The history of fishing law

We are happy to re-post a review by George Conk of W. Jeffrey Bolster's The Mortal Sea - Fishing the Atlantic in the Age of Sail (Harvard UP, 2012). (Fishing and the law is an old topic that seems to be a renewable resource--see, for example, Arthur McEvoy's classic The Fisherman's Problem: Ecology and Law in the California Fisheries, 1850-1980, and recent posts here and here.)

George is a Senior Fellow at Fordham Law School's Stein Center for Law & Ethics, who blogs at Otherwise, and fishes the Muscongus Bay, Gulf of Maine. He is currently researching oil spill compensation to fishermen in the Bohai Bay, China. The review:

The Tragedy of the Commons has been the dominant metaphor to depict the decline of the fisheries since Garrett Hardin’s classic 1968 article in Science magazine.  Hardin observes, for example, that “[t]he rational man finds that his share of the cost of the wastes he discharges into the commons is less than the cost of purifying his wastes before releasing them. Since this is true for everyone, we are locked into a system of `fouling our own nest’, so long as we behave only as independent, rational, free-enterprise” actors.  Hardin's metaphor of ineluctable catastrophe invokes moral deficiency to reject the invisible hand as a solution to the problem of scarcity, and a reason to decline to celebrate with abandon the contractarian libertarian vision.  Others like Yale legal historian Robert Ellickson in Order Without Law have observed that `neighbors’ could settle disputes by practices that create order without law - thus establishing law.  But such social groupings were incapable of ruling the seas, or even the rivers that lead to it.

W. Jeffrey Bolster in The Mortal Sea - the Bancroft Prize-winning history of `Fishing the Atlantic in the Age of Sail’ has a different fish tale.  Rather than self-consciously self-destructive pursuit of self interest relentlessly depleting the resource, the former sea captain turned historian Bolster scours the historical record and finds that law has from the first been deployed to protect the resource.  Rather than fishermen being swept along in the tide of individual interest, he finds that those who counted the catch were the most alert and first to sound the alarm as he discussed recently with Tom Ashbrook at NPR's On Point.

Overfishing (an anachronistic term) drove Europeans off their own shores to the western Atlantic grounds.  In the Gulf of St. Lawrence in 1597 the veteran sea captain Charles Leigh reported “In little more than one hour we caught  with four hooks two hundred and fifty” cod.  The Merrimack River running from Massachusetts Bay into New Hampshire was first known as the Salmon River.  The “egg rocks” of the Gulf of Maine were so named because of the easy pickings of eggs from huge colonies of seabirds.

But as the enormous original stocks waned - first in the rivers where anadromous fish like salmon, shad, and sturgeon spawned - the response was not helpless drift to disaster.  Rather river towns abandoned quickly the view that "every man may catch what he will”.  By 1673 the town of Newbury, Mass, settled as a plantation only forty years earlier, limited sturgeon fishing to those “able and fit persons” whom the General Court licensed.  This pattern of fishermen’s warnings and efforts to limit the destructiveness of catches persisted - often resisted by those who benefited from the catch.  The inexhaustible sea, and its regenerative powers were often cited by the resisters.  Others found a fundamental right to take from the commons.  Such ideological formulations demonstrate the contrast between the relative farsightedness of those who saw the catch as endangered , and those who sought to satisfy the public demand for seafood, for whom scientific uncertainty and thin databases provided a defense to the proto-regulators in the towns and legislatures.

Cod

Claence Birdseye's `fresh freezing' machine

The greatest challenge to the fishery came in the nineteenth century when long lines gave way to “otter trawls”.  Introduced by French fishermen, the new “draggers” swept large swaths of ocean, catching more fish in a depleting sea.  Bolton’s retelling is an elegant depiction of competing economic interests fighting over scarce resources.  Though men like Boston Mayor John Fitzgerald (the source of the ` F’ in JFK) fought to take the long view they were defeated.  The late nineteenth century ideology of open markets, the right to the commons, the skepticism of men of science like Thomas Huxley (who headed a British commission), and the sheer pressure of commerce led legislatures to do far too little to restrain the increasingly destructive gasoline-driven `draggers' that coarsely raked the sea. 

Consumer demand for fresh fish was fueled by inventor-industrialist Clarence Birdseye’s refrigeration innovations which gave us the oxymoron “fresh frozen” and Mrs. Paul's cod cakes, as Mark Kurlansky recently chronicled.  These collective failures have  brought us a sea that is no longer an inexhaustible resource, but rather a depleted one in which we have killed most of the fish.  Gloucester, Massachusetts, home of the legendary schooners, can no longer be called a fishing town.   And casual sport fishers like me find ourselves asking do I want to be the man who caught the last cod on the cape named for the once plentiful fish?