facts that his suggestion is untrue (see Chapter III.). Again, the confusion arising from the many attempted definitions of and distinctions between "several" fisheries and "free" fisheries" (see Chapters VI. and VII.), has further helped to confirm the impression that fisheries are incorporeal and not, as they almost always are, corporeal hereditaments; and the view taken by Cockburn, C.J., in the case of Marshall v. Ulleswater Company, as to the effect of the grant of a fishery carrying the soil, has, by force of the respect rightly due to that most learned judge, tended to support the erroneous dictum of Lord Coke, and to further increase the commonly accepted idea as to the incorporeality of fisheries (see Chapters VIII. and IX.). This generally prevalent idea that fisheries were primâ facie incorporeal hereditaments has resulted in affecting the minds of conveyancers, who, in consequence, have, in drawing grants, deeds, and conveyances, made use of expressions and terms which produce the impression that fisheries conveyed by deeds and settlements were incorporeal and not, as in most cases they were, corporeal hereditaments: as, for example, ancient fisheries parcel of and never severed from a manor (see Chapters VIII. and IX.). The error of Manwood with regard to the right of the King to the fishery in rivers which are the bounds of a forest, or rather, the misstatement of the case on which he founds his dictum, has led to another erroneous notion, and is an example of the danger of looking upon the dicta of ancient text writers as correct and binding statements of law without careful examination of the facts and documents upon which those dicta have been founded (see Chapter XX.).

The doubts which exist as to the shoreward limit of the right of public fishing in tidal water, the questions as to the true mode of ascertaining the boundaries of half-stream fisheries in tidal and non-tidal rivers, and the effect of the change of the course of rivers on the ownership of the fisheries in them, are dealt with in Chapters XIX., XX., and XXI. In each of these questions the authorities appear to be conflicting and uncertain.

Under a system of jurisprudence which is bound and fettered by respect for precedent and ready to bow down to the dicta of ancient text writers, we feel it almost sacrilegious to suggest that, when we find that those dicta are confused and conflicting, it is time that they should be carefully examined and their accuracy tested by the light of the ancient records upon which they are supposed to have been founded; and, when it is found that the evidence of the ancient records does not support the dicta, that they should cease to be regarded as of great authority simply because they may have been followed in case after case from Jacobean times downwards.

With the exception of Lord Hale, whose knowledge of ancient records was to the last degree profound, few, if any, of the ancient text writers had any extensive knowledge of the records of the Courts, and their dicta have too often been arrived at on an imperfect knowledge of general facts. Lord Hale, on the contrary, deduces all his dicta from perusal of ancient records, which he cites, or from personal knowledge of the facts of the cases, on which he founds his statements of the law, and we are not aware that any such statement by him has been found to be erroneous or has been overruled. Until recent times it was doubted that the treatises "De Jure Maris" and "De Portibus Maris " were written by him, but it has now been shown that he was the author of them (b). If, therefore, the dicta above referred to be treated as of a doubtful authority, surely it will be safer to trust (as did Lord Hale) to the inferences to be drawn from ancient records, showing the history of and the modes of dealing with fisheries in ancient times, when endeavouring, in a case of dispute as to a fishery, to regard its history from the most probable point of view. We should start with the prima facie presumption that it is a fishery with the soil, that has passed from hand to hand through centuries by conveyance of it and of the land upon which it lies, and that its owners have enjoyed the fishery as part of the profits of the land, and then if the particular evidence relating to it is consistent with that state of facts we should conclude that it is a corporeal and not an incorporeal hereditament. If, however, it should turn out upon the evidence that there has been no user of the soil by the owner to justify this presumption, and there has been user of the soil adverse to the owner of the fishery, then we shall arrive at the conclusion that by some means in ancient times the right of fishery, which must originally have been a profit of the soil, has been severed from the soil, and the fishery will be deemed an incorporeal hereditament. The grants and conveyances of fisheries, having regard to the erroneous dicta of text writers and the general impression of lawyers in past times, ought not to be construed strictly according to the precise language used in them by conveyancers; but should be treated on the modern principles laid down by Lord Wensleydale that ancient documents are to be construed by the user which has taken place under them. The language of grants and conveyances, owing to the erroneous notions prevailing at the time they were drawn up, cannot be trusted as accurate representations of the facts. If this be done many of the difficulties which arise in cases relating to fisheries will wholly disappear.

(b) Stuart Moore on Foreshore, p. 318.

It is interesting to notice in these modern days when the legislature has found it advisable to entrust the management and control of fisheries to Local Authorities and Fishery Boards that in the time of King Edward the First (7 Edward I. A.D. 1279) the fisheries in the county of Cumberland were regulated by the county under the supervision of the King's justices in Eyre, who made statutes and ordinances, with the consent and approval of the men of the county, for a close time, free gaps, and the regulation of nets and fishing engines in the waters of the county. (See p. 172 (n.)). It seems possible that the making of these ordinances in the county of Cumberland may have called the attention of the legislature to the advisability of passing a statute to create a close season to regulate the meshes of nets and to regulate the use of weirs with a view of preserving the valuable food supply afforded by salmon. It may well have been the germ of the Statute of Westminster the 2nd (13 Edward I. A.D. 1285). The constant issuing of commissions of conservancy to enforce the provisions of this statute and the passing of subsequent statutes shows the anxiety of the government ever afterwards to protect and improve salmon fisheries as a food supply.

