Piracy.

who shall first make discovery, and give information of such intent or design; and such person or persons, who shall first make such discovery, shall and may sue for and recover the said ship or vessel, and all and every the goods and merchandises on board the same, in the High Court of Admiralty."

And § 3, "Whereas there are some defects in laws for bringing persons who are accessories to piracy and robbery upon the seas to condign punishment, if the principal who committed such piracy and robbery is not or cannot be apprehended and brought to justice; be it therefore enacted, That all and every person and persons whatsoever, who by the said statute made 11 & 12 W. 3, c. 7, are declared to be accessory or accessories to any piracy or robbery therein mentioned, are hereby declared and shall be deemed and taken to be principal pirates, felons, and robbers, and shall and may be inquired of, heard, determined, and adjudged in the same manner as persons guilty of piracy and robbery may and ought to be inquired of, tried, heard, determined, and adjudged by the said statute 11 & 12 W. 3, c. 7, and being thereupon attainted and convicted, shall suffer such pains of death, loss of lands, goods and chattels, and in like manner, as pirates and robbers ought by the said act to suffer."

And § 4, it is farther enacted, "That all and every offender or offenders convicted of piracy, felony, or robbery, by virtue of this act, shall not be admitted to have the benefit of clergy, but be utterly excluded of and from the same."

And § 5, "To the end that a farther encouragement may be given to all seaman and mariners to fight and defend their ships from pirates, it is farther enacted, That in case any seaman or mariner on board any merchant ship or vessel, or any other ship or vessel, shall be maimed in fight against any pirate, every such seaman and mariner, upon due proof of his being maimed in such fight, shall not only have and receive the rewards appointed by 23 Car. 2, c. 11, but shall also be admitted into and provided for in Greenwich Hospital, preferably to any other seaman who is disabled from service or getting a livelihood merely by his age."

And by § 6, "If any commander, master, or other officers, or any seaman or mariner of any merchant ship or vessel, which carries guns and arms, shall not, when they are attacked by any pirate, or by any ship or vessel on which such pirate is on board, fight and endeavour to defend themselves and their said ship and vessel from being taken by the said pirate, or shall utter any words to discourage the other mariners from defending the said ship, and by reason thereof the said ship or vessel shall fall into the hands of such pirate, then, and in every such case, every such commander or other officer, and every seaman and mariner, who shall not fight and endeavour to defend and save the said ship or vessel, or who shall utter any such words as aforesaid, shall lose and forfeit all and every part of the wages due to him and them respectively by the owner and owners of the said ship or vessel, and shall not be permitted to sue for or recover the same, or any part thereof, in any court either of law or equity, and as a farther punishment shall suffer six months' imprisonment."

And § 7, "For prevention of seamen or mariners from deserting merchant ships or vessels abroad in the plantations, or in any other parts beyond the seas, which is the chief occasion of their turning pirates, and of great detriment to trade and navigation, and is chiefly occasioned by the owner or owners of ships or vessels paying wages to the seamen or mariners when abroad, it is enacted, That no master or owner of any merchant ship or vesVOL. VII.-57 2 P 2

Piracy.

sel shall pay or advance, or cause to be paid or advanced, to any seaman or mariner, during the time he shall be in parts beyond the seas, any money or effects on account of wages, exceeding one moiety of the wages which shall be due at the time of such payment, until such ship or vessel shall return to Great Britain or Ireland, or to the plantations, or to some other of his majesty's dominions whereto they belong, and from whence they were first fitted out; and if any such master or owner of such merchant ship or vessel shall pay or advance, or cause to be paid or advanced, any wages to any seaman or mariner above the said moiety, such master or owner shall forfeit and pay double the money he shall so pay and advance, to be recovered in the High Court of Admiralty by any person who shall first discover and inform of the same."

