LEGISLATION FOR THE PROTECTION OF BIRDS OTHER THAN GAME BIRDS. I. GENERAL DISCUSSION OF PROTECTIVE LEGISLATION. INTRODUCTION. Bird protection in its broadest sense appeals to many persons and diverse interests, and its importance is becoming more generally appreciated. The sportsman who values birds chiefly for the pleasure derived from their pursuit as game, the market hunter who hunts them solely for profit, the farmer who regards them in the light of their relation to agriculture, and the many persons of every class who derive enjoyment from their presence, are all interested in the question of their preservation. The sportsman has long realized the necessity for protective measures, but the farmer has only recently learned to appreciate the full value of birds as insect destroyers. More exact knowledge of their food habits has resulted in a higher estimate of their utility on the farm, and demonstrated more clearly than ever the necessity of active measures to insure their protection. Recent years have also witnessed a greatly increased interest in birds from the æsthetic standpoint, which has resulted in the formation of. numerous protective organizations known as Audubon societies. Still bird destruction is going on rapidly in the United States, and in many regions there is a marked decrease in the abundance of certain species. Cheap guns, lax laws, the mania for collecting and shooting, and more especially the enormous demand for birds for market and for the millinery trade, are responsible for this reduction in bird life. The protection of birds is a national, not a local, question. It deals largely with migratory species which breed in one section, winter in another, and traverse several States in passing to and from their breeding grounds. Legislation on this subject belongs primarily to the States, but if it is to accomplish its purpose in a country like the United States, which, exclusive of Alaska, extends through 24° of latitude and 58° of longitude (an extent equal to two-thirds that of the whole Continent of Europe), there must be greater harmony of action between the several States. Absolute uniformity in the protective laws of fifty distinct Commonwealths may be impossible of attainment, but it is highly necessary, and seems to be feasible, to secure a much greater degree of uniformity than at present exists. State laws may be supplemented to some extent by federal legislation, and a bill has 9 just been passed by Congress to regulate interstate commerce in game killed in violation of local laws. (See page 52.) Similar, and perhaps greater difficulties exist abroad, but several countries of the Old World, including England, France, Germany, Austria, Italy, Switzerland, Belgium, and even Japan, have taken steps to prevent the indiscriminate slaughter of useful birds. While the limits of this bulletin preclude any account of the regulations that have been adopted in Europe, it is interesting to observe that the importance of uniformity of action between neighboring countries is fully appreciated, as shown by the convention entered into by France and Switzerland in 1885.1 Protective legislation was originally intended to secure merely the preservation of birds which were killed for food or sport, but as time went on it was extended gradually to other species. It is this later phase of the subject, the protection of birds not strictly game, which will be discussed here; but before proceeding to the consideration of the laws now in force or the defects in existing legislation, it may be worth while to review very briefly the development of protective laws in the United States. HISTORY OF PROTECTIVE LEGISLATION. The necessity of restricting the slaughter of useful birds began to be recognized in the last century, if not before. In 1791 New York enacted a law protecting the heath hen from April 1 to October 5. Some years later, in 1818, Massachusetts passed a law to prevent the wanton destruction at "improper times" of "birds which are useful and profitable to the citizens either as articles of food or instruments in the hands of Providence to destroy many noxious insects, grubs and caterpillars, which are prejudicial or destructive to vegetation, fruits and grain." This law prohibited the killing of quail or partridges between March 1 and September 1, and of woodcock, snipe, larks, or robins from March 1 to July 4. Larks and robins were protected merely as game, and it was not until the middle of the century that birds not usually killed for food received the protection which is now generally accorded them. In 1850 both Connecticut and New Jersey passed special laws for the protection of insectivorous birds. The New Jersey law, approved March 6, 1850, was entitled "An act to prevent the destruction of small and harmless birds," and is quoted in full, since it is of interest as one of the first of its kind in the United States: 1. Be it enacted by the Senate and General Assembly of the State of New Jersey, That it shall not be lawful in this State for any person to shoot, or in any other manner to kill or destroy, except upon his own premises, any of the following description of 1The text of the convention of August 6, 1885, and a brief résumé of protective legislation in Europe may be found in the report of M. de la Sicotière, Congrès International d'Agriculture, 6o section, Protection des Oiseaux, pp. 1-20, Paris, 1889. HISTORY OF PROTECTIVE LEGISLATION. 