May 7, 1891.] 



FOREST AND STREAM. 



809 



everything as with a veil. There is an old-time stand of 

 mine only a little way ahead and it is toward this spot 

 that we direct our boat. A mighty flock is found feeding 

 contentedly in the very spot where our canvas birds are 

 destined to sit, and carefully routing the ducks without 

 firing a shot we are soon located one on each side of the 

 stream with, our handsome flock of decoys midway be- 

 tween. M. has not had time to conceal the boat which 

 he has taken to his side of the river before a pair are seen 

 bearing down upon us from up the stream. lamina 

 trying position, perched upon a tottering bog which is 

 constantly threatening to collapse and subject me to a 

 plunge bath, but I cannot resist cutting loose on the head 

 bird (an old male) as he passes overhead, dropping him 

 close in shore. No time to pick up dead now. I can see 

 that plainly, for a pan- of buffle-lieads come in with a 

 rush from the north. Ah-room, ah-room, a sharp report 

 sounds from each side of the river and goes rolling and 

 quivering through the fog. Spat, spat, upon the water 

 follows. A voice from the further side of the river sings 

 out "And the wind whistled." 



One of my boots has sunk in the mud until the top is 

 painfully close to the waterline, and there is also a hor- 

 rid suspicion dawning across my mind that a certain 

 portion of that garment covering the largest part of my 

 anatomy is also becoming dampened. Cautiously I reach 

 for a square piece of plank I espy a few feet distant. 

 "Mark south!'' comes from the blind opposite; and in. my 

 efforts to get in readiness for a shot I ship a few stray 

 drops down boot leg No. 1. Bang! bang! from Charley, 

 and a moment later I make a successful shot, which 

 nearly proves disastrous to my equilibrium at the same 

 time. A few seconds later I have gained the coveted bit 

 of pine and feel comparatively safe from any further 

 wetting, although I am still far from comfortable, 

 crouching in from 6 to 20in. of cold water, amid a coarse 

 growth of wire grass. Uur dead birds are fast disappear- 

 ing from view down the stream, and it is decided that 

 we had better make a hasty collection rather than lose 

 what we have down, M. is gone but a very few minutes, 

 but upon his return I point out to him fotir more birds 

 which have fallen in the meantime, M. enthusiastically 

 begins counting our string as soon as he regains his blind, 

 but only gets as far as seven, when I silence him with a 

 "Lookout, north!" for five bluebills are upon us. Our 

 salute cuts down thi-ee of the five, and thus the sport 

 goes on. Four geese are noted winging their way 

 diagonally toward us. R ither too high, but two barrels 

 of fours are sent spitefully upward, and we are favored 

 with a single quill cut from a wing as they pass. 



At 7:80 the flight slackens and we take up our decoys 

 and gather in the dead, drifting onward down the river 

 to the club house. Our string of twenty-nine birds fully 

 satisfies us. We have enough for ourselves and our 

 friends, and what more do we want? 



E, not putting in his appearance, we hang our birds 

 against the side of the shanty and expose a plate from 

 the Hawkeye upon the scene. The pleasing picture lies 

 before me even as I am writing this narrative and serves 

 to bring back vividly each good, bad or indifferent shot 

 mgde during one of the pleasantest morning's shoots I 

 have ever experienced. 



An eight-mile drive home in the warm April sunshine 

 follows as soon as E, arrives with his 15 birds; and this is 

 as keenly enjoyed as the earlier hours of the day had 

 been. The trogs are still pipmg their refrain from each 

 and every little pond by the roadside, and there is a sus- 



{)iciou8 rainy feeling pervading the air. Bird life is jubi- 

 ant and brimming over with song. Great flocks of red- 

 winged blackbirds are pouring forth their notes from 

 every bush and tree, bluebirds clipper gleefully from the 

 moss-grown rail fences bordering the roadside. Hosts of 

 robins are intent on securing a breakfast from the angle- 

 worms everywhere creeping from the ground. Altogether, 

 the day is one not to be forgotten, and the remembrance 

 of it will serve to tide over the long and monotonous hours 

 of duU office routine which the future has in store for 

 us. Geeenhead. 



