%F HIS BOOK *&g

J.E.HELMER.\

A VIEW

OF

THE PRESENT STATE

OF THE

SALMON

AND

CHANNEL-FISHERIES,

AND OF THE

STATUTE LAWS

BY WHICH THEY ARE REGULATED ;

SHOWING, THAT IT IS TO

THE DEFECTS OF THE LATTER THAT THE PRESENT SCARCITY OF
THE FISH IS TO BE ATTRIBUTED.

COMPREHENDING ALSO

THE NATURAL HISTORY AND HABITS OF THE SALMON,

WITH

SOME OF ITS PECULIARITIES HITHERTO UNDESCRIBED.
TOGETHER WITH

THE FORM OF A NEW ACT,

DESIGNED TO REMEDY THE EVILS SO GENERALLY COMPLAINED OF;
AND AN ABSTRACT OF

THE EVIDENCE BEFORE THE COMMITTEE OF THE HOVSE
OF COMMONS UPON THE SUBJECT,

WITH NOTES.

BY J. CORNISH, Esg.

Truth needs no ornament : in my opinion what she borrows of the pencil

is deformity. JUNIUS.

Then consider of it, take advice, and speak your minds. Judges, xix. SO.

LONDON:

PRINTED FOR

LONGMAN, HURST, BEES, ORME, BROWN, AND GREEN,

PATERNOSTER-ROW.

1824.

LONDON :

Printed by A. & R. Spottiswoode,
New-Street- Square;

PREFACE.

IT is fortunate for a person who publishes a book
wanting in its title-page that passport to public
favor which lies in a name, that his subject requires
no such adventitious aid.

On certain subjects of an elementary and scientific
nature, a writer's name has great weight j but with
a work of this kind, consisting of a mere detail
of facts, and a chain of reasoning, and therefore
resting upon its own intrinsic merits, a name ought
to have no more influence than in a court of justice
is allowed to character against clear and positive
testimony. Facts are substantiated by evidence,
not by opinions ; and reasons are enforced by prin-
ciples and comparison. This work aspires to no

A 2

061

IV PREFACE.

other merit than facts and reasoning possess ; and
as far as the interests of the subject are con-
cerned, it is, perhaps, better that it should have no
weightier or more specious recommendation. A
name may promote circulation, but it should never
command confidence ; nothing should be taken
for granted ; and a habit of admitting the dicta of
others, rather than of judging for ourselves, is and
has been productive of interminable mischief The
student of human nature has a problem to solve
which will furnish him with employment and vex-
ation'all his life, or terminate -in disappointment.
The question in the present case is, are the facts
true of false ? — is the reasoning just or incorrect ?
Of this every one can judge for himself. Let not,
then, the public be cheated of their own judgment
by the naked opinion of any man, however
bright his reputation for literature or science.
With respect to those points which constitute the
leading features of this undertaking, whatever may
be advanced to legalize the fish-locks and stake-
nets, or to prove that salmon peal are not young
salmon, let the public rather judge of these
questions by the evidence of facts, experiments,
and comparative reasoning, than be influenced by
assertions without proof, and opinions without au-

PREFACE. V

thority. The following pages are written by one who
has not only long witnessed the scenes of abuse
which they expose, but who, if he did not first kin-
dle the flame that is now blazing from one end of the
kingdom to the other, has contributed, he believes,
to light it. He has, nevertheless, no other motive in
having so done, and in publishing a true state of the
case, than that some good may arise out of it to the
community. If this cannot be effected to the extent
of procuring a new law, at least it may be partly ob-
tained, by putting the old ones in force, as far as
they are practicable. Still, legislative authority
without executive power, is like a highly finished
lock without a key, for want of which it can nei-
ther be opened or shut, or applied to any practical
advantage. I have said thus much, in order to
prove that as the name of a person who is unknown
would neither further the credit of this work, nor
propagate its circulation ; so it ought not to be less
worthy of consideration from being nameless.

Let me now seriously call the attention of the pub-
lic to the propriety of forming County Associations,
for first ascertaining the meaning and extent of the
present laws, and then for putting them in force.
I do not here descant upon the advantage which

A 3

VI PREFACE.

would arise from such a society, as I have sufficiently,
though briefly, explained myself upon this self-
evident proposition in the body of the work. I
am, however, informed, that there are some
independent and public-spirited men in Exeter,
(and I hope it is true, because they are a rare
commodity in the country,) who are likely to asso-
ciate for such a purpose. Individuals, exclusively
of the odium which attaches to the character of a
public informer, cannot be expected to incur the
trouble and the expence of multifarious prosecutions,
by which they have nothing to gain, and every
thing to lose ; where the difficulties are so great, the
powers so loose, the legal offences so undefined,
and the remedies so unsatisfactory, uncertain, and
indecisive, that no man in his senses will venture
upon the undertaking. To be convinced of this
truth, we have only to recollect the determination
of the last sessions for this county, where the con-
servator, from a sense of public duty, instituted a
prosecution for obstruction of the passage of the
salmon fry. The parties were convicted ; — they
appealed ; — the appeal was dismissed ; but, though
the blunder was committed on the part of the ap-
pellants, the court refused the prosecutor his costs,
and he returned home with victory on his side

PREFACE. Vll

and 40/. less in his pocket. Who will ever attempt
this again ? The power of the magistrate to convict
and enforce the laws is gone for ever ; and the sal-
mon fisheries left to the mercy of any individual
who may think proper to abuse them.

The river Dart, and other rivers in this county,
are to be seen blocked up with fish-locks in the
face of open day ; in defiance of all law, they may be
seen, not merely drawn, but swept, the water being
absolutely strained through a net of a one inch mesh,
when the law requires that such mesh shall be never
less than two inches and a half broad. No other
notice is taken of these outrages, than that persons
look at them, cry " Shame !" and so dismiss the
matter. But if these trespassers were vigorously
resisted by a powerful body united for the pur-
pose, such flagrant abuses would speedily cease.

To shew the perplexity and contrariety of the
present system, it need only be remarked, that by
one act the remedy is by indictment ; by another,
by information at the suit of the King ; under
others, by summoning a jury and qui tarn. All
these difficulties create entanglements, and are
dismaying; no individual will ever embark in

Vlll PREFACE.

such a sea of trouble, experice, and danger. No
position is, indeed, more true than the homely
one, that that which is every one's business, is no
one's. I well know the difficulty of bringing per-
sons forward on public undertakings, where there
is not some strong incentive of private interest —
something which operates more powerfully on the
mind than principle ; but on the present occasion
it may be said, that the city of Exeter is particu-
larly interested in the success of this question ; for
the principal part of the salmon and sea-trout
which are taken in the river Dart, are sent thither
at a very exorbitant price ; when, if these fish were
as plentiful as they would be if the laws were put
in force, the metropolis of Devon, with a very
great and still rapidly increasing population, toge-
ther with the whole county, (and what is said of
the river Dart and the county of Devon applies to
every other river and county in the kingdom,)
from such an example, would have abundance of
this rich fish, at a reasonable and moderate price.
At present, as Mr. Heald lately observed of the
practice of the Court of Chancery, " It is enough
" to make a man's blood curdle in his veins, who has
" a head to think or a heart to fed" to see tlw
•wanton and wicked devastation that is every day

PREFACE. IX

and in every place, committed upon the property
of the community, for want of public energy, and
wise laws for its protection.

wise laws for its protection
August 2. 1824

POSTSCRIPT.

SINCE this pamphlet was written and ready for
the press, I have seen the Report of the Committee
of the House of Commons on the subject, and
have made an abstract of its contents, which I
annex. I have the satisfaction of rinding, that in
all material points it confirms the ideas I have here
submitted, and which were first published in May,
1820.

September 11.

A

VIEW OF THE PRESENT STATE

OF THE

SALMON AND CHANNEL

FISHERIES.

THE NATURAL HISTORY OF THE SALMON.

0

To give a description of a fish so well known as
the salmon would be as absurd as it would be un-
necessary, but in attempting its natural history
I may occasionally touch upon points which may
have a tendency to further the objects of this in-
quiry. In Sturt's Elements of Linnaeus it is said,
that the common salmon, or salmo solar, " grows
very quickly ; it is sometimes six feet long, and
weighs upwards of seventy pounds. It is much
coveted for the table, and forms in many countries
a very considerable article of commerce. Sal-
mon begin to quit the sea and ascend the rivers
in the month of November; the impulse which
urges them to this progress is irresistible ; they
ascend the most rapid rivers for hundreds of miles,
and spring over cataracts several feet in height.
When they have attained a place fit for their pur-

B

NATURAL HISTORY OF THE SALMON.

pose, the male and female join in forming a re-
ceptacle for their spawn in the sand or gravel, about
eighteen inches deep, which they afterwards cover
up ; and having performed this duty, they hasten
back to the sea, being now very poor and lean.
The spawn continues buried till the spring.
About the latter end of March the young are
excluded, and when they are four or five inches
long they are called smelts or smouls. About
the beginning of May they swarm in myriads ;
but the first flood sweeps them down into the
sea, scarcely leaving any behind. About the mid-
dle of June these begin to return to the rivers.
They have now grown to the length of twelve or
sixteen inches, and continue growing till the end
of July or beginning of August, when they get
the name of gilses, and are from six to nine
pounds weight.5'

What is meant by their beginning to quit the
sea, is, that the great body then enter the rivers in
order to go to their breeding haunts. Every one
knows that salmon enter the rivers early in the
year, though but rarely ; they are then called new
fish, having the lerncea salmonea, or sea-louse, at-
tached to them. Their number continues to in-
crease as the summer advances, which is the time
when they ought to be taken, for they are then
rich and good. They so continue until towards
the close of the year, when they assume a cop-
perish colour, and are evidently out of season j
the great bulk being then in a very pregnant

NATURAL HISTORY OF THE SALMON. 3

state, and anxiously seeking a place to deposit
their roe. There is evidently a difference in the
forwardness of their pregnancy, and the kip-
pers, or males, have not that appearance of unsea-
sonableness that the shedders, or females, have ;
yet, for want of this distinction, a great many of
the former have been destroyed. This, if they
pair*, must render the female unproductive, and
the destruction of them is consequently a most
pernicious practice. The fish which the naturalist
speaks of as returning to the rivers twelve or
sixteen inches long, are those which we call sal-
mon peal, that is, as the name itself denotes, a
fish proceeding from the pea of the salmon. As
much difference of opinion has prevailed, and
still exists on this point, viz. whether the salmon
peal be the same or a distinct species from the
common salmon, and as this is a very important
question to be decided as connected with the wel-
fare of the salmon fisheries, I have devoted an
entire chapter to its investigation. It should, if
possible, be set at rest ; and I think I have col-
lected such evidence to prove them to be young
salmon as will, for the future, put the fact beyond
dispute. The naturalist says, that in some coun-
tries the Salmon form a very considerable article
of commerce ; they would do so equally in this if
they were properly attended to ; for there is no
country which abounds with_rivers more favour-

* Whether they do so or not, will be inquired into hereafter.

4f NATURAL HISTORY OF THE SALMON.

able to their increase than ours, and particularly
the county of Devon : but it must never be
forgotten, and cannot, therefore, too often be
repeated, that, as the salmon, from his singular
nature, places himself in the power of man by enter-
ing the rivers, unless man affords him his protection,
he must be exterminated. That the reverse of this
result might be the case, is proved from the im-
mense number of salmon in places little frequented
by the human species.

From hence, and from our own knowledge and
observation, it appears that the habits of the salmon
furnish an exception to the general law of na-
ture. He is unlike any other fish ; being bred in
one element and existing in another. He cannot live
in the sea alone or the fresh water alone, but re-
quires to live alternately in each : the salt water
and the river are alike absolutely necessary to his
existence and procreation. What he feeds on in
the sea no man knows ; for he was there never
known to take a bait, nor was any food ever found
in his stomach. Yet, that in the rivers they may
be taken with bait is certain, for I have myself
caught one with a rod and line, and hooked many.
The salmon is one of the most valuable fish we
have ; yet the law, as we have seen, is lamentably
defective for its preservation ; and, wonderful to
say, mankind seem more bent on destroying the
whole race of them than that of any other animal,
even those which are most obnoxious. Of this
there cannot be a stronger and more conclusive

NATURAL HISTORY OF THE SALMON. 5

proof than their present scarcity, contrasted with
their former abundance. Unless the salmon is pro-
tected bylaw, he must fall under the destroying arm
of man, for he is as much in the power of man as
sheep or oxen. It is not so with the sea-fish, they
have a range more unrestrained. Man may, by
improper and injudicious conduct, diminish the
number of these, but he cannot exterminate the
species.*

The history of many places, particularly that of
Chester, informs us, that salmon were once so plen-
tiful, that masters were restrained by their inden-
tures from compelling their apprentices to eat this
fish more than twice a week ; and there is now
nothing wanting but an efficient law to render
them as abundant as they were then. No natural
cause exists to produce the present scarcity. As
to the time when salmon are in season, either in
the same or in different rivers, and as to the time
when the rivers ought to be put in defence, they
are circumstances of so much consequence that
we shall give an entire chapter to their consider-
ation.

Whatever may be thought of the old acts, and the
advantages which may be derived from them by

* Salmon are called fish of prey — a turkey may as well be
called a bird of prey, because he eats insects. Fish of almost
every kind, as well as birds, are animals of prey. But surely we
cannot rank the salmon with the rapacious shark and porpoise,
any more than we do the turkey with the carnivorous eagle;
and falcon tribe.

B3

O NATURAL HISTORY OF THE SALMON.

constructive interpretations, every one must admit
that there is a difficulty, trouble, delay, and ex-
pence in putting them into execution, which may
be removed by a new act ; and since new me-
thods have been devised for evading the old laws,
new remedies must be suggested to meet such new
inventions. The two great deficiencies which mark
the whole of them, are, the want of a decided and
express power to keep the rivers open during a
certain part of the year, and to remove the fish
locks by express and not by implied terms. It does
not seem that the spear was known in ancient
times, as it is not mentioned in any act but the
local act of the 43d of the late king. All the
acts, too, are silent upon the power and duties of the
conservators, which may be explained and defined
by a new one. And whilst impervious and unlaw-
ful weirs, — avowed public nuisances, — are fixed
across rivers, as if on purpose to destroy the whole
species ; whilst gangs of idle, disorderly fellows
are employed by night and day in destroying the
fish by the spear when in the very act of shed-
ding its roe ; and whilst locks, traps, and hutches,
and all sorts of cunning devices are erected to
catch unseasonable fish in going up the rivers, and
to prevent the old back or spent fish from return,
ing to the sea, without allowing a chance or possi-
bility of escape by an aperture (called in Ireland,
the king's passage), it is no wonder that salmon
are so scarce and dear. Nothing, then, is wanting
to restore this excellent fish to its former abund-

NATURAL HISTORY OF THE SALMON. y

ance, but such plain measures as common sense
and common reason dictate ; nothing, in fact, but
giving the fishjfazr play, where at present he meets
with only foul play and unmerciful treatment. It
is only requisite that the transaction be honestly
and openly conducted ; there must be no par-
tiality,— no sneaking after fish-locks, — no mono-
poly ; every thing must be fair and open. —
Individual interests must give way to the general
good, and nothing need then be apprehended for
the result.

