304 



FOREST AND STREAM. 



[Nov. 11, 1886. 



AMERICAN ORNITHOLOGISTS' UNION. 



Bulletin No. 2 of the Committee on Protection 

 of Birds. 



PROTECTION OF BIRDS BY LEGISLATION. 



"T)ULLETIN NO. 1" of the A. O. U. Committee on 

 X) Bird Protection, originally published in Science (p. 

 160, Supplement, Feb. 26, 1886), and subsequently repub- 

 lished in pampliiet form, with some additions, under the 

 title given above, contained a di'aft of "Ah Act for the 

 Protection of Birds and their Nests a,nd Ejj-gs." In draft- 

 ing this proposed act, birds were divided into two classes, 

 game birds and non-game birds. The game birds were 

 defined as "the Anatidse, commonly knoAvn as swans, 



feese, brant, river aaid sea ducks; the Rallidee, commonly 

 nown as rails, coots, mudhens and gallinules; the Limi- 

 cola3, commonly known as shore bu'ds, plovers, sui-f bhfds, 

 snipe, woodcock, sandpipers, tatlers and curlews; the 

 Gallinse, commonly known as wild turkeys, grouse, prairie 

 chickens, pheasants, partridges and quails." There being 

 laws relating especially to game birds in most parts of the 

 United States and Canada, and the}- boing also more or 

 less cared for by various game protective associations, it 

 seemed unnecessary to include them iu a law intended 

 especially for the jirotection of song birds and such other 

 wild birds as are not properly game bix-ds, for many of 

 which latter there is no legislative protection. It seemed 

 also desirable to give them protection under a separate 

 act rather than to attempt it iu a game law, properly so- 

 called, since by this method there is less danger of falling 

 to accomphsh the pm-pose desired. 



Among the non-game buxls, as defined by the j)roposed 

 act, tlie Committee jjurjiosely included a, few species 

 sometimes regarded as game birds, and in some States 

 legalized as such, as the robm, the meadow lark, the bob- 

 olink and the flicker or golden-winged woodpecker. The 

 act as drawn is also especially intended to give pi'otectiou 

 to the birds of prey, the herons, bitterns, ibises, gulls, 

 terns or sea swallows, grebes, etc. Very few of the birds 

 of prey are injurious to man, while the greater part of 

 them are unquestionably higlily beneficial to liis inter- 

 ests. The law also contemplates protection to crows, 

 jays and blackbirds, the Committee being firmly of the 

 opinion that n\uch of the prejudice a.gainst these species 

 is unfounded. Wild jpigeons are included among the 

 protected species, in consequence of then* recent rapid de- 

 crease and pi'obable speedy extirpation, unless some 

 means be found to check their present wholesale slaughter 

 wherever tliey still linger in suiScient numbei-s to make 

 then- captm-e or destniction remunerative. 



As the act proposed by the Committee has been sub- 

 stantially adopted by the Legislature of the State of New 

 York (see Chapter 427 of the Laws of New York, entitled, 

 "An act for the preservation of song and wild birds," 

 passed May 20, 1886), it has become the subject of much 

 comment and criticism, and much needless alarm has 

 arisen in respect to certain of its provisions. In view of 

 this the Committee deem it desirable to oifer some com- 

 ment on its intent and purport. The parts of the law en- 

 acted by the Legislatui-e of New York, to which objec- 

 tions have been raised, are mainly mtei'polations in and 

 deviations from the act proposed "by the Committee; yet 

 the New York law seems quite defensible as it stands, 

 though open to }nisinterpretation. The following com- 

 mentary is therefore offered respecting it; a transcript of 

 the law is subjoined. 



THE NEW TOEK LAW, 

 Chap. 4.2V. 

 AN ACT for the preservation of song and wild birds. 

 Passed May 20, 1886; tliree-flftlis T3eing pre.sent; ■vvitliout the 

 approx a] of the Govei'nor.* 



Tlie People of the mate of Ncv: I orii, rfprrscvteil rn Senate and 

 Assend:!]/, do enact as foUoivs: 



