HC Deb 16 March 1877 vol 233 cc51-69
MR. STAFFORD HOWARD

rose to call the attention of the House to the condition of the law as affecting the Salmon Fisheries in the Solway Firth, and to move— That, in the opinion of this House, it is advisable that a Royal Commission be appointed to consider and report as to the best means of carrying into effect the intention of the Legislature with regard to the Stake Nets in the Solway, as expressed in the thirty-third Clause of 'The Salmon Fisheries (Scotland) Act, 1862;' and also to report as to the desirability of further legislation with a view to removing the injustice consequent upon the conflicting state and interpretation of the laws affecting the Solway Fisheries in England and Scotland. The hon. Gentleman said, that the question was not a new one—it was rather complicated, and not of special interest except to a few Members locally interested; but as the question was of some importance, and could not be settled except by the interposition of the Legislature, it was necessary that legislation should be preceded by inquiry. The arrangement of the various Acts that had been passed regulating these fisheries was something like putting together a Chinese puzzle. From 1804 to 1861 the Solway was under one uniform law—the 44 Geo. III. c. 45—which was, on the whole, beneficial, though it left open the question of the legality of stake nets. But about 1860 the salmon fisheries of the United Kingdom had so deteriorated—owing, he believed, chiefly to the ravages of stake nets—that a Committee of the House of Lords was appointed to inquire into the subject as to Scotland, and a Royal Commission in respect of England. The Committee of the House of Lords, after receiving a great deal of evidence, recommended the abolition, or, if that were impossible, the regulation and restriction of fixed engines. The Royal Commission which reported for England also stated that, after careful consideration, they were prepared to recommend the suppression by law of all fixed engines. In 1861, in consequence of that Report of the Committee of the House of Lords, the Lord Advocate brought in a Bill for the suppression in Scotland of fixed engines; but it was referred to a Select Committee of Members whose constituents wore interested in stake nets, and the effect really was rather to strengthen than otherwise the position of those nets; therefore, it was subsequently withdrawn by the Lord Advocate. But in the same year—1861—a comprehensive Act was passed for England, by which all fixed engines were pronounced illegal, except such as were exercised in virtue of any grant or charter, or were sanctioned by immemorial usage. The Act of 1861 repealed either totally or partially about 30 other Salmon Fishery Acts, among them being the Solway Act, so far as it related to Scotland, and to fish other than salmon in England, and it was then that commenced an admixture of the law of the two countries. In 1862 the Lord Advocate tried his hand upon a general Act for Scotland. The 33rd section of that Act was the one that affected specially the Solway. By that section the provisions of the English Act of the previous year, so far as they related to fixed engines, were to apply to the Scotch shores of the Solway and the rivers running into it on that side; but all offences under these Acts were to be tried by the provisions of the Scotch Salmon Fisheries Acts. At that time it was evident that the Scotch Members, whose constituents were interested in the question, believed that that section would put an end to the greater part of the fishing by stake nets on the Scotch shore of the Solway. In the debate in 1862 on the 33rd clause of the Salmon Fisheries (Scotland) Bill applying the English Act of 1861 to the Solway, the Lord Advocate, in answer to Mr. Ewart, said— Chartered rights, or rights which rested on immemorial usage were saved. It was quite out of the question to have one law applicable to one side of the Solway, and another law to the other side."—[3 Hansard, clxvii. 74.] Mr. Bouverie then contended that it was unjust to deprive these people of their property in the fishery without giving compensation; but the clause was passed by 32 to 14. At the instance of Mr. Ewart its operation was suspended till 1865, so as to give some compensation for the change in the law, and this extension of two years the Lord Advocate considered ample compensation. In the year 1865 a further Act was passed, under which the Home Secretary had power to appoint special Commissioners, who were to inquire into the legality of fixed engines, and to remove such as wore not proved to be privileged. Inasmuch as the 33rd section of the Scotch Act of 1862 had placed the Scotch shore of the Solway under the provisions of the English Act, so far as related to fixed engines, it had been generally supposed that these Commissioners would have inquired into the stake nets on that side of the Solway. The Commissioners held their sittings in Carlisle in 1867, two years after the section of the Scotch Act should have come into operation. They decided that all the nets on the English side of the Solway were illegal, and ought to be removed, but that they were not empowered to inquire into the stake nets on the Scotch shore, because there was no appeal provided to any of the Scotch Courts from their decision. Shortly afterwards the Home Secretary announced that the Law Officers of the Crown concurred with that decision, and that nothing could be done without further legislation. In November, 1867, Mr. Percy Wyndham asked the Secretary of State for the Home Department— If the Government will bring in a Bill to amend the Laws affecting the Salmon Fisheries in the Solway Frith? Up to a comparatively recent period the whole of the waters in the Frith were under one law, though part was in England and the other part in Scotland. The fishery legislation of 1861-2 had, however, introduced a different state of things, which was productive of great injury to the fishery. Two attempts had been made to rectify the evil, and had failed only through accident. Mr. Gathorne Hardy, in reply— Regretted that, not having been able to communicate with the Lord Advocate, who just now was very much engaged elsewhere, he could not give a definite answer to the Question. It certainly seemed to him that a great injustice existed at present, as on the English side a proper examination of the nets and fisheries had taken place, whereas no such examination was provided for the Scotch shore; and it might very well be that nets were in use on the Scotch shore which inflicted injury on the fisheries on both shores. The use of nets ought to be placed on the same footing on both sides of the Solway, and he would consult the Lord Advocate upon this point."