By Barry MacKay

So the “right” of migratory birds NOT to be killed or confined in cages, like the “right” of humans not to be killed or confined in cages, is welfarist, and was really passed because it was determined that the birds in question had some value to humans.

The law to protect songbirds and other migratory bird species in the U.S. and Canada was passed around 1916. It made it an offense, with a pretty stiff fine, to posses, kill or disturb these birds. Most folks don’t realize it, but prior to that there was an enormous trade in the feathered skins of birds. It was considered a part of the fur trade, and involved both larger species (great and snowy egrets being practically wiped out for their plumes, then very much in vogue on women’s hats) to huge numbers of hummingbirds (especially out of South America where they are most abundant, but even our native hummingbirds were fair game.)

The law was passed and although there was a demand for things like orioles and tanagers and robins and bobolinks and bluebirds as cage birds, along with the demand by the fashion industry for complete skins, the trade was stopped, not immediately or 100 percent, but in time, and very extensively.

But there are exceptions. Berry growers can get permits to harass or even kill birds that eat their crops (robins, waxwings). These are called depredation permits. Gulls, geese and other migratory birds otherwise covered by the law can also be exempted under certain conditions where are deemed hazardous to human interests. Some migratory bird species were exempted from the laws to protect migratory birds altogether (hawks, owls, some fish-eating species) and their protection given over to state/provincial authorities.

So the “right” of migratory birds NOT to be killed or confined in cages, like the “right” of humans not to be killed or confined in cages, is welfarist, and was really passed because it was determined that the birds in question had some value to humans (songbirds eat insects and weed seeds…they were deemed “good birds”, but when they became “bad” birds (thousands of migrating bobolinks descending on Louisiana rice fields, for example) exemptions could be provided and they could be killed, often in large numbers.

Slowly, incrementally, the law has been tightened, with setbacks, but should it be scrapped altogether.

Does not the fact that I can’t shoot a robin in my cherry tree without risking a heavy fine and jail time not hide the fact that a cranberry grower in Oregon may have a depredation permit that allows him or her to shoot robins eating crops? Does not the fact that I could be fined heavily if I tear down the barn swallow nest in my garage not hide the fact that the same swallow may be hit by a car as it dashes across a causeway, and the driver gets off scot-free? Clearly there is one law for humans, another for animals, and the former is welfarist, while the latter have constitutionally or religiously supported “rights” (which vary through time and geographically…don’t commit adultery in Iran if you’re a woman).