272 



FOREST AND STREAM. 



[Sept. 28, 1895. 



dition of the laws now found upon the Statute Books, 

 what is the use of these laws; and if they cannot be en- 

 forced, why should there not be an entire new set of laws 

 enacted? 



The answer to this question will be properly presented 

 at the right time and in the proper place. 



We will now pass to the second head of our subject. 



II. The song and insectiverous or non- edible birds, 

 and the laws relating to them. 



The beginning of our investigation will begin with the 

 act of June 3, 1878, and Section 12, which says; 



No person shall at any time within this State kill, trap or expose 

 for sale, or have in his or her possession, after the same has been 

 killed, any night-hawk, whippoorwill, sparrow, barn-swallow, wood- 

 pecker, flicker, robin, oriole, red or cardinal bird, or any other insec- 

 tiverous bird, under ' a. penalty of five dollars for each bird killed, 

 trapped, exposed for sale or had in possession. 



Section 13, same act, says: 



That Section 12 shall not apply to any person who shall kill any bird 

 for the purpose of scientific investigation, or have the same stuffed 

 and set up as a specimen. 



From the passage of this law until May 14, A. D. 1889, 

 the la vp remained unchanged, and no attempt was made 

 to enforce it until within the last two years, when all 

 the laws relative to song birds was put into motion. 



The Legislature of 1889 enacted inter alia this law, the 

 caption of which is: 



An act prohibiting the killing or taking of song and wild birds, ex- 

 cept in certain cases, and providing a penalty therefor. 



Sec. I. That no person in any of the counties of this Common ' 

 wealth shall kill, wound, trap, net, snare, catch with bird lime, or 

 with any similar substance, poison or drug, any bird of song, or any 

 linnet, bluebird, yellow-hammer, yellowbird, thrush, woodpecker, cat- 

 bird, pewee, martin, bluejay, oriole, kildeer. snowbird, grassbird, 

 grosbeak, bobolink, phoebe bird, hummingbird, wren, robin, meadow 

 lark, night-hawk, starling, or any wild bird other than a game bird. 



Nor shall any person purchase or have in possession, or expose for 

 sale, any of the aforesaid song or wild birds, or any part thereof, 

 after the same have been killed. 



Any person or persons violating any of the provisions of this act 

 shall be deemed guilty of a misdemeanor, punishable by a fine of not 

 less than ten nor more than fifty dollars, or both, at the discretion of 

 the court. 



Section 8 made the penalties recovered under this act 

 payable to the county treasurer. 



On the 15th day of April, 1891, this act was amended, 

 making the Passer domesticus, the Eaglish house spar- 

 row, an exception, and permitting this bird and the 

 various kinds of hawks, owls and crows to be killed 

 without mercy, making them outlaws, so that every 

 man's gun could lawfully be raised and fired at them. 



It also makes half of the penalty recovered payable to 

 the informer who would sue for it. 



Having quoted these few laws for the protection of 

 song, wild and insectiverous birds, I have given you 

 every law upon this subject to be found in the laws of 

 Pennsylvania. 



In these laws you will notice the adjective "same" is 

 continually used instead of a noun or a personal pronoun, 



Thia abominable use lead to the killing of all the pro- 

 tection that the law gave to game birds, and here we find 

 the laws relating to our song and insectiverous birds in- 

 fested with the same complaint, and when this law met 

 such disaster at the Supreme Court what hope have we 

 that our laws relating to the song birds will fare any bet- 

 ter before that august tribunal? 



I tell you I should fear to present this subject there, 

 with the hope that I would bear off the palm of victory. 



A close examination of these laws would lead you to 

 think from the wording of the act that you could have a 

 part of a live bird in your possession lawfully, because the 

 act says, "or any part thereof after the same had been 

 killed." 



How the writer of that act or the members of that Legis- 

 lature expected persons to have the head, wing or leg of 

 a living bird in their possession without killing the bird I 

 am at a loss to understand. But such is just the inter- 

 pretation of the expression used. 



Now, what shall be said about the ambiguity of the 

 other phrases of the law: Can birds be caged under 

 this law? 



I am of the opinion of this act that the framer of it 

 intended to express in this act a complete protection to 

 this class of birds, because he starts out at the beginning 

 of the act by saying: 



Whereas, The wilful killing and taking of song and wild birds is the 

 cause of great injury to the agricultural interest on account of the 

 increase of noxious insects, which would be otherwise destroyed by 

 said birds. 



