Page:Prerogatives of the Crown.djvu/164

 144 Fisheries and Fish. [Ch.VIII. nor is the grant or lieence of the Crown necessary on a party making a fish-pond (a). The King has no general property in fish. It would be superfluous to specify and particularly designate Whales and Sturgeons alone, as being royal fish, if all fish were the King's property (b). Except to probat regvlam. With respect how- ever to whales and sturgeons, it was always a doctrine of the. common law that they belong to the King (c). And by the statute de Prerogativa Regis {d), it is declared that the King shall have whales and sturgeons taken in the sea or elsewhere, within the realm, except in certain places privileged by the King. But to give the Crown a right to such fish they must be taken within the seas parcel of the dominions and Crown of England, or in creeks or arms thereof; for if taken in the wide seas or out of the precinct of the seas subject to the Crown of England, they belong to the taker (e), A subject may possess this royal perquisite: 1st, by grant; 2dly, by prescription within the shore, between the high water and low water mark, or in a certain districts marisy or in a port, creek, or arm of the sea; and this may be had in gross or as appurte- nant to an honour, manor or hundred (J"), Under tliis head may also be mentioned the right of the King to swans, being inhabitants of rivers (g). By tlie statute 22 Edw. 4. c. 6. " no person other than the son of the King shall have any mark or game of swans, except he have lands of freehold to the yearly value of five marks; and if any person not having lands to the said yearly value, shall have any such mark or game, it shall be lawful to any of the King's subjects having lands to the said value, to seize the swans as forfeits, whereof the King shall have one half and he that shall seize the other." A subject may however be entitled to swans; 1st, when they are tame; in which case he has exactly the same property in them as he has in any other tame animal ; 2dly, by a grant of swan mark from the King, in which case all the swans marked with such mark shall be the subject's, (a) 6 Mod. 183. 2 Inst. 199. 1 («;) Year Book, 39 Edw. 3 ; per Chitty, G. L. 278. Belknap. 1 Taunt. 241. (b) SeeSchultes, 15,16. (/) Hale de jure Maris, c. 7. 1 (c) Bracton, 3 lib. ch. 3. s. 5. Britt. Chalm. Coll. of Op. 131. 26. b. 7 Co. 16. (g) 7Co. 16,T. (rf) 15Edw. 2. c. 11. wheresoever