before time of memory, but may be parcel of a manor (1); but it must be prescribed for and proved against the common right which is presumed to exist. However, if an individual has a right of fishery in a navigable river it is subject to the right of the public to use the river for all the purposes of navigation; and in an action (2) for disturbance of plaintiff's fishery in the river Tweed, Wood, B. said a navigable river is a public highway, and all persons have a right to come there in ships, and to unload, moor, and stay there as long as they please; nevertheless, if they abuse that right, so as to work a private injury, they are liable to an action. The question will therefore be, whether the defendant has abused his right. The privilege of the plaintiff must be subservient to the right of the public. It would be of very mischievous consequences if the owner of a fishery could prescribe to the public how and where they are to moor in a navigable river. The only case I remember like this, was where a man obstinately refused to move his ship fron: opposite a wharf, although it would have been just the same if he had moved a little one way or the other; and therefore he abused his right, and the plaintiff recovered. The defendant had a right to moor and remain where his ship lay as long as convenience required; if he acted wantonly and maliciously, for the purpose of injuring the fishery, the plaintiff is entitled to a verdict, and not otherwise. Having thus shewn that the original property in the fisheries of an arm of the sea or navigable river, and of the shores thereof, is prima facie in the king, and that an exclusive right to the fishery of an arm of the sea or navigable river may have been by him conferred on and may be prescribed for by the subject, it now remains to be shewn how it is to be claimed and how proved. In Warren v. Matthews (3), sola piscaria in the river Ex, by a grant from the crown, was claimed; and Holt, C. J. said the subject has a right to fish in all navigable rivers, as he has to fish in the sea, and a quo warranto ought to be brought to try the title of this grantee, and the validity of his grant. Trespass lies for fishing in an arm of the sea or navigable river, if a grant be de libera piscariâ; for the grantee shall have the property (1) Harg. Tracts, 267. 5 Rep. 107. Dyer, 326 b. Com. Dig. tit. Navigation A. Willes, 475. 4 Term. Rep. 439. (2) 1 Campb. 517. notis. of the fish there (1). The grantee of such an exclusive right must use it under the terms of the grant, and shall not be allowed to exceed it; thus in a case where (2) a right was proved by ancient deeds for the owner of an estate to have a weir across a river for taking fish, and it appeared that such weir was heretofore made of brushwood, he cannot convert it into a stone weir; and Lord Ellenborough said, that the erection of weirs across rivers was reprobated in the earliest periods of our law. The words of Magna Charta (3) are, "that all weirs from henceforth shall be utterly pulled down by Thames and Medway, and through all England," &c.; and this was followed up by subsequent acts (4) treating them as public nuisances, forbidding the erection of new ones, and the enhancing, straitening, or enlarging of those which had aforetime existed. Now here it appears, that previous to the erection of this complete stone weir, there had been always an escape of the fish through and over the old brushwood weir, in which those in the stream above had a right, and it was not competent for the defendant to debar them of it by making an impervious wall of stone, through which the fish could not insinuate themselves, as it is well known they will through a brushwood weir, and over which it is in evidence that the fish could not pass, except in extraordinary times of flood; and however 20 years acquiescence may bind parties whose private rights only are affected, yet the public have an interest in the suppression of public nuisances, though of longer standing; no objection however of this sort can apply to the present case, where the action was commenced within 20 years after the complete extension of the stone weir across the river, by which it is proved that the plaintiff has been injured. Then, however general the words of the ancient deeds may be, they are to be construed, as Lord Coke says, by evidence of the manner in which the thing has been always possessed and used; and Lawrence, J. added, that there is no bar to the action from any length of possession in the defendant. In a subsequent action of trespass for breaking and entering a several oyster fishery in B. river (5), it was decided, that in order to prove a prescriptive right of fishery as appurtenant to a manor, old licences on the court rolls granted by the lords of the manor, in consideration of (1) Com. Dig. Pischary, A. 4 Mod. 186, 7. Skinn. 342. 2 Salk. 637. (2) Weld v. Homby, 7 East, 195. 