respect these public rights at large; and we have thus ascertained that certain young fish may not be legally taken in public rivers; which is an exception to the general rule above laid down, that all fish except royal fish may become the property of the first taker.

There are several local statutes which impose restrictions similar to the above on the taking of small and young fish, but *as we do [ *90] not purpose, in a general work of this nature, to enter into the particulars which concern all such rivers as have been made the subject of separate enactments, the reader will be referred in the note to some of the principal acts upon this subject, (m) and we shall content ourselves with giving a brief notice of the regulations which affect the Thames and Severn.

Indeed with respect to the Thames, it was observed by Lord Coke, (when speaking of the statute of Westminster the second, c. 47, concerning the preservation of salmon in particular rivers therein named), that inasmuch as the Thames was not named there, it should not be included_ in general words following afterwards in the same statute, and therefore the Thames is added by another act in "the first place."(n) Thus no fisher, garthman, nor any other, shall from henceforth put in the waters of Thames, &c., nor any other waters of the realm, any nets, &c., by which the fry or the breed of the salmons, lampreys, or any other fish, may in any wise be taken or destroyed, upon pain of the same punishments as are awarded by the statute of Westminster.(o) A subsequent statute recognises this, and confers the conservancy of the Thames and Medway upon the Mayor, or Warden of London. The limit of the jurisdiction is stated to be, from the Bridge of Staines to London, and from thence over in the same water, and in the said water of Medway, as far as it is granted to the said citizens.(p) Then, in an act for the better

servators for the Rivers Thames, Humber, Ouse, and Trent, and those in Lancashire, 17 R. 2, c. 9.

(m) 4 Ann. c. 21. An act for the increase and better preservation of salmon and other fish, in the rivers within the counties of Southampton and Wilts., and 37 G. 3, c. 95. 2 G. 2, c. 19. Oyster Fishery in the Medway, 23 G. 2, c. 26, ss. 7 and 8. River Ribble, 16 G. 3, c. 36. Pilchard Fishery within the Bay of Saint Ives, in Cornwall, 43 G. 3, c. lxi. As to the Rivers Seyne, Dort, and Plmn, in Devon, 43 G. 3, c. lxi. As to the Carmarthen Rivers, 45 G. 3, c. xxxiii.

The acts for encouraging the fisheries in the River Tweed have been already referred to, ante, p. 64. 44 G. 3, c. 45, as to the fisheries in the arm of the sea below Cumberland and Dumfries, and Wigtonshire, and the Stewatry of Kirkcudbright. 45 G. 3, c. 45, as to the salmon in rivers in Carmarthenshire. 46 G. 3, c. 19. Pembrokeshire fisheries in the harbour of Milford.

As to the taking of salmons, see 22 Ed. 4, c. 2. 11 H. 7, c. 23. (n) 2 Inst. 478.

(o) 13 R. 2, c. 19. The punishments were, the burning of the nets and engines, for the first offence; imprisonment for a quarter of the year, for the second, and for a whole year, for the third; and according to the words of the act, as their trespass increaseth, so shall their punishment.

(p) 17 R. 2, c. 9. The conservancy of the River Thames above Stains Bridge seems to be in the Crown. It was so admitted by the plaintiff in his replication, in a great case concerning the power of the water bailiff. 4 Burr. 1768, Bulbrook v. Goodere. Chitty's Fisheries, p. 262.

preservation and improvement of the fishery within the Thames, &c., it was ordained, that no one should wilfully kill, or expose to sale any spawn, fry, or brood of fish or spat of oysters, or any unsizeable, small, or unwholesome fish, or catch, kill, or *destroy any fish out of season, or expose such fish to sale, or wilfully or knowingly buy, harbour, [*91] receive, or use as food for hogs, or otherwise, any such spawn, &c. And for the preservation of the fry, &c., the Lord Mayor is authorized, upon application to him by the Conrt of Assistants, to order stakes to be driven into the river between the London markstone, above Staines Bridge and London Bridge, so as, nevertheless, that the navigation of the river be not hindered; and no person is to presume to meddle with such stakes without lawful authority.(g) The same prohibition is continued by a subsequent act, (r) and power is also given to the water bailiff to enter into the boats of fishermen, and to seize prohibited fish. Such unlawful fish are to be brought before a magistrate, and being found to be so, cither on view, or upon oath, are to be forthwith burnt. (s) With regard to the penalties for disobeying these statutes, it is provided, that the Court of the Mayor and Aldermen may make certain rules for (amongst other things) the preservation of the spawn and fry of fish, and may annex reasonable forfeitures for breaches of the same, so as the penalty do not exceed the sum of five pounds for any one offence.(t) And then it is declared by the second section, that for every offence of destroying spawn &c., such a sum of money shall be paid as is directed by the rules and ordinances above mentioned.

