Herring, the Moral Economy, and the Liberal Order Framework

Elizabeth Mancke and Sydney Crain

In 1819, New Brunswick’s assembly passed its first legislation regulating just the herring fishery for the “Parishes of West-Isles, Campo-Bello, Pennfield, and Saint George” in Charlotte County; two years later, an amendment added the Island of Grand Manan.[1] Since its first sitting in 1786, the assembly had passed nine statutes to regulate “the Fishery in the different Rivers, Coves and Creeks,” and to prohibit any “incumbrances” that might “obstruct, injure, or hurt the natural course of the fish into any river or place where they usually go.” From 1786 to 1809, the assembly’s emphasis in fisheries legislation was on providing equitable fishing access to people living all along a river. In 1810, the emphasis shifted to “preventing their decay” and “destruction.” Some acts specified a fishery, such as salmon, others applied province-wide.[2]

The herring legislation attributed declines to “injudicious and wanton placing of Seines and Nets,” which blocked fish from reaching their spawning grounds, and the use of “Wears, Fish-Garths, and other obstructions whereby the young fry are destroyed.” Despite legislative updates and amendments, problems continued, and in the 1830s, the assembly struck a commission of inquiry to investigate the herring fishery, including travelling to Grand Manan to collect testimony from fishers.[3] The government of Nova Scotia also heard a chorus of concerns about threats to the herring fisheries in the 1830s and also struck a committee of inquiry.[4] Significantly, however, the two provinces regulated their fisheries and sought mitigation for the herring crisis in strikingly different ways. This blogpost offers a preliminary analysis of the two provinces’ responses to the crisis using the legislative record.

In 1763, the Nova Scotia assembly had enacted a province-wide act addressing the river fisheries, which were provincial, rather than imperial, jurisdiction. It delegated regulatory powers to county justices of the General Quarter Sessions, who “shall and are hereby impowered and directed to make rules and orders for the regulation of the river fishery in their respective counties, as they from time to time shall find necessary for the preservation thereof.” Three years later, it made the act perpetual, and it remained on the books until 1851. The assembly amended it once in 1775 to allow justices to reduce the mandated fine of £10. In 1786, the assembly passed a province-wide act, effective for one year, stipulating that on rivers, any “Mill-Dams, or other obstructions” were to have a “proper waste-gate kept open, while the season lasts, for fish to pass.”[5] In the 1830s, it passed “An Act relating to the Fisheries, and for the prevention of Illicit Trade, &c.,” intended to regulate the commercial encroachment of Americans buying herring for bait, more than regulating the catching of herring, as well as some legislation pertaining to local fisheries. Not until 1851, did Nova Scotia enact major legislation regulating the fishery.[6]

New Brunswick’s assembly, in contrast, passed over four dozen statutes regulating the fisheries between its first session in 1786 and the early 1850s, approximately half of which were for the entire colony and half for locationally specific fisheries, such as the herring fishery in the Bay of Fundy or the bass fishery in the Richibucto watershed. New Brunswick’s abundant legislation, coupled with fishery reports from provincial commissions, offers multiple reference points for understanding the importance of the fishery to the province. Like Nova Scotia, New Brunswick’s initial fishery legislation was for river fisheries, but with the distinct difference of stating it was for “Rivers, Coves and Creeks,” thus asserting provincial control over inshore waters between headlands, such as Saint John Harbour. Indeed, in 1810, it passed an act giving “Overseers of the Fisheries” in locales “bordering upon the Bay of Fundy, or upon any other arm of the sea” the power to “to seize and sell any nets set or used unlawfully. . . [as]. . . if the waters thereof, were within the limits of such City or Parish.”[7] The legislation tasked county justices with enforcing fishery legislation, but they had far less discretion than their Nova Scotia counterparts to enact local regulations.

The initial province-wide act in New Brunswick, passed in 1786, had a two-year sunset clause, a self-imposed mandate for the assembly to review its policy. From 1787 to 1793, the assembly amended it four times, the last time without a sunset clause. Some amendments were commonsensical: a 1791 change stipulated that county justices could appoint no one “employed as a fisherman” to be an overseer of a county fishery. The 1791 act also allowed county overseers to collect one shilling per net “from the proprietors of such nets as a compensation for their trouble.” New Brunswick imposed higher fines for violating statutory regulations than did Nova Scotia. The 1786 legislation set a maximum fine at £10 for violations, but a 1788 amendment made it a minimum fine with a second infraction at £20, and every subsequent infraction carrying a £50 fine. In Nova Scotia, the maximum fine was £10.[8]

