HL Deb 23 July 1863 vol 172 cc1233-45

Order of the Day for the Third Reading read.


presented Petitions from certain persons owning fisheries in Ireland and representing a large number of persons similarly interested, complaining that this Bill did not contain any clause saving chartered immemorial rights. This was the first case, he believed, in which a Bill had been introduced into Parliament which proposed to abolish, without any compensation or even inquiry, the chartered rights of individuals, or rights which had been held from time immemorial. The Bill would utterly destroy those rights and interests without offering anything in the shape of compensation. With regard to the weirs, the Bill required the owners of them, upon application being made to them, to make free gaps in their weirs. It appeared that this question of gaps was by no means a new question in Ireland, for the question of requiring free gaps in the weirs had been the subject of legislation in Ireland more than a century ago. Such weirs, however, as had been used from time immemorial were exempted from the operation of that Act. The owners of Irish weirs founded their claim to exemption from such a requirement upon immemorial usage and grants from the Irish Parliament, and the Government, when the Bill was introduced into the other House, declared it was their intention to preserve ancient rights and interests. Up to a late period, therefore, the parties interested believed that they would be protected by the Legislature. The attempt to set aside these rights without compensation was made on a sudden, without notice, in a thin House, and only succeeded by a very small majority. Under these circumstances he thought it would be a great injustice to deprive by a Bill of this kind persons of their rights without any inquiry or previous notice—rights over property amounting to something like £300,000 a year; whereas the English rights, which were protected by Act of Parliament, did not extend beyond the value of £20,000. He should be sorry to see this Bill thrown out altogether; but he trusted, if they passed it, that their Lordships would, at all events, introduce a clause into it which would protect the rights of those who had hitherto held them under a charter or according to immemorial usage. If their Lordships took that course, they would be enabled to gain time for the more mature consideration of the measure, and for ascertaining its operation, and in the next Session of Parliament the subject might be again deliberately discussed. The Bill, he thought, would greatly improve the value of the Irish fisheries on the whole, and he thought it possible that some persons who now viewed the Bill with serious apprehension would not suffer the amount of loss which they anticipated from its operation. But he should much regret the passing of the Bill without some such provision as he suggested, believing that it would have the effect of inflicting a serious blow upon the authority and character of their Lordships' House, which had heretofore jealously guarded private interests when any attempt was made to invade them. If this Bill, then, were allowed to pass into a law in its present crude and unjust form, he was of opinion that the confidence of the public in the justice of their Lordships' House would receive a blow from which it would not soon recover. Having said so much, he would now lay the Petitions upon the table.


presented a Petition from a gentlemen who had purchased a fishery, held under charter, in the Encumbered Estates Court, thereby adding a Parliamentary to his previously valid title. He had not worked the fishery last year, on account of circumstances explained in the Petition, and therefore, although the same engines as he was now using had been in use for several years previously, his property would be swept away under the terms of this Bill, because those engines had not been actually used in the fishery last year. He maintained that this was a case of extreme injustice, and it was but a specimen of hundreds which would be made known if there had been time to forward Petitions. He should not again go over the ground over which he had on a former occasion travelled; but believing the more useful the measure turned out to be in a public point of view, the more injuriously would it on future occasions operate, as furnishing a precedent for the invasion of private rights, he should move that it should be read a third time that day three months.


said, he thought it had been clearly shown that the Bill involved an invasion of the rights of property which could not be justified, and he should therefore vote against the third reading.


observed, that the discussion was somewhat irregular, as the Bill was not then before them. To make their proceedings regular, he then moved that the Bill be read a third time.

Moved, That the Bill be now read 3a.


said, as the subject appeared to him to be exhausted, he would not again go over the objections urged against the Bill. The question lay in a nutshell—namely, whether their Lordships would consent to the passing of a measure which would destroy rights of property that had been enjoyed from time immemorial, and which had been repeatedly recognized in our statute book. He believed that nine out of ten of the public in Ireland to be affected by it were utterly ignorant of the nature of the Bill. Pursuant to notice, he moved as an Amendment, that the Bill be read a third time that day three months.

