The Massachusetts Bird Law of 1855 and the dawn of Economic Ornithology

In April 1855 Massachusetts revised its bird law. This would have far-reaching impacts: it changed the relationship between the agricultural press and bird protection, and spurred the first study that can be called full-fledged "economic ornithology."

Earlier posts have discussed the 1818 bird law, its reception, and revisions. That law had provided a close season on robins and meadowlarks and had allowed land-owners to ban hunting on their properties. The new law, "An Act for the better preservation of Useful Birds," inspired by the "small bird laws" passed in Connecticut and New Jersey, spread the net more widely, mentioning by name, "robins, thrushes, linnets, sparrows, bluebirds, bobolinks, yellow-birds, woodpeckers, [and] warblers [note the omission of meadowlarks!]" Unlike the previous law, it prohibited the taking, killing, or destruction of these birds during the full year and made no provisions allowing land-owners to do what they liked on their own property.

An article in the Barre [MA] Patriot (August 3, 1855), suggests the difficulties with enforcing a law like this in the absence of widespread ornithological knowledge.

The first case that we have heard of under the new law for the preservation of useful birds, came before the Boston police court last Saturday. L.D. Fowler was the accused, and he was charged with the violation of the law inasmuch as he had a large number of bobolinks in his possession. As it was only proved that he had them in his possession, the judge held that he might have raised them, or have taken them before the law went into effect, and he was discharged.

Lest there be any question: L.D. Fowler was guilty. Bobolinks, being migratory birds, do not generally arrive in Massachusetts before May, and the idea that they might have been "raised" is extremely farfetched.  [In fact, bobolinks were sometimes caught and sold as cage birds during this era].

Fruit-growers, accustomed to managing the depredations of robins during cherry season, rebelled against the law. During its January 9, 1858 meeting the Massachusetts Horticultural Society voted to allow the president of the society to ask the legislature to revise the new law. Robins should be removed from the protected list. Some members, citing the robin's value in controlling harmful insects, offered a counter-proposal: delay the request for the robin's exclusion until a full-year study of the food habits of the robin could be performed. J.W.P. [John Whipple Potter] Jenks, entomologist, would be in charge of the study.

T.S. Palmer (1899) calls Jenks's study the first economic ornithology investigation "along modern lines." As we've seen previously, short-term spot investigations of birds' crops and stomach contents had become somewhat routine. Jenks's study, while employing that basic method, would be systematic and long-term, with weekly (and sometimes daily) samples taken between March and September.  According to Palmer, Jenks's revealed the following American Robin diet over the course of the year:

Stomachs taken in March and April contained only insect matter, 90 percent consisting of the larvae of crane flies…From May 1 to June 21 [those] larvae disappeared, but were replaced by a variety of insects, including caterpillars, elaterid beetles, and spiders. From late June to October the stomachs contained strawberries, cherries, and other fruits, but after October the vegetable diet was discarded and replaced by grasshoppers and orthopterous insects.

By June, farm papers were announcing the preliminary results of the study. The New England Farmer, calling the results "favorable to robins," reported that during the first three months of the study Jenks had found only larvae in the crops of the birds, no vegetable matter. The American Farmers' Magazine, in an article titled, "The Robins Vindicated," asserted that the study had "settled the question in favor of the robins."

Meanwhile, in the May issue of the New England Farmer, Wilson Flagg had made a long defense of the robin, suggesting that fruit-growers plant more cherry trees and blueberries to provide a share to robins, instead of petitioning the legislature.

Fruit-growers, however, were not necessarily convinced.

N. Page Jr., of the Essex Agricultural Society, in an October 1859 letter to the New England Farmer, portrayed the law as an assault upon individual rights:

The Bird Law, sent through the Commonwealth on hand-bills last spring, was received, in this neighborhood at least, as a very pretty specimen of Imperial Legislation. Most people here think that a man should have an undisputed right to his own fruit. They fully believe that a free citizen, of a moderately free country, should be allowed to protect his own fruit in his own garden, against the depredations of any wild beast, or bird, that runs or flies. But, although they claim the right, they do not unduly exercise it. Farmers are not devoid of all humanities…

The discovery that robins eat insects was not a surprise, and not of particular benefit to the fruit-grower. And it was not economically feasible for fruit-growers to grow extra fruit for the birds, as Wilson Flagg, among others, had suggested.

I remember that the "Star" correspondent [Flagg] of the Farmer gives no heed to profit or loss, but with admirable coolness, and an easy flourish of his pen, devotes a "large part of our currants, strawberries, and cherries" to the robins….But, permit me to ask, "Who pays the piper?" If friend "Star" should be compelled to pay, as I do, three dollars per day for the "chirping," we should see a "hopping about" infinitely more entertaining than a robin dance. 

Finally, protecting robins was an act of philanthropy. Even if they were protected in Massachusetts, they were not protected nation-wide. Thus, robins fattened with Massachusetts fruit would end up eaten in the South.

The editors of the New England Farmer, tempering its long standing defense of robins, showed sympathy to Page's concerns.

We do not wonder at the sensitiveness manifested by fruit-raisers with regard to the "bird-law."...We like the birds, and encourage their residing near our buildings; but unless the cherry-birds, robins and orioles mind their manners, we shall not listen to their music with as much pleasure as we have heretofore. Mr. Page is pretty severe, and has cause to be so.

In the December 1859 New England Farmer ("Charity for the Robins"), J.S. Needham took direct aim at the Jenks study itself, finding its evidence insufficient even on the grounds of economic ornithology. 

[W]hat incalculable benefit to the poor soil-tiller are four or six birds destroying some five or six hundred worms daily out of millions of millions…

Meanwhile, the editors of the New England Farmer in their notes for December continued the robin-doubting theme:

The birds, those summer friends of ours, [we hardly know whether it is quite fair to call those robins that stole all our cherries and strawberries, "our friends,"] most of them leave us, and sing their songs to other ears.

Ultimately, however, Jenks's continuing research had done the trick. Robins continued to have protection, at least in theory, in Massachusetts, and his work was regularly cited by editors and correspondents in the agricultural press to defend robins. Some agricultural periodicals, on the other hand, wondered if their "spare the birds" message had gone too far and would call for more economic ornithological input into what would be called "the bird question."