Until 1818, imperial jurisdiction over the salt-water fishery extended to the shore; the river fisheries were provincial jurisdiction. The only colonial regulation pertaining to the deep-sea fishery was a prohibition on dumping fish offal directly into the sea, enacted with legislation in Nova Scotia in 1770,  in New Brunswick in 1818, and by ordinance in Cape Breton in 1787.[9] The Convention of 1818 between Britain and the United States reopened British American waters to US fishers, with the critical provision that Americans could not fish within “three marine Miles of any of the Coasts, Bays, Creeks, or Harbours of His Britannic Majesty’s Dominions in America,” except off Newfoundland and Labrador. That international provision effectively extended provincial jurisdiction three miles out into the sea.[10]

The New Brunswick assembly immediately responded to this extension of its jurisdiction by passing legislation in 1819 for the Charlotte County herring fishery, a largely inshore fishery which the Convention of 1818 brought within provincial jurisdiction. In 1820, New Brunswick an act “to prevent the taking of Fish in the different Harbours and Rivers of this Province with Drift Nets.” In 1822, it funded an “armed Cutter” and granted it the power “to bring to, detain, and examine any vessel or boat which maybe found hovering around the coast, and bays, or rivers of this Province, or at anchor off or in the same.” Vessels “found hovering” were usually fishing vessels, many of which were owned by Americans fishing illegally in colonial waters. Not until the 1830s did Nova Scotia consider similar policing of its three-mile zone, but by 1851, it was the primary reason for new legislation. The first article made it legal for colonial officials to board “any vessel or boat . . . hovering within three marine miles of any of the coasts or harbors.”[11]

By the 1830s, the herring fishery was in crisis all along the northeast coast of North America.  The Nova Scotia and New Brunswick assemblies struck commissions of enquiry and published their reports as appendices in their assembly journals. Perhaps not surprisingly given the differences in approaches to regulating their fisheries, the approaches and assessments of the commissions diverged. Nova Scotia’s commissioners framed the problem in commercial and geopolitical terms, and thus largely matters of imperial regulation. Americans were fishing in Nova Scotia’s inshore waters in violation of the 1818 Convention. American vessels headed to offshore cod fishing were purchasing herring as bait directly from local inshore fishers, much to the dismay of local merchants who customarily purchased herring bait on credit from local fishers and then sold it to offshore fishers. Nova Scotia’s commission sought imperial interventions.[12]

New Brunswick’s commissioners, in contrast, focused on understanding the behaviour of fish that spawn in rivers and inlets. They consulted fisheries research, including William Yarrell’s recently published two-volume History of British Fisheries (2 vols., 1836), and collected evidence on how other jurisdictions in Britain and the United States regulated equivalent fisheries.[13] After visiting Grand Manan and interviewing fishermen, they concluded that herring did not spawn in the same locale year-after-year, and thus fishermen needed to be willing and able to fish further afield.  Nonetheless, in 1837, the assembly updated existing legislation to limit the length of nets or seines to thirty fathoms and stipulated that they could not be set on spawning grounds or within “three marine miles of the main island from July 20 to October 20.” Quite explicitly, New Brunswick asserted the provincial right to regulate the herring fishery within the three-mile zone. The 1837 legislation required “the meshes of all nets or seines used for taking of herrings” in Charlotte County waters to “be at least . . . one inch and three quarter,” large enough for young herring to swim through. It did allow herring fishing by torch light, using a dip net, the method the old fishers, and particularly Indigenous fishers, thought the best for long-term maintenance of the fishery.[14]

These differences indicate markedly dissimilar approaches to assembly powers, fisheries regulations, and governance of the commons. They also suggest dissimilar understandings of the boundary between provincial and imperial jurisdictions. Some differences can be attributed to the modest extent of New Brunswick’s herring grounds in the lower Bay of Fundy, and Nova Scotia’s extensive herring fishery along the eastern Fundy Shore and South Shore. Abundance perhaps made Nova Scotia’s assembly less concerned with the possible consequences of overfishing and more concerned with the fisheries’ commercial dimensions. Imperial officials also had their perspective. British naval officer John Robb opined in an 1840 report on the herring fishery that given the vastness of maritime waters, the fish were nearly inexhaustible and fishers simply had to be willing to show some initiative and go further afield to find new fishing grounds. In short, the problem was not overfishing, but rather the willingness of colonials to benefiting from the global empire the navy patrolled. That assessment was amplified by the presence of American fishing vessels staffed with people who clearly were willing to go to sea to find fish.[15]