Various are the opinions of naturalists with
regard to the mode of propagation, the increase,
the growth, habits, and size of the salmon ; some
affirming that they continue to grow as long as
they live, and others thinking differently. Upon
many of these points, in all probability, we shall
never be wiser than we are. Goldsmith says, that
fishermen assure us that sea-fish must be six years
old before they are fit for the table. According to
Mr. Pennant, salmon have been taken weighing
seventy-four pounds. Whether such rare produc-
tions of nature were the formation of a single
year, or the accumulated growth of many years,
it is not only not easy, but perhaps impossible to
ascertain, as well as many other particulars re-
lating to ichthyology, to salmon in particular, or
fish in general.

The mode of impregnation is very singular; it
has been so often seen that no doubt can be enter-
tained of the fact. Yet Goldsmith says, that the

B4

8 NATURAL HISTORY OF THE SALMON.

manner in which the eggs of fish are impregnated
is wholly unknown. There is no great use in en-
tering into a further detail on this head, yet we
shall say a little more about it hereafter. Though
the grand distinction of fish is between those which
are cetaceous and those which are cartilaginous,
yet there is no reasoning by analogy, or drawing
conclusions from one animal to another, or even
forming an opinion on probability, as to their in-
crease. The fecundity of the salmon is very great,
the roe of a single one amounting, as I have been
informed by a person who counted it, to about
600,000. This experiment was made in the usual
way, namely, by first weighing and then counting
a certain portion, and afterwards weighing the
whole mass. Yet this increase bears no sort of
proportion to the number of pea in many other
fish. The sturgeon produces the greatest number
that I ever read of, being no less, according to
Leuwenhoek, than 150,000 millions, — an amount
equal to that of all the inhabitants of the earth ;
the female cod-fish gives 9,340,000 ; and the com-
mon crab 4,334,000. The porpoise produces only
one, and yet porpoises are more plentiful than stur-
geons. There seems to be no positive general rule
in Nature upon this subject : such is the extent
and the variety of exceptions, that we are forced
to the necessity of considering every animal dis-
tinctly and individually. What analogy proves to
us that if the claw of a crab be torn off another
will supply its place; that the polypus may be cut

NATURAL HISTORY OF THE SALMON. 9

in pieces, and yet the separated part shall produce
a perfect animal ; that superfcetation shall exist
in some animals and not in others ; and that a cer-
tain insect of the gnat genus shall repeatedly
produce without any connection with the male \
and a thousand other instances of exception ope-
rating against the general law of Nature ? All
prove to us, that we are to look for certainty
to each animal individually, and that we shall
seek in vain to elicit it from the similitude that
one animal may bear to another. Nature seems
upon all occasions as though she disdained shac-
kles of rule, preferring to exhibit, in whatever
view we contemplate her works, the unlimited
and uncontrollable power of the Creator.

As to the growth of salmon, my opinion is that
they would grow much larger than they are ever
seen in Devonshire, if the spent fish could return
to the sea ; but from such information as I can
gather upon this head, all the spent fish are either
killed in mill-traps, or pine to death from ina-
bility to regain it. I have, in fact, the concurrent
opinions of others who have paid much attention
to this particular part of the subject, that almost
all, if not all, the salmon taken are the first
year's fish, being from twelve to eighteen months
old, varying a little in size from eight to ten and
twelve pounds ; whereas formerly, when there
was a free passage over Totness weir up and down,
with an escape in the centre, very large fish were
constantly met with. The largest I ever saw was

NATURAL HISTORY OF THE SALMON.

forty-seven pounds, but nothing of that kind is
now seen ; a fish seldom exceeds twelve pounds,
and very few weigh so much. From hence, I
think, it is a rational conclusion, that they seldom
spawn more than once. Supposing that Nature
is alike every where, I draw my inferences
from the river Dart. Shaw says, that salmon,
like swallows, visit the selfsame spot every
season, as has been ascertained by the experi-
ment of fastening a small ring to the tails of some
individuals, and thus setting them at liberty, when
they have made their appearance at the same
spot three successive seasons. From other facts,
which will be mentioned hereafter, I believe
there is no doubt but that they return to the river
in which they were bred.

There are some of the habits of this fish with
which we are well acquainted, and which do not
rest upon opinion, but are notorious facts.
Though we do not know to a certainty whether
a salmon attains his full age in one, in seven, or in
fifty years, and in all probability we never shall
know it, yet we do know that salmon come from
the sea, and will, if they can, go up the rivers
500 miles to deposit their roe ; and the fish into
which such roe becomes animated, will, if they
can, in the proper season, betake themselves to
the sea, and after a time return again to the
rivers. These habits are notorious, and they fur-
nish a manifest conclusion, establishing another
fact equally obvious, that if the old fish cannot go

NATURAL HISTORY OF THE SALMON, 11

up the rivers to breed, no young fry can come
down the rivers to enter the sea, and there to grow
into adults; consequently, there can be no in-
crease, and if no increase, there must speedily
be extermination.

There is, however, one of the habits of the sal-
mon on which it is necessary to say a few words,
as bearing upon the present subject, in order to
show and to establish the detrimental effect of
impenetrable barriers across rivers, either by weirs
or otherwise. Dr. Turner says, " when it so hap-
pens that their passage is effectually obstructed^ they
soon grow lean and sickly, and in a year or two
pine away and die." This can be but an opinion,
though, perhaps, founded upon good grounds ; but
it is an opinion so reasonable and so conformable
to the nature of the fish, and, by analogy, to the
nature of all other animals, that it contains, if not
positive, at least presumptive evidence of its ac-
curacy. We all know the irresistible instinctive
purposes of this fish to get up into the rivers ;
their wonderful efforts show it. We all know that
it is only in the sand-beds of rivers that the fish
can spawn, and they know it at the least, as well
as we do. If, therefore, they are thus thwarted in
complying with the dictates of instinct, which never
misleads or deceives, it is most reasonable, if not
conclusive, to infer, that they do, as Dr. T. says,
" pine away and die ;" for a salmon, as is observed
before, being both a salt and a fresh water fish, can-
not live without having access to both : if he is de-

12 NATURAL HISTORY OF THE SALMON.

nied either, it is alike death to him. It is also
known, that roe, if shed in unpropitious situations,
to which the fish is compelled by necessity when
withheld from those to which nature directs him,
becomes abortive. Why this should be the case,
why the egg cannot be hatched in the sea, or in
the tide- way in rivers, like the eggs of other fish,
is a mystery, like many other mysteries, which will
ever remain undiscovered ; nor should we be the
wiser or the better if we could develope them.
The undoubted fact, however, is, that unless the
fish can attain the necessary sand-beds high up
the rivers, the pea come to nothing. Hence fol-
low the pernicious effects of these obstructions,
which, preventing the new fish from going up the
rivers to spawn, drive them into traps, where they
are caught and killed. They are obeying a resist-
less necessity in hunting for an aperture to get up
the streams, and are thus forced into the fish-
locks. The situation of the spent fish above the
weirs is just as bad ; they are hemmed in, and
prevented from retiring to the sea to recruit their
strength and invigorate their system, until they
lose almost the appearance of their species, and
finally perish. In this state they are quite uneata-
ble and unwholesome, and I have no doubt would
poison any one obliged to taste them. These
back fish are not those which the spearers destroy ;
they kill the fish as they come from the sea to
breed, not those which are returning to the sea
after breeding. It must, therefore, appear evident

NATURAL HISTORY OF THE SALMON. 13

to every disinterested and candid mind, that the
salmon fisheries can never prosper whilst these
obstacles, interfering so much with the instinctive
habits of the fish, are allowed to exist. I do not
mean to say that all weirs should, even if they
could, be swept away entirely, because they may
be nationally advantageous in a commercial
point of view, both for the miller and the manu-
facturer ; but I do mean to say, that all weirs
should be so constructed, and nothing is easier,
that the fish in times of flood may easily go up tc*
breed ; and that, after they have bred, they may
be able again to return to the sea.

I well remember seeing some years ago on the
river Teign, a weir which had elevated stakes at
the foot, over or through which it was impossible
for a fish to pass : the stakes were placed there to
force them into a lock or trap by the side, which
easily admitted them, but from which they could
not escape ; and, consequently, the occupier of this
device had the power of taking every fish upon
this fine river, sizeable and unsizeable, seasonable
and unseasonable, the public thus lying at the
mercy of an interested individual.

On the Avon was a device something like the
former. I went on purpose to see it, and I have
been informed that there are several on the river
operating pretty nearly in the same way. The
one I saw was contrived thus : — The mill-leat oc-
cupied nearly the whole stream ; of course all the
returning or old fish entered into this leat ; they

14

NATURAL HISTORY OF THE SALMON.

could pass no further than the mill ; about ten or
twelve feet above the mill was a waste fender, and
below this fender, or between it and the natural
stream, on a sharp descent, was a kind of wicker
or basket work. The miller had only to draw his
waste fender, and every fish following the stream
must pass into this trap. He then stops the water
by letting down the fender, and every fish is upon
dry land in two minutes.

It was painful to see the millions of salmon-roe
which strewed the sand-banks of the Dart in the
tideway below Totness weir about three years ago :
the old fish could not pass the weir, and when the
natural season arrived they were compelled to
shed their spawn where they could. The whole
proved abortive ; for, as those sand-beds were dry
at low water, and the sand shifted with the tides and
the floods, the pea were uncovered and lay so
thick upon the surface, that a man could not put
his foot on the sand without crushing a hundred
to pieces at a time.

At the period I allude to it was quite lament-
able to see the unavailing efforts of the salmon to
get over Totness weir. I was an eye-witness to it ;
repeatedly beaten back, they tried again and
again, until they were quite exhausted, and had
scarcely strength enough to push their noses
above the surface of the water. What loss this
obstruction must produce to the public it is be-
yond any known means of calculation to estimate.
But from the number of old breeding fish that

14

NATURAL HISTORY OF THE SALMON. 15

were destroyed at the same time by the spear alone
on the rivers Avon and Harbourne (the latter only
a branch of the Dart) it has been calculated that
200 million salmon spawn were prevented from
coming to life. How many were lost to the public
by the premature death of those breeding fish of
which no account could be procured, it is impos-
sible to say : a few years since sixty old fish were
killed by one family, and perhaps carried into one
farm-house. This murderous operation is always
carried on in the fence days, when the fish are
unseasonable, and when the destruction of one
is the destruction of a great many thousand, even
allowing for all accidents, and for the loss of
those destroyed by other enemies.

I suggest, then, that there should be a grat-
ing affixed at the entrance of every mill-leat to
keep the fish, both old and young, in the na-
tural stream ; and where weirs are erected in order
to conduct the water into artificial cuts, there
ought to be an escape of sufficient dimensions for
the fish to get away and keep in the natural
stream also.

There ought likewise to be gratings placed before
every mill-wheel, which is in general not above
a quarter of an inch from the bottom-floor ; for the
fish seeking and trying for a place to get out of
the mill-leat are very apt to get entangled with
the wheel, and they are then crushed to death.
I have been informed that seven old returning
fish were destroyed thus in one night at one place,

16 NATURAL HISTORY OF THE SALMON.

and that a place where such an occurrence would
be least expected ; how many, then, must be killed
in this way of which we never hear !

The use of that dreadful instrument the spear
should also be abolished by every possible means,
and even by measures of extreme severity, par-
ticularly in the river Dart, where it is principally
employed. Like a deadly pestilence it destroys
both bad and good ; every thing dies before it ;
whatever the spear touches it kills, if it does not
catch. Besides, it is never used by those who have
a right to fish, but only by poachers, who would
be so much better employed in a lawful and honest
calling. This practice is one of the greatest en-
couragements to idleness, and all those bad habits
which idleness and nocturnal employments create.
When men are thus engaged all night, they can-
not be very fit for labour by day. Nor is this all, for
various other things are found to disappear besides
salmon, when these gentlemen are at work. A great
injury is also done to young timber; to avoid sus-
picion the spear-head is carried in the pocket, and
for the shaft a young tree is cut down as soon as
the game is seen ; for carrying a spear-pole in the
hand might excite observation. Four years ago,
a very large spear was in use, but they now use a
well tempered small spear, which is found to answer
the purpose equally well, and can be better con-
cealed. I was once an accidental witness to the
fact of a large salmon being struck with a spear
in the very act of spawning. It was an appalling

NATURAL HISTORY OF THE SALMON. 17

sight to see the poor creature writhing in its ago-
nies. I turned from it with disgust, deploring
that such a barbarous practice should continue,
which, for one unwholesome fish, was the means of
destroying so many thousands, that taken in their
proper season, would be food to the poor, and a de-
licacy to the opulent.

The river Tweed, where is said to be the largest
fishery in the kingdom, is supposed to yield 300,000
salmon annually, that is, communibus annis. This
number is about one half the produce of one sal-
mon, and the thirtieth part of that of a single cod-
fish. Hence, it is highly probable, that the same
kind of work is carried on in this river, as is practised
in the rivers in Devonshire. There is a note in
" Daniel's Rural Sports/' under the title Salmon,
which says, that there is a river in Kamtschatka,
where salmon are in such abundance in the sea-
son when they return from the sea to the rivers,
as absolutely to choak the river, and cause the
water to overflow its banks. And there is no
doubt, but that they would be plentiful enough
here, if the obstacles already enumerated were re-
moved. However, considering all the circum-
stances, the circumventions and contrivances that
are adopted to annihilate the species, it is really
surprising, that there should be a single one in ex-
istence.

Most animals, whether for the profit, or the
pastime of mankind, are allowed some sea-
sonable resting time for increase; but the sal-

c

18 NATURAL HISTORY OF THE SALMON.

mon, much more valuable than hares, pheasants,
or partridges, is not allowed one moment's rest,
not even for procreation. The cruelty of such
conduct is only equalled by its impolicy.

It is thus that the salmon fisheries, as far as they
concern the public, are completely useless — so
much so, that there is one universal outcry against
the owners of fisheries throughout the country. It
is, indeed, to them and to the poachers, that the pre-
sent scarcity of salmon is to be attributed. Every
other animal in the known world, requires, and ob-
tains, rest and retirement during gestation, and at
the time of bringing forth, and is allowed opportu-
nity for the escape and growth of its young ; but
this harmless and invaluable creature, though warned
by unerring instinct where to go, is first obstructed
when its body from a state of pregnancy is ill able to
combat obstruction, and delayed when delay is but
another word for death ; then hunted down like a
wild beast, worried from place to place, unceasingly
persecuted, and ultimately impaled alive on an iron
spear, generally in the very act of spawning. Not
even the shades of night, when most other animals
seek and find respite from their persecutors, are to
him any protection ; watched and traced to his
haunts by day, allured to certain places at night by
means of fires, he falls an easy victim to his more
cunning and unfeeling destroyer, at a moment when
he expects no mischief, and when he should meet
with no molestation. Should he miraculously save
himself from such impalement, what then awaits

NATURAL HISTORY OF THE SALMON. 19

him ? he is taken in a trap river, returning to the
sea ; starved by being imprisoned in a mill-stream ;
or pines to death for want of that element which
Providence has made necessary to his prosperity,
his increase, and his existence.

Such is the true state of the salmon fisheries.
Will any reasonable man deny that a new law is
imperatively necessary to prevent the abuses which
have brought them to such a condition ?

Little ingenuity is required ; common honesty
and common sense are capable of suggesting the
principal things which are ^necessary to be done.
Remove the obstructions and the fish-locks ; keep
the fish to the natural stream ; prevent all unsize-
able and unseasonable fish from being taken ;
protect them during the fence days, and let no
fish be taken but by the fair and legal nets, with
an attention to the minor points before adverted to,
and hereafter more particularly set forth, and we
soon shall have no reason to complain of the scarcity
of salmon, or fish of the salmon kind. I am tho-
roughly persuaded, as I shall hereafter endeavour
to demonstrate, that the scarcity of this fish does
not proceed from any natural cause whatever, but
entirely from one which may be easily and effec-
tually remedied.

Note. — About seventy or eighty years ago,
Sir Edward Seymour erected a hutch on a narrow
part of the Dart, about midway between Totness
bridge and the weir, for the purpose of taking all
the salmon in the river ; as none, or very few could

c 2

0 NATURAL HISTORY OF THE SALMON.

go up the river without either being taken, or stopt.
The consequence of this was, that all the fisheries
in the river were ruined, and his own among the
number. This hutch being placed in the full stream,
impeded the course of the water so much, that it
broke out a new channel by the side. Thus the
object of the hutch was defeated ; and falling into
decay, it was never after repaired, but in process of
time, went entirely to pieces. The foundation of
it was visible a few years since. In the course of
two or three years after, the river had found a new
channel, and this hutch, which has ever since, and
to the present day, gone by the name of Seymour's
Hutch, was destroyed, and salmon became as
plentiful as ever, resuming its ordinary price of
two-pence and three-halfpence per pound. During
the existence of Seymour's Hutch, such was the
scarcity of salmon, that it sold for two shillings and
sixpence per pound ; and I have heard an old man,
who lately died at the age of ninety, positively de-
clare, that he himself sold a salmon for as much
money as enabled him to purchase, and that he ac-
tually did with the money buy, a cow and calf. I
have no reason to doubt the truth of it; nor is it at
all improbable. The old man used to mention the cir-
cumstance as a sort of wonder, that he should have
bought a cow and calf with a salmon ; and he
would then explain the fact, thus : Suppose the fish
to be only thirty pounds, (but it might be forty or
fifty,) at two shillings and sixpence, its value would
be three pounds fifteen shillings. This sum would,

NATURAL HISTORY OF THE SALMON. 21

I should think, seventy years ago, have purchased
a small cow and calf. I cannot, of course, vouch
for the truth of his assertion, but the man declared
it when at a very great age, and when he could have
no motive or interest in telling me a falsehood. This
is an additional proof, if any were required, that
the grand obstacle to the increase of the salmon
fisheries, is, the impediment which the fish every
where meet with in ascending and descending the
rivers; the two grand evils are, the obstructions
by fish-locks and the spearing. But it is cu-
rious to see how interest sports with principle.
The spearers cry out against the weirs and ol>
structions, because such weirs and obstructions
spoil their sport and diminish the product of
their harvest; and the owners of weirs are for
punishing the spearers with the utmost severity of
the law. Thus the one is for plucking out the mote
that is in his brother's eye, without perceiving the
beam that is in his own. Every one has a right to
make the most of his property ; but that right
should be exercised fairly. The right of taking
fish is a kind of common right ; one man takes
them at one place, and another man at another
place ; and so on to a third and a twentieth ; but
if the first man can erect an impervious weir, to
bring up all the fish at one particular place where
he may have the whole at once, how are the
others to have their rights ? If a man has a right
to stock a common with fifty sheep, and were to
turn in five hundred, the utmost number it could

c 3

82 NATURAL HISTORY OF THE SALMON.

feed, where would be the use of the pasturage to
the other commoners ? In this conflict of private
views, the public is neglected and forgotten j but the
public have nevertheless an interest and a right ;
and that interest and right ought to be asserted and
established.

I have mentioned the circumstance of the de-
struction of salmon by Seymour's Hutch, as the ob-
vious effect of an equally obvious cause, not only
to corroborate the preceding remarks, but to refute
an opinion which has lately gone abroad, rather
specious at first view, but on close investigation
obviously groundless and untenable ; and to draw
a comparison between the probable correctness of
this new opinion on the diminished quantity of sal-
mon, and the cause of that scarceness, as pre-
viously stated. The new opinion is, that it is
owing to the great use of lime in agriculture, in
the western counties, that salmon are so scarce.
Now let us enquire into the reasonableness and
consistency of this opinion. Lime destroys all other
fresh-water fish, as well as salmon. That the eel
and the trout almost instantaneously die before it,
is notorious and indisputable ; but eel and trout are
as plentiful as ever. If the use of lime in agricul-
ture destroyed the salmon, it would destroy the
other fish — it does not destroy the other fish j
therefore, it destroys not the salmon. If the lime
used for manure on certain grounds, though they
have so little communication with rivers, as
to render it very improbable that its baneful

NATURAL HISTORY OF THE SALMON. 23

effects should ever reach them, destroyed any sal-
mon, it would destroy all. If it destroyed the
salmon generally, why did it not destroy those
hundreds of poor pregnant and emaciated fish,
which have been lying at the pool of Totness weir
throughout the winter, waiting for an opportunity,
and almost beating themselves to pieces, in the in-
effectual attempt, to surmount that destructive nui-
sance ? — These fish were not destroyed by lime
used in agriculture ; they were not destroyed at all,
until they were taken in nets, after the defence of
the river expired. Some of these fish, the females,
which were in such a state that they could not be
made use of, were put above the weir ; the others,
all unseasonable, were clandestinely sold about the
town, at a low price. The poor forlorn females
were sent up the rivers to breed, without their kip-
pers ; so there must have been a rare increase.

c 4

ON THE CLOSE SEASON, OR THE TIMES NECESSARY
TO PUT THE RIVERS IN DEFENCE.

I HAVE already briefly observed, that the season
for taking salmon ought to be the six summer
months, commencing with April and ending with
September; that they do not make a very fre-
quent appearance in our rivers early in the year,
and that therefore new fish are then always scarce
and dear. The reason is ^evident : — the old fish
are either at that time destroyed in the mill-leats;
shut up in the rivers unfit to be taken and not
eatable ; or they are in the sea, or on the coasts,
and have not returned to the rivers in a purified
and wholesome condition. In April, after having
had the advantage of feeding in the sea, they be-
gin to be rich and fat, and return to the rivers.
They so continue the whole summer, increasing
as it advances, rising with the flow of the tide, and
particularly attracted with the freshets after heavy
rains. This is the time, namely the six summer
months, and the only time that they should be
caught, and then only with the legal net. If pro-
perly protected in the other six months, they
would then be so abundant as to be sufficient for
every one, for every place, and for every purpose ;
the superfluity of the summer would furnish, in a

ON THE CLOSE SEASON. 25

salted state, an ample supply for the scarcity of
the winter. Deprived of the rich and luxuriant
food of the ocean, and depending entirely on the
meagre productions of the fresh water, the rich-
ness of the salmon soon begins to diminish ; the
flesh then changes from a rich crimson to a pale
yellow ; and hence arises the notion of a salmon
being in season in different rivers at different times
of the year : while the fact is, that they are only in
season when they first come from the sea. After
the roe is formed, though the fish may be eatable
and tolerably good, yet from that period the flesh
gets worse and worse, until it becomes absolutely
disgusting to the sight and nauseous to the taste ;
consequently they are in season in all rivers at the
same time of the year, though individual fish may
be in season in the same or different rivers at dif-
ferent periods. — It may happen that a fish taken
in the Exe shall be good, when one taken in the
Dart shall not be so, and vice Versa ; but a general
conclusion from a circumstance of this sort should
not be drawn when the goodness or badness of the
fish entirely depends on the time he has been ab-
sent from the sea, and returned to the rivers. A
bad and a good fish may be taken on the same day
in the same river.

It is likely that salmon shed their ova at differ-
ent times : one author now before me says, so
early as August ; I have no doubt but some may,
but the great bulk certainly do not until later in
the year ; it is this difference in the time of spawn-

20 ON THE CLOSE SEASON.

ing, which may account for the different times
when particular fish are in season. The breeding
season of all animals is not uniform : — for in-
stance, the bitch breeds in spring and fall ; the
mare always in the spring; but the cow at all
seasons. With regard to salmon, there may be ex-
ceptions to the general rule ; they certainly do
endeavour to beat up the rivers at all times of the
year, and this must be for some natural purpose,
and none more likely than that certain ones may
then want to rid themselves of their burthens. It
is said, also, that one of their motives for entering
the fresh water, is to rid themselves of that trou-
blesome insect the lerncea salmonea, which ad-
heres to their skin when they first come out of the
salt water (see note to the Abstract) ; but their
natural and greatest enemy, except man, is the
porpoise, by whom they are so far intimidated as
not to go far to sea, but rather to keep on the coast,
among the rocks, where they find abundance of
food, near the entrance of rivers ; and though no
food is found in them, yet it is not likely they
would fatten without it. These ravenous animals
may also drive them into the rivers, for upon
many occasions they have been known to pursue
them thither to a considerable height ; a large fish
of this genus was some time since taken in the
Dart, with several salmon in his stomach. The
otter is also a very great enemy to the salmon ;
and a price should therefore be set on the head of
that animal.

ON THE CLOSE SEASON. Tj

If cock partridges were to be shot in the season
of love, and the hens were to be killed when in
the act of incubation, these animals would soon
be as scarce as salmon ; if we wish to increase the
breed, the same policy should be observed with re-
gard to both. — At these times, then, the fish should
be neither obstructed nor taken.

Now the great influx of the salmon into the
rivers, being in the fall of the year, and their ob-
ject being to find proper places to deposit their
ova, this is the time when fishermen, tempted by
the number of the fish, and losing sight of the
ultimate consequences, are so anxious to catch
them \ — their golden dreams of avarice getting
the better of their judgments. But this is the
very time that not a single fish should be de-
stroyed, taken, obstructed, or even disturbed ; and
the result of such a number of breeding fish as-
cending to their natural destinations, and being
protected at those places from the spearers and the
fish-locks, would be so vast an increase as would
gratify the most sanguine expectations of gain, the
most delicate taste, and the most craving appetite.
But if the representations of individuals, who are
blinded by an apparent interest, even though they
may be sincere and actually believe what they
wish, should be allowed to counteract all those
obvious dictates of nature, which regulate the mo-
tions of the fish ; in vain shall we look for the
improvement of that which is now the subject of
much complaint from one end of the kingdom to

28 ON THE CLOSE SEASON.

the other. A worse system than the present can-
not be : no one then can object to a change which
may multiply, but cannot diminish — which may
improve, but cannot deteriorate — that which is
indeed already at its worst. I will here mention
another fact, which I believe no man will deny,
and the reasoning which follows from it is of such
a nature as to be absolutely in my mind unanswer-
able.— It is two-fold: First, the great body of
the fish are attracted to the rivers by freshets or
floods, for the purposes before stated, after heavy
rain. Second, it is notoriously true that no fish can
get up the rivers and surmount the barriers placed
in their way, by weirs and other obstacles, unless
the rivers are swollen by floods. Suppose then the
close time should commence on the 1st of Novem-
ber (and by that horrible and murderous act, the
43 Geo. 3., it is the 15th of November), the fish
are ready and waiting to go up the rivers as soon
as the grating, and other impediments, are re-
moved, but cannot, for want of a flood. Now who
shall say that there will be a flood at that critical
juncture ; it may not arrive for a month or months
after the fish have been, through all the month of
October, perishing for want of a means to comply
with the laws of Nature, — If a flood draws them
into a river in October, and they cannot pass the
barriers, they are all liable to be caught, though it
is the very time when they should be spared.
This is not an impossible, a preposterous, or an
hypothetical case : it is perfectly likely to happen-,

ON THE CLOSE SEASON. 29

and then there is an end of the whole brood for
that year. But on the contrary, if the close time
commenced on the 1st of October, and all artifi-
cial obstructions were removed, the fish being
drawn into the rivers by the equinoctial rains,
would immediately avail themselves of the oppor-
tunity, and go to the places of which they are in
search. Surely this is a case in which the laws of
Nature should not be defeated by institutions
grounded upon false reasoning and interested
views.

The great object is, the first flood after Michael-
mas, the rivers being then swollen by the equinoc-
tial storms. It is then that the salmon should be
protected, and the rivers thrown open to them.
Another strong reason why the close time should
commence on the 1st of October, and all obstruc-
tions be removed to afford the fish every facility to
go up the rivers, is, that these floods last but a very
short time : the waters once abated, the opportu-
nity is lost, and the fish are again exposed to all
the injuries which have been enumerated.

I therefore repeat, that the close time should
commence on the 1st of October, that the fish
may avail themselves of the first flood after Mi-
chaelmas ; and I believe there is no foundation
whatever, either in reason or fact, for supposing
that salmon are in season in different rivers at dif-
ferent times. They are seasonable or unseasonable
during the summer months, as they come from
the sea, with the tokens upon them. Place two

30

ON THE CLOSE SEASON.

fish side by side, taken in the same river, at the
same time, the one going to the sea, and the other
coming from it, and the truth of this observation
will be manifest ; the two fish will hardly look like
the same species. The same may happen in two
different rivers, and it is therefore not fair to con-
clude, as a general rule, that all fish are in season
at different times in different rivers ; they all come
from the sea, and it is that alone which makes them
seasonable.

The law of Nature must be the same at all
places, and has the best claim to be adopted as
our guide. Can we suppose that sea fish are in
season at Southampton at one part of the year and
at Torbay at another ? Whatever may be the opin-
ion of others, such a supposition appears to me
irreconcileable with nature, with reason, or with
common sense.

