Ep. 6: The History of Whaling Law with Dr. Robert Deal

In this week's episode we are joined by Dr. Robert Deal, Marshall's Early American historian. In the episode, Dr. Deal discusses whaling law and more specifically who owned the whales once they were killed.

Transcript

SPEAKER_00 0:05

Welcome everyone back to History Over Coffee Podcast provided by Marshall University. Today we are joined by Dr. Robert Deal. He is a professor at Marshall University. Why don't you introduce yourself?

SPEAKER_01 0:22

Sure, Tyler. Yeah, I uh my field of study is early American history uh and with a focus on legal history, some environmental and maritime history. And I've written mostly about the whaling industry in England and America in the uh 18th and 19th uh centuries. Um even though I've written a lot about whaling and that's what people tend to think of as my specialty, I don't think of myself as a whaling historian. I think of some myself as someone who's interested in a very particular legal issue involving the whaling industry, and that is how do you know who owns a whale when multiple ships crews have been pursuing it sometimes for hours and hours. And both sides are trying to kill the whale, they've got harpoons in it, they're got lances, they're trying to kill it, and then the whale dies. Who owns it? And that is an issue that potentially could be quite devastating at sea or very long way from any port to adjudicate uh the matter. Both sides are heavily armed and not necessarily known for their gentility, but yet what historians have discovered is that whalemen uh had a real talent for resolving their disputes without without killing them each other, or in a lot of cases, even going to court over the bat over it. So that was the issue I was interested in, and it happened to involve whaling. Now, my I got to this as a topic to study in graduate school. I had no particular idea about what I wanted to write a dissertation on, this early on in my studies. And so I went to my my advisor, someone who I liked working with quite a bit, a guy named Um Drew Eisenberg at Temple University, and he suggested I write about whales. And he had written his dissertation, his first book about bison and how the stocks were nearly wiped out in America in the 19th century. And as he said to me, he had thought about doing something with whales, but he said that one charismatic large mammal was enough for a career, and he suggested whaling. And I had absolutely no other idea about what to do. And so I thought, sure, I'll give it a try. Whales. I never thought about it. I, you know, I grew up in proximity to the uh Missouri and Mississippi rivers, uh, had no great affinity for things uh maritime or the sea, uh, but I thought I'd give it, I'd give it a shot. And and so I did. And it was sort of like when he said whales, it was sort of like that scene in the old movie The Graduate, where a friend, uh family friend, uh suggests to the young Dustin Hoffman, who's just graduated from college, what he should do with his life. And he says one word, plastics. So this whales were sort of like my plastics. I like this is the advice I've been given. I will, I will follow it, although the character in the movie The Graduate does not follow the advice. So, you know, maybe I maybe I shouldn't have followed the advice either. So in working on this, it started out being a project on uh the uh whale stocks and how they were uh depleted in the 19th uh century. It's a classic tragedy of the commons issue. But as I got into it, I I happened upon these dispute, these legal disputes, uh, which were basically a property law case where you've got uh a piece of property that is not owned, or potential property, the whale that's not owned, and what what constitutes ownership? Uh and there's in the law, there's a lot of these cases involving wild animals from from bees and uh and uh all sorts of uh other you know wild animals, uh how do you how do you decide who owns it? Um so that is uh that's sort of my launching off point for my dissertation and and a book I wrote uh a number of years ago.

SPEAKER_00 4:52

So is this issue of you said it it can apply to a lot of other wildlife and things like that. Um was this issue particularly prevalent, who owns a whale in the time period that you were studying.