Section 1. No person in any of tlie conntiea of tliis State, shall 

 kill, wound, trap, net, snare, catch -with bird lime, or with a,ny 

 Bimiliar substauce, poison or. ch-ug, anj- bird nf soni^ or any linnet, 

 blue bird, yellow hammer, yeiJow bird, tlirusli, woodpecker, cat- 

 bird, pewee, swallow, martin, bluejay, orioie, kildee, snowbird, 

 gross beak, bobolink, phasbe bird, humming bird, wren, robin, 

 meadow lark or starling, or any otiier wild bin!, o'lier than a game 

 bird. Nor shall any persota purch-^ise, or have in possession, or ex- 

 pose for sale any such song or wild bird, or any part thereof, after 

 the sauie has been killed. For the purpose of tli:s act tlie follow- 

 ing only shall be considered game birds: the Aiiatida?, commonly 

 known as swaiis, geese, brant, and rive!' and sc;i, ihicks; tlie Ralli- 

 dsB, commonly known as rails, coots, mud-Jiens and galli mnles; 

 the Limicolae, commonly known as sliore birds, plovers, snrl-birds, 

 snipe, woodcDck; sandpipers, tatlers and curle\\-s: tlie Gailinre, 

 commonly knoAVTi as wild turkeys, grouse, prairie clnckens, pheas- 

 ants, partridges and quails. 



Sec. 3. No person sliall take or needlessly destroy the nest or 

 eggs of any song or wild bird. 



Sec, 3. bections one and two of this act shall not apply to any 

 person holding a certificate giving the right to take birds, and 

 their nests and eggs, for scientific purposes, as provided for in 

 section four of this act. 



Sec 4. Oertiflcates may be granted by any iacorporated society 

 of natui'al history in this State, tlirough such persons or ofiicei-s as 

 said society may designate, to any properly aco edited person of 

 the age of eighteen years or upward, perm itting tlio holder tliereof 

 to collect birds, their nests or eggs, for stricl 1 v scientific purposes 

 only. In order to obtain such certificate, the applicant for the 

 same must present to tiie person or persons having the nower to 

 grant said certificates, written testimonlalE fi om two well-known 

 scieutitic men, certify'ng to the good character and fitness of said 

 applicant to be intrusted with such privilege; must, pay to said 

 persons or officers one dollar to defray the necccssary expenses at- 

 tending the gi'antiug of such certificates; and must file vrith. said 

 persons or oilioers a properly executed bond, in the sum of two 

 Hundred dollars, signed by two responsible citizens of the State as 

 sureties. This bond shall be forfeited to the State, and the certi- 

 ficate become void, upon proof that the holder of sncli a certificate 

 has killed any bird, or taken the nest or eggs of any bird, for otiier 

 than the purposes named in sections three and four of this act, and 

 shaU be fuitber subject for eacli such offense to the penalties pro- 

 vided therefor in sections one and two cf this act. 



Sec. 5. The certiticates authorized by this act shall be in force 

 for one year only from the date of their issue, and shall not be 

 transferable. 



Seo. 6. The English or Enropean house sparrow (Passer domcst.U 

 eus) is not included among the birds protected by tJiis act. 



Sec. 7. Any person or persons violating any of tlie provisions of 

 this act shall be deemed guilty of a misdemeanor, punishable by 

 imprisonment in the county jail or penitentiary, of not less than 

 five normorethan thirty days, or to ;i fine of not less than ten nor 

 more than fifty dollars, or both, at the discretion of tlie court 



Sec. 8. In all actions for the recovery of penalties under this act, 

 one-lialf of the recovery shall belong to tlie plaintifif, and the re- 

 maindershallbelongtotne county where the oHense is committed, 

 except if the offense be committed in the city and cDunty of New 

 York, the remaining one-half shall be paid to tlie chamberlain of 

 said city. 



Sec. 9. All acts or parts of acts inconsistent with, or contrary to 

 the provisions of this act, are hereby appealed. 

 Sec. 10. This act shall take eft'ect immediately. 

 State of New Yohk, I „„ . 

 Omce of the Secretary of State, f^- 



I have compared the preceding with the original law on file in 

 this oKce, and do hereby certify that the same is a correct tran- 

 seript therefrom and of the wliole of eaid original law. 



Frederick Cook, Secretary of State, 



♦Not returned by the Governor within ten days after It was presented ot 

 mm, and became a law without his signatui-e. [Art. rv., Sec. 9, Constitution 

 of the State of New Torlc.] 