SIX YEARS UNDER MAINE GAME LAWS. 



VI. — ON NON-TBANSPORTATION IN OPEN SEASON. 



FOB the plain words to our visitors that have preceded, 

 let us even use Robin Hood's own apology: "Nay, 

 my Lord Bishop," said Robin Hood, "we are rough fel- 

 lows, but I trust not such iU men as thou thinkest after 

 all. There is not a man here that would harm a hair of 

 thy reverence's head. I know thou art gaUed by our jest- 

 ing, but we are all equal here in the greenwood, for there 

 are no bishops, nor barons nor earls among us, but only 

 men, so thou must share our life with us whilst thou 

 dost abide here." 



Most sportsmen will remember that we have had a very 

 strict non-transportation law— at lea^t, they will say that 

 their impression is such. Of any twelve men here who 

 are interested in game matters, the majority wiU say the 

 same — a very strict non- transportation law, strictly en- 

 forced, recently so modified that game legally kQled 

 can be shipped to points inside the State but not outside. 

 It will be generally admitted that from 1883 onward we 

 had a law which practically forbade any deer, moose, or 

 caribou to be transported from point to point, except by 

 private conveyance. Let us hear "Special:" 



Forest and Stream, Nov. 13, 1884: "It is not pleasant to be 

 obliged to say that even under the very strong transportation 

 law of Maine deer carcasses and even moose antJers do get out of 

 ttat State and are seen here * * * a flne pair of deer antlers 

 came tnrough. the other day, and worse yec, five carcasses of 

 venisoa came through Jast week. The name of the express com- 

 pany io known which forwarded them and the Maine Commls- 

 Bioners have been notified, " 



FoBEST AND STREAM, Nov. 27, 188^! "Eveu ex-Governor Connor 

 cotild nor, tran sport a deer, killed honorably in open season, from 

 Banfror to Aususta last fall. Commissioner Stilwell when applied 

 to said: 'Governor, I can do nothing for you under the law.' 

 * * * This was under the first enforcement of the new trans- 

 portation law in that State, which Cew at that time tmderstood." 



Forest and Stream. Dec. 11, 1884: "As for venison, there came 

 througu fiom Mame thg season before the non-tran=portation 

 law went into effect between 1,800 and 2.000 carcasses. Tdpy 

 actually rotted outside the Boston markets. Thanks to the good 

 worlc of the Commissioners, such barbarous aud wicked waste of 

 noble game has been stopped. * * ♦ Not a day passes but what 

 th« wardens at the large shipping points in Maine seize par- 

 tridges, ducks or saddles of venison, being smuggled through to 

 Bosfon or New York. The tricks of the poachers are as curious 

 as they are numerous, etc." 



Forest and Stream, Feb. 36. 1885: "The Legislature was also 

 asked to legalize transportation of game over the railroads, when 

 accompanied by the owner, but no satisfaction to the market 

 haaters or the market men was obtained." 



I|9 this aot atrpng corroboration of the all but uniyereal 



impression that the transportation of game was forbidden 

 in Maine at all seasons? To be sure, one man is the author 

 of the whole of it; but he asserts what we all know, that 

 the Commissioners declared this was the law; tliat the 

 wardens executed it as law; that the people believed it to 

 be law, and that they even petitioned the Legislature for 

 a change. 



Let us examine the legal history of the subject. Our 

 first non-transportation law was that of 1878, which read 

 as follows: "Sec. 13, Whoever carries or transports from 

 place to place the carcass or hide of any such animal or 

 any part thereof, during the period in which the killing 

 of such animal is prohibited, forfeits forty dollars." 

 What was the change in 1883 which every one admits? 