SPEAKER_01 5:08

Well, it was an ongoing problem at sea. It it happens quite often. Uh generally when when ships are out whaling, they tended to be in in in large groups because they know where the whales are and they tend to group uh around where they expect to find them. Most of the cases I looked at involved uh bowhead whales, uh which tend to be in which are in very, very cold waters, often in and out of the edges of the of the ice. And so you might have 30, 40, 50 ships out there in the same vicinity looking for whales. So when a whale is spotted, then the ships would lower their their small, typically there's eight or so manned boats that would row after the whales. So you you might have crews from many different competing ships all out there. So that it's always a problem. And what tended to happen, and sort of the the, I suppose, the the genius of the whalemen is what is that they were able to work out in the absence of any you know set laws, and remember also they're they're way out in the middle of nowhere, and you've got crews from many different nations, so you know what law applies, assuming there is one, but they really come up with norms or customs that resolve these disputes pretty efficiently. And depending upon the time and the fishery, uh different rules tend to prevail. Uh some the main ones are uh ones called iron holds uh uh the whale. And so if a whale, you know, one crew gets their harpoon into uh uh into the into the whale, uh, they they get a certain right to that whale if they get it in in first. Uh and that's a that's a typical one. There are other uh kind of permutations uh on that. Uh you know, other other rule basically says that whoever ends up you know with a dead whale gets it, uh, even if um it may not seem all that uh all that fair. Uh one ship could do all the hard work, and at the last minute, uh the harpoon that they have attached to the whale breaks loose, somebody swoops in and takes a whale, very little effort, and now they get it uh under the this idea of uh fast fish, loose fish is the other being the other principal standard uh that says that it really only matters in the end who ends up with the uh with the dead whale. It's not like uh you get some sort of hot pursuit rule that says if you if you you you get your harpoon, even if it falls out, but you maintain the the chase and a reasonable prospect of of of getting the whale, uh then you you get the whale over some sort of um intruder, as it were, that comes in at the last last minute. Um what I discovered was that those rules, those customs, iron holds the whale and and and the fast fish loose fish, although they were often used, that a lot of the time it was really a basic standard of fairness. They were just sort of like, what is what is fair uh given all the circumstances? And what I discovered and I what I looked at was uh the handful of cases that actually went to court and and saw, and reading particularly the depositions, particularly in the American ones from the 19th century, uh uh from the Sea of Akutsk mostly, uh, that there really wasn't much of a standard. It really was fairness. And it worked because the community of whalemen were very, it was a very close-knit community. They knew each other, they often in the mid-19th century would winter over in Hawaii. A lot of them were from the same parts of uh of New England, and so that there were these ongoing relationships, and so being fair meant something to these guys. And they there's only basically five or so cases, uh, American cases in the 19th century that ever really ever go to court. The rest are all sort of resolved uh either by arbitration uh or by just making some sort of deal that everyone ultimately agrees with. The um so it it's a you know, it it there's been a lot of work done by legal scholars on how close-knit communities resolve things. Uh, there's been a lot done about uh the uh gold rush in California in the mid-19th century, how they came up with rules uh dealing with claims and claim jumpers uh over uh sites for for digging gold. Same sort of principle. You get a close-knit community working together over and over, and they come up with a way to resolve it without without killing each other.

SPEAKER_00 10:33

In your experience and in your research, was it always sort of they solved it amicably and through fairness, or was that kind of a pattern that arose over time? And say in those in the case of those five court cases that actually went to court, uh were those particularly sort of aggressive, like part one party was aggressive towards the other?

SPEAKER_01 10:59

Yeah, it typically where they go to court, it it typically tended to be uh somebody had really stepped outside outside the bounds of what what people thought were fair, and someone was particularly stubborn. Uh I also think there's, although I was never quite able to prove it, uh to sort of the satisfaction of putting it in print, although I think it's the case, that in years where the where the whaling was bad, uh the disputes were more likely to turn uh ugly and personal and end up in court. Uh, you know, uh a good season uh in in a in a in the bowhead fishery, you know, you might seven, eight, nine whales would be would be very good, or it could be very good depending on the size of them. And so each whale is really worth a tremendous amount. Uh so there's a lot of in you know, there's a lot of incentive uh to to to get your way, uh, but uh could in some ways there's also a lot of incentive to settle it, you know, just sort of cut it, cut the difference, you know, uh split it in half. So you you do see a fair amount of splitting uh because neither side wants to, I think, risk losing it all and taking half of it uh is better than nothing, and and each whale is is worth an awful lot. Curiously, the the most famous animal property dispute in American liberal history is an 1805 case from New York State called uh Pearson v. Post. And the dispute was over who had uh property rights in a in a whale, rather, I'm sorry, not a whale, whales on the brain here, uh a fox, which had vr had no value whatsoever. Uh and so the dispute wasn't over the value of the fox, it was really uh a personal battle uh over control of the land that the fox was uh killed on. And so it's um sometimes these disputes over animals had to do with uh fairly personal issues, or of course, in the case of whales, it could be personal issues plus just a lot of money at stake.