3 Smith, 244. S. C. certain rents, to fish in the locus in quo, are evidence without proof of the rents being paid, if it appears that such rents have been paid in modern times, or that the lords of the manor have exercised other acts of ownership over the fishery; and it also appears from that case, that where the evidence for the plaintiff was for all sorts of fishing, and the defendant proved his having fished in the locus in quo for floating fish without interruption, yet that that abandonment of a part of a fishery did not preclude the owner from preserving another part of more value; the public might be entitled to catch floating fish in B. river, but it by no means followed, that they are justified in dredging for oysters, which may still remain private property; but the prescription must not be larger than the proof, though the prescription will not fail if the evidence be more extensive. CHAP. VIII. How the Commerce and Contracts of Belligerents are legally affected by War. THE two preceding chapters upon the navigation laws and fisheries, concluded so much of our subject as relates to the modes by which the commerce of one country may be affected by the acts of another during peace: we are now arrived at the next division, in which we are to examine how far the commerce of one state may be affected by acts of another during war. This part of the subject subdivides itself into three branches, involving, first, the state of the commercial law, as between belligerents and belligerents; secondly, as between belligerents and neutrals; and thirdly, the dispensations or exceptions, by licences, orders in council, &c. These are subjects of great importance in a commercial point of view, because, if the traffic be illegal, any contract or policy of insurance relating to it cannot be enforced, and the property is liable to be taken and confiscated; and it is also an indictable offence at common law to be concerned in such unlawful trafic (1). I. In considering the state of the commercial law of nations, and of the United Kingdom in particular, as it affects belligerents, we will trace, 1st, the authorities by which the intercourse of enemies is in general prohibited, and then examine the few excepted cases where it is allowed; 2dly, we will consider the legal definition of war, and who are to be deemed alien enemies, and what constitutes an hostile character, for commercial purposes; and 3dly, the detention, seizure, capture, and condemnation, by one belligerent, of the property of another belligerent employed in commerce. 1st. It is the established law of nations, that when war has taken place between two or more states, all commercial intercourse between the subjects of each must immediately cease, Section I. How far Commercial between Belgerents and ligerents their Allies is prohibited, and to that Rule. unless it be otherwise expressly stipulated by treaty. Hostilities the Exceptions having commenced, any attempt to trade on the part of the subjects of either state, unless by the permission of the sovereign, is interdicted by the general law of Europe; a law which does not spring from the institutions of this or that particular state, but which, having its source in natural reason and natural justice, is alike binding on the whole community of the civilized world (1). This rule is founded on the principle that war puts every individual of the respective belligerent governments into a state of mutual hostility, and there is no such thing as a war for arms and a peace for commerce. In that state, all treaties, civil contracts, and rights of property, are put an end to or suspended, and the law imposes a duty on every subject to attack the enemy and seize his property, though by custom this is restrained to those individuals only who have commissions from their government for that purpose. Trading, which supposes the existence of civil contracts and relations, and a reference to courts of justice, is necessarily contradictory to a state of war; besides, it is criminal in a subject to aid and assist the enemy, and trading affords that aid in the most effectual manner, by enabling the merchants of the enemy's country to support their government. Export duties are to be paid when goods are brought from an enemy's country, which is furnishing the very sinews of war to the hostile government; and such trading would also facilitate the means of conveying intelligence and carrying on a traiterous correspondence with the enemy, which would more than counterbalance any advantage likely to accrue to individuals from such trading. These considerations apply with peculiar force to maritime states, where the principal object is to destroy the marine and commerce of the enemy, in order to force them to peace (2). It was observed by Sir Wm. Scott, in the cause of the Hoop (3), "that by the law and constitution of this country, the sovereign alone has the power of declaring war and peace. He alone, therefore, who has the power of entirely removing the state of war, has the power of removing it in part, by Dr. Phillimore on Li (1) The Hoop, 1 Rob. Rep. 3. c. 4. 198. Potts v. Bell, 8. T. R. 548. cences, 5. Mennett v. Bonham, 15 East, 489. (2) Potts v. Bell, 8 Term Rep. Willison v. Patteson, 7 Taunt, 439. 548. Mennett v. Bonham, 15 Grotius, lib. 3. c. 4. s. 8. Byn- East, 493, 4. kershoek, lib. 1. c. 3. Vattel, lib. (3) 1 Rob. Rep. 196. |