Wednesday, July 20, 2016

An act to prevent the destruction of small and harmless birds (1850)

On March 6, 1850, New Jersey passed the first law in the United States offering protection for specific songbirds. As we've seen previously, states already had laws describing close seasons for game birds. Massachusetts, which had pointed to "insectivorous birds" in its 1818 "useful bird" law, only really protected the robin and meadowlark, and then only during breeding season. The anti-trespassing section of that law was the part that was supposed to prevent the unwanted shooting of birds generally.

New Jersey's law, however, pointed to specific non-game birds. It made it illegal "except upon his premises" to shoot or kill or destroy or willfully destroy the eggs of the following "birds" at any time of the year [I've retained the original spellings and have tried to identify the species in italics using current names]:

Night or musquito hawk Common Nighthawk
Chimney swallow Chimney Swift
Barn swallow
Martin or swift Purple Martin and other swallow species
whippowil Eastern Whip-poor-will
Cuckoo Yellow-billed Cuckoo and Black-billed Cuckoo
Kingbird or bee martin Eastern Kingbird
Woodpecker (all species)
Claip or high hole Northern Flicker
Catbird Gray Catbird
Wren (all species)
Bluebird Eastern Bluebird
Meadow lark Eastern Meadowlark
Brown thrusher Brown Thrasher
Dove Mourning Dove
Firebird or summer redbird Scarlet Tanager
Hanging bird Baltimore Oriole
Ground robin or chewink Eastern Towhee
Bobolink or ricebird
Robin American Robin
Snow or chipping bird Dark-eyed Junco and Chipping Sparrow, thought to be winter/summer variations of the same bird
Sparrow (all species)
Carolina lit Carolina Chickadee
Warbler (all species)
Bat (all species)
Blackbird Common Grackle, Red-winged Blackbird
Blue Jay
The small owl Eastern Screech Owl

It is hard to know where to start with this list. Maybe with "bat"? Clearly there was little expert ornithological input. Indeed, despite the availability of relatively inexpensive guides to the birds of Eastern North America, it was incoherent, incomplete, and filled with misspellings. Nevertheless, it was a turning point in US legal protection for non-game birds, particularly those (blackbird, blue jay) often considered "harmful."

Later in the year, Connecticut would pass a law of its own, "An act to prevent the destruction of certain small birds." It was apparently modeled after the New Jersey law, though its list was slightly shorter (and its spelling more secure):

Martin or swift
Night or mosquito-hawk
Wake-up or high-hole Northern Flicker
Long-tailed thrush or brown thrasher
Meadow-lark or marsh quail
Fire bird or summer red bird
Hanging bird
Spider bird or wax bird Cedar Waxwing
Ground robin or chewheat
Bob-o-link or rice bird

A look at the activity in the Connecticut legislature around this act reveals some (unsuccessful) attempts to amend the list. Efforts to remove the king-bird and brown thrasher failed. Efforts to add the crow failed. The blackbird, wren, quail, hummingbird, rose-breasted grosbeak, and phebe were added the following year. The presence of the widely reviled cedar waxwing is of particular interest.

Vermont would pass a similar law in 1851; Massachusetts in 1855. According to T.S. Palmer's (1902) Legislation for the protection of birds other than game birds, by 1864 these kinds of laws would be in place in 12 states plus the District of Columbia.

Successful passage of these laws was harder in some states than others. Bird-related laws were relatively stable in New Jersey and Connecticut in the ten years prior to their new "small birds" laws. In New Hampshire, by comparison, there was considerable activity. A look at legislation from that period reveals failed attempts to pass laws protecting "partridges and the smaller innoxious birds" and a successful attempt (after a number of failed attempts) to establish a bounty for crows (immediately followed by (unsuccessful) attempts to repeal the law). Among the most interesting of the bills proposed was one protecting passenger pigeons against the "wanton, mischievous and malicious acts of sportsmen, idlers, and vagrants." Apparently, shooting into the assembled flocks disturbed the efforts of professional pigeon netters, causing them economic hardship. (A version of this law actually passed in Massachusetts).

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