Legal Papers of John Adams, volume 2
Two leading natural resources of the North Shore, clams and salt-marsh hay, provided the stakes in this unusual trespass action. The land in question lay largely under water in what was then Chebacco Parish, Ipswich, and is now a part of the town of Essex, apparently in the area known today as Cross Island, near the mouth of the Essex River.1
Ipswich people, and those from neighboring Gloucester (sometimes called “Cape Ann”), had disputed the common boundary since at least 51642, and had apparently resolved the issue by a joint “perambulation” in 1767. Meanwhile, the Proprietors of the Common Lands of Ipswich, otherwise known as the Commoners, had annually let the thatch banks to the highest bidder, only Commoners having the right to bid.2 They had also attempted to regulate the clam trade, by appointment of a committee and promulgation of a kind of bag limit.3
Enter now in canoes, digging, Adams' clients, Israel and John Herrick, Gloucestermen both, and an anonymous crowd of their fellow townsmen. They “trod down, trampled upon, dug, tore up, and consumed the soil and Thatch Banks . . . and thereout dug, took and converted to their own Use one hundred Bushels of Clams of the said Proprietors there being and growing.”4 The Commoners responded by voting John Patch III, Isaac Smith, and Isaac Dodge, a committee to “Persue the Trespassers to finall Judgment and Execution.”5 This the committee tried to do, commencing an action in the Ipswich Inferior Court in March 1771, and after a jury verdict for the Herricks,6 appealing to the Superior Court.7 There, on the 6testimony summarized in Adams' minute set out below, the jury brought in a special verdict: the land was on salt-water flats on an arm of the sea about two miles up Chebacco River, the Commoners held title to it, the defendants had entered upon it and dug fifty bushels of clams, and damages totaled four shillings. To the judges the jury left the decision whether or not plaintiffs' action was well founded.8
Although the file papers and Adams' minutes afford slim evidence of the question the court faced, Adams and John Lowell, his co-counsel, seem to have argued that trespass could not lie here (at least for the clams), because the Province Charter guaranteed free fishing. They also apparently attempted to introduce evidence of a custom of clamming, which plaintiffs opposed on the technical ground that such evidence was inadmissible when the defendants, as here, had merely pleaded “not guilty,” and had not raised any legal justification in their plea. On the basis of the materials Adams himself set out, his legal position seems weak. The Court shared this view, and in June 1772 entered up judgment for the plaintiffs for the four shillings plus costs of £16 9s. 8 1/2d.9
The file includes rough maps. SF 132186. See also U.S. Corps of Engineers charts N4233.75–W7037.5/8 × 7.5 (1944) and N4237.5–W7045/7.5 (1945).
T. F. Waters, “The Development of Our Town Government,” 8 Ipswich Hist. Soc., Pubns.
2, 14 (1900); the file contains copies of records of several annual meetings at which the flats were let. SF 132186.
“Voted, that the Committe take care of all the Flats and Clams therein belonging to the Proprietors of the Common Lands In Ipswich and that no Person or Persons be allow'd to Digg Any more Clams than for their own use and to be Expended in the Town, And that all Owners of Fishing Vessels and Boats shall apply to one of said Committe for Liberty to Digg Clams for their Vessels Use, Fare by Fare [that is, journey or trip], and no Owner of Vessel, or Vessels, Boat or Boats, shall digg more Clams than shall be Allow'd by one or more of said Committe on Penalty of Prosecution; Said Committe are to Allow one Barrel of Clams to Each Man of Every Vessel going to the Banks Every Fare, and so Also in proportion to Boats Fishing in the Bay, And a Majority of said Committe are Impowered to prosecute all Offenders (To this Vote) To finall Judgment and Execution in the Name and Behalf of said Proprietors.” SF 132186. Waters, “Development of Our Town Government,” says that this vote (4 July 1763) was the first regulation of which he was aware.
Writ, SF 132186.
13 Feb. 1771. SF 132186.
The Wetmore Notes contain a report of this phase of the case:
“Ipswich Commoners v. Herrick trespass for digging by Glocester men upon Ipswich flats for clams. See the Charter enabling any Subjects (of K. of Eng.) whatever to fish on the Coasts in the seas or arms of the Seas or Salt water Rivers as they have been wont, to
cut and take such Trees and other materials there growing or beingupon any parts or places lying waste andnot in the possession of particular proprietorsfor wharves Stages &c. andfor all other necessary helps and advantagesconcerning the trade of fishing there in such manner and form as they have been accustomed to do, without wilful waste or spoil.“Waste is taken for lands in no mans occupation but lying common. So called because the lord cant make such profit of them as of other lands, by reason of others using and passing to and fro on them.
