Part 21

This right extends to all fish floating in the sea or left on the seashore, except certain fish known as royal fish, which, when taken in territorial waters, belong to the crown or its grantee, though caught by another person. These are whales, sturgeons and porpoises; and grampuses are also sometimes added (whales, porpoises and grampuses being "fishes" only in a legal sense). In Scotland only whales which are of large size can be so claimed; but the rights of salmon fishing in the sea and in public and private rivers, and those of mussel and oyster fishing, except in private rivers, are _inter regalia_, and are only enjoyable by the crown or persons deriving title under it. As salmon fishery was formerly practised by nets and engines on the shore, and the mussel and oyster fisheries were necessarily carried on on the shore, the opinion was held at one time that angling for salmon was a public right, but the later decisions have established that the right of salmon fishing by whatever means is a _jus regale_ in Scotland. In England the crown in early times made frequent grants of fisheries to subjects in tidal waters, and instances of such fisheries belonging to persons and corporations are very common at the present day: but by Magna Carta the crown declared that "no rivers shall be defended from henceforth, but such as were in defence in the time of King Henry, our grandfather, by the same places and the same bounds as they were wont to be in his time"; and thus bound itself not to create a private fishery in any navigable tidal river. Judicial decision and commentators having interpreted this statute according to the spirit and not the letter, at the present day the right of fishery in tidal waters prima facie belongs to the public, and they can only be excluded by a particular person or corporation on proof of an exclusive right to fish there not later in its origin than Magna Carta; and for this it is necessary either to prove an actual grant from the crown of that date to the claimant's predecessor in title, or a later grant or immemorial custom or prescription to that effect, from which such an original grant may be presumed. This exclusive right of fishing may be either a franchise derived from the crown, or may arise by virtue of ownership of the soil covered by the waters.

In Lord Hale's words: "Fishing may be of two kinds ordinarily, viz. fishing with a net, which may be either as a liberty without the soil, or as a liberty arising by reason of and in concomitance with the soil or an interest or propriety of it; or otherwise it is a local fishing that ariseth by or from the propriety of the soil,--such are _gurgites_, wears, fishing-places, _borachiae_, _stachiae_, which are the very soil itself, and so frequently agreed by our books. And such as these a subject may have by usage; either in gross, as many religious houses had, or as parcel of or appurtenant to their manors, as both corporations and others have had; and this not only in navigable rivers and arms of the sea but in creeks and ports and havens, yea, and in certain known limits in the open sea contiguous to the shore. And these kinds of fishings are not only for small sea-fish, such as herrings, &c., but for great fish, as salmons, and not only for them but for royal fish.... Most of the precedents touching such rights of fishing in the sea, and the arms and creeks thereof belonging by usage to subjects, appear to be by reason of the propriety of the very water and soil wherein the fishing is, and