Staking out an inshore commons: Pound-netting in Gilded Age America

In the 1870s, as the catch of bluefish, mackerel, scup and tautog – some of the most popular food fish of the day – plummeted, hook-and-line fishermen along the Massachusetts and Rhode Island shore thought they had found a reason why: pound nets. These were nets, staked to the bottom of the shoals and inlets, that trapped fish on their spawning runs. ‘The disease is twine, I think,’ Captain Josiah Pease told the newly-designated US Fisheries Commissioner, Spencer Baird, during his 1871 investigation of complaints that New England’s fisheries were collapsing. ‘The pounds take all the breeding fish that come into the shores. I saw in New Bedford, the first of May, large scup full of spawn, and rock-bass. They were taken in pounds, and could not have been caught with lines; it was too early.’ ¹ Pound nets took enormous quantities of tautog, scup (porgies), sea bass, bluefish, mackerel and squeteague (weakfish or sea trout) as well as alewives and menhaden, Baird reported, adding that by 1872 pound-netting had pretty much prevented successful summer hook and line catch. ²

The pound net controversy of the US Gilded Age is an example of how difficult it can be to resolve conflicts between different groups over who gets what access to a natural resource that nobody owns – like the fish in the sea. More than that, it is a case study of how the politically expedient answer is, so often, to simply do nothing. The controversy also raises significant questions about how, or if, creating a property right to a commons – in this case, the waters just off a shore, below the tidemark – can be a way of sustainably managing a resource. Those questions, of how a new technology – pound nets – could be used to, in effect, carve up a commons into private property and of what the impact of that transformation could be, are the subject of this article.

One challenge when posting those questions, familiar to anyone who follows fisheries regulatory bodies today, is how hard it is to count fish and how important become the complaints that once upon a time this or that fish used to be found at that or this favoured beach or shoal before the big nets and careless harvests of commercial fishers came. This reliance on anecdote can make conflicts over who gets what rights to how many fish seem like a conflict between commercial and recreational fishermen – a conflict that Elizabeth Pillsbury ably explored in one of the very few studies to touch on nineteenth-century fisheries regulation and local fisheries politics. ³ Kent Lacombe’s study of the impact of commercial fishing on Lake Huron’s ecosystems traced the growth of pound netting and the inability of US and Canadian authorities to agree on a regulatory response. ⁴ The international competition in fisheries has captured many historians’ attention and Harold Innis’s classic on the cod fisheries argued that a technical innovation – the flakes, or raised platforms on the shore used to cure fish – allowed English fishermen to dominate the fishery for cod on the Newfoundland banks. ⁵ Here, the focus is on domestic competition – that is, the competition of commercial fishermen from the same coastal villages and towns using different techniques, different business organization and different views about rights to a commons, or indeed whether the business of fishing had recognized the concept of a commons at all. Pound nets were a way of staking – speaking literally – an exclusive claim to a specific piece of what had for centuries been considered a commons, available to all to use.

Setting up a pound net meant hammering hundreds of stakes into the sand or silt below the tidemark. There would be a long straight line, sometimes for more than a kilometre, strung with netting and intended to intercept the path of fish moving into an inlet or river mouth. Trying to avoid the net, many fish would follow along the line into a kind of large corral (or series of corrals) of staked netting, generally in the shape of a heart. This layout tended to concentrate and direct the fish toward a funnel-shaped opening at the point of that heart shape and into the pound itself, the final trap, often as large as 12 by 13 metres of staked netting, with a five centimetre mesh that the fish could not get through. There, they would be trapped, and alive, until slack tide allowed a boat crew of four to six men, hired by the pound net’s owner, to row up a skiff that had been towed to the site by a larger boat; the crews would first circle the pound, loosening the ropes that held the netting fast to the pound’s stakes, then lift up the end of the net with the funnel, to make sure that no fish would escape, then pulling up more and more of the pound’s bowl of netting to further concentrate a now-seething mass of fish, so they could be scooped up and loaded into the barrels that the larger boat would carry into port to be shipped by the still-new railroads to New York and Boston. ‘There is a pound everywhere that they can drive the stakes,’ Henry Tift, of Newport, Rhode Island, told Baird. ‘There are very few fish indeed now, to what there used to be . . . the traps catch them up in the spring.’ ⁶

