The Present Abuses of the Shellfisheries.
Not only has this survey shown by specific examples the alarming but actual decline of the natural shellfish supply (in spite of deceptive production statistics), but it has brought to light numerous evils of various kinds. These abuses have developed gradually with the rise of the shellfisheries, until at the present day they cannot be overlooked or considered unimportant. So closely are these connected with the present status of our shellfishery that upon their abolition depends its future success or failure. Some need immediate attention; others will require attention later. After a thorough and competent investigation, remedies for the correction of each evil should be applied.
In the future Massachusetts will have to utilize all her wealth of natural resources, to keep her leading position among the other States of the Union. To do this she should turn to her sea fisheries, which have in the past made her rich, and hold forth prospects of greater wealth in the future. Untold possibilities of wealth rest with her shellfisheries, if obsolete methods and traditions can be cast aside. In any age of progress the ancient and worthless must be buried beneath the ruins of the past, while the newer and better take their place. There is no more flagrant example of obsolete methods and traditions holding in check the development of an industry than with the shellfisheries, and it is time that Massachusetts realized these limitations.
The shellfisheries of Massachusetts are in a chaotic state, both legally and economically. The finest natural facilities are wasted, and thousands of acres of profitable flats are allowed to lie barren merely for a lack of initiative on the part of the general public. This chaotic and unproductive state will exist until both the consumer and the fishermen alike understand the true condition of affairs, and realize that in the bays, estuaries and flats of Massachusetts lies as much or more wealth, acre for acre, as in the most productive market gardens.
In Rhode Island the clam and scallop fisheries have almost disappeared. Five or ten years from now the shellfisheries of Massachusetts will be in a similar condition, and beyond remedy. Now is the time for reform. The solution of the problem is simple. Shellfish farming is the only possible way in which Massachusetts can restore her natural supply to its former abundance.
I. The Shellfish Laws.—The first evils which demand attention are the existing shellfish laws. While these are supposed to wisely regulate the shellfisheries, in reality they do more harm than good, and are direct obstacles to any movement toward improving the natural resources. Before Massachusetts can take any steps toward cultivating her unproductive shellfish areas, it will be necessary to modify the worst of these laws.
A. Fishery Rights of the Public.—The fundamental principle upon which the shellfish laws of the State are founded is the so-called beach or free fishing rights of the public. While in other States property extends only to mean high water, in Massachusetts the property holders own to extreme low-water mark. Nevertheless, according to further provisions of this ancient law, the right of fishing (which includes the shellfisheries) below high-water mark is free to any inhabitant of the Commonwealth.
(1) Origin.—The first authentic record of this law is found under an act of Massachusetts, in 1641-47, by which every householder was allowed "free fishing and fowling" in any of the great ponds, bays, coves and rivers, as far "as the sea ebbs and flows," in their respective towns, unless "the freemen" or the General Court "had otherwise appropriated them." From this date the shellfisheries were declared to be forever the property of the whole people, i.e., the State, and have been for a long period open to any inhabitant of the State who wished to dig the shellfish for food or for bait.
(2) Early Benefits.—In the early days, when the natural supply was apparently inexhaustible and practically the entire population resided on or near the seacoast, it was just that all people should have common rights to the shore fisheries. As long as the natural supply was more than sufficient for the demand, no law could have been better adapted for the public good.
(3) Present Inadequacy.—Two hundred and fifty years have passed since this law was first made. The condition of the shellfisheries has changed. No longer do the flats of Massachusetts yield the enormous harvest of former years, but lie barren and unproductive. The law which once was a benefit to all has now become antiquated, and incapable of meeting the new conditions.
(4) Evil Effects.—If this law were merely antiquated, it could be laid aside unnoticed. On the contrary, as applied to the present conditions of the shellfisheries it not only checks any advancement, but works positive harm. From the mistaken comprehension of the so-called beach rights of the people, the general public throughout the State is forced to pay an exorbitant price for sea food, and the enterprising fishermen are deprived of a more profitable livelihood. The present law discriminates against the progressive majority of fishermen in order to benefit a small unprogressive element.
(5) Protection.—If shellfish farming is ever to be put on a paying basis, it is essential that the planter have absolute protection. No man is willing to invest capital and labor when protection cannot be guaranteed. What good does it do a man to plant a hundred bushels of clams, if the next person has a legal right to dig them? Since the law absolutely refuses any protection to the shellfish culturist, Massachusetts can never restock her barren flats and re-establish her shellfisheries until this law is modified to meet the changed conditions.