These acts are still in force. If the defendant would justify in trespass, his plea must shew that he took the oyster spat under circumstances which made the taking legal under the aforesaid Acts. The declaration was trespass q. c. f. The plea was, that the 1. i. q. was part of a navigable river, and that the defendant was fishing for oyster spat: it was replied that oyster spat was the spawn or young brood of oysters, and unfit for the food of man: the defendant rejoined that the public had a right to fish for oyster spat in a public river, and his pleading was held bad upon demurrer.(u)

There is also a special act for the preservation of fishing in the River Severn. A penalty is awarded against such as destroy the spawn or fry of fish, and unlawful instruments to be destroyed. Conservators of the river are appointed, and there are surveyors of the jurisdictions of the lords of leets and franchises, and of the King's rights.(v)

*The statutes to which the attention of the reader has been

above invited, seem more especially to concern fish which are [ *92]

(g) 9 Ann. c. 26, s. 2.

(8) Id. s. 5.

(r) 30 G. 2, c. 21, s. 2.

(t) 30 G. 2, c. 21, s. 1. See the stat. 33 G. 2. c. 27. (u) 12 Ad. & El. 13, Mayor of Maldon v. Woolvet. S. C. 4 Per. & D. 26. Supposing that the defendant had pleaded that he took the oyster spat to bring it to perfection. Quære?

(v) 30 Car. 2, c. 9.

taken in rivers and arms of the sea; the next which we shall notice is "An Act for the Preservation of Sea Fish." It declares, that any one who shall erect or set up any new wear along the sea shore, or in any haven, harbour, or creek, or shall willingly take, destroy or spoil any spawn, fry, or brood of any sea-fish, in any wear or other engine or devise whatsoever, shall forfeit for each offence the sum of 107, one-half to the King, and the other half to him who shall sue for the same. e.(w)

The taking prohibited by this statute has been held to mean a taking for the purpose of destruction. Debt was brought to recover a penalty of 107. for taking three gallons of oyster fry and spat, in Colchester Harbour, with a dredge. There was a second count for taking 100 bushels of spawn, and 100 bushels of brood of sea fish, to wit, oysters with a drag. The defendant was a Colchester fisherman. The brood oysters in question were young spawn, fit to be laid down on beds, to grow till they came to be oysters. It appeared, that the small fish would thrive if laid down on proper ground, and that the defendant took the brood, which he had removed, to Colchester, to be laid down there on private lands for further growth and maturity, and to make them marketable. It was objected, 1st, that the taking must be with intent to destroy; and, 2ndly, that the act applied to floating fish only. A verdict was taken for the plaintiff on the second count, with leave for the defendant to move to enter a nonsuit. The Court were of opinion, that the rule should be made absolute for entering a nonsuit, on the ground that the acts of Parliament intended to punish those only who took the young fish for the purpose of destruction. For the object was to preserve, with a view to the more beneficial nourishment and growth of that species of fish. Lord Ellenborough was strongly of opinion, and the rest of the Court inclined the same way, that the statute was confined to floating fish; but it was not necessary to decide that point, because the fisherman had taken these young oysters with the express intention of doing an act quite contrary to the offence prohibited.(x)

In 1839, a convention was entered into between her Majesty and the King of the French, defining the limits of the oyster fishing between Jersey and the neighbouring coast of France. This convention was directed to be carried out by orders in Council.(y)

*The act of 2 & 3 Vict. c. 96, which was only to endure for a [*93] specified period, has been renewed by subsequent statutes.(z) Further provisions to effectuate the convention were enacted in the year 1843, and to this latter act no limit appears to have been attached.

Mr. Chitty observes upon the statute, that it is very inaccurately framed, in not giving a jurisdiction to convict of the offence against which

(w) 3 Jac. 1, c. 12, s. 2.

(x) 2 M. & S. 568, Bridger, q. t. v. Richardson.

(y) 2 & 3 Vict. c. 96.

(z) 3 & 4 Vict. c. 69. 5 & 6 Vict. c. 63. 6 & 7 Vict. c. 79.

its provisions are directed, and that the action of debt, qui tam, is, consequently, the only remedy (a)

The kind of fish which may be taken having now been mentioned, it remains to say something of the disposal of them, when caught; and here, their marketable size, together with the mode of selling them, demand our consideration.