—[3 Hansard, cxc. 427.] Now, all that he (Mr. S. Howard) asked for was an inquiry into previous legislation with the view to further legislation on the matter. Having called attention to the various Acts affecting the question, he would now proceed to point out a few facts which had resulted from this legislation. In the first place, on the English side, owners of stake nets had been obliged to prove their titles; but not so with regard to the Scotch side. Again, immemorial usage had a different interpretation in Scotland from what it had in England, much to the disadvantage of the latter. While on the English side fixed engines had been done away with, on the Scotch side there were, within a distance of about 12 miles of coast, 29 stake nets, 78 traps, and 9,000 yards of "leaders." On the English side there were only three modes of fishing legal, but on the Scotch side there were eight legal modes of capture. On the English side the weekly close time was 48 hours to a minimum of 42; on the Scotch side the close time was only 36 hours—a difference of 12 hours to the disadvantage of the English fisherman. Now could this be considered fair and reasonable? Besides this the Scotchmen paid nothing whatever towards preserving the fish of which they caught the greater proportion. He held in his hand a map of the stake nets—they were like the teeth of a comb. There were 29 stake nets, as he had said, in about 12 or 13 miles, two-thirds of them being between the mouth of the Annan and the Esk. All these caught fish towards the preservation of which the Scotch paid nothing whatever. He thought he had really said enough to justify the words he had used in his Motion—that a great injustice was done under the present law to English fishermen. In all the early Scotch statutes, from the 15th century, fixed engines were set down as illegal, except in waters of Solway and Tweed, which were specially exempted from all restrictions on account of Border jealousies, and he thought it very hard that the Scotch should be allowed to appeal to antiquated modes of exemption in favour of illegal fishing when the cause of those exemptions had been entirely removed. He did not admit the legality of the exemptions at all, and the time had come when they ought to be rescinded. Those stake nets only came into existence in 1780, when they were erected at Newby, at a place a short distance west of the mouth of the Annan. The legality of the Newby nets was tried in 1869 in the case of "Johnston v. Mackenzie," and the Scotch Courts found that the exemptions in the Acts of the waters of the Solway held good, because the net was in the water of the Solway and therefore legal. If they claimed the right to keep these stake nets on the strength of the old exemptions, why did they not claim the right to fish all the year round, to which, under those exemptions, they were equally entitled? He asked for an Act which would empower the Home Secretary to appoint Commissioners for England who should have the power to inquire into the legality of these Scotch stake nets and remove all such as should be proved illegal; and, further, he would like very much that an Act should be passed for the Solway similar to that relating to the Tweed passed in 1827, which had had the effect of increasing the value of the Tweed fisheries from £4,000 to £11,000 a-year. Last Session he (Mr. S. Howard) asked the Home Secretary— If he can state why it is that, whilst all the stake nets on the English side of the Solway were done away with by 'The Salmon Fisheries Act, 1861,' those on the Scotch side have been allowed to remain; and, whether he can render any assistance in remedying what is felt by the English fishermen to be a great injustice? The Home Secretary, in reply, said— He was not in any way responsible for the legislation of 1861, but the fact unfortunately was, that the law on the two sides of the Solway was different. The subject was mentioned in the Reports of the Inspectors of Salmon Fisheries for 1875, who said it was desirable to remove the anomaly; but the Scotch proprietors were indisposed to adopt the necessary legislation. The Esk was under the English Acts; but there would be a strenuous opposition among the proprietors on the north side of the Solway, which was only the estuary of the Esk, to come under the same law."—[3 Hansard, ccxxx. 1175.] He hoped the right hon. Gentleman was prepared to abide by that statement—because upon his own showing those nets were illegal. The Home Secretary had power to define the limits within which all stake nets were illegal; stake nets were illegal within limits of every estuary as defined by the Home Secretary; and he had stated that that part of the Solway was simply an estuary of the Esk, and thus proved that all stake nets east of Annan were illegal. He asked the Home Secretary, who was responsible for the salmon fisheries of the United Kingdom, to rescue the Solway from the unfortunate and anomalous position into which it had been allowed to fall by the jealousy of bygone generations and piecemeal legislation, and to grant the prayer of the Petition of 120 poor fishermen on the English side of the river, praying that House to take steps by which that great injustice might be removed. He hoped that the facts he had stated had convinced hon. Members that there was a great injustice done to English fishermen by the present state of the law, and that hon. Members would accord to his Resolution that support which he thought it justly deserved.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "in the opinion of this house, it is advisable that a Royal Commission be appointed to consider and report as to the best means of carrying into effect the intention of the Legislature with regard to the Stake Nets in the Solway, as expressed in the thirty-third Clause of 'The Salmon Fisheries (Scotland) Act, 1862;' and also to report as to the desirability of further legislation with a view to removing the injustice consequent upon the conflicting state and interpretation of the Laws affecting the Solway Fisheries in England and Scotland," — (Mr. Stafford Howard,) —instead thereof.

