INTRODUCTION xcix 



right be one of pleasure, the specified beneficiary may alone exercise it. 

 In the argument of the United States it is stated that "by the municipal 

 law common to the two countries, it a fishery right is one of profit and 

 not of pleasure, it carries with it the right of exercise by his servants. 

 If of pleasure alone, it can be exercised only by the master." '■ 



For this position, the Duchess of Norfolk's Case, decided in the 

 twelfth year of the reign of Henry VII, is cited, as is also the very 

 authoritative case of Wickham v. Hawker, following the Duchess case, 

 and decided by Baron Parke in the year 1840.^ 



The law common to the two countries would seem to favor the 

 American contention, if the liberty to fish was for profit, not for pleasure, 

 and the fishermen obtained property in the fish. While admitting that 

 the master might fish by his servant, British counsel insisted that the 

 servant should be chosen from the same class; namely, from inhabitants 

 of the United States. We must, therefore, revert to the original ques- 



' U. S. Argument, p. 90. 



> "The authorities upon this subject talce this distinction: that if there be a personal 

 Ucense of pleasure, it extends only to the individual, and it cannot be exercised with or by ser- 

 vants; but if there is a license of profil, and not for pleasure, it may. This will be found so 

 laid down in the case of The Duchess of Norfolk v. Wiseman, which appears to be the leading 

 case on the subject. 



"The Duchess of Norfolk's case was this: — The Duchess brought an action for chasing 

 in her park, against Wiseman and others. They pleaded that the Duchess Ucensed the Earl 

 of Suffolk to hunt at his pleasure in the park, and they showed, at the time of the trespass, the 

 Earl came into the park, and the defendants with him, to hunt; and it was moved that the 

 plea was bad, for by the license given to the Earl, which was only for pleasure and extended only 

 to him, and no other could justify by that license; for if I give Ucense to a man to eat with me, 

 none of his servants can justify the entry into my house by reason of that license, for it is a 

 license of pleasure; and so if I give leave to another to go at his pleasure into my orchard, none 

 of his servants can justify by that Ucense: but if it is a license of profit, and not of pleasure, it 

 is otherwise; for if one give leave to me to carry over his land with my cart, my servants can 

 justify by his license; and so if one gives me license to have a tree in his wood, my servants may 

 justify the cutting of the wood, and the entry, for I shaU have profit by that: and so was the 

 opinion of the Court: and then the defendants said that the Duchess gave Ucense to the Earl 

 to hunt, kiU, and take with him the deer at^his pleasure, and then they said that the Earl came 

 there and they with him, and by his command, hunted and took away; and that was held 

 good." 



The learned Baron then says: 



"This case is cited with others, in Manwood, c. 18, s. 3, p. 107, and the result is, that, if 

 there be a personal license to an individual to hunt at his pleasure, he cannot take away to his 

 own use the game killed, or go with servants, stiU less send servants to kUl for him, or assign 

 his Ucense to another: but if the person is meant to have a property in the game which he kills, 

 it is otherwise; and therefore if the license is to hunt, kUl and carry away, he may hunt with 

 servants or by servants. And e converse, if there be a Ucense for him and his servants to hunt, 

 'by these words, for him and his servants, shaU be understood a Ucense of profit; for these 

 words imply that the grantee hath a property in the thing hunted, because that by such a Ucense 

 the grantee may justify for his servant to hunt, which is more than a license of pleasure.' " 



The learned judge then held, that the liberties to hawk, hunt, fish, and fowl granted to 

 one, his heirs and assigns "are interests, or profits i. prendre, and may be exercised by servants 

 in the absence of the master; and further, we think that the addition ' with servants or other- 

 wise' does not limit the privilege, and exclude the exercise of it by servants. 'Words tending to 

 enlarge are not (unless the intention is very plain) to be taken to restrain.'" — Wickham v. 

 Hawker, 7 Meeson and Welsby's Reports, 63, at 77-79. (Oral Argument, Vol. I, p. 230.) 



