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on their part to submit the outlines of such a plan as to them seems most expedient for insuring a judicious execution of the public works which are intended for the improvement of the internal condition of the State: They therefore recommend—

1. That an ample fund be provided and set apart for internal improvements.

2. That a board of public works be formed.

3. That all the public works patronized by the legislature be placed under the superintendence of this board and the immediate direction of the principal engineer.

4. That the funds for internal improvements be applied by the board to the execution of such public works as the legislature may from time to time designate.

5. That all incorporated companies engaged in any public work which is patronized by the legis lature be bound to lay before the board at least once in every year an account of their expenditures, and a report of the progress made in the execution of their respective works.

6. That the board report to the general assembly at each session, the state and condition of the public works under their superintendence; the monies expended upon each during the preceding year, and the state of the fund for internal improvements-that they also recommend to the general assembly from time to time such measures as to them may seem expedient for improving the internal conditions of the State.10

The specific plans submitted by the State engineer related to inlets and sounds on the coast, the primary rivers and their junction by navigable canals, public highways, drainage of swamps and marshes, etc. At its 1819 session the North Carolina Legislature gave heed to Judge Murphey's recommendation by creating a board of internal improvements, which was required to

Report to the general assembly, at or as near the commencement of every annual session thereof, the exact state of the fund for internal improvement: The progress, condition, and net income of all the public works under their charge; the surveys, plans, and estimated expense of such new works as they may recommend to the patronage of the general assembly.

Charters were granted to several companies, the stock of which was subscribed in large measure by the State."1

11

In the same year of 1819 the sister State of South Carolina also passed an act establishing a board of public works, consisting of five commissioners. This board possessed very wide powers, some of which closely parallel those required in the preparation of a modern public works inventory. The board was author ized to superintend construction of State works, make contracts, purchase lands for the State, engage in topographic surveying, prepare plans and designs for all public buildings, and obtain from the clerks and sheriffs of each county annual reports (by the first Monday in November) on the actual condition of courthouses and gaols, together with estimates of repairs and future construc tions. The board is reported to have spent over a million dollars in the period 1819-22, and one of its projects was the construction of the "State Road” from Charleston to Columbia. 12 One of the engineers of the board submitted in 1822 a rather unique proposal for financing internal improvements, especially in the low country (i. e., embanking, drainage, and swamp reclamation), by having the Negro slaves do the work and thus earn their emancipation. "In short, all now required to give a preference to our State for a residence, whether with a view to profit or pleasure, is reclaiming the low lands from inundation and abolishing slavery."

"13

With the notable exception of the New York canal system, the State canal movement with little success, in part because of the rapid acceptance of the railroads as more efficient means of transportation and in part because of the extravagance, waste, and corruption that attended canal administration. The signifi cance of the ideas discussed in this section cannot be found in the practice of the

10 Report of Sundry Surveys Made by Hamilton Fish, State Engineer (Raleigh, 1819), pp. 7-8. The quoted statement is from the introduction, presumably written by Judge Murphey. The report of the engineer runs from p. 10 to the end (p. 70).

11 N. C. Laws 1819, c. 2, sec. 12; Meyer, op. cit., p. 275.

12 S. C. Acts and Resolves 1819, pp. 34-40. Two members of the board were engineers and three were "public-spirited citizens serving without pay." Meyer, op. cit., pp. 257-258.

13 Robert Mills (engineer and architect), Internal Improvements of South Carolina, Particularly Adapted to the Low Coun try-Respectfully Submitted to the Serious Consideration of the Legislature, and of the Citizens of the State Generally (1822), Pp. 20-21.

State governments; they should be regarded as inchoate ideas that were not given the chance of being put into practice. As such, they belong aomng the conceptual antecedents of State planning of water resources.

Fish and Water Pollution-Interstate Origins.-Aside from mercan tilist legislation relating to the fishery industry, the conservation of fish, as a phase of water-planning history, probably first arose in connection with the river obstructions that maturer settlement always brought in its wake. As early as 1709-10 Massachusetts Bay forbade the erection of any "disturbance or incumbrance on or across any river" that would operate to stop or obstruct the natural passage of fish, "without the approbation and allowance first had and obtained from the general sessions of the peace." With the growth of mills and dams on most rivers it became necessary to order the construction and mainte nance of sluices and fishways through or around the dams, turning over to local officialdom the power of enforcement through police or judicial proceedings.1⁄4 Such governmental control over fish life in the rivers and lakes as existed before the Civil War was confined to general legislative declarations or the police orders and enforcement of local officialdom.