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

THE LORD ADVOCATE

admitted there was an inequality in the law relating to the fisheries on the opposite sides of the Solway; and it was necessary that he should point out that there was a difficulty in suggesting how that inequality could be removed. Hon. Members were probably aware that the law with regard to salmon fishing in the sea round the coast of England differed from the law of Scotland. In England, since the days of Magna Charta, the right to that fishing had been vested in the Crown, not for its own advantage or for the advantage of individuals, but for the benefit of the public at large, and the Acts passed on the subject of the Salmon fisheries along the English coasts amounted simply to the regulation of a public right in the general interest of the community. In Scotland the case was different. The fishing of salmon on the coast of Scotland was the patrimonial right of the Crown; and the Crown had power to give, and had been in the habit of giving, rights of fishing to individual proprietors. A right thus constituted was the private property of the individual so favoured by the Sovereign. He did not intend to discuss the merits of the question further than to say this—that in Scotland there was no such thing as a title by immemorial usage. No extent of possession, even if it were for 1,000 years instead of 40, would of itself constitute a private right to heritable estate under the law of Scotland. A person who claimed heritable property must produce a charter; and although there were circumstances in which possession for 40 years might be regarded as interpreting the terms of an ambiguous charter, yet it was always on the charter itself, and never on the mere possession, that the right was based. Now, it was a matter of notoriety that many of the rights of fishery in the Solway Firth rested upon grants made by the Crown so early as the time of Queen Mary and James VI. It might be that there were now persons fishing with stake nets on the Scotch side of the Solway who had no right to do so; and he did not for a moment suggest that there ought not to be an inquiry with a view to ascertain whether there was not unauthorized fishing—whether the right of fishing was not exercised by persons who had no title by charter or grant, and also, perhaps, whether those who had received grants or charters had not exercised the right in excess of what had been conferred upon them by the Crown. But if by the words "carrying into effect the intention of the Legislature" was meant repealing those old exemptions and sweeping away the patrimonial rights of towns, communities, and private individuals on the Scotch shore, he must say that that was not the intention of the English Acts, for they contained a special reservation in favour of rights constituted by grant or charter, or by immemorial possession according to the law of England. He was not prepared to accept a Motion couched in the terms of that of the hon. Member (Mr. S. Howard), especially after the explanations he bad given; but if he did not insist upon that particular Motion, he (the Lord Advocate) was quite prepared, on the part of the Government, to promise that there should be an immediate inquiry, which he trusted would form the basis of some future settlement of the question. But he must distinctly say that he could not promise that the purport of that inquiry would be to sweep away valuable heritable rights which were as much constituted property by the law of Scotland as property in land, and which, perhaps, had only re- cently been the subject of purchase and sale. A measure for that purpose would be one not to regulate the interests of the public, but to confiscate the rights of private property. There might be some method suggested of modifying or regulating these rights and, perhaps, abolishing them, in a manner which would not inflict pecuniary loss upon the owners; but he could not promise a measure which would deal with them in the way in which the public rights on the English side had been dealt with.

