26 THE MOLLUSK FISHERIES 



sources. Before Massachusetts can take any steps toward cultivating 

 her unproductive shellfish areas, it will be necessary to modify the worst 

 of these laws. 



A. Fishery Rights of the Public. The fundamental principle 

 upon which the shellfish laws of the State are founded is the so-called 

 beach or free fishing rights of the public. While in other States prop- 

 erty extends only to mean high water, in Massachusetts the property 

 holders own to extreme low-water mark. Nevertheless, according to 

 further provisions of this ancient law, the right of fishing (which in- 

 cludes the shellfisheries) below high-water m'ark is free to any inhabitant 

 of the Commonwealth. 



(1) Origin. The first authentic record of this law is found under 

 an act of Massachusetts, in 1641-47, by which every householder was 

 allowed " free fishing and fowling " in any of the great ponds, bays, 

 coves and rivers, as far " as the sea ebbs and flows," in their respective 

 towns, unless " the freemen " or the General Court " had otherwise 

 appropriated them." From this date the shellfisheries were declared 

 to be forever the property of the whole people, i.e., the State, and have 

 been for a long period open to any inhabitant of the State who wished 

 to dig the shellfish for food or for bait. 



(2) Early Benefits. In the early days, when the natural supply 

 was apparently inexhaustible and practically the entire population re- 

 sided on or near the seacoast, it was just that all people should have 

 common rights to the shore fisheries. As long as the natural supply 

 was more than sufficient for the demand, no law could have been better 

 adapted for the public good. 



(3) Present Inadequacy. Two hundred and fifty years have passed 

 since this law was first made. The condition of the shellfisheries has 

 changed. No longer do the flats of Massachusetts yield the enormous 

 harvest of former years, but lie barren and unproductive. The law 

 which once was a benefit to all has now become antiquated, and incapable 

 of meeting the new conditions. 



(4) Evil Effects. If this law were merely antiquated, it could be 

 laid aside unnoticed. On the contrary, as applied to the present con- 

 ditions of the shellfisheries it not only checks any advancement, but 

 works positive harm. From the mistaken comprehension of the so-called 

 beach rights of the people, the general public throughout the State is 

 forced to pay an exorbitant price for sea food, and the enterprising 

 fishermen are deprived of a more profitable livelihood. The present 

 law discriminates against the progressive majority of fishermen in 

 order to benefit a small unprogressive element. 



(5) Protection. If shellfish farming is ever to be put on a paying 

 basis, it is essential that the planter have absolute protection. No man 

 is willing to invest capital and labor when protection cannot be guaran- 

 teed. What good does it do a man to plant a hundred bushels of 

 clams, if the next person has a legal right to dig them? Since the 