Birds that are killed certainly cannot destroy these 

 noxious insects, so hurtful to the agricultural interest, 

 and if they cannot how can birds caged up and hung in 

 the parlors and rooms of our city friends destroy the 

 noxious insects in the country destroying the fruit crops 

 of our farmer friends? 



This perhaps may be thought to be rather broad, as 

 it takes in the scope of the entire field, and would 

 shut out every object, no matter how beneficial and 

 beneficent. * 



As there are exceptions to every rule, so there are ex- 

 ceptions to this. 



I may say right here that any object looking forward 

 to a scientific investigation of the nature, structure and 

 characteristic of birds as regards their habits, plumage, 

 nesting and methods of breeding, and their seasons and 

 flights, ought to be encouraged, and provisions made for 

 its careful pursuit and investigation by scientific and 

 careful men. 



One of the ways to do this is, of course, to be permitted 

 to kill at any and all seasons, so as to get birds in differ- 

 ent plumage and at different seasons ot the year, and at 

 the different ages of the birds. 



Another method would be to be permitted to gather 

 the eggs of the different classes of birds and to appro- 

 priately label and describe them. 



Last, and a method I would cheerfully advise and re- 

 commend, would be the establishment of an aviary, to be 

 located in a public place for the edification and instruc- 

 tion of the public at large. 



With the parks of our twin cities within reach of each 

 other aviaries could be constructed and put in charge of 

 naturalists, who would care for and properly feed every 

 species of native and foreign bird, and have it in an at- 

 mosphere suitable to its nature. 



I do not think that I overstep the bounds of propriety 

 nor anticipate when I say that the authorities of iSchenley 

 Park contemplate such an aviary, and that one of our 

 best local naturalists, Mr. George Atkins, of Pittsburg 

 has been consulted about the plans for such a place. ' 



I am aware that he and his wife, who, by the way, is a 

 most excellent taxidermist, have sent many perfect, ex- 

 cellent and costly specimens there already, and contem- 

 plate sending others. 



When I quoted Sec. 7 of this act, you may have noticed 

 that it contained the penal clause, and if you did, your 

 attention must have been called to the fact that it con- 

 tained no remedy providing for failure to pay the fine 

 imposed. 



But such is the case. If a man were convicted under 

 this law and refused to pay the fine imposed, no court in 

 the land would have power under this law to imprison 

 him for his refusal. The court is powerless, and the de- 

 fendant walks out free to resume his depredations when- 

 ever and wherever he pleases. 



To you, who are so interested in the protection of these 

 useful and delightful companions, it would seem that 

 every law is a dead letter. And so it is, and now what 

 will you do, and what steps will you take to rectify and 

 correct the defects that I have pointed out? 



Permit me to eall your attention to another part, that is 

 unmentioned in all these laws relating to birds of both 

 classes that I have named. 



First. There is not a single officer in the State of Penn- 

 sylvania who is charged or sworn to enforce any bird law 

 now in existence. 



Second. There is not, and never has been, a dollar ap- 

 propriated by the State of Pennsylvania to enforce a 

 single bird law ever passed by its Legislature! 



In all these laws there is a defect in the remedy to en- 

 force them. What the law ought to state or express is 

 something like this: 



"Any person violating this law shall be fined five 

 dollars for each and every bird killed; and the sum of five 

 dollars for each bird found in his possession, dead or 

 alive; and the further sum of five dollars for each bird 

 caught, trapped or snared, or confined in a cage; and in 

 case of default to pay the fine or costs, or any part 

 thereof, the defendant shall undergo imprisonment in the 

 county jail or workhouse for so many days or so many 

 months, as may be desired." 



With a law fashioned something after this form, have 

 an officer appointed, whose duty it shall be to arrest every 

 person suspected of violating this law in any respect, and 

 authorize him to do so on view, at any place or at any 

 time, and at all hours. Empower him to search every 

 man who has been hunting or been in the fields with dog 

 and gun. If he, the hunter, refused to expose his game 

 upon the demand of the officer, and if he finds unlawful 

 game in the possession of the hunter, have the ofiiceri;ake 

 him to the office of a magistrate and make complaint, 

 and have a fine imposed according to law, together with 

 the^costs of suit, and in default of payment commit the 

 defendant to imprisonment in a county jail or workhouse. 



Also, make a clause in the law to punish every offender 

 who resists arrest or refuses to expose his game upon 

 demand of the officer, and make the penalty to include 

 both a fine, half of which is to go to the officer assaulted, 

 and a term of confinement in the county jail. 