MR. PERCY WYNDHAM

said, the question was, not whether stake nets were a nuisance or not, but whether effect should be given to the undoubted intentions of the Legislature; and there could be no doubt that the intentions of the Legislature were that both shores of the Solway should be placed under the same law; and it was thought right that this should be done under the Scotch Act of 1862. There was great opposition on the part of the Scotch Members to that proposal, and the House, on that occasion, heard a great many arguments, such as they had often heard on questions relating to Salmon legislation, and had refused to give effect to, and such also as the House had just heard from the hon. and learned Lord Advocate. It was found that the English Act of 1861 was defective for want of the proper machinery to carry it out; and the result was that a Select Committee was appointed upon the subject in 1864, and in 1865 an Act was passed which created Special Commissioners, who were appointed for the purpose of inquiring as to the rights which existed with regard to fixed engines under the Act of 1861. There was no intention to take away engines that were held by royal charter, but the object of the Commissioners was to ascertain whether the engines in use were held by royal charter, or whether—as was the fact in 99 cases out of every 100—they were held by no such title. As a result, the Act of 1861 was extended to Scotland; but the machinery that was found necessary to give it effect in England was not extended to Scotland also; and Mr. Paterson, who was Chairman of the Commission, when formally applied to for his view on the matter, said at Carlisle that no jurisdiction was expressly given to the Commission to inquire into the legality of any engine situated in Scotland, and that an appeal was given to the Courts of Westminster only; and that, as this state of things might lead to unfortunate results, all the Commissioners would do was to report their opinion to the Home Secretary, who might consider it proper to take the opinion of the Law Officers of the Crown on the subject. The inequality in the existing law had been condemned by the last three gentlemen who had held the office of Lord Advocate, and Lord Moncreiff brought in two Bills, with the object of rectifying it, in 1866 and 1868. Both those Bills contained clauses which had for their object the rectification of the present anomalous state of the law. The second Bill, he might add, proposed to reduce the area of the Solway—which might come under the operation of the English law—to narrower limits. No doubt the hon. Gentleman would be satisfied with a more limited area, for it was a matter of remark that where the injustice—if he might use the word—pressed most severely was that part of the estuary of the Solway which was furthest inland, where the fish went up into the English rivers. He did not know how the Government intended to meet the Motion; but with regard to the proposition for a Commission, he thought all the information necessary on the subject had already been collected, and was at hand. He did not know what his hon. Friend (Mr. S. Howard) wished for; but what was desirable was to see a uniformity of the law on the Solway, as had been expressed over and over again in the House; and when the hon. and learned Lord Advocate talked about the interference with private property, and of royal charters, he begged to remind him that the whole object of the Commission appointed in 1865 was to prove whether the people who alleged that they had royal charters possessed them or not; and the effect was to sweep away a lot of them. And it was in the hope that the Commissioners would be appointed to carry out the same sort of inquiry for Scotland as was instituted in England, that his hon. Friend had introduced his Motion that night. It might be said that they should have Scotch Commissioners appointed under the Scotch law; but if that was the case they would have to go back on what was done when it was considered desirable that the Solway in all parts should be under one and the same law, and that that law should be the law of England.