This was a new style of inshore fishing. The investment and organization required was a significant step up from the smaller one- or two-man boats that had so long sailed out to the bays and, with lines and baited hooks hauled in their catch. The pound net operator would typically spend $2,000 to $3,000 in netting and stakes – the equivalent of six to 10 years of average monthly wages for a Massachusetts worker in the 1870s, and many operators set up several. The larger boats, barrels and crews also meant operating on a larger scale that was out of reach of many hook-and-line fishermen; the size of the catch led some pound net operators to invest in the winches to haul in the catch. ‘While most forms of apparatus imply very considerable skill in the fisherman the pound net requires none It operates by certain constant peculiarities of tides and fishes which remain in force whether the fisherman be awake or asleep,’ Frederick W. True, a special agent on fisheries for the 10th US Census in 1880, reported. ⁷ Captain Pease noted that the new technique brought new actors into the fishery, complaining that: ‘Some of the farmers will have a pound, and go to it in the morning, and take the fish and ship them, and then go to work on their farms. They do not follow fishing for a living.’ ⁸

Pease’s farmers turned morning pound-netters offer a hint about the uncertain, and evolving, state of inshore commons. For centuries, people living by the shore were certain in their belief that the waters of bays and inlets of the seas were open, by law, to all for fishing, a view that seemed confirmed in 1821 when, in a landmark decision, the New Jersey Supreme Court declared that no-one owned ground over which the tide ebbed and flowed. ⁹ Nevertheless, the question of who could use that commons was more complicated. Maryland’s Supreme Court shrugged off an argument that Deputy Commander of the Fishery Force, William S. Chiles, violated a Mr. Rayner’s right of fishery by seizing the pound net he had set at the mouth of Port Tobacco creek, with an illegally small mesh of less than three inches. ¹⁰

Where a fisherman – or seaside farmer – staked a pound net mattered. Borderless waters, over which fishermen sailed or rowed, trolled hooks and lines, or drifted small gill nets, were clearly a shared resource where only skill and effort dictated who was more successful than whom. The stakes that a pound-netter (or, more likely, the crew that he hired) hammered into the bottom of an inlet physically excluded anyone else – it was only by smashing through the staked netting that anyone else could fish there. That ability to exclude others is a fundamental attribute of ownership. For pound-netters, moreover, the right to exclude extended beyond their stakes and nets to the invisible, watery pathways fish would follow on the way to encounter their nets. It was that belief that led Michigan fisherman Sam Davis to tear out the stakes on which Fred Lincoln set up a pound net a mile (1.6 kilometres) off the shore of an island Davis leased for his own planned pound-netting business. Michigan law reserved the waters up to a mile from any lakeshore to the landowner or lessee, but it also said damaging or disrupting a pound net was illegal. That law was sufficient protection of Davis’s interests, and he owed damages to Lincoln, the state Supreme Court ruled, leaving aside the question of whether or not Lincoln’s net was inside or outside Davis’s grounds. ¹¹ While Ohio pound-netter Benjamin Dwelle did not tear up the stakes and nets the rival Bertsch & Moore partnership set up paralleling Dwelle’s, his efforts to stop them in court failed. Dwelle alleged that the partnership planned to extend its nets around the end of his line, to cut him off entirely. ‘Suppose they had gone clear around, would Mr. Dwelle in that case, have had an action for damages . . . .? Certainly he would not,’ Judge King of the Lucas County Circuit Court concluded. ‘[T]he right of fishing at that place, is public and common to all, and no man could acquire a right superior to any other, except he had gone into the common water, and set and established his pounds and stakes.’ ¹² Virginia’s Supreme Court declined to order ‘one Charles Whitehead, an irresponsible and insolvent person’, to stop setting poles and stringing nets that the Cape Henry Syndicate, charged had trespassed upon the ‘ancient . . . fisheries belonging’ to it. Since Whitehead had the pound netting license Virginia by then had required, he ‘should not have been restrained in the exercise of the right which the license conferred where it did not clearly appear that he was trespassing upon the rights’ of the syndicate, the court ruled. ¹³ Once beyond the low tide line – or far enough from a lakeshore – fishermen exploited a commons, and although their stakes and nets might as a practical matter transform a part of that commons into a private holding, they could claim no legal authority for an exclusive right to fish. There was, that is, no property right in the fish themselves before they were caught.

Questions of scale of operation and of competence versus control – knowing how to fish as opposed to the ability to exclude – underlay the pound net controversy. The pound net that the dissolute and bankrupt Mr. Whitehead staked out interfered with a 50-year old haul-seine fishery that the Cape Henry Syndicate leased to fishermen skilled at spotting schools of fish swimming past the shore, and rowing out, trailing a net, to scoop them up and haul them into shore. ‘Few forms of fishery apparatus are more effective in gathering in all kinds of fish both large and small whether swimming at the surface or along the bottom than the great pound nets of Massachusetts,’ True, the Census fishery expert, reported. ¹⁴ When Fisheries Commissioner Baird pressed W. E. Whalley, a fish trap owner from the hamlet of Narragansett Pier, Rhode Island, for his view on pound netting, Whalley told him ‘they are an injury to the fisheries’ because of ‘the way they are handled and used and allowed to be set anywhere, without regard to water, place &c’. Because most pounds – not his, he said – were arranged to trap fish on their way to spawn, the scup, tautog and alewives that were staples of the catch in his part of Rhode Island ‘have been taken here for 20 years, before spawning time, and sent out of existence for nothing. If you kill a bird before it lays its egg, where is your increase?’ Whalley had arranged his leader and the openings to his pound to intercept fish following the ebb tide out to deeper waters – that is, after they had come close to shore with the flood tide in order to spawn. Many pound nets, though, were arranged to trap fish on both the flood and the ebb tide, he added. ‘Is it expected that we will have fish if we will put them on the land for manure for a quarter of a cent a pound? And now you cannot buy them for 10 cents a pound,’ he added. ¹⁵ The New York Sun noted that few scup could avoid the pounds when leaders stretched, as they often did, 1,200 metres away from the pounds, while meshes of less than two centimetres meant not even small fish could escape. ¹⁶

Location of a pound net, the length of the line of netting leading into the corrals and pound, the size of the mesh and the time during which the operators might trap fish were all options for regulation. Regulation, however, was a hard sell. While Canadian authorities had moved to ban pound nets on the Miramichi River in New Brunswick in the 1860s, by the 1890s barely-regulated pound netting for salmon had resumed, with one large operator staking a 480-foot long net – twice the legal limit – and successfully filing suit when a raft of logs damaged it. ¹⁷ Connecticut tried, in 1869, to ban pound nets at the mouth of the Connecticut river, fearing they were catching too many shad on their spring run upstream to spawn, and hoping other states along the river would act to prevent a population collapse. But the others’ promises were never kept; Connecticut repealed the ban in 1873. The number of pound nets in the state doubled between 1880 and 1888, when operators set 115. By 1905, however, declining pound net catches led Connecticuters to try a different approach; they staked only 68 pound nets and instead headed into Long Island Sound to try for shad with drift nets, catching more than four times the pound net yield. ¹⁸