Amendment moved, to leaveout ("now") and insert ("this day three months").


said, he could not agree in the representations of the Bill which had been made by the noble and learned Lord. In his opinion, property in a salmon fishery was, primarily, a right to capture salmon in certain places, but not to capture it in those places by every possible mode. Salmon was a fish about which there was this peculiarity—that the whole race must, for the purposes of propagation, come to a certain point on the coast; and as what was termed the "run" of the fish was perfectly well known, it was quite possible that, by the aid furnished by the progress of mechanical invention, any one proprietor who had a share in the right of catching the fish in a particular river might be enabled to catch the whole of the fish which came into it. If, therefore, the right of property was pushed so far as to admit of that being done in the case of one individual, the rights of others would be destroyed; indeed, acting on the principle which was so zealously maintained by noble and learned Lords in that House especially, it was quite as wrong to limit the time during which fish might be caught as to restrict the mode in which it should be taken. He remembered well, for instance, that a noble Duke (the Duke of Richmond), who was known to be the largest salmon proprietor in the three kingdoms, objected, as he had a perfect right to do, to a provision in the Bill relating to Scotland, because it deprived him during every week of the salmon-catching season of so many hundreds of fish worth so many shillings. If it was wrong to rob a man of £500 a year, it was equally wrong, in principle, to rob him of £5, as it was quite in the power of one man, by an abuse of his rights, to deprive another of rights to which he was equally entitled. It could hardly be deemed unreasonable to interfere with the mode of catching the fish, seeing that the use of stake and bag nets had the effect of depriving many proprietors of their rights to capture salmon in their fisheries.


said, he thought that the extent of the in justice which the Bill would inflict was hardly yet known to their Lordships. There were two distinct rights of fishery which ought to be kept separate—the rights of the owners of chartered weirs or of weirs existing from time immemorial, and the rights of owners who fished by stake and bag nets. The former were by law now entitled to compensation if an opening were made in their weirs. But this Bill proposed to give the Commissioners power to open gaps in weirs without the slightest compensation. It was admitted, however, that they were entitled to compensation; and what was said to them was—"We are going to remove a number of stake and bag nets, and your fisheries will thereby become the more valuable." Thus it was that the promoters of the Bill played off some proprietors against others. But it was further said, "Your rights were granted by Act of Parliament, and by Act of Parliament they may be repealed." But it was not the fact that all those rights were granted by the Act of 1842. That Act preserved all pre-existing rights; it did more, it sanctioned and confirmed them. But would it be said, that because rights were granted by Act of Parliament, therefore Parliament had a right to take them away? That he utterly denied. Suppose that Parliament had once improvidently and improperly conferred rights upon individuals, still Parliament could not deprive them of those rights without giving proper compensation. These rights of fishing by stake net and bag net had been dealt with like other descriptions of property. They had been the subject of sale and transfer; they had been purchased for large sums of money, and had been charged with jointures and annuities. This question of the stake and bag net fishing was totally distinct from that of the weirs. In many instances the owners of stake nets and bag nets would be entirely deprived of their property. He certainly felt that this Bill had been introduced at a period of the Session when it was quite impossible that it could receive a degree of consideration equal to its importance, or that the rights and interests of those who would be affected by it could be deliberately considered. And if their Lordships were brought into this predicament by the late period at which this Bill was introduced, that they were unable to consider fairly and justly the mode in which these rights ought to be protected, it was desirable that the Bill should not be allowed to pass this Session; but that next Session there might be officially introduced a Bill which should, if they pleased, largely benefit these fisheries, but which should not obtain that advantage by that sacrifice of private interests and rights. The noble and learned Lord cited a passage from Blackstone which he considered singularly applicable to the present case. That writer says— So great is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps he extensively beneficial to the public, but the law permits no man or set of men to do this without consent of the owner of the land." [Book i., chap. 1.] The learned writer proceeds to say that the legislature not only would, but in many cases did, interfere with private rights for the public good, but how did it do this? Not by stripping men of their rights, but by giving them a full indemnification by way of exchange. The public was now considered as an individual treating with another individual by way of exchange; and even this power was exercised by the Legislature with great caution. He trusted their Lordships would not compel some future editor of our great commentator to obliterate this passage, or to add a note in which he would be compelled to say that in the year 1863 Parliament reversed all these principles, and held that it was entitled arbitrarily to strip an individual of his property and substitute "robbery" for "exchange." He trusted their Lordships would accede to the Motion of his noble and learned Friend.


said, in reply to an observation that had fallen from his noble and learned Friend below him (Lord Cranworth), that any man of education who did not know this question thoroughly by this time must have the misfortune to be both deaf and blind—for the newspapers and every rank of society in Ireland were full of it. The noble and learned Lord talked about the rights of these people, and about the lady whose jointure was charged upon these rights of fishing; but he felt satisfied that if this or some such Bill did not pass this Session or next, there would be no rights to preserve, for all the salmon fry in the Irish rivers was being rapidly destroyed. So far as rights depended upon the capture of fish, they would speedily be destroyed. The Bill, he maintained, was a compromise between one set of owners and another. The persons about whose rights the noble and learned Lord was so eloquent would not, he thought, be very grateful to him if he should succeed in throwing out the Bill, for they knew very well that the measure would be as beneficial to them as it would be to everybody else.