MR. FLETCHER

said, it had not been his intention to take part in this debate, but after the speech they had just heard from the hon. and learned Lord Advocate he desired to say a few words. He was sure he was speaking the sentiments of every Member of the House when he said that his hon. Friend the Member for East Cumberland (Mr. S. Howard) had laid his case before the House in a speech which showed much research, and no little ability. In his (Mr. Fletcher's) opinion his hon. Friend had made an unanswerable speech—at any rate, it had not been answered by the hon. and learned Lord Advocate—and he had shown conclusively that great hardship and injustice were inflicted on all connected with fisheries on the Cumberland side of the Solway. It was difficult to conceive anything more irritating to a large body of intelligent and industrious men who earned their bread by fishing on the Cumberland shores than to find their hands tied by Act of Parliament forbidding them to use those engines and cunning devices which were used with deadly effect by the fishermen on the opposite coasts of Scotland. And this was not all, for it could not be doubted that the greatest portion of the fish caught in the Scotch nets were English salmon born and bred in English waters. He had not gathered from the speech of the hon. and learned Lord Advocate what it was that he was willing should be done. He had told them a great deal about the "patrimonial rights of the Crown" and "immemorial usage," but he had not attempted to show that the grievances complained of by the hon. Member for East Cumberland did not exist. He knew that they existed, but he would not accept the proposition now before the House for the appointment of a Royal Commission; he promised, however, that if that proposition was not pressed, he would, on the part of the Government undertake that some inquiry should take place. But he (Mr. Fletcher) would like very much to know what he intended should be the nature of such inquiry and by whom it would be conducted? He knew of no means of inquiry more likely to be effectual than an inquiry conducted by a Royal Com- mission. The House had heard a great deal to-night about the legal anomalies which beset English and Scotch fisheries; but in his opinion there were other matters not precisely of a legal nature which required to be looked into. For instance, in Cumberland there wore two very fine salmon rivers—the Eden and the Derwent. For some reason which had never been explained one of those rivers was a very early salmon river, and the other a very late one. In the Eden fresh run salmon made their appearance in February; but in the Derwent very few were caught before the month of July. Now, it was quite obvious that legislation in reference to the close time which would be applicable in the one case might be totally inapplicable to the other. Surely that was a proper subject of inquiry with a view to legislation. Whilst alluding to this perplexing subject he would mention a circumstance which, though not strictly relevant to the subject now before the House, might be of interest to those who were fond of salmon fishing. It used to be the general opinion that the reason the Derwent was so much later than the Eden was that the temperature of the water in the Derwent was much lower than that of the Eden. Some years ago he (Mr. Fletcher) had some experiments made which proved conclusively that such was not the fact. The temperature of the water in the two rivers was taken daily for twelve months, and it was found the mean temperature of both rivers was practically the same for each month of the year. The real cause of that anomaly yet remained to be found. Reverting to the Question before the House—he hoped that hon. Members would not be alarmed at the legal difficulties with which the hon. and learned Lord Advocate had surrounded himself, and that the Government after all would assent to the inquiry as proposed by the hon. Member for East Cumberland, which inquiry he could not doubt would result in legislation that would remove what was felt to be a great injustice by the inhabitants of Cumberland.

