Penobscot River
Petition of Penobscot Bay weir fishermen -- 1821
"To the Senators and Representatives of the State of Maine, in General
Court convened.
GENTLEMEN -- The undersigned, residing near the waters of Penobscot bay
and river, respectfully represent,
That the fisheries of said bay and river have, for several years, been shackled
with so much restriction and regulation, that our rights to fish at all
are nearly annihilated. The liberty to fish, commences under many grievous
conditions on the 20th of May and continues to the 4th of July. That memorable
day, on which our liberties begun, ends the rights of the fishermen. No
matter whether owing to a late or forward season, the fish take it into
their heads to run a month later or earlier as frequently proves to be the
case, the poor fisherman cannot, upon penalty of a great fine, take a scale
after the said 4th of July; and even during this scanty period, we are by
law, allowed to fish with wears but four days in seven. There would be more
reasonableness in this law, if an act of parliament or General Court, could
as well restrain and limit the running of the fish, as it does the fishermen;
but these lawless depredators upon your flats and shores, laugh at all your
fish laws and will not heed your commands as in any limitation of time;
your statute books are unknown to them.
The right of government to regulate the fisheries (not to destroy
them) in the channels and deep waters, is an inherent one; but whether the
government has at any time a constitutional right to prevent us your
petitioners or either of us, from building or erecting wharves, booms, or
other machinery on our own ground, or on our own flats, admits of a question,
which we are confident merits and will receive your most cautious and deliberate
investigation. We purchased the soil, "with all the privileges thereunto
belonging," and in many instances, gave an exhorbitant price for the
very privileges we now contend for. If the government once presumes to dictate
to the subject, whether he shall not make improvements on his own estate,
although we might apprehend no danger from present members of the Legislature,
yet, to what tyranny and despotism might not such a stretch of power lead
in the hands of the ambitious and unprincipled? Freement ought to resist
usurpation in its incipient stages. We have never delegated to you the power
to enter upon our estates, to build up this fence, or pull down another.
We have not yielded to you the right to decide whether we may, or may not,
build wharves and wears on our own flats. We have, indeed, by a sort of
common and implied consent, given to our Legislature the right to regulate
the fisheries, the right to keep open the channels for navigable purposes
-- and the general right to do any thing which is for the manifest advantage
and benefit of the whole community, not however to the sacrifice and destruction
of private property without ample recompence.
We have looked forward to the organization of our new government with the
most pleasing promise of a redress of wrongs. We advocated our independence
under the expectation, that the government of Maine would better understand
the rights and necessities of its own citizens, than a government whose
sun shone upon us at a great distance, whose invigorating influence hardly
ever penetrated the coverts of our wilderness country. We approach you with
respect, but without humiliation, and resolutely remonstrate against the
laws now in force, "regulating the salmon, shad and alewive fisheries
of the Penobscot bay and river."
First Reason: Because we are restricted to about 24 days fishing, after
deducting what is called "unlawful days" during the "permitted
time" the fish may not happen to run.
Second Reason: The selectmen of towns are invested with royalty powers,
of granting or refusing license to build wears. They are also empowered
to exact a bond, with ample sureties, for each fisherman's "good
behavior" before any offence has been committed.
Third Reason: Certain officers and executors of the law are appointed at
the discretion of the Selectmen called "fishwardens" who have
proved arbitrary in the exercise of their "little brief authority,"
insolent, vexatious, and unprincipled, with a few exceptions only, so that
the very term has become a cant word of reproach and no honest man will,
from choice, accept the appointment.
Fourth Reason: The restrictions on wear-fishing prevent the taking of small
fish, on which numberless of the poor depend for subsistence, and on most
of the privileges where wears are built, nets cannot be set, on account
of the strength of the tide or current.
Fish Reason: Contained in the affidavits herewith transmitted.
On these restrictions and limitations we offer this single comment, that
all laws for the government of the people, in order to insure them respect
and willing obedience, must be just and reasonable.
Our "red brethren" have been instigated by some of their white
brethren, far up the river, to make a talk about the destruction of salmon,
by our expert fishermen on the big waters -- It will be found on investigation,
that they have contributed their full share, to the destruction of the fish,
not for their own use or consumption, but for fish merchants. When a salmon
has run the gauntlet and arrived unharmed at the still waters, where the
spawn is deposited, it becomes an object of solicitude; for by spearing
them in these retired places, as has been the constant practice of the Indians,
the destruction of a single fish is that of thousands. Here it is then,
if any where, that arbitrary and insolent fishwards should be appointed
to execute the vengeance of the laws. The Indians are now reduced to a mere
handful of strollers, having no regular residence and have really little
or no interest in the result. All of which is submitted for your consideration,
with that deference, which is always due from the people, to the impartial
and upright Legislature of their choice."
William Wardwell and 175 others.
Source: Maine State Archives. Legislative GY. Box 8. File 19.
[The Maine Archives has six different copies of above the printed petition,
with a total of 176 signatures in all. Three petitions are labelled as from
Prospect, Orland and the Town of Penobscot. The other three copies do not
have any town specified.]
Note 1: This petition was definitely written after and in response
to the January 1821 petition of the Chiefs of the Penobscot Indians which
requested Maine Legislature to restrict the weir and driftnet fisheries
in the lower Penobscot River and Penobscot Bay. The phrase "our red
brethren" in the final paragraph appears to be a direct and sarcastic
reference to the Penobscot Chiefs' use of the phrase "our white brethren"
in their 1821 petition.
Note 2: Several of the regulations criticized in the above petition
are found in the 1816 Massachusetts Law, Chapter CXLIV, titled "An
Act for the preservation of Fish in Penobscot River and Bay, and the streams
entering into the same."
Section One of this Act required, "That all wears in the Penobscot
River and Bay, or in the streams emptying into the same, shall be, by the
persons or persons interested therein, entirely removed therefrom or demolished,
on or before the fifth day of July annually; and in the case the said person
or persons, so interested in said wears shall fail to so remove or demolish
the same within the time prescribed, he, she or they shall forfeit and pay
the sum of fifty dollars, recoverable by indictment before the Circuit Court
of Common Pleas, sitting in the county where the offence occurs; the whole
to be the use of the same county: Provided moreover, it shall and may be
lawful for any Fish Warden, and he is hereby authorized to remove or demolish
any wear aforesaid, which shall remain after said fifth day of July."
The 1816 Act also required all weirs be licensed by the Selectmen of the
town adjoining the site of the weir and assessed a fine for $100 for unlicensed
weirs.
In contrast to the assertion in the petition that the fishing season did
begin until May 20th, the 1814 Penobscot fishing law (Massachusetts Law,
Chapter CXLIV) set the fishing season as May 10 to June 15th for shad and
alewives and May 10 to July 1st for Atlantic salmon. The law exempted fishermen
from penalties for taking shad after June 15 if the shad were caught in
nets or seines set "expressly" for salmon.
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