LAWS OF HONOUR: THE LAWS AND CUSTOMS OF ANGLO-AMERICAN WHALING, 1780-1880 ________________________________________________________________ A Dissertation Submitted to the Temple University Graduate Board ________________________________________________________________ in Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY ________________________________________________________________ by Robert C. Deal January, 2010 i © Copyright 2009 by Robert C. Deal All Rights Reserved ii ABSTRACT Whaling in the eighteenth and nineteenth centuries was a global industry. Ships from many nations with crews from ports all over the world hunted in waters from the Arctic Ocean to the Tasman Sea. Whale oil illuminated the cities and greased the machines of the Industrial Revolution. Far from formal legal institutions, the international cast of whalemen created their own rules and methods for resolving disputes at sea over the possession of a valuable natural resource. These unwritten customs were remarkably effective in preventing violence between crews of competing ships. Whaling was intensely competitive, yet the dangers of hunting in often treacherous conditions fostered a close knit community that was able to fashion resolutions to disagreements that also maximized their catch. Legal scholars have cited whaling customs as evidence that property law is often created by participants and not imposed by legislatures and courts. Whaling law was, in fact, a creation of both whalemen and lawyers. At sea, whalemen often improvised and compromised in ways that had more to do with personal and communal ethics than with well understood customs. Lawyers and judges, looking for certainty and consistency, imagined whaling customs to be much more established and universally observed than was ever the case. The same loose whaling customs that prevented violence and litigation failed, however, to check practices that severely depleted the available supply of bowhead and sperm whales. As a close knit community capable of governing themselves, American whalemen should have been able to find a way out of the iii “tragedy of the commons” which predicts that commonly owned and competitively exploited resources are – without an external or group imposed system of restraint – fated for destruction. Prior to about 1850, whalemen, generally believing that whales as a species were impervious to extinction, saw no need to limit their catch. By the time whalemen recognized that whales stocks were seriously depleted other sources of energy – coal oil and petroleum – had swept the market. There was, at this point, no reason to preserve the prey of a soon to be obsolete endeavor. iv ACKNOWLEDGEMENTS I would like to thank the faculty and my fellow graduate students of the history department at Temple University for providing such a congenial environment. My dissertation committee – Professors Elizabeth Varon, David Waldstreicher, Andrew Isenberg, and Harwell Wells – have been unfailingly helpful and supportive. Professor Bryant Simon provided much needed early direction for this project as I began thinking about whaling in his research seminar. My greatest debt is to Andrew Isenberg who has served as my advisor and mentor. He suggested whaling as a topic and continued to shape my work throughout the entire process of producing this dissertation. The one sorrow of a doctoral degree begun in middle age is that many people are not around to share in the finished product. I doubt that my parents – Gerry and Clarence Deal – would have read this dissertation, but I am certain that they would have been proud. I know that my father-in-law Herman John would have read and commented upon this work with his usual intelligence and insight. I hope that he would have approved. Wally Heyse, my brother-in-law, took a great interest in my topic and never failed to ask how it was going. I regret never telling him just how much his encouragement meant to me. I miss them all. I am, as always, grateful to my big brothers Bruce and Bill for their wise counsel and all the shared silliness. Thanks to Waite Stuhl for his much appreciated phone calls and thirty-five years of friendship. v I would also like to thank my children – Christopher, Beverly, and Lydia – for all of their support and their understanding of why going back to school was so important to me. I only hope that they are half as proud of me as I am of them. This work is dedicated to Liz Deal, my partner for more than thirty years. I owe more to her than I know how to express. She has provided support beyond that which I had any right to ask. vi TABLE OF CONTENTS Page ABSTRACT ......................................................................................................... iii ACKNOWLEDGEMENTS ..................................................................................... v INTRODUCTION ................................................................................................ vii Chapter 1. THE BIOLOGY AND ECONOMICS OF WHALING ................................... 1 2. FAST-FISH, LOOSE-FISH ....................................................................... 15 3. IRON HOLDS THE WHALE ..................................................................... 58 4. THE LAWS OF HONOUR ...................................................................... 105 5. HALVES ................................................................................................. 148 6. THE ENVIRONMENT OF LITIGATION ................................................. 195 7. TRAGEDY? ........................................................................................... 215 CONCLUSION .................................................................................................. 248 BIBLIOGRAPHY ............................................................................................... 255 vii INTRODUCTION This dissertation is about how property law is created. Legal scholars and historians have tended to frame the issue as an either/or question. Is it produced by legislators and judges or does it develop from the practices and customs of involved individuals? To insist that property law must be the product of one or the other is to impose consistency and order on a process that is messy and often haphazard. Property law – like most things people produce collectively – emerges from a mélange of misunderstandings, mistakes, and contradictions. Law reflects both greed and a sincere desire to find fair solutions to difficult problems. It is never entirely one thing or the other. What follows is an examination of how Anglo-American whalemen, lawyers, judges, and legal scholars created the laws governing property disputes at sea over contested whales in the period from 1780 to 1880. There was never a single property law of whaling. Whalemen operated at sea according to a number of general maxims that were often poorly understood even by experienced captains and crews. Negotiations and a sense of what constituted proper behavior – what one British captain termed “laws of honour” – were ultimately more important in resolving disputes over contested whales than any universally honored custom. What whalemen valued most was a means of dispute resolution that within a framework of honorable behavior prevented violence and insured that the maximum number of whales was rendered. When conflicts came before Anglo-American courts, lawyers and judges had different viii concerns. Recognizing that whaling vessels flew the flags of competing nations, jurists were worried that a simple argument between rival captains might develop into an international incident. Adopting industry customs respected by all whalemen seemed to offer a neutral means of resolving cases that did not honor the law of one nation over another. In their effort to discern whaling customs, courts often misunderstood how whalemen actually settled disputes and found universal practices when, in fact, a flexible and ad hoc means of awarding whales existed at sea. The law of whaling that emerged from the reported Anglo- American cases must – in its clear statement of applicable customs and evocation of arguments dating back to Justinian about how one comes to possess and own wild animals – have seemed quite foreign to the men who made their living hunting whales. Whalemen, in turn, largely ignored judicial pronouncements as to the customs of whaling and continued to operate in ways that made sense to them in their relentless quest to kill whales. The primary reason Anglo-American courts failed to understand how whalemen settled disputes is that lawyers and judges were really never all that interested in or concerned about whaling practices. Although whaling was an important industry in the eighteenth and nineteenth centuries, it was always something of a legal backwater. The participants formed a discrete community engaging in an isolated and unique activity. Judges never worried that a ruling in a whaling case might upset established laws followed by other maritime industries. Courts in seeking settled whaling customs and universal adherence largely invented what they were looking for. ix In addition, when the legal profession did think about whaling, members of the bench and bar failed to grasp that whales are extremely large and difficult to catch. Even in the late eighteenth and early nineteenth century when sperm whales and bowheads were plentiful, the finding and catching of a whale was time consuming and extremely dangerous. Weeks or months might