A Report upon the Mollusk Fisheries of Massachusetts

by Massachusetts. Commissioners on Fisheries and Game; David Lawrence Belding

Apart from the general supervision of the oyster industry, there have been two other sources of legislative enactment. First, special laws have been called for to regulate the fishery in certain waters under the oversight of the State Board of Health. Secondly, during the past few years the attention of the Legislature has been directed towards the development of the oyster fishery as an important asset of the Commonwealth, and laws authorizing various experiments, both scientific and practical, have been passed in order to devise methods of increasing and developing the industry.

I. Protective Laws.—The history of the oyster laws of Massachusetts is a history of the industry itself. The rise and decline of the fishery are distinctly traceable in the development of the legal machinery which regulates it. From the time of the Pilgrims the oyster beds of the coast had been regarded as inexhaustible mines. The fallacy of this view gradually became apparent, as these beds began to be depleted through overfishing. As early as 1796 a general law, entitled "An act to prevent the destruction of oysters and other shellfish," was passed by the Legislature. Prior to 1869 the town of Harwich adopted this old law. Shortly after, Swansea followed suit, and restricted the exploitation of her native oyster beds in the Lee and Cole rivers. In 1870 Wellfleet inaugurated an innovation, in the nature of a permit to take oysters, which was required of all citizens of the town. The idea of this permit was to regulate the fishery, centralize control in the hands of the selectmen and add to the income of the town. In 1873 Sandwich passed a law enforcing a close season on all her native beds, to last for a period of one year. In 1875 Brewster followed the lead of Wellfleet, in demanding permits of all outsiders and also from all citizens taking more than 3 bushels at any one time, although an unlimited amount might be taken for food.

The aim of all this legislation was not to develop the industry directly, but indirectly by preserving and fostering the native beds. This theory, while excellent in motive, did not work out well, as the native beds could not by any possible protection be brought to produce an annual yield at all adequate to the growing demands of the market.

The utilization of purely natural resources proving unequal to the demands of the occasion, the creation of other resources became necessary, and an entirely new epoch in the history of the oyster fishery was inaugurated. This epoch marked the beginning of the production of oysters by artificial means, and the establishment of this new industry and the perplexing complications which grew out of it have been the source of legislative strife for many years.

II. Constructive Laws.—The first legislation authorizing the present system of oyster culture was instituted at Swansea, in 1869. This was the beginning and the foundation of a broad movement of oyster culture which spread rapidly along the southern coast of the State. This curious law allowed the selectmen to sell, by public or private sale, the oyster privilege of Swansea outright to any person or persons who were citizens of the town. The measure, although apparently designed to restrict the exhaustion of the native resources, did not tend to develop the industry. It possessed one element of value, i.e., it increased the revenue of the town. Apart from its interest as the forerunner of artificial propagation of oysters, this old law is noteworthy, as it forms the basis of the system which to-day regulates the industry in that section of the country. The custom of selling an extensive oyster privilege, as apart from the system of leasing grants, first clearly outlined in the law of 1869, still holds throughout this section. It remains the usual custom to sell either the whole of a township's available oyster territory, or else an extensive part of it, to one man for a lump sum per year.

In 1874 an important step occurred in the evolution of the oyster industry. Swansea and Somerset were given the privilege of granting any of their bays, shores, banks and creeks for the propagation of oysters. This act was far more sweeping and advanced than any of its predecessors, but it was in one respect too sweeping. It interfered with the rights of the property owners along the shore, and was therefore contrary to the general underlying principle of the State law, which allows the cultivation of oysters only in so far as such cultivation does not interfere with the vested rights of all citizens alike. The measure proved untenable, and was promptly repealed. Its repeal was on general principles a thing to be desired, but nevertheless a blow to the industry. The tidal waters along the coast have always been the most valuable part of the oyster territory, as they have proved to be the best adapted for obtaining "oyster set." This measure was therefore designed to aid the oyster growers, and give them valuable privileges which belonged originally to the adjoining property owners. Even to the present day the dividing line between the rights of property owners and oystermen has remained an unsettled question.

It was about this time that the close season proved a failure in Buzzards Bay, and the towns of Wareham, Bourne and Marion turned their attention toward the establishment of an oyster industry. This attempt became a settled policy of these towns about 1875.

In 1878 a peculiar act was passed, making it unlawful for any person to remove oysters from any grant, even his own, between the hours of sunset and sunrise. This act was necessary for the protection of the oyster planters, by preventing the stealing of oysters from the grant at night. Various efforts had been made to protect grants from such attacks, but the extreme difficulty of detection was always an insuperable obstacle to proper enforcement, and it was deemed expedient to prohibit all fishing at night. That this problem had become an important one is shown by the title of the law, which was styled "An act for the better protection of the oyster fisheries in this commonwealth."

In 1884 an important act was passed, enlarging the limits of that territory which might lawfully be used for the cultivation of oysters. Practically all communal waters outside the jurisdiction of adjacent land owners was thrown open for oyster grants.