31

ON THE SPECIES OF THE COMMON SALMON, THE
SEA-TROUT, AND THE SALMON-PEAL ; AN ENQUIRY
WHETHER THEY ARE ONE, OR THREE DISTINCT
SPECIES.

THIS is a most important and vital branch of the
general subject, and the question should be put at
rest, because if the sea-trout and the salmon-peal
are allowed by the legislature to be taken, under
an idea that they constitute a distinct species,
while they are in fact the same species, then an
immensity of mischief is committed ; but if the
three form but one species, then the two latter
are unsizeable fish, and are prohibited by law, un-
less by the local act before-mentioned, from being
taken. There is also a great diversity of opinion
among mankind, some strenuously contending
that they are three, and others as stoutly main-
taining that they are but one species. I confess
myself to be of the latter opinion, but I will en-
deavour to investigate the question dispassionately,
and without prejudice. When the evidence of
facts circumstantial and positive shall be placed be-
fore the public, they will judge and determine whe-
ther these fish are of the same or different species.
I will first state the affirmative evidence, that
they are the same fish j and then produce what is

3% SPECIES OF THE SALMON.

said, as far as I can collect, of a negative tenden-
cy, to show that they are not. I have not the least
interest either one way or the other, but as a pri-
vate member of the community ; my object is solely
to find out the truth, if I can, that justice may be
done to this subject.

But before this enquiry is entered upon, it will
be necessary to make a very few prefatory gene-
ral observations on the species of animals. The
only difference of animals in nature is species : by
this word I mean, without giving a specific defini-
tion, animals of a particular kind that congregate
and breed together ; and in a state of nature, free
from constraint, never amicably intermix with ani-
mals -of a different kind; but under that con-
straint, if they do mix and produce with other
animals of a very similar conformation, that such
produce being male, are sterile and never repro-
duce. Without this law there would be universal
confusion. Naturalists, according to their differ-
ent ideas, and for the conveniency of study, have
classed certain animals which have certain general
characters in common into genera ; but in certain
other animals of the same species there are va-
rieties, such as the dog and the pigeon, and this oc-
curs even in the vegetable world. Whether these va-
rieties are natural and original, or whether they are
the effect of accident or other causes, has nothing
to do with the present question. Thus then, when
authors speak of, I think, twenty-nine species of sal-

— Ct^L^

SPECIES OF THE SALMON, 33

mon, they must mean fish of the salmo genus ;
such as a great variety of fish which have some
characteristics in common with the salmon, but
are no more salmon, or any thing like it, than a pig
is like a horse, further than that each has four legs.
This then is only opinion, but that species is a na-
tural distinction is a decided fact. They call a lit-
tle grayling, which never exceeds seven or eight
inches in length, a salmon, salmo salmoletus ; a
common trout, salmo fario ; and the different sorts
of chars are all ranked with the salmo, though
they are entirely fresh-water fish, and never go
into the sea. Authors may class 29,000 such fish
among the salmo species, if they will, but that will
scarcely make them salmon ; they are all a distinct
sort, having nothing to do with the salmo salar, or
common salmon, which I believe is the sole ob-
ject of the laws we have been just considering. I
also believe that "fish of the salmon kind" means
the peal and the sea-trout, which are now con-
tended to be young salmon ; and I do not think that
of this fish there is more than one species, but rather
that it is the same in England, Ireland, Scotland,
and the north of Europe. What the American
salmon may be, I know not, but I have been told
they are not different from our own. Some con-
tend for varieties of species, because the salmon
in some rivers differ a little in figure, colour,
and flavour from those in others : there is fifty
times greater apparent dissimilarity among the
oxen and the sheep of different parts of the king-

D

34 SPECIES OF THE SALMON.

dom, nay, even of the same county, yet no one
ever thought of pronouncing them to be of dif-
ferent species — they do not even form different
varieties ; they are one and the same animal, al-
tered in appearance only and natural size by the
effect of food and climate, their produce not only
reproducing, but absolutely improving by the mix-
ture. There must then be a much better reason
adduced to prove a difference of species in salmon
than merely that of a trivial difference in colour
and shape. Since therefore the salmon, the salmo
trutta or sea- trout, so called, the salmon -peal
and the smelt, spawn or fry, associate together,
and breed together, are in every respect per-
fectly alike, and never intermix with other fish of
a different species, I contend that there is the
strongest reason, exclusive of the other circum-
stances which will be mentioned in the progress of
this enquiry, to believe that they come within the
meaning before stated of the word species, and are
one and the same kind of fish. I will now pro-
ceed to state such facts as appear to me to prove
that the peal and salmo trutta are young salmon ;
I repeat, they are facts and not opinions ; and I
am content to abide by the conclusions to which
they naturally lead.

1 . Commencing with the salmon smelt. This
with the salmon-peal, the salmo trutta, and the
salmon, are alike in every respect internally and
externally, only varying in size, and except that
the back of the smelt is always white before it

SPECIES OF THE SALMON. 35

goes to the sea. The smelt in May is from four
to five and six inches long; it goes to the salt
water as soon as it is able. In July and Au-
gust a fish exactly resembling it, and called in
Devonshire a salmon-peal, comes into the fresh-
water rivers ; it is supposed by some to pro-
ceed from the pea of the salmon, called in the
north whitings, and by different names at dif-
ferent places. There is not, except in size, the
slightest distinction in shape, fin, branchia, rays, or
colour between this and the smelt. These fish re-
main with us about two months or six weeks, and
when the rivers in the month of May swarmed
with smelts they were very numerous ; but until
the present year they have been in the Dart ex-
tremely scarce, diminishing as the salmon dimin-
ished; they weigh on the average about half
a pound, some less and others more. They dis-
appear from the rivers about the latter end of
August and beginning of September. There is a
very great difference in their colour, which is the
criterion of their goodness ; some are very red,
others pale ; the red are considered as the best for
the table, and the more they incline to a pale colour
the worse they are, becoming at length absolutely
uneatable. This difference of goodness and of colour
I attribute to the length of time they have been
from the salt water, for they have also, like the
common salmon, the lerncea salrtionea, when fresh
from the sea. The probability, indeed I may say
the certainty, is, that these fish return again to the

D 2

36 SPECIES OF THE SALMON.

sea from whence they came, because they are
sometimes caught in the sea, but are never caught
in the rivers after they disappear in August. Early
in the ensuing year, even in January, February,
March, April, and May, another fish makes its ap-
pearance in the fresh waters exactly similar to the
former, varying not in the slightest degree inter-
nally or externally, being from one to two, three,
and four pounds' weight, according to the season
of the year in which it happens to be caught.
Here we are to calculate upon the increased size
of the fish, and observe how it is proportioned
to the interval of time, namely, from August
to January, because a material inference is de-
ducible from this fact. These, too, like the for-
mer, have a great variety of provincial appella-
tions, such as truff, rouges, sea-trout, and the like,
but I find that the general name, according to
scientific writers, is salmo trutta. As the sum-
mer advances this fish begins to disappear ; though
some still come up and down with the flow of the
tide so late as June and July, and are frequently
taken with natural and artificial bait, (passing over
the full-sized or breeding salmon, which now begin
to make their appearance, and attending only to
the fish, as we imagine, in a state of growth.) In the
early part of the ensuing year straggling young
fish of different sizes, from five to six, seven, and
ten pounds come into the rivers fresh and good,
with the sea lice on them ; this so rarely hap-
pens, that though a new fish of this description

14

SPECIES OF THE SALMON. 37

sells for a great price, yet it hardly pays the fisher-
man for the expense of nets and loss of time.
These fish continue to increase in number, size, and
goodness as the summer advances ; but it is an
universal remark, that no such large Jish are caught
now as used to be taken formerly ; which I attribute
to the spent fish being either destroyed in fish-
coops, or prevented by other means from return-
ing to the sea, so that the chief influx of fish in
the fall of the year is of young fish which have
never bred before.

This is a statement of the progress of these four
fish, that is, the smelt, the peal, the truf£ and the
salmon — whether one, two, or three species re-
mains to be determined from the facts which I have
stated, and those which will follow. I have not
made it a question whether the smelt is a different
species, because I never heard any one contend
that it was. These four fish are as much alike as
four hen's eggs, excepting in size ; is it not then a
rational inference, that they constitute one species ?

2. The salmon-peal and the truff are never seen
in any rivers but where there are salmon; and
where salmon are, there they are : the former are
plentiful or scarce according to the number of the
latter; and this is a strong corroborating circum-
stance.

3. The flesh of all the three fish is of the same
quality and character, flaky, rich, and luscious, and
soon satiating; the colour and quality vary accord-
ing to the length of time the several fish have

D 3

38 SPECIES OF THE SALMON.

quitted the sea ; the high crimson is considered to
possess the finest flavour, but it is entirely matter of
opinion which is the best of the three ; in general
a high-conditioned salmon is thought the best.
All three when they arrive in our rivers from the
sea have the lerncea salmonea upon them. This
fact appears to me to be conclusive in itself.

4. I never met with any man who was able to
declare that he had seen a young salmon of one,
two, or three pounds' weight; nor do I appre-
hend that such ever was seen, unless it were in the
character of "peal or trvff. Yet salmon of this
description must be always in our rivers, upon
our coasts, and in our power, and yet none are
ever seen or taken. No one can tell us where
they are, or where they go, or what becomes of
them, which is a most extraordinary circumstance,
if such salmon really exist. It is more particu-
larly so, as

5. We see and are perfectly well acquainted with
the young of every other kind of sea and river fish,
nay, of aquatic insects, from the very largest to
the smallest, as well those which are viviparous
as those which are oviparous, from the whale to
the pink minnow and the shrimp. Why then do
we never see the young of the peal or the truf£ if
there be such ? The transition from the fry to the
full-grown salmon cannot be so instantaneous as
never to have furnished one single instance of a
young one being taken of one, two, or three
pounds' weight.

SPECIES OF THE SALMON. 39

6. The peal and the truff being oviparous, if
distinct species, as they are more numerous than
the salmon, must produce a greater quantity
of spawn, and being so much smaller than the
salmon, cannot be destroyed by the spear. Yet
no man living can prove that he ever saw such
spawn either in a solitary or gregarious state ; if
they spawn at all it is in the river, and their young
would then appear in shoals.

7. All river-fish coming within the salmo class,
which are of an avowedly distinct species, to-
wards winter get out of season ; the females
having roe, ovaria, and the males having milt or
soft roe, lactes, and thus they get milky ; when one
is taken in the hand, even so late as January
and February, a whitish liquor immediately flows
from the male. Though a roe is often, but not al-
ways, seen in the peal and the truff, yet the male
is never seen milky when the two fish are in a
seasonable condition, if at any time — I never saw it
at any time ; — this shows the improbability of their
spawning for want of the milter.

8. There are much greater differences in shape
and form among salmon themselves, than appear
between the peal, the truff, and the salmon. How
frequently is it remarked, that such a fish is much
finer grown and handsomer than another; some
are short and thick, others long and lanky. Horses
and other animals vary much in external appear-
ances, but no one ever said that a white horse was

D 4

40 SPECIES OF THE SALMON.

of a different species from a black one, or a hand-
some horse from an ugly one.

9. Sturt says, that the salmon smelts, about the
beginning of June, begin to return into the rivers,
being grown to twelve or sixteen inches in length.
What can he mean, or what can this be, but the
salmon-peal ?

10. The salmon-peal is not described by any
author entitled to credit, as a distinct species, or
even described otherwise than incidentally as the
young of the salmon.

1 1 . There are always more smelts than peal, more
peal than truff, more truff than salmon : thus ex-
hibiting a regular series of diminution, which is a
strong argument in favour of the hypothesis.

From these facts, the reader is left to draw his
own conclusions ; I do not claim for them the rank
of positive proofs, but they are surely strong corro-
borative circumstances. Thus far, however, the
evidence is all one way. I am now about to state
a fact of an intermediate distinction, something
more than presumptive, and yet, not absolutely po-
sitive. On the late breach in Totness weir, which
happened exactly in the season when salmon ascend
the rivers to spawn, the fish of course availed them-
selves of the opportunity. A. greater number were
speared that season than had been so taken for many
years — of course a proportionate number escaped.
I remarked to one of the fishermen on the Dart,
who has been such from his boyhood, that we

SPECIES OF THE SALMON. 41

should now see whether the destruction of the
weir would increase the peal and the truff; the
man replied, " It had nothing to do with it, because
the three fish were all three different sorts." I did
not attempt to convince him to the contrary, be-
cause I might just as well have reasoned with the
fish itself; but merely replied, " We shall see." I
have now a memorandum in my own writing, made
just about the time the above conversation took
place, in these words. " The time mil soon arrive
'when we shall ascertain whether the public stock has
received any addition" Now it is a notorious fact ,
that for a great many years past, so many truff and
salmon-peal have not been taken in the fish-locks
at the Totness weir and the fulling-mill, as have
been taken in this season; salmon-peal in particu-
lar. I cannot pretend to tell the number, but it ha?
been immense. So much so, that I believe every
one in the town who was before sceptical, except a

few, are now satisfied, that the peal proceed from
the pea of the salmon, and exclaim against the im-
policy of taking so many thousands of unsizeable
fish. This appears to me to be the obvious effect oi
as certain a cause ; namely, that these peal pro-
ceeded from the salmon which escaped through the
breach in the weir before-mentioned; others, how-
ever, will judge. But we are now arrived at the
key-stone of this argument, namely, positive facts
proved by actual experiment. If these do not sa-
tisfy the public, I hope it will satify the legis-

- ture, that the peal, the truff, and the salmon, an

SPECIES OF THE SALMON.

one fish, at different stages of their growth ; and
that it will induce them not only to repeal the
Dart act, but generally to provide for the more ef-
fectual preservation of this valuable fish.

1%. And lastly : I copied what follows from the
Leeds Intelligencer newspaper, of the 13th March,
1823. "The much-agitated question, whether
" whitings or herlings are young salmon, or a dis-
" tinct species offish, seems to be set at rest by a
" decisive and well-authenticated experiment. In
" May, 1820, Mr. Ralph and Mr. Barnes marked
" 1465 fry, by taking off the dead fin, and returned
" them to their native element. In the ensuing
" season, many of them were recaptured as whitings;
" in the second, as sea-trout andgilse ; and on Tues-
" day night last, 'dfine salmon weighing ten pounds
" so marked was caught at Stainton, and has
" been seen by a great number of persons, and
" it was exhibited at the public office on Wed-
" nesday \ those who have maintained a contrary
" doctrine, must now give up their opinion." —
Carlisle Patriot.