MR. ERNEST NOEL

said, he thought the case presented by the hon. Member for East Cumberland (Mr. S. Howard) was by no means so unanswerable as the hon. Member for Cockermouth (Mr. Fletcher) conceived. As the hon. Member for East Cumberland had said, as far as the question of inquiry went, there was not much need for it; for almost every fact concerning the Solway was now pretty well known. What was wanted, and what was desired by his hon. Friend was that some action should be taken to provide that the practice on the English side of the Solway should become the practice on the Scotch side. It had been laid down, as if there was no doubt on the question, that the intention of the Legislature in the Acts of 1861 and 1862 was to abolish all stake nets. He (Mr. E. Noel) ventured to say that there was considerable doubt about the matter. In the Act of 1861, which was the English Act, no doubt all stake nets were prohibited; and by the Scotch Act of 1862, Clause 33, fixed engines on both sides of the Solway were brought under Clause 11 of the English Act; but there were these remarkable words in the clause— But this section shall not affect any ancient right or mode of fishing as lawfully exercised by any person at the time of the passing of this Act, by virtue of any grant, or charter, or immemorial usage. It was, therefore, clear that instead of it being the intention of the Legislature to do away with all stake nets, there were stake nets which were to be preserved. When the Act of 1862 was passed, there was a discussion in that House. The hon. Member who represented Dumfries at that time objected to the wording of the clause, and in the discussion which took place, the then Lord Advocate said that this Act would not in anywise interfere with any chartered rights whatsoever. If, however, what was asked by the present Motion was granted, it would interfere most materially with very clear chartered rights. When asked to take other people's property for some public good, they had always been accustomed in that House—and he believed in every civilized Legislature—to remember that for any private property which was taken for the public good, the owner should have fair compensation. But in the course of this debate he had not heard a word intimating that they were prepared to pay fair compensation for rights which, he held, could be proved to be private property founded on as clear rights as any private property— such as land—held by anyone in this country. They were told they had a river with different laws on the different sides, and they were asked to make both sides of the river alike, because it was hard that the fishermen on the English side should be heavily weighted by their neighbours on the Scotch side. That sounded very plausible; but he asked the House to remember what the promoters of the Motion asked. They wanted to take from persons property which they had held for hundreds of years — held under Royal charter, granted by the Kings of Scotland, and never revoked, and they wanted to do this without any compensation. A like proposition had never been brought before the House. He quite admitted that there was a grievance. It was a grievance which was stated by the Commissioner in 1867. Mr. Paterson, when he was adjudicating on the salmon fisheries at Carlisle, said that he could not undertake to enter upon the subject of Scotch stake nets, because he had not proper and sufficient jurisdiction, there being no provision in the Act for an appeal to a Scotch Court of Session. He (Mr. E. Noel) quite agreed that the Government ought to provide some easier machinery, by which if there were any illegal stake nets they should be removed, as those on the English shore were removed. He did not wish to keep up a single stake net on the Scotch side which had no right to exist there. Let there be all the inquiry in the world; but if it could be shown that the stake nets belonging to the burgh of Annan were as much private property as any acre of land held by any person, to take them away without compensation, so far from being just, seemed to him to be the very reverse. If they were asked to do this on public grounds—if they were asked to do it because the salmon fisheries were being destroyed and they ought to consider the food of the people—he should have felt it was a case much more deserving of consideration than was this one. But he thought the House should be made acquainted with some facts connected with some of those stake nets. He would venture to read a short extract from a Report made by Mr. Buckland in the year 1871. He reported— It is my opinion, having twice examined the Solway, that the natural conditions of tide expanse and the formation of ground are such that fixed engines are the proper mode of catching the salmon in this district. No number of draft or other nets could produce the same amount of salmon in good condition for the use of the public. Therefore I cannot advise their complete abolition; first, because it would interfere with the rights of property according to Scotch law; and second it would diminish the quantity of salmon sent to market. That was the opinion of Mr Buckland, whose efforts to preserve salmon were well known. Yet, with this statement before them of the best mode of fishing in that country, they were asked to enter in and confiscate those chartered rights. He would venture also to read a short extract from the Report of Mr. Walpole, who was certainly not opposed to the preservation of salmon. That gentleman said there could be no question that sweep nets and hang nets were infinitely more destructive than the stake nets now in use; yet the old stake net proprietors had been severely fined. He could quote also from the Report of Mr. Young to the same effect, and he thought the House would see that the proposition before it was one that it would be most unfair and most unjust to carry out. His hon. Friend (Mr. S. Howard) spoke of the injustice of the present law, but what he proposed seemed to be vastly more unjust; and, therefore, he (Mr. E. Noel) whilst having no desire to prevent an inquiry being instituted by the Government, hoped that they would also appoint Commissioners, by means of a short Act, who would try in a cheap form the legality or illegality of every stake net on the Solway. He was quite prepared for that, but he must protest against this Motion, because the language in which it was couched and the tenor of his hon. Friend's speech conveyed a demand that the House should confiscate what was as clearly private property as the land of any proprietor in the country.