[By 18 Geo. 2, c. 30, "All persons, being natural-born subjects or denizens of his majesty, who during any wars have committed any hostilities upon the sea, or in any haven, river, creek or place where the admiral or admirals have power, authority, or jurisdiction against his majesty's subjects, by virtue or under any colour of any commission from any his majesty's enemies upon the sea, or any the places where the Admiral hath jurisdiction as aforesaid, may be tried as pirates, felons, and robbers in the said Court of Admiralty, on ship-board, or upon the land, in the same manner as persons guilty of piracy, felony, and robbery are directed to be tried; and on conviction shall suffer as any other pirates, &c., ought by virtue of 11 & 12 W. 3, c. 7, or any other act: Provided that any person who shall be tried and acquitted, or convicted, according to this act, for any of the said crimes, shall not be liable to be prosecuted for the same crime or fact as high treason. But this act shall not prevent any persons who shall not be tried according to it, from being tried for high treason by 28 H. 8, c. 5."]

Adhering to the king's enemies, by cruizing hostilely in their ships, with intent to seize the ships and goods of the king and his subjects, is triable as piracy under this statute.

Evans's case, East's P. C. p. 798.||

[And by 32 Geo. 2, c. 25, § 12, "In case any commander of any private ship of war duly commissioned according to the directions of this act, or the 29 Geo. 2, c. 34, shall agree with the commander or other person of or belonging to any neutral or other ship or ships, vessel or vessels, except those of his majesty's declared enemies, for the ransom of any such neutral or other ship, &c., or the respective cargo or cargoes thereof, or any part thereof, after the same shall have been taken as prize, and shall, in pursuance of any such agreement or agreements, actually quit, set at liberty, or discharge any such prize or prizes, instead of bringing the same into some port or ports belonging to his majesty's dominions, every such offender shall be deemed guilty of piracy, felony, and robbery, and on conviction (in the manner the act describes) shall suffer such pains of death, &c., as pirates, felons, and robbers upon the seas ought to suffer according to the laws now in being. But the commander of any private ship of war, upon the capture of any neutral vessel, which by any law or treaty shall be liable only to the forfeiture of such contraband goods as shall be on board thereof, may receive such goods in case the commander is willing to deliver them, and thereupon quit, set at liberty, or discharge such neutral ship or vessel."

By 22 G. 3, c. 25, all contracts for ransoming any private vessel, &c., captured by the king's enemies, are void, and the offender liable to a penalty of 5002.

By 30 Geo. 2, c. 25, § 20, and 33 G. 3, c. 66, § 70, a session of oyer

Piracy.

and terminer, and jail-delivery, for the trial of offences committed on the high seas, shall be holden twice at the least in every year at the Sessions House in the Old Bailey, or at such other place as the Lords of the Admiralty shall appoint. And the commissioners named in the commissions of oyer and terminer for the trial of such offences, as also any justices of the peace, may take informations touching offences committed upon the seas, and cause the parties to be apprehended and committed; they may also oblige any persons they think necessary to enter into recognisances to appear, prosecute, and give evidence at the sessions, and upon their refusal to do so, may commit them; which recognisances and informations are to be transmitted to the registrar of the Court of Admiralty.]

By the stat. 7 Geo. 4, c. 38, it is enacted, "That it shall and may be lawful to or for any one or more of the commissioners for the time being, named or to be named, in the commission of oyer and terminer, for trying of offences committed within the jurisdiction of the Admiralty of England, and also to and for any one or more of the commissioners for the time being, named or to be named, in any commission made or granted under or by virtue of the act of the 46 Geo. 3, c. 54, and also to or for any one or more of his majesty's justices of the peace for the time being for any county, riding, division, or place in the United Kingdom; and they are hereby respectively authorized, empowered and required, from time to time, to take any information or informations of any witness or witnesses upon oath, which oath they and each of them are hereby respectively authorized to administer, touching any treason, piracy, felony, robbery, murder, conspiracy, or other offence, of what nature or kind soever, committed upon the sea, or in any river, haven, creek, or place where the admiral or admirals hath or have power, authority, or jurisdiction; and thereupon, (if such commissioner or commissioners, justice or justices of the peace, shall see cause,) by any warrant or warrants under his or their hand or seal, or hands and seals, to cause the person or persons charged in such information or informations, to be apprehended and committed to safe custody, to remain in such custody until discharged in due course of law, or until bailed, in cases in which bail may by law be taken."