Despite New Brunswick’s attempt to develop policy using the latest scientific evidence, the collection of data to understand herring spawning behavior, particularly whether they spawned in the same area year-after-year, would not happen until new technologies made it possible. Older fishermen on Grand Manan insisted that the crisis in the 1830s was a result of overfishing, that herring had spawned consistently on the eastern shore of the island time immemorial. But the general imperial consensus was that the problem was not intrinsically overfishing.  Rather, herring were fickle in where they spawned and therefore fishers had to be prepared to search out new grounds.  Evidence from subsequent crises suggest that the regulations New Brunswick implemented in the 1830s helped protect herring spawning grounds. In 1853, Nova Scotia again confronted concerns over herring declines. The fishery in Annapolis Basin “almost entirely failed,” which a naval officer attributed to “the fish have[ing] taken a different course.” In his estimation, they chose the “spawning ground at Grand Manan” because it was “protected from netting,” as though herring understood New Brunswick and Nova Scotia’s regulatory differences and chose where to spawn accordingly. His conclusion was not that Nova Scotia needed better legislation, but that fishers needed to follow fish.[16]

We did not expect such striking provincial divergences. In historiographical terms, Nova Scotia’s regulatory sensibility exhibited characteristics more consistent with Ian McKay’s liberal order framework, while New Brunswick attempted to balance a vision of moral economy and commercial interests, similar to what with Sean Cadigan has found in Newfoundland.[17] Less surprising were the sensibilities of imperial officers who discounted local concerns with overfishing and offered patronizing and pejorative assessments of imperial subjects who seemingly lacked the initiative and resourcefulness to find fish in another part of the empire. It provides an important insight into how the idea of an inexhaustible ocean became entrenched wisdom and is an aspect of imperial environmental thinking that needs further investigation. The brief findings offered here indicate that we know far too little about how the maritime commons were regulated, how practices and perceptions differed locally, provincially, and imperially, and how new approaches to researching these issues sheds light on Canada’s environmental legacies.

 

This blog post reflects two research agendas of Elizabeth Mancke, CRC in Atlantic Canada Studies at the University of New Brunswick. The first is an interest in the importance of legislation as an underutilized documentary resource. Her CRC work involves building the open-source British North America Legislative Database, 1758-1867. In working with the legislative record, the attempts by British North Americans to regulate the environment were striking, often in a colony’s first legislative session.

Sydney Crain is completing an honors Chemistry degree at UNB, and has also been working with Professor Mancke for three years.


 

[1] 59 George III – Chapter 16 [NB, 1819], “An Act to regulate the Herring Fisheries in the Parishes of West-Isles, Campo-Bello, Pennfield, and Saint George, in the County of Charlotte;” and 2 George IV– Chapter 8 [NB, 1821], “An Act to extend the provisions of an Act intituled “An Act to regulate the Herring Fisheries in the Parishes of West-Isles, Campo Bello, Pennfield, and Saint George, in the County of Charlotte,” to the Parish of Grand-Manan.” Unless otherwise noted, all legislation mentioned are available through the British North American Legislative Database (www.bnald.lib.unb.ca).

[2] Compare, e.g., 26 George III Chapter 31 [NB, 1786], “An Act to prevent nuisances by Hedges, Wears, Seines, and other incumbrances obstructing the passage of Fish, in the Rivers, Coves and Creeks of this Province;” and 50 George III Chapter 20 [NB, 1810], “An Act, for the further regulation of Fisheries, and for preventing their decay.”

[3] “Reports of the Commissioners Appointed by the House of Assembly to Procure Information Respecting the State of the Herring Fishery at Grand Manan,” Journal of the House of Assembly of the Province of New Brunswick (Fredericton, NB, 1837), Appendix No. 2, xiii-xxxvi.

[4] “Report from Committee of Nova Scotia on the Subject of the Fisheries . . . (Extracted from the Journals of Nova Scotia, 1837),” in Journal of the House of Assembly of the Province of New Brunswick (Fredericton, NB, 1838), Appendix, No. 8.

[5] 3 George III – Chapter 2 [NS, 1763], “An Act to prevent Nuisances, by Hedges, Wears, and other Incumbrances, Obstructing the Passage of Fish in the Rivers in this Province;” 15 George III – Chapter 10 [NS, 1775], “An Act in Addition to, and Amendment of, an Act made in the Third Year of his present Majesty’s Reign, intitled, An Act to prevent Nuisances by Hedges, Wears and other Incumbrances obstructing the Passage of Fish in the Rivers in this Province;” 26 George III – Chapter 7 [NS, 1786], “An Act in Addition to, and Amendment of an Act, made in the third Year of the Reign of His present Majesty intitled, “An Act to prevent Nuisances by Hedges, Wares [weirs], and other Incumbrances, obstructing the Passage of Fish in the Rivers in this Province.”

