size there set down, yet those law-makers had so much respect to anglers, as to except them, and leave them at liberty to catch as big as they could, and as little as they would catch. And yet, though this Apostolical recreation be simply in itself lawful, yet no man can go upon another man's ground to fish without his licence, but that he is a trespasser. But if a man have licence to enter into a close or ground for such a space of time, there, though he practise angling all that time, he is not a trespasser, because his fishing is no abuse of his licence: but this is to be understood of running streams, and not of ponds or standing pools; for in case of a pond or standing pool, the owner thereof hath a property in the fish, and they are so far said to be his, that he may have trespass for the fish against any one that shall take them without his licence, though it be upon a common, or adjoining to the king's highway, or adjoining to another man's ground who gives licence. But in case of a river, where one or more have libera piscaria only, it is otherwise; for there the fishes are said to be feræ natura; and the taking of them with an angle is not trespass, for that no man is said to have a property in them till he have caught them; and then it is a trespass for any to take them from him. But this is not to be understood of fishes confined to a man's own ground by gates or otherwise, so that they cannot pass away but may be taken out or put in at pleasure; for in that case the party hath a property in them, as in the case of a standing pool. But where any one hath separalis piscaria, as in Child and Greenhill's Case in Trin. 15. Car. 1.1 in the King's Bench, there it seemeth that the fish may be said to be his, because no man else may take them whilst they are within his several fishing. Therefore what is meant by a several fishing is necessary to be considered. And though the difference between a free fishing and a several fishing be often treated of in the antient books of the law; and some opinions will have the difference to be great, and others small, or nothing at all, yet the certainest definition of a several fishing is, Where one hath the royalty, and 'owneth the ground on each side of the water';' which (2) Mich. 17 E. 4, 6. and Pasch. 18 E. 4, 4. (1) 3d Cro. 553. agreeth with Sir William Calthrop's case, where an action was brought by him against another for fishing in his several fishing, &c.; to which the defendant pleaded, that the place wherein the trespass was supposed to be done contained ten perches of land in length, and twenty perches in breadth, which was his own freehold at the time when the trespass was supposed to be done, and that he fished there as was lawful for him to do; and this was adjudged a good plea by the whole court: and upon argument in that very case, it was agreed, That no man could have a several fishing but in his own soil, and that free fishing may be in the soil of another man, which was all agreed unto by Littleton, our famous English Lawyer. So that from all this may be drawn this short conclusion, that if the angler take care that he offend not with his feet, there is no great danger of his hands. But there are some covetous rigid persons, whose souls hold no sympathy with those of the innocent anglers, having either got to be lords of royalties, or owners of lands adjoining to rivers; and these do, by some apted clownish nature and education for the purpose, insult and domineer over the innocent angler, beating him, breaking his rod, or at least taking it from him, and sometimes imprisoning his person as if he were a felon. Whereas a true-bred gentleman scorns those spider-like 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 (1) There is no reading this passage without figuring to one's imagination the poor, humble, patient angler, standing still and defenceless, while the merciless lord of the manor is laying him on with a stick, perhaps the butt of his own rod, or a worse weapon. I will not dispute with the author, whether the meekness and submission of the poor fisher upon this occasion are very becoming or not; but this sort of passive valour is rather to be admired than imitated. Yet has the angler his remedy, as the reader will see a few lines below. 1 continue there after warning to depart by the owner, or his servant thereunto authorised, 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 there 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 fore-fathers 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 Things must be recompenst with things, buffets with blowes, (3) Mich. Car. 1. Cro. Car. 228. (4) A melancholy truth so universally acknowledged as to have given occasion to the proverb, Homo homini lupus. Vide Erasmi Adagia. I have had both 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. 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 risque 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 possession 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. Mr. Locke illustrates this doctrine by an elegant instance: "The water running in the fountain," says he, "is every. one'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 chace, 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 on his right to those which he had caught. Rudens, Act 4, Scene 3. And both the Jewish and Roman lawyers assert that wild beasts and fish belong only to those who take them1. 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 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 controu 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 in the margin. And it is worth noting, that Laws made to prohibit the taking of creatures feræ 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, (1) Seld. De Jure Nat. et Cap. 4. Instit. Lib. II. Tit. 1. Dominio. However, this is to there is no law to forbid it. Cap. 2. § 5. Gent. jurta Discip. Ebræor. Lib. IV. Gu (2) Puffendorf De Jure Nat. et Gent. Lib. IV. Cap. 6. § 6. delin De Jure novissimo, Lib. I. 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, savs the author, men betaking 64 themselves to the pleasure of the field, should delight in a continued "course of sports, and so neglect the necessary provision and mainte 66 nance of their families." |