HC Deb 30 June 1863 vol 171 cc1755-63

Bill considered in Committee (Progress 19th June).

(In the Committee.)

Clause 6 (Commissioners to inquire at to fixed Nets).

MR. HASSARD

moved to leave out the words from "Commissioners" to "shall" in the fifth line. These words "shall abate and remove all fixed nets erected or used for catching salmon or trout in Ireland, that are in their judgment injurious to navigation," would, he said, add a fourth set of Commissioners to the three existing jurisdictions, and would be most inconvenient to the navigation of the rivers. In the correspondence between the Treasury and the Admiralty on the subject, the opinion of the Solicitor General for Ireland and the authorities of the Admiralty was clearly expressed that obstructions in rivers should be dealt with by the Admiralty as general guardians of the navigation of the country, and the addition of a fourth body would rather impede than promote their efforts. There was another objection, and that was, that any persons creating obstructions in rivers would be able to demand that disputes relative to the obstruction to navigation should be tried by jury, instead of being settled as now—by the Admiralty acting through the Board of Trade.

MR. LONGFIELD

opposed the Amendment, on the ground that the three jurisdictions already in existence had paralysed each other and neglected their duties. It would therefore be well that there should be added a new jurisdiction competent to deal with this particular branch.

SIR ROBERT PEEL

opposed the Amendment, on the ground that it would take from the Commissioners the power to remove nets that might be injurious to navigation.

SIR HERVEY BRUCE

said, that it would be very hard that parties who had nets which were stated to be obstructive to navigation should be put to the expense of going through all the courts on appeal.

Amendment, by leave, withdrawn.

SIR HERVEY BRUCE

moved an Amendment, "but this and the foregoing clauses shall not apply to bag-nets erected and in use before 1848." He proposed this Amendment for the purpose of making the Bill really and fairly a compromise, and not one that would lead to a vast destruction of property. If the bag-nets near the mouths of rivers in the open sea operated to stop the fish going up, there would be some ground for the restrictions imposed by the Bill; but they did not. It was by nets and weirs across the rivers that the fish were prevented from ascending. He complained that the Bill interfered with the private rights of the owners of salmon fisheries, and therefore, unless some relaxation of the clause was made, he should feel it his duty to oppose the measure at every stage. He admitted that the hag-nets might prevent fish getting to the upper waters when placed at the mouths of narrow estuaries, but the real injury done to the fisheries was done by the weirs, the owners of which were continually breaking the law, and it was almost impossible to detect them.

SIR ROBERT PEEL

appealed to the hon. Member to withdraw his Amendment, and accept the compromise the Government had proposed with the concurrence of the great majority of the Irish Members. The present Amendment would undo what had been done at a former morning sitting after a full discussion. He was quite aware that the hon. Member might, by protracting the discussion, defeat the Bill; but he hoped, that inasmuch as it was generally admitted that the measure would be a great boon to Ireland, he would not adopt that course.

THE CHAIRMAN

stated that the Amendment was inconsistent with the former clauses, and therefore had better be postponed until the Report.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7 (Certificate as to certain fixed Nets).

MR. M'MAHON

moved an Amendment to the Proviso, to the effect that the certificate of the Commissioners shall not prevent any net which shall be deemed injurious to navigation or contrary to law from being removed as a common nuisance, and any person fixing such net to be liable to a penalty.

MR. BUTT

objected to the Amendment, on the ground that after the legality of any fixed nets had been established as respected the fishery laws, on appeal it would still be open to any person to indict the owner for the infringement of the navigation laws. The consequence would be to give the clause a one-sided effect—it would be binding on one side, and not conclusive against the other.

MR. LONGFIELD

agreed with the hon. and learned Member (Mr. Butt), and thought that the certificate of the Commissioners (subject to appeal) should be conclusive evidence of the legality of the nets, both for and against the public.

MR. H. A. BRUCE

admitted that there was some force in the objection; but the view of the Government was that the legislation of 1842 was an invasion of the rights of the public; besides which, what was not injurious to navigation in 1843 might be in 1863.

MR. LONGFIELD

suggested that the Commissioners should be made the absolute judges of the question.

MR. O'HAGAN

thought that it would be better to postpone the clause, and bring it up on the Report.

MR. M'MAHON

expressed his apprehension that such a course would endanger the Bill altogether, and he complained that the time had been wasted in this discussion. He did hope the Government would stand by this clause. If not, they had better give up the Bill altogether.

Amendment, by leave, withdrawn.

MR. BUTT

denied that the time of the Committee had been wasted, and said that if the House had been occupied three times as long in preventing the passing of a clause which would be a disgrace to their legislation, they would not be wasting their time. He should therefore, in order to test the opinion of the Committee, propose to move the omission of certain words, in order to insert the words "and at the time of granting such certificate such fixed engine was in accordance with law." This would have the effect of declaring the legality of the net on all points at the time of issuing the certificate.