Further, have the Legislature of the State make an ap- 

 propriation sufficiently large to pay men who interest 

 themselves in the protection of both game and song birds. 



And while at it why not appoint them to serve as a 

 game commission, who will have charge of this entire 

 business; to give their entire time to it and to prescribe 

 the rules and laws to govern and protect game. 



Encourage the formation of gun clubs, to provide 

 "game preserves," that they will stock and protect, where 

 birds of all kinds can nest and increase, until the good 

 times of long ago will be the happy hunting seasons of 

 to-day. 



In fact, to give us a fair sample of the times that Adam, 

 the first man, had when he stood alone, the master of 

 everything that breathed, surrounded by the greatest col- 

 lection the world ever saw of birds of every kind, and 

 whose sweet songs were so joyful that even the morning 

 stars sang together. 



What is more delightful than to be awakened from a 

 refreshing sleep at the break of day to hear the sweet 

 songs of the birds? 



If you walk out in the early morning you will see off to 

 one side a dark little bird, singing as if his throat would 

 split, and away off in yonder tree another one attracts 

 your attention, and you are enraptured; you are at peace 

 with God and humanity! But in an instant you are at 

 war, up in arms, belligerent. A man with his gun comes 

 along and the sweet songster of a moment ago is dead at 

 your feet. He has killed itl And for what? Only to try 

 his gun. What ought to be done with a person of that 

 kind? What punishment is severe enough for him? He 

 throws it away, as he cannot eat it, and he walks off. 



If you will permit me I will relate to you a case that 

 came under my own observation in attempting to enforce 

 the laws for the protection of quail: 



One day two ladies came into my office, and after ad- 

 dressing me said: "There is a man comes out our way 

 toward Castle Shannon every week. He brings a dog and 

 gun, and he is shooting all the time, and we are sure he 

 is killing all the birds. What sort of birds we do not 

 know for certain, but we are satisfied he is killing quail." 



As the time was August, I could not conceive of a per- 

 son wanton enough to destroy game out of season. The 

 message was repeated again some time in September, and 

 I determined to investigate and see who it was who was 

 doing the killing. Accordingly I arranged with a gentle- 

 man to send me word when the hunter came out again, 

 and come in on the train if he had to get me word and 

 could do it no other way, and I would pay him for his 

 time and trouble. 



The man came into my office one day on a run, and 

 said, "The hunter is out there again, and we saw him 

 shoot seven times, and are sure he has quail. Come to 

 the train right away." 



To the train we went, but no man. We waited until 

 the next, and Mr. Hunter stepped off the train. I went 

 up to the man, called him by name, and asked him what 

 he had killed, and got the characteristic answer, "Noth- 

 ing." I was not satisfied, and I thrust one of my hands 

 into his pocket and drew out a half-grown quail wrapped 

 in paper. I contmued until I drew from his pockets the 

 old quail and six young ones, and also a half -grown 

 rabbit. 



He had been having his fun, but when the magistrate 

 got through with him he paid $75 of fines and the costs. 

 It was a dear lesson, but was not as severe as it should 

 nave been. 



An instance of the greed of men, as relate to the song 



birds, developed itself this summer when I was at or near 

 Willow Grove, on the Pan Handle Railroad. 



I called at a man's house, surrounded with three acres 

 of excellent land, which had been purchased and paid for 

 by the birdB he had caught and sold, the whole being 

 worth some $5,000 or $6,000. 



He was invited to make a visit to a magistrate's office, 

 some four miles distant, and he contributed $30 and costs, 

 a mere nominal sum for the lives of hundreds of birds 

 that he had captured, killed and sold. 



These are but few of the samples that could be cited, 

 but they are sufficient to show you the need of new laws, 

 new officers and sufficient money to pay for such service. 



In the limits of Allegheny county there are about 

 seventy-five gun clubs, whose membership number up- 

 ward in the hundreds, and whose combined wealth would 

 amount to hundreds of thousands, and yet with all their 

 wealth and membership the combined effort of them 

 would not be to enforce these game laws or to prosecute a 

 single violator of the laws. 



The State of Oregon has a reputation among sportsmen 

 in this country of being one of the best protected States in 

 the Union, and more especially that pheasants are fully 

 and completely protected, 



In a conversation with a gentleman the other day he 

 informed me that it was impossible to get a mongolian 

 pheasant from there dead or alive. That no one could 

 get even the mongolian eggs on account of the severe 

 penalty of their laws. He said that the express company 

 would not carry them out of the State under any con- 

 sideration, but that he had to resort to most desperate 

 measures to get a setting of eggs, and that his friend 

 traveled over 200 miles into another State to get them 

 shipped to him. 



Having been advised of this severe law I became inter- 

 ested in it and looked it up, and I have the pleasure of 

 quoting verbatim Section 1,935 of that law, which says: 



Every person who shall between the 15th day of November and the 

 1st day of September of the following year kill any grouse, pheasant, 

 mongolian pheasant, quail or partridge, except for breeding purposes, 

 shall be guilty of a misdemeanor. 



This is certainly a most startling declaration of the law, 

 and one that will puzzle the brains of our best naturalists 

 and ornithologists as to how they shall carry it into effect. 

 It is the first time in mylifetbat I knew pheasants had 

 to be killed before they could be used for breeding pur- 

 poses. It is also more startling since its perfection has 

 been published all over the land, and held up to the law- 

 makers of our country as a model for them to copy. 



Permit me to again refer to Section 7 of the act of 

 1889. I do this for the purpose of directing your attention 

 to its concluding sentence, which says, inter alia: " * * * 

 punishable by a fine of not less than ten nor more than 

 fifty dollars, or both, at the discretion of the court." 



What- does this mean? Does it mean that the court 

 shall impose a ten-dollar fine and then impose a fifty-dol- 

 lar fine for the same offense? 



It seems to me that such is not the spirit of the context. 

 There is evidently something left out, and what could you 

 imagine it to be? My construction of a completed sen- 

 tence would be to add this, or something similar: 



<< * * * or t un dergo an imprisonment for a period 



of days in the county jail, in default of payment of 



fine or costs, or any part thereof." 



Any sentence added to what has already been suggested 

 would make a complete law, and one capable of giving 

 efficiency to carrying it into effect, and would create a 

 wholesale respect for it. 



Having virtually wiped out all the bird laws of this 

 State, it is but natural that some suggestions should be 

 made to replace them, and the following are offered: 



Create, with enlarged powers, a commission of men 

 learned in such legislation as will prevent the occurrence 

 of the blunders and deficiencies which have been desig- 

 nated in this paper to supply laws which can be enforced 

 by the properly designated officers at once, without re- 

 sorting to the red tape business required by the present 

 system. 



Have this commission also to be men learned in the 

 natural history of the birds, and also of mammals, so 

 that everything relating to their nesting, plumage and 

 flight would be carefully considered, and upon this 

 commission let some of them at least be men learned in 

 the law. 



Have a uniformity of seasons when game birds could 

 be killed lawfully, and limit the licenses to be issued by 

 the prothonotary to naturalists and ornithologists, and 

 men of like characters, and have their applications ap- 

 proved after examination by a society of recognized 

 naturalists and ornithologists in every county in the State, 

 and without such certificate to refuse to issue the 

 license. 



Upon the completion of the work of this Commission, 

 have their work presented to the House and Senate of the 

 State at Harrisburg to pass the laws recommended by 

 them and not to allow any amendments by the members 

 there, but to cut off the egotism of the blundering ignor- 

 amus who would add a proviso to suit his idea, or method 

 of dealing with these laws. I have dwelt upon this part 

 of the suggestions because I was in receipt from one of 

 the honorable gentlemen who occupied a seat in the 

 House a few years ago of a letter containing a dozen lines 

 in wnich over half the words were misspelled, and in 

 which there was an abundance of capital letters distributed 

 in the wrong places. 



I have mentioned this particular case because it is in 

 conformity with what has been stated heretofore. I do 

 not blame the poor ignorant men sent there so much as I i 

 do those who sent them. They are on the same parallel 

 with the poor, old, ignorant, worn-out man who cannot, 

 scrape the streets any more, and the good intelligent 

 people of the ward make an alderman of him. Some of 

 them can hardly write their own name. I know one now 

 who manages to get his name properly written, but some- 

 body else must do the other part. 



When the laws are made and approved by the Governor 

 and signed, then have an appropriation of money made 

 by the Legislature to pay for carrying them into effect. 

 Don't have the great State of Pennsylvania go begging 

 for a man to enforce them for charity or glory, but pay for 

 the service and let it be quid pro quo. 



As I hear some economist say, tnis will cost money, then 

 it is suggested that the Fish and Game Commissioners be 

 consolidated and made into one Commission, and let 

 one third be fish men, another third bird men and the last 

 third be men learned in mammal lore, and in this way al. 