Peering into a pound net when the ebbing of the tide left it nearly dry, The Yarmouth (Massachusetts) Register reported: ‘More varieties of fish find their way into these traps than most people imagine are found so near inshore: codfish, mackerel, squid sometimes in immense numbers; porgies, herring dogfish, salmon occasionally; bluefish, bass generally . . . Bass and bluefish are the staple catch.’ ¹⁹ Hetsel Handy, a hook and line fisherman from nearby Hyannis, complained that a pound net, with ‘two or three men can catch more fish than all the other fishers on the coast’. The industrial scale of the operation allowed them to ‘ship off 100 tons a day to New York and they must be used up or spoil; whereas if they were caught with a hook and taken care of they would be good, healthy food for men to eat’. ²⁰ The pound netters’ competitive edge over traditional hook-and-line fisherman was a matter of timing, said Potter Brightman, who fished in Massachusetts’ Buzzards Bay. ‘Soon after they began to trap at Woods Hole the fish began to grown scarce,’ he said, ‘Fish will not bite when full of spawn.’ ²¹ Because pound netters took fish on their way to spawn, when the urge to reproduce meant they would not even pause to eat or be tempted by a baited hook, ‘the decrease [in fish population] has continued in an alarming rapid rate in the past 15 to 20 years’, Fisheries Commissioner Baird reported to Congress. ²²

Massachusetts mackerel landings fell from about 40 million pounds in the 1850s and 1860s, as pound netting started displacing inshore hook-and-line fishing, to 13.7 million in 1888, when the fishery moved far offshore to the Atlantic banks, 100 kilometres off the coast. More than three quarters of the catch that year came from deep ocean draggers, who were also netting the newly-popular haddock, hake and pollock; some 2 million pounds of mackerel came from the deep waters off Nova Scotia. By 1898, the catch fell to 4.2 million, all caught offshore. ²³ Landings of other food fish that were staples for Massachusetts pound-netters also fell: bluefish fell from 707,000 pounds in 1888 to 101,000 in 1905; tautog declined from 633,000 pounds to 240,000; sea bass from 473,000 to 122,000. While landings of scup held steady, at 1 million pounds, past the turn of the century, they collapsed in the next decade, falling to 79,000 in 1919. A short-lived boom in squeteague, where pound-netters caught the bulk of the state’s 5.2 million pounds, also plummeted, totaling under 6,000 pounds in 1919. ²⁴

By the early 1870s, as Baird was reporting the collapse of the hook-and-line fishery in Massachusetts and Rhode Island, New Jersey fishermen’s experiments with pound netting started them on the path to become for a short time the nation’s leading suppliers of shad, as well as the development what became an major new fishery, for Spanish mackerel. ²⁵ Pound nets fed the ballooning demand for fish in New York and Boston and created a new fishery in the Chesapeake, as well as North Carolina’s Albemarle and Pamlico sounds. It was ‘the most enterprising fishermen’ who took to pound-netting, Henry Bond wrote in The Fisherman and Farmer newspaper, even though their large catches ‘provoked the opposition of such of the fisherman who lacked the necessary enterprise and energy’. Bond dismissed warnings that the pound netters were taking too many fish from ‘so bounteous a supply – inexhaustible as the waters of the ocean itself’. ²⁶ A Maryland newspaper editor’s comment on pound-netting asserted ‘There are certainly fish enough . . . to furnish all the fishermen of Cecil county with an equal livelihood but the men themselves are bitterly opposed,’ concluding that ‘it is all a fallacy that the pound net destroy as many or more young fish than the [gill] nets’. ²⁷

