95 



less width ; thus in effect defining the sea shores to commence at that 

 point. 



With what hydrographical or fishing justice can the ' coast of the 

 sea' be said to commence where a channel in the tidal part of a river 

 of such limit exists 1 



The use of fixed nets upon the open coast is not so open to objec- 

 tion. They cannot obstruct navigation materially, nor intercept fish 

 to a monopolizing extent, as in an estuary where Salmon concentrate, 

 and move backwards and forwards with every tide, and where they 

 may be readily taken by drift-nets or seines. Bag-nets also afford the 

 only means of fishing on a rocky or exposed shore. But that proprie- 

 tors of land adjoining estuaries and tideways should, by the use of 

 these novel and improved contrivances, become the usufructuaries of 

 an entire river to an extreme degree, is manifestly impolitic and unfair. 



The 22nd section of the Act 5 &, 6 Vic., c. 106, permits the erection 

 of fixed engines within one mile on either side of the mouth of a river, 

 where the channel of the tideway is more than three-quarters of a mile 

 wide at low water of spring tides, by persons not already owners of a 

 ' several' or exclusive fishery, either inwards or outwards of the mouth 

 of a river less than half a mile wide. The situation of the mouth to 

 be defined by the Commissioners. 



The 23rd section is a saving for any stake-weirs and other contriv- 

 ances for placing or erecting nets, which had been 'established' for 

 twenty* years, within a tideway of less than three-fourths of a mile at 

 low water, thereby rendering them legal, and leaving the title to main- 

 tain them subject to trial.t 



The 24th section provides, that stake, and ebb, and flood weirs, or 

 other fixed contrivances, ' established' for ten years or upwards, within 

 the limits of a * several' fishery, are not to be deemed illegal, when 

 they have been erected ' by any person legally possessed of, or entitled 

 to such several fishery by charter, grant, patent, prescription, or Act 

 of Parliament, in and by which such limits are accurately defined.' 



The 25th section saves the right to maintain or erect ' that ancient 

 description of weir commonly called " head-weir," not fished by means 

 of a fixed net, but the rights of every party now legally entitled by 

 charter or prescriptive right, to the erection or maintenance of such 

 weir, shall continue.' 



The 26th section provides, that stake-weirs shall not extend further 

 than low-water mark. 



* Prescription in Scotland, to establish a right, requires forty years' posses- 

 sion on a sufficient title Evidence of the Lord Advocate, p. 519. 

 r f ' One weir may be protected by the 23rd section, and another may not. I 

 consider that with respect to this question, the only forum provided to try it, is 

 a tribunal of magistrates : that there being in the 23rd section a new offence 

 created, and a penalty and a summary method, it is clear and settled law that 

 you must proceed for that penalty by that summary method, and that no in- 

 dictment lies. This Act differs from that of Charles I., inasmuch as under the 

 latter, the offence created was expressly declared to be indictable. There is no 

 such clause in this Act ; therefore I am clearly of opinion, that no indictment 

 lies for the statutable offence created by this Act, and that that matter has been 

 decided by the only forum by which it can be tried, namely, by the tribunal of 

 magistrates.' Evidence of Counsellor Alcock, p. 502. As to the difficulties of 

 obtaining a conviction before this forum, see pages 54 and 87, and Evidence, 

 p. 142. The law officers of the Crown would not undertake the responsibility. 



