49 



This extraordinary devolvement of authority for the sum- 

 mary abatement of an injury to the community is an evidence 

 of the intent of the Legislature to afford stringent means for 

 protecting all existing interests, and formed the precedent for 

 the summary powers, given by the Act of 1845, to repress cer- 

 tain illegal encroachments on the common right of fishing, not 

 less to be guarded than that of navigation. 



The following extract* from the Report of the Inspecting 

 Commissioners of Fisheries, dated 18th April, 1849, presented 

 to the Select Committee, proves their sense of the difficulties 

 as to the strong judicial powers invested in the Board of Works, 

 as Commissioners of Fisheries. 



The Act of 1845, 8 & 9 Viet., cap. 108, reciting that, not- 

 withstanding the provisions of the previous statute with regard 

 to the erection and use of stake-weirs, and other fixed nets, 

 the same were in many instances erected and used in prohibited 

 places, by parties who had no title to do so, empowered the 

 Commissioners, for the protection of public rights, and to pre- 

 vent disputes, to suspend their use, and remove them, in cases 

 where it shall appear to them that the same are illegally 

 placed ; subject to appeal to the judge of assize. f 



In the non-exercise of such unusual powers in both these 



* " Section 21 provides that no stake-net shall be placed so as to be injurious 

 to navigation, and empowers the Commissioners to remove them. The Com- 

 missioners have not exercised this power, and it may be very questionable 

 whether it is expedient that they should be invested with it, because, with 

 respect to navigation, the Admiralty have ample powers under the common 

 law with reference to it. We believe it quite undisputed, it imposes a very 

 embarrassing duty upon the Commissioners, quite foreign to the question of 

 fisheries, and places them, we think, in a false position, the Legislature having 

 imposed this duty upon them. Strictly speaking they should perform it, and 

 failing to do so, a public department may rest under the imputation of something 

 more than mere neglect ; and their having declined to do so in this instance 

 has created difficulty in some prosecutions at common law before judges of as- 

 size ; for it has been pleaded to juries, by lawyers, that the Commissioners of 

 Fisheries have not considered stake-weirs injurious to navigation, otherwise 

 they would, no doubt, have administered the law, and performed the duties 

 imposed upon them by the Act ; and this plausible assumption has had its effect; 

 while we believe the real cause of the Commissioners of Fisheries declining to 

 act has been, that it would involve the prostration of almost all weirs, and 

 render entirely nugatory the whole provisions of the 5 & 6 Viet., purporting 

 to legalize them, in any position almost, within the mouths of harbours, no 

 matter what the breadth of the channel might be." Appendix to Report, 1849. 



f INITIATIVE POWERS To invest the Commissioners of Fisheries with 

 extra-judicial powers in matters in which questions of title and law may be in 

 the slightest degree involved, while it is unconstitutional in principle, is also 

 highly objectionable. But where no difficulty is found in discriminating be- 

 tween matters of fact and those of a legal nature, and a decision can be accu- 

 rately arrived at as to illegality, it appears very expedient that executive 

 functions should be given, and actively exercised, for enforcing definite regu- 

 lations. In this there can be nothing exceptionable, because, in questions 

 purely matters of police, if the line of duty is overstepped, there will be power 

 of appeal to the ordinary tribunals, or to the superior government. The ex- 

 pediency may also be considered of constituting the Fishery Board the medium 

 through which the initiative process of legal proceedings may be conducted, ia 