SPEAKER_00 13:11

I'm assuming with the case of whales it was harder, if not impossible, for captains or whoever pr was presenting the case to argue that they own the the waters, correct?

SPEAKER_01 13:27

I don't how how does maritime Well that yes, it the the problem that sort of gives rise to a lot of this uh is that at least in the 19th century, these disputes are all taking place in in open waters, nobody owns it. Uh that's what makes it you know the so-called tragedy of the commons sort of issue, uh, where you can't really control what anybody does on the basis of ownership because nobody owns the water. Now, earlier on uh in a place called uh, well, they called it Spitzberg and it's now Svalbard, uh, where early on a lot of the whaling was was done uh from from the shore, uh different groups would sort of you know have claims on on different areas. Uh in some ways it's it's how you know lobstermen have traditionally solved their disputes uh by uh having claims over certain certain waters that are at first unofficially recognized. And then the state of Maine, I think, as I understand it, at some point steps in and says, no, we're gonna we're gonna make this somewhat you know official in terms of who has the rights to fish uh or to lobster in in certain waters. Uh but with whaling in the 19th century and the stuff at sea, that that was never uh nobody was ever going to uh make a successful claim that they own the waters.

SPEAKER_00 14:55

So when they went to court, would it become a matter of who owned the whale since they couldn't argue who owned the land?

SPEAKER_01 15:03

Right. It was it was always uh what did you have to do to gain ownership uh of a wild animal? And uh and the one of the interesting things about these cases that actually make it to court is that some of them are litigated several years after the incident themsel uh happened at sea, because some of these voyages by the middle of the 19th century into the Pacific would last for five years before they would come back, in most cases, the Americans, uh, to to Massachusetts or Long Island or wherever their home port was. Uh and so you know, this is the whale had long since been rendered into oil and bone, uh, which they would do at at sea. And then so there really this is an argument over the proceeds of the whale that had long since been killed and and uh boiled down and cut apart and you know um uh reduced to the to the things that were uh you know valuable, the the whalebone and the oil.

SPEAKER_00 16:20

Do you know if today whaling kind of operates on the same system or are there more laws in place?

SPEAKER_01 16:29

Well, it's certainly uh heavily uh regulated. I uh I I will confess to almost total ignorance about modern whaling law. Um so I will uh I'll defer to anyone who has ever actually thought about it much. I my my interest sort of cuts off, like it does with most things, uh, somewhere in the late 19th century. So um it it still exists, I know it's controversial, uh but I'll I'll leave it at that.

SPEAKER_00 17:01

Gotcha. So when these court cases came about in your research, who usually in your opinion, who is usually the one who won the case? Was it the person that you thought rightfully killed the whale, or was it just kind of circumstantial based off of the case?

SPEAKER_01 17:27

Yeah, it was very sort of circumstantial. Um I don't know as I ever really developed in in reading these cases uh a particular kind of theory about how they should resolve it. It always struck me that they did an awfully good job of it, and that the the handful of cases uh that American cases that and I say American, there's uh there was one in the Supreme Court of Hawaii involving uh an American and a German captain. Uh but the Supreme Court of Hawaii, I think it's an 1863 case as I recall, uh the Hawaiian courts were really American in the sense of uh personnel and and the law. Uh the other cases were all uh litigated out of uh the U.S. District Court uh in the Eastern District of Massachusetts. Um I've totally forgotten what your question was.

SPEAKER_00 18:29

Uh if you thought the court cases were decided fairly.

