Chapter II: 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 mollusks from the areas set apart and leased for the cultivation of mollusks."

(2) _Results of Town Administration of Mollusk Fisheries._--All authority to control mollusk privileges was originally vested in the State. The towns, as the ancient statutes will show, derived 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 town control. The towns have no rights of supervision and control over shellfisheries except as derived from the General Court. The State gave them this authority in the beginning. It follows, therefore, that the Legislature can withdraw this delegated authority at any time when it is convinced that it is for the benefit of the State so to do. To those few who are directly profiting at the expense of the many, this resumption of authority by the State may seem at first sight a high-handed proceeding, but a brief survey of the facts will prove it to be justly warranted and eminently desirable. The present system of town control has had a sufficient trial. It is in its very essentials an un-business-like proceeding. A large number of towns acting in this matter as disorganized units working independently of one another could not in the nature of things evolve any co-ordinated and unified system which would be to the advantage of all. The problems involved are too complicated, requiring both broad and special knowledge, which cannot be acquired in a short term of experience. Lastly, the temptations of local politics have been found to be too insistent to guarantee completely fair allotment of valuable privileges.

The Legislature has not only acted unwisely in allowing the towns in this respect thus to mismanage their affairs, but it has not fulfilled its duty to the Commonwealth as a whole. The Legislature has unwittingly delegated valuable sources of wealth and revenue, the fruits of which should have been enjoyed at least in some degree, directly or indirectly, by all citizens of the Commonwealth alike as well as by those of the coast towns. Many of the coast cities and towns have dealt with this opportunity very unwisely, and few have developed or even maintained unimpaired this extremely valuable asset of the State. It cannot be too strongly emphasized that such important sources of wealth as the shellfisheries are not the property of the coast towns alone; they are the property of the whole Commonwealth, and the whole Commonwealth should share in these benefits. In allowing these valuable resources to be mismanaged and dissipated by the shore towns, the Legislature has done a great injury to all the inland communities, and, indeed, even to those very coast towns for whose benefit such legislation was enacted. The Legislature was not justified, in the first place, in granting jurisdiction over these important industries belonging equally to the whole Commonwealth and to the coast towns. It was but an experiment. Inasmuch as these towns have grossly mismanaged the trust placed in them, the Legislature is doubly under the obligation to take advantage of the knowledge gained by this experimental delegation of the State authority to cities and towns. The completely obvious obligation of the Legislature is to remove what is either tacitly or frankly acknowledged by many city and town authorities to be an impossible burden upon the city or town, and to restore to State officers the general administrative control and supervision of the public rights in the shellfisheries.

(3) _Riparian Ownership does not include Exclusive Fishing Rights._--The third objection is that in the assumption of State control is involved the much-discussed and vaguely understood question of riparian ownership. To make plain the conditions relative to the fisheries, including the shellfisheries on the tidal flats, it should be borne in mind that in only four States, Virginia and Maryland, Massachusetts and Maine, does the title of the riparian owner extend to low-water mark, but in these States the right of fishing, fowling and boating are specifically mentioned as not included in the title. Under the existing laws owners of seashore property in Massachusetts possess certain rights (though perhaps not in all cases clearly defined) over the tidal areas within 100 rods of the mean high-water mark. As the proposed system of shellfish grants deals with this territory between high and low water marks, it is necessary to see in what manner, if any, the rights at present possessed by riparian owners would be impaired by the leasing of certain rights of fishing. While the riparian owner has in a measure authority over the territory which borders his upland, there are certain specific limitations to this authority. He does not have exclusive rights of hunting, boating and fishing between the tide lines on his own property, but participates in these rights equally with every citizen of this Commonwealth. The courts have distinctly held that shellfish are fish, and that a man may fish--_i.e._, dig clams--on the tidal flats adjoining the shore without the consent of the riparian owner.

(4) _Rights of the Fishermen and of All Citizens._--The fishermen as a class are best located to benefit most from an opportunity to lease exclusive fishing rights, whether they chance to be riparian owners or not, though every other citizen of this Commonwealth who so desired would not be excluded from an opportunity to secure a similar lease. The personnel of the fisher class has vastly changed in the past decade. There are to-day two distinct types: The permanent resident, usually native born, bound to a definite locality by ties of home and kin and of long association,--a most useful type of citizen. Contrasted with this is the other, a more rapidly increasing class,--foreign born, unnaturalized, nomadic, a humble soldier of fortune, a hanger-on in the outskirts of urban civilization, eking out an existence by selling or eating the shellfish from the public fishing grounds. Too ignorant to appreciate the importance of sanitary precaution, the alien clammer haunts the proscribed territory polluted by sewage, and does much to keep the dangerous typhoid germ in active circulation in the community.

The public mollusk fisheries only foster such types of non-producers, and prevent them from becoming desirable citizens. The best class of fishermen and citizens has no advantage over the worst, but is practically compelled to engage in the same sort of petty buccaneering and wilfully destructive digging, in order to prevent that portion and privilege of fishing which the law says shall belong to every householder and freeman of the Commonwealth from being appropriated by these humble freebooters, who are at once the annoyance, the terror and the despair of cottagers and shore dwellers.

All these conditions would be almost completely corrected by the lease of the flats to individuals, thus removing from the fishermen stultifying competition and compelling these irresponsible wandering aliens to acquire definite location. But most particularly a system of leasing would permit each person to profit according to his industry, perseverance, thrift and foresight.

