Bird Laws reconsidered (1845-1849)

By the mid-to-late 1840s, it was clear that public opinion--that is opinion as articulated and debated in the (northern) agricultural, religious, and general press--was on the side of bird protection. Those who publicly disagreed were constrained to argue for the destruction of certain birds at certain times and even then they could expect fierce opposition. An interesting symptom: The American Farmer awarded a prize for the top essay on "the best means of preventing the destruction of various crops by birds, insects, &c). The winning essay, published in March 1849, was one that reframed the bird topic to focus on their protection rather than the prevention of their depredations.

Nevertheless, the prevailing opinion did not seem to be making much of an impact on the ongoing actual destruction of birds. This led some authors to despair. A correspondent to the American Agriculturist (November 1849) under the title "Spare the Birds," complained,

It is no use preaching this doctrine . It never will be practised before men suffer just as the coffee planters in Madagascar did. [This was another celebrated case where birds were destroyed and harmful insects thrived.] Children are educated from infancy to destroy the birds, instead of studying their habits.

Discussion turned again to legal solutions. In its January 1845 edition, The Farmers' Cabinet and American Herd-book ran a report from a subcommittee of the Philadelphia Agricultural Society charged with inquiring into existing laws "restraining gunners from trespassing on farms and destroying birds in this county &c."  The report found that the laws in neighboring counties were in fact surprisingly sufficient. As early as 1760, there had been laws in place requiring permission from landowners to use guns on their lands. This was revised in 1821 to include a more severe penalty. The most recent laws (1844), prescribed a close season (March-August) on robins, flickers, bluebirds, woodpeckers, sapsuckers, thrushes, or "other insectiverous bird." [my emphasis]. The caveat: anyone had the right to shoot any bird on their own property at any time.

The real problem, according to the report, was lack of compliance. There was little farmers could do about the "lawless, idle, and desperate" class increasingly generated by cities. That was society's problem, caused by the neglect of the "rod and the Bible." The report urged agricultural communities to come together and make a show of enforcement by hiring agents to be at hand to arrest trespassers. (Note how little progress had been made, despite the laws, by looking back at one of the earliest agricultural paper accounts of this problem).

Despite the problem of compliance, which would haunt the bird protection movement into the Audubon Society era, some called for the broadening of existing laws and the creation of laws nationwide. L. Wetherell, writing in The Genesee Farmer (June 1849), for example, was encouraged by the recent update to Massachusetts bird law ("An Act for the Better Preservation of Useful Birds") which extended close seasons on certain game birds and banned the killing of robins and larks during any season, calling it a "comprehensive law" [it wasn't, really] because "all birds are 'useful birds'--not excepting even the Crow, the least beloved, and the most universally persecuted of land birds."

Would that there might be a similar law enacted by the Legislatures of all the States of this great Republic.

When the destruction of certain birds was legally permitted, even encouraged, that left the door open to wanton depravity.

What considerate father or guardian can equip his boy with a musket to go abroad into the field, orchards, hedges and woods to shoot birds! They go out some of them, it is true, professedly for the purpose of shooting what are called, "noxious birds." But they return and exhibit as the fruits of their success not unfrequently a collection of robins, orioles, warblers &c &c.

The New England Farmer (which had just been resurrected under a new publishing regime), ran an article from the Boston Patriot (May 26, 1849) arguing that such legislation needed to be informed by the "labors of the scientific ornithologist." Contrary to Wetherell's wishful thinking, Massachusetts still called out several species for persecution.

[A] war to the knife is declared against crows, blackbirds, owls, blue jays, and hawks: these…are treated as a sort of pirates, subject to suspension at the yard-arm…It so happens that the character of these very birds has been singularly mistaken; for while the ordinance of legislation has been thus systematically levelled at them, they, on the principle which man would do extremely well to imitate, have been returning good for evil.

On June 9, 1849, the New England Farmer ran a comprehensive "useful birds" article that repeated Wetherell's call.

Since the great utility of birds is well known to every one who reflects on the subject, how important that they be protected, and encouraged to be the familiar associates and assistants of the farmer and gardener! We should have laws throughout the country [my emphasis] from their protection against the heartless sportsman, or cruel boys, who would kill the innocent and useful birds, or rob their nests. In some towns, it has been wisely ordained that no birds shall be killed or entrapped; and this subject is worthy the attention of every town. 

(Regrettably,  the editorial staff of the Farmer did not seem to possess a high level of ornithological knowledge, using a cutting of a European goldfinch as the article's header).


By the end of 1850, the bird protection movement would have its first "model laws," explicitly protecting non-game birds, courtesy of the legislatures of the states of New Jersey and Connecticut.