Browsing: 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 {p. 5} 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 {p. 6} 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