Part 15

(2) _Overfishing._--The primary cause of the decline of the natural oyster beds was overfishing. This is particularly true of the beds south of Cape Cod and in Buzzards Bay, which were of large extent, and unpolluted by manufacturing wastes or sewage. This overfishing has not been the result of the last few years, since records show that as early as 1824 Harwich passed an act to preserve the oyster fishery of the town; and that Sandwich, in the part which is now the town of Bourne, in 1832 passed regulations protecting the natural oyster fishery in Monument River; while at Wellfleet the natural oyster bed was completely exterminated by the year 1775. Overfishing has affected the natural beds in several ways, all of which have worked toward the general decline of the native oyster.

(_a_) The first settlers took the large oysters from the natural beds, which under normal conditions had all they could do to keep up the supply. In this way the beds were deprived of the spawning oysters, with the result that in spite of the closed seasons, which gave little if any benefit, a gradual decline set in.

(_b_) At the same time that the oysters were being taken from the beds, the early oystermen through ignorance were making an economic blunder by not returning the shells to the waters. The oyster shells furnish naturally the best surfaces for the collection of "seed," as spat will set only on clean surfaces. By taking the large oysters and with them the shells and other débris from the bed, the natural oyster bars were destroyed and less space given for the spat to catch. So both the taking of the large oysters in excessive amounts and the destruction of the natural spat collectors, either for lime, as was done at Wellfleet, or for other purposes, were sufficient in the early days to cause the decline of the natural oyster beds.

(_c_) In more recent times the destruction of the natural beds has been hastened by the taking of the small oysters. This practice was due to two reasons: (1) the supply of large oysters was exhausted; (2) oyster culture became important, and the natural beds were raked clean for "seed" which the oystermen obtained for planting on their grants. Thus the oyster grant system has been the chief cause of the destruction of the natural beds in the last forty years. It was only when the natural beds failed that grants were given, and so oyster culture cannot be considered the primary cause of the destruction of the natural beds, but only a later agency in their total extermination. The natural beds in Buzzards Bay all bear testimony to these three means of overfishing, and in recent years particularly to the last.

It has been a most fortunate thing for Massachusetts that the oyster grant system was inaugurated as soon as the decline of the natural fishery became manifest, else at the present time there would be no oysters in the State, for it is recognized that the present natural beds are perpetuated by the spawn which comes from the various oyster grants. Foresight has indeed provided an excellent oyster industry, which is rapidly improving. It is only necessary to apply similar methods of culture to the other shellfish industries of the State to insure their future also; otherwise the decline, which is following the same steps as the destruction of the natural oyster beds, will lead to the commercial extinction of these valuable fisheries.

_Results of the Survey._

The survey of the oyster industry has shown several interesting facts which should be brought to the attention of the fishermen and consumers. In the first place, it has shown that the oyster fishery is a larger and more important industry than it has been commonly considered, and that the welfare of the shore fisheries of southern Massachusetts depends upon its maintenance. Secondly, the oyster industry is to-day in a position where it cannot reach its full development for the reason merely that the present laws do not encourage the expansion of the industry. Thirdly, the oyster industry is trammeled by certain abuses, chiefly of a legal nature, which hinder its development, and upon the abolition of which depends its future success. Fourthly, the oyster industry under present conditions encroaches to some extent upon the other shellfish rights, especially in relation to the quahaug fishery, and has caused much jealous feeling; but if properly regulated there should be room for both industries.

In order to obtain the opinion of the oystermen concerning the present abuses of the oyster industry, and how these could be best remedied, the following question was asked of the individual planters: "What measures or laws would, in your opinion, be best adapted for the improvement of the oyster industry?" Although many neglected to answer this question, forty-three opinions were offered, dealing with the problems which the oystermen consider as needing attention and upon which the welfare of the industry depends. These answers have been arranged in tabular form, showing the number of oystermen who advocate certain measures.

MEASURES SUGGESTED.