By 7 & 8 Geo. 4, c. 28, § 12, it is enacted, that all offences committed within the jurisdiction of the Admiralty shall, upon every first and subsequent conviction, be subject to the same punishments, whether of death or otherwise, as if such offences had been committed upon land.

By 7 Geo. 4, c. 64, § 27, it is enacted, That it shall be lawful for the judge of the Court of Admiralty, in every case of felony, and in every case of misdemeanor therein before enumerated, (in § 23,) committed on the high seas, to order the assistant to the counsel for the affairs of the Admiralty and navy to pay such costs and expenses, and compensation to prosecutors and witnesses, in like manner as other courts may order the treasurer of the county to pay them; and such assistant is required on sight of every such. order to pay the money mentioned, and shall be allowed the same in his ac

counts.

This enactment puts prosecutors in the Court of Admiralty on the same footing as those in other criminal courts, in regard to the allowance of expenses.

[PISCHARY.]

A PISCHARY is said to be a right or liberty of fishing in the soil of another. Blount's Law Dict. verb. Pischary. But a man may have liberam pischariam in his own soil. Skin. 678.

Our law books make mention of three sorts of fishery, libera, separalis,

communis.

2 Salk. 637.

In order to constitute a several fishery, it is necessary that the party claiming it should so far have the right of fishing independently on all others, as that no person should have a co-extensive right with him in the subject claimed; for where any person has such co-extensive right, there it is only a free fishery. But a partial, independent right in another, or a limited liberty, is not inconsistent with a right to a several fishery.

Seymour v. Lord Courtenay, 5 Burr. 2814.

Whether ownership of the soil is essential a several fishery is a point upon. which there hath been a great diversity of opinion, and which is not yet finally settled.

5 Burr. 2814, Dougl. 56. That it is necessarily included in a several fishery, see 2 Bl. Com. 39; 2 Salk. 637; Dav. 55 b; 17 Edw. 4, 6; 18 Edw. 4, 4; 10 Hen. 7, 24, 26, 28; Plo. Com. 154. That it is not, Co. Lit. 4 b, 112 a; Bract. 108 b; Bro. tit. Tenures, pl. 75; Fitzh. Sci. Fa. 100; Godb. 117; 20 Vin. Abr. 201. The latter seemeth to be the better opinion; for the utmost that can be deduced from the cases cited in support of the former is, that a several fishery shall be presumed to include the soil, until the contrary is proved. See Co. Lit. 112 a, note 7, last edition. See 5 Barn. & C. 885.||

A free fishery is considered by Sir Wm. Blackstone as an exclusive right of fishing in a public river, and is referred by him to the head of franchises. But this doctrine is, at least, questionable, our law books (a) extending this kind of fishery to all streams indiscriminately, whether private or public. The same learned writer, too, saith, that a free fishery imports an exclusive right, and so differeth from common of pischary; that in a free fishery a man hath a property in the fish before they are caught; in a common of pischary not till afterwards. But this doctrine, though supported by some(b) authorities, is impugned by others. Lord Coke (c) considers common of fishery and free fishery as the same thing. For, he saith, that a man may prescribe to have separalem pischariam in such a water, and the owner of the soil shall not fish there; but if he claim to have communiam pischariæ, or liberam pischariam, the owner of the soil shall fish there. And Eyre, J., said,(d) that the word libera, ex vi termini, implied common. And that a man cannot declare in trespass for taking his fish in a free fishery was expressly holden in two cases,(e) and the judgment for that reason reversed. The right to the property of the fish in a free fishery, till caught, was negatived by the court incidentally in a still earlier case.(g) Lord Mansfield, in the case of Seymour v. Lord Courtenay, saith, that where any person hath a co-extensive right with another, it is a free fishery.(h)

2 Bl. Com. 39. (a) F. N. B. 88, G.; Fitz. Abr. Ass. 422; 4 Ed. 4, 28; 17 Ed. 4, 6b, 7a; 7 Hen. 7, 13 b; Cro. Car. 554; 1 Ventr. 122; Skin. 677; Carth. 285. B Quære, Whether a free fishery can exist in this country. Yard v. Carman, 2 Penning, 936. A free fishery is not exclusive fishery. Melvin v. Whiting, 7 Pick. 79.g

Pischary.

