of the peace, forfeit and pay, over and above the value of the fish taken or destroyed (if any), such sum of money not exceeding £5 as to the justice may seem meet: Provided that nothing hereinbefore contained shall extend to any persons angling between the beginning of the last hour before sunrise and the expiration of the first hour after sunset; but whosoever shall, by angling between the beginning of the last hour before sunrise. and the expiration of the first hour after sunset, unlawfully take or destroy, or attempt to take or destroy, any fish in any such water as first mentioned, shall, on conviction before a justice of the peace, forfeit or pay any sum not exceeding £5, and if in any such water as last mentioned, he shall, on like conviction, forfeit and pay any sum not exceeding £2 as to the justice may seem meet; and if the boundary of any parish, township, or vill shall happen to be in or by the side of any such water as is in this section before mentioned, it shall be sufficient to prove that the offence was committed either in the parish, township, or vill named in the indictment or information, or in any parish, township, or vill adjoining thereto (n).

The word “unlawfully in this section means without any claim of right or title in the offender, such as can exist in law (0): and if such claim appears to the justices to be set up bonâ fide, and with some show of reason, their jurisdiction in the case is ousted (p); and a certiorari may be obtained to quash any convic

cray

8 B. & S. 336. As to what is sufficient evidence of a private fishery, see Greenback v. Sanderson, 49 J. P. 40. In the case of tidal waters sixty years' possession is sufficient against the Crown, but a much less time should suffice if the evidence is such that the magistrates can presume a legal origin: Reg. V. Downing, 11 C. C. C. 580. A person who takes or attempts to take fish" in a private fishery is guilty of an offence under this section: Caygill v Thwaite, 49 J. P. 616; 33 W. R. 581. So, too, is a person who takes winkles from the waters of a private tidal fishery Leavett v. Clarke, [1915] 3 K. B. 9; 84 L. J. K. B. 2157. The lessor of land who has not expressly reserved the right of fishing cannot prosecute: Jones v. Davies, 86 L. T. 447; 66 J. P. 439; 20 Cox, C. C. 184; 18 T. L. R. 367. Fish taken at sea are in the possession of the owner of the smack by which they are taken as soon as they are taken, and are consequently the subject of larceny. The skipper of a smack put into port sold the fish he had taken and appropriated the property. Held, he was properly convicted of larceny: R. v. Mallinson, 86 L. T. 600; 66 J. P. 503; 20 Cox, C. C. 204.

(n) Section 24. The part of the shore between high and low water mark is within the adjoining county; and the justices of the county have jurisdiction over offences committed there, whether the land is covered or not with water: Embleton v. Brown, 30 L. T. (N.s.) M. C. 1; 3 E. & E. 234; Reg. v. Musson, 8 E. & B. 900; and see ante, Chap. 1., p. 22.

(0) Hudson v. McRae, 5 B. & S. 485; 33 L. J. M. C. 65; Hargreaves v. Diddams, L. R. 10 Q. B. 482; 44 L. J M. C. 78; 32 L. T. 600; Burton v. Hudson, [1909] 2 K. B. 564; Anderson v. Jacobs (1905), 21 T. L. R. 453; 93 L. T. 17.

(p) Reg. v. Peak, 8 L. T. (N.S.) 536; Leath v. Vine, 30 L. J. (N.s.) M. C. 207; Cornwell v. Saunders, 32 L. J. M. C. 6; Reg. v. Burrow, 34 J. P. 53.

tion they may have made (q); or the decision may be reviewed by a superior Court under 20 & 21 Vict. c. 43 (r).

An angler in the day-time, that is, between the beginning of the last hour before sunrise, and the expiration of the first hour after sunset, cannot be arrested; but a person angling at night, or fishing by other means than angling, may be arrested, and then without warrant by any person (s). The property in fish taken unlawfully vests in the taker unless they are taken from a tank or small pond, and the owner cannot recover them except in certain cases under the Larceny Act, 1916 (t). The fishing tackle in the possession of persons found fishing against the provisions of the Act may be demanded, and, if refused, may be seized by the owner of the ground, water or fishery where the offender was fishing, or his servant, or any person authorised by him, provided the seizure takes place on the property of such owner (u). A person angling in the day-time from whom any implement shall have been taken, is exempted from any further fine (x). Section 32 of the Malicious Damage Act, 1861 (y), enacts as follows: "Whosoever shall unlawfully and maliciously cut through, break down, or otherwise destroy the dam or flood gate of any mill pond, reservoir or pool shall be guilty of a misdemeanour and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years, and to be imprisoned, and if a male under the age of sixteen years, with or without whipping.' A person bona fide exercising his right of fishing who does damage to adjoining property is not liable criminally, though he may be civilly.

