HC Deb 20 March 1866 vol 182 cc582-91

said, he rose to move that a Select Committee be appointed to inquire into the operation of the Fishery (Scotland) Act (1862). He was anxious to explain to the House that this Act did not profess to make any alteration or change in the law of Scotland, but to be a declaratory Act; and so anxious was the Government to avoid even the appearance of interfering with the rights of property, that a special clause was introduced into the Bill, providing that none of the acts of the Commissioners appointed to carry out the provisions of the Bill should interfere with any of the rights existing at the time it was passed. The object he now had in view was to ascertain whether that provision in the Bill had been fairly and properly carried out, and whether the operation of the Bill had responded to the intentions of the Legislature. If the Bill was intended to declare and to interpret the law, he could not understand why the interpretation of the law should not have been intrusted to the ordinary legal tribunals of the country. The interpretation of ancient Scotch statutes had been left to the discretion of three gentlemen appointed by the Crown—one an Irishman, another an Englishman, and the other, he believed, a Scotchman; and he did not know that any one of them previous to his appointment to this office possessed any knowledge of Scotch law. This was a dangerous course, for which he did not believe any precedent was to be found except in times of revolution. It was well known that the Revolutionary Government of France appointed Commissioners to supersede the ordinary tribunals of the country, and to confiscate the property of the nobles; but this was the first occasion, in Great Britain, at least, on which Commissioners had been appointed by the Crown, vested with powers to confiscate the property of one class of Her Majesty's subjects for the benefit of another, without any appeal to a Court of Law. What was the grievance which rendered this exceptional legislation necessary? It was this—The old Scotch law prohibited the use of fixed engines for taking salmon in different parts of rivers, hut it did not clearly define forbidden ground. By some persons the forbidden ground had been called an estuary, and the word frequently occurred in the new Act, but there was no such word in Scotch law, and no interpretation clause defined its meaning. An estuary was an arm of the sea, but it was never contended that fixed engines were prohibited in the arms of the sea in Scotland, and the Lord Advocate had declared before a Committee of the House of Lords that such engines in the estuaries of that country were as old as the oldest Scotch statutes. If, then, the question submitted to the Commissioners was a legal one, it became all the more necessary that men well qualified to perform the duties which they were called upon to discharge should be selected, because it was obvious that on the Commissioners everything depended. If they were men of high character and perfect impartiality, without any preconceived or pre-declared opinions on the question they had to decide, and if they possessed a competent knowledge of Scotch law, then, indeed, justice might be done. But if the Commissioners possessed none of those qualifications, then, indeed, it was manifest that injustice and spoliation might be the result. What the actual result had been he should state to the House; but before he did so, he should like to say a few words with respect to the qualifications of the Commissioners. One of them, Mr. Ffennell, had been well known in Ireland, where, he believed, he had been acting as Commissioner of Fisheries, and where he was notorious for the vigorous warfare he had carried on against stake nets and fixed engines. So much was that the case that when in 1860 certain parties in Inverness introduced a Private Bill called the Ness and Beauly Fishery Bill, to put down stake nets and fixed engines on the Moray Firth, Mr. Ffennell appeared as a witness before the Committee on the Bill, and having been examined by Serjeant Bellasis, gave it as his opinion, knowing nothing whatsoever, as he himself admitted, of the locality, or of Scotch law, in the most offhand manner, while he looked at a map, that the stake nets should be removed seventeen miles down the river and placed at its mouth. Disputes with respect to property in Ireland were sometimes settled by shooting the landlord. Mr. Ffennell seemed to have as little hesitation about sweeping away the rights of proprietors, as others had in sweeping away the proprietors themselves. When it was rumoured that that gentleman was about to be appointed one of the Commissioners, he had called the attention of the Secretary for the Home Department to the fact that he had prejudged the question upon which, as a Commissioner, he would be called upon to decide, and the right hon. Gentleman stated that he had not been aware of the circumstance, and that, if true, Mr. Ffennell would not be a fit person to appoint. A few weeks afterwards, however, Mr. Ffennell was appointed, and every one interested in the inquiry at once saw that they must make up their minds to accept a foregone conclusion. It was necessary, however, that certain forms should be gone through. The Bill prescribed that the Commissioners should hold a Court at Inverness, and that they should take evidence before they came to a decision. A Court was accordingly held, and, if the statement were true which he found in a memorial addressed to the Home Secretary by the proprietors interested in the matter, and he had no reason to doubt it, it was evident that the Commissioners were not even acquainted with the ordinary mode in which legal inquiries ought to be conducted. In that memorial it was asserted that the inquiry which commenced on the 18th of July was not