prerogative (r). It was considered by the early writers on the Common Law of England that although the dominion and jurisdiction of the sea belonged to the Sovereign, the free and universal rights of fishing and navigation exercisable under his jurisdiction and protection belonged to the subject (s). How and in what manner the Crown acquired the right to interfere with the exercise of the public right of fishing in tidal waters, we know not. Schultes (t) suggests that innovations were gradually introduced, and princes on the Continent, by a specious pretext that the universal promiscuous liberty of fishing occasioned disputes and was productive of pernicious consequences, assumed to themselves that privilege absolutely to the exclusion of their subjects; and none were permitted to exercise the occupation of fishing but those who had obtained a license from the Crown, for which a tribute was paid; by which means considerable revenues flowed into the public treasury and were regarded as part of the Regalia of the Crown. Schultes (p. 98) states that by the laws of France the right of fishing was formerly vested exclusively in the Prince, and the profits thereof were accounted the regalia of the Crown, and in Scotland salmon fishery is part of the minora regalia. It seems probable that the Conqueror brought over the idea that fishery in tidal waters was one of the regalia, and that he exercised the prerogative right to grant several fisheries and exclude the public from fishing in particular localities. An entry in Domesday Book (fo. 183) relating to Dunre, in Herefordshire, shows the public fishing had been excluded at that spot. "In aqua vero nemo piscatur sine licencia." Domesday Book (p. 280) also shows that the burgesses of Nottingham used to fish in the Trent and complain that they are now forbidden to do so. "In aqua Trente soliti erint piscari et modo querelam faciunt eo quod piscari prohibentur." In whatever way the right to create several fisheries in tidal waters arose, it is clear that in early times before the reign of Henry II. the power was extensively exercised, and several fisheries which are now in existence almost completely cover the whole of the tidal estuaries and many parts of the coasts of the kingdom. Textwriters deriving their knowledge only from decided and reported cases have considered that these fisheries so granted were exceptional and few in number (u). This is a fallacy, for it can be shown by records that they existed in almost every piece of tidal water round the coasts which was naturally available for the profit (r) Lib. 2, cap. 24, sect. 1. See Schultes, pp. 17, 18. (8) Schultes, p. 6. (t) Aquatic Rights, p. 6. (u) Hall on Seashore, p. 716. able exercise of an exclusive fishery. Numerous several fisheries in tidal waters were in existence before the date of Domesday (v), and in non tidal waters the fisheries appear to have been all appropriated to the lords of the manors (x). In the following chapters we have endeavoured to extract the evidence of ancient records and decided cases which may help to throw light upon the origin and history of fisheries and the manner in which they have been dealt with by the owners of them, and it is hoped that a study of the facts collected may be of service in solving many of the doubts, and of clearing up much of the confusion that has arisen in the past as to the nature and conditions of the fisheries now in existence. (v) See List of Fisheries, post, p. 400. FISHERIES. PART I. CHAPTER I. OF THE EVIDENCE AS TO FISHERIES IN DOMESDAY Book. DOMESDAY Book has many references to fisheries existing at the date of that survey. In some of the counties the commissioners who valued the manors have returned the profits more carefully than in others. In Berkshire 36 manors are returned as having fisheries; in Buckinghamshire, 17; in Cambridgeshire, 30; in Chester, 18; in Devon, 14; in Essex, 30; in Gloucestershire, 15; in Hampshire, 17; in Hereford, 13; in Hertfordshire, 12; in Huntingdonshire, 1; in Kent, 51; in Lincolnshire, 42; in Middlesex, 11; in Norfolk, 36; in Nottinghamshire, 19; in Oxfordshire, 20; in Shropshire, 17; in Somerset, 7; in Suffolk, 21; in Surrey, 10; in Sussex, 20; in Worcestershire, 15; in Yorkshire (where it was not wasted at the time of the survey) 10 manors. In Bedfordshire, where the rivers are small ones, we have no return of any fishery by that name, but we find 16 manors in which there is a return of the rent of the mill with a rent in eels, e.g. "ij molendinæ de 40s. et 120 eels" (a). This eel rent appears by comparison of other entries to show that the fishery in the manor was let with the mill to the miller. Eels at this period were considered the choice fish, and throughout Domesday Book we continually find this rent of eels as rent of fisheries, e.g. (p. 149) Evreham (Bucks), "De iiij piscariis 1,500 eels et pisces per diem veneris ad opus prepositi ville"; (p. 150 s), Medmenham (Bucks), "De piscar mille anguillas," and in this county the rent or value of all the seventeen fisheries is returned in eels. The case is the same in Cambridgeshire. In Hertfordshire all the rents or values of fisheries are in (a) At a later date we find several fisheries in nearly all the rivers in Bedfordshire. See post, p. 43. F. B eels, e.g. (p. 136 b) Hemelhampstead, "iiij molendine de 378. 4d. et 300 eels, less 25"; (p. 137 b) Hodesdon, "De gurgite c. anguillas " (p. 139) Odesdone, "De piscar cl. anguillas." In Kent we find rents in eels and rents in money for fisheries, and one fishery rendering herrings, (f. 10 b) Dodeham, "dimidia piscaria de ccc allecibus." In Leicestershire we find no return of either fisheries or eel rents; whatever fisheries existed were probably valued with the mills. In Northamptonshire there is no mention of any fishery, but many returns of mills valued and money and eel rents. In Oxfordshire there are fisheries rendering rent in money; mills rendering rent in money and eels; mills with fisheries valued together; (p. 156) Cersetone, "De molino et piscaria 15s. 6d. et clxxv angillas"; Codesdone, "Ibi molinum et ij piscariæ de xijs"; (160) Estone, “ Ibi molinum cum piscaria reddans xxxs.” There are also rents from fishermen who must have rented parts of or the whole of the manorial fishery, e.g. (f. 154 b) Dorchester, "Piscator reddit xxx stickas anguillarum" (b); (158) Haiforde, “ij piscatores de 900 anguillis.” In Shropshire we find fisheries rendering rent in money and also in eels, mills rendering rent in eels, or in eels and money: (f. 283 b) Achelow, "Molinum et piscaria de MDij anguillis magnis"; Edmendune, “Ibi molinum cum piscaria reddens xs"; (f. 257 b) Udeford et Ruitune, "v piscariæ in censu villanorum"; (f. 254 b) Etune, "Ibi piscaria in Taverna nil reddens." In Warwickshire no fishery is mentioned, but there are many cases of mills rendering eel rent. In Wiltshire no fishery is mentioned. In Worcestershire nearly all the fisheries render their rent in eels and the case is the same in Yorkshire. It would seem therefore that where we find a rent of eels returned as part of the profits of a manor in Domesday Book, there is a strong presumption that the fishery was let with the mill or included in the valuation made by the commissioners in the valuation of the mill. If this be so it could be shown that fisheries existed in almost every stream in the kingdom. The returns for the counties of Berkshire, Buckinghamshire and Oxfordshire, show that the Thames contained a succession of manorial fisheries throughout its course through those counties. Besides rents in eels. we have rents in salmon from fisheries in the counties of Chester, Devon and Hereford, and in one case, Petresham in Surrey (f. 32 b), a rent in eels and lampreys, "piscaria de milla anguillis et milla lampredis." The word usually employed in Domesday to denote a fishery is "piscaria," but a comparison of the Exon Domesday for Devonshire which is the original return of the commissioners for that county, (b) A stick of eels contained usually twenty-six eels. |