Project Canterbury
The Compleat Angler
Or the Contemplative Man's Recreation
by Izaak Walton
A SHORT DISCOURSE BY WAY OF POST-SCRIPT
TOUCHING THE LAWES OF ANGLINGMy Good Friend,
I cannot but tender my particular thanks to you, for that you have been pleased by three Editions of your Complete Angler, freely to dispense your dear-bought Experiences 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 Physick: And as to the latter, we are to have recourse to the known Laws, ignorance whereof excuseth no man, and by their directions so square our actions, that we hurt no man, but keep close to that golden Rule, To do to all men, as we would our selves 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 Elizab. 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 a liberty to catch as big as they could, and as little as they would catch. And yet though this Apostolical Recreation be simply in it self lawful, yet no man can go upon another mans ground to fish, without his license, but that he is a Trespasser; but if a man have license 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 license; 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 license, though it be upon a Common, or adjoyning to the Kings High-way, or adjoyning to another mans ground, who gives license: But in case of a River, where one or more have libera piscaria, only it is otherwise, for there the fishes are said to be ferae naturae, and the taking of them with an Angle is not Trespasse, 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 mans own ground by grates 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 separabilis piscaria, as in Child and Greenhills Case in Trin. 15. Car. 1 in the Kings Bench, there it seemeth that the fish may be said to be his, because no man else may take them whilest 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 Calthropps 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 Trespasse 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 soyl, and that free fishing may be in the soyl 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 adjoyning to Rivers, 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 if he were a Felon: Whereas a true-bred Gentleman scorns those spider-like 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 mans ground without his license, or the license of the Law, I am a Trespasser, for which the owner may have an Action of Trespasse 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 my self, and to free my self 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 seised in fee of a several fishing, and that the Plaintiff with others endeavoured to rowe upon his water, and with the nets to catch his fish, and that for the safe-guard of his fishing he took and cut the Nets and Oars; to which plea the Plaintiff demurred; and there 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 Fore-fathers 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 lesse at their discretion.
And now with my acknowledgment of the advantage I have had both by your friendship and your book, I wish nothing that looks like an alteration in the first, nor any thing in the last, but that, 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.
FINIS
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