(6) Who are the Objectors? Objectors to any new system are always found, and are not lacking in the case of shellfish culture. These would immediately raise the cry that the public is being deprived of its rights. To-day the public has fewer rights than ever. The present law causes class distinctions, and a few are benefited at the expense of the public. The industrious fisherman suffers because a few of the worthless, unenterprising class, who have no energy, do not wish others to succeed where they cannot. In every seacoast town in Massachusetts the more enlightened fishermen see clearly that the only way to preserve the shellfisheries is to cultivate the barren areas.
Hon. B. F. Wood, in his report of the shellfisheries of New York, in 1906, clearly states the case.[4]
There is, unfortunately, in some of the towns and villages upon our coast an unprogressive element, composed of those who prefer to reap where they have not sown; who rely upon what they term their "natural right" to rake where they may choose in the public waters. They deplete, but do not build up. They think because it may be possible to go out upon the waters for a few hours in the twenty-four (when the tide serves) and dig a half peck of shellfish, that it is sufficient reason why such lands should not be leased by the State to private planters. It might as well be said that it is wrong for the government to grant homestead farms to settlers, because a few blackberries might be plucked upon the lands by any who cared to look for them.
The following is taken from the report of the Massachusetts Commissioners on Fisheries and Game for 1906:[5]—
There are at least four distinct classes within our Commonwealth, each of which either derive direct benefits from the mollusk fisheries of our coast, or are indirectly benefited by the products of the flats:—
(1) The general public,—the consumers, who ultimately pay the cost, who may either buy the joint product of the labor and capital invested in taking and distributing the shellfish from either natural or artificial beds, or who may dig shellfish for food or bait purposes for their own or family use.
(2) The capitalist, who seeks a productive investment for money or brains, or both. Under present laws, such are practically restricted to distribution of shellfish, except in the case of the oyster, where capital may be employed for production as well,—an obvious advantage both to capital and to the public.
(3) The fishermen, who, either as a permanent or temporary vocation, market the natural yield of the waters; or, as in the case of the shellfisheries, may with a little capital increase the natural yield and availability by cultivating an area of the tidal flats after the manner of a garden.
(4) The owners of the land adjacent to the flats, who are under the present laws often subjected to loss or annoyance, or even positive discomfort, by inability to safeguard their proper rights to a certain degree of freedom from intruders and from damage to bathing or boating facilities, which constitute a definite portion of the value of shore property.
All of these classes would be directly benefited by just laws, which would encourage and safeguard all well-advised projects for artificial cultivation of the tidal flats, and would deal justly and intelligently with the various coincident and conflicting rights of the fishermen, owners of shore property, bathers and other seekers of pleasure, recreation or profit, boatmen, and all others who hold public and private rights and concessions.
That any one class should claim exclusive "natural valid rights," over any other class, to the shellfish products of the shores, which the law states expressly are the property of "the people," is as absurd as to claim that any class had exclusive natural rights to wild strawberries, raspberries, cranberries or other wild fruits, and that therefore the land upon which these grew could not be used for the purpose of increasing the yield of these fruits. This becomes the more absurd from the fact that the wild fruits pass to the owner of the title of the land, while the shellfish are specifically exempted, and remain the property of the public.
The class most benefited by improved laws would be the fishermen, who would profit by better wages through the increased quantity of shellfish they could dig per hour, by a better market and by better prices, for the reason that the control of the output would secure regularity of supply. Moreover, when the market was unfavorable the shellfish could be kept in the beds with a reasonable certainty of finding them there when wanted, and with the added advantage of an increased volume by growth during the interval, together with the avoidance of cold-storage charges. Thus the diggers could be certain of securing a supply at almost any stage of the tide and in all but the most inclement weather, through a knowledge of "where to dig;" moreover, there would be a complete elimination of the reasoning which is now so prolific of ill feelings and so wasteful of the shellfish, viz., the incentive of "getting there ahead of the other fellow."
B. All the shellfish laws should be revised, to secure a unity and clearness which should render graft, unfairness and avoidable economic loss impossible, and be replaced with a code of fair, intelligent and forceful laws, which would not only permit the advancement of the shellfish industry through the individual efforts of the progressive shellfishermen, but also protect the rights of the general public.
C. The majority of the shellfish laws of the State are enacted by the individual towns. In 1880 the State first officially granted to each town the exclusive right to control and regulate its own shellfisheries, as provided under section 68 of chapter 91 of the Public Statutes. This was slightly modified by the Acts of 1889 and 1892 to read as follows (now section 85 of chapter 91 of the Revised Laws):—
Section 85. The mayor and aldermen of cities and the selectmen of towns, if so instructed by their cities and towns, may, except as provided in the two preceding sections, control, regulate or prohibit the taking of eels, clams, quahaugs and scallops within the same; and may grant permits prescribing the times and methods of taking eels and such shellfish within such cities and towns and make such other regulations in regard to said fisheries as they may deem expedient. But an inhabitant of the commonwealth, without such permit, may take eels and the shellfish above-named for his own family use from the waters of his own or any other city or town, and may take from the waters of his own city or town any of such shellfish for bait, not exceeding three bushels, including shells, in any one day, subject to the general rules of the mayor and aldermen and selectmen, respectively, as to the times and methods of taking such fish. The provisions of this section shall not authorize the taking of fish in violation of the provisions of sections forty-four and forty-five. Whoever takes any eels or any of said shellfish without such permit, and in violation of the provisions of this section, shall forfeit not less than three nor more than fifty dollars.