carried on with that care or deliberation, or with that knowledge on the part of the persons inquiring, which the interests involved demanded. Any man present was allowed to volunteer an opinion; none of the witnesses were sworn; there was no clerk or shorthand writer, and the only record of the proceedings was the hurried notes taken by the Commissioners themselves, and those had not been published. Both on the 18th and subsequently, the Commissioners refused to allow the objectors to put in further proof, although it was asked under peculiar circumstances; and although the Commissioners had professed themselves most anxious to afford all parties full opportunity of being heard, they refused all access to their notes, even for the purpose of bringing forward proper objections. Now, he would ask the House, whether that was a sort of tribunal before which the rights of property could fairly be tried, or which ought to be allowed to take upon itself the duty of reversing the decisions of the Court of Session in Scotland? What was the object of the inquiry? It was to take evidence in order to enable the Commissioners to decide according to the law, which law had been very clearly laid down by the Lord Advocate in the evidence which he had given before the Committee of the House of Lords. The Lord Advocate said that, in the law of Scotland, the line of division in the sea appointed as the limit within which fixed nets were prohibited was not a definite line, and was not necessarily at low-water mark; but it was a line to be fixed by a jury in each particular case. He did not believe that any one would be prepared to gainsay that statement. The seacoast proprietors adopted that interpretation of the law, and accordingly raised their evidence upon it. They produced the evidence of a number of fishermen who had fished the water between Inverness and Fort George, and these men proved that they caught there in the greatest abundance every kind of sea-fish, including cod, mackerel, haddock, skate, turbot, and herring. One man stated that he had taken fourteen score of cods in one haul, within two or three miles of Inverness. The evidence of scientific men who had been called in to examine the coast was also produced. In order to prove that all the animals and vegetables were marine Dr. Gordon was examined, and his opinion was corroborated by Mr. Robertson, who was sent down from the Geological Society. In the third place, they produced the evidence of scientific witnesses, who analyzed the water taken in every part of the Firth; but all this evidence produced no impression on the Commissioners, who decided the question as Mr. Ffennell decided it two years previously when he was before a Committee, and almost in the same words. It might be said that there was a precedent for this exceptional legislation in the appointment of a Commission in regard to the Irish fisheries. But there was this important difference between the two cases—that in regard to Ireland the Bill gave an appeal from the decision of the Commissioners to the Court of Queen's Bench. The consequence was that a great number of appeals was made, and many decisions of the Commissioners were reversed by the Court, and declared contrary to law. Who were the Commissioners whose decisions were so declared to be illegal? The very same men who were now acting in Scotland without any appeal whatever. What the Scotch proprietors required, was to be placed on the same footing as their Irish fellow-subjects, and to have the right of appeal from the decision of the Commissioners to the Court of Session in Scotland. The result of the proceedings of the Commissioners had been that, in spite of the clause in the Bill, which declared that none of the proceedings of the Commissioners should interfere with any rights existing at the passing of the Act, which were enjoyed by grants or Royal charters, or which had existed from time immemorial, gentlemen had been deprived of their rights and property, which they had possessed for centuries, and which had been confirmed to them by decisions of the Court of Session. People might as well tear up their grants and title-deeds, and leave all their property to the mercy of the Commissioners appointed by the Crown; for that was what had been done in this case. If it were for the public good that the law of Scotland should be changed, by all means let it be changed; but let the change be effected by Act of Parliament, and let the persons whose rights were taken away be properly compensated, That was the law of England, where a man's property was not allowed to be taken away even for a public benefit without compensation. If he could prove that one of the upper proprietors previous to the passing of this Act had enjoyed a fishing for which he received £1,200 a year, and that the first year after the passing of this Act it produced about £3,000, would it not be just that he should be made to compensate those who had been deprived of their rights for his advantage? The Lord Advocate had taken great interest in this question. He had shown great industry, and no doubt was anxious to settle it by doing equal justice to all parties; but in this he had unhappily failed. He could not, then, be suprised if those who were injured should cry out. He only hoped that it was not the intention of the Government to stifle their cries, or to pass the Bill which had been introduced in another place for the purpose of confirming all the acts of the Commissioners, without giving to those whom the Commissioners had already doomed some opportunity of stating before a Committee the reasons why this sentence should not be carried into effect. What he asked was inquiry. If the Government would give an appeal from the decision of the Commissioners he would withdraw the Motion; if not, he should press it to a division.