Amendment proposed, In page 3, line 24, to leave out from the word "given" to the end of the Clause, in order to add the words, "and that at the time of granting such certificate such fixed engine was in accordance with law."—(Mr. Butt.)

Question put, "That the words proposed to be left out stand part of the Clause."

The Committee divided:—Ayes 63; Noes 4: Majority 59.

MR. M'MAHON

moved to add the words "or any Act of Parliament" at the end of the clause. The effect of this Amendment would be, that the certificate of the Commissioners would not render any net legal which would be illegal under any existing Act of Parliament.

Amendment proposed, at the end of the Clause, to add the words "or any Act of Parliament."—(Mr. M'Mahon.)

Question put, "That those words be there added."

The Committee divided:—Ayes 38; Noes 37: Majority 1.

Clause, as amended, agreed to.

Clause 8 (Commissioners to inquire as to Fishing Weirs) was also agreed to.

Clause 9 (Compensation in certain cases, to Owners of Fishing Weirs).

MR. M'MAHON

moved the omission of the clause, with the view of inserting in lieu thereof the following provisions in respect to the free gap to be left— 1. The free gap shall be situate in the deepest part of the stream, between the points where it is intercepted by the weir. 2. The sides of the gap shall be in a line with and parallel to the direction of the stream at the weir. 3. The bottom of the gap shall be level with the natural bed of the stream above and below the gap. 4. The width of the gap in its narrowest part shall be not less than one-tenth part of the width of the stream; provided always that such gap shall not be required to be wider than forty feet, and shall not in any case be narrower than three feet; and provided, also, that no existing gap in any weir shall be reduced in width, or a gap of less width substituted in lieu thereof, or any alteration made therein, so as to reduce the flow of water through such gap. The hon. and learned Member said, that if this Amendment were carried, he intended to propose additional provisions with the same objects. These provisions were, with very little alteration, taken from the English Salmon Fisheries Act of 1861.

THE CHAIRMAN

intimated that in that case the proper way would be to introduce the new clause at the end.

Motion withdrawn.

MR. R. HODGSON

said, he wished to raise the question whether compensation should be given to the owners of stone-weirs for making free gaps in order to allow the fish to pass through them. It had been held by Parliament in its recent fishery legislation that what was right to be done in regard to the improvement of fisheries should be carried out without compensation. He would move to leave out all the words after the words "Commissioners," in order to provide that the expense of making any free gaps should be undertaken by the Commissioners, and not by the owners.

MR. MONSELL

said, that the House had refused the bag-net proprietors any compensation, and now they were going to give the stone-weir proprietors everything, and to ask for nothing in return. The clause now proposed was entirely inconsistent with the provisions of the English Act, although the same rights that were now set up existed in England. He could mention several instances—the case of Mr. Philip Howard, of Corby Castle, for example, and that of the Earl of Lonsdale. There were two separate Acts of Parliament which conferred the rights on Lord Lonsdale. Those rights had subsisted for eighty years; but the English Bill was passed, and Lord Lonsdale was compelled to make a gap in his stone-weirs without compensation of any description. Why should Parliament adopt a different law for Ireland? The House was going to give these stone-weir proprietors an enormous increase of fish, and were they to give nothing in return? He trusted that the House would refuse this compensation by a large majority.

MR. H. A. BRUCE

said, that by far the greater portion of the Irish stone-weirs would be unable to show a charter, and when they failed to prove a valid legal right, the gap would be opened without compensation. He had no doubt that the operation of the Bill would be to cause the voluntary construction of gaps in the large majority of rivers in Ireland The right of the proprietors to weirs which they held by charter or by usage from time immemorial, was as indefeasible as the right of any gentleman to his private estate. [Mr. MONSELL: I do not propose to take away the right, but to regulate it.] Yes; but the effect would be to injure the value of the fishery. At the same time, he admitted—and the Committee generally agreed with him—that the Act of 1842 was a grievous interference with common law rights for the benefit of private proprietors as against the public. ["No!"] That, at any rate, was his opinion. Parliament, therefore, had a right to reconsider the Act of 1842. It was said that the opening of the gaps would increase the supply of fish and the value of the fishery. But had the House ever admitted that principle in its railway legislation? It was easy to show that railways benefited private property, yet Parliament gave compensation to the owners of property, and always refused to enter upon the question whether the value of the property might not be ultimately increased.

MR. MONSELL

said, that the Report of the Lords' Committee on Railways gave as a reason for giving compensation "because the immediate motive was the gain of speculation."

