THE LAWS OF ANGLING. 303 



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 con- 

 sulting the authorities on the margin.* And it is worth noting, that 

 laws made to prohibit the taking of creatures ferce naturd, 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.f 



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 ; f 

 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 



* Puftendorf, 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 Garcila?so de la Vega, Coram. Keg. 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." 



t See also Arnold. Vinu. ad sect 13. De Ker. Divis. and Ziegler on 

 Grotius, lib. ii. cap. ii. sect. 5. 



J 7 Coke, 16. The case of swans. 



The townsmen of Hungerfurd 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. 