It was becoming inci casingly evident, however, that some of the States were recognizing how mere police enforcement as a means of fish conservation was quite ineffective. In 1857 the Governor of Vermont sponsored inquiries "into the state of the discoveries which had been made in relation to the artificial propagation of fish, and also to ascertain what legislation of this and other States and Provinces might be requisite in order to secure to this State the benefit of such discoveries." Mr. George P. Marsh, who later became the author of The Earth as Modified by Human Action which played such a significant literary role in arousing conservation consciousness, filed a short but able report, in which he concluded that artificial propagation was actually possible and "worthy of public encouragement." Marsh called attention to constitutional obstacles and realistically pointed out that any comprehensive program of artificially restocking the streams of Vermont depended for its effectiveness in no small measure upon the development of corresponding activities on the part of neighboring States. Grave doubt was expressed whether "any mere preventive legislation, however faithfully obeyed, would restore the ancient abundance of our public fisheries." An immediate practicable program of fish propagation was formulated with great caution, but Vermont failed to do anything further for another decade, as related, infra.

15

Massachusetts is commonly accredited with establishing the first State agency for the conservation of natural resources, but the statutory record seems definitely to give this primacy to the State of New Hampshire, which in 1864 called the attention of the neighboring States of Massachusetts, Connecticut, and Maine to the critical fact that

The rivers and lakes of this State were wont formerly to furnish an inexhaustible supply of salmon, shad, and other migratory fish, which have now entirely disappeared from our waters.16 Why? The answer was to be found in the construction of impassable dams, many of which were located in other States. It would obviously be a futile expenditure of funds and efforts for the State of New Hampshire to construct fishways over and around dams if the State of Connecticut, through which the

14 Acts and Resolves of the Province of Massachusetts Bay, I, 644-645; II, 186.

15 Report Mad- Under the Authority of the Legislature of Vermont on the Artificial Propagation of Fish (1857), p. 18. Marsh's report contained an abridged translation of essays by Professor Vogt of Geneva and Jules Haime, and a paper by Kellogg on "Experiments in Artificial Fish Breeding" which had been presented to the Connecticut State Agricultural Society in 1856. Similar, if less comprehensive studies of fish culture were made in Ohio (Board of Agriculture Annual Report for 1857, pp. 58-59) and New York (Senate Committee on Agriculture, Report in Relation to Petition of Robert Pell concerning Salmon Fisheries of the State). Marsh suggested that the recent and recurring torrential washes of the Vermont rivers resulted from forest denudation. This became one of the main points in his book, to which reference has already been made in the

text.

16 N. H. Laws. 1861-66, c. 2898. Rhode Island may have a possible claim on the basis of a board of oyster commissioners of 1852, referred to in a brief appendatory note in the Acts and Resolves, 1852, p. 112. No other reference has been found.

STATE CONSERVATION OF RESOURCES

53

rivers subsequently flowed, did nothing to encourage or actually prevented the fish ever reaching New Hampshire on their journey up from the sea.) It is of singular interest to note that when the States first became concerned with the administration of conservation that they should think inevitably in regional terms, of what other States were doing and must do if the individual State was to do anything itself.

In 1865 the New Hampshire Legislature authorized the Governor to appoint two commissioners to "consider the subject of the restoration of sea fish to our waters, and the introduction of new varieties of fresh-water fish," and particu larly to confer with the neighboring States of Massachusetts, Vermont, and Connecticut. Connecticut was requested "as a matter of comity between the sister States, to so regulate the fishing in that [Connecticut] river as to allow the free and unobstructed passage of all kinds of sea fish." Within the State, New Hampshire provided for enforcing the fishway plan by imposing penalties for the maintenance of dams or weirs on specified rivers "without providing a suitable fishway *** which shall be approved in writing by the fish commissioners." The effective administration of this legislation, however, was made contingent upon the finding by the Governor of the fact that "suitable fishways for the passage of sea fish over the dams on said river or rivers below the boundary of this State shall have been commenced." 17

Massachusetts immediately responded by authorizing two commissioners to confer with representatives of New Hampshire and Vermont and also to investi gate the effects of pollution upon fish life, particularly shad and salmon. In 1866 the fish comr ission was made a permanent State agency with the assigned function to "determine and define the mode and plan upon which fishways shall be constructed" and to submit the same "to any board of commissioners empowered to act by the State of New Hampshire, upon the same or similar projects, for their approval." When the plan was thus approved by both States, it should be submitted to the dam proprietors before proceeding with construction.18

After both Vermont and Connecticut enacted legislation, a meeting was called, in the early part of 1867, at Boston where the commissioners of Maine, New Hampshire, Vermont, Massachusetts, and Connecticut were in attendance “for the purpose of exchanging views and concerting action." 19 Froposing to es tablish a regional organization known as "New England Commissioners of River Fisheries," the commissioners drafted the following circular:

The New England Commissioners of River Fisheries wish to bespeak the attention and the assistance of all persons who are interested in the restocking of our fresh waters with valuable fish, such as salmon, shad, herring, alewife, trout, black bass, striped bass, and lamprey eel.

These fish, half a century ago, furnished abundant and wholesome food for the people; but, by / the erection of impassable dams, the needless pollution of ponds and rivers, and by the reckless fishing, in all ways and at all times our streams and lakes have been pretty much depopulated. Luckily, the immense natural increase of fishes opens a way to their restoration. We have only to remove the causes of their destruction, and they will multiply enormously, without any care at all.