In consequence of seeing this paragraph, I wrote
the following note to the editor of the Leeds Intel-
Ugencer: " As I am desirous of knowing everything
" that can be known upon this subject, I very much
" wish, if I knew how, to have the words 'whitings' or
" « herlings' defined or explained, because they are
" local terms, and are totally unknown in this part
" of the world ; the terms that we give to these fish*
" are, first, salmon-fry or salmon-spawn, called by

SPECIES OF THE SALMON. 43

" Linnaeus smelts orsmouls. In July or August, a
" fish comes to us from the sea, which we call salmon-
" peal, about twelve inches long, and from one-half
" to three-fourths of a pound's weight, exactly re-
" sembling the salmon, except in size. In March,
" April and May, we have the sea- trout or gilse, sal-
" mo ^rw##,?generally two pounds' weight, so much
" resembling the salmon, that great difference of opi-
" nion has prevailed, whether the three fishare three
" different species, or only one. After these, come
" the salmon of various sizes. What I particularly
" want to know is, whether these whitings or her-
" lings answer to our salmon-peal." This letter was
published likewise in the Carlisle Patriot, and
soon after I received a satisfactory, and circum-
stantial answer from a respectable gentleman of
Carlisle, saying, inter alia, " I have all my life
" paid great attention to the subject, and tried
" many experiments in a more substantial way than
" was done by Messrs. Ralph and Barnes in the
" river Eden in 1820, though that alone was suffi-
" cient to have convinced even a sceptic, that whit-
" ings or herlings become salmon, and are the
" same genus of fish that you term salmon-peal.
" They are fry or smelts in May, when they leave
" us and go to the Solway Frith. About the mid-
" die of July they return again into our rivers,
" about ten or twelve inches in length ; from this
" state they become sea-trout and gilse, and in the
" following summer or autumn, salmon, from ten
" to near twenty pounds' weight."

41< SPECIES OF THE SALM<

This gentleman speaks of the immense number of
882,000 fish caught in seventy days, as one of the
great causes of the ruin of the salmon fisheries in the
North. He further adds, " From the experiments I
" have tried from the month of May 1812, nearly to
" the present time, compared with those of Messrs.
" Ralph and Barnes, that question is now nearly at
" rest in this country. I have tried various expe-
" riments with fry and whitings, or salmon-peal,
" for several years, to ascertain whether or no
" they become salmon, and by what stages, from
" which, I am now perfectly satisfied, that they do
" become salmon, in the course of two years, or
"thereabouts; for in the month of May 1812, I
" put a great number of salmon fry into a bleachfind
" basin on the river at Milbeck, near Carlisle, which
" now supplies our canal to the sea with water. In '
« the latter end of that year, those FRY became toler-
" ably well-sized WHITINGS, and measured thirteen
" inches in length; and in the following season became
" SEA-TROUT, small gilse, and one of them continued
" in the basin until it was twenty -six inches and a
" quarter in length. On the 16th of August 1813,
" I put twelve whitings into the same basin, first
" cutting the dead fin off the back to distinguish
" them from the fry, and on the 3d of June, 1814*,
" I had the pond drawn with a small net, and
" upwards of twenty fish taken to the shore in the
" presence of scores of fishermen and others, when
" it appeared to all present, that the whitings and
" many of the fry put in, in May 1812, had fairly

SPECIES OF THE SALMON. 45

" become sea- fronts, and some of them fork-tailed,
" resembling a small gilse ; several of the fish con-
" tinued in the pond for two or three years after-
" wards, and, actually spawned, but the Bleachy
" having failed and gone into Lancashire, the
" banks which confined them were broken by idle
" persons, and the fish escaped into the Eden.
" Whether this experiment may satisfy the people
" in Devon, I know not, but at present we are pretty
" well convinced here as to what whiting or sal-
" mon-peal are ; in fact, they become salmon.

" In the year 1819, a number of whitings were
" marked at King Garth on Eden, by cutting off
" the dead fin, and sloping their tails, and on the
" 27th of July, 1820, one of them was again taken
" there a large gilse, weighing nine pounds.

" The names given to whitings or salmon-peal are
" various throughout the kingdom: at Berwick they
" are called sprints ; at Dumfries, Annan, and the
" south of Scotland, herlings (from yearlings) ; in
" Dorsetshire, skerlings or lastsprings; at Montrose,
" Aberdeen, Banff, &c. blacknebs; in many of the
" old Scottish statutes, smolts, in contradistinction
" to salmon-fry or smelts ; at Carlisle and in Cum-
" berland, whitings; in Lancaster, smouls ; in
" Devon, salmon-peal ; and in almost every other
" county and river by a different name."

I think nothing need be added after this to
prove that the salmon-fry first come to the peal,
then to the sea- trout, then to gilse, or young sal-
mon, and finally, to salmon themselves \ we may say

46 SPECIES OF THE SALMON.

upon this, as has been energetically said upon ano-
ther more serious subject, " He that will not believe
Moses and the Prophets, would not believe though
one were to rise from the dead." This then closes
the affirmative evidence ; now let us examine with
candour what the reasons of those are who main-
tain a contrary opinion, namely, that they are three
distinct species.

As to the salmon-peal, as far as I can collect,
the advocates for the opinion that this fish is a
species of itself, have three arguments ; the first
is, that many of the peal have roe ; secondly, that
they have teeth in the roof of the mouth, which
the salmon have not ; and thirdly, that they never
grow after they enter the rivers.

In answer to the first, I admit the fact, though
it is not general; and if some of the female peal
have roe, I have never heard or met with an in-
stance of a milt being seen in the male. But I
think this is a circumstance which amounts to
nothing towards evidence of a distinct species,
because it is plainly an inceptive ovaria of a limited
and very puny nature, not calculated for being
shed in a state of maturity but at a very remote fu-
ture time. Besides, who knows at what period of life
these ovaria were first formed, and placed in the
body of the fish? perhaps coevally with its very exist-
ence, though not discernible but by a glass. Now it
is known that fish begin to breed at an eighth part
of their size : a small trout, not larger than a fin-
ger, has roe, and so has one as large as a man's

SPECIES OF THE SALMON. 47

arm ; a trout is a fish that no one can mistake.
But if the peal breed, is it not wonderful and un-
accountable that their spawn were never seen,
when we can see, and are well acquainted with, the
spawn of the very smallest of other fish ? I think
then that such roe in the peal is not even pre-
sumptive of a separate species, but that it increases
and grows with the fish until it is fit to be shed in
a state of maturity at a future time. A great deal
more might be said upon this point, but it is not
necessary after the positive facts before stated.

I answer to the second argument, that the peal
have teeth in the roof of the mouth, that so have sea-
trout; but I have a very long and satisfactory paper
also from Carlisle, proving that when the fish get to
three or four pounds' weight, they all lose their
teeth. In general salmon have them not. I examined
one this day which had no such teeth, but the head
of another fine salmon was brought to me a few days
since which had such teeth ; so there is then no
other conclusion to be drawn from this circum-
stance, than that generally when they are young
they have such teeth, and when they get older
they shed them; but the instance I have just
mentioned proves that there are exceptions.

In answer to the third argument, supposing it to
be true, that the salmon-peal never increase in size
in the rivers, it proves nothing either one way or the
other. But how does it appear to be true ? No one
has ever proved this to be the fact, nor is it to be
proved, unless the fish be marked and identified ;

48 SPECIES OF THE SALMON.

this has never been done ; therefore, there is no evi-
dence of the truth of the assertion. But even if
it be true, it is not to be wondered at ; because it
cannot be expected but that a fish, shut up in a fish-
lock, deprived of necessary food, and natural li-
berty, should fret, pine, and fall short of its natural
growth.

These circumstances do not appeartome to weigh
much against what is placed in the opposite scale.

As to the salmo trutta or sea-trout, this fish has
certainly always been considered as a separate spe-
cies. Authors of the highest authority so treat it,
and give a description of the fish different from
that of the salmon ; but I have several times ex-
amined the two, side by side, with the greatest
nicety and attention, and have not been able
to discover the slightest distinction in any external
character. I think indeed, I would defy any man
living to do it. The description given of it exactly
corresponds with the description of the salmon. The
spots, lateral lines, the sides, the belly, the tail, par-
ticularly, which is represented to be broader than
that of the salmon, is not so. The fins and the rays
are uniform ; and in addition to what Pennant says,
both fish have quadruple branchia ; in fact, the fish
were exactly alike in every particular. I have com-
pared a great many at different times. It does not ap-
pear that Mr. Pennant formed his opinion on any
experiment, but merely by observation on a single
fish. Suppose a man were to do this on the larva of a
butterfly, and did not by experiment substantiate the

SPECIES OF THE SALMON. 49

transformation, could any one believe, that the cater-
pillar, the aurelia, and the butterfly were one crea-
ture ? All the opinions of naturalists which I have
seen, rest wholly on observation on external
marks, and some other trivial distinctions, than
which nothing can be more fallacious throughout
nature, particularly between the male and the fe-
male of birds and of fish. They give no other
reasons — no kind of proof by experiment — no
positive fact, or any series of reasoning, or compa-
rison of analogy, by which we can come to a satis-
factory and decisive conclusion that the fish are
different. Opinions which are not formed of
sound and solid materials, fact and reason, are
like a vapour, they carry conviction not beyond
" the whistling of a name." A truth proved by
such experiments as those of my Carlisle corres-
pondent, is worth all the loose and hasty opinions
and assertions of all the naturalists in the universe.

" Pride often guides the author's pen,
Books as affected are as men."

To find out truths, we must go to facts and ex-
periments. Recollect what that sublime writer,
Buffbn, says of the change of an ox's horns, con-
tinued through three editions of his " Natural His-
tory." Let it prove to us, that we should be
cautious how we repose implicit confidence in the
dicta of any man. Facts, then, are of much more
consequence than the names of authors. I have
seen and know so many instances of naturalists

E

50 SPECIES OF THE SALMON.

being wrong, that I would take nothing for granted.
An universal zoology is more than any man can
accomplish of his own knowledge, and three parts
of what is published are taken from the reports
and the credit of others.

It is not easy to ascertain, either the sincerity or
the correctness of an opinion. It may be extend-
ing this article, perhaps, further than is necessary,
but whilst we are upon the subject, a page or two
more may be pardoned. By analogy to other ani-
mals, we may see how ill- calculated external appear-
ances alone are, without referring to other circum-
stances, to distinguish one species from another. In
birds in particular this is the case, where the cocks
and hens vary so much in plumage, that were they
not reared from the same nest, and had we no other
positive evidence, no man living would believe that
they were of one and the same sort ; but simple
experiments in this way, prove the fact beyond
a doubt. It is by experiment, that we know the
cock and hen sparrow-hawk, the cock and hen
kestrel, varying so much in size and plumage, and
a great variety of other kinds, both wild and do-
mestic, which it might be deemed pedantry to men-
tion in this place, to be the same species. Every
writer treats the ringtail, and the white falcon as two
species (what we call the hen-harrier or furze kite),
but from nestlings I know them to be one species.
I shall stop short in the investigation of this very
favourite subject, my fondness for which might
carry me into an unreasonable length, by conclud-

SPECIES OF THE SALMON. 51

ing, that if fish are to be pronounced of differ-
ent species, merely by slight marks, spots, and
bodily distinctions, though agreeing in all ma-
terial points, it seems to me to be fixing opinion
on a slender and treacherous foundation, when
there are other facts and circumstances of infinitely
more importance, and much better calculated to
lead us to truth.

Whether salmon-peal are young salmon, or are
not, has been a long-agitated question, and, as far as
concerns merely public curiosity or natural history,
perhaps it is a matter of no great consequence ; but,
as it concerns the welfare of the salmon fisheries, it
is a matter of first rate magnitude ; for, as has been
frequently observed already, if they are so, (and that
they are, I should think there cannot be a doubt
in the mind of any unprejudiced and disinterested
person,) they are then unsizeable fish, and ought
not to be taken. It is evident to me that they
were so considered in the reign of Queen Elizabeth,
when the mesh of the net was fixed at two inches
and a half broad to enable them to escape ; and
there is nothing in the case to induce a contrary
opinion. The capture of salmon-peal, then, is an
incalculable injury to the salmon fishery, and it
ought to be prohibited,

I do not detail the many other comparisons
which I have made with a great number of sea-
trout and salmon. I shall only observe, that I
have made such, and that they all terminated in
the same result — an exact similitude.

E 2

SPECIES OF THE SALMON.

The mesh of the net was fixed by the ministers of
Queen Elizabeth, and great consideration should
be paid to what was done by those giant-minded
men, before any thing is lopped off from the act of
the fifty-eighth of her reign.

ON THE PAIRING OF SALMON.

THOSE who do not feel a particular interest in
pursuits of this sort, may, perhaps, think that this
is carrying the subject more into detail, than ne-
cessity requires ; but others, who are as partial to
it as I am, will agree that " even the veiy dregs
are sweet/* I should not, however, advance a
word more on this topic, if it did not give me an
opportunity of applying a few additional observa-
tions to the general question. It is material to
know, whether salmon pair or are polygamous;
inasmuch as, if they do pair, a very pernicious
habit is practised, in allowing only an unseasonable
female, or one very big with roe, to escape, and
reserving the male for destruction, because the one
cannot produce a progeny without the assistance
of the other. I have seen this practised many
times at the Totness fish-lock ; that is, I have seen
the female taken out and put into the fresh water
above, and I have seen the kipper knocked on the
head ; if they pair, this is a most ruinous practice,
and therefore it is very material to ascertain, if we
are able, whether they do pair or do not.

No fact is mentioned by any naturalist — no
experiment has ever been tried — no series of

E 3

54 PAIRING OF SALMON.

analogical reasoning has been attempted, to decide
this point either one way or the other : but the
opinion that they do pair, rests merely upon general
assertion and general belief. I do not profess my-
self able to determine this question; but I may be
the means of inducing others to attempt it. We
want facts, ascertained by experiments ; and as far
as experiments can avail, they should be tried.
In the Encyclopaedias we are told, that after the
milter has done his natural office, the fish hasten
to the sea before winter, " both the milter and the
spawner." Sturt says, the male and female join
in the selection of a place to deposit their young,
but this hardly comes up to the idea of pairing : it
however, induces an opinion that they do pair ;
and there is evidence, notwithstanding what Gold-
smith says, whose authority, as a naturalist, I
admit not to be conclusive, that such natural
office is performed after exclusion of the ovaria.
Therefore, if they pair, nothing can be more inju-
jurious to the fisheries, than to kill the male, and
to leave the poor female to propagate by her own
means. It is consequently, a most important point
to establish.

