Fishing rights and colonial government

Shourya Sen and Richard Adelstein recently posted "Fishing Rights and Colonial Government: Institutional Development in the Bengal Presidency". The abstract:

We examine the evolution of fishing rights in colonial Bengal through a series of cases heard at the Calcutta High Court in the 1880s and culminating in the passage of legislation in 1889. We posit an implicit relational contract between the colonizing British and the landowning class in colonial Bengal as a way to understand the concurrent evolution of fishing rights and institutions of governance in the region. The system of incentives created by this contract determined the development of fishing rights at a crucial moment in the history of colonial Bengal and, more broadly, became a primary mechanism of institutional change in the region. The analysis also shows the Calcutta High Court to have acted, albeit in vain, as a truly independent judiciary.

Macchi, a Muslim caste of fishermen, from Tashrih al-aqvam (1825)

Madeira and trust

Sorry for the slow pace of postings - no, I haven't been hitting the Madeira; I'm in the middle of a heavy semester teaching-wise, and on a short deadline for an article, etc. I'd be more than happy, as always, to post pieces by others, especially those of you whose semester is ending soon. Please let me know if you're interested.

In the meantime, here's a bit on the latest post on Rachel Laudan's food history blog, "Trade, Trust and Madeira", a post with both environmental and legal angles. Laudan connects the drinking of Madeira wine to Enlightenment theories of trade and sociability. Laudan writes:

I just want to highlight how trade, trust and Madeira reinforced each other.  The wine became Madeira’s most important export around 1700.  By then, sugar, which had been the main export for over a hundred years, the forerunner of the sugar plantations of the New World, had exhausted the soils. For the next two hundred years, Madeira flourished.

Producing and trading Madeira was no easy game. Complex irrigation projects were put in place. The wine was fortified with spirits to survive the long sea journeys. In an extraordinary turn of events, wine that had been shipped to India and for some reason made the return journey instead of being ruined, tasted particularly “mellow.”

The Americans, who in spite of their most determined efforts, failed to establish a wine industry in the Colonies, were particularly eager traders and consumers, though far from the only ones.

Here’s the thing. Living in the United States, where Amazon deliveries arrive on time and are left on doorsteps, we happily get on the internet, commit our money, secure in the expectation that the strangers who pack the goods, debit the cards, fly the planes, and drive the trucks will all act responsibly. My neighbors are shocked if packages left on the porch disappear. Yet I’ve lived in plenty of places where no one commits any important documents to the mail or orders anything to be delivered.  That chain of trust just does not exist.

Chains of trust have been built up over time. There’s lots of interesting historical work going on now about how merchants built trust along huge networks, the role of families and tightly knit religious or ethnic groups, the types of contracts, and the importance of correspondence.  Wine, like other valuables, had always been shipped long distances (the Romans sent wine to eager drinkers in northern Europe, for example, with Madeira the distances and cultures involved were on a whole new scale, stretching around the Cape to India and Southeast Asia, up to Scotland, across to the Caribbean and the American Colonies.

Part of that trust was building shared customs, civility, ways of comporting yourself among strangers. Drinking Madeira was one of these customs. Along with the wine itself went barrels, labelled bottles (a novelty because not stoneware), delicate glasses and decanters which, as Hancock puts it, “dripped both wealth and politesse.”

Passed from hand to hand, they helped bond political factions, merchant networks, and intellectual circles in gatherings in the home, in taverns, in messes, in clubs around the world. 

Sir Matthew Hale and the moral law of stewardship

Today we're fortunate to have an interesting guest post from Erin Drew, of the University of Mississippi English department:

Sir Matthew Hale is frequently credited with a key role in establishing the public trust doctrine in modern environmental law—a claim that has been contested by multiple scholars on the basis of both the legal relevance to American law and whether his claims for public rights in De Jure Maris can be taken as a statement of public trust at all. Whatever Hale’s relationship to public trust doctrine as a principle of law, however, his religious writings show that he relied upon legal metaphors of trusts and stewardship as the basis for moral arguments for the human obligation to care for their environment. References to human stewardship were not uncommon in religious writing of the seventeenth and eighteenth centuries, but Hale elaborates on the moral implications of the steward’s fiduciary role in a more extensive and legally detailed way than most, emphasizing the human obligation to account to the proprietary “lord,” God, for the responsible and proper use of that which has been entrusted to them.