(b) Reg. 95 b; 43 Ed. 3, 24; 2 Salk. 637; Carth. 285. (c) Co. Lit. 112 a. (d) 2 Salk. 637; Carth. 285. (e) Upton v. Dawkins, 3 Mod. 97; Com. 11, S. C.; Peake v. Turner, cited in Carth. 286, in margin. (g) Child v. Greenhill, Cro. Car. 554. (h) 5 Burr. 2816.

If a man justifies for using a pischary, he ought to show whether it be common, free, or several. So whether it be appurtenant to a manor or messuage, &c., for it is an interest, and not a mere liberty or easement.

Hardr. 407.

A fishery, without more, is a tenement within the statute 9 & 10 W. 3, c. 11, so as to entitle a person renting it to a settlement, for the court will intend that the soil passed with it. It is indeed doubtful, whether it is material for this purpose that the soil should pass.

Rex v. Old Alresford, 1 Term R. 358. In this case, one learned judge is reported to lay it down broadly, that a fishery is a tenement; that trespass will lie for an injury to it; and it may be recovered in ejectment.

||Separalis piscaria enjoyed by a subject in a navigable river where the tide flows, under a grant before time of memory, is an incorporeal hereditament; and consequently a term for years in it cannot be created without deed.

Duke of Somerset v. Fogwell, 5 Barn. & C. 875. The owner of land through which an unnavigable stream passes has the exclusive right of taking fish therein opposite to his land. Waters v. Lilley, 4 Pick. 145. When he owns land only on one side, he has a right to take fish to the middle of the stream. This right, in both cases, is subject to be regulated by the government. Commonwealth v. Chapin, 5 Pick. 199; Vinton v. Welsh, 9 Pick. 87; 4 Pick. 145. But such owner has no right wholly to obstruct the passage of the fish. 5 Pick. 199. See Brink v. Richtmyer, 14 Johns. 255; Hooker v. Cummings, 20 Johns. 90; Palmer v. Mulligan, 3 Caines, 318; Jacobson v. Fountain, 2 Johns. 175; The People v. Platt, 17 Johns. 195; Gould v. Jones, 6 Cowan, 369.7

In rivers not navigable, the proprietors of the land have the right of fishery on their respective sides; and it generally extends ad filum medium aqua. (a) But in navigable rivers the proprietors of the land on each side have it not; the fishery is common, it is prima facie in the king, and is public. But the crown may grant a several fishery in a navigable river, where the sea flows and reflows, or in an arm of the sea; and on the other hand there may be a free fishery, or a co-extensive right of fishing with the owners of the soil in a river not navigable. In the one case the presumption is in favour of the appropriate right, in the other case the presumption lies the contrary way. In these, as in all other cases of presumption, the presumption will stand till the contrary is proved.

Carter v. Muscot, 4 Burr. 2362; Lord Fitzwalter's case, 1 Mod. 105; Dav. 55; Mayor, &c. of Oxford v. Richardson, 4 Term R. 439; {Willes, 265, Ward v. Creswell; 2 Bos. & Pul. 472, Bagot v. Orr. The common law doctrine-that fresh water rivers in which the tide does not ebb and flow belong to the owners of the banks-has never been applied to the Susquehanna, and other large rivers in Pennsylvania. Such rivers are navigable, although there is no flow and reflow of the tide, and they belong to the commonwealth. No one therefore has a right to an exclusive fishery therein, on the principles of the common law, nor has such a right been granted to any one by the proprietaries or by the commonwealth. 2 Bin. 475, Carson v. Blazer. See 3 Čain. 312, 315, 318, Palmer v. Mulligan. And quære, whether a custom that the owners of the banks shall have an exclusive fishery in the river opposite to their shores is good. 2 Bin. 475.} (a) Proof of the owner's right to fish opposite his own land ad medium filum aquæ cannot be given under a plea claiming a common of fishery. Bennett v. Costar, 8 Taunt. 183; 2 Moo. 83.||

It is clear that prima facie every subject of the realm has a right to take fish found on the sea-shore between high and low water-mark; but this