The earliest recorded game law is found in the twenty-second chapter of Deuteronomy, where it is forbidden to take a bird from her nest. The earliest law upon this subject in America that we find was the act of the Assembly of Virginia of 1699, II. William III., wherein the killing of deer between January and July was prohibited under a penalty of 500 pounds of tobacco. In Maryland an act was passed on the same subject in 1730, which recites the evils of constant shooting—"Which evil practice, if not put a stop to, may in a few years entirely destroy the species of deer, to the great damage of the good people of this province; be it enacted by the Right Honorable the Lord proprietary, by and with the consent of his Lordship's Governor and the upper and lower Houses of Assembly, that it should not be lawful that any person (Indians in amity with us excepted), between January first and July last, to kill any deer under the penalty of 400 pounds of tobacco." South Carolina followed in 1769 with an act prohibiting the killing of deer during the same period, "under a penalty of forty shillings proclamation money." Both of these acts prohibited night hunting with fire-light, as did also the Statutes of the Mississippi Territory.
The earliest laws upon this subject in Kentucky were passed in 1775 by the Legislature, appropriately holding its sessions under the greenwood trees, and their author was Daniel Boone.
The earliest law in the State of New York was passed in 1791 (2 Session Laws of 1791, p. 188), and it prohibited the killing of "heath hen, partridge, quail or woodcock" on Long Island, or "in the city and county of New York," under penalty of twenty shillings.
Laws upon this subject thereafter multiplied in New York, varying in their scope and character with every Legislature. Sometimes the prosecution was left to the county prosecutor; sometimes it was permitted to the informer, who shared the penalty; sometimes the power of enacting laws was reserved to the State; sometimes it was delegated to the supervisors. In 1879, by the influence of the Society for the Preservation of Game, a complete act was passed, entitled "An Act for the Preservation of Moose and Wild Deer, Birds, Fish and other Game," which for many years was vigorously enforced by that Society, and became the model for like laws in many other States. This law made the possession of game during the close season the offense, and not prima facie evidence of killing, and also it removed from the various local supervisors the power of making laws upon this subject.
These two essential features of law cannot be too strongly insisted upon with all lawmakers. Under this statute hundreds of prosecutions were made and convictions had in the markets of the great cities. The bidding for game by wealthy cities is the incentive to unlawful killing, and the closing of the markets stops the poacher's business more thoroughly than the conviction of an occasional poacher. When the law permitted game killed in other States during the open season to be sold in the State of New York in the close season, there was no lack of evidence to show that every head of game was killed elsewhere and in the open season, and the petit jury always found in favor of the oppressed market man. When the law was changed so that all game, wherever killed, was decreed illegal, the defense was plead that such a law restricted commerce and was unconstitutional; and it was not until the Society carried the case of Royal Phelps, President of the Society for the Preservation of Game, against Racey, through to the court of last resort, as reported in 60th New York Reports, that this defense was decreed insufficient. That case was followed in Illinois (97 Ill., 320), and Missouri (1st Mo. App., 15), and in other States, until it became the established law of the land. The Supreme Court of the United States held (125 U. S., 465), that a State cannot prohibit the importation of merchandise from another State, but can the sale. That court also sustained the right of States to protect fisheries and destroy illegal nets (Lawton vs. Steel, 152 U. S.), and it affirmed the right of States to compel the maintenance of fishways in dams erected in rivers (Holyoke Co. vs. Lyman, 82 U. S.). The United States courts also maintained purchaser's title to marsh lands and enjoined trespassers from shooting thereon in Chisholm vs. Caines (U. S. Circuit Court of the 4th District). Thus, step by step, the game laws of the land were sustained, held to be constitutional and enforced.
The forms of defense which offenders deem it righteous to make to game prosecutions are without number, and as fraudulent as their trade is wasteful. One instance will illustrate. The writer, as counsel for the Society for the Protection of Game, prosecuted one Clark, a prominent poulterer in State street in Albany, for having and offering for sale several barrels of quail. The case was tried at Albany, Hon. Amasa J. Parker appearing for the defense. After the plaintiff's witnesses had proved the possession of the birds, the offering for sale as quail, and the handling of several of them by the witnesses, the defendant testified that these birds were not quail at all, but were English snipe, and that their bills were pared down and the birds were thus sold as quail, as they brought a better price, and that he frequently did so in his trade. Probably no person in the court-room believed this evidence, but the jury found for the defendant.
The defense has been frequently interposed, that the birds in question were not the prohibited birds, but were some other or foreign variety, until it was found that it was necessary always to purchase and to produce in court, fresh or dried, some of the game in regard to which the suit was being tried.
Before leaving the litigation of the courts of the State of New York, and in order to show how early and ardently the gentlemen of the old school followed the diversions of the chase, it is well to cite the case of Post against Pierson, tried in 1805 before the venerable Judges Tompkins and Livingston, and reported in 3d Cain's New York Reports. It there appears that Mr. Post, a worthy citizen of that most traditional hunting ground, Long Island, organized a fox-hunt. The chase went merrily—
An hundred hounds bayed deep and strong,
Clattered an hundred [more or less] steeds along,
and they started a fox and had him in view, when one Pierson, of Hempstead, the defendant in the case, well knowing of the chase, yet with wicked and felonious mind intercepted, shot, killed and carried away the fox. Post brought suit for the value of the animal, and the injury to the outraged feelings of the members of the hunt. Counsel learned in the law declaimed, and the wise opinion of the court, citing all the authorities from Puffendorf down, covers five printed pages, and finally decided that, "However uncourteous or unkind the conduct of Pierson in this instance may have been, yet this act was productive of no injury or damage for which a legal remedy can be applied."