“The plea is not guilty. Plaintiffs' evidence was of leasing
the Bull Island knobs,theThatch grounds(and once theIsland) from 1745 to 1768, and of improvement since. The defendants' evidence was of divers peoples improvement by digging clams for several years of the term aforesaid but that Some times they (especially Glocester men) having notice that the Plaintiffs claim'd and let the banks would retire without getting the clams.“See L. Raym. 1535. Dutch East India Company sue and on non assumpsit must shew the proper instrument by Law of Holland creating the corporation.”
The cited case is Jacob Lopes Henriques et al. v. The General Privileged Dutch Company Trading to the West Indies, 2 Ld. Raym. 1532, 1535, 92 Eng. Rep. 494, 496 (H.L. 1730), which seems to hold that when a corporation brings an action, it need not prove its incorporation unless the defendant pleads the general issue.
Under an agreement between counsel that “the appearance of one of the Committee be admitted for all.” SF 132186.
SF 132186. Apparently a special verdict of this sort was the product of negotiation between counsel. In the file are three versions of the verdict, the first of which contains no mention of the land's tidewater location. On the verso of this version JA wrote: “and the Flatts where the Clams were dug are upon the Coasts of New England, upon an arm of the Sea, or Salt Water River, Where the King's Subjects had been wont to fish, when the Charter of this Province was made.” An unidentified hand added: “Note not the least Evidence hath been offered of this.” The second version, and the third, which is a fair copy of it, contain an interpolation to the effect that the lands in question were “salt water flatts lying on an arm of the sea and about two miles up Chebaco River.”
Min. Bk. 93, SCJ Ipswich, June 1772, C–9; SJC Rec. 1772, fol. 90.
Pynchon.
2 Grant of Ipswich or rather Jurisdiction between the Towns from Glocester Town Book. 1642.3 And from the Province Sec
1767. Perambulation, from Gloucester between there and Ipswich.5
Jacob Story.
6 Perambulated for 20 Years. We did not go to the Marsh.
Wm. Butler.
Wm. Choate. The Line a Mile in the nearest Place I should think. People freely dug.
Lufkin.
7 Freely dug. People on there, when the Commoners and their Assigns, have been dig mowing. Talk about 3 Years, about digging. Never forbid till within 3 Years, and never knew of People's asking Leave.
Wm. Choate. 1770. 27 July. 17 Persons. 5 Canoes—75 Bushells. Dont know who they are. Israel Herrick and Jno. Herrick it was then said were there. I went to 'em once, and told em they were trespassing 7 Years ago. 1761 give 20s a Barrell for digging—so that the Custom about 2s a Bll.8
Lufkin. 5 Canoes. 15 Persons. Cape Ann People. Know Jno. and Israel Herrick. We said nothing. Nor they to Us. 4 Barells of Meat. 100 Bushells in shells.9 4 dollars a Barrell. Never knew prohibited.
Jacob Davis. Went from C
July 19. 1744 to 1760. Thatch10 banks, and all the Knobs, at Bull Island. Leases.11 20S., &c. and 21S.
Story.12 Hired the Knobs. I looked upon it, I hired to low Water Mark as much as the Grass. Rem
Lufkin. Our Thatch grows poorer. They have dug away most of the Clams where there is no Thatch.
Lowell. Charter last Page.13
Mem. † Old Colony Laws. page 90. Tit. Liberties Common.14
Gilbert, Tryals Per Pais about pleading Custom.15
2.
† Old Colony Laws.17 90. Tit. Liberties. “2. Every Inhabitant who is an Householder, shall have free Fishing and Fowling in any great Ponds, Bays, Coves and Rivers, so far as the Sea Ebbes and Flowes, within the Precincts of the Town where they dwell unless the Freemen of the same Town or the General Court have otherwise appropriated them. Provided that no Town shall appropriate to any particular Person or Persons, any great Pond, containing more than 10 Acres of Land and that no Man shall come upon anothers Propriety without their Leave otherwise then as hereafter expressed.