Present laws satisfactory, 11 Direct State control of oyster industry, 11 Town control, with right of appeal to the department of fisheries and game, 1 Longer length of lease, 4 More certainty of re-leasing grants if improved, 7 More protection for industry, 4 Right to grow all kinds of shellfish, 1 More ground for cultivation, 1 State to forbid marketing of oysters from contaminated waters, 1 Provision for destruction of starfish, 2 ------ Total, 43

While these answers show a diversity of ideas, about 75 per cent. urge that something be done to improve the present system, and, while many are in favor of placing the industry under State control, the majority is definitely of the opinion that the present system of town control is proving a serious drawback to the oyster industry. The best interests of the oysterman and the consumer demand a better method of regulation of this industry. As long as town politics, partiality and carelessness enter into the leasing of oyster grants, and thus deprive certain people of their rights, it is safe to say that the oyster industry can never get beyond its present state of development. One solution of the difficulty might be full State control of leasing the grounds for the oyster industry. This is possibly too radical a step at present, and the system can perhaps be so adjusted as to remedy its defects without taking the control of the fishery entirely away from the hands of the town. Another solution is to continue the system of town control, but to have a State commission which would act as a board of appeal for all who felt aggrieved at the judgment of the selectmen.

The advisability of ten-year grants has caused much comment among the oystermen. Practically all grants are now given for this period of time. As a system it is deservedly unpopular, since it does not help the quahaug interest, and it checks the development of the oyster industry. The oyster business, unlike the other branches of shellfish culture, requires a considerable capital. This system of ten-year grants operates directly to discourage the outlay of capital. If the oysterman were sure of reaping the benefits of his labor and capital, it would be to his selfish interest to develop his own grant to its maximum capacity. But what far-sighted business man will invest money in a business which stands a good chance of being completely "wiped out" in a few years? Again, this system makes three years out of the ten practically worthless. The oysterman usually "seeds" his grant about three years before he expects to reap his harvest; but when his grant has run for seven years, it is evident that he will plant no more oysters because of the uncertainty of obtaining a second lease, and naturally does not desire to invest his labor and money for the benefit of an unknown successor.

The remedy for this is not difficult. If a grant were rented annually as long as the planter desired to hold it, to be forfeited if not improved to a certain standard (to be decided upon), or for non-payment of rent, the difficulties above enumerated would disappear. Much of the territory now held unimproved would either be brought up to a standard of excellence or given over to the quahaugers, and in either case direct benefits would result. If legislation were so arranged that any man might take, by the payment of a nominal rent, a small piece of ground, which he could hold as long as he improved it, the oyster industry could be put on a firmer footing; a man confident of enjoying the fruits of his labors could thus improve his grant, and, as he acquired skill and knowledge, could add other land and ultimately expect to build up a successful business.

A third important suggestion relates to the marketing of oysters in a sanitary condition. The oyster industry of the State has suffered severely because of the scare resulting from the marketing of oysters from contaminated waters. The Cape and Buzzards Bay oysters are in general free from all sewage contamination, and should not be considered on the same basis as the impure varieties from outside the State. Naturally, the Massachusetts oystermen desire that there be some guarantee for the purity of the oysters marketed, as their interests suffer because this impure stock is often sold under the name of the Cape oyster. If laws were passed requiring the inspection and certification of marketed oysters in regard to healthful conditions under which they have been produced, both the oyster planter and the consumer would be benefited.

There is but little doubt that the oyster industry can be still further developed by opening waste territory which at this time does not appear available, since under existing conditions proper capital cannot be induced to enter the business. The oyster industry demands more attention than it has hitherto received, and must be considered an important asset of the Commonwealth.

_History of the Industry._

Although the oyster laws are the mile-stones which mark the progress of the oyster industry, and any consideration of the development of these laws naturally gives many historical features, it is nevertheless necessary, at the risk of repetition, to give a separate account of the history of the oyster fishery. The Massachusetts oyster fishery can be divided historically into three distinct periods: (1) the free fishing period; (2) the period of bedding southern oysters; (3) the period of oyster grants.

(1) _The Free Native Fishery (1620-1840)._--In the early colonial days the oyster fishery was considered in the same way as the other shellfisheries are now looked upon, _i.e._, held to be the common property of the inhabitants of the Commonwealth. The natural supply was abundant enough to meet the needs of all the inhabitants, and for many years no signs of decline were manifest. In 1775 the natural beds of Wellfleet gave out, furnishing the first record of unmistakable decline. From that time there arose an extensive series of protective laws, with the one object of preserving the natural supply by limiting the demand. This policy of protective laws, though perhaps temporarily beneficial, was based on an erroneous principle. It was preventive, but not constructive, and did not build up the demolished fishery.

