lawmakers in various commonwealths soon addressed themselves to the task of enacting protective measures for insuring the continuance of the supply of desirable game birds and animals. But as the years went by, and the game showed every indication of continuing to decrease despite the measures that had been adopted for their benefit, other and more stringent game laws were enacted.
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In the fullness of time there came into being in every state in the Union an extensive, complex system of prohibitive measures regarding seasons for hunting, methods of killing, size of bag limit, restrictions on sale, and limiting the kinds of game that might be killed.
Many states also went into the business of rearing, in a condition of semi-captivity. Pheasants, grouse, Hungarian Partridges, Quail, Ducks, and some other species of birds highly esteemed as food, the object of this being to restock covers that had been depleted of bird-life by excessive shooting, or to supply new attraction for field-sports in regions where other game was limited.
Theoretically the methods adopted by the several states were sure to keep the numbers of game birds up to a point where a reasonable amount of sport might be engaged in by those of our citizens who enjoy the excitement and recreation of going afield with gun and dog. It could easily be proven on paper that by judiciously regulating the shooting, {176} and having this conform to the available game supply, every state could at one and the same time preserve the different species, and furnish satisfactory shooting for its sportsmen.
But in practice the theory failed to work as expected; the gunners were on hand every fall in increasing numbers but the birds continued to grow scarcer.
In the vernacular of the sportsman, birds that may legitimately be shot are divided for convenience into three groups, viz., upland game birds, water fowl, and shore birds. It is in reference to the fortunes of the water fowl and shore birds that the greatest apprehension has been felt. Approximately all of the species concerned are of migratory habits. The open seasons when these may be hunted vary greatly in different states and all attempts to get anything like uniform laws in the various hunting territories have been attended with failure.
It became clear in time that the most important action that could be taken to conserve these birds {177} was to prohibit shooting during the spring migration, when the birds were on their way to their northern breeding grounds. Some states adopted this measure and the results bore out the predictions of those who urged the passage of such laws. New York State, for example, tried the experiment, and within two years thousands of Black Ducks were breeding where for a long time they had not been known to occur in summer. So the feeling became general among bird protectors that it would be an excellent thing if spring shooting of all migratory game birds should be stopped everywhere. But the legislatures of many states paid small heed to the little minority of their constituents who voiced such sentiments, and the problem of how to bring about the desired results remained unsolved.
_The Theory of Shiras._--In the year 1904 a United States Congressman announced to the country that he had found the proper solution for settling once and for all the question of spring shooting, and for putting to an end the ceaseless wrangling that {178} continually went on in the various legislatures when the subject was brought up. This gentleman, George Shiras, 3rd, planned to cut the Gordian knot by turning over to the Federal Government the entire subject of making laws regarding the killing of migratory game birds.
In December that year he introduced a bill in Congress covering his ideas on the subject. This radical proposition created merriment in certain legal circles. Was it not written in the statutes of nearly every state that the birds and game belong to the people of the state? Therefore what had the Government to do with the subject? Furthermore, were there not numerous court decisions upholding the authority of the states in their declarations of ownership of the birds and game? Others saw in this move only another attempt toward increasing the power of the central government, and depriving the states further of their inalienable rights. This remarkable document was discussed to some extent but nothing was done. Four years later {179} Congressman John W. Weeks reintroduced the bill with slight modifications. Nothing came of this any more than of the bill that he started going in 1909. In 1911 he again brought forward this pet measure toward which Congress had so often turned a cold shoulder. Senator George P. McLean set a similar bill afloat in the troubled waters of the Senate. Nothing happened, however, until the spring of 1912, when committee hearings were given on these bills in both branches of Congress. Representatives of more than thirty organizations interested in conservation appeared and eloquently sought to impress the national lawmakers with the importance and desirability of the measure. Both bills were intended for the protection of migratory game birds only, but the representative of the National Association of Audubon Societies urged that the bills be extended to include all migratory insect-eating birds, because of their value to agriculture. This suggestion was adopted and after a stiff fight in Congress the McLean Bill became a law on March 4, 1913.
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This new federal statute did not in itself change any of the existing game laws, but it gave authority to certain functionaries to make such regulations as they deemed wise, necessary, and proper to extend better protection to all migratory game and insect-eating birds in the United States. The Secretary of Agriculture, to whose department this unusual duty was assigned, read the law thoughtfully, concluded that the task did not come within the bounds of his personal capabilities, and very wisely turned the whole matter over to a committee of three experts chosen from one of the department bureaus and known as the Biological Survey.
_The Work of the Committee._--This committee at once began the preparation of a series of regulations to give effect to the new statute. Drawing extensively from the records stored in the Survey offices, and seasoning these with their own good judgment and knowledge of existing conditions, they brought out in a period of three months and nine days, or to be more precise, on June 23, 1913, a set of ten {181} regulations which, in many ways, have revolutionized shooting in the United States.
These were printed in pamphlet form and distributed widely; for before they could have the effect of laws it was necessary that they should be advertised for a period of at least three months in order to give all dissatisfied parties an opportunity to be heard.
The whole idea of the Government taking over the matter of protecting migratory birds, as well as the startling character of some of the regulations promulgated by the committee was justly expected to bring forth either great shouts of approbation or a storm of disapproval, and possibly both sounds might be heard. As long experience has shown that it is necessary to have public opinion approve of a game law if it is to be effective, one can well understand that, following the mailing of the circular of rules, these gentlemen of the committee stood with hand to brow and anxiously scanned the distant horizon. Nor did they have long to wait before {182} critical rumblings began to be heard in many directions, for it is always hard for men to give up privileges which they have once enjoyed.
In fact, as the committee waited, the sky began rapidly to fill with interrogation points; for it has ever been the case that the dissatisfied ones of earth are louder in their objections than are the satisfied ones in their commendations.
