63 



of Henry VIII., prohibiting ' weirs, mill-dams, engines, straites, pur- 

 prestures, and other like obstacles,' on the four rivers discharging them- 

 selves into the Waterford estuary, imposed a penalty of ten shillings 

 on any person refusing to accompany the sheriff and posse comitatus, 

 to aid in prostrating the same. The Act 5 & 6 Victoria, only re- 

 peals so much of that statute as relates to the destroying of salmon 

 fry, leaving the law for prostration still in force. It is not supposed 

 that these men acted on a tradition of this old law, but there is a later 

 statute authorizing a peaceable abatement of illegal weirs, and which 

 was sometimes acted upon prior to its recent repeal. The often 

 quoted Act of 10 Charles I., declared standing nets unlawful. By the 

 common law of the land any Aggrieved person may, without riot or 

 affray, abate a nuisance.* The right to do so was recognised by 26 

 George III., c. 50, enacting that if any person shall unlawfully erect 

 or keep up any weir upon any river in Ireland, a notice shall be served 

 on the proprietor, or occupier, or known agent; and, if continued after 

 judgment given against it for seven days, it shall be lawful for any 

 persons to prostrate the same. 



The costs and expenses of prosecutions in the Waterford estuary 

 alone from the year 1842 to the 12th February, 1849, in indicting 

 parties for erecting illegal stake-weirs, amounted in fees to the clerk of 

 the Crown, to 63 19s. 6c. ; to counsel, 319 13s. 3d; and expenses 

 of witnesses, 309 15s. ; total, 693 7s. 9d. : making an average cost 

 of 100 a year, and the Crown still remaining unsuccessful in repress- 

 ing them. This expense even deterred the Government from proceeding. 

 Much doubt was also entertained how to frame or sustain an action. 



A number of the cot-men were prosecuted. Judge Perrin, in his charge, 

 announced that their proceedings were illegal ; that even if a certain 

 weir was unlawful they had no right to abate it. He continued : ' Be 

 assured that the law is strong enough to support your rights, and that 

 the strongest support you can have will be found in the law and its 

 officers, and you will only endanger your rights by endeavouring to 

 enforce them by violence. If these weirs are illegal, it is the duty of 



resort to such means of enforcing the law is highly dangerous, and it is hard to 

 say which is more culpable, the individual who dares the law by an illegal erec- 

 tion, after a solemn conviction, or those who, finding that they cannot get legal 

 redress, take the law into their own hands ; a great deal of excitement prevails 

 here on the subject. It is rumoured that the cot-men intend to sweep the whole 

 river of the weirs ; armed bodies of men are watching their approach, and it is 

 believed that blood will be spilt. The tenants of Mr. Power, of Faithlegg, 

 have been for some days armed, and determined to fire upon the cot-men. 

 When a gentleman of Mr. Power's position, and Mr. Dobbyn, the sub-sheriff of 

 the county, sanction such proceedings, it would seem to be high time for the 

 government authorities to interfere for the prevention of outrage." Appendix, 

 1649, p. 81. 



* Baron Pennefather in case of the Queen v. P. W. Power, in an indictment 

 for a nuisance to the public right of fishery in a tidal part of the river Suir, by 

 the erection of a Scotch or stake-weir, gave this judgment : 



* This weir is to be justified at common law. Taking into consideration the 

 words of Magna Charta, 12 Edw. IV., and the dictum in Weld v. Hornby, I 

 am bound to say that the erection of this weir is illegal at common law, as 

 tending to the injury of the public right of fishery. I think it is prohibited by 

 Magna Charta, and think it is an illegal weir. Whether it be " established" or 

 not, within the 23rd section of the Act, is of no consequence, as I am of opinion 

 that it is an illegal weir.' .Select Com. Appendix, 1849, p. 34. 