(3.) In Section 1 the phrase "or any part thereof" in the 

 sentence, "Nor shall any person purchase or have in pos- 

 session or expose for sale any such song or wild bircl, or 

 any jiart thereof, after the" same has been kiUed," has 

 been construed as rendering liable to prosecution rmder 

 tliis act any person having a cabinet of bird skins or of 

 mounted bii'ds collected for scientific pm-poses, or any 

 birds stuffed as objects of curiosity or ornament. It has 

 also been claimed that taxidermists and milliners holding 

 birds in stock for sale are liable to i^rosecution, and like- 

 wise that ladies may be arrested for weai-ing birds or parts 

 of any birds protect;ed by this act. On this point it is 

 sufficient to say, in the words of the Committee's coim- 

 sel, Mr. Edward R. Johnes, that "No criminal law can 

 be retroactive, and that the penalty can only be inflicted 

 on showing that the bird exposed for sale or worn, was 

 killed after the passage of the act. * * * Ex post 

 facto laws are not constitutional, and vested rights can- 

 not be attacked. Any one, therefore, having a bii-d's 

 head or skin in his or her possession could oppose any 

 arrest unless it be proved that the bu-d was killed after 

 the passage of the act." This, of course, is not only the 

 legal but the common-sense interpretation of the law. On 

 the other hand, possession of a freshly-killed bird, "or 

 parts thereof," would be proof of violation of the law. A 

 taxidermist, unless legally authorized to collect birds 

 for scientific pui-poses, having in possession a freshly 

 killed bird or a bird mounted from a recently killed speci- 

 men, would be liable to arrest, even though he did not 

 kUl the bu'd or even own it or offer it for sale. It is suf- 

 ficient sunj)ly that he has it in ijossession. If, however, 

 the bird was killed by a person holding a permit tmder 

 the law granting pennission to take birds for scientific 

 purposes, certification of the fact to the taxidermist by 

 the owner of the bird would be protection to the taxider- 

 mist from prosecution. It, therefore, Avould be well for 

 taxidermists to require from then- customers a written 

 statement to the effect that the* bkds placed in then- 

 hands for preparation were not killed in violation of law, 

 and that they refuse to receive freslily-killed birds the 

 owners of which are unable to make a truthful statement 

 to this effect. 



(3.) It has been assumed that the wording of Section 1 is 

 such that, by implication, game birds may be shot, snared, 

 trapped, etc., at any time. The Committee's counsel 

 states that there is no such implication in the wording of 

 the act; but adds that the exception should be made 

 clearer, as, perhaps, by the insertion after the words 

 "game birds" the words "all of which are governed by 

 special laws relating to each, and are not intended to be 

 affected by this act." 



(3.) In Section 3 of the New York law ("No person shall 

 take or needlessly destroy the nest or eggs of any song or 

 wild bird"), as also in the Committee's draft, the 

 word "needlessly" is considered as affording a possible 

 loophole of escape in case of prosecution. It was 

 intended to cover merely cases of accidental or unavoida- 

 ble desti-uction, as in the destniction of nests and eggs of 

 birds in the prosecution of agriculture, as by mowing 

 machines, horse rakes, plowing, etc. As prosecution in 

 such cases of destruction would be doubtless for malicious 

 purposes, and is not likely to often occm-, it seems better 

 to sti'engthen the law by omitting the word in question. 



(4.) Section 4 of the New York law and Section 3 of the 

 Committee's draft, relating to the granting of permits for 

 collecting birds, their nests and eggs for scientific pur- 

 poses, contain the restriction that the j)er8on receiving 

 such a permit must be of the age of eighteen years or 

 upward. This portion of the law has been strongly 

 objected to on the ground that it is an injustice to any 

 person below the age of eighteen years who desires to 

 engage in the scientihc study of ornithology, since a boy 

 of twelve, or even younger, who is a "bom ornithologist," 

 is not only capable of making good collectiono, but is often 

 an acute and tiaistworthy 'field natm-alist. The other 

 restrictions of Section 4 seem an ample safeguard against 

 the abuse of the permit clause, since not only the good 

 character and fitness of the applicant must be certified to 

 by the written testimonials of two well-known scientific 

 men, but he must furnish bonds in the sum of $200, for- 

 feitable to the State on proof that he has taken birds for 

 other than scientific ptu-poses. The Committee therefore 

 now consider that an age restriction in reference to per- 

 mits granting permission to collect birds for scientific 

 purposes is unnecessary and inexpedient. 



(5.) The penalty for each offense suggested by the Com- 

 mittee in its proposed act was a "fine of five doUars, or 

 imiprisonment for ten days, or both, at the discretion of 

 the court." In the New York law any violation of the 

 act makes the offender "punishable by imprison- 

 ment in the county jail or pemtentiary, of [for] not less 

 than five nor more than thirty days, or to a fine of not 

 less than ten nor moi"e than fifty dollars, or both, at the 

 discretion of the court." In view of the customary 

 leniency of judges in such cases, the Committee, by ad- 

 vice of its attorney, now approves of the penalty enjoined 

 by the New York law. 