As pound-netting moved to the New Jersey shore and Chesapeake Bay, the risk to fish populations from capturing so many individuals before they could reproduce was hard are to see as the size of the catch ballooned. With the number of pound nets in New Jersey ring from 27 in 1880 to 127 in 1888 and 174 by 1915, shad landings rose from 750,000 pounds in 1880 to 6.5 million in 1888. However, the intensive trapping took a toll – landings plunged to 42,000 in 1915. ²⁸ A similar pattern emerged in Chesapeake Bay, where Maryland’s shad landings fell from 7.1 million in 1890 to 1.5 million in 1915, while Virginia’s declined from 7.1 million to 4.7 million. ²⁹ The opposition that Bond reported, then, might be fierce at first, but soon dissipated. In 1875, when a Long Island, New York, pound netter named George Snediker decided in 1875 to try his luck at Virginia’s New Point Comfort at the mouth of Mobjack Bay: ‘The fishermen of the neighborhood being wholly unacquainted with the pound net were very jealous of the stranger that came among them with such destructive apparatus,’ reported E. Edward Earll, chief of the fisheries division of the US Fisheries Commission. ‘They watched Mr Snediker’s movements closely for several weeks and after seeing the enormous quantities of fish taken by him at once informed him that he must take his traps and leave the country.’ Snediker refused, so ‘a number of them sawed off the stakes of the pound . . . and carried the netting to the shore assuring Mr Snediker that if he attempted to put it down again they would destroy it’. Snediker gave up on Mobjack Bay, deciding instead to try his luck on the other side of the bay. Before leaving for Virginia’s Eastern Shore, he sold the stakes that remained standing in Mobjack Bay to one of the fishermen who chased him off, just as if he were selling one acreage on land. That fisherman rebuilt the pound, and although it, too, was destroyed by his neighbours, they, too, came to see the potential profit from pound netting. Within a year, they had staked 12 in Mobjack Bay. Within five years ‘we found that every available site was taken up and often three or even four nets were placed in line . . . for the purpose both of economizing space and of securing the fish that chanced to be passing at a distance from the shore’, Earll reported. The pound net ‘has entirely revolutionized the fisheries of Virginia’, he added. Before Snediker’s arrival, the Bay’s fishery was mainly carried out for a few weeks in the spring and fall by farmers with hand lines or small drag nets, but within a decade of Snediker’s Mobjack Bay venture, the Bay’s catch of shad, alewives and Spanish mackerel had become one the nation’s most important source of fish, with some 162 pound nets along Chesapeake shores. ³⁰

Snediker’s sale of the remains of his pound that his neighbours had left standing, like the Ohio fisherman Benjamin Dwelle’s view about his pound net on the shores of Lake Erie, or the rent payments of as much as $75 a season that 25 or 30 pound netters in Fairhaven, Massachusetts, paid property owners on the shore for the first to set their 500-foot long fish traps, suggest these operators believed they had something very much like the exclusive right against trespassing that ownership of land grants. ³¹ Like the stakes a prospector on western public land would set to declare a property interest in a suspected vein of gold or silver, or the blazes that squatters a bit farther east would hack into trees to claim a stretch of forest, the pound net’s poles were a declaration of right to use, and bar others from using, a commons. The pound net asserted an exclusive right of use and of possession of waters below the tidemark – waters long held to be commons, just as the fish that swam through were not believed to belong to anyone except the men and women whose energy and skill and sweat won them a decent catch. On the other hand, however, the idea that arms of the sea, like the deep ocean itself were commons was why courts rejected Dwelle’s claim for damages, and upheld Mr Lincoln’s after Mr Davis tore out his stakes and held that even the dissolute Mr Whitehead could erect his pound where the Cape Henry Syndicators lessees had for a half century laboured over their haul seines.

For fishermen who still hauled seine nets or trolled longlines and hooks, the pound-netters’ de facto claim of an exclusive right to one commons – the arms of the sea – was in practice not all that different from an exclusive property right to another: the fish in the sea. By catching fish on their way to spawn, the pound-netters’ property, in effect, stretched for generations to come. ‘Fish used to be very plenty, so that anyone could get as many as he wanted; they were plenty until the trapping was commenced,’ said Nathaniel Smith, a retired fisherman from Newport County, Rhode Island. One hook and line fisherman could fill a boat full of scup in a short time, for ‘I have seen the water all full of them under my boat’, while ‘Every one could catch as many sea-bass or tautog as he wanted’ before newcomers set up pound nets off the beaches and pond inlets by the mouth of the Sakonnet River. ‘The spawn is taken up with the fish going in to spawn in the spring of the year; there is no seed left in the water for fish to grow from.’ ³² Edward E. Taylor, who set up a pound net by the Sakonnet after returning home from the Civil War, remembering that: ‘When I was a boy, I could catch four or five hundred scup here early in the morning, and after coming up and selling them two for a cent . . . would then go off in the afternoon and catch as many more.’ Just before the war, he and his brother-in-law fished not far offshore with a 20-metre long net ‘and we could get as many scup as we could haul; but now I suppose you could not get a half dozen there’. Taylor tried a small trap net before the war first, then went in as a partner in one of the larger pound nets on the Sakonnet shore, ‘but when I came back I found the fish had decreased very much’. He returned to gill netting, but going after Spanish mackerel. ‘I want something done to try to save the fish for my children,’ he said. ‘You will have to abolish traps.’ Smith organized a petition to the Rhode Island legislature asking for a ban on pound net fishing: ‘It was handed to our legislature, and laid on the table, and I suppose thrown under the table.’ ³³