(q) Reg. v. Stimson, 4 B. & S. 301.

(r) See White v. Feast, L. R. 7 Q. B. 353.

(s) Section 103 (24 & 25 Vict. c. 96); see also Salmon and Freshwater Fisheries Act, 1923 (13 & 14 Geo. 5. c. 16), s. 71, as to arrest of night poachers. (t) 6 & 7 Geo. 5. c. 50, s. 45.

(u) Hughes v. Buckland, 15 M. & W. 346. A lessee of the fishery cannot make the seizure unless he is authorised by the owner.

(x) Section 25. Fishing with night lines is not angling within this proviso: Barnard v. Roberts (1901), 96 L. T. 648; 71 J. P. 277; 23 T. L. R. 439.

(y) 24 & 25 Vict. c. 97, as amended by the Salmon and Freshwater Fisheries Act, 1923, s. 10.

CHAPTER VII.

OF NAVIGATION, AND THEREIN OF CONSERVANCY.

The Right of Navigation.

THE right of navigation is a right of way which may be Definition. enjoyed in the sea, in tidal and in non-tidal waters; and as such it includes all rights necessary for the full enjoyment and exercise of the rights of convenient passage, such as the right to pass, and to ground and to anchor, to remain for a reasonable time for the purposes of loading and unloading, or completing repairs; or of waiting till the wind or weather or, probably also, the season permits the ship to leave (a).

The consideration of this right involves not only the discussion of the nature of the right itself, but also that of the rules governing its exercise (aa). These, in the case of the sea, embrace (in addition to the mere rules of the road) matters of considerable extent and importance, such as the seaworthiness of vessels, the liability of ship owners and the management of lighthouses, harbours, and ports, all of which are regulated by the Merchant Shipping Laws, as well as the various questions arising in connection with the jurisdiction of the Court of Admiralty (b).

It would be manifestly as impossible as inappropriate to attempt to treat this subject at all exhaustively in a work like the present; but, on the other hand, it is equally unadvisable to omit all notice of it, so an endeavour is made in the present

(a) Orr Ewing v. Colquhoun, 2 App. Cas. 839; Gann v. Free Fishers of Whitstable, 11 H. L. 192; Foreman v. Free Fishers of Whitstable, L. R. 4 H. L. 266; Mayor of Colchester v. Brooke, 7 Q. B. 339; 30 R. R. 432; Original Hartlepool Collieries v. Gibb, 5 Ch. D. 713; Dimes v. Petley, 15 Q. B. 276; Anon., Durham Assizes, 1808, per Wood, B.; Denaby and Cadeby Main Collieries Co. v. Anson, [1911] 1 K. B. 171, at p. 200; 80 L. J. K. B. 320.

(aa) The nature of this right in tidal and non-tidal waters is discussed at post, pp. 449 et seq.

(b) The reader is referred for a full consideration of these subjects to Temperley's Merchant Shipping Acts (3rd ed.),; Marsden's Collisions at Sea (8th ed., 1923); Roscoe's Admiralty Practice (4th ed.); and Abbott's Law of Merchant Ships and Seamen (1901); Maclachlan's Merchant Shipping (6th ed.); Rules of the Road at Sea, Stuart Moore (4th ed.).

The sea is the highway of all nations.

Jurisdiction over ships navigating.

chapter to give a brief general view of the law regarding navigation

I. On the Sea.

II. On inland waters.

On the Sea (c).

The sea is the necessary highway of all nations (d), and the free navigation and commerce thereon is, therefore, the common right of all mankind (e).

The ships of all nations, whilst navigating the high seas (f), are subject only to the laws of their own country, and no one nation has the right to exercise civil or criminal jurisdiction over the ships of other nations during their passage between one foreign port and another (g). By the Territorial Waters Jurisdiction Act, 1878, (41 & 42 Vict. c. 73), foreigners on board foreign ships, passing within three nautical miles of the English coast, are made subject to English criminal law (h). The criminal jurisdiction over English ships on the high seas has, from the earliest times, been vested in the Court of Admiralty; and foreigners on board such ships are subject to English law (i). By 15 Ric. 2, c. 3, it was provided, that the admiral should have. no jurisdiction within the body of counties, either by land or sea, save for mayhem or murder done in estuaries and mouths of rivers, below the bridges where he should have a concurrent jurisdiction with the Courts of common law. This jurisdiction of the admiral was transferred to the Central Criminal Court by the Central Criminal Court Act, 1834 (4 & 5 Will. 4. c. 36), and further changes have been made as to the civil jurisdiction of the Admiralty Courts, which are thus stated by Mr. Boyd in "The Merchant Shipping Laws" (k): "By 3 & 4 Vict. c. 65, s. 6, jurisdiction was given to the Admiralty Court to decide all claims and demands whatsoever in the nature of damage received by any

(c) For the greater portion of this section the authors have had recourse to Mr. A. C. Boyd's excellent work on The Merchant Shipping Laws (1876), to which the reader is referred for fuller particulars. Cf. also throughout Chap. I.