Motion made, and Question proposed, That a Select Committee be appointed to inquire into the operation of the Fishery (Scotland) Act (1862)."—(Mr. Henry Baillie.)


said, he wished, before the Government gave any answer to the appeal of his hon. Friend, to say a very few words, The arguments which his hon. Friend had used were the same that had been urged in opposition to the passing of the present Act and the appointment of the Commissioners. They were also used to prevent legislation in the same direction in the case of Ireland. He might be allowed to say that the Commissioner whose name had been alluded to by his hon. Friend was a gentleman of very great experience on the subject of fisheries, and the manner in which he had dealt with it under several Acts had given general satisfaction. The recent Act, so far from causing dissatisfaction in Scotland, had worked exceedingly well. It was quite true that, in the case represented by his hon. Friend, in the Ness and Beauly River, certain rights that were infringements on the old public right of fishing charters had been extended most preju- dicially. The case of their fisheries was fully discussed at the time of the passing of the Act; and in that Act a special provision was inserted that chartered rights should be protected. Nothing had been done under this Act except under authority of the law of Scotland. The proprietors of engines insisted on keeping them up. They were prosecuted before the Law Courts in Scotland, and, as they had no defence, judgment was given against them. The fisheries had been gradually decreasing; it had been found necessary to legislate on the subject and to appoint Commissioners; and, so far as he knew, no complaint had been made. Of course, certain interests had been aggrieved; but the complaints had no more reference to Scotland than to England and Ireland. If anything was to be done in that direction it could only be by retrospective legislation, by undoing what had already been done for the three countries. No case had been made out for the interference of the Government. Besides, a Bill had been introduced in another place, and referred to a Select Committee, before which parties aggrieved might state their case.


said, he supported the Motion. The fisheries had become more and more deteriorated. In the Findhorn, he recollected when fish were taken of 20lb., 25lb., and 30 lb. Now the average was 7 lb. or 81b. Notwithstanding that the Commissioners knew of all these allegations, they took steps which had had the effect of reducing the produce 75 per cent. Besides this, the powers of the Commissioners to do what they had done had been challenged; and, according to the Lord Advocate, not without good reason. He thought it was very desirable, before discussing the Bill which had been referred to a Select Committee in the House of Lords, to ascertain what had been the real working and operation of the law in Scotland, and he hoped, therefore, that the Motion of his hon. Friend would be agreed to.


said, that as a proprietor both of coast and river fishing in Scotland, he had had an opportunity of seeing the working of the Act, and could bear testimony to the benefit which had accrued therefrom to the salmon fishery. The proprietors were under great obligation to the Commissioners for the careful manner in which they had fixed the boundaries, and these had been generally acquiesced in by the parties concerned. He was glad to say that it had resulted in a great increase of the size and number of fish, both as regarded the upper and lower waters. He hoped the House would not agree to a proposition which would disturb a question so beneficially settled.


said, the real question before the House was not whether a Committee should be appointed to investigate the particular cases to which attention had been called, but to decide whether a clause should be introduced into the Bill now in progress in another place which should allow an appeal to a Court of Law against the bye-laws made by the Commissioners under the Salmon Fishery (Scotland) Act of 1862. It appeared to the Government that that was not a proper subject for a Select Committee. The hon. Gentleman opposite would have ample opportunity of raising that point when the Bill came down for consideration, and they, therefore, could not agree to the Motion. He hoped for himself that the House would not adopt the clause which the hon. Gentleman had suggested, for he believed that the legislation of the last few years on salmon fisheries had acted very beneficially, and he trusted that the principles on which it was based would not be departed from. Few persons acquainted with the subject would, he thought, agree with the remarks of the hon. Gentleman on Mr. Ffennell, who had conferred the greatest benefits on the salmon fisheries of the three kingdoms. It must be satisfactory to the House to find that out of 102 bye-laws which had been framed by the Commissioners there were only two which the hon. Member was able to challenge.