Some communities, however, found a middle path between exclusive, apparently permanent (or at least semi-permanent) rights of occupation and use and the sort of free-for-all competition for the commons that landed people in court or that saw the crowded pounds that Earll reported in Mobjack Bay that would so quickly decimate the shad and alewives. Several years after Taylor complained of the decline of the scup, fishermen on the Sakonnet shore divided several of its sandy bays into 21 ‘sets’ – spots where they agreed pound nets could be built. Since the flow of currents, patterns of tide and proximity to the inlets leading to Nonquit or Quicksand Ponds meant some locations were better than others, the fishermen agreed to draw lots every year for their sets. The drawing, however, was limited to men who had all the gear, a substantial investment, needed for a pound net. Fishermen who could not afford the nets, stakes and boats would join with wealthier town residents to form a partnership – the rich man providing the money, the poorer one the expertise, labour and connections with enough other men to make up the seven-man crews for heavy hauling and lifting of wet netting needed to get thousands of pounds of fish out of the pound. There were strict rules governing the placement and operation of the pound nets – they had to be at least 100 metres apart in any one bay off the Sound, there could be no more than three pound nets, and the lines of each one’s netting that directed fish into the trap could not be staked out beyond the length of the other two. ³⁴ This carefully managed commons may be why pound netting remained relatively more important in Rhode Island than elsewhere – and why, although landings of scup fell from 4.5 million pounds in 1888 to 1.6 million in 1905, it remained a large fishery for many years, while flounder landings held steady at around 410,000 pounds, tautog doubled to 118,000 pounds and squeteague landings rose seven-fold to 2 million by 1905, in fisheries dominated by pound-netting even as the Massachusetts fishery moved offshore. Rhode Island flounder, butterfish and tautog catches would continue to rise, but by 1919, squeteague and scup would collapse. ³⁵

The Rhode Islanders’ management of their commons was much like that on a traditional English manor. There, commoners had the right to plow and plant strips in the commons of arable land, but those allocations were not permanent. A commoner’s investment in a cow did not entitle him or her to exclude other commoner’s cows from the community’s pastures. In the same way, the Rhode Island fishermen recognized they shared a commons – the waters the fish swam in – but could set rules that allowed them all a chance at a fair yield. They would not have agreed with the idea, first mooted by the economist William Forster Lloyd just as English landlords enclosed their final few commons, that the inevitable result of sharing a commons was over-exploitation, as there was every incentive for any individual to set too many cows out to graze. Unlike, for example, Mr Dwelle, the Ohio pound-netter, the Rhode Islanders did not see themselves as establishing the kind of property right that turned a natural resource into a financial asset. They were unaware of any ‘Tragedy of the Commons’, the theory that the ecologist Garrett Hardin proposed in the 1960s. Hardin’s tragedy that would inform the late twentieth-century rush to design quotas to establish an ownership-like property right in a fishery and so, in theory, create an incentive to manage that resource in a sustainable way. Those property rights could be quite valuable in money terms, though the result is often that larger operators end up controlling much of a fishery, a consolidation in which the richer players get even richer, while in many cases, fish populations do not recover. ³⁶