In a chapter in his posthumously published Contemplations Moral and Divine entitled “The Great Audit, with the Account of the Good Steward,” Hale uses the Book of Matthew’s parable of the talents to imagine God calling humans to “account” for their use of the “blessings and talents” that God “committed to [their] trust and stewardship, to manage … for they ends they were given.” While the “blessings and talents” Hale discusses are broad and comprehensive, he gives special attention to the implications of human beings’ “stewardship” of creation for their duties to nonhuman creatures. In the section subtitled “Touching Thy Creatures,” Hale writes: “I received and used thy creatures as committed to me under a Trust, and as a Steward and Accomptent for them; and therefore I was always careful to use them according to those Limits, and in order for those Ends, for which thou didst commit them to me.” Hale frames the “Limits” to human control in terms of justice: God “has given us a Dominion over thy Creatures, yet it is under a Law of Justice, Prudence, and Moderation; otherwise we should become Tyrants, not Lords.” That “Law of Justice” requires using the nonhuman world with “Temperance and Moderation,” for the “Support of the Exigencies” of human life, yet with “Mercy and Compassion” for the “Powers of Life and Sense” which non-humans possess. To fail in either temperance or compassion would constitute a “Breach of that Trust under which the Dominion of the Creatures was committed to us, and a Breach of that Justice that is due from Men … to be merciful to [their] Beasts.” Cruelty and mistreatment of other creatures is therefore “a Tyranny inconsistent with the Trust and Stewardship that thou [God] has committed” to humans.

Thus Hale imagines a contractual relationship existing among God, humans, and non-humans, making humans morally responsible for the well-being of present and future generations of beings. Though Hale, like any contemporary moralist, stresses the sinfulness of the “Luxury and Excess … Lusts … vain Glory or Ostentation” that spur humans to mistreat and misuse the non-human creatures in their power, for him the fundamental sin is the violation of man’s fiduciary duties as God’s steward. Thus using creatures to excess is not simply a sin of personal gluttony. It breaks the terms under which God granted humans their limited dominion, by (in this case, literally) eating into God’s resources: whenever eating or drinking, Hale says, “I checked myself, … still remembered I had thy Creatures under an Accompt; and was ever careful to avoid excess or Intemperance, because every excessive Cup and Meal was in Danger to leave me somewhat Insuper and Arrear to my Lord.” The sin of mis- or over-use of God’s creatures, for Hale, lies in the violation of the contract between man and God to care for his creation according to the stipulated terms, and the failure to maintain God’s creation as a steward ought, by taking more from it than can be sustained. Hale believes the power granted to humans as the stewards of the world to be by its very nature subject to a law whose primary purpose is to ensure that justice and happiness is, overall, extended to each creature. That is, after all, the rationale that licenses human sovereignty over the world: that they maintain God’s ideal balance among the competing needs of various creatures for the optimal happiness of all. Only by justly fulfilling the duties laid out for them by God can humans legitimately claim “dominion” over the nonhuman world.

It makes sense for Hale to rely on the language of law and justice to reinforce moral obligations, since as biographer Alan Cromartie points out, Hale’s legal philosophy was based upon the premise of a legislating God who was “the basis of all natural moral knowledge,” as well as the premise that “the rule that all contracts should be kept was much the most important natural law.” In this, Hale was a part of a longstanding tradition of contractarian natural law, which drew moral principles from the nature of the fundamental contract between God the creator and his creations. Not all those who shared Hale’s belief that human beings were the trustees and stewards of God’s gifts extended their obligations to nonhuman creatures, but there is reason to believe that his opinions on that subject had a long and lasting influence on English morality, if not law: “The Great Audit” was excerpted, condensed, and reprinted regularly as a pamphlet from the 1690s to the 1790s, and the sub-section “Touching Thy Creatures” was the longest of the eight sub-sections included in those condensed editions, taking up five of a total of around twenty-five pages.