 We quote from the Revised Statutes, Chap, BO, Sec. 13: 

 "Whoever carries or transports from place to place the 

 carcass or hide of any such animal or any part thereof, 

 during: the period in which the killing of such animal is 

 prohibited, forfeits forty dollars," Has there been a 

 change since? _ Book of the Game Laws, 1890: "Sec, 13. 

 Whoever carries or transports from place to place the 

 carcass or hide of any such animal, or any part thereof, 

 during the period in which the killing of such animals is 

 prohibited, forfeits forty dollars." 



To the self-same ttxne and words! That is all any one 

 can find anywhere in our laws regarding non-transporta- 

 tion at any season. There is not the change of a jot nor 

 tittle, an iota nor a comma in it. For thirteen years now 

 wo have had this non-transportation law and no other. 

 Why is it that the Commissioners can do nothing to help 

 the ex-governor "under the law?" Why is it that the 

 wardens are all instructed to seizs game legally killed? 

 Why is it that the Legislattxro is asked to alter a law which 

 never existed? And how could such a delusion gain 

 ground over a whole State, when there was no change 

 at all in the law and had not been for five years? 



If not in this law there had been a change in 

 another which seemed to affect this. In 1883 the 

 one moose, two caribou, three deer law was passed. 

 This law, limiting the number to be killed, also 

 made it illegal to have more than the prescribed 

 number in possession— a necessary measure, throwing 

 the burden of proof upon the accused when proof by the 

 accuser might be impossible. Whether it was intended 

 to do more than this is not for the unlearned in the law 

 to say; but that the phrase "to have in possession" was too 

 sweepingly interpreted at first there can be no doubt. It 

 was officially declared that to handle a deer in any way 

 was to have it in possession. The strictest orders were 

 given that no conveyance, public or private, should 

 carry, haul, or in any manner convey more than one 

 moose, two caribou, three deer for the season. Stage 

 drivers were warned not to do it under penalty of seizure 

 of all deer so carried. "This new game law,'' said 

 one of the shrewdest lawyers in Bangor to another, 

 "is a queer kind o£ a law. Now supposing I have 

 three deer legally killed, and you have three that 

 you have killed legally, and you have a sled while I 

 haven't any. Now if as a favor you tell me to pile my 

 deer on your sled, the whole six can be seized, can't they, 

 by this law?" The other agreed. When I asked one of them 

 a week ago if he remembered the conversation, he said 

 that he did not, but until he looked the matter up he 

 always supposed that the law would sanction such an 

 action. 



But how did this gain general acceptance? More than 

 in any other way by the refusal of the principal railroad 

 and express companies to transport venison. When 

 large corporations admitted that to convey game from 

 one place to another was to have it in possession and gave 

 up their businesss with game on account of it, it was 

 natural for private individuals to suppose that they had 

 carefully examined the whole field. Perhaps they did 

 according to their light, but they could not have had the 

 best of legal advice, for we now know that no transpor- 

 tation company can refuse to take what is offered. 

 Neither could our Commissioners have consulted able 

 counsel, or they, too, would have known that common 

 carriers cannot be said to have "in possession" what they 

 are conveying. A little investigation would have con- 

 vinced them that they had no right to interfere with the 

 transportation of animals legally killed. Apparently this 

 investigation was not given; for for years we have wit- 

 nessed the curious anomaly of a whole force of special 

 officers, hired and paid to execute the fish and game laws, 

 being detailed to carry out the orders of transportation 

 companies to their own employees — orders which them- 

 selves were tmtenable and illegal; and being instructed to 

 enforce the orders not by punishing the delinquent em- 

 ployees, but by confiscating the goods which they re- 

 ceived in disobedience to the commands of the company, 

 but which, once received, the company was in honor 

 bound to deliver safely. The transportation companies 

 have received goods up river, and the officers at Bangor 

 and elsewhere have seized them and converted them to 

 their own use without even a form of law: yet it was not 

 contrary to the laws to shi]o these goods, the transporta- 

 tion companies could not refuse to take them, and the 

 wardens or officers who made the seizure very often trans- 

 gressed every form of law in doing the same. Compli- 

 cated and absurd as this state of affairs seems, it has 

 prevailed here for years. 