There seems to be no rule in nature, by which we
can comprehend why some animals should pair, and
why others should not. Without taking any notice of
the human species, we will just examine the nature
of quadrupeds and birds on their individual at-
tachments to each other. With regard to the former,
I think it is said, that the roebuck pairs, as does

PAIRING OF SALMON. 55

also the rabbit. I recollect no other quadruped,
wild or tame, that does so ; at least, if a few do, by
far the greater part do not. With regard to the lat-
ter, the case is very different ; the laws of nature,
hidden as they are from us, appear to be capricious
and confused ; but we must say with the poet,

" All discord's harmony not understood,"

and proceed to view her stupendous operations as
they are, with admiration and with gratitude. It ap-
pears to me, that most of those birds, whose young
depend upon the joint efforts of the male and female
for support, and which build nests, do all pair, whe-
ther of the rapacious, or the pye kind, or any of the
numerous species of the small bird race ; and I be-
lieve this is mostly the case with the wild aquatic
birds, The wild swan, goose, and duck pair ; but
all three, in a state of servitude, are polygamous,
though they all proceed from the wild stock. The
partridge pairs, but the quail, which so strongly
resembles it, does not; nor does the pheasant, or the
cuckoo ; but the heron pairs, and yet the bittern
does not. On the present occasion, there is no
use in extending this enquiry, because the instances
mentioned are sufficient to show, that nature does
not furnish us with any rules by which we can
reason, from the natural propensities of one object
of the creation to those of another, why some
should pair, and why others should not ; nor do I
recollect that any reasons are assigned or even

E 4f

PAIRING OF SALMON.

guessed at by naturalists, to account for this differ-
ence in animals. As to fish in general, from the
very nature of the element in which they exist,
their habits are concealed from the observation and
examination of the philosopher ; and it maybe very
difficult to ascertain, not only, whether they pair,
but what many other of their natural practices are.
We need only recollect the wide and wonderful dis-
tinctions between the cetaceous and cartilaginous
kinds ; yet is it unknown, I believe, whether any of
them pair, and difficult to assign any other than a
vague conjecture, whether the fact be so or not.
Analogy, as we see, gives us no aid ; it is thought by
some naturalists that the whale pairs, but what is this
as evidence in matters of fact? there is no proof
that they do ; but even should they do it, as nature is
so sportive, we can hardly say that the mammalia
class of fish are likely to pair. I do not recollect that
Scoresby, who gives the most particular and the best
authenticated account of the whale, and other ani-
mal productions of the north, says that they pair.
There are, however, some facts, that we do know,
namely, that certain fish copulate like land ani-
mals, more humano, — the ray in particular, the
male and female having been taken in a state of
union, though they are oviparous. We know that
all fish of the mammalia class have organs of genera-
tion like land animals ; but we also know, that the
more immediate object of the present enquiry has
no such organ of connection ; their amours have
been oftentimes seen from particular situations 5

PAIRING OF SALMON. ,57

the impregnation of the roe takes place after ex-
clusion ; and this seems reasonable, considering
the immense number produced from one female,
amounting, as I have stated before, to about
600,000. It appears indeed almost impossible, that
so large and compact a mass can be impregnated
in the body of the female, the male having no or-
gan with which to do it ; and no part of the roe
can be impregnated without an actual contact with
the seminalis masculinum, either before or after ex-
clusion. As the male has been seen to cover the
pit which has been dug for the female, and the
water has been observed to be immediately co-
loured, the probability is, that the natural office
of the male is performed on the ovaria, whilst they
are extended on a flat surface on the sand, and
when every egg is so placed as to be able to receive
the masculine influence. Nor is it at all improbable
that the female should make a second and a third,
or more beds, for the reception of the whole of the
pea, which it is hardly possible or likely that she can
discharge at one time or at one place, for the oper-
ation takes a considerable time in performing. I
am warranted in this conclusion from what follows
— we must make a comparison to something : taking
it as a datum that the roe consists of 600,000 pea,
now, as the natural orifice is small, only one pea
can be emitted at a time, and these must be ad-
justed and deposited in proper and regular order
and situations. They are not let out of her body
all at once, as at a sluice, in a promiscuous, irregu-

58 PAIRING OF SALMON.

lar, and confused heap. What pain the animal suf-
fers, or whether she suffers any in thus laying
her eggs, no one can tell ; but it is likely that some
exertion is required, and any such exertion must
occupy a small portion of time. I remember some
time back, watching the whole progress of the
caterpillar {phalcena wavaria'), which destroys the
gooseberry leaves. I saw the fly lay her eggs,
about a dozen, on the inside of a leaf; she appeared
to exert herself exceedingly, and there was an
interval of, at least, a minute or more between the
production of every egg, and ehe left the leaf be-
fore she had disposed of a fiftieth part of her bur-
then, to place the remainder on other leaves, well
knowing that she ought not to fix more young on
one leaf, than that leaf, after they were hatched,
could support. There was also an instinctive method
in placing the eggs, which was always on the rib of
the leaf. I say instinctive, because they are all
disposed after the same manner, as I have seen by
thousands of them. Now, suppose the salmon
were to occupy a minute in thus systematically and
regularly dropping every pea. Perhaps no one
would think this an unreasonable supposition ; but
before we accede to this, let us pause for a mo-
ment, and look at the consequence. Why she
would then be ten thousand hours, or four hundred
and sixteen days in the accomplishment of her la-
bour, without allowing one moment for rest or food.
This, then, is absolutely and self-evidently impossi-
ble, without the aid of proof or the necessity of

PAIRING OF SALMON. 5Q

argument. We will then allow a pea for every se-
cond : this must be rapid work ; but at this rate
she will be in close occupation, without appro-
priating a moment to any other purpose, six days,
twenty-two hours and forty seconds. Now it is
impossible for any one to imagine, that the fish can
maintain a stationary position, even for above seven
days ; but rather that she must have intervals of
rest, and must make many pits to deposit her pea
in. Then it is reasonable to suppose, if this be the
case, which is highly probable, that the male per-
forms his office after exclusion ; and that the fish,
like the fly, does not place more eggs in one situ-
ation than can be fecundated by the male, and se-
cured by them both. Even if she is confined only
twenty-four hours in one place, and that in shallow
water, where she is the whole time visible, only let
it be considered how much she must be exposed to
the eagle eye of the practised spearer, who feels
as little mercy as the steel with which this valuable
creature is transfixed. They never let the fish rest,
morning, noon, or night ; gangs of them are per-
petually in motion, on each side of a river ; if a
fish is once seen, or started, certain death awaits
him. He is hunted from pool to pool, from side to
side, until, wearied out, he deems himself safe if he
can hide his head, and he is dead in a moment.
How important a circumstance it is, that the fish
should not be disturbed whilst laying her eggs, is
obvious, for if such eggs are not well covered up

60 PAIRING OF SALMON.

and secured, they are sure to be destroyed by other
fish.

I once accidentally saw a large salmon speared
on the river Avon in the very act of spawning ;
it was, as I know from circumstances, in the month
of November. When she was taken out of the
water I observed the roe to drop from her one by
one at intervals of about a second of time, or
rather perhaps a second and a half.

As the kipper is in close attendance for the pur-
pose of impregnation, and also for securing the roe
in the pit or bed by filling it with sand, it is certain-
ly probable that they pair. If there is no kipper the
eggs must be abortive. Should they pair it is the
worst of policy, according to the common practice,
to cut off that which causes the increase. There is,
however, much to be said on the other side of the
question, which we shall presently examine. But
whether they do pair, or whether they do not, this
enquiry, founded upon facts, shows the importance
of allowing ample time in the breeding season to
these Jish, and that they should not be molested or
frightened from place to place at this critical junc-
ture, when all should be quietness and privacy.
The pit which the salmon digs in the sand, is as it
were her nest, and there is every reason to sup-
pose that, like birds, she will forsake her nest if
disturbed in it ; this is a further proof of the enor-
mous and incalculable injury sustained by the pub-
lic from this cursed and cruel system, which, as it
cuts up the brood by the roots, should be speedily,

PAIRING OF SALMON. 61

as it might be easily, put a stop to. It should
also be recollected that every salmon does and must
in the spawning season go high up the rivers to
spawn, therefore every salmon is within the reach
of the spear ; consequently, if not protected from
this deadly weapon, every salmon is likely to perish.
Much irregularity proceeds from this crime (a mala
prohibita, at least), such as idleness, night-walk-
ing, drunkenness, and all the train of vices which
the poaching system produces and confirms- To
exemplify still further the nature and extent of
this mischievous abuse, it is necessary to observe
that the salmon cannot spawn at any place they
please ; there are mills on some rivers which do
not afford a convenient situation for them j it must
be in undisturbed beds of sand of a particular
quality and fineness, generally such as is thrown
back into an eddy or whirl at the bottom of a ra-
pid ; the stream must also be of a certain velocity ;
if too violent the spawn pits are apt to be unco-
vered, and the whole pea to fall a sacrifice to trout
and other fish which are ravenous after it. The
sand must also be so deep as to admit of a pit of
eighteen inches. On the other hand the fish
equally avoid still water, no doubt for some good
reason, though to us it is only known that a run-
ning stream is necessary to fecundate the ova. As
the fish then seek only certain places, where what is
called their works are plainly discernible, (for
when fresh works are observed, the fish are not
far off,) those who understand this system of

62 PAIRING OF SALMON.

water-poaching have only to secrete themselves
and wait their approach. These retreats or sand
beds are called restoffs ; and if* the spearers can-
not otherwise hide themselves, they stick old furze
bushes and other things in the sand, behind which
they place themselves and wait their opportu-
nity. All the fish must make towards these
sand beds, which are always in shallow water,
for a certain degree of the sun's influence is
as necessary as the water to fructify the pea.
They can spawn nowhere but in these places.
At night a white board or painted stone is placed
at the bottom of the stream, and the fish, at-
tracted by lights, are drawn to the spots where
the boards or stones are placed j the opaque
body of the salmon, though in the dark, is easily
seen on the white board, and of course as easily
and fatally struck with the spear. Thus, taking
into consideration all the abominable contrivances
which are practised to exterminate this fish, the
wonder is that a single one should escape death,
and not that they should be so scarce and dear as
the public justly complain of finding them.

It may be further alleged that if the impregna-
tion takes place after exclusion and not before, and
if they do not pair, the male would not follow the
female to her breeding haunts to assist in digging
the pit and preserving the pea ; but this, though
a probability, is no certain proof of the position,
because the attachment of all animals which pair is
actuated and governed by other considerations

13

PAIRING OF SALMON.

63

than the gratification of the sensual appetite: it is
social, individual, and, as it were, sentimental ; with
the crow it is said to be for life, the cock and hen
never separating, but when either loses his mate
the survivor enters upon perpetual celibacy.

There is so obvious a difference between the
male and female salmon even in the water by day,
independent of the shape and colour, that the
pregnant big-bellied female can never be mistaken
for the male.

Again it may be thought that the powers of one
male fish can hardly be equal to the fecundation of
such a mass of roe as 600,000 ; to this it may be
replied that Nature is as equal to the perfec-
tion and accomplishment of all her works as she
is wise, and in many particulars incomprehensible
to us ; in this case the wonderful wisdom of the
Creator is shown in a most miraculous degree ; the
organic moving particles (the supposed source, at
least assistant, of impregnation) in the milt of a
male fish is about seventeen times the number of
ovaria in the female ; the female codfish has up-
wards of nine million pea ; the milt of the male,
according to Leuwenhoek, contains 150,000
millions of living particles ; estimating the salmon,
then, after the same ratio, , if the roe contains
600,000 pea, the milt will contain 5,400,000,
which is a vast superfluity beyond what is neces-
sary for the purposes of nature, and serves as a
resource against all accidents and waste.

(>4" PAIRING OF SALMON.

Yet to show how difficult it is to ascertain whe-
ther these fish actually pair or not, I have been
made acquainted with the following fact. A
spearer, last autumn, standing in about three feet
of water, secreted behind the artificial fence be-
fore described, saw a female at work, that is,
grubbing up a pit in the sand for her pea. Expe-
rience told him that the male, to use the very
language in which the anecdote was related to me,
like dogs after a bitch, would soon follow her. He
was not disappointed, for this man speared seven-
teen males in one day, and another man speared
eleven on the same day at the same place ; and then,
with sterling genuine human gratitude, which is
said to be "a vice peculiar to human nature," they
speared their benefactress also. I have not the
smallest doubt of the truth of this story as to the
destructive part of it, because I have been told
the names of the men engaged in it ; but, subject
to what has been just observed, and to what others
may know upon the subject, I must leave the pub-
lic to determine this question. It is not, however,
certain that these male fish were after the same
female, they might be in quest of others, and
therefore it is no proof that they do not pair ;
certain, however, it is, that whether they pair or
whether they do not, it is a most impolitic and
injurious practice to spear the males and send away
the females to procreate by themselves ; and it is both
cruel and brutal to spear them at all in the breed-

PAIRING OF SALMON. 6*5

ing season, whether male or female. If they are
polygamous the effect is the same, unless, as is the
practice among gamekeepers with pheasants, it be
thought necessary to kill a certain number of
the males annually.

Another important fact arising out of this in-
quiry, is, that the female is a very considerable
time in depositing her roe, during which she is ex-
posed to the spearer, and therefore these spearers
should be strictly watched, and severely punished
when detected in the practice.

Should any one pronounce this a trifling subject,
and complain that more has been said about it
than there was any occasion for, which I dare say
many ignorant and some malignant people will not
fail to do, I answer, " that whatever God has
"judged worthy of himself to create, is not below
"us to examine and consider ; the same hand
" that formed the whale, the elephant, and the
" lion, has likewise made the louse, the gnat,
" and the flea. Innocently to amuse the imagi-
" nation in this dream of life, is wisdom ; and
" nothing is useless that, by furnishing mental em-
" ployment, keeps us for a while in oblivion of
" those stronger appetites that lead to evil."

I now quit the elementary part of this subject
for another, and I wish that in doing it I could use
the apostrophe of Junius to Lord Camden ; but
that cannot be, for in truth the change is only
travelling from one "barren waste" to another.
However, he that is whole needs not a physician,

F

00 PAIRING OF SALMON.

but he that is sick : it is because no " verdure
quickens," that we desire to fertilize the soil. If
we can suggest such improvements as may make
it productive, the fruit will amply repay the labor ;
and with the hope of so doing, though certainly
in an inferior ratio to that of the desire, we pro-
ceed to the next topic*

ON THE CHANNEL-FISHERIES. 67

ON THE CHANNEL-FISHERIES ON THE COAST OF
DEVON AND CORNWALL.

THE defects and abuses of the law with regard
to the channel-fisheries are as detrimental to the
public interest as are those which we have just
examined on a similar subject. I will adopt the
same mode of enquiry as has been pursued with
regard to the salmon-fisheries : — endeavouring to
point out where the defects lie — how the laws
are abused — and in what respect they ought to
be amended A very few prefatory observations
will, however, be necessary.

