420 FORBIDDEN FISH— XETTIXG— F/F.47?7^ 



vivaria, etc., universally free; thus "in the Sea of Tiberias 

 fishing with hook and net was everywhere allowed " (Krauss, 

 Talmud ArchdoL, ii. 146, with references to Bab. Kam. 81^. 

 Cf. the Roman Digest which lays down that " omnia animalia 

 quce terra, mart, ccelo capiimtur, id est ferce besiice, et valuer es, et 

 pisces, capientimn fiimi ." 1 



Mainzer, however, severely restricts this freedom of fishing. 2 

 " Incidentally information is given of a modification of the 

 regulation. For instance, if any one set up a net on a shore 

 or a bank, others were not allowed to fish in proximity to it. 

 They were only allowed to cast their nets at a distance of one 

 parasang away." 



This sentence apparently implies that the first comer to 

 some position on land acquired a legal temporary possession 

 of fishing for the distance of a parasang. This regulation 

 (extracted, apparently, from the reference 5, i.e. to Baba 

 Bathra, 21 b) came into being (according to Rabbi Gershom, 

 as cited by Mainzer), " because the fisherman scatters bait in 

 the water which attracts the fish to his net. But if another 

 person sets up his net near by, the fish at the sight of the fresh 

 bait would swim to the other spot, and so the first fisherman 

 would suffer loss." 



The first (comer), adds Mainzer, " by the setting up of his 

 net has acquired a priority claim over all the fish of a definite 

 area." 



This theory of possession appears to me quite untenable, 

 for two reasons. 



The first, because no words, judgment, or even obiter 

 dictum contained in the reference given, support it. A Rabbi's 

 pious opinion does not suffice, as Baba Bathra, 21'', makes 

 clear. 3 The passage runs : 



" Rabbi Hona said, ' If a man who lives in a passage has set 

 up a mill, and another in the same passage comes and likewise 

 sets up one, the former has the right to prevent him, for he can 

 say to him, Thou cuttest off my means of livelihood.'" In 



' Justinian, Corpus Juris Civilis, vol. I., Digest, 41, 1, i. 



" Op. cit., supra, p. 405. 



' Goldschmidt's Der Babylonische Talmud, vol. VI. p. 1005. 