said, that great injustice had been committed by the Salmon Commission in Ireland, where charters that had existed for centuries had been ruthlessly swept away. Indeed, the legal member of the Commission, Mr. O'Connor Maurice, gave in his resignation rather than be a party to such proceedings. The Act itself was an injustice, and had been denounced by Lord Westbury, then Lord Chancellor. He should vote for the Motion as a stepping-stone towards a similar inquiry for Ireland, and could relate several instances, if necessary, of the hardships which had been inflicted by the Commission in that country.


said, he thought it rather illogical for the hon. Gentleman who had just spoken to vote for an inquiry into the working of the Scotch fisheries, where vested interests had been respected, on the ground that in Ireland such interests had been violated. He was glad the Government had resisted the Motion, for it was well known that the Act was passed in consequence of an alarming diminution in the salmon fisheries, owing to practices which were altogether unknown at the time the charters were granted. The Legislature very properly interfered, and prohibited the placing of fixed engines within the limits of estuaries, respecting at the same time, as far as possible, existing rights. In fact, the legislation of which complaint was made only limited the estuaries on the principle laid down by Lord Eldon in the case of the Tay. The Government of the day had a difficulty in deciding the real rights of the various owners. The matter of which his hon. Friend chiefly complained might be remedied by clauses to be inserted in the Bill when it came down from the other House. No case had, however, been made out for the repeal of the Act, which had done great good in Scotland.


said, it had been stated by the hon. Member for the county of Waterford (Mr. Esmonde) that chartered rights which had existed for centuries in Ireland had recently been swept away, but he (Mr. Blake) affirmed that not a single chartered right had been abolished in Ireland under the operation of the existing Act. So far from the Fishery Act interfering with the chartered weirs in Ireland, it had greatly improved them; and he could name many that were extremely valuable. Numerous unjust claims to private fisheries have been set aside, and the result was that the general fishery had increased. Since he had been a Member of the House, no Bill had ever passed which was calculated to do so much good as the Irish Fisheries Act. Never had a Bill been more called for, and never a law more fairly administered. A few years ago the fisheries of Ireland did not amount to more than £300,000 a year, whereas now, before seven years were over, they would reach more than four times that amount. Formerly the fisheries afforded to 300 or 400 persons a precarious existence, but now about 2,000 persons obtained from them an exceedingly comfortable living.


said, he had quoted the evidence of the Lord Advocate given before the House of Lords to show that stake-nets were of great antiquity. [Sir JAMES FERGUSSON: But not drag- nets.] Boethius, about the year 500, described not only a stake-net, but also what was a modern stake-net. The Under Secretary had not attempted to disprove his assertion that Scotland was at a disadvantage as compared with Ireland. He did not want to do away with the Commissioners, but only to obtain a power of appeal. If it were proper to give an appeal against their decisions in Ireland, ought not the same liberty to be enjoyed in Scotland? The hon. Gentleman had alluded to what he (Mr. H. Baillie) had said about Mr. Ffennell. He had no doubt in the world that he may have given satisfaction to some parties, and he seemed to have done so to the hon. Member for Kirkcaldy (Mr. Dyce Nicol). The hon. Member was a great angler, and Mr. Ffennell had given great satisfaction to all anglers by the way he decided. All he (Mr. H. Baillie) said was that, having given such evidence as he did a few years before his appointment, he ought not to have been appointed. If the Government would allow an Amendment to be inserted in the Bill, giving an appeal from the decisions of the Commissioners to a Court of Law, he would withdraw his Motion, otherwise he would go to a division.


said, that so far was Mr. Ffennell from always leaning to the anglers, that he was sometimes accused of being rather too tender to the assumed rights and usurped powers of the people at the mouths of rivers. If the House gave the power of appeal there would be continual contentions. The right of appeal given by the Irish Act was very partial in its operation.

Motion made, and Question put, That a Select Committee be appointed to inquire into the operation of the Fishery (Scotland) Act (1862)."—(Mr. Henry Baillie.)

The House divided:—Ayes 58; Noes 164: Majority 106.