11 birds: The night or musquito hawk, chimney swallow, barn swallow, martin or swift, whippowil [sic], cuckoo, kingbird or bee martin, woodpecker, claip or high hole, catbird, wren, bluebird, meadow lark, brown thrusher [sic], dove, firebird or summer redbird, hanging bird, ground robin or chewink, bobolink or ricebird, robin, snow or chipping bird, sparrow, Carolina lit [sic], warbler, bat, blackbird, blue jay, and the small owl. 2. And be it enacted, That every person offending in the premises shall forfeit and pay for each offence the sum of five dollars, to be sued for and recovered in an action of debt by any person who will sue for the same, with cost. 3. And be it enacted, That any person wilfully destroying the eggs of any of the above-described birds shall be liable to the penalty prescribed in the second section of this act, to be sued for and recovered as therein prescribed. Similar acts were passed in 1851 by Vermont, in 1855 by Massachusetts, and shortly after by other States, until in 1864 they were in force in the District of Columbia and twelve States, comprising all of New England, New York, New Jersey, Pennsylvania, Iowa, Michigan, and Minnesota. These early laws, as exemplified by the New Jersey statute just quoted, enumerated the species to be protected, and extended protection only to 'insectivorous,' 'song,' or 'harmless' birds, as is still done by some of the laws now in force. In 1877, however, Florida went a step further, by enacting special legislation for the preservation of sea birds and plume birds, and in 1891 her example was followed by Texas. Recently a beginning has been made toward preserving birds of prey, or at least discriminating between the useful and injurious. species. In 1886 a departure was made by the committee on bird protection of the American Ornithologists' Union, which drafted a bill differing from previous laws by defining game birds and protecting all others (with the exception of a few known to be injurious), thus including not only insectivorous and plume birds, but birds of prey as well. (See p. 48.) This method of defining the species to be protected has now been adopted by several States. It has the advantage of clearness, simplicity, and completeness, which is not the case with laws framed on the old lines. During the last three years a few attempts have been made to legislate against the sale and wearing of feathers of native birds, as the enormous demand for birds for millinery purposes is generally recognized as one of the chief causes of bird destruction. In 1897 California declared that every person who shall at any time kill or have in his possession, "except for the purpose of propagation or for educational or scientific purposes, any English skylark, robin, canary, hummingbird, thrush, or mocking-bird, or any part of the skin, skins, or plumage thereof, is guilty of a misdemeanor." In the same year Massachusetts passed a broader law aimed more directly at the trade in feathers, which provided that "whoever has in his possession the body or feathers of any bird whose taking or killing is prohibited by * * * Penal Code, California, 1897, p. 216. section 4 of chapter 276 of the acts of the year 1886, or wears such feathers for the purpose of dress or ornament, shall be punished [by a fine of $10] as provided in said section." This act was promptly tested in the courts and declared unconstitutional. It was, however, amended by the legislature in the following year, although the new law did not go into effect until April 1, 1899. The words 'whether taken in this Commonwealth or elsewhere' were inserted after '1886," and another clause was added which excepted from the provisions of the act nonresidents passing through or temporarily dwelling within the State. Maryland also declared in 1898: "No person shall under like penalty [$1 to $5] have in his or her possession, offer for sale or wear, the skins, plumage, wings, or feathers of any of the birds, the catching or killing of which is prohibited by this section." Recently New York has incorporated in its game law a millinery clause, which provides that "no part of the plumage, skin, or body of any bird protected by this section shall be sold or had in possession for sale.”