if he were a felon. Whereas a true bred gentleman scorns those spiderlike attempts, and will rather refresh a civil stranger at his table, than warn him from coming on his ground upon so innocent an occasion. It would therefore be considered how far such furious drivers are warranted by the law, and what the angler may in case of such violence, do in defence of himself. If I come upon another man's ground without his licence, or the licence of the law, I am a trespasser, for which the owner may have an action of trespass against me: and if I continue there after warning to depart by the owner, or his servant thereunto authorized, the owner, or his servant by his command, may put me off by force, but not beat me but in case of resistance by me, for then I, by resisting, make the assault; but if he beat me, I not resisting, in that case he makes the assault, and I may beat him in defence of myself, and to free myself from his violence. * And in case I shall leave my rod behind in his ground, he may take it damage feasant, but he can neither take it from my person by force, nor break it, but he is a trespasser to me; which seems clear by the case of Reynell and Champernoon,† where Reynell brought an action of trespass against Champernoon for taking and cutting his nets. The defendant justified, for that he was seized in fee of a several fishing; and that the plaintiff, with others, endeavoured to row upon his water, and with the nets to catch his fish; and that, for the safeguard of his fishing, he took and cut the nets and oars to which plea the plaintiff demurred, and then it was adjudged by the whole court, that he could not by such colour cut the nets and oars; and judgment was thereupon given for the plaintiff. Doubtless our forefathers well considered, that man to man was a wolf, and therefore made good laws to keep us from devouring one another; and, amongst the rest, a very good statute was made in the three-and-fortieth year of Queen Elizabeth, whereby it is provided, that in personal actions in the courts at Westminster, (being not for land or battery,) when it shall appear to the judges (and be so by them signified) that the debt or damages to be recovered amount not to the sum of forty shillings, or above, the said judges shall award to the plaintiff no more costs than damages, but less, at their discretion. And now, with my acknowledgment of the advantage I have had, hoth by your friendship and your book, I wish nothing may ever be that looks like an alteration in the first, nor any thing in the last, unless, by reason of the useful pleasure of it, you had called it the Arcadia of Angling, for it deserves that title; and I would deserve the continuance of your friendship. * Agreeable to the rule contained in this barbarous distich: Res dare pro rebus, pro verbis verba solemus, Pro bufis bufas, pro trufis reddere trufas, Things must be recompenst with things, buffets with blowes, + Mich. 7. Car. I. Cro. Car. 228. A melancholy truth so universally acknowledged as to have given occasion to the proverb, "Homo homini lupus." Vide Erasmi Adagia. CONTINUATION OF THE DISCOURSE BY SIR JOHN HAWKINS. Since the writing the foregoing Discourse, the laws of this country, relative to fish and fishing, have undergone such alterations as would alone justify an addition to it: but as it has, of late, been objected to all laws that assign an exclusive right in any of the creatures of God to particular ranks or orders of men, that they savour of barbarism, and are calculated to serve the purposes of tyranny and ambition, it was thought necessary to trace the matter farther back, and shew from whence laws of this kind derive their force. And though it is not imagined that speculative arguments will operate upon men of licentious principles, yet, as the general tenor of this work supposes the angler to be endued with reason, and under the dominion of conscience, it may not be amiss to state the obligation he is under to an observance of such laws, and to point out to him the several instances where he cannot pursue his recreation without the risk of his quiet. Property is universally allowed to be founded on occupancy, the very notion of which implies industry, or some act in the occupant of which no stranger has a right to avail himself: he that first took pos session of an uncultivated tract of land, provided it was no more than necessary for the subsistence of himself and his family, became thereby the proprietor of such land. "The Mr Locke illustrates this doctrine by an elegant instance: water running in the fountain," says he, "is every ore's, but that in the pitcher is his who draws it." On Government, book ii. chap. v. sect 29. And, if this reasoning be admitted in the case of land, which is ranked among the immoveable objects of property, it is much stronger in favour of things moveable, the right of which is at once claimed, and fortified by an actual possession and separation from that common mass in which they were originally supposed to exist. But, notwithstanding the innumerable appropriations which, in the present civilized state of the world, appear to have been made, there are many things which may yet be said to be in common, and in a state of natural liberty; in this class we may rank creatures feræ naturâ, beasts of chase, many kinds of fowl, and all fish. The fisherman in Plautus admits, that none of the fish were his while they remained in their proper element, and insists only in his right to those which he had caught. Rudens, act iv. scene 3. And both the Jewish and Roman lawyers assert, that wild beasts and fish belong only to those who take them.