9“The which clearly to determine;
“It is declared, that in all Creeks, Coves and other Places about and upon Salt Water, where the sea Ebbes and flowes, the Proprietor, or the Land adjoining shall have Propriety to the Low Water Mark where the Sea doth not Ebbe above an 100 Rods, and not more wheresoever it ebbes further, Provided that such Proprietors, shall not by this Liberty have Power to stop or hinder the Passage of Boats or other Vessells, in or thro any Sea, Creacks or Coves, to other Mens Houses or Lands. And for great Ponds lying in Common, though within the Bounds of some Town, it shall be free for any Man to fish and fowle there and may pass and repass on Foot through any Mans Propriety for that End, so they trespass not upon any Mans Corn or Meadow 1641, 47.”
In JA's hand. Adams Papers, Microfilms, Reel No. 185.
William Pynchon, counsel for Patch et al.
SF 132186: “Bounds between Ipswich and Cape Ann. The grant of our Bounds drawn out of the Country Records the 3 of 3d month 1642. . . . That all the Land lying between Ipswich and Cape Ann Meeting Houses, shall be divided Six Miles to Ipswich & four to Cape Ann, where there are Ten miles, and so by Proportion where Less that is of fifths, three parts to Ipswich and two to Cape Ann, where there Is more than ten miles, the Remainder to Lye to Jeffries-Creek. And this to be measured before the Next General Court.”
This refers to a fragmentary copy of an agreement of “3d: 3d Month 1642” concerning the Ipswich-Capetown (Gloucester) boundary, an apparent duplicate of the material set out in note 12 above. Dated 4 Nov. 1771, it bears the following certificate: “I certify that the above (which appears imperfect) is a true Copy from a Duplicate of the General Court Book. The original cannot be found in my office, and may have been consumed with the Town house in the year 1747. Thos. Flucker Secretary.” SF 132186.
SF 132186. “Gloucester June 28th 1767. We the Subscribers Being Appointed a Committe by the Select Men of Ipswich, and the Select men of Gloucester to Perambulate the Line between said Towns of Ipswich and Glocester And have been on said Line and Renew'd the Bounds as beforementioned between said Towns in Former Perambulation. . . . We being a Committe Appointed to Perambulate the Line between the Towns of Ipswich and Glocester mett at the Heap of Rocks, the Bounds between Ipswich, Manchester and Gloucester And Renew'd the bounds between the Two Towns as Usual. Gloucester and Ipswich December 29, 1767.”
One of the perambulators for Ipswich.
Thomas and Nathaniel Lufkin owned land abutting the flat in question. SF 132186.
This may represent either a bushel or a barrel.
This suggests that clam diggers separated the meat from the shells on the flats, but carried the shells away, or perhaps that the clams in their shells came to one hundred bushels.
Saltmarsh grass, the source of saltmarsh hay.
These were leases of the knobs and flats by the Commoners. Some of the leases are in the file of this case. SF 132186.
A Jeremy Storey let the Bull Island Knobs in 1747 for one year at £1 1s. 0d. Bull Island was a part of what is now called Cross Island. SF 132186.
1 A&R 19–20: “And further Our expresse Will and Pleasure is And Wee doe by these presents for Vs Our Heires and Successors Ordaine and appoint that these Our Letters Patents shall not in any manner Enure or be taken to abridge bar or hinder any of Our loveing Subjects whatsoever to vse and exercise the Trade of Fishing vpon the Coasts of New England but that they and every of them shall have full and free power and Libertie to continue and vse their said Trade of Fishing vpon the said Coasts in any of the seas therevnto adjoyning or any Arms of the said Seas or Salt Water Rivers where they have been wont to fish.”
Laws and Liberties
90. JA sets out the text of part of the title “Liberties Common” below.
This appears to be a telescoped reference to Gilbert, Evidence
253–254 and 2 Duncombe, Trials Per Pais
533–535, both dealing with the admissibility of evidence of custom under a plea of not guilty.
Tonkin v. Croker, 2 Ld. Raym. 860, 92 Eng. Rep. 74 (K.B. 1703): Replevin brought to test whether a tenure was by suit-service or by rent, raising the question whether a manor court was customary or not. Holt, C.J., gave it as his dictum that a declaration at common law could not be made good by a replication based on custom; hence a special verdict finding that the plaintiff was supported by custom when he had declared on the common law would not support a verdict for plaintiff. Id. at 862–863.
See note