« 上一頁繼續 »
fendants had fished within its limits; and whether the plaintiff had an exclusive right at all.* With these questions we have no concern. The jury, after hearing speeches and evidence for five days, and being locked up a whole night, separated without agreeing to a verdict.
We regret that we are compelled to differ from the eminent lawyers who were engaged for the defendants, as to the proof of a prescriptive title to the great weir in this case. We cannot understand how they could have imagined that any such title was proved. The earliest document produced in proof of it was a grant in 1202, by king John to William of Bradosa, of the honor of Limerick, “with all its appurtenances, wood, waters, mills, fisheries, &c. &c.”_" fisheries” being like the rest, a mere word of form, without reference to any particular fishery. The next document was a grant by John in 1216, of £10 a-year to the Bishop of Limerick, for and in consideration of his claims on the fishery of Limerick." The third document bore date in 1274, from which it appeared “that a gulph in the waters of Limerick was held at a rent of 100 marks annually by the citizens of Limerick."* It is obvious that the firsť document was not of the slightest earthly consequence in the consideration of the question then before the court, and even if it were, it is thirteen years posterior to the first year of Richard I and the last of Henry II, 1189. The second document is twentyseven years posterior to that important legal epoch, and one year to the signing of the great charter (1215). So that here the proof of prescription or possession in the reign of Henry II completely failed; and as this was a claim against common right, there could be no presumptions in its favour. To be maintained, it should be strictly proved. In all the English cases on this subject, the proof has been carried back to the reign of Henry II at the least, and generally to the reign of the Conqueror; an extract from Domesday-book being the first document commonly produced.* But supposing even that the jury might be at liberty, from those documents, to presume an appropriation by the crown in the reign of Henry II, the defendants, had they gone into evidence at all, could have rebutted that presumption by producing any history of Ireland or of Limerick: f from which it would appear to the satisfaction of any reasonable being, that neither in presumption of law nor in fact, could there have been any such appropriation. For this reason alone, we cannot understand why the title to the weir should have been admitted.
* As the meaning of the word gurges formed one great subject of contention, and the want of proof of exclusive possession was the only ground of nonsuit relied on, the following observations by Lord Hale, in a similar case, may not be inapposite : “ In the Severn there are particular restraints, as gurgites, but the soil doth belong to the lords on either side, and a special sort of fishing belongs to them likewise, but the common sort of fishing is common to all.” Anon. 1 Mod. 106. “ Weirs, as in Suffolk and Norfolk, may be particular in the main sen, 35 Ed. I, Rot. 18 and Tr., 10 Ed. II, Rot. 83, or on the shore, and yet the fishing may be and is common to all subjects.”—Lord Fitz Walter's case, 3 Keb. 242.
† Pp. 9, 10.
The legality of this weir is a matter of such importance, that we may be excused for dwelling further on it. It is by such weirs that the monopolists throughout the entire country almost universally exercise their privileges in the most effectual and objectionable manner, and inflict, as we have already shewn, the greatest possible amount of mischief and injury on all classes of the people. The utility, therefore, of abating them requires no further demonstration. As whatever may be said against the Limerick weir will apply to all of them, and many things may be said against them which would not apply to it, we shall direct against it a battery of a few of the statutes and cases of which we are masters, so that when it is demolished, all the others may find it “the better part of valour" to surrender at discretion.
The reader will bear in mind all that we have already said respecting this weir. We shall here merely add, that but for it, the river would be navigable for some distance above it, and that the tide rises to a height of twelve feet at each side of it. It is made of stone piers extending across the river like the piers of a bridge, and lath-work stretched across securely from pier to pier at the western side, or that on which the salmon come from the sea. To every alternate pair of piers there is lath-work affixed at the eastern side also, so as to enclose a complete chamber. There is an aper
* See Duke of Somerset v. Fogwell, 5 B. & C. 875 ; Williams v. Wilcox, 8 Ad. & El. 314. † A general history is evidence to prove a general matter, Phillips' Ev. 605.
During his reign it was twice in the possession of his garrisons, who were each time after a short occupation obliged to abandon it. So assured was Donald Brien, who had held it since 1177, of its safety in his hands, in 1194, that he in that year founded the cathedral. In 1195 the English regained possession, but were driven out again by M'Carthy of Desmon When they next obtained possession does not appear, but in 1199 the city is found under their authority, and governed by a provost.
ture for the salmon to get in, and of course none to get out. Between the other piers there is no passage for them, so that when they push their snouts against the lath-work they are obliged to grope their way aside till they get into these very snug "chambers.” Thus this weir stands continually, from morning till night and night till morning during the fishing
We need scarcely add that it was not erected by “the wisdom of our ancestors” in the reign of Henry II. Up to the winter of 1825-6, there had been on the same site a weir so constructed as not to allow a salmon to pass it, and not having even the passage in the middle required by the statute. * This having been swept away by the floods, the lessee of the corporation replaced it by the present ingenious contrivance. At the trial, there was no attempt made to prove that the present or the old weir was erected prior to the reign of Edward I, and therefore under the provisions of several acts it is illegal merely for impeding the navigation. But if it should be proved to have been erected prior to that reign, and as there can be no proof to carry it back to the reign of Henry II, it must at all events be illegal under the provisions of the great charters and the common law. If, again, it should escape both these ordeals, and be proved older than the reign of Henry II, and not to impede the navigation, it would seem to be illegal according to Robson v. Robinson, under the 2 H. vi. C. 15.