As a matter of fact, the regulations on the whole were remarkable for their clearness, directness, and fairness. They came nearer being formed for the benefit of the birds instead of for the pleasure and convenience of the hunters, than any general far-reaching bird-protective measure, which has been enacted in this country.
For the purpose of the regulations, migratory game birds were defined as Ducks, Geese, Swans, Rails, Coots, Pigeons, Cranes, and shore birds, which included Plover, Snipe, Woodcock, and Sandpipers. Migratory insectivorous birds were enumerated as Thrushes, Orioles, Larks, Swallows, Wrens, {183} Woodpeckers, and all other perching birds that feed entirely or chiefly on insects.
Having thus conveniently classified migratory birds into two easily comprehensible and distinguishable groups, the way was open to deal with them separately and distinctively. Therefore, after declaring it to be illegal to kill any bird of either class between sunset and sunrise, the regulations went on to state that insect-eating birds shall not be killed in any place or in any manner, even in the daytime.
Among other things this provision, by one stroke, completed the campaign which the Audubon Society had been waging for long years on behalf of the Robin. In Maryland, North Carolina, Mississippi, Louisiana and Tennessee, the Robin-potpie-loving inhabitants must in future content themselves with such game birds as Quail, Grouse, Wild Turkeys, and Ducks. The life of Sir Robin Redbreast has now been declared to be sacred everywhere. He and his mate are to dwell beneath the protection of the strong arm of the United States Government.
{184} Another feature of the Audubon work was also completed by this section of the new regulations. This is the safeguarding of all song and insect-eating birds in the States of Montana, Idaho, Nevada, Utah, Arizona, Nebraska, Kansas, and New Mexico, constituting the group of states whose legislatures had thus far withstood the importunities of the Audubon workers to extend protection to such birds.
Regulation Number Four provided for an absolute closed hunting season on sixty-two species of water birds until September, 1918.
The above includes what we might call some of the minor regulations proposed by the Biological Survey Committee. Then comes the big regulation, the one which was of absorbing interest to every member of the vast army of five million hunters in the United States. This is the regulation which divides the country into zones and prescribes the shooting seasons in each. Touching on this point the Government experts already mentioned gave out this statement by way of explanation:
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_Government Explanations._--"More than fifty separate seasons for migratory birds were provided under statutes in force in 1912. This multiplicity of regulations of zones to suit special localities has apparently had anything but a beneficial effect on the abundance of game. The effort to provide special seasons for each kind of game in each locality merely makes a chain of open seasons for migratory birds and allows the continued destruction of such birds from the beginning of the first season to the close of the last. It is believed that better results will follow the adoption of the fewest possible number of zones and so regulating the seasons in each as to include the time when such species is in the best condition or at the maximum of abundance during the autumn. For this reason the country has been divided into two zones, as nearly equal as possible, one to include the states in which migratory game birds breed, or would breed if given reasonable protection, the other the states in which comparatively few species breed, but in which many winter. {186} Within these zones the seasons are fixed for the principal natural groups, water fowl, Rails, shore birds, and Woodcock. In no case does the zone boundary cross a state line, and except in very rare cases the seasons are uniform throughout the states."
With few changes the regulations were finally adopted. Wherever the federal law conflicted with a state law, the former was regarded as supreme, and to make things more generally uniform the states have since been changing their laws to conform to the Government regulations. After being tried out for three years these rules recently were modified by making five shooting zones and altering certain other provisions. These last regulations which became effective on August 21, 1916, to-day stand as the law of the land affecting migratory birds.
To the United States Biological Survey was intrusted the task of enforcing the law by means of game wardens and other officials. That is, the survey was to collect the evidence in cases of violations, and the prosecutions were to be conducted {187} by the Department of Justice. To enable these officials to execute the law, Congress has appropriated $50,000 annually--which is just about one tenth the minimum amount needed for the purpose. This paltry sum has been expended as judiciously as possible with marked results for good. Trouble, however, soon developed in the courts. One autumn day Harvey C. Schauver went a-hunting on Big Lake, Arkansas, and finding no Ducks handy he shot a Coot, which was against the law. When the case came up in the Federal Court of Eastern Arkansas, the judge who presided declared that the federal law under which the defendant was being tried was unconstitutional, and wrote a lengthy decision, giving his reasons for holding this view. Within the next two months two other federal courts rendered similar decisions.
At this point the Department of Justice decided to bring no further cases to trial until the United States Supreme Court should pass on the constitutionality of the law, the Arkansas case having {188} already been brought before this tribunal. At this writing the decision has not been rendered.
_Only Bird Treaty in the World._--Early in the history of the operations of this law the possibilities of an adverse decision by the Supreme Court were considered by those interested in the measure, and a plan was found whereby all might not be lost if such a catastrophe should occur. The first movement in this new direction was made by Elihu Root on January 14, 1913, when he introduced in the Senate a resolution requesting the President to propose to the other governments the negotiation of a convention for the protection of birds. A proposed bird treaty between this country and Canada was then drawn up, and after much effort was brought to a successful issue and was finally ratified by Congress on September 29, 1916.
This treaty broadly covers the provisions of the Migratory Bird Law in this country, so if the Supreme Court declares the latter to be invalid the Government still stands committed to the {189} principals of migratory bird-protection by virtue of the treaty.
So the long fight to stop spring shooting and provide short uniform closed seasons for shooting shore birds and wild fowl is drawing to a glorious conclusion.
To-day, in the history of wild-life conservation, we have before us the unusual spectacle of the United States Government taking a serious hand in a problem which had been found to be too difficult of solution by the different states working separately. Many of us believe this predicts a brighter day for the perpetuation of the wild life of our country.
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