said, he was glad to hear that the noble Marquess had the grace to confer another year upon these proprietors, and he hoped that next Session a Bill would be introduced with all the good provisions of this Bill, and excluding all the objectionable features. It seemed to him a most extraordinary thing that the provisions of the Bill which had been so strenuously opposed by the Government in the other House, and which had been forced upon them only by small minorities, should be so strongly supported by the Government in that House. The very fact that the Government in one House was at issue with the Government in the other was sufficient to render it advisable to pause for another year before passing the Bill. Something had been hinted about giving compensation to these owners in the shape of an increased quantity of fish; but if the quantity of fish were to be so much increased as was anticipated by this Act, there would be a corresponding diminution in the price, and the value of the compensation would not be very great. He should support the Motion of his noble and learned Friend.


said, that he felt so strongly on the subject of this Bill, not as to its policy or impolicy, but as to its justice or injustice—that he could not consent to give a silent vote on this occasion. As far as the objects of the measure went, he entirely sympathized with them. He believed its object to be to increase and protect the breed of salmon, and to give a fair share offish to the upper proprietors on the rivers. He also thought it might promote fishing by rod and line, instead of a wholesale slaughter of the salmon by means of nets. In these ends he entirely concurred, and he believed that the Bill would accomplish them. But it was said that the rights of individuals interfered with these objects, and public interests rendered it necessary that these private rights should be sacrificed. Be it so; but upon what terms? Surely upon the same terms upon which all other private rights were abrogated? The rights of fishing were as much rights of property as the acres in any of their Lordships' parks, and they were just as much entitled to compensation if they were taken away. He was told that these persons would profit like the rest of the world in the increase of fish. That might be so; but let their Lordships suppose a railway carried through the park or the mansion of either of them; and when he asked for compensation, that he was told, "You derive compensation like everybody else from the increased advantages of travelling with greater speed and safety." These rights had been in existence for six or seven centuries; they had been granted by royal charter; they had been created by Act of Parliament. If they were to be abrogated, could it be held that the owners were not entitled to compensation? This principle had never yet been adopted, and he trusted it never would. The noble Duke opposite (the Duke of Somerset) had given him notice that he intended to take a house of his (Lord Kingsdown's). He was very much annoyed at the intention—but the noble Duke had not yet gone so far as to say that he did not intend to pay him for it. He was still more affected by the reasons that had been assigned for this measure. The doctrine that private property must be sacrificed to public good was nothing more than pure communism. If ever the saying "Thank God we have a House of Lords!" was sincerely used, he thought it might be invoked with some reasonable expectation and hope by the owners of these rights of fishing. Here, at least, they trusted to find the sanctuary of law and justice. It was said that lawyers made bad legislators; but this was not a question of policy at all. It was a question of right or wrong, of justice or injustice, of honesty or robbery. He rejoiced to follow the noble example of the noble and learned Lord on the Woolsack, whose prompt and vigorous denunciation of the Bill had done him the greatest honour—honour to himself, and honour to the profession to which he belonged. He was not surprised that the lawyers should be found united in opposition to the Bill; for with what face could they sit as the representatives of their Lordships and administer justice to the suitors at their Lordships' Bar, if they consented to a measure which was an outrage upon all justice?


