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In this case, it appears to have been the opinion of the judges and Callis, that the only ground on which this weir could be upheld was, that it was “an ancient weir by prescription and custom,”—“ an ancient weir time out of memory.
Robson v. Robinson is thus reported by an eminent lawyer : “ Case for injuring the plaintiff's fishery in the river Eden, in the county of Cumberland, by erecting a weir and stells, &c. across the river, below the plaintiff's fishery, which prevented the fish from passing up the river to the fishery of the plaintiff. Plea—not guilty. At the trial of the case at Carlisle, before Buller J., the plaintiff proved his title as laid in the declaration; and the defendant, who was the lessee of the Corporation of Carlisle, to whom the fishery was worth 800l. a year, tendered evidence to prove an immemorial exercise of the fishery by the corporation, and their lessees in the manner complained of by the plaintiff
. The plaintiff thereupon insisted that such a fishery was illegal by statute (2 Hen. VI. c. 15) which prohibits weirs. The defendant contended that the act only applied to navigable rivers, and that the object of it was only to preserve the navigation and to prevent the destruction of the fry, neither of which injuries was proved to have occurred in the present case. It was also objected that the action would not lie, as it was an action brought for a public nuisance. Buller held that the statute was decisive of the question, and that it rendered the fishery claimed by the defendant illegal, and he directed a verdict for the plaintiff.”* A new trial was moved for and granted, because the court thought it necessary “for the purpose of putting the facts into a special verdict.” On that occasion Lord Mansfield said, “ As the case now comes before the court, it must be admitted that the weir has stood from time immemorial: that it does not interrupt the navigation: that it does not destroy the spawn or fry of fish, and that it is not perpetual;” and Mr. Justice Buller—"I agree that there should be a new trial for the purpose mentioned. It may
be a great question if it comes to the construction of the act; but if it turn out that the defendant has not used this weir immemorially, that point will not arise.”t Here it may be perceived, that the points relied on in favour of the corporation were, that the weir had been used by them from time immemorial--that the Eden was never navigable beyond it—that
3 Dougl. 307-8.
| Id. 309.
it did not prevent the navigation, or destroy the brood or fry of fish, and that it was not perpetual. Could all these be advanced in favour of the Limerick and the other monopolist weirs in this country? Notwithstanding all these points, the judges intimated their opinions so decidedly that this weir was a public nuisance, that though the motion for a new trial was granted, the defendant proceeded no further with it, and allowed the stells to be abated.* Lord Ellenborough, who, as Mr. Law, had appeared for the defendant on the motion for the new trial, said in reference to it in delivering judgment in Weld v. Hornby, “I remember that the stells erected on the river Eden by the late Lord Lonsdale and the corporation of Carlisle, whereby all the fish were stopped in their passage up the river, were pronounced in this court, upon a motion for a new trial, to be illegal and a public nuisance; and Lord Kenyon said no man can claim an estate in a public nuisance.”
This case of Weld v. Hornby, may be also noticed. It was an action for erecting a stone weir across the river Ribble, by which fish were prevented from coming to the plaintiff's weir in the upper part of the river, this stone weir having been recently erected, instead of a brushwood weir, which had existed there from time immemorial, but through which it was possible for the smaller fish to escape. The defendant set up a grant in the reign of James I, of a water-corn mill, and the liberty of taking in all seasons the salmon in the river and all other fish, with a right to a weir across the river, not limited in terms as to height or breadth. The jury found for the defendant on the ground of the usage, possession, and old grants. The verdict was set aside, Ellenborough, C. J., saying-" It is impossible to sustain this verdict. The right set up by the defendant to have a stone weir, is plainly founded on encroachment. The erection of weirs across rivers, was reprobated in the earliest periods of our law. They were considered as public nuisances. The words of Magna Carta, 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, treating them as public nuisances, forbidding the erection of new ones and the enhancing, straitening, or enlarging of those which had aforetime existed.” #...." And I believe there does not exist in Great Britain a single undisputed weir in any river, built entirely across the river.”*
* Second Rep. of 1825, p. 140.
† 7 East, 199; 3 Smith, 247. # 7 East, 199.
These statutes and cases require no commentary from us; and are, we imagine, sufficiently intelligible and apposite, to exonerate us from the imputation of presumption, in doubting the propriety of admitting the legal title of the corporation of Limerick to what would seem to be nothing better than a public nuisance; and there are few lawyers, we believe, who would say that there is a weir in any navigable tidal river in the kingdom deserving of any other character.