This is ridiculous, but it may not have been intention- 

 ally unjust at the first. Let us be charitable enough to 

 grant that the Commissioners, wardens and railroad com- 

 panies at the first thought that they were keeping the law 

 to the letter, and that they erred onlv through over-zeal. 

 Yet in the Forest and Streasi for April 24, lb84, ' 'Special" 

 says: "But when early last winter, Payson Tucker, 

 siiperintendent of the Maine Central Railroad, issued 

 his remarkable order to forward no more moose, 

 caribou, deer, or other unlawfully killed [sic!] game 

 over his road or its branches, the backbone of 

 Maine market-hunting was broken. He was immedi- 

 ately followed by a similar order from the managers of 

 nearly every other express and transportation company 

 with lines leading out of Maine." This admits that the 

 order was a private one in every case. But before the 

 year is out, as may be seen by the quotations already 

 given, he speaks of "the strong non- transportation law;'" 

 calls those who undertake to ship game which was legaUv 

 killed "poachers;" and quotes Mr. Stilwell as saying that 

 shipping could not be allowed "under the law." 



Now there was no such law and had been none. Instead 

 of that (though "Special" may not have known it) more 

 than a month before he wrote this iaat extract, and fully 

 eight months before those previously quoted, a case had 



been decided in Bangor, which seems to show that the 

 ex-Govemor could have transported his deer and could 

 have done it "under the law." 



It was the Allen- Young case, which may be found in 

 tho Maine Law Reports, 76 p. 80. The facts are these: 

 Benjamin L. Young, of Mllford, on Feb. 17, 1883, shipped 

 by express for Boston two deer legally killed Dec. 30 and 

 31, 1882. At Bangor Thomas F. Allen, a game warden, 

 seized them on the plea that they were shipped contrary 

 to law — which was admitted. But Mi\ Young maintained 

 that as they were legally killed, the law prohibiting the 

 shipment (Sec. 13, already quoted) was either defective 

 or subject to a different interpretatioii. The case was 

 carried before the full bench of judges, and Mr. Young's 

 claim was sustained. The jtxdges' opinion is of great in- 

 terest, but too long to quote entire. "We fail to see," 

 they say, "any motive for making the mere transporta- 

 tion of the hide or carcass of a deer from one place to 

 another a crime when the deer has been lawfully killed 

 and is lawfully in the possession of the one who trans- 

 ports it [the shipper? or the express company?]. Certainly 

 one may reasonably doubt whether such could have been 

 the intention of the Legislature: and the act being a 

 penal one, a reasonable doubt is sufficient to make it the 

 duty of the Coiu-t to adopt the more lenient interpreta- 

 tion and construe the term 'such animal' as meaning an 

 animal unlawfully killed, as was done in construing a 

 similar statute in Com. v. Hall. Mass., 410." 



The trial of this case before the Bangor Municipal Court 

 was in March , 1883. Th e decision of the judges was given 

 March 4, 1884, The case itself occurred more than six 

 months before the question of non-transportation in the 

 open season came up. The decision was given nearly six 

 months after the transportation managers had refused to 

 receive venison. In giving their decision the judges must 

 have known of this later much-discussed phase of trans- 

 portation, although they do not refer to it explicitly. In 

 framing an opinion, it is at least probable that they would 

 word it so as to apply to cases likely to come up under the 

 new arrangement if this change could in any way affect 

 the question of transportation. This is their opinion: 

 "T/ie transportation of the hide or carcass of a deer from 

 place to place in this State is not unlaivful at any time if 

 the deer ivas killed at a time lohen it icas laitfid to do so?^ 

 Need anything more be said on that point? 