MR. H. A. BRUCE

said, it was quite true the English Act provided that a large gap should be made in every weir, and that no compensation was granted. But that was because no opposition was raised to the proposal. If, however, any English proprietor had appeared and opposed the Bill, he doubted whether it would have been carried in its present shape, No invasion of the ancient rights of proprietors should be made without compensation.

LORD NAAS

could assure the hon. Gentleman that very great objections were felt by the English proprietors to the English Bill. He knew a case in which the proprietor of a Derwent fishery thought himself unjustly affected by the Bill, and he would have organized a very determined opposition to the Bill if he had thought it was likely to succeed. Public opinion in favour of the Bill was, however, so strong that he declined to urge his claims. The truth was, that the Bill carried compensation with it to the proprietors of stone-weirs; and if they consulted their own interests, they would not oppose the opening of gaps in their weirs. He defied any instance to be adduced in which a gap in a weir had materially injured the fishery. He knew a case in which the proprietor of a stone-weir near Galway spent £3,000 in opposing the Board of Works in the exercise of a power which they claimed to open a gap in his stone-weir. That gentleman had since told him he never made a greater mistake in his life, and that if he had known then as much of the matter as he knew now, instead of spending £3,000 in opposing the gap, he would rather have given that sum to make the gap, and allow the fish to go up the river. The fact was, his fishery had since enormously increased in value. The Bill swept away a great number of methods of taking the fish below these weirs, so that it gave the owners an enormous compensation in the additional supply of fish. If it were shown that the opening of these gaps would injure the fishery, the Committee might entertain the question of compensation. The reverse, however, was the fact. The Bill would benefit the public enormously, yet, as it would also confer immense advantage on the owners of stone-weirs, he, for one, would not consent to pay them for rendering them this service.

SIR WILLIAM SOMERVILLE

said, that if the Committee were not about to benefit the owners of stone-weirs by the clauses of this Bill, their legislation would be of very little use. He denied that it was to the advantage of these proprietors that the Committee should adopt the principle of compensation proposed. Look at the complications it would cause—the investigation of books, of profits and losses, both in present and preceding years. If he wore the owner of any of these stone-weirs, he would get rid of these compensation clauses if he could, and accept the Bill without them. It was proposed by the clause to keep up the precise amount of "catch" which the owner might have had for a certain number of years, so that if in any one year there should be a failure in the fishery, the same amount would still be paid to the owner. But how far were these investigations to go? He believed, that if there had been abuses in regard to bag-nets and stake-nets, the abuses of stone-weirs had been tenfold greater. Formerly they were made of wicker-work, and then they were not a complete obstruction to the passage of the fish. Gradually, however, they had been raised higher and had increased in size, and in some cases the owners had even supplemented them by iron railings over the weir to prevent any of the fish from going up the river. He never gave a clearer vote than that which he should give against this clause. So far from doing an injury to these owners, he believed the omission of this clause would essentially benefit them, and that if the clause passed, they would be the first to regret it. He would advise the owners of stone-weirs to accept thankfully the good offered to them by the Bill.

MR. LONGFIELD

said, that if this clause were adopted, the Committee would have legislated solely for the benefit of the proprietors of stone-weirs of Ireland. He should certainly vote against giving these gentlemen any compensation; for nothing could be more objectionable than securing them a perpetual rent-charge, to be measured by the degree of obstruction which they had succeeded in giving to the fishery.

MR. F. L. GOWER

thought that the House ought not to destroy these fisheries without compensation. If confiscation were practised in England, it ought not to be extended to Ireland. He trusted that the Government would maintain the clause.

SIR EDWARD GROGAN

would vote for the omission of the clause.

MR. H. A. BRUCE

said, it was clear that the owners of stone-weirs had no friends in that House. In the face of the opposition which had been raised to the clause he would not press it. He would agree to withdraw the clause, in order that the hon. and learned Member for Wexford (Mr. M'Mahon) might propose his clauses on the Report.

Amendment, by leave, withdrawn.

Clause withdrawn.

Clauses 9 to 15 amended, and agreed to.

Clause 16 (Weekly Close Season).

MR. HASSARD

moved an Amendment, to insert— In any tidal waters between the low water which shall happen next before six o'clock on Saturday evening, and the low water which shall happen next before six o'clock of the succeeding Monday evening, and in all other waters.

LORD NAAS

opposed the Amendment.

Amendment negatived.

MR. MONSELL

proposed that the weekly close time should not terminate till twelve o'clock on Mondays. After a short discussion,

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 17 read.

SIR ROBERT PEEL

stated that the Bill would be fixed for further consideration in Committee on Friday next at a morning sitting.

House resumed.

Committee report Progress; to sit again on Friday at Twelve of the clock.