MR. J. MAITLAND

said, his hon. Friend (Mr. E. Noel) appeared to be very much afraid of confiscation; but the hon. and learned Lord Advocate had distinctly stated that he would not sanction anything that approached confiscation. And his hon. Friend should remember that salmon fishing was the only kind of property where they might see that a man reaped who had never sown The peculiarity of it was that there was one set of people who took care of the salmon, and another set who caught them and made property of them. That appeared to him to take it out of the ordinary condition of ordinary property, and when anyone talked of confiscation, he would always remind them that salmon existed in this country solely in consequence of the stringent enactment of the Legislature, and that the property of the fisheries had enormously increased in late years by Parliament having taken away the rights of other proprietors. That being the state of matters, he confessed that he sympathized with the Lord Advocate and the Government—because he believed that, on the one hand, they were scrupulously desirous of having nothing like confiscation; and on the other hand, they were anxious to keep up the supply of salmon. Speaking from his own experience, he believed that salmon fishing in the Solway was falling off in value. That was the case even in the time that he could remember, and the oldest inhabitants could tell a most lamentable tale. It was not a question of English and Scotch. The people who had these stake nets no doubt exercised very sharp practice on those on the other side. They had their property increased in value, and did nothing in return. The same thing held good as to the other proprietors in the rivers. They could do nothing, although the nets had increased. An Act had certainly been passed by which the close time was largely extended. But the question was what was to be done? He was unable to give any suggestion; but he thought they might have an inquiry, and if there was to be one, he hoped it would be not only as to stake nets, but also as to illegal modes or successful modes of fishing, such as flats and draft nets and other engines. He believed that by the Act of 1865 the Commissioners had the power to inquire not only as to stake nets, but other engines. He hoped if this inquiry was granted that the Commissioners would be empowered to look into both, and not only one mode. He was perfectly astonished at the small revenues these fisheries seemed to yield, for the payment was only £1,060 altogether.

