Laws of Honour: The Laws and Customs of Anglo-American Whaling, 1780-1880

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 "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.