15 



sea and its arms, and of the right of fishing there/ [Hargrave's Tracts, 

 4to, London, 1787,] states that the public may not be restrained from 

 their right of common of piscary, ' unless in such places, creeks, or 

 navigable rivers where either the king or some particular subject hath 

 gained a propriety exclusive of that common liberty.' He affirms the 

 power of the crown to grant fishing within a creek of the sea. The 

 question appears to lie, as to the royal power to grant a ' several' 

 fishery of a river, to place a river in defense, notwithstanding the pro- 

 visions of Magna Charta. On this head it stated that 'all pretence of 

 prerogative against Magna Charta is taken away by the statute of 

 Marlebridge' ; and, that all the statutes made contrary to that charter, 

 which is Lex terrce, from the making thereof until 42 Edward III. 

 are declared and enacted to be void : therefore any act concerning the 

 extra-judicial commandment of the king contrary to that charter is 

 void. [Institutes, pp. 36, 187.] Dormiunt aliquando leges nunquam 

 moriuntur. 



On the subject of " Title by Prescription," the following passage is 

 taken from Domat and Strahan, on the Civil Law of England, London, 

 folio, 1737: 



" We cannot acquire by prescription the things which nature, or the 

 law of nations destined to a common and public use, such as the banks 

 of a river necessary for navigation, the walls and ditches of towns, and 

 other like places." Vol. i., p. 470. 



The Master of the Rolls, in his judgment on the trial of the title to 

 the Lax weir at Limerick, 1841, states as follows : "There might be 

 a prescriptive right in the crown to a several fishery in a navigable 

 river, which might be passed by a recent grant; but I would require 

 further evidence than exists in the documents before me to satisfy me 

 that such is the law, or that any such presumptive right has ever 

 existed in the crown, to a several fishery in a public navigable river, 

 to the exclusion of the public at large." Report of 1849, Evidence, p. 74. 



Flumina et portus publici sunt, ideoque jus piscandi omnibus com- 

 mune est in portu fluminibusque. " Though this rule, which is a 

 rule of the civil law, be thus, and so found in Bracton, yet by the 

 common law of England, a man may have a proper and several interest 

 as well in the water or river as the piscary, and therefore the water 

 maybe granted." 11 R. 2. Plow. Com. 154 a. "If one grant another 

 aquam suam the piscary in it passeth, because it is included in the 

 word aqua." The Grounds and Rudiments of Law and Equity, folio, 

 London, p. 122. Lord Hale writes, that "a subject may by prescrip- 

 tion have the interest of fishing in an arm of the sea, . . . not only 

 free fishing, but severall fishing, .... such as gurgites, weares, fishing 

 places, &c. And such as these a subject may have in grosse, as many 

 religious houses had; or as both corporations and others have had: 

 and this not only in navigable rivers and arms of the sea, but in creeks, 

 and ports, and havens." Omnes consensus tollit errorem. 



WEIRS. Magna Charta, cap. xxiii. Omnes kidelli deponantur de 

 csetero penitus per Thamesiam et Medeweium per totam Angliani 

 nisi per costeram maris. 



" Kidels is a proper word for open weirs whereby fish are caught. 



" It was specially given in charge by the Justices in Eir, that all 

 juries should inquire, de hiis qui piscantur cum kidellis et sharkellis. 