_The Grants._--As previously stated, the grants should be made into two divisions: (1) including suitable areas between the high and low water marks; (2) territory below mean low-water mark. The privilege of planting and growing all shellfish should be given for both classes of grants. Class 1 would be primarily for the planting of clams, with additional rights over oysters and quahaugs; class 2 would be primarily for the planting of quahaugs and oysters, with possible rights over clams and scallops.

The grants should be leased for a limited period of years, with the privilege of renewal provided the owner had fulfilled the stipulated requirements of the lease. In order, however, that these leases should not degenerate into deeds, to be handed down from father to son, it might be necessary to assign a maximum time limit during which a man might remain in control of any particular lease. This would be merely fair play to all concerned, for it would not be just to allow one man to monopolize a particularly fine piece of property, while his equally deserving neighbor had land of far less productive value. In connection with this clause should follow some provisions for payment of the value of improvements. Should there be more than one claimant for lease of any particular area, some principle of selection, such as priority of application, highest bid, etc., should be established.

That there may be no holding of grants for purposes other than those stipulated in the agreement, there should be a certain cultural standard of excellence to be decided upon relative to the use made of the granted areas. A clause of this kind is necessary in order to keep the system in a proper state of efficiency, and to insure the development of the shellfish industries.

All taxes on the capital invested in these grants and taxes upon the income should go to the town in which the leasehold is situated. In addition, there should be a just and equable revenue assessed by the State on every grant, as rent for the same. This rent should be apportioned according to a fixed scale in determining the relative values of the grants, and should be paid annually, under penalty of forfeiture. The revenue might be divided into two parts: one part to go to the State department having the control of the shellfisheries, for the maintenance of a survey, control and protection of property on leased areas, and other work; the second part to go to the town treasury of the community in which the grant is located, to be expended under the direction and control of responsible State officials in restocking barren flats and otherwise developing the shellfish upon its unleased territory which is open for free public use.

_Grants to be Nontransferable._--These grants, while designed for the use of all citizens of the Commonwealth, should be made especially available for the poor man with little capital. In order to assure the poor man of the enjoyment of his privilege, it is necessary to guard against the possibility of undue monopolization. Leases must, therefore, be strictly nontransferable. Neither should areas be rented to another individual under any consideration whatever. Every grant must be for the benefit of its individual owner. He should be at liberty to hire laborers to assist him in working his grant, but not to transfer it in any way. Any attempt on his part to do so should not only immediately result in the forfeiture of his grant, but should also subject him to a heavy penalty.

_Survey._--In order to guard against confusion and to maintain an orderly system, an accurate survey of all granted areas should be made. The ranges of every grant should be determined and recorded. The plots should be numbered and properly staked or buoyed, and a record of the same, giving the name of the owner, yearly rental and value, should be kept on file at the proper town and State offices. The same system which is now in operation in the oyster industry of other States should be applied to all the mollusk fisheries of Massachusetts.

_Administration._--The department of the State government under whose jurisdiction this system of leases may come should be indued with full authority, properly defined, to supervise the grants, furnish them with adequate protection by the employment of State or town police, oversee the survey, allot the grants, and to exercise such other powers as may be necessary to develop the system, remedy its defects and strengthen its efficiency.

_Protection of Property and of the Rights granted by the Lease._--No system of shellfish grants is possible without absolute protection. The lessee must be permitted to cultivate his grant free from outside interference, and thus, with reasonably good fortune, he can enjoy the fruits of his labors. This protection, which is the greatest and most vital need of the entire system, and the foundation upon which depends its whole success, must be insured by proper legislation rigorously enforced, and accompanied by severe penalties.

_Leasing of the Grants._--Every citizen of the Commonwealth is entitled to participate in this system, but for obvious reasons an inhabitant of any coast town should be given first choice of grants within the boundary of his particular town. The first grants might be given by allotment, but after the system had become well established, they could be issued in the order of their application.

_Water Pollution._--The sanitary condition of the marketed shellfish taken from contaminated waters is not only at present to some extent endangering the public health, but is placing an undeserved stigma upon a most reputable and valuable source of food supply for the public. The public should demand laws closing, after proper scientific investigation, these polluted areas, and conferring the power to thoroughly enforce such laws. The danger arising from contamination should be reduced to a minimum by prescribing some definite regulations for transferring shellfish from these polluted waters to places free from contamination, where the shellfish may in brief season be rendered fit for the market.

It should be unlawful to use any brand, label or other device for designation, intended to give the impression that certain oysters offered for sale were grown at specified places, _e.g._, Cotuit, Wellfleet, Wareham, etc., unless such oysters were actually planted, grown or cultivated within the towns or waters designated, for a period of at least three months immediately previous to the date of marketing. Furthermore, there should be appointed proper inspectors, whose duties would be to guarantee by certificates, labels and stamps the purity of shellfish placed upon the market, and likewise have the power of enforcing severe penalties on violators.

THE SHELLFISHERIES OF MASSACHUSETTS: THEIR PRESENT CONDITION AND EXTENT.

By D. L. BELDING, assisted by F. C. LANE.

DR. GEORGE W. FIELD, _Chairman, Commission on Fisheries and Game_.

SIR:--I herewith submit the following report upon the present extent and condition of the shellfish industries of Massachusetts. The following biological survey was made in connection with the work done under chapters 49, 73, 78 and 93, Resolves of 1905, and chapter 74, Resolves of 1906. The statistics and survey records which furnish the basis of the report were obtained by D. L. Belding and F. C. Lane.

Respectfully submitted,

DAVID L. BELDING,
_Biologist_.