Rethinking the History of the Seventeenth-Century Colonial Ordinance: A Reinterpretation of an Ancient Statute

Authors

Mark Cheung

Abstract

In 1648, the Massachusetts colonial government ordered into print The Book of the General Laws and Libertyes that included an ordinance, commonly known as the Colonial Ordinance. The Ordinance extended private seashore property rights to the low water mark but to no more than one hundred rods beyond the high-water mark. The 1648 Ordinance replaced an earlier version enacted in the Body of Liberties of 1641. While both versions of the Ordinance enumerated public rights of fishing, fowling, and navigation in the foreshore, the 1648 Ordinance provided the critical language extending the private boundary to the low water mark. Prior to the adoption of the 1641 Ordinance, the English common law rule governed the colony's seashore; this limited seashore private property to the high-water mark. In essence, the Massachusetts colonists would have abrogated the English common law by conveying title of the seashore to the individual riparian property owners. Thus, this alleged colonial alteration of the English common law is the focus of the legal controversy. In operation and application, the Ordinance has impaired the public's rights in the seashore. Although the reserved right to fish, fowl, and navigate protected the public needs in the seventeenth century, the contemporary public uses exerted on the foreshore increase the need to reconsider the Ordinance's long-standing interpretation. The Ordinance continues to operate as common law in Massachusetts and Maine with full force. The courts of both states have consistently upheld the Ordinance's low water mark boundary rule to give riparian and littoral proprietors title to the foreshore. At the same time, the two states have retained the jus publicum, a concept recognized in both the English common law and the Ordinance. This subjects the Massachusetts and Maine foreshore to a superior public right (at the least) to fishing, fowling, and navigation, which acts to qualify and limit the owners' fee interest. Although the Massachusetts and Maine Supreme Judicial Courts have discussed the extent of the public's rights under the common law, they have not deviated far from the limited purposes of fishing, fowling, and navigation. These courts tend to protect the proprietors' alleged property interest in the foreshore. While the Ordinance clearly provides protective language for limited jus publicum rights, the Ordinance has operated to convert the intertidal zone into virtually unqualified private property.

First Page

115

Recommended Citation

Mark Cheung, Rethinking the History of the Seventeenth-Century Colonial Ordinance: A Reinterpretation of an Ancient Statute, 42 Me. L. Rev. 115 (1990).
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol42/iss1/7