It is well known that all sea-fish deposit their roe
in creeks, bays, and shallow water, near the shore ;
because a certain, though a very small degree of
the sun's vivifying power is absolutely necessary
to bring such roe to maturity. This is not
only a truth established by the observation and
experiments of scientific men, but we have legis-
lative authority in its behalf* By the 3 Jac. I.
c. 12. entitled, An Act for the better Preservation
of Sea-fish, it is stated in the preamble, " For-
" asmuch as it is certainly known by daily ex-
" perience, that the brood of sea-fish is spawned
" and lieth in still waters, where it may have to
" receive nourishment, and grow to perfection ; and

F 2

ON THE CHANNEL-FISHERIES.

" that it is there destroyed by weirs, draw-nets, and
" nets with canvass, or like engines in the middle or
" bosom of them, in harbours, rivers, and creeks
" within this realm, to the great damage and hurt of
" fishermen and hindrance of the commonwealth;
" for that every weir near the main sea, taketh
" in twelve hours sometimes the quantity of Jive
" bushels, sometimes ten, sometimes twenty or thirty
" bushels of the brood of sea fish ; and also those
" which use draw-nets and nets with canvass, or
" engines in the midst of them, do, every day
" they fish, destroy the brood of all the sorts offish
" aforesaid in great multitudes, &c. &c." Then fol-
low the enactments of the statute, but which do
not apply to my present purpose. I only mean to
show, by the preamble, that the roe has always
been considered to be deposited in shallow water
on the coast. The act does not mention the size
of the mesh of the net, but we shall have that more
particularly hereafter.

Now by the statute 13 & 14 Car. II. c.28., after
setting forth the importance of the fisheries, as
far as concerns the wealth and safety of the
realm, and the divers pernicious disorders and
abuses by the licentiousness of the times which
have crept in, and yet continue, evidently de-
structive of that trade ; it was enacted, that after
a time therein mentioned, "No person should
" from the first of June to the last of November,
" presume to take fish in the high sea, or in any
" bay, pool, creek, or coast of or belonging to

ON THE CHANNEL-FISHERIES. 69

" Cornwall or Devon, with any drill net, trammel,
" or stream-net or nets, or any other nets of that
" sort or kind, unless it were at the distance of one
" league and a half at least from the respective
" shores, upon the penalty of forfeiture of the said
" nets so employed, or the full value thereof, and
" one month's imprisonment without bail or main-
" prize."

I think that there can be little doubt, but that
among " the divers pernicious disorders and abuses
" crept in by the licentiousness of the times," in
contemplation of the legislature on the passing of
this act, was the destruction of the young fry and
brood of fish in the shallows, which made it neces-
sary that these fishing trammel-nets or trawl-nets
should keep a league and a half from the shore ; in-
stead of which, and in utter disregard of the act,
they sweep the bays, shores, and creeks with their
trawls, destroying every thing that comes into them,
both great and small, old and young.

This is a very serious evil, and is one great cause
of the scarcity of the best sorts of channel-fish ; yet
it is remediless as the law now stands, because no
prosecution can be enforced under it but by an
information at the suit of the King's Attorney-
General, where the expenses and difficulties are so
great that no man will interfere. But great as this
evil is, amu ch greater one remains to be stated, for
the 1 Geo. I. c. 28. entitled "An Act," among other
things, " for the Preservation of the Fry of Fish,"
after reciting by the 4th sect. " that whereas of

F 3

70 ON THE CHANNEL-FISHERIES.

" late years the brood and fry of sea-fish has been
" greatly prejudiced by the using of nets of too
" small mesh, and by other illegal and unwarrant-
" able practices, it is enacted, that after 1716, if
" any person or persons shall use at sea upon the
" coast of England, any trawl net, drag net, or
" any net whatsoever, for the catching of any kind
*' of fish (except herrings, sprats, or lavidnian),
" which hath any mesh or moke of less than three
" inches and half at least from knot to knot, or which
" hath any false or double bottom, end, or pouch,
" or shall put any net or nets though of legal size,
" or mesh, upon or behind the others in order to
" catch the small Jish which would have passed
" through any single net of three inches and half
" mesh, all and every such person and persons so
" offending shall forfeit all and singular such net
" or nets so used contrary to the true intent and
" meaning thereof, and also ^20 to be recovered
" by distress, and in default of payment to be com-
" mitted to the county gaol for a year, the penalty
" to be divided between the informer and the poor,
" and the nets to be burnt." The seventh sect.
of the same act, " for the further preservation of
" the fry offish," makes it penal to take unsizeable
fish, and mentions the size under which fish ought
not to be taken.

Now, after such an explicit act as this, can it be
believed that these trawlers, I believe to the number
of WO from Brixham alone, should fish with nets
in the bag of which the fish are caught and

ON THE CHANNEL-FISHERIES. 71

suffocated ; having a mesh so small as to take
fish not larger than a sixpence ; and that close
upon the shore, where the young fry principally
swarm, without the least regard to the law of the
land, or to any one single thing but what they very
injudiciously suppose to be their own private in-
terest, From the smallness of the mesh the con-
sequence is that the bag of the net is so completely
choked with mud, sand, and sea- weed, that nothing
but water can pass through. The effect of this
pernicious practice must be so self-evident to every
man's senses, as to require neither reasoning or
proof to convince him of the national mischief that
it must of necessity produce. Thousands of mil-
lions of young fish, and the roe of fish of all the best
qualities, are thus destroyed, contrary to the intent
of the present law, and for want of an effectual
one to check the evils complained of.

About twenty years ago, curiosity alone induced
me to go a little way to sea in a trawl-sloop, merely
to see the operation of the trawl-net, and the mode
of catching fish therein, without any reference to
the law ; for 1 then had thought nothing about it.
After the net, which was extended upon a pole
thirty feet long, had been at the bottom about half
an hour, it was drawn up, and several fine fish were
taken out. But when the bag of the net was
emptied of all which it had collected at the bottom,
during half an hour upon a pole thirty feet long, I
could not refrain from expressing my astonishment
at seeing its contents. To state any opinion upon

F 4

7* ON THE CHANNEL-FISHERIES.

the quantity of young fry and eggs of all descrip-
tions, sorts and sizes, thus destroyed, from the size
of half-a-crown to that of sixpence, and thence to a
pin's head, would be absurd. The mass appeared
to be countless and incalculable ; and, exclusive
of the quantity discernible by the naked eye, there
must have been a still much greater quantity
that would require the aid of the glass to identify it.
However, after the fishermen had separated the
saleable from the unsaleable fish, the latter being
kept for their own private purposes, the useless
dead mass of fry and pea was shovelled back into the
sea, as food for gulls and other animals, instead of
having been allowed to increase to its natural di-
mensions, and become food, rich and abundant,
for our own support and enjoyment.

On making some enquiries on this subject of a
very respectable gentleman of Brixham, he told
me that he had seen a whole boat-load of little
useless fish and fry of this description taken from
the trawlers, and thrown into the sea. Now this
trawl-net is thus drawn, upon an average, ten times
a day, by one hundred vessels from one port. Let
the public then reflect, and let a calculation be
made, if possible, (but the details baffle all calcu-
lation) what a destruction must be effected by the
practice at large ! — a destruction contrary to
sound policy, and contrary to the express letter and
true intent and meaning of a salutary act of par-
liament. Though this national grievance is known
to many, yet no man moves a finger to remedy so

ON THE CHANNEL-FISHERIES. 73

crying an evil ; — an evil which, without a cure,
will in a few years destroy the little that remains of
our channel fishery.

There is also a considerable difficulty to convict
under the Act of George I. for taking unsizeable
fish ; and therefore it is so much evaded, as to be
quite useless and inoperative. The avowed object
of the Act, as stated in the preamble, is to preserve
the fry of fish ; — and yet the fry of fish are des-
troyed to the greatest extent. The spirit of the Act
is violated in every part ; and yet the innovators
commit no legal offence. The words of the Act are,
" bring to shore , sell, offer to sell, or exchange." —
The fishermen do neither; and yet they infringe
upon the spirit, the true intent and meaning of the
Act in every part. Such as are so small as not to
be saleable, the fishermen keep and use themselves,
for what they call tea Jlsh. The fish that are so
small as to be good for nothing, are thrown into the
sea. So that they neither " bring to shore, sett,
" offer to sell, or exchange them;99 and yet they
violate the spirit of the Act in every respect. The
interest of these fishermen would be much better
promoted by attending to the beneficial and well-
meaning provisions of this and the former Acts,
than by using such destructive nets, and fishing
in prohibited situations, which disturb the resorts
of the old breeding fish, and are so detrimental to
the young fry.

This appears to me to be an interesting and
important subject, not only from the object of the

74 ON THE CHANNEL-FISHERIES.

inquiry, as affecting almost every individual in the
kingdom, but from the numerous instances in which
the legislature has interposed ; though, from the
foregoing observations, I conceive it must be uni-
versally admitted that there is urgent necessity for
a further interposition. Another Act must pass to
remedy the evils and supply the defects that have
been stated, before we can entertain a reasonable
hope of restoring the fisheries to that consequence
and value, which they would possess if properly pro-
tected. I have with this view drawn out the form
of an Act, which, if carried into a law, I believe
would produce these effects, and render salmon and
other fish on the coasts of Devon and Cornwall, as
cheap and as plentiful as ever they were. If there
is any thing therein advanced which is incorrect,
or any thing omitted which it should contain, the
error may be corrected and the defect may be sup-
plied I neither offer it or consider it as a piece of
perfection, but it may assist in providing one that
is so.

Form of a Bill to prevent the destruction of the shed
or breed of Salmon, andjish of the salmon kind; and
to prevent the improper taking and destruction of
salmon andjish of the salmon kind, in all the rivers
of England; and also, to prevent the destruction of
the fry offish, and to prevent the taking of unsize-
ablejish on the sea-coast of Devon and Cornwall.
Whereas a proper attention to the increase of the

salmon fisheries in these realms, and to other

ON THE CHANNEL-FISHERIES. 75

fisheries upon the sea coast of Devon and Cornwall,
would be attended with very great public and private
benefit ; but the laws now in force are very inade-
quate to the above purposes, being not sufficiently
explicit, applicable, and severe, to prevent the il-
legal destruction of fish by the sundry means adopt-
ed and practised by poachers and other ill-disposed
persons ; be it by this Bill therefore enacted, that
the Act of the 58th of his late Majesty King George
the Third, c. 43. and all, other local Acts for parti-
cular rivers, be repealed, and the same from the
passing of this Act are hereby declared to be re-
pealed in every part thereof; and be it further
enacted, that the magistrates assembled in the
county quarter sessions for every county in these
realms of England, Scotland, and Wales, shall
have power, and they are hereby authorized (first
examining if they shall think proper such witnesses
as may be necessary on the occasion) to put all
rivers and branches of rivers in England, Scotland,
and Wales, where salmon are taken, in defence for
any time not exceeding one hundred and fifty days
in each year *, and to vary the same, having re-
spect to each particular river, and the time when
salmon may be in season therein, according to eir-

* Perhaps it would be better for the Legislature to put all
rivers in defence during the six winter months of the year, as
no salmon ought to be caught but in the six summer months,
beginning with April and ending with September ; and it would
relieve the sessions from being pestered with applications by
interested individuals to put different rivers in defence at dif-
ferent times of the year.

76 ON THE CHANNEL-FISHERIES.

eumstances, and as they shall think proper ; during
which time that such rivers shall be put in defence
as aforesaid, it shall not be lawful for any person
or persons whomsoever, to take, kill, or destroy
any salmon, or salmon trout, or fish of the salmon
kind, or any brood, shed, salmon, or fry of such
fish, by net, coop, spear, or any other means or
device whatsoever, or to keep down any gratings,
or other obstructions at mills or other places, to
prevent the free passage and repassage of such fish
to and from the sea; and every person so offending
shall for every such first offence forfeit and pay
the sum of fifty pounds ; for the second offence, the
same penalty, and commitment to hard labour for
three months ; and for the third offence, felony*
and transportation for seven years t ; and every
person purchasing such fish during such fence days,
or having the same in partt or in whole, in his, her,

* This Act must be repealed in the first instance, as every
part of it which ought to be preserved is included in the follow-
ing Bill.

f Every man who fishes during the fence days, and after
the same are proclaimed, must do it knowingly and wilfully;
and therefore acts in open defiance of the law and the authority
of the magistrates : yet such are the propensities of a certain
description of people, that nothing but a very severe measure
will put an end to the destructive practice of spearing salmon.

J As these poachers make a practice of dividing such salmon
as they destroy, into parts, under an idea that no conviction
can take place for possessing any thing less than a whole salmon,
to avoid all doubt, it is proper to provide against this objection,
though it has no foundation in justice, or perhaps in law, but I
know it has in fact.

ON THE CHANNEL-FISHERIES. 77

or their possession, shall forfeit and pay the sum of
five pounds for every part or whole fish so found in
possession of such person or persons.

And whereas it is necessary for the due and ef-
fectual execution of this Act, that conservators * or
overseers be appointed in such numbers and at such
places, and for such rivers and branches of rivers,
as the said magistrates shall think proper, to see
that the same and the provisions thereof are not
violated ; be it further enacted, that the magistrates
aforesaid, for each respective county, shall have
power, and they are hereby authorized to appoint
as many conservators as they shall think proper for
the several rivers and the branches thereof) in each
respective county ; who shall be sworn by any ma-

* Conservators or overseers were assigned, and to be sworn
by the 13th Ed. IV. c. 47. whose duty it was in very general
terms to inquire of offenders ; and by 17 Richard II., c. 9.
justices of the peace were to be conservators, and such justices
were, by this statute, to survey and search all the weirs, that
they shall not be very strait for the destruction of such fry and
breed, but of reasonable wideness.

Here the office of conservator and the power of the magis-
trate with regard to weirs, are very lightly touched upon, but
the power of either is by no means equal to a necessary reme-
dy of the existing evil. — Still the magistrates are conservators,
and may act as such, if they think proper.

It is requisite also" that the conservators, as well as the
justice, should not be liable to vexatious actions for trespasses,
where no injury is committed. And there should be a greater
number of conservators appointed ; one is not sufficient for a
large river, extending thirty or forty miles. It would be a
very advantageous thing if the constables in every parish were
to be sworn.

