182 THE SALMON. 



no stronger position as to legality, and in a much weaker 

 one as to consuetudinary use, than many of the modes 

 of fishing wliich the fishery laws have suppressed from 

 time to time throughout several centuries. 



The judicial decision on the point of legality went 

 only this length — that the river or upper proprietors had 

 not a sufficient title to sue, that title being only in the 

 Crown as grantor. No action at law has been raised 

 by the Crown, and consequently it has not been really 

 decided whether the law would support these engines 

 against a plea by the grantor, that the grant had been 

 abused or exceeded. It is almost necessary, however, to 

 presume, from the fact of the Crown never having raised 

 such an action, that its law-advisers have been of opinion 

 that the law as it stands is not sufficient to reach these 

 engines. But, assuming that, how is it that the law 

 happens so to stand ? Simply by accidental omission, 

 or rather by the evil not having been in existence or 

 contemj)lation when the laws were made ; in short, from 

 the laws being old and the engines new. From the 

 earhest period, as already mentioned, legislation was 

 directed to prevent the erection of any standing obstruc- 

 tion, or even of any object the sight of which might 

 deter, in or across " the run of the fish." Until quite 

 lately, it was not known that the fish had a " run" along 

 the sea-coast, almost as definite, and, generally speaking, 

 no broader, than their run within the estuaries and larger 

 rivers ; consequently the words as to fixtures used in 

 the Acts had reference only to rivers and estuaries — that 

 is, to the only places where fixtures had existed or were 

 thought possible. And even after it was discovered that 