English cottagers with use rights to open field arable and pasture commons had a hard time affording the extra cows that Lloyd bemoaned, just as New England hook-and-line fishermen would have struggled to save enough to set up their own pound netting operation. It is (as England’s enclosure movement had made clear decades before Lloyd wrote) when investment funds arose from a larger-scale operation than a cottager’s that a commons could be held for exclusive use. In England, that often meant a large flock of sheep or herd of cattle. Sheep were big business in England; fishing had become a big business in New England. On Cape Cod, Census agent True reported, there were often 10 or 12 investors in a pound-netting operation, most of whom did not actually work at fishing ‘but simply invest their money here as they would in any other enterprise’. Their investment amounted to thousands of dollars for the nets, boats, ice houses, barrels and boxes and horses and carts to carry the fish to the railroad. The profit was also large: the Nobscussett Weir Company of Dennis in 1872 declared a dividend of 20 percent, True reported. The return on investment the stockholders received was usually not less than 10 percent. ‘The more impecunious fishermen look with envy upon the wealthy weir owners and many regard them as at once the destroyers of their financial prosperity and of the fishes from which it might be derived,’ he noted. ³⁷

Driving that was the demand from rapidly growing cities. ‘It is only about 12 years since fish have been shipped in large quantities,’ Pease said, adding that sea bass that were once so abundant that they would sell for 3 to 4 cents a pound, sold for 10 to 12 cents in 1871. ³⁸ ‘The prices of today tell a fearful story,’ the New York Sun elaborated. ‘In days gone by along the shores striped bass were hawked by vendors for five cents and seven cents a pound. And even at that low figure the quantities taken were so large and the labor expended so slight that there was a big margin of profit. Nowadays when bass bring thirty cents a pound no one can get enough at the best season to pay expenses let alone making any profit. The same is true about all our table fish.’ ³⁹

But the declines were more matters of appearance than anything real, J. M. K. Southwick, an investor in pound netting who also supplied nets and tackle to fishing operations, told Fisheries Commissioner Baird, adding:

In former times, before the facilities of transportation in ice became the means of supplying the great markets . . . fish was an article of food only for the few living on the coast and a small amount sufficed for the demand. Any extra catch, at the time, overstocked the market and caused a glut that gave the appearance of the great abundance that has been attributed to those times. ⁴⁰

Localised drops in the catch reflected pollution flowing into Rhode Island waters from factories up the Taunton River in Massachusetts, natural variation in the underwater plants fish fed on and an increase in predator fish – the bluefish in particular, Southwick added. ⁴¹ ‘All agreed that the scup, tautog, striped bass and sea bass had within a few years diminished in Buzzards Bay; but failed to show that overfishing was the cause,’ Cape Cod’s state Senator, Nathaniel Atwood, a self-taught fisherman and dealer turned ichthyologist, declared, after running a special legislative commission to investigate reports of falling catches. ‘Like the many fishermen that I know the witnesses were not well acquainted with the habits of the fish.’ ⁴² The problem, he argued, was that scup were at the far northern edge of their range in Massachusetts, while variation in the size of a catch from year to year was normal – Spanish mackerel, he said, had disappeared from Massachusetts years before the first pound netters set up their traps, while the Atlantic mackerel catch had dropped from more than 300,000 barrels a year in the early 1800s to a low of 50,992 barrels in 1841 before slowly rising back to 200,000 in the 1860s – just as pound netting got started in a big way. ‘The great change that has taken place in our fisheries has been caused by the return of the bluefish,’ he said. ⁴³ But in any event, the supply of fish was practically boundless: ‘Take a few thousand specimens, and allow 10 percent to come to maturity; multiply them together for ten years, and how great would be the number! And what is that compared with the countless myriads that swarm our coast annually! Their numbers, how vast!’ ⁴⁴

But the dredges that Fisheries Commission staff members hauled up from the bottoms of Buzzards Bay did not indicate any signs that the plants or invertebrates that scup, tautog, bass, squeteague and mackerel fed upon were in short supply. Temperature samples did not suggest the changes some fish dealers suggested explained reports of fewer fish. While Baird thought predation by bluefish might be a contributing factor, he added that they were an important food fish, much in demand, so that a campaign to reduce their numbers – also in decline – would be counterproductive. The underlying economics that Southwick and Pease had suggested – the enormous rise in demand from city dwellers, made possible by rapid railroad connections of fresh fish on ice – was not something Baird, or his Congressional overseers, wanted to slow. Neither did anyone expect, or really want, the market price for fish would reduce demand enough to find a better balance between the amount of fish caught and the numbers needed to maintain a sustainable population. There was a problem of supply, Baird concluded. One approach was to limit the use of pound nets. He did not propose a ban, since he believed they could be an important way to supply the city markets. Instead, taking a lead from the complaints from Smith, Pease and other fishermen that the pound netters were taking fish before they had a chance to spawn – when, that is, the instinct to swim to shoals and streams was so overpowering that they would not even pause to eat – Baird thought a limit on when pound nets could operate was the right approach.

