Adams’ Minutes of the Trial1
Essex Superior Court, Salem, November 1771
Patch vs. Herrick. Clams.
1767. Perambulation, from Gloucester between there and Ipswich.5
Jacob Story.6 Perambulated for 20 Years. We did not go to the Marsh.
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[ape] Ann 5 Years ago, and forbid, and we went off. They threatned to prosecute.
Story.12 Hired the Knobs. I looked upon it, I hired to low Water Mark as much as the Grass. Rem[embe]r when there was no Grass on the flatts. Now there is, and it increases, and Clams under the Thatch. Digging has a Tendency to prevent the Grass from getting in.
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.  Ray. 860. Replevin of a Brass Pan.16
† 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.
“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.”
1. In JA’s hand. Adams Papers, Microfilms, Reel No. 185.
2. William Pynchon, counsel for Patch et al.
3. 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.”
4. 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.
5. 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.”
6. One of the perambulators for Ipswich.
7. Thomas and Nathaniel Lufkin owned land abutting the flat in question. SF 132186.
8. This may represent either a bushel or a barrel.
9. 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.
10. Saltmarsh grass, the source of saltmarsh hay.
11. These were leases of the knobs and flats by the Commoners. Some of the leases are in the file of this case. SF 132186.
12. 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.
13. 1 A&R description begins The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, ed. Ellis Ames, Abner C. Goodell, et al., Boston, 1869–1922; 21 vols. description ends 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.”
14. Laws and Liberties description begins General Lowes and Libertyes Concerning the Inhabitants of the Massachusets, Cambridge, Mass., 1648. description ends 90. JA sets out the text of part of the title “Liberties Common” below.
15. This appears to be a telescoped reference to Gilbert, Evidence description begins Geoffrey Gilbert, Law of Evidence by a Late Learned Judge, London, 1756. description ends 253–254 and 2 Duncombe, Trials Per Pais description begins Giles Duncombe, Trials per Pais: or Law concerning Juries by Nisi Prius, etc., London, 1665. description ends 533–535, both dealing with the admissibility of evidence of custom under a plea of not guilty.
16. Tonkin v. Croker, 2 Ld. Raym. description begins Robert, Lord Raymond, Reports, King’s Bench and Common Pleas, 3d edn., London, 1775; 3 vols. description ends 860, 92 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 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.
17. See note 14 . Quotation marks supplied.