* This notion has led many persons to imagine that, even now, there subsists a general community of these creatures; and that, at this day, every one has a right to take them to his own use, wherever he finds them. Not to insist, that if all men promiscuously were permitted the exercise of this right, it would be of very little benefit to any, it *Seld. De Jure Nat. et Gent. juxta Discip. Ebræor. lib. iv. cap. 4 Instit. lib. ii. tit. i. "De rerum divisione et acquirendo earum Dominio." However, this is to be understood only in cases wherein there is no law to forbid it. Grot. De Jure Belli ac Pacís, lib. ii, cap. 2. sect. 5. may suffice to say, that there are few civilized countries that have not found it necessary, either for promoting some public good, or averting some public mischief, to control it by express prohibitions; and how far such prohibitions are deemed lawful and binding on the consciences of those on whom they are imposed, will appear by consulting the authorities on the margin. And it is worth noting, that. laws made to prohibit the taking of creatures fera naturâ, by persons unqualified, do not take from a man any thing which is his own; but they barely forbid the use of certain methods of acquisition, which the law of nature might, perhaps, allow of. Puffendorf, de Jure Nat. et Gent. lib. iv. cap. 6. sec. 6.+ Agreeable to the principles here laid down, we find that the laws of most countries, at least of this, have assigned the property in the creatures in question to particular persons. Thus to royal fish, which are Whales and Sturgeons, the king is entitled by his prerogative; t and the property of fish in rivers, or, at least, a right to take them, is, in many places, given to corporations; as, with us, the fishery of the river Thames is granted to the city of London; and the townsmen of Hungerford, in Berkshire, claim a right of fishing in that part of the river Kénnet, called their common water, under a grant from John of Gaunt, who, we may suppose, derived it from the crown: most instances fish belong to the owner of the soil. $ but in These principles being recognized, and property once settled, it is easy to see the necessity and the justice of fencing it with positive laws. Accordingly, in this country, judicial determinations have, from time to time, been made, ascertaining the rights of persons to fisheries; and these, together with the several statutes enacted to prevent the destruction of fish, compose the body of laws relating to fish and fishing the former, by way of supplement to the foregoing Discourse, are here laid down, and the latter will be referred to. The property which the common law gives in river fish uncaught, is of that kind which is called special, or qualified property which see defined by Lord Coke, in his Reports, part vii. fo. 17, b. and is derived out of the right to the place or soil where such fish live: so that supposing them, at any given instant, to belong to one person, whenever they resort to the soil or water of another, they become his property, and so in infinitum. And to prove that this notion of a fluctuating or transitory property is what the law allows, we need only apply it to the case of the water * Puffendorf, De jure Nat. et Gent. lib. iv. cap. 6. sect. 6. Gudelin, De Jure novissimo, lib. ii. cap. 2. D. lib. xli. tit. 2. "De acquirend. vel. admittend. Possess." See also Garcilasso de la Vega, Comm. Reg. lib. vi. cap. 6; where it is said, that in Peru, hunting, by the inferior sort, is prohibited, lest, says the author, "men betaking themselves to the pleasure of the field, should delight in a continued course of sports, and so neglect the necessary provision and maintenance of their families." + See also Arnold. Vinn. ad sect. 13. De Rer. Divis. and Ziegler on Grotius, lib. ii. cap. ii. sect. 5. 7 Coke, 16. The case of swans. The townsmen of Hungerford have a horn, holding about a quart, the inscription whereon affirms it to have been given by John of Gaunt, with the Rial-fishing, (so it is therein expressed,) in a certain part of the river. Gibs. Camden, 166. in a river; which is so constantly passing from the soil of one to another, that no man can, in strictness, be said to go twice to the same river; and yet, by a grant of any quantity of land covered with water, which is the only legal designation of a river, not only a certain tract of the river, but the fish contained in it, shall pass. See Coke on Littleton, 4. a. In the Register, a very ancient law book, we find two writs relating to fish the one, for the unlawful taking of fish in a several fishery, and the other, in a free fishery. And of these in their order. A several fishery is that which a man is entitled to in respect of his being the owner of the soil, and is what no one can have in the land of another, unless by special grant or prescription: and whoever shall fish in such a several fishery, without a licence, is liable to an action of trespass, in which the plaintiff