The patentees have some colour of law for their pretensions, but those who claim the exclusive fishery of the sea and tidal rivers, merely because they happen to have lands adjoining either, are the most shameless plunderers in existence. A few sentences will be sufficient to dispose of them. That the shores of the sea, or a navigable river, belong not in presumption of law to the owners of the adjoining land, has been expressly decided, in Rex v. Smith, 2 Douglas 441. The right of the subject in respect of the adjoining land extends to the edge of the high-water-mark of the ordinary or neap tides, and can extend to the low-water-mark only by grant beyond time of memory, or prescription. The shore is that part of the land adjacent to the sea, which is alternately covered and left dry by the ordinary flux and reflux of the tides. In other words, the rights of the proprietor of the adjoining land, do not extend an inch beyond the highest ripple of the ordinary tide. So jealous is the law of the rights of the public over the soil and waters of the sea and its branches, that every one may fish in the sea, of common right, though it flows on the soil of another ;|| and may justify going on the land adjoining the sea to fish, “ for this is for the commonwealth, and for the sustenance of many, and is the common law ;'and to such an extent has this doctrine been carried, that if a tenant's land be overflowed by the sea, he will be at once entitled to an apportionment of the rent, as every one can fish on it as well as he.** It would argue a very profound and singular ignorance of the history of this country, to suppose that its present landed proprietors enjoy any privileges over the sea and its branches by prescription; and yet they blush not, contrary to every principle of law and justice, to appropriate to themselves the fishery of the sea and its branches adjoining their lands, as if it were part and parcel of their inheritance.*
* 3 Smith, 247.
Hall, “ Essay on the Rights of the Crown on the Sea-shores," p. 13. # Hale on Maritime Law, part 1, c. 5; Callis, p. 53.
$ Hall, p. 8. Schultes' Ag. R., citing Mod. Ca. 73 ; 6 Com. Dig. 55.
“Car ceo est commen welth et pur sustenance de plures, &c., et est le cominen ley quod fuit concessum."- Bro. Ab. tit. Customes, 46.
** Rolle's Ab. title, Apportionment, 236 C. 2.
Having now pointed out the illegality of the pretensions of the patentees and other monopolists, it only remains for us to indicate the means by which the people may redress themselves. Against the weir-owners they may proceed by indictment, information, action, &c. &c.; and those who prevent them from exercising their common-law right of fishing at lawful times and in a lawful manner, they should compel to prove their title in a court of law. It only requires that the people should know their rights and assert them, to get rid of this enormous injustice. The abandonment in the Limerick case, of the claim to the exclusive fishery of sixty miles of the Shannon, proves how much may be gained by an appeal to the law. At the Kilkenny assizes of 1835, Mr. Arthur French, in behalf of the Wexford fishermen, proceeded by indictment against the proprietors of weirs on the Nore, which had till then been considered legal, and they at once pleaded guilty. If similar attacks be made in other quarters, similar results will follow. The monopolists have neither law, nor justice, nor public policy, nor public feeling, nor party interests to sustain them, and must strike at once, if properly assailed.
We cannot close this paper without expressing, on behalf of our countrymen, the gratitude which is due to the three or four gentlemen who, out of all our millions, have distinguished themselves by their active legal hostility to the claims of the monopolists. The only persons whose names we could find so honoured in the reports of the committees and commissioners, are the Rev. Mr. Staples, rector of Moville, in the barony of Inishowen; Mr. Alexander Orr, of Aghadowhy; and Mr. Arthur French, whose name requires no addition. The Rev. Mr. Staples has been for several years past opposing the claims of the northern monopolists to the exclusive fishery of the Foyle. Did all the ministers of his church exhibit similar zeal in vindicating the rights of their oppressed countrymen, they would be amply repaid by the love and gratitude of those who, for their sakes, would forget the system of which they are the instruments. Of Mr. Orr we have already mentioned all that we found concerning him in the reports before us. Mr. Arthur French has for many years devoted his professional services to maintaining the rights of the poor fishermen of Wexford; and their gratitude, and the satisfaction of having done his best to promote their welfare, have been the only rewards which he has sought or received. To this list must we add the name of Mr. Potter, whose services, though last in chronological order, are probably first in the national importance of their results Were we aware of the exertions of any other persons in this cause of justice and charity, we should, for a multitude of reasons which it is needless to enumerate, gladly name them. We regret extremely that those who have exerted themselves in it are so very few. Perhaps this has arisen in a great measure from each person considering the monopoly in his own neighbourhood not as part of a general system, but as a mere local grievance, and furthermore as sanctioned by law. But now that we have pointed out its national extent and its illegality, and shown how it may be suppressed, and how its suppression will be the means of at once giving food and employment to some hundred thousands of our countrymen, we trust that the numbers who will devote their energies to its suppression will be soon past counting, and that the people at large will be restored to the rights to which by every law divine and human they are entitled. May these anticipations be speedily realized, and
* They also appropriate the slob, sand, sea-weed, &c. &c.
† Rep. of 1836, p. 66. It is not stated under what law he proceeded. The 28 H. VIII, c. 22, applies specially to the Boyne, Nore, Suir, and Rye.
their realization be the forerunner of a train of practical plain plodding thought and action, which will enable our countrymen to enjoy as much as possible of the homely solid comforts which Providence has so bountifully placed within their reach, but of which human policy has hitherto but too successfully defrauded them.
Art. V.-Scriptorum Veterum Nova Collectio, e Vaticanis
Codicibus Edita ab Angelo Maio, Bibliothecce Vaticano
Præfecto. Vol. I.-X. Romæ : 1831-8. THO
HERE can scarcely be one among our readers who is
not acquainted with the invaluable fragments of Cicero De Republica, published many years since by Mgr. Mai, and reprinted several times, both in England and in different