(d) Phillimore's International Law, vol. i., pp. 210, 211.

(e) Wheaton's International Law, by Boyd, p. 251.

(f) For definition of the high seas, and the limitations of territorial waters, see Chap. I. Territorial waters, as well as the high seas, are free to the peaceful navigation of foreign as well as English ships: The Saxonia, 1 Lush. 410; cf. Sir R. Phillimore, 2 Ex. D. 82.

(g) Reg. v. Keyn, 2 Ex. D. 217, per Kelly, C.B.; The Vigilantia, 1 C. Rob. 1; The Vrou Anna Catherina, 5 C. Rob. 161; The Success, 1 Dodd's Ad. 131. (h) See ante, Chap. I., p. 8; and the case of Reg. v. Keyn, ante, pp. 6

et seq.

(i) Reg. v. Sattler, Dears. & B. Cr. C. 525; Reg. v. Anderson, L. R. 1 Cr. C. 161; Reg. v. Lesley, Bell, C. C. 220.

(k) Page 262. See also for the origin and jurisdiction of the Admiralty Court, Roscoe's Admiralty Practice.

And the

ship or sea-going vessel, and to enforce the payment thereof.
whether such ship or vessel may have been within the body of a
county, or upon the high seas, at the time when the damage was
received, in respect of which such claim was made.
Admiralty Court Act, 1861 (24 Vict. c. 10), s. 7, enacts in
general terms, that the Court shall have jurisdiction over any claim
for damage done by any ship. The Court was therefore
empowered to try any cause whatsoever, of such a description,
even if all the parties to it were foreigners, and the cause of
action arose out of the jurisdiction. However, in deciding
causes of the latter kind, the Court must be guided by the rules
of law to which both parties were subject when the damage was
committed, and not by the Merchant Shipping Acts" (1).

Pirates being the common enemies of all mankind, and all Pirates. nations having an equal interest in their apprehension and punishment, may be lawfully captured on the high seas by the armed vessels of any particular State, and brought within its territorial jurisdiction for trial at its tribunals (m).

No tolls are demandable from vessels navigating the sea, save Tolls. such as are chargeable for the formation of harbours, and the maintenance of buoys, lights, and beacons, which are a good consideration for a toll (n);-"It being required," says Hale, "that any man who will prescribe for a toll on the sea must allege a good consideration" (o). Hence no tolls can be taken for anchorage save in a port or harbour (p).

The main ocean is incapable of being the property of any one State; but a nation may acquire exclusive right of navigation therein as against another nation by virtue of the specific provisions of a treaty (q), or by the tacit acquiescence of such other

(1)It is the general rule in construing Acts of Parliament, that the legislature must be presumed to have intended by its enactments to regulate the rights which should subsist between its own subjects, and not to affect the rights of foreigners, unless the contrary be expressed or implied from the absolute necessity of the case ": Boyd, Merchant Shipping Laws, p. 262. As to the jurisdiction of the English Courts over foreign ships in cases of damage, and as to the "load line and unsafe ships, see ante, Chap. I., p. 3. • It has been held that a county court has Admiralty jurisdiction in respect of damages by a collision which occurred in a dock connected with a tidal river (the Thames) by a lock. And it seems that the Admiralty Division of the High Court also has jurisdiction in such a case (under 24 Vict. c. 10, s. 7). Dr. Lushington exercised the jurisdiction in the case of a collision in foreign inland waters the Great North of Holland Canal (The Diana, Lush. 539). The Common Law Courts have jurisdiction whether the ships are British or foreign and whether the collision occurs in foreign waters or elsewhere": Marsden's Law of Collisions at Sea (5th ed.), p. 199.

(m) Wheaton, International Law, p. 168, and ante, Chap. I.

(n) Hale de Portibus Maris, Harg. Tr. 51; Gann v. Free Fishers of Whitstable, 11 H. L. 193.

(0) 1 Mod. 105.

(p) Gann v. Free Fishers of Whitstable, supra. See on this subject, ante, Chap. I., p. 65 et seq., and post, Chap. IX.

(4) Phillimore, International Law, vol. i., pp. 210, 211.