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 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

(1) A melancholy truth so universally acknowledged as to have given occasion to the proverb, Homo homini lupus. Vide Erasmi Adagia.

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 law

yers assert that wild beasts and fish belong only to those who take them.1

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 controul 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, perhaps, allow of. Puffendorf de Jure Nat. et Gent. Lib. IV. Cap. 6. § 6.3

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

(1) 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 Pacis, Lib. II. Cap. 2. § 5.

(2) Puffendorf De Jure Nat. et Gent. Lib. IV. Cap. 6. § 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."

(3) See also Arnold Vinn. ad sect. 13. De Rer, Divis. and Ziegler on Grotius, Lib. II. Cap. II. § 5.

Sturgeons, the king is entitled by his prerogative;1 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 Crown: 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 riverfish 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 in a river; which is so

(1) 7 Coke 16. The Case of Swans.

(2) 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.

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 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. Litt. 122. a. And further, where one prescribes to have a several fish