The policy of the law in respect of fish sold here in our own markets, has been for many centuries to exclude foreigners, as far as might be, from any participation in the profits of sales; and also to establish a free market for fish, to the exclusion of monopolies. The offence of forestalling the market was also regarded with peculiar jealousy by our ancestors, and the laws which forbid the anticipation of a free traffic are still in force against such as violate them.

Before we proceed to speak of the fish markets, and of such fish as may be sold there, we will just dispose of the two points above alluded to: first, as to restrictions upon foreigners; and, secondly, as to the offence of forestalling.

It had been forbidden, as early as the reign of Hen. 6, to buy any fresh fish of foreigners; and there was again another prohibition in the reign of Hen. 8, (except as to sturgeon, porpoise, and seal), against buying of any stranger in Flanders, Zealand, Picardy or France, or upon the sea between shore and shore. When these acts expired, others succeeded, armed with similar restrictions, till at length, by the last celebrated statute for repealing the laws relating to the Customs, and consolidating those provisions within a reasonable compass, the restriction imposed upon the importation of fish in the "Table of Prohibitions and Restrictions inwards," is as follows, and comprises the fish named underneath, that is to say, fish of foreign taking and curing, or in foreign vessels, except turbots and lobsters, stock fish, live eels, anchovies, sturgeon, botargo, and caviare.(b)

*The forestalling the fish market was considered to be an offence in very old times. It was declared, that no herring [*94] should be bought or sold in the sea, till the fishers were come up into the haven with their herrings, and that the cable of the ship should be drawn to the land. (c) However, by 5 Eliz. c. 5, s. 4, this provision seems to be somewhat qualified. It is enacted thereby, that no purveyor or other person shall, by virtue of any commission or otherwise, take any herring or sea fish, otherwise than by agreement of the owners or sellers of the same fish, upon pain of forfeiting double the value of the herrings so taken. And any person, being the owner or seller of any such fish, may withstand such demands, or the demand of toll, without the goodwill of such owner or seller as aforesaid. Another enactment appointed certain great officers of the realm to take order for the selling and buying of (a) Chitty on the Game Laws and Fisheries, 2nd ed. p. 251. (b) 6 G. 4, c. 107, s. 52.

(e) 31 E. 3, st. 2, c. 1.

stock fish of St. Botulf, and salmon of Berwick, and fish of Bristuit, so that there might be a better market for the King and his people.(d)

Independently, however, of these statutes, the offence in question is punishable at common law, by fine and imprisonment. (e)

Having mentioned the restrictions which are imposed upon fish, which, but for such prohibitions, would be brought into this country by foreigners, we come to speak of our markets, and of one or two incidental matters. A very general abridgment, however, must suffice for the consideration of this topic, by reason of the numerous provisions which the Legislature has ordained on the subject of sales of fish.

Statutes have recently been passed at different times to regulate the market for this commodity, as, for instance, those relating to the buying and selling of herrings at Yarmouth Fair;(f) but the first remarkable act upon this point, was that for making Billingsgate a free market for

the sale of fish.

Thus, by stat. 1, of that statute,(g) any person may buy or sell any sort of fish in that market, without any disturbance or molestation whatThe second section exempts fishermen from paying toll there, except according to a certain rate specified in sections 3, 4, 5, 6, and 7.

soever.

*By sect. 8, fish bought in the market might be sold in any [*95] other, so that none except fishmongers should be permitted to sell in public or fixed shops or houses, being sound or wholesome fish. By sect. 10, any person taking or demanding any toll or sample or any other imposition, or set price, of any seafish whatsoever of English catching, shall forfeit 107., one-half to the King, and the other to him who shall sue for the same.

By sect. 11, the practice among fishmongers of buying up all or the greatest part of the fish, and then dividing them amongst each other by lot, by which means they were enabled to fix their own rates, is forbidden. The 15th section saves the ancient duty on cod and ling to his Majesty, for the service of his household, payable by such merchants as trade to Westmoney and Iseland.

However, notwithstanding this statute, it seems that Billingsgate was considered a free market from time immemorial. A poor woman who cried fish was indicted, at the instance of the Fishmonger's Company, for forestalling, by buying fish at Billingsgate. And Holt, C. J., directed an acquittal, because there was time out of mind a market at that place;

(d) Id. c. 3. See also Id. st. 3, c. 1, that doggers and lode ships, of Blackney Haven, shall discharge their fish there.

(e) See 1 Ro. Rep. 11, Rex v. Davies. Sir Wm. Jones, 310, R. v. Pen. (ƒ). 31 E. 3, st. 2, c. 2. 35 E. 3. An ordinance of Herring.

(g) 10 & 11 W. 3, c. 24.