OF MASSACHUSETTS. 9 



ity four main factors must be carefully considered: (1) com- 

 munal rights to fisheries in tidal areas, as in the colonial beach 

 law of 1641-47; (2) the theory, practice and results of town 

 supervision and control; (3) the rights of riparian owners; 

 (4) the rights of the fishermen and of all other inhabitants 

 of the State. So important are all four that it is necessary to 

 discuss each in turn. 



(1) Communal Fishery Bights of the Public. — The funda- 

 mental principle upon which the shellfish laws of the State 

 are founded is the so-called beach or free fishing right of the 

 public. While in other States shore property extends only to 

 mean high water, in Massachusetts, Maine and Virginia, the 

 earliest States to enact colonial laws, the riparian property hold- 

 ers own to mean low-water mark. But by specific exception 

 and according to further provisions of this same ancient law 

 the right of fishing (which includes the shellfisheries) below 

 high-water mark is free to any inhabitant of the Common- 

 wealth. The act reads as follows : — 



Section 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 ebbs and flows within the precincts of the town where they 

 dwell, unless the freemen of the same town or the General Court have 

 otherwise appropriated them. 



It is necessary that some change be made in this law, which 

 at present offers no protection to the planters. Its repeal is 

 by no means necessary, as the matter can be adjusted by merely 

 adding " except for the taking of moUusks from the areas set 

 apart and leased for the cultivation of moHusks." 



(2) Results of Town Administration of MoUush Fisheries. — 

 All authority to control moUusk privileges was originally vested 

 in the State. The towns, as the ancient statutes will show, de- 

 rived this authority from the higher State authority, developed 

 their systems of local regulations or by-laws only with the 

 State permission, and even now they enjoy the fruits of these 

 concessions solely with the active consent of the Legislature. 

 Thus the State has ever been, and is at present, the source of 

 tovra control. The towns have no rights of supervision and con- 

 trol over shellfisheries except as derived from the General Court. 