(7.) Section 8 of the New York law provides that one- 

 half of the fines recovered in all actions imder the law 

 shall go to the plaintiff, which is an acceptable provision 

 additional to the Committee's draft. 



(8.) Section 4 contains a clerical error in the last Hne. 

 where "Sections 1 and 3" should read Section 7," which, 

 however, fortimately does not seriously impair the 

 efficiency of the law. 



EEVISBD DEAFT. 



A new draft of the proposed act for the protection of 

 birds, modified as already indicated, is now offered to 

 legislators and the general public as a guide in framing 

 laws for the protection of such native wild bu-ds as are 

 not properly to be considered as game bifds, each point of 

 which has been most carefully considered by the Commit- 

 tee, aided by competent legal advice. The proposed act 

 as revised here follows: 



AN ACT for the protection of hu-ds and their nests and eggs. 



Section 1- Any person who shall, within the State of 1 



kill anv wild bird other tlian a game bird, or purcha.se, ofl'er or 

 expose for sale any such wild bird, after it has been killed, shall 

 for each ofiiense be subject to a fine of uot less than ten nor more 

 than tiftv dollars, or imprisonment for not less than five nor more 

 than thirty days, or both, a(^ the discretion of the court, lor the 

 purpose of this act the f oUovring only shall be considered game 

 birds: The Anatldas, commonlv known as awans, geese, brant, and 

 river and sea ducks; the Ballidaj, commonly known as rails, coots, 

 mud-liensand gaUinulee; the Ltmlcolffii, commonly knowTi as shore 

 birds, plovers, surf -bu'ds, snipe, woodcock, sandpipers, tatlei-s and 

 curlews; the Gallinjs, commonly known as wild turkeys, grouse, 

 prairie chickens, pheasants, partridges and quails, all of wnicn 



are governed by specific laws affecting each, and are not Intended 



to be affected by this act. 



Sec. 3. Any persou who shall, within the State of take or 



destroy the neat or the eggs of any wild bird, shall be subject for 

 each offense to a fine of not loss than ten nor more than fifty dol- 

 lar.s, or imprisonment for not less than five nor more than thirty 

 days, or both, at the discretion of the court. 



Sec. 3. Sections 1 and 3 of tins act shall not apply to anv pei-son 

 holding a permit giving the right to take birds, or their nests and 

 eggs, for scientific purposes, as provided for in Section 4 of this act. 



Sec. 4. Pci-mits may be granted by [here follow the names of 

 the persons, if any, duly authorized by this act to grant such per- 

 mits], or by any incorporated society of natural history in the 

 State, through such persons oi' olllccrs as said society may desig- 

 nate, to any properly accredited person, permitting the holder 

 thereof to collect birds, their nests or eggs, for strictly scientific 

 purposes. In order tofobtaiu such permit, the applicant for the 

 same must present to the person or persons having the power to 

 grant said peimit, written testimonials from two well-known 

 scientific men, certifying to the good character and fitness of said 

 applicant to be intrusted with such privilege; must pay to said 

 persons or otncors one dollar to defray the necessary expenses at- 

 tending the gi-antiug of sucli permits; and must "file with said 

 persons or officers a properly executed bond, in the sum of two 

 hundred dollars, signed by two responsible citizens of the State as 

 sureties. This bond shall be forfeited to the State, and the permit 

 become void, upon proof that the holder of such permit has killed 

 any bird, or taken the nest or eggs of any bird, for other than the 

 purpose named in Sections 3 and 4 of this act, and shall be further 

 subject for each such offense to the penalties provided therefore 

 iu Sections 1 and 3 of this act. 



Sec. 5. The permits authorized by this act shaU be in force for 

 one year only from the date of their issue, and shall not be trans- 

 ferable. 



Sec. 6. The Enghsh or European house-sparrow (Passer domcs- 

 ticxm) is not included among the birds protected by this act. 



Sec. 7. In all actions for the recovery of penalties under this 

 act, one-half of the recovery shall belong to the plaintiff, and the 

 remainder shall be paid to the county treasurer of the county 

 where the ofl'enao is committed. 



Sec. 8. All acts, or parts of acts, heretofore passed, inconsistent 

 with or contrary to the provisions of this act, are hereby repealed. 



Sec. 9. This act shall take effect upon its passage. 



COMMENT. 



