A SHORT DISCOURSE, BY WAY OF POSTSCRIPT, TOUCHING THE LAWS OF ANGLING.* MY GOOD FRIEND, you have I CANNOT but tender my particular thanks to you, for that been pleased, by three editions of your Complete Angler, freely to dispense your dear-bought experience to all the lovers of that art; and have thereby so excellently vindicated the legality thereof, as to divine approbation, that if I should go about to say more in that behalf, it indeed were to light a candle to the sun. But since all pleasures, though never so innocent in themselves, lose that stamp, when they are either pursued with inordinate affections, or to the prejudice of another, therefore, as to the former, every man ought to endeavour, through a serious consideration of the vanity of worldly contentments, to moderate his affections thereunto, whereby they may be made of excellent use, as some poisons allayed are in physic; and, as to the latter, we are to have recourse to the known laws, ignorance whereof excuseth no man, and therefore, by their directions, so to square our actions, that we hurt no man, but keep close to that golden rule, "To do to all men as we would ourselves be done unto." Now, concerning the art of angling, we may conclude, sir, that as You have proved it to be of great antiquity, so I find it favoured by the laws of this kingdom; for where provision is made by our statutes, primo Elizabeth, cap. 17, against taking fish by nets that be not of such and such a 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 a 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 This Discourse was first published with, and was printed at the end of, the third edition of Walton's book: but, as the subject matter of it relates as well to Cotton's part as the other, it was thought proper to transpose it. 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 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 liberia piscaria only, it is otherwise; for there the fishes are said to be fera 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. Í, 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 ancient 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 agreeth with Sir William Calthorp'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 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 on him 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. 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, 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. 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. 1. Cro. Car. 228. A melancholy truth so universally acknowledged as to have given occasion to the proverb, "Homo hominí 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 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. "The Mr Locke illustrates this doctrine by an elegant instance: 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 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 Pacis 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 fere 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; 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 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 pro hibited, 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. |