He tried for 16 years to convince Congress, without success – perhaps because there were plenty of people involved in the fisheries to argue, with North Carolina’s Henry Bond, that pound netters needed to start early to set their nets, since it took six weeks to put down a half dozen nets and they could only work in relatively calm waters. Baird’s main suggestion – that operators take up their nets for a day or two every week during spawning season – was also impractical, Bond said. ‘No one knows better than the advocates of’ a short season or lay days for pound netters ‘that to saddle them with either of these measures would amount to a total prohibition’, Bond concluded. ⁴⁵ Baird and the Fisheries Commission could not mistake the many such messages – the demand for fish, unmoderated by dramatic rises in prices, would keep fishermen chasing after a shrinking number of them. The answer to the problem of supply would be the hatcheries that became the commission’s primary mission by the mid-1870s.

Still, Baird kept urging regulation; in 1882, the Senate Foreign Affairs Committee commissioned Baird’s former student, Marshall McDonald, inventor of a fish ladder named for himself and administrator of the commission’s shad hatchery, to report on the state of the Atlantic coast fisheries and what regulation might be needed. ‘Man’s destructive agency, if we consider the number captured by him, seems very trivial and insignificant in comparison with the destruction by natural causes,’ McDonald concluded. ‘All the great fisheries of the world are prosecuted during the breeding and spawning season of the fish.’ Still, to ease the impossible-to-ignore pressure on those fish – shad, alewives, striped bass – that migrated from the sea and its arms to freshwater streams to spawn, McDonald recommended legislation requiring fish ladders on dams. He also made one recommendation to limit the season, when, after consulting ‘the principal men engaged in the menhaden fishery, those who had the largest moneyed interest in it’, he found that they would accept a regulation barring fishing for menhaden before late June. Regulation to ban steam-powered purse-seine boats, the costly new technology that was beginning to displace pound-netting, was not needed. And regulations limited the scale, time or scope of operation in other coastal fisheries would be ‘neither practicable nor expedient’. ⁴⁶

The controversy over pound nets would retreat as their yield from a shrinking population of fish declined and as new techniques – primarily the use of huge nets on large vessels fishing well offshore – brought large volumes of new varieties of food fish to market. Those new techniques would, in turn, press some populations of fish beyond the point of sustainability. The question of whether a commons, like a fishery, could ever avoid over-exploitation would assume a new urgency. The pound netting boom of the late nineteenth century was, in an important sense, a test of that question, although the nature of that test was probably not evident at the time. A pound net created a package of property rights that came very close to approximating those of landownership. The stakes that a pound-netting syndicate would pound into the bottom marked out a kind of boundary. The fish inside the final trap were the syndicate’s alone to take and pack and sell. The stakes and net could not be moved or damaged by others – they created, in effect, a no-trespassing zone that would be protected by law in several states. That zone, moreover, stretched beyond the outermost portion of the staked netting – that long line of net that directed fish into the trap was a claim to the pathway that fish followed as they swam to their spawning grounds or moved with the tide to feed. Like the big-net, big-boat techniques of purse-seining, and otter-board drag nets that superseded them as a major source of food and fish-oil, pound nets required a scale of investment and of employed labour that was beyond the reach of traditional users of inshore fisheries commons. In essence, the idea that a person (or company) could create ownership rights with stakes in the ground – the same notion that allowed a miner to claim a vein of ore on the public lands of the west – along with the money to invest in a technology and hire people to work with it could transform a commons that had been managed sustainably into property that was not.