perhaps, allow of. Puffendorf de Jure Nat. et Gent. Lib. IV. Cap. 6. §`6.1 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; 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 Kennet, called their common water, under a grant from John of Gaunt, who, we may suppose, derived it from the Crown3: but in most instances fish belong to the owner of the soil. These principles being recognised, 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. (1) See also Arnold. Vinn. ad sect. 13. De Rer. Divis. and Ziegler on Grotius, Lib. II. Cap. II. § 5. · (2) 7 Coke 16. The Case of Swans. (3) 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. 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 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 given 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 intitled 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 ferce 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 Croke'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 Croke 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. Litt. 122. a. And further, 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 Cratchrode 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 feræ 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 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. Litt. 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. 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 frau"dulent taking and carrying away, by any man or woman, "of the mere personal goods of another; neither from the 66 person nor by night in the house of the owner," 3d Inst. (1) I find in Dugd. Warw. 1142, in margine, an account of the following grant, which for its singularity deserves notice. · 31 Hen. III. 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 at Aminton, with one net, called a fleu-net, and a tramil and sayna': for which liberty he gave him six marks of silver.” 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 trunk, 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 further conclude that the word ponds, in the above passage, must mean only stew-ponds, 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'. (1) [See also the Title FISH and FISHERIES in Comyn's Digest; and An Essay on Aquatic Rights, by Henry Schultes, 8vo. Lond. 1811. About 1787 were published An Essay on the Right of Angling in the River Thames and in all other public navigable Rivers: in which the public Right to Angle in all such Rivers is stated and proved: and A Letter to a Proprietor of a Fishery in the River Thames; in which 46 ́an Attempt is made to shew in whom the Right of fishing in public Streams now. resides; to which is added An Appendix of adjudged Cases, and other Documents:" both printed at Reading in Berkshire, in octavo.] 1 No. I. [Referred to from the end of PART I.] A Synopsis of AQUATIC INSECTS covering themselves with cases. Water insects that cover themselves with cases, have a case either Strait, having either And their cases are either Immoveable, being affixed Round, with little threads on the sides; or Flat, and more compressed, without little threads. 'phryganea," to stones; and have a body either Or moveable, portable and migratory, called "; vulgò, "a cad-case," which is furnished with little threads, as well on the back as the sides, by means whereof they adhere firmly to their cases, excepting only their head and feet; with three small protuberances projecting beyond the feet, which they can erect or put forth at pleasure, to hinder their cases from pressing down on their heads as they creep, and troubling them. The greater being two inches long. ag Straws : those ei ther .. Orno straws fine sand; Parallel, The lesser and most common, Or transverse and shorter, with sometimes Or crooked, or rather resembling a horn: for the cases of these are less; All these produce flies with large wings, like those of butterflies. The nymphæ of these (which are to spring from those small worms, and which like tortoises carry their houses about with them, within which they turn into nymphæ, from which nymphæ afterwards spring little flies,) Dr. Swammerdam refers to his fourth order of transmutations, whereas, in my opinion, they belong to the third, because they change their skin twice. Another translation of this Synopsis, too copious to be here inserted, together with many curious particulars concerning Aquatic Insects, is to be found in the Natural History of Northamptonshire, by the Rev. John Morton, chap. 7. |