It will be noticed that in Sec. 1 the different species of 

 birds intended to be protected are not separately enumer- 

 ated. Some attempt at such an enumeration is made in 

 the New York law, as, indeed, is the case in most similar 

 acts passed by the various States. As the birds intended 

 to be protected by this and similar acts include about two- 

 thii'ds to three-f om-ths of the birds of any area affected by 

 such an act, or over two hundred species, it is impractic- 

 able to enumerate them; the brief enumerations usuaUy 

 attempted axe so imperfect and are couched in such vague 

 terms that in many cases conviction could be evaded on. 

 technicalities, owing to the looseness of the language usu- 

 ally emploj^ed in such acts. In the present draft the few 

 groups of birds not covered by the proposed act are alone 

 .specified, and explicitly so through the use of the techni- 

 cal names commonly' employed in ornithology for the 

 designation of these groups. This leaves the application 

 of the act unequivocal and exact — a most desirable point 

 to secure. The phraseology of Sec. 1 of the New York 

 law, however, is not particularly objectionable, since the 

 plu-ase "or any wild bird other than a game bird," covers 

 aU the species intended to be protected not particularly 

 mentioned. 



Sec. 2 of the act requires no comment. 



Sec. 3 is intended to legalize the taking of birds, their 

 nests and eggs for strictly scientific purposes only, as for 

 scientific museums and by persons seriously engaged in 

 the scientific study of birds. In this section and in 

 the following one the word permit is substituted for the 

 word certificate, simply on accotmt of its being a fitter 

 term to use. 



Sec. 4. This provision is intended to be so strict in its 

 requirements that only a person who is propei'ly entitled 

 to a permit will be able to secure one. Such persons will 

 cheerfully submit to the trouble necessary to obtain a per- 

 mit, in behalf of the proper protection of our bu-ds. 



The act contemplates vestmg with authority to issue 



f)ermits only such persons or agents as will be most 

 ikely to exercise due care in regard to the fitness of ap- 



Elicants to receive them. It is accordingly placed in the 

 ands of incorporated societies of natural history, but 

 authorizes its delegation to such State officers as may be 

 especially designated for that purjiose, as game commis- 

 sioners or game wardens. But preferably, for obvious 

 reasons, such authority should be delegated only to incor- 

 porated scientific societies, who, tkrough their executive 

 officers, or through committees specially appointed for 

 the ptrrpose, are naturally the best judges of the fitness of 

 applicants to receive permits. It is desirable that the 

 methods of procediu'e under Section 4 should be as nearly • 

 uniform as possible, as regards especially the character 

 of the bond, and the applicant's testimonials and other 

 obligations. 



The following series of blanks, prepared and already in 

 use imder the New York law, are herewith submitted as 

 ha,ving satisfactorily stood the test of actual use. It may 

 be premised that form "A" is sent in answer to an appli- 

 cation for a permit, with which forms "B" and "C" are 

 to be inclosed. When these are returned and f otmd to be 

 satisfactory, form "D" gives notice that the application is 

 granted and stat&s what other requu-ements are necessary 

 to receive the permit. Form "E" is the permit itself. 

 Form "F" gives notice of the expiration of the permit 

 and directions for obtaining its renewal; this, of course, is 

 not to be sent until near the end of the term for which a 

 permit is originally issued. 



The headings of forms "A," "D," "E" and " F" should 

 be changed to suit the circumstances of their issue, as re- 

 gards the society or officers from whom they may 

 emanate: 



[A.] 



Sir: 



American Museum, n f Xatvral Slstory, 



(toCOEPORATEii Mat, 1869), 



Central Park {77lh St. & 6tli A veX 



Nenjo York City m 



In answer to your request for a certificate permitting you to take 

 birds and their nests and eggs for scientific puriioses under the 

 Laws of the .State of New York, 1 inclose an obligation, in signing 

 which you promise to take epecimens only for scientific puiiioses 

 and to strictly observe the letter and spirit of the laws of this 

 State for the preservation of birds. 



This obligation must be accompanied by a properly executed bond 

 in the sum of two hundred dollars, and by the indorsement here- 

 with sent, signed by two responsible scientific men to whom the 

 President of the American Museum of Natural History* can refer. 



No notice will be taken of any application which does not con- 

 form to the requirements here prescribed. 



If the certificate is granted, a fee of one dollar will be charged 

 to cover the expenses attending the granting of such certificates. 



, President. 



N. B.— The bond must be executed strictly, in accordance with 

 Section 4 of Chapter 427 of the La\vs of the State of New York, » 

 copy of which Act is herewith inclosed. 



♦Here may be substituted the name of the offlcer, the society, or tta 

 properly appointed agent 