In Chapter I. of Part II., post, p. 171, the various statutes from 1285 to 1818 are described. They show the continual anxiety of the legislature to preserve fish and especially salmon and migratory fish. The Salmon Act of 1818, which remained in force till 1861, although it continued former legislation as to close seasons, and protected fish from illegal capture and, to some extent, from the effects of pollution, and, although it ordered the appointment of conservators by the justices, proved insufficient to prevent the slow extinction of salmon by the obstruction of weirs and fixed engines, and the use of destructive nets. By Section V. it was provided that "nothing herein contained shall extend or be deemed or construed to legalise, nor to demolish, take away or destroy any net, fish lock, coop, bay, or other work, which shall have been or may hereafter be lawfully erected, put, placed, fixed, or used in any such arm of the sea, or estuary, or mouth of any river, or in or upon any bank, sand or shore thereof, or near thereto, or in or near any river, rivulet, brook, stream, pond, pool, or other water, mill lead, mill dam, sluice or cut, which runs into or otherwise communicates therewith, or to the present modes or methods used for taking and killing fish therein, other than and as are in this Act particularly prohibited"; and by Section XV. it was enacted that "nothing herein contained shall extend to affect the rights of any lord or lords, lady or ladies of any manor; and it shall be lawful for such lord or lords, lady or ladies, and they are hereby required to appoint conservators for the protection

of any river or rivers within their respective manors"; and by Section XVI. the rights of bodies politic and corporate and collegiate are fully secured. These saving clauses had the effect of leaving untouched all the mischief occasioned by the owners of fisheries by weirs, fixed engines and destructive nets. It is true that the lords of manors, who were perhaps the greatest offenders, were ordered to appoint conservators for the protection of the rivers within their manors; but the obstruction and destruction of the fish was left as it was and the Act had only the effect of providing a close season, and preventing the capture of fish by drugs or foul water and by the use of fire and light. In short, it seems to have done little more than to have prevented poaching, leaving the owners of fisheries free to fish as they had hitherto done. So the matter rested till 1861 when, mainly through the exertions of the late Mr. Frank Buckland and a number of other eminent authorities on the culture and preservation of fish, an Act was passed by which it was doubtless intended that the powers of the owners of fisheries to keep up weirs and use destructive methods of fishing should be greatly limited. The provisions of this Act and subsequent Acts down to 1886 are fully set out in the Appendix. Most careful provisions are enacted for the purpose of giving the salmon a free run up and down the rivers, for protecting them by close seasons and from pollution, and from illegal capture. The fishing weirs were ordered to be regulated and free gaps made in them which were to be kept open for the passage of fish at all times, and fish passes were authorised to be attached to dams. Again, however, in the care of the legislature not to interfere too seriously with vested rights, exceptions were inserted for saving the rights of owners of ancient weirs and modes of fishing which gave rise to much litigation, and although many weirs and fixed engines were swept away, a number of ancient obstructions were still left notwithstanding the exertions of the Fishery Commissioners who were appointed to inquire into the legality of all fixed engines.

What effect all this legislation for the protection of salmon had upon the supply, as compared with that of ancient times, we can form no useful estimate. The ancient accounts of the receipts of fisheries are generally reckoned in money, and no information given as to the quantity or number of the fish taken. The accounts of one fishery, however, viz., that of the Itchen, which belonged to the Bishops of Winchester, show the number of salmon annually taken in the reigns of Henry III., Edward I., and Edward II., and give some information as to the prices of the fish. The takes of salmon

in the various years were as follows:-1244, 74 salmon sold for

£7 98. 8d., or an average of about 2s. 9d. apiece; 1246, 46 salmon of which 7 fetched 10s. 9d., and 39 sold for £5 10s. 11d.; 1251, 7 salmon sold for 338. (weir out of repair); 1252, 17 salmon; 1266, 24 salmon; 1269, 15 salmon; 1272, 44 salmon; 1275, 15 salmon; 1279, 8 salmon (weir out of repair); 1281, 76 salmon (a new weir); 1283, 26 salmon; 1284, 25 salmon; 1285, 60 salmon; 1286, 37 salmon; 1287, 85 salmon; 1288, 40 salmon; 1293, 44 salmon, of which 10 sold at 6s. apiece, and 34 at 2s. apiece; 1295, 13 salmon; 1296, 36 salmon; 1298, 35 salmon; 1299, 54 salmon sold for £6 12s.; 1300, 18 salmon sold for £3 6s.; 1305, a salmon was sent to the King alive when he was staying at the Priory of S. Denys; 1306, 72 salmon; 1308, 21 salmon of which 8 sold for 41s. 6d., and 10 for 358.; 1309, 99 salmon; 1312, 55 salmon, 18 of which fetched 358. 6d.; 1313, 55 salmon, 53 of which fetched £8 0s. 3d., viz., 19 at 4s. and 34 at 2s.; 1367, 42 salmon sold for £6 12s., viz., 12 at 3s. 4d., 20 at 3s., and 15 at 2s. 6d.; 1401, 12 salmon sold at 6s. 8d. each, 3 at 3s. 4d. each, and 100 lampreys at 18. 8d. a hundred.

This fishery which was fished by a "hiltra" or trap at South Stoneham, is now the property of Sir Samuel Montagu.

The only other record we have found of the takes of salmon river is that of the diary of one Lovegrove, who was tenant of the Boulter's Lock fishery on the Thames at Maidenhead from 1794 to 1821, referred to by Mr. Grenfell in a letter to the Times in 1899, the summary of which is as follows: