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 1642, 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 testimony 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
1. 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).
2. T. F. Waters, “The Development of Our Town Government,” 8 Ipswich Hist. Soc., Pubns. description begins Ipswich Historical Society, Publications. description ends 2, 14 (1900); the file contains copies of records of several annual meetings at which the flats were let. SF 132186.
3. “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.
4. Writ, SF 132186.
5. 13 Feb. 1771. SF 132186.
6. 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 being upon any parts or places lying waste and not in the possession of particular proprietors for wharves Stages &c. and for all other necessary helps and advantages concerning 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, the Thatch grounds (and once the Island) 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. description begins Robert, Lord Raymond, Reports, King’s Bench and Common Pleas, 3d edn., London, 1775; 3 vols. description ends 1532, 1535, 92 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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.
7. Under an agreement between counsel that “the appearance of one of the Committee be admitted for all.” SF 132186.
8. 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.”
9. Min. Bk. 93, SCJ Ipswich, June 1772, C–9; SJC Rec. 1772, fol. 90.