may well demand "wherefore, in the plaintiff's several fishery, the defendant was fishing, and his fishes took," &c. for though the fish be feræ naturâ, yet being taken in the water of the owner of the river, they are said to be his fish, without saying in his soil, or water, 3d Coke's Reports, 553. Child and Greenhill's case: but he must set forth the nature and number of the fish taken, 5 Coke's Reports, 35. Playter's case, and 3d Coke, 18. A free fishery is a right to take fish in the water and soil of another, and is derived out of a several fishery. If one seized of a river, grants, without including the soil, a several fishery, or, which amounts to no more than that, his water, a right of fishing passes, and nothing else. Plowden's Commentary, 154, b. Coke on Littleton, 4. b. And the word several, in such case, is synonymous with sole, and that in so strict a sense, that by such a grant not only strangers, but even the owner of the soil is excluded from fishing there. Co. Lit. 122, a. And farther, where one prescribes to have a several fishery in a water, which prescription always supposes a grant precedent, the owner of the soil, as much as a stranger, is liable to an action if he fishes there: 2 Roll. 258, the case of Foriston and Catchrode in the Common Pleas. Mich. 29 and 30 Eliz. But here the writ shall vary from that in the case of a several fishery, and demand "wherefore the defendant, in the free fishery of the plaintiff, at N., without the licence and consent of the plaintiff, was fishing," &c. expressing the nature and number of the fish taken but because the soil does not pass by such a grant, and the fish are fera naturâ, he shall not call them his fish, as in the former instance. See the case of Child and Greenhill, above cited. The doctrine deducible from these principles is, that that which, united with the soil, would be a several fishery, when severed by grant, though the grant be of a several, or sole, and not of a free fishery, in terminis, becomes a free fishery. There is yet another case that I shall mention, which will give the intelligent reader a clear notion of this matter. A man grants to one, or more, a liberty of fishing:* here nothing but a naked right to * I find in Dudg. Warw. 1142, in margine, an account of the following grant, which for its singularity deserves notice. 31 Hen. 111. "Thomas de Clinton, of Aminton, levied a fine to Phil. Marmion, that he and his heirs, his wife, and their heirs, might, when they came to Tamworth, or to their castle at Middleton, fish with a boat any where in his water of Aminton, with one net, called a fleu-net, and a tramil and sayna; for which liberty he gave him six marks of silver." fish passes, and the remedy against a trespasser is not severed from the soil; the owner whereof, and not the grantee, may maintain an action, and may also fish himself. Co. Lit. 122 a. As common of fishing may be appendant to land, so also there may be a joint tenancy, or a tenancy in common of a fishery. 1 Inst. 186 b. Having thus shewn in what cases the angler, in the pursuit of his recreation, may become a trespasser, let us next consider how far he is, by taking fish, in danger of committing larceny; for that the taking fish out of a pond, without the consent of the owner, falls within my Lord Coke's definition of that crime, no one can doubt that reads it. His words are, "Larceny is, the felonious and fraudulent taking and carrying away, by any man or woman, of the mere personal goods of another; neither from the person, nor by night in the house of the owner. "3d. Inst. 107. And a little after, 109, he expressly says, "Larceny may be committed of fishes in a pond." Now, though to make the taking any personal thing felonious, reason and the law require that the party should do it animo furandi, (see Bracton, lib. 3. fol. 150. Fleta lib. 1. cap. 36, which we will suppose no angler to be possessed with,) yet, whether by the word pond, we are to understand ponds at large, is perhaps of some consequence for him to know. It is a rule in law, that personal goods, and things severed from the freehold, shall go to the executors, and not to the heir.-Wentworth's Office of an Executor, chap. 5. And so shall fish in a tank, or the like.-Ibid. But Lord Coke, in his Commentary on Littleton, fol. 8, tells us, that fish in a pond shall go with the inheritance, "Because," says he, " they were at their liberty, and could not be gotten without industry, as by nets or engines." From hence we may conclude, that fish in ponds cannot be said to be mere personal goods; and then it follows as a consequence, that of such fish larceny cannot be committed and we may farther conclude, that the word ponds, in the above passage, must mean only stewponds, cisterns, or other such small receptacles of fish. : Many wholesome laws have from time to time been enacted, to prevent the destruction of fish; but they are so numerous, that I must refer the reader to the Statutes at large, or to the Abridgment published by a late worthy and learned friend of mine, John Cay, Esq. deceased. He may also see, a Discourse on the Laws concerning Angling, and for Preservation of Fish, at the end of the Angler's Sure Guide, written, as it seems, by the author of that book, with the learning and accuracy of an able lawyer. U |