In Rhode Island the clam and scallop fisheries have almost disappeared. Five or ten years from now the shellfisheries of Massachusetts will be in a similar condition, and beyond remedy. Now is the time for reform. The solution of the problem is simple. Shellfish farming is the only possible way in which Massachusetts can restore her natural supply to its former abundance.
I. The Shellfish Laws.—The first evils which demand attention are the existing shellfish laws. While these are supposed to wisely regulate the shellfisheries, in reality they do more harm than good, and are direct obstacles to any movement toward improving the natural resources. Before Massachusetts can take any steps toward cultivating her unproductive shellfish areas, it will be necessary to modify the worst of these laws.
A. Fishery Rights of the Public.—The fundamental principle upon which the shellfish laws of the State are founded is the so-called beach or free fishing rights of the public. While in other States property extends only to mean high water, in Massachusetts the property holders own to extreme low-water mark. Nevertheless, according to further provisions of this ancient law, the right of fishing (which includes the shellfisheries) below high-water mark is free to any inhabitant of the Commonwealth.
(1) Origin.—The first authentic record of this law is found under an act of Massachusetts, in 1641-47, by which every householder was allowed "free fishing and fowling" in any of the great ponds, bays, coves and rivers, as far "as the sea ebbs and flows," in their respective towns, unless "the freemen" or the General Court "had otherwise appropriated them." From this date the shellfisheries were declared to be forever the property of the whole people, i.e., the State, and have been for a long period open to any inhabitant of the State who wished to dig the shellfish for food or for bait.
(2) Early Benefits.—In the early days, when the natural supply was apparently inexhaustible and practically the entire population resided on or near the seacoast, it was just that all people should have common rights to the shore fisheries. As long as the natural supply was more than sufficient for the demand, no law could have been better adapted for the public good.
(3) Present Inadequacy.—Two hundred and fifty years have passed since this law was first made. The condition of the shellfisheries has changed. No longer do the flats of Massachusetts yield the enormous harvest of former years, but lie barren and unproductive. The law which once was a benefit to all has now become antiquated, and incapable of meeting the new conditions.
(4) Evil Effects.—If this law were merely antiquated, it could be laid aside unnoticed. On the contrary, as applied to the present conditions of the shellfisheries it not only checks any advancement, but works positive harm. From the mistaken comprehension of the so-called beach rights of the people, the general public throughout the State is forced to pay an exorbitant price for sea food, and the enterprising fishermen are deprived of a more profitable livelihood. The present law discriminates against the progressive majority of fishermen in order to benefit a small unprogressive element.
(5) Protection.—If shellfish farming is ever to be put on a paying basis, it is essential that the planter have absolute protection. No man is willing to invest capital and labor when protection cannot be guaranteed. What good does it do a man to plant a hundred bushels of clams, if the next person has a legal right to dig them? Since the law absolutely refuses any protection to the shellfish culturist, Massachusetts can never restock her barren flats and re-establish her shellfisheries until this law is modified to meet the changed conditions.
(6) Who are the Objectors? Objectors to any new system are always found, and are not lacking in the case of shellfish culture. These would immediately raise the cry that the public is being deprived of its rights. To-day the public has fewer rights than ever. The present law causes class distinctions, and a few are benefited at the expense of the public. The industrious fisherman suffers because a few of the worthless, unenterprising class, who have no energy, do not wish others to succeed where they cannot. In every seacoast town in Massachusetts the more enlightened fishermen see clearly that the only way to preserve the shellfisheries is to cultivate the barren areas.
Hon. B. F. Wood, in his report of the shellfisheries of New York, in 1906, clearly states the case.[4]