(2) _Oyster Bedding (1840-70)._--With the decline of the natural beds, the practice of bedding southern "plants" became an important part of the oyster trade. The southern oysters were bedded on the flats in the spring and taken up for market in the fall. Salem, Wellfleet and Boston were the leading places in this new phase of the oyster industry, and many thousand bushels were annually planted.

(3) _Oyster Grants (1870-1908)._--So successful was this summer bedding of southern oysters that experiments were soon made in rearing oysters. This proved successful from the start, and within a few years the extensive grant system which is now in vogue was inaugurated on Cape Cod and Buzzards Bay.

These three methods, although separated by definite periods in which each have been the leaders, remain to a greater or less extent at the present day. The natural beds are still in existence, and, as at Wareham, are opened once in three or seven years, according to the discretion of the selectmen, for catching "seed." The summer bedding of oysters still continues, as certain planters find it more profitable to fatten than to grow oysters, and the oyster grant system is now in full operation.

A comparison of the industry of 1907 with that of 1879 shows several changes. These changes are for the most part improvements which have arisen with the development of the industry. In some cases the changes have been detrimental, and a few localities have shown a decline. New fields have opened to the oysterman both in new localities and through the extension of the present beds. On the whole, there has been a great increase in the grant system of oyster culture, while the "bedding" of southern "plants," which in 1879 employed many men, boats and extensive capital, has practically disappeared. The annual production has increased gradually, and for 1906-07 is approximately five times as large as in 1879. The following figures, except for 1907, are taken from the United States Fish Commission's reports, and show the gradual increase in production:--

=========+==========+======== YEAR. | Bushels. | Value. ---------+----------+-------- 1879, | 36,000 | $41,800 1887, | 43,183 | 64,115 1888, | 45,631 | 66,453 1898, | 101,225 |$156,235 1902, | 103,386 | 133,682 1907,[16]| 161,182 | 176,142 =========+==========+========

_The Oyster Laws._

In submitting a complete report upon the oyster industry, the oyster laws, which have played an important part in the development of the fishery, cannot be totally neglected. However, so important a subject demands separate investigation, and offers excellent opportunities for legal research. Therefore it is not the purpose of this report to give more than a brief account of the present oyster laws and their history.

The shellfish laws of Massachusetts constitute the foundation of the oyster industry, as they have taken a practically extinct native fishery and have built up the present extensive business. So closely are they connected with its welfare that the future of this growing industry depends upon the proper expansion of these laws to meet the new conditions.

A survey of these oyster laws, with an analysis of their merits and defects, is needed. Their defects have brought about the present unsatisfactory situation in certain localities, and should be remedied. Their merits should be strengthened and amplified, as the basis of future expansion. They have come into being from time to time, in response to the immediate need of the hour; consequently they have no unity, and are, indeed, but imperfectly understood. An insight into their perplexing details should bring out many inconsistencies. Again, no comprehensive knowledge of the history of the industry is possible without a study of the laws. The errors once committed need not be repeated to further embarrass the industry, and the lessons learned by experience would be well applied to its future development.

_Protective and Constructive Laws._--The oyster laws can be divided into two classes: (1) protective; and (2) constructive. The early laws, which were passed to save the natural supply, were of the first class; while the laws establishing the present system of oyster culture come under the second heading. The beginnings of all legislative enactment arose in the treatment of the natural oyster beds. These beds were fast becoming exhausted, when laws were passed to protect their important natural resources. This measure was only partially successful. It did succeed in preserving the remnant of those old beds from destruction, but it was powerless to build up an industry of any extent. When it became clearly evident that no possible fostering of native resources could supply the growing demands of the market, legislation quite logically directed itself toward the artificial propagation of oysters. From this step arose a series of problems which long proved baffling, and still engross a great deal of public attention. The artificial propagation of oysters necessitated the leasing of grants in tidal waters. This giving up of public property to private individuals aroused the opposition of rival shellfish industries, who saw in this measure a curtailment of their resources. Numerous other difficulties of minor significance arose from time to time, all demanding attention at the hands of the Legislature.

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.