+ 2 Federal legislation restricting interstate commerce in birds for millinery purposes has also been advocated, and a bill designed to accomplish that purpose was passed by the Senate at the last session of Congress, but failed to become a law. (See p. 49.) It has been proposed that, as a means of increasing interest in bird study, the schools observe a special 'Bird Day' each year. This suggestion has met with considerable favor. A 'Bird Day' celebrated with appropriate exercises, similar to and often united with those of Arbor Day, has now become a regular feature of the school calendar in several States, and in some has been recognized by law. Wisconsin in 1897, and Minnesota and Connecticut in 1899, legally established a combined Arbor and Bird Day. (See p. 90.) It is interesting to notice that protective legislation in America has followed much the same lines as in England. The English law originally protected game only. The birds regarded as such were pheasants, partridges, grouse, heath or moor game, black game, and bustards (1 and 2 Will. IV, c. 32). In 1869 protection was extended to sea birds between April 1 and August 1, and in 1872 to wild fowl between February 15 and August 1. A few years later all birds were protected between March 1 and August 1 by the Wild birds protection acts' of 1880-81 (43 and 44 Vict., c. 35; 44 and 45 Vict., c. 51). Finally in 1894 another act was passed enabling the secretary of state, upon application of a county council, to prohibit the taking of eggs of any wild bird either in the county or in certain areas within it.5 6 Acts of Massachusetts, 1897, chap. 524, p. 561. 2 Acts of Massachusetts, 1898, chap. 339, p. 275. 3 Laws of Maryland, 1898, chap. 206, sec. 15н, p. 711. 4 Laws of 1900, chap. 20, sec. 33. 5 J. E. Harting, Encyclopædia of Sport, I, p. 447, 1898. DEFINITIONS OF GAME BIRDS. 13 It will be noticed that in one respect there is a wide difference between English and American laws. Under the former all birds are treated alike and are protected only during five months that cover the breeding season, whereas in the United States it is customary to divide birds. into two or more categories and protect game birds only during the breeding season, and the other protected species at all times. As will be explained later (see p. 45), only a few States, notably Georgia, North Carolina, and Tennessee, treat all birds alike, but these States really protect few species besides game birds. The English law has the advantage of being more comprehensive than most of our statutes, but the principle of establishing protection only during the breeding season would be open to serious objection in many States on account of the tendency to class a number of insectivorous birds as game. Under that plan such birds would be killed for market in large numbers during the winter months. DEFINITIONS OF GAME BIRDS. From the standpoint of the sportsman, birds are either game birds or non-game birds, but from the legislative standpoint they may be roughly divided into three groups: (1) Species which should be protected at all times, as thrushes; (2) species which may be killed at certain seasons for food or sport, as quail; (3) species which are injurious and therefore excluded from protection, as the English sparrow. The first group is usually called 'insectivorous' or 'song' birds, the second game,' and the third injurious' birds; but these groups are necessarily arbitrary, and their limits are by no means certain. About 1,125 species and subspecies of birds inhabit North America north of Mexico, and of these only about 200 (18 percent) can properly be considered game. (See p. 25.) 6 As the wording of modern protective laws turns largely on the definition of game birds,' it may be well to note some of the different interpretations which have been applied to this term. A game bird, according to the Century Dictionary is "a bird ordinarily pursued for sport or profit, or which is or may be the subject of a game law." Bouvier's Law Dictionary defines game in general as “birds and beasts of a wild nature obtained by fowling and hunting." In different State laws the term is defined in various ways without special regard for uniformity. Thus Maine1 fixes an annual close season for 'game birds,' and enumerates under this head the wood duck, dusky duck (commonly called black duck), teal, gray duck, ruffed grouse (commonly called partridge), woodcock, quail, plover, snipe, and sandpipers. In the Michigan law the term 'game bird' is construed 1 Rev. Stat., chap. 30, sec. 11. |