94 



effect, to that extent creating a ' several' fishery, and conferring a new 

 species of property on the landowner. 



RIVERS. The general use of fixed modes of fishing has been pro- 

 scribed by laws of nations, in the just intent of prohibiting undue 

 powers of monopoly. Perhaps, also, on the principle of the analogy 

 that none but moving implements should be permitted for the capture 

 of a commonable kind of property constantly in motion, and therefore 

 liable to be taken by individuals in too great quantities by stationary 

 apparatus. 



That the proprietors of lands adjoining the sea shores should have 

 the privilege of the use of such engines, is tacitly sanctioned, or left 

 unfettered by the Great Charter. That foundation of common-law 

 rights ordains that weirs shall not exist except along the coast of the 

 sea.* The Act of 10 Charles I., passed in Ireland, forbids the 'setting 

 of stop-nets, still-nets, or standing-nets, fixed upon posts, or otherwise, 

 in the rivers where the Salmon should pass up from the sea ;' and 

 further enacts, 'that no manner of person or persons shall use, or set, 

 or take any Salmon with any such' fixed engines a clause which may 

 be interpreted to the extent that these fish were deemed inland pro- 

 perty, and to forbid their capture in any locality by stationary devices. 

 Weirs were interdicted in the rivers of Scotland by an Act of Robert I., 

 still leaving their use unrestricted on the open coasts. By the laws of 

 that country there is a prohibition of all fixed machinery for fishing of 

 Salmon in the rivers and waters where the sea ebbs and flows. This 

 is held to extend to all rivers and estuaries to the fullest extent to 

 which the sea ebbs and flows, and down to the fauces tewce at the 

 mouth of the firth, and the sands dry at low water, as well as in the 

 channel. It does not comprehend the proper shores of the sea. It 

 prohibits stake-nets in the land-locked estuary of a river, being the 

 intermediate space between what is strictly the river and strictly the 

 sea, but where the river and fresh water still exist with predominating 

 influence ; and they cannot lawfully be placed either in the channel of 

 such river or estuary, or on the sands which are left dry by the ebbing 

 of the sea.f 



The legal question then resolves itself into a hydrographical one, of 

 where a river terminates, and where the sea coasts commence. 



The Act of 1842 left the decision of the position of the mouth or 

 entrance into the sea of a river for fishing purposes, to the Commis- 

 sioners of Fisheries, but actually took up the question left doubtful at 

 law, by making it legal to erect fixed engines where the channel of the 

 stream is more than three-quarters of a mile broad at low water, and 

 confirming those 'established' for twenty years, and those for ten 

 years in a ' several' fishery, when existing where the channel was of 



* Nisi per costeram marts. Dr. Johnson defines the word coast as the shore 

 of the sea,' and adds, ' it is not used for the banks of less waters.' An estuary, 

 (from astuo, to boil, or be in a state of commotion,) is defined as an arm of the 

 sea : the mouth of a river, in which the tide reciprocates : a frith, being a strait 

 of the sea, where the water being confined, is rough. Can the coast of the sea 

 be said to have commenced where the banks of the estuary are opposite, and 

 close in sight, and where a channel exists ? 



t Evidence of the Lord Advocate of Scotland, 1849, quoting Mr. Bell's work, 

 section 1,116. 