The laws against such weirs are plain and intelligible. By the already cited clauses of the great charters they are strictly forbidden; by the common-law they were regarded and prohibited as nuisances.f By the 25 Ed. III, c. 24, it is provided that, “whereas the common passage of boats and ships in the great rivers of England be oftentimes annoyed by the inhausing of gorces, mills, wears, stanks, stakes, and kiddles, in great damage of the people, it is accorded and established, that all such gorces, mills, wears, stanks, stakes, and kiddles, which be levied and set up in the time of king Edward, the king's grandfather, and after, whereby the said ships and boats be disturbed that they cannot pass in such river as they were wont, shall be out and utterly pulled down without being renewed, and thereupon writs shall be sent to the sheriffs of the places where need shall be, to survey and inquire, and to do thereof execution," &c. &c. This was confirmed and extended by the 45 Ed. III, c. 2, and both were
* Fitzgerald's History of Limerick, vol. ii. p. 232.
| 2 Inst. 38.
And that every
further confirmed and extended by the 1 Hen. IV, c. 12, and penalties sufficiently severe provided for offenders. By the 2 Hen. VI, c. 15,* “ it is ordained that the standing of nets or engines called trinks, and all other nets which be, and were wont to be, fastened and hanged continually day and night, by a certain time in the year, to great posts, boats, and anchors, overthwart the river of Thames, and other rivers of the realm, which standing is a cause of as great and more destruction of the brood and fry of fish and disturbance of the common passage of vessels, as be the weirs, kydels, or other engines, be wholly defended for ever. person that setteth or fasteneth them hereafter to such posts, boats, and anchors, or like thing, continually to stand as afore is said, and be duly thereof by the course of the law convict, shall forfeit to the king one hundred shillings at every time that he is so proved in default; provided always, that it shall be lawful to the possessors of the said trinks, if they be of assize, to fish with them in all seasonable times, drawing and pulling them by hand, as other fishers do with other nets, and not fastening or tacking the said nets to posts, boats, and anchors, continuallyť to stand, as afore is said; saving always to every of the king's liege people their right, title, and inheritance, in their fishings in the said water." By the 12 Ed. IV, c. 7, all the statutes relative to weirs and fisheries, from Magna Charta inclusive, were confirmed and further extended, and still more stringent remedies and penalties were provided. This act enumerates “ weirs, fish-garths, mills, milldams, millstanks, locks, ebbing-wears, stakes, kedels, hecks, flood-gates, or other noyances, disturbances, or impediments,” which might destroy the brood or fry of fish, cause the flooding of lands, or impede the passage of vessels. All these enactments apply to this country, as by the 10 Hen. VII, c. 22 (Irish), all English statutes “concerning the common weal of the realm of England” were extended to Ireland. There can be no doubt that under all or some or one of them the Limerick weir is a nuisance. In the construction and application of them, we are not wholly without assistance from decisions in England. We shall select a few of these
* In the new and authorised edition of the statutes this is numbered 19.
† “ The word continually shall be taken continually so long as they may stand to take fish, and as the time of tishing endures, be it in the day or night, for ler non intendit aliquid impossibile, for otherwise the law should not be of any effect.”—Case of fishing in the river Thames, 12 Rep. 89. VOL. XI.-NO. XXII.
which appear most apposite to, and bear most directly and distinctly on, this Limerick case.
The case of Hall v. Mason and others, was, says Callis, “ in effect as followeth :—That Queen Mary was seized of the manor of Monmouth, with the appurtenances in that county and of a free fishing in the river Wye, and of a weir and fishyard there, which were erected in the time of the said queen, in the place where an old foundation of an ancient weir did stand. This weir had been letten by the said queen, and also by Queen Elizabeth, under the seal of the said duchy, by yearly rents; and so there were ancient precedents shown in that court. ... So that it was manifest that it was an ancient weir time out of memory. And this weir and fish-yard, and the profits of fishing were letten by the king's majesty, that now is” for thirty-one years, at 61. 13s. 4d. per annum. In the nineteenth year of James I, a jury, impanelled by the commissioners of sewers, “ touching this weir and fish-yard,” “ gave therein a verdict to this effect : that is, that Benedict Hall, the complainant, was possessed of the said weir, called Monmouth weir upon the river of Wye, which was excessive high and hurtful, and was an impediment to the common passage of boats, barks, and ballengers up and down the said river, and by means thereof they could not pass but in great danger, which, if the said weir were not, boats of two or three tons might pass the river; and that the said weir had been the death and drowning of one of the king's subjects, and is the cause of the scarcity, dearness, and want of salmon and other fish within the said river, by reason many of them were taken in gins of the said weir when they were out of season, and that the same was a great abuse, wrong, enormity, and annoyance to the whole country.” In consequence of this verdict, the weir was removed; but on proceedings being instituted in the duchy court of Lancaster, at Westminster, against those who, by the warrant of the commissioners, had thrown it down, the judges were of opinion, “ That the said weir, being an ancient weir by prescription and custom, it ought not to have been overthrown by the decree of the commissioners of sewers; and that the said verdict of the jurors was defective, because, though they presented the said weir to be over-high and enhanced, yet in regard they did not present, in quanto nor in qua parte, the said weir were enhanced above the ancient size, therefore, they esteemed the said verdict of no validity.
* Readings on the statute of sewers, p. 262.