Responsibility has thus been transferred from the State to the towns, and they alone, through their incompetence and neglect, are to blame for the decline of the shellfisheries. The town laws are miniature copies of the worst features of the State laws. While a few towns have succeeded in enacting fairly good laws, the majority have either passed no shellfish regulations at all, or made matters worse by unintelligent and harmful laws. It is time that a unified system of competent by-laws were enacted and enforced in every town.
The ill-advised features which characterize the present town laws are numerous, and are best considered under the following headings:—
(1) Unintelligent Laws.—One of the worst features of our town shellfish laws is their extreme unfitness. Numerous laws which are absolutely useless for the regulation and improvement of these industries have been made by towns, through men who knew nothing about the shellfisheries. These laws were made without any regard for the practical or biological conditions underlying the shellfish industry. It is to be expected that laws from such a source would often be ill-advised and unintelligent, but under the present system it cannot be avoided. Until sufficient knowledge of the habits and growth of shellfish is acquired by the authorities of State and town, Massachusetts can never expect to have intelligent and profitable shellfish laws. While the majority of these unintelligent laws do no harm, there are some that work hardship to the fishermen and are an injury to the shellfisheries.
(2) Unfairness; Town Politics.—Town politics offers many chances for unscrupulous discrimination in the shellfish laws. Here we find one class of fishermen benefiting by legislation at the expense of the other, as in the case of the quahaugers v. oystermen. In one town the oystermen will have the upper hand; in another, the quahaugers. In every case there is unfair discrimination, and a resultant financial loss to both parties. The waters of Massachusetts are large enough for both industries, and every man should have a "square deal," which is frequently lacking under the present régime.
Besides party discrimination, there is discrimination against certain individuals, as illustrated in giving oyster grants. Town politics plays a distressing part here. Favoritism is repeatedly shown, and unfairness results. All this shows the unpopularity and impracticability of such regulations and the method of making them.
(3) Present Chaotic State.—The present town laws are in a chaotic condition, which it is almost impossible to simplify. No one knows the laws, there is merely a vague impression that such have existed. Even the selectmen themselves, often new to the office and unacquainted with the shellfisheries, know little about the accumulated shellfish laws of the past years, and find it impossible to comprehend them. The only remedy is to wipe out all the old and replace them with unified new laws.
(4) Unsystematic Laws.—The present laws are unsystematized. Each town has its own methods, good and bad, and the result is a heterogeneous mixture. Often there are two or three laws where one would definitely serve. To do absolute justice there should be a definite system, with laws elastic enough to satisfy the needs of all.
(5) Nonenforcement.—The worst feature of allowing town control of the shellfisheries is the nonenforcement of the laws already passed. We find in many towns that good by-laws have been made, but from inattention and lack of money these have never been enforced and have become practically nonexistent. The 1½-inch quahaug law of several towns is an instance of this. In but one town in the State, Edgartown, is any effort made to enforce this excellent town by-law, although several of the other towns have passed the same. The proper enforcement of laws is as important as the making, as a law might as well not be made if not properly enforced. The only way that this can be remedied is either to take the control completely out of the hands of the town, or else have a supervisory body which would force the town to look after violators.
Besides the town by-laws there are other evils which result from the present system of town control.
II. Lack of Protection in Oyster Industry.—In no case is the management by towns more inefficient and confusing than in the case of the oyster industry. As this subject will be taken up in the oyster report which follows, it is only necessary here to state that there is great need of a proper survey of grants, fair laws, systematic methods, etc. Protection is necessary for the success of any industry, and is especially needed for the oyster industry. The oyster industry of Massachusetts will never become important until adequate protection is guaranteed to the planters. Under the present system, uncertainty rather than protection is the result.
III. Town Jealousy.—The evil of town jealousy, whereby one town forbids its shellfisheries to the inhabitant of neighboring towns, is to-day an important factor. It is fair that a town which improves its own shellfisheries should not be interfered with by a town which has allowed its shellfisheries to decline. While this is true perhaps of the clam, quahaug and oyster, it does not hold true of the scallop. The result of this close-fisted policy has resulted in the past in a great loss in the scallop industry. The town law in regard to scallops is all wrong. The scallop fisheries should be open to all the State, and no one town should "hog the fishing," and leave thousands of bushels to die from their dog-in-the-manger attitude.
IV. Sectional Jealousy.—Another evil, which in the past has been prominent, but is becoming less and less as the years go by, is the jealousy of the north shore v. the south shore, Cape Cod v. Cape Ann. In the past this has been a stumbling block against any advance, as any plan initiated on the south shore would be opposed from sheer prejudice by the north shore representatives, and vice versa. The cry of "entering wedge" has been raised again and again whenever any bill was introduced for the good of the shellfisheries by either party. Merely for political reasons good legislation has been defeated. However, the last few years have shown a decided change. The jealous feeling has in a large measure subsided; the shellfisheries need intelligent consideration, and all parties realize that united effort is necessary to insure the future of these industries.
V. Quahaugers v. Oystermen.—On the south shore the worst evil which at present exists is the interclass rivalry between the quahaugers and oystermen. This has caused much harm to both parties, through expensive lawsuits, economic loss, uncertainty of a livelihood, as well as retarding the proper development of both industries.
VI. Waste of Competition.—At the present day the utilization of waste products in all industries is becoming more and more important. In this age material which was considered useless by our forefathers is made to play its part in the economic world. Through science industrial waste of competition is being gradually reduced to a minimum, although in any business which deals with perishable commodities, such as fish, fruit, etc., there is bound to be a certain amount of loss.
Under the present system the shellfisheries suffer from the effects of waste resulting from competition. Both the fisherman and the consumer feel the effects of this, in different ways,—the fisherman through poor market returns, the consumer through poor service. As long as the shellfisheries are free to all, there is bound to be that scramble to get ahead of "the other fellow," which not only results in the destructive waste of the actual catch, but also causes a "glutted" market, which gives a low return to the fisherman. Thousands of dollars are thus lost each year by the fishermen, who are forced to keep shipping their shellfish, often to perish in the market, merely because the present system invites ruthless competition. The fishermen in this respect alone should be the first to desire a new system, which would give to each a shellfish farm and the privilege of selecting his market.
VII. At the present moment there are two evils which demand attention, and which can be lessened by the passage of two simple laws:—
(1) During the past three years many thousands of bushels of quahaugs under 1½ inches have been shipped out of the State, merely passing into the hands of New York oystermen, who replanted, reaping in one year a harvest of at least five bushels to every one "bedded." Through the inactivity of town control, the incentive to get ahead of the other fellow and the ignorance that they are wasting their own substance have caused many quahaugers in the past to do this at many places.
The 1½-inch quahaug law has been for years a law for many towns in the State. It has been practically a dead letter in all but Edgartown, where it is enforced thoroughly. There should be a State law restricting the size of the quahaugs taken.
(2) The enforcement of a 1½-inch clam law, especially in the towns of Fall River and Swansea, where the digging has reduced the clams to a small size, likewise deserves immediate attention.
All the present evils have each contributed their share toward the ruin of the shellfisheries, and can be best summed up under one head, i.e., the abuse of nature. All the above evils have either directly or indirectly worked towards this end. This "abuse of nature" has resulted in several ways: (1) indiscriminate fishing, restricted by no laws, augmented by unwise laws; (2) overfishing in certain localities until the supply is exhausted, as, among other instances, with the Essex clam flats and the natural oyster beds of the Weweantit River; (3) exploiting and wasting the natural resources, so that nature cannot repair the inroads. Nature cannot cope with despoiling man,—man must assist nature.
In the past there has been much feeling, especially among the clammers of the north shore, against the Fish and Game Commission. It therefore is necessary to correct a mistaken impression, which has arisen among the clammers, that "the State is going to take the clam flats away from us." This idea is on the face of it absurd. The Massachusetts Fish and Game Commission is seeking only to have this question solved in such a manner as to yield the most satisfactory results for the public good. At the present time it would be highly undesirable to take the complete control of the shellfisheries from any town, as long as that town shows itself capable of regulating them wisely. At the present day but few towns show any signs of this. What is necessary and desirable is to have an intelligent supervisory body, with power to compel each town to take proper care of its shellfisheries. It is advisable that there be a central power, co-operating with the town control in all matters pertaining to the shellfisheries, whether it be regulations or the restocking of barren areas. A board of arbitration, a committee of appeal for any grievance under the town control, and a commission that would act for the interests of the whole State, are what is most desirable at the present time. Such an arrangement would not be changing radically the present system of town control, but it would free it from its existing evils, place it on a firm and just basis, and give the shellfisheries a chance for improvement.