CHAPTER XVI

LEGAL REGULATIONS OF ROME AS REGARDS FISHING

Previous instances of taking fish belonging to another have so far only been attended by divine or superhuman punishment. I venture now a few sentences on what were the Roman (I have discovered no Greek) legal regulations—for there does not appear to have existed at Rome any special _law_ on Fishing—and how the rights of fisheries and fishers were protected.

From the evidence available it is clear—

(1) That among _Res Nullius_, or things belonging to no one, were fish and wild animals in a state of nature. The _Digest_, 41. 1. 1, lays down that “omnia animalia, quæ terra, mari, cælo capiuntur, id est feræ bestiæ, volucres, et pisces, capientum fiunt.”

(2) That they became the property of the person who first “reduces them into possession,” _i.e._ captures them.

(3) That the sea and public rivers were not capable of individual ownership.

(4) That no citizen could be prevented from fishing in the sea and such rivers by any person. To this rule there are several exceptions; for instance, (_a_) a cove of the sea bordering on a man’s land—perhaps if enclosed with stakes, etc.—could be exclusively occupied for fishing (_Digest_, 47. 10, ss. 13 and 14); (_b_) a right of fishing in a recess or backwater of a public river could be acquired by prescription, and would then be protected by a possessory Interdict against any one who tried to fish this water (_Ibid._, 44. 3. 7).

It is hard to define precisely what constituted a public river and what a private river. Under the term “public” came all rivers of any size, not merely those that were tidal. Whether a river was public depended not only on its size, but also on the “opinion of those dwelling around it.” No river, periodically dry in summer, could be accounted public (_Digest_, 43. 12, ss. 1-4).

All streams not public, many lakes, and all _piscinæ_, etc., were private property, from which the owner could prevent any one taking fish. The legal remedy for such exclusion, based on the ground of trespass, was Interdict—a procedure very similar to that of Scotland, whose law is mainly modelled on that of Rome.

The further legal question—were the fish in such _piscinæ res nullius_ or were they such individual property as to make any one taking them without permission liable for theft—was answered by the jurist Nerva in _Digest_, 41. 2. 3, _s._ 14, who held that they were individual property—“pisces quos in piscinas coiecerimus a nobis possideri.”

Thus the owner of _vivaria_ could proceed against a poacher by (1) an interdict for trespass, and (2) a prosecution for theft, in case of a fish being caught with the intention of taking it away. On the other hand, a person prevented from fishing or navigating by another could only proceed by an action of _Injuria_, personal affront (_Digest_, 43. 8. 17, _ss._ 8 and 9; 41. 1. 30; 43. 14, _s._ 7).

Although I purposely limit myself to a very slight sketch of Roman regulations, the case reported by Pliny (_N. H._, IX. 85) seems, alike from legal and piscatorial interest, worthy of reproduction and examination.

As the _Anthias_ is one of the shyest of fishes, special precautions and plenty of patience were necessary for a good catch. Thus fishermen wore clothes of the same colour as their boats. They sailed without fishing over the same stretch of sea. They merely went on “baiting the swim” on each tack, day after day, till some spirit, bolder than the rest, could be induced to take the bait. Still more days elapse before the fish, which has by this time been well identified, is followed by any of his mates. Eventually example proves so infectious that shoals innumerable, of which the Elder Brethren even eat from the fisherman’s hands, surround the boat.

Now is the accepted hour for “the fisherman to throw out a little beyond his finger tips a hook concealed in bait,” and (to prevent alarm) smuggle the fish out gently, one by one, by a very slight jerk. His mate receives the fish on pieces of cloth, so that no floundering about or other noise may scare their comrades. On no account must “the betrayer of the others” be captured, lest instantly the shoal take to flight and be no more seen.

But “there is a story that a fisherman, having quarrelled with his mate, threw out a hook to one of the leading fishes, which he easily spotted and with malicious intent captured. The fish was, however, recognised in the market by his mate, against whom he had conceived this malice: accordingly an action for damages (_damni formulam editam_) was brought, which the defendant, as Mucianus adds, was condemned to pay.”

Now, as shown above, (1) a fish is “res nullius,” (2) a fish becomes the property of him who first “reduces it into possession,” (3) the sea, with some exceptions which do not apply here, is not capable of individual ownership.

If “the betrayer of his kind” was till malicious capture admittedly and of set purpose left _free in the sea_, how could it have been reduced into possession, how could any title in it have been acquired, and, lastly—granted some kind of possession—by what _actio_ or legal formula could such possession have been enforced?

These points were to me a stumbling-block, till Professor Courtney Kenny of Cambridge kindly came to my aid. As the extension here of _Mansuefactio_ is apparently unique, and would possibly have been repudiated by jurists after Mucian’s time, we seem to be faced by a novel point, which on account of its intricacy and interest will appeal to people learned in the Roman Law.

The Professor’s letter runs: “Ownership in the _Anthias_ must have been created by that form of Occupatio of a res nullius, which consists, not by the physical detention by angling, or by a piscina, but in mere mansuefactio. This form is familiar for birds (_Dig._, 41. 2. 3. 15: and for English Law, Bracton, 2. 1. 4): but for fishes I know of no other passage than the one cited by you. Perhaps jurists, not so early as Mucian, would have declined to admit that there had been a _true_ occupatio of this Anthias. The partner, who sold this fish, which was partnership property, would be called on to account for it, and pay over, in damages, his partner’s share of the price by the contractual action Pro Socio. He might, in addition, be made to pay a penalty for his wrong-doing in the delictual Actio Furti. For, though there was a legal _primâ-facie_ presumption (_Dig._, 17. 2. 51) in favour of the honesty of any partner in the sales of partnership-property, we are here expressly told that he acted ‘maleficii voluntate,’ _i.e._ his contrectatio of the fish was ‘fraudulosa,’ and therefore a Furtum. The defrauded partner might well have brought both actions at once (_Dig._, 17. 2. 45), but Pliny _speaks_ only of his having brought the last named one.”