said, that a considerable fallacy pervaded the arguments of the noble and learned Lords who had supported the Amendment. They had endeavoured to draw a closer analogy between one description of property and another than the facts at all warranted. The fact was, the Bill was more a matter of regulation than of prohibition. The noble and learned Lords spoke of taking away property vested in the owners of stake nets by the Act of 1842; but in reality there was a specific clause in the Bill (Clause 4) which secured in the enjoyment of his rights every man that was legally possessed of a stake net during the fishing season of 1862. Of course, if the noble and learned Lords meant an inchoate right—a right which was not actually exercised last year—he was prepared to contend that what an Act of Parliament gave in 1842 an Act of Parliament in 1863 might fairly say should not be continued, if it had not been actually made use of. Besides, the Act of 1842 appended important conditions to the permission which it gave in certain circumstances to erect stake nets. First of all those nets were to be subject to any regulations or restrictions that the Commissioners of Fisheries might impose for the encouragement or the preservation of the breed of salmon. In the second place, the stake nets were not to interfere with the common right of fishing which all Her Majesty's subjects had on the coast; and, that by the way, was a restriction which had actually been enforced. In the third place, they were not to interfere with the navigation—a condition which they had very generally overlooked. With regard to weirs, it did seem a reasonable thing that compensation should be given in cases where gaps were made, and where the owner of the weir had an indefeasible right tinder charter. The Bill, as proposed by Her Majesty's Government, did contain a clause to that effect, but it was struck out by the House of Commons, and their Lordships had decided on a division against its re-insertion. He (Lord Stanley of Alderley) voted with the majority, and against the other Members of the Government on that question, only because their Lordships could have provided no satisfactory mode for providing the amount of compensation if the Amendment on which the question had been raised in their Lordships' House had been carried. The measure was a compromise, and there never had been a greater unanimity amongst the Irish Peers than with regard to it. He trusted, therefore, that the House would not reject a measure which had cost so much labour, and which was calculated to do so much good.


expressed his disapproval of the Bill in its present shape.


said, it was much to be regretted that the noble and learned Lords were not as well acquainted with the natural history of the salmon as they were with law. He believed, that if the opinion of all the owners of weirs, bag nets, and stake nets in Ireland were taken, it would be found that they were anxious the law should step in and regulate the mode of capture. Every one knew that it was necessary to permit a certain number of fish to pass to the upper waters to breed; but under the existing law every man said, "What is the use of my abstaining from taking all the fish I can? If I don't take them, my neighbour will." All the supporters of the Bill wanted was to increase the supply of salmon for the benefit of the public. At present salmon was an article of food denied to the middle classes of Ireland,—an extravagant luxury to which they would no more think of treating themselves than they would to turtle. He himself was the owner of a stake net on the coast eight or nine miles away from a river, and therefore not likely to injure the fishing, but for all that he would not think of opposing the Bill.


protested against the doctrine which had been laid down by noble and learned Lords. All the supporters of the Bill asked was, that the encroachments of various kinds which had been legalized by the Act of 1842 should be put an end to.


said, the vote he felt it his duty to give was one which he should give with great reluctance. He entirely concurred with many of the objects contemplated by the Bill. He by no means thought that the present fishing laws were in a satisfactory state, and he believed that many of the objects of the Bill were desirable, and that much of its machinery was calculated to secure them. But he regretted that he was compelled to the conclusion at which he had arrived, that he could not reconcile it to his sense of justice to withhold his assent from the proposition of the noble and learned Lord that the Bill should be read a third time that day three months. He would give his vote in the earnest hope, that if the proposition were carried, another Session would not pass over without a Bill being undertaken to effect the beneficial object contemplated by this measure, and at the same time avoiding the injustice with which this Bill was so strongly tainted. On the one hand they had the inconvenience of postponing the measure to another Session of Parliament, and on the other they had the positive and absolute objection that they were inflicting a grievious injustice upon a number of persons who had had no opportunity of stating their case, and showing how injuriously they would be affected by the Bill. There was this also to be taken into consideration—that their Lordships were entering on a course which that House had never yet sanctioned—namely, taking away private property for the public benefit without giving compensation. He might say, further, that he would have been more indisposed than he was to vote against this Bill if he had not observed during its progress that many of its supporters had steadily set themselves against making any concession, or assenting to the removal of any of the objectionable features it contained.


said, the Bill would confer an immense benefit upon Ireland, but he admitted there were provisions in it which he should be glad to see amended. For some of those Amendments he had voted, but the majority of the House was against him; but he regretted that he should not be able to give his vote for the Motion for the Proviso, of which his noble and learned Friend (Lord Cranworth) had given notice. The rights which some noble Lords were so anxious to maintain were, under the present system diminishing in value, and it was quite clear that something should be done. He should be glad to see compensation given, but he could not refrain from voting for the third reading.

On Question, That ("now") stand Part of the Motion? their Lordships divided:— Contents 40; Not-Contents 25: Majority 15.

Resolved in the Affirmative.

Bill read 3a accordingly, with the Amendments.