The causes of destruction are chiefly as follows:

1. Impassable dams. Over these, fishways may be built with little waste of water.

2. Pollution of water by lime, dyes, soap, sawdust, and other mill refuse. Much of all these should not be thrown at all into the water. As to the dirty water from wool or cloth washing, it may be confined to one side of the river by a plank screen placed opposite the raceway.

3. Destruction of young fish by mill wheels, which may be avoided by a lattice placed across the mouth of the mill canal.

17 N. H. Laws 1865, cc. 4126, 4127, 4099. [Italics added.]

18 Mars. Laws 1865, c. 45, Pollution was described as the "discoloration of the water

dyestuffs and other noxious matter therein from the manufactories."

Mass. Laws 1866, c. 238.

caused by the discharge of

1 Conn. I aws 1867, c. 140, Vt. Laws 1867, No. 78. Vermont was also interested in obtaining "concurrent action on the part of the proper authorities of the Dominion of Canada, and of the State of New York" in order to safeguard and promote the fishery interests on Lake Champlain.

r 4. Destructive modes of fishing, among which we may include gillnets, weirs, very long seines, pots, set hooks, fire fishing, and fishing through the ice; all of which should be by law forbidden. 5. Fishing too much, and at wrong seasons. For migratory fish, certain days in each week should be "closed"—that is to say, no fishing should then be allowed; and the taking of trout on their spawning beds should be rigorously interdicted.

Massachusetts and New Hampshire have already passed laws for the opening of the Merrimack and the Connecticut to sea fish, and for the encouragement of the breeding of valuable fresh-water fish. Fishways have been erected upon the Merrimack, and many thousand salmon eggs have been planted in its upper waters.

By the interest and the assistance of the people at large these cheap and important reforms may be carried through.20

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This very auspicious start for cooperative State conservation and develop ment of the fish resources in the New England area was brought to naught by the failure of Connecticut to see that the other States were "fairly dealt with. It was a rather paradoxical result, for Seth Green, distinguished fish commissioner for the State of New York, had assisted Connecticut in establishing "an easy and certain method of increasing shad by artificial propagation." In the words of the Massachusetts report for 1878,

This appears to have been our ruin. It made fishing profitable. It is, to say the least, a most singular specimen of political economy for a State to appoint able commissioners and appropriate money to encourage a great and important industry, and then, on the first tide of success, to virtually surrender it into the hands of a class ignorant of the first principles of fish culture, proverbially reckless of the future, and oblivious of the rights of other States.

This legislation for the establishment of fish administration was all enacted within a comparatively short time, 1864 to 1868, and admittedly as a regional movement along the North Atlantic seaboard. In its central emphasis on what the other States were doing or contemplating, fish conservation presents a unique case in State cooperation on problems affecting the welfare of several States and which no single State can well attack without the aid and cooperative effort of the others. That Connecticut chose the role of the dog in the manger, out of consideration for the sheer temporary selfish interest of the State's commercial fishermen, was unfortunate indeed.

This early legislation was significant in another direction, in proposing an entirely new approach to the problem of conservation of natural resources, by adopting positive procedures rather than relying on the sanctions of criminal law. Fishways were constructed to assure that the fish actually could migrate up and down the streams as of yore despite the obstructions interposed by an industrial civilization, or dams and polluted waters. Scientific propagation assured more fish at less cost than the expenditures needed to prevent the people from catching the few fish that still remained after generations of improv idence. The States were but following the examples of Germany, France, and England, of whose activities the early State reports indicate a keen awareness. Thus the Vermont commissioners acknowledge that they were—

kindly furnished by Mr. Frank Buckland, of London, the Reports of the Inspectors of Salmon Fisheries in England and Wales for several years, and also many valuable articles on the subject of Salmon Fisheries, etc., in "Land and Water," a paper devoted in part to the cultivation of fish.

By 1870 at least 10 States had provided for a State fish agency of somewhat varying powers and financial abilities. All but one were located along the Atlantic seaboard, and this single exception was California on the Pacific coast, which invoked the technical services of the New York commission on many an occasion.2 While the first State commissions had built on the technical foundation provided by European administrators and scientists, it was apparent

21

20 Quoted in Vermont Fish Commissioners, Report for 1867, pp. 5-7.

11 The extensive influence‹f the activities of the New York commission may be indicated by the fact that in 1881 it could report that it had received application for its fish spawn from 31 States in addition to Canada and 3 of its separate Provinces. Report for 1881, p. 72.

1

the first State

Congress in 1871, less than a decade after the appearance of commissions and in response to their promptings as expressed through the American Fish Culturists' Association. Within a year of its official existence,

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that adaptation of these findings to the American conditions was necessary along with much fundamental research. This function became the immediately ascribed task of the United States Fish Commission when it was created by

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