15 
the British parliament made in aid of and to supply the defects of the common law, prior 
tothe fourth year of James I,” (excepting several statutes specified), “and which are of a 
generai nature, and not local to that kingdom, shall be the rule of decision, and shall be 
considered as of full force until repealed by legislative authority.” We shall refer to 
Magna Charta and some of the early British statutes on this subject in aid of the common 
law, to show that under that law the regulation of the right to take fish, and for their in- 
crease and preservation, was always considered a Isgislative funetion. Under the com- 
mon law, obstructions to the passage of fish were held to be public nuisances, and subject 
to legislative control. 
_ That these rights were always, from the earliest times, considered of great publie inter- 
est and of vastimportance, is manifest from Magna Charta and the early British statutes. 
‘The arbitrary kings after the conquest claimed the ganie and fishin the Kingdom as a 
part of their prerogative, and conferred on their favorites and dependents royal fran- 
chises to take game and fish, to the exclusion of the people. This being in derogation of 
common right, there were many struggles to compel their monarchs to restore their an- 
cient rights. The first that proved successful was in 1215, when.King John was compelled 
to restore them by Magna Charta. The restoration of the rights it confirmed had been 
petitioned for during several previous reigns, but although promised, were never re- 
stored. Succeeding monarchs disregarded its provisions, but they were comnelled to re- 
affirm the great charter. The 39th chapter of that instrument declares: “All kydells 
(weirs) forthe future shall be quite removed out of the Thames and the Medway, and 
through all England, except on the sea coast.” (Thomn. Es. Mag. Ch. 81.) This charter or 
declaration of rights was confirmed by Henry III, in 1216, (id. 112,) and again by 
the same monarch in 1217, (id. 125.) and a third time in 1224-25. (Id. 1388.) It was also eon- 
firmed by Edward I, in 1297,—and in each of these confirmations the provision in regard to 
weirs is in precisely the same language. As illustrating the great importance attached to 
the right of fishery, the 48th chapter of the same charter provided: “Ali evil customs of 
forests and warrens, and foresters and warreners, * * water banks and their 
keepers, shall immediately be inquired into by twelve knights of the same county, by 
oath, * * * and withinforty days after inquisition is made they shall be altogether 
destroyed by them, neyer to be restored.” Id. 85. This author, in his notes, (page 203,) says, 
‘speaking of this last provision of the charter: “It ordains that river banks shall not be 
defended excepting at their ancient places and boundaries; and its intent was, says Lord 
‘Coke, that no owner of such banks should in the future so appropriate or keep the rivers 
separate to himself as to prevent others from fishing or having passage atthem. Sir Ed- 
ward Coke says that Magna Charta and the Charta Foresta have “been confirmed, estab- 
lished and commanded to be put into execution by thirty-two several acts of parliament 
in all;” andinasmuch as this provision in regard to weirs seems to have been embraced in all 
of them, it establishes beyond all question that the power to control the exercise of the 
right of fishery was then, esit has been ever since, regarded as of national concern, and 
of such public importance as to form one of the chapters of the constitution or bill of 
rights of the British people, maintained only by long and bitter struggles. 
The first statute we shall refer to is the 2d Westminster, 13th Edw. I. It provides: 
“The waters of Humber, Owse, Trent, Dove, Arre, Derewent, Wherfe, (Nid, Yore,) Swale, 
Tese, (tine, Eden,) and all other waters, (wherein salmons be taken,) shall be in defence 
for taking salmons, from the Nativity of our Lady unto St. Martin’s day; and likewise, 
that young saimons shall not be taken nor destroyed by nets, nor by other engines, at 
mill pools, from the midst of April unto the Nativity of St. John the Baptist; and in places 
(where as fresh waters be) there shall be assigned conservators of this statute, which, be- 
ing sworn, shall oftentimes see and inquire of the offenders; and for the first trespass they 
Shall be punished by burning of their nets and engines, and if they offend a ‘second time 
they shall be punished by imprisonment for a quarter of a year, and if they offend athird 
time they shall be punished by imprisonment for a whole year, and as their trespass in- 
ereaseth so shall their punishment.” (1 Eng. Stat. at Large, 211) The 1lsth Richard, 2 C. 
19, contains similar provisions. The 1st Eliz. 17, prevents the taking of young fry or spawn 
of fish, and it also prohibits the taking of various kinds enumerated, under specified 
lengths. The3d Jac. 1C. 12, prohibits the erection of weirs at specified places, or usin 
“nets to destroy the fry or spawn of seafish. And there are anumber of ancient statute 
that are local to counties or particular streams. ‘There are other statutes of the same 
eharacter adopted by parliament. on the same subject, that might be referred to. It thus 
appears that the preservation and the regulation of the mode and time of taking fish was 
of public concern, and a proper subjectof legislation. It is thus distinguished from a mere 
‘private right not within the domain of legislation. 
| But as bearing gn this question, as on the question of prescription, we will refer to 
‘some cases that shed much light on it. In Weld y. llornby, 7 Kast, 195, Lord Ellenborough 
‘said: ‘‘The erection of weirs across rivers was reprobated in the earliest periods of our 
‘law. They were considered as public nuisances. The words of Magna Charta are, that 
‘all weirs from henceforth shall be utterly pulled down by Thames and Medway. and 
throw hall Evgiand, ete. Andthis was followed up by subsequent acts treating them as 
public nuisances, forbidding the erection of new ones, and the enhancing, straightening or 
enlarging ot those which had aforetime existed. I remember that the stelis erected in the 
‘Tiver Eden by the late Lord Lonsdale and the corporation of Carlisle, whereby all the fish 
were stopped in their passage up the river, were pronounced, inthis court, upon a motion 
for a new trial, to be illegal, and apublic nuisance. Now, here it appears that previous to 
the erection of this complete stone weir there had always been an escape for the fish 
‘through and over the old brush-wood weir, in which those in the stream above hada 
‘right, and it was not competent for defendant to debar them of it by making an impervious 
wall of stone, through which the fish could not insinuate themselves as it is well known 
they will through a brush-wood weir, and over which it is in evidence that the fish could 
‘not pass, except in extraordinary times of flood; and however twenty years’ acquiescence 
may bind parties whose private rights only are affected, yet the public have an interest 
in the suppression of public nuisances, though of longer standing.” In the same case, 
Lawrence, J., said: ‘There is no bar to the action from any length of possession in the 
defendant.” That case was by an upper riparian proprietor, and it appeared by ancient 
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