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Page:Harvard Law Review Volume 2.djvu/215

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majority of the court were of the opinion that these cases were taken out of the general rule, because the North Watuppa is a "great pond," and governed by the provisions of the Massa- chusetts Colony Ordinance and Ancient Charter of 1641-7, which has become a part of the general law of Massachusetts, and pro- vides as follows : —


1. It is ordered, by this court decreed and declared; That every man, whether inhabitant or foreigner, free or not free, shall have liberty to come to any publick court, council or town meeting, and either by speech or writing to move any lawful, seasonable or material question, or to present any necessary motion, complaint, petition, bill or information whereof that meeting hath proper cognizance, so it be done in convenient time, due order and respective manner. (1641.)

2. Every inhabitant who is a householder, shall have free fishing and fowling in any great ponds^ bays, coves and rivers, so far as the sea ebbes and flows within the precincts of the town where they dwell, unless the freemen of the same town or the general court have otherwise appro- priated them.

Provided^ that no town shall appropriate to any particular person or persons, any great pond, containing more than ten acres of land, and that no man shall come upon another's propriety without their leave, otherwise than 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 ebbs and flows, the proprietor, or the land adjoyning, shall have propriety to the low water-mark, where the sea doth not ebbe above a hundred rods, and not more wheresover it ebbs further :

Provided, that such proprietor shall not by this liberty have power to stop or hinder the passage of boats or other vessels, in or through any sea, creeks or coves, to other men's 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 man's propriety for that end, so they trespass not upbn any man's corn or meadow. (1641,47-)

3. Every man of, or within this jurisdiction, shall have free liberty (notwithstanding any civil power) to remove both himself and his family at their pleasure out of the same, provided there be no legal impediment to the contrary. (1641.)^

In the year 1869 the State of Massachusetts relinquished all its rights to ponds of less than twenty acres' area, so that, since 1869

^ Colonial Laws of Massachusetts, p. 90.