Somerset, D. Clarina, L.
Sutherland, D. Cloncurry, L.
Foley, L. [Teller.]
Ailesbury, M. Gardner, L.
Hunsdon, L. (V. Falkland.)
Airlie, E.
Cottenham, E. Keane, L.
De Grey, E. Lismore, L. (V. Lismore.)
Desart, E.
Devon, E. Llanover, L.
Doncaster, E. (D. Buccleuch and Queensberry.) Manners, L.
Methuen, L.
Mont Eagle, L. (M. Sligo.)
Ducie, E.
Effingham, E. Mostyn, L.
Granville, E. Ponsonby, L. (E. Bessborough.) [Teller.]
Orkney, E.
Saye and Sele, L.
De Vesci, V. Silchester, L. (E. Longford.)
Hawarden, V.
Hutchinson, V. (E. Donoughmore.) Somerhill, L. (M. Clanricarde.)
Lifford, V. Stanley of Alderley, L.
Melville, V. Sundridge, L. (D. Argyll.)
Abercromby, L. Talbot de Malahide, L.
Clandeboye, L. (L. Dufferin and Claneboye.) Wynford, L.
Westbury, L. (L. Chancellor.) Wicklow, E.
Calthorpe, L.
Bath, M. Chelmsford, L. [Teller.]
Exeter, M. Churston, L.
Normanby, M. Congleton, L.
Cranworth, L. [Teller.]
Beauchamp, E. Denman, L.
Cardigan, E. Kingsdown, L.
Chichester, E. Monson, L.
Derby, E. Redesdale, L.
Ellenborough, E. Templemore, L.
Lonsdale, E. Tyrone, L. (M. Waterford.)
Malmesbury, E.
Saint Germans, E. Wensleydale, L.

LORD CRANWORTH moved to insert the following Proviso, which, he said, was similar to that contained in the English and Scotch Acts:— Provided also, that nothing in this Act contained shall interfere with any Eights held at the Time of the passing of this Act under Royal Grant or Charter or possessed from Time immemorial.


said, that as he and those who voted with him had been accused of robbery, he wished to say a few words as to the grounds upon which he should vote. These rights by charter and immemorial usage referred only to rights of fishing in certain places, but could not confer the right to use for catching fish engines which had not been invented when the charter was granted or the usage began. An Act of the Irish Parliament, moreover, passed in the 10th Charles I., long after most of the charters were granted, and, of course, long after the commencement of immemorial usage—declared against all fixed engines of every sort in all the rivers in Ireland. This being so, his opinion was that in 1842, so far from there being a right to use fixed engines, such use was in defiance of that law. The present Bill did not take away any right of fishing, but only altered the mode of fishing, the same as had been done in England and Scotland. If the noble and learned Lord should succeed in carrying the Amendment, he (the Earl of Donoughmore) should feel it his duty to move the rejection of the Bill, which would then have become nothing but "a mockery, a delusion, and a snare."

On Question? their Lordships divided:—Contents 23; Not-Contents 34: Majority 11.

Amendment negatived.

THE EARL OF DONOUGHMORE moved to restore Clause 20 (Weekly Close Time for Stake Nets, &c).


said, that this question had been already determined by their Lordships, and therefore he could not support the Motion.


opposed the Motion.

On Question? their Lordships divided;—Contents 12; Not-Contents 37: Majority 25.

Resolved in the Negative.

Protest against the Third Reading of the Bill.


"1. Because, although by the 5 & 6 Vict., c. 106, sect. 18, it was declared and enacted, that any person legally possessed of or entitled to a Several Fishery in or along any Estuary in Ireland, might erect within the Bounds of such Fishery any Bag Net or other fixed Net for the taking of Salmon; and although the Right so declared and enacted is a valuable Right, and has been enjoyed and exercised by the Owners of such Fisheries ever since the passing of the said Act, yet this Bill takes it away in all Cases as to Bag Nets and in many Cases as to other fixed Nets without giving Compensation to the Persons thus deprived of their legal Rights.

"2. Because, in other respects, the Bill infringes the legal Rights of Owners of Fishers Without giving them Compensation.

"3. Because this Bill affords a dangerous Precedent for the Sacrifice of vested Rights in order thereby to obtain supposed public Benefits.



proposed an Amendment on Clause 24, limiting its operations to the oases of rivers which did not exceed 100 yards in width.


opposed the Motion.

Amendment negatived.

THE EARL OF AIRLIE moved the following Proviso:— Provided always that nothing herein contained shall prevent any person having a bag net or engine now in use, and in respect of Which licence duty has been paid, from continuing the use of the same during the remainder of the present season.

Motion agreed to: Proviso added.

Bill passed.

House adjourned at a quarter before Eight o'clock, till To-morrow, a quarter before Five o'clock.