MR. ASSHETON CROSS

said, the Government really had only one object in this question—that right should be done. He thought that anyone who looked at a map of the Solway would convince himself that there was a good deal going on on the north side of the Solway that ought not to go on. So far as the Government were concerned, they were perfectly willing to put that right, not only in the most practical and feasible, but in the shortest and most ready way. That was a totally different thing—and he did not think the House ought to confuse the two stories—that was nothing like confiscation. A good deal of mischief was going on, and people were doing things which they ought not to do; and when people were doing what they had no right to do, they ought to be prevented from doing it. That had been done to the full extent on the English side, and the question was, as to what was to be done on the Scotch side. Therefore there could be no objection on the part of the Government to there being a full and fair inquiry into the matter. He had no objection to accept the Motion as it stood on the Paper except that he thought it would not carry them very much further; and he did not think it would answer the purpose they had in view; for the Motion was "to call the attention of the House to the condition of the law as affecting the salmon fisheries in the Solway." Now, he did not think the attention of the House could have been called to it in a more simple and effectual manner than by the hon. Member for East Cumberland. Then the Motion said that it was advisable to appoint a Royal Commission— To consider and Report as to the best means of carrying into effect the intention of the Legislature with regard to stake nets in the Solway, as expressed in the thirty-third Clause of the Salmon Fisheries (Scotland) Act, 1862, and also to report as to the advisibility of further legislation. He did not object to that if it stopped there; but he objected to the latter part of the Motion, because it referred to an injustice as existing, assuming that injustice did exist before the fact had been proved by a Commission. The Motion proceeded— With a view to removing the injustice consequent upon the conflicting state and interpretation of the laws affecting the Solway Fisheries in England and Scotland. In talk across the Table of that House it might for convenience of discussion be allowed that an injustice did exist. It might be assumed in that way, but it should not be assumed in a Resolution of the House. If the hon. Member were willing to accept a Motion from which the latter words were omitted, he (Mr. Cross) would raise no objection. He wished to point out to the hon. Member that, as had been mentioned on both sides of the House, a great mass of information on this subject had already been collected; and if anything was wanted, it was that any Commission that might be appointed to make inquiry into this matter should have power to require people to prove the rights they claimed. The Motion of his hon. Friend did not go far enough; he (Mr. Cross) would therefore make the proposal that the Commission should have power to require parties who appeared before them to prove their rights. It would probably be found that many would be found exercising rights they were not entitled to exercise, or which they were exercising in excess; these questions would then be settled once for all. In this there could be nothing in the nature of a confiscation of rights. It was not because certain customs might not be in accordance with the law of England that therefore persons should be deprived of these rights they held under the law of Scotland. The rights in this case were rights of property, and he asserted the principle that they were not to be invaded, however convenient such a course might seem, and whatever primâ facie reasons might be shown. He was perfectly willing to make a demand that such rights should be proved; but being once proved they should not be taken away unless under the extreme pressure of public interest. Proof of right should be called for, and, that being done, it was not necessary to add to the discussion the question of the state of the law on either side of the Solway. He did not say that the result would be that the English and Scotch sides would be under the same law; but when all injustice was removed, it should be established that no right should be exercised unless as right of property. If this was sufficient for the hon. Member for East Cumberland he (Mr. Cross) was perfectly willing to accept the Motion in the amended form he had indicated.

MR. J. MAITLAND

asked if the right hon. Gentleman intended the in- quiry to extend to the stake nets and engines in the upper waters?

MR. ASSHETON CROSS

said, he was simply dealing with the question of the Solway Firth according to the Motion, for the reason that the Solway had been excepted from fishery legislation; but he did not maintain, or let fall anything that might lead to legislation in other matters which he was not then prepared to discuss.

MR. STAFFORD HOWARD

said, he would be glad to adopt the Motion in the form proposed by the right hon. Gentleman. With regard to the question of injustice, it simply referred to the fact that an investigation had taken place upon the English side, and not upon the Scotch side, and that there was a desire such an investigation should take place.

SIR WILFRID LAWSON

said, he understood that the Home Secretary accepted the proposal of the hon. Member for East Cumberland as a matter of form; but that it was necessary to move the omission of the last two lines—namely— With the view of removing the injustice consequent upon the conflicting state and interpretation of the laws affecting the Solway Fisheries in England and Scotland. He would move accordingly that these words should be omitted.

Amendment, by leave, withdrawn.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "in the opinion of this House, it is advisable that a Royal Commission be appointed to consider and report as to the best means of carrying into effect the intention of the Legislature with regard to the Stake Nets in the Solway, as expressed in the thirty-third Clause of The Salmon Fisheries (Scotland) Act, 1862;' and also to report as to the desirability of further legislation,"—(Sir Wilfrid Lawson,) —instead thereof.

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

Words added.

Main Question, as amended, put. Resolved, That, in the opinion of this House, it is advisable that a Royal Commission be appointed to consider and report as to the best means of carrying into effect the intention of the Legislature with regard to the Stake Nets in the Solway, as expressed in the thirty-third Clause of "The Salmon Fisheries (Scotland) Act, 1862;" and also to report as to the desirability of further legislation.

Resolved, That this House will immediately resolve itself into the Committee of Supply.

Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."