[6] 3 George III – Chapter 2 [NS, 1763], “An Act to prevent Nuisances, by Hedges, Wears, and other Incumbrances, Obstructing the Passage of Fish in the Rivers in this Province.”

[7] 50 George III – Chapter 20 [NB, 1810], “An Act, for the further regulation of Fisheries, and for preventing their decay.”

[8] 26 George III –Chapter 31 [NB, 1786], “An Act to prevent nuisances by Hedges, Wears, Seines, and other incumbrances obstructing the passage of Fish, in the Rivers, Coves and Creeks of this Province;” 33 George III – Chapter 9 [1793, NB], “An Act for regulating the Fisheries in the different Rivers, Coves and Creeks of this Province.” The three acts in between, as well as the two cited, can be accessed by searching for “fisheries” in New Brunswick on file:///C:/Users/emancke/Documents/Herring/NB_1793_cap%209_edited_1.pdf.

[9] 10 George III – Chapter 10 ][NS, 1770, “An Act for the Benefit of the Fishery on the Coats of this Province;” 58 George III – Chapter 2 [NB, 1818], “An Act to prevent the destruction of the Cod and Scale Fisheries, in the Bays and Harbors of this Province;” and 27 George III – Chapter 7 [CB, 1787], “An Ordinance for the Benefit of the Fishery on the Coasts of the Island of Cape Breton and Its Dependencies.”

[10] Richard Yeomans, “From Olive Branch to Policing Stick: The Fishery and the Constitutional Transformation of the 1778 Taxation of the Colonies Act,” September 24, 2020, NiCHE, https://niche-canada.org/2020/09/24/from-olive-branch-to-policing-stick-the-fishery-and-the-constitutional-transformation-of-the-1778-taxation-of-the-colonies-act/.

[11] 60 George III – Chapter 21 [NB, 1820], “An Act to prevent the taking of Fish in the different Harbours and Rivers of this Province, with Drift Nets;” and 3 George IV– Chapter 32 [NB, 1822], “An Act to provide for and maintain an armed Cutter, for the protection of the Revenue of the Province;” Chapter 94, “Of the Coast Fisheries,” in William Young et al, Revised Statutes of Nova Scotia (Halifax, 1851), 280-282.

[12] James B Uniacke, “Report from Committee of Nova Scotia of the Subject of Fisheries [1837],” in Journal of the House of Assembly of the Province of New Brunswick, 1838 (Fredericton: John Simpson, 1838), Appendix 8, np.

[13] Thomas R. Forbes, “William Yarrell, British Naturalist,” Proceedings of the American Philosophical Society 106, no. 6 (December 1962), 505-515, esp. 509.

[14] Jonathan Allen et al, “Reports of the Commissioners appointed by the House of Assembly to Procure

Information Respecting the State of the Herring Fishery at Grand Manan,” in Journal of the House of Assembly of  the Province of New Brunswick (Fredericton, NB: John Simpson, 1837), Appendix 2; and 7 William IV– Chapter 36 [NB, 1837], “An Act relating to the Herring Fisheries in the County of Charlotte.”

[15] John Robb, “ Report by Captain John Robb, R.N, On the State of the Fisheries, the Condition of the Light Houses,

the Contraband Trade, and Various Other Matters in the Bay of Fundy, Made to His Excellency the Lieutenant

Governor, 1840,” Journal of the House of Assembly of the Province of New Brunswick (Fredericton: John Simpson, 1841), Appendix.

[16] Letter from W.W. Bridges to Vice Adm. G.F. Seymour, October 20, 1853, in Journal and Proceedings of the House of Assembly (Halifax, 1854), Appendix 2, p. 29.

[17] Ian McKay, “The Liberal Order Framework: A Prospectus for a Reconnaissance of Canadian History,” Canadian Historical Review 81, no. 4 (2000): 616-645; and Sean Cadigan, “The Moral Economy of the Commons: Ecology and Equity in the Newfoundland Cod Fishery, 1815-1855,” Labour/Le Travail 43 (Spring 1999): 9-42.

 

Featured image: Scooping herring from a purse-seine net in a weir. Westport. August, 1950. Photographer: John Collier Jr.; Nova Scotia Archives, Alexander H. Leighton Fonds, 1988-413 negative number 18-d.

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