SPEAKER_01 18:33

Oh, yeah. Yeah, I mean I yeah, I I I I think so. I mean it uh you know part of the the problem was that the courts uh kind of decided fairly early on that they would treat whaling cases kind of like other business law cases, where you you f you say, well what is the what is the custom of you know of the business, what is the the practice, and we will make that the law because there's never really um at least in certainly in in in American and British law, there's never uh a you know written law of whaling uh you know, handed down by Congress or Parliament or a state legislature or whatever. So there's no there's no law to apply. So they basically say, well, we're just gonna adopt whatever the whatever the custom of the industry is. And one of the conclusions I reached was that courts being anxious to resolve disputes looked for what the industry custom was, and then they latched onto something that struck them as the industry custom, uh, which in fact was not really the custom of the industry because the industry really operated much more on a fairness principle than anything else. But the courts they wanted to find a bright line rule uh to resolve these things, and so they basically created that law uh by kind of paying some attention to what whalemen did at sea, but not not entirely so. So in a in a number of the cases, uh looking at that, they would depose uh or have uh captains testify as experts as to what the customs of the of the particular body of water was. And you read it and and you keep seeing things like, well, I don't know as there's any particular law, but you know, I know what's fair and what isn't fair, and we all sort of do. It's sort of one of those, you know, you know it when you see it kind of uh legal principles. So it it really is um a matter of the courts looking for something that wasn't really there ultimately.

SPEAKER_00 20:58

When you first started researching all of this, were you surprised at how the whalemen on the sea resolved their issues, or were you kind of going into it knowing that sometimes when communities solve things, it's kind of just based off of fairness?

SPEAKER_01 21:15

Well, I knew that it certainly close-knit communities um have a way of resolving their disputes because you know they're they're working in the same business, uh, they're dealing with each other over and over again. It it it just is in everyone's best interest to to cooperate and to find some sort of way to resolve uh disputes. So that didn't surprise me really uh that they they did uh you know they did do this because in some ways it really falls well within um sort of a standard kind of interpretation again of how these close knit communities uh resolve disputes in their that are in their best interest. Because nobody else cares about these how these disputes are resolved, but the people involved do care.

SPEAKER_00 22:09

Well, I appreciate you for your time today. I would be remiss if I did not ask what is your opinion on Moby Dig?

SPEAKER_01 22:20

I had not read it uh until I think I probably was assigned it in high school, uh, but I never read it until I started working on this. And I I thought it was really quite quite thrilling. It uh not the not the story part of it, you know, the about Ahab and these different personalities. I I I love the descriptions of whaling. And uh Melville even has a chapter on on this issue about uh property uh decisions over who owns a whale in these these situations, uh, in which he's not entirely right, uh even though he'd done he you know he had whaled himself. I mean, he you know he knew how this worked, uh, but he I think he was trying to make this larger kind of critique of America uh and uh the Mexican War and talking about uh how the US is sort of like uh you know goes in and claims uh possession of Mexico in in part because he can do it. You know, uh America can do it. Um so yeah, I I think he kind of played a little with the law to make his sort of broader critique of American uh politics and its involvement uh in in claiming uh Mexico as sort of a loose fish, if you if you will. So I I I recommend it. I I think it's but but the chapters that are the technical ones about whaling are the ones I like. Those are the chapters I think that everyone else thinks are horribly boring. They just want to get to the story. I just wanted to hear more about uh you know the the equipment and and and the procedures because because he he he Melville did know what he was talking about, that that's for sure.

SPEAKER_00 24:12

So you would say if anyone's looking for good information on whaling, that Moby Dick is uh a good start.

SPEAKER_01 24:21

Oh yeah, yeah. And I would say that it though if somebody um you know really is interested in in whaling history. I would uh I'd recommend, I'm sorry, reaching over to get the book to get the title right. Uh I think it's sort of the best one-volume recent history of of of um American whaling, is a book called Leviathan, the history of whaling in America by a guy named Eric J. Dolan D-O-L-I-N. Uh it's it's it's very well written, it's very well researched. Uh and I I I recommend if you want to get a sort of sense of you know the history of American whaling, I think that's the that's the book to go to. So that's my recommendation for for reading.

SPEAKER_00 25:07

And before we go, since we're recommending books, I want to shout out your book, The Law of the Whale Hunt. If anyone is interested in checking that out, they can definitely do that. Uh is there anything else you'd like to add?

SPEAKER_01 25:20

No, I can't I can't think of anything. I I uh although I I will admit that it's now been I finished the book, a book came out in 2016, so it's been 10 years. And talking about it, I realized, boy, I've really forgotten a lot about Wayne. There are a couple of points where I think, boy, I don't I I I should know this, but I don't remember the answer. So uh that's the I suppose the problem being asked about things you've done in the in the past, they they start to recede very quickly when you work on uh other things.

SPEAKER_00 25:51

Yeah. Well, I appreciate you joining us today. And thank you all for listening, and we will see you next week.