It should be noted that what the judges say of trans- 

 portation "in the State," does not prohibit transportation 

 outside of State limits. Mr. Yoimg's deer were marked 

 to "Boston," yet the case was decided in bis favor. The 

 judges had no jurisdiction over inter-State matters, is the 

 meaning. There is nothing in this to support the view of 

 a witness in the McPheters case (see below) that it is ille- 

 gal to send venison out of the State, though of late this 

 has frequently been declared. 



Here, as early as 1884, only a year after the three deer 

 law was passed, six months after transportation in open 

 season was forbidden, is a decision which settles the 

 whole matter so far as the duty of the Commissioners 

 and wardens is concerned. True, it does not say whether 

 a transportation company can carry more than three deer 

 for the season; but it does say that any man who legally 

 owns three deer may carry them where he pleases. If 

 the railroad and transportation companies cannot take 

 these deer for their owner, or think they cannot, that is 

 their business. If they do take them it is at their own 

 risk, not the owner's; and if anybody is to be arrested it 

 is the plain duty of the wardens to arrest the railroads. 

 It is no longer a question in which the game or the owners 

 of it are concerned. 



Did the Commissioners forbid the wardens to seize 

 game in transportation after this decision? The decision 

 was given March 4, 1884. Read what "Special" says 

 under date of Dec. 11, 1884 (already quoted). There is no 

 lack of corroborative testimony. Did the Commissioners 

 know of this decision? They did. First, it was their 

 duty to know it, understand it and act in accordance with 

 it; second, the suit was begun by one of the prominent 

 wardens and he was defeated— which cotxld not fail to he 

 known to the Commissioners; third, Mr. Stilwell himself 

 was present at the trial before the municipal court and 

 knew the facts. Yet the work of seizing game while in 

 transportation in open season did not fairly begin until 

 the fall of 1884, and was kept up until January, 1889, in 

 spite of this decision. 



It is this on the one side that makes people here believe 

 that this interpretation of the law was not accidental. 



On the other hand the action of the transportation 

 companies laid them open to criticism on the same score* 

 If tbey had refused to take any game because it made 

 them hable to suits for damages^ they would of course be 

 liable as long as the law was in force, and that law 

 (Sec. 13) still exists. Nevertheless the transportation 

 companies repeatedly ran the risks of this penalty. 

 Game was put on board the trains, and the employees 

 allowed it. They refused to handle it themselves, 

 but they did not interfere when the owner picked 

 up his own deer and carried it aboard the train, 

 even if he carried it into the passenger car, as my 

 father did once. A guide writes me: "All jjarties that 

 I have had have carried their game home, that would 

 3Ut it aboard themselves and watch it, but most always 

 lad a lot of cheap talk with the railroad men and 

 wardens. But when the men hung to their game the 

 wardens did not dare to meddle with it." In short it was 

 not very long before non-transportation became this: No 

 deer can be carried unless the owner is with them to keep 

 the wardens from seizing them. The railroads, it was 

 discovered, could carry all they pleased; they were not 

 liable for having them' in possession. The wardens, how- 

 ever, could seize anything that was carried— at least did 

 seize everything they wished to. The result was that no 

 one was responsible except the owner of the deer, whose 

 right to convey his own property over public lines of 

 travel was neither protected nor recojinized. The cases 

 of illegal seizure of game, belonging both to sportsmen 

 outside and to citizens, are too many to admit this state- 

 ment's being questioned. Non-transportation came to be 

 as I have said merely a question of whether the owner 

 was present to prevent himself being robbed. At last 

 it became ctistomary for the company to check deer 

 as personal baggage, both for convenience and safety. 

 The railroad employees no longer refused to handle it, 

 the companies were gracious about receiving it and the 

 owner rested easy at Bangor. StUl all was not safe, as 

 the McPheters case shows. This case has recently 

 been settled aud I have obtained the printed report of 

 evidenee, attested by the olerk of courts, from whieh I 