'HE CHANNEL-FISHERIES.

gistrate, or at any sessions, duly to execute the
office of a conservator, that is, that he will kill no
salmon, or breed of salmon, within the fence days
aforesaid, or in any other manner contrary to the
provisions of this Act by any means whatever, nor
suffer others to do it, as far as he lawfully may or
can ; and that he will, to the best of his ability,
judgment, and diligence, use all means to detect
such as do, and will immediately give information
thereof to some magistrate of such offender, and
that he will view all rivers, rivulets, and branches
thereof^ within his district or place of appointment,
and make an immediate report to some magistrate
of all or any obstructions in such rivers, either by
weirs, gratings, want of waste hutches, fenders in
mill dams and streams, or any other unlawful means
whatever, which may impede or prevent the passage
and repassage of such salmon or salmon spawn, or
shed or fish of the salmon kind, or any other un-
lawful device which may prejudice or injure the
salmon fisheries.* And be it further enacted, that
such conservator, though he inform against the vio-
lation of this Act, may nevertheless be allowed to
give evidence before any magistrate, or in any
court of sessions or law, and that such magistrates

* There is scarcely a river in the country where there are
not some unlawful erections, prejudicial to the breed of
salmon. — I have heard of several, where traps, as they are
called, are placed directly across rivers, so as to catch every
fish that goes up and down. — This question has already been
much discussed.

13

ON THE CHANNEL-FISHERIES. 79

may convict any offender against this Act on the
oath of one credible witness. And be it further
enacted, that either on the report of such conser-
vator, or on the mere motion of the said magistrates,
it shall be lawful for any three magistrates assem-
bling and acting together, to take a view of such
rivers and branches thereof, and if they find any
impediments therein which prevent the free passage
of such salmon and fish, such gratings at fish coops,
or at mill leats, or any weir so constructed and
without an escape for the salmon and fish, so as
that such salmon and fish cannot pass and repass,
or that any weir or fish coop or other device is so
constructed as such magistrates shall deem and con-
sider improper and injurious to such salmon fishery
and fisheries, by not being passable and repassable,
it shall and may be lawful for such magistrates to
give notice in writing to the person or persons
claiming such weir or other obstructions as afore-
said, to remove the same within one month from
the delivery of such notice, and to amend such weir
in such way with an escape therein, and to remove
such obstructions* as will enable such salmon and

* In the preamble of the statute of 4th Anne, c. 21. which
only relates to the rivers of Southampton and Wilts, it is stated
that, " Whereas the owners or occupiers of the salmon fisheries
" regarding only their own private and greedy profit to destroy
" the stock of the fisheries, by preventing the breed of good
" fish to pass in season through their fishing wyres and fishing
" hatchways from the sea into the rivers to spawn, and by
•' killing such as are under size, and by fishing continually out
" of season at and in the said fishing wyres and creekes of the

80 ON1 THE CHANNEL-FISHERIES.

other fish to pass and repass, as such magistrates
shall think proper, and in default of such amend-
ment or removal, agreeable to such notice, that
such magistrates will, and they are hereby autho-
rized to amend, alter, and remove or abate, or order
to be removed, altered, or abated, the same, with-
out being answerable for any damages or conse-
quences that may follow such amendment, alter-
ation, removal, or abatement ; and if such magis-
trates have any doubt as to the person or persons
who may be the proprietors of such weirs or ob-
structions, that it shall be lawful for such magis-
trates to affix such written notice on any public
place in the market town near such weir or ob-
struction, which shall be deemed and taken as
effectual as if such notice had been delivered to
such proprietor or proprietors.

And whereas, as it is truly expressed in the
statute of. the first of Elizabeth, " That in divers
" places they feed swine and dogs with the fry and
" spawn offish, and otherwise, lamentable and hor-
" rible to be related, destroy the same, to the great
" hindrance and decay of the commonwealth;" so

" rivers with nets and other devices, whereby not only the
« increase of the species of the said fish, but also die growth
" thereof is in a great measure destroyed." — This is exactly
the fact throughout the kingdom, and I can see no reason why
the other counties, particularly Devon, where there are such
excellent and numerous rivers for the increase of the salmon
fisheries, should not have the same benefits as are given to
Southampton and Wilts by the statute of Anne.

ON THE CHANNEL-FISHERIES. 81

the same practice, with more or less atrocity, conti-
nues to the present time ; be it therefore further
enacted, that whoever shall be convicted by the oath
of one credible witness, of catching, taking, or de-
stroying by any ways or means whatever (except
angling with rod and line) any young salmon, shed,
or spawn of salmon, in their passage down the rivers
to the sea, shall forfeit and pay the sum of 20/. for
the first offence, 501. for the second offence, and
commitment to hard labour ; and for the third
offence, the like penalty, whipping, and commit-
ment to hard labour for one year. And if any
miller or other persons having the command or
controul of any mill-leat, fulling or tocking leat,
paper-mill or other leat, or artificial stream of any
denomination whatever, shall put or place, or
cause to be put or placed, or continue so put or
placed, any net or basket, or other thing, device
or contrivance, having the effect of such net or
basket, at his mill tail, or by the side thereof,
or at any other place under any other name, that
shall catch, take, or destroy, or have the effect
of catching, taking, or destroying the said salmon,
spawn, shed, or fry, shall forfeit and pay the sum
of 100/. for every offence ; that is, for every time
such net, basket, or other thing, shall be so used. —
And be it further enacted, that such magistrates
shall order all such nets, baskets, or other things,
contrivances or devices for the purposes aforesaid,
to be immediately removed, abated and destroyed.
— And, that there shall be, and in case that there

82 ON THE CHANNEL-FISHERIES.

is not, that three magistrates shall have the power
to order or cause to be ordered or made, a waste
fender or outlet, for the salmon spawn or shed in
the season, when they descend into such mill-leats,
to pass uninterrupted and uninjured into the beds
of the rivers beneath, so that they may have free
access to the sea. — And that it shall be lawful for
any conservator to attend such mill-leats in the
season when the salmon spawn or shed descend the
rivers, and to draw such waste fenders three hours
a day, that is, one hour at a time, to let and suffer
such spawn to pass and escape from such mill-leats.
— And be it further enacted, that all owners and
occupiers of corn, fulling, paper, and other mills,
(and all other places where there be fenders) shall
constantly keep open one shutter, or small hole *
of a foot square, in the waste hatch, or water-
course, in the direct stream, for salmon to pass
and repass at all seasons of the year, and suffer
such fish to pass and repass without being taken
or injured, under the penalty of 20/. And such
miller or other persons shall, during the salmon
spawning season aforesaid, every night, at least
six hours, draw such waste fender, so that all such
spawn or shed, as well as the back salmon or spent
fish, may pass into the open river beneath, and

* By the statute of Ann, this waste fender is expressly or-
dered to be of a foot square ; but then, as is before observed,
it only applies to Southampton and Wilts — perhaps every one
will think it should be made general.

ON THE CHANNEL-FISHERIES. 83

from thence into the sea. — And be it further
enacted, that all millers and others using mills of
any description shall place stakes or gratings before
the channel leading to their several mill-wheels of
the closeness of one inch, in order to prevent the
back fish and spent salmon from getting under
mill-wheels and being crushed to death, which is
a circumstance that often happens for want of such
grating, to the great detriment of the public inte^-
rest. And any magistrate is hereby empowered to
order such gratings to be put down as aforesaid,
and the party neglecting so to do, after such order,
shall forfeit and pay the sum of 5L, and shall repair
the same from time to time, as it becomes neces-
sary. And such magistrates shall, if they think
proper, also order * gratings to be put and placed
at the commencement of every mill-leat ; or where
the same branches off from any natural stream, or
at any other more convenient situation, a grating
of the closeness of one inch, for the purpose of
preventing the back, old, or spent fish, from passing
into such mill-leat ; and shall order a waste scuttle
or hutch of a foot square to be constantly kept

•* I am credibly informed, that On all the small streams
every back fish is destroyed — that not one escapes. This is
principally owing to a want of gratings to keep the fish from
the mill-leats. A few may escape if they keep to the rivers ;
but if they get into the mill-leats, it is impossible. The fish
hunters are as expert in finding a salmon, as the poachers are
in finding a hare; and, if a fish is once discovered, he is cer-
tainly killed.

* G 2

84* ON THE CHANNEL-FISHERIES.

open to enable such fish to escape into the natural
stream, except at such times as there may be a
scarcity of water, for the use of such mills, when
such magistrates shall have power, and they are
hereby authorised to order such scuttle or hutch
to be shut up, or kept open, when and for so many
hours per day as they shall think proper.

And whereas a most wicked, detrimental, and
malicious * practice is often used, for the purpose
of destroying fish, not only salmon, but every
other kind of fresh- water fish, by hot or quick
lime, and other deleterious drugs and materials,
but more particularly by quick lime, which when
slaked in water is well known to destroy every
species offish ; — be it therefore enacted, that if any
person or persons shall wilfully throw, put, or place
any such quick lime into any river for the purpose
aforesaid, he, she, or they shall be guilty of felony,
and transported for seven years ^ and if any other
filth, material, or dung, green lint, or flax, the
letting off water impregnated therewith, or any
other thing whatever which shall be deemed pre-
judicial to the said fisheries, the same shall be
considered as a public nuisance, and indicted,
abated, or punished by fine and imprisonment,
according to the discretion of the sessions, and to
the degree, and nature of the offence.

* If this were ever practised it would be a crime deserving
the most severe punishment. Whether practised or not it may
as well be provided against.

ON THE CHANNEL-FISHERIES. 85

And whereas sundry idle and disorderly persons,
in defiance of all law and the authority of the civil
magistrate, make a practice of destroying salmon
by night * chiefly in the winter season, and during
the fence days, and when they are unseasonable
and unwholesome, by various arts and devices, but
principally by spears, first attracting the salmon by
means of lights and fires to certain spots convenient
for their purposes, where a large white stone or
board painted white is placed at the bottom, and
when part of such stone or board is covered by a
salmon drawn thither by the said light, which is
easily perceived, such salmon is struck by a barbed
spear and caught, or destroyed ; — be it therefore
enacted, that if any person or persons shall be
detected in hunting or searching for, injuring, kill-
ing, or attempting to injure, or kill, with the spear,
as aforesaid, any salmon during the fence days

* It is a perfectly well known fact, that not only salmon, but
other fish, can be attracted to particular spots at night by lights,
and can be more numerously and effectually destroyed by
night than by day, as I have been assured by a very experi-
enced sportsman at this sort of work ; by day the fish can see
and hide himself from his pursuer, but by night he is allured to
his own destruction by the light. As there is also a much greater
difficulty in detecting the offender in his nocturnal depreda-
tions than if he acted in open day, the salmon should be put
under the protection of the law, by an extraordinary severity
of punishment, upon the same principle as goods, wares, and
merchandise exposed by night, are protected by law, because
they cannot be protected by their owners. — Light has the
same effect upon sea-fish as it has upon the river fish*

G 3

86 ON THE CHANNEL-FISHERIES.

aforesaid, by night,* that is, after sun set and
before sun rise, he, she, or they shall be guilty of
felony, and subject to transportation for seven
years, committed accordingly without bail or main-
prize ; and if any person or persons shall strike at,
or kill any salmon, with a spear, by night or day
at any other season of the year than the fence days,
or by day during the fence days, shall forfeit and
pay the sum of 507. ; and for the second and third
offences as before. — And be it further enacted,
that on information being given to any magistrate
by a conservator or other, of any person or persons
whomsoever, having in his, her, or their possession,
unseasonable salmon, or any salmon caught during
such time as the rivers shall be in defence, or parts
of such salmon, it shall be lawful for any magis-
trate to grant a warrant or warrants to search the
house and premises of such suspected person, and
to seize and take all unseasonable fish, and parts
of fish, whether salmon or trough, and the person
or persons in whose possession, house or premises,
the same shall be found (the same having been
placed there with their knowledge and permission)
shall forfeit and pay the sum of 20/. And if any
doubt or question shall arise, as to the tmseason-

* To such extent is this practice of spearing by night car-
ried, that nothing but a very strong measure will put an end
to it. I have been informed that there is a gang of fourteen
fellows in one parish, convenient for this work, who do nothing
else, and with the most horrid iriiprecations threaten the life
of any man who interferes with them.

ON THE CHANNEL-FISHERIES. 87

ableness of such fish, or the lawful property or
possession thereof, it is hereby declared that all
such salmon shall be deemed and considered un-
seasonable and unsizeable, unless the person or
persons in whose possession such salmon or parts
of salmon are found, can prove that he or they
came lawfully by the same, and particularly not
by spearing.

And it shall be in like manner also lawful for
any conservator to search for and seize all such
spears as are calculated for, or used for, the de-
struction of Salmon, commonly called Salmon
spears ; and any person or persons in whose posses-
sion or on whose person such spear shall be found,
shall forfeit and pay the sum of ten pounds (whe-
ther the manufacturer of such spear or any other) ;
it being the practice of such Salmon poachers, in
order to avoid suspicion, to carry the spear in their
pockets, and to cut down a young tree or sapling
for a pole to screw into such spear, as soon as they
discover a Salmon. And that it shall be lawful
for any conservator to search any suspected cha-
racter, prowling about * by the banks of rivers, for
such spears and seize the same. And further, that if
any person or persons shall be detected during the
fence days by the side or bank of any river, or near
thereunto, or in the neighbourhood thereof by night >

* It is impossible to detect the night poachers without such
a power, and unless this night work is put an end to, neither
this act nor any other will effect that public good which it
otherwise might.

G-4

88 ON THE CHANNEL-FISHERIES.

that is, between sun set and sun rise, with Ian thorn
or lanthorns, having a light therein, or other fire
or fires, for the purpose of attracting or decoying
salmon contrary to the true intent and meaning of
this act, he, she, or they may be seized, and shall
be committed to the gaol of the county where de-
tected or taken, without bail or mainprize. And
on conviction of the offender or offenders last
aforesaid (having regard to the character of such
offender or offenders) by the magistrates aforesaid
in session assembled, he, she, or they shall be trans-
ported for seven years beyond the seas. And it
shall be lawful for any magistrate, on information
of the offence aforesaid, to issue his warrant for the
apprehension of such offender or offenders. And
it shall and may be lawful for any person or persons
whomsoever without warrant, to seize and detain,
and carry before a magistrate, any person or per-
sons using such lights by night, at suspicious places
by rivers, for the destruction of salmon as last
aforesaid, or any other suspicious character, and
take them before a magistrate to be dealt with ac-
cording to the provisions of this act.

And whereas after the fence days are expired,
and the season commences for taking salmon and
other fish of the salmon kind, it frequently happens
and cannot be avoided that unseasonable fish com-
monly called old, back, or spent fish (as well male
as female) being fish that have spawned with their
keepers, are taken in nets ; but as such unseason-
able fish are unwholesome food until they have

ON THE CHANNEL-FISHERIES. 89

been into and returned from the sea, — be it en-
acted, that all such old salmon shall be immediately
liberated as soon as taken from such nets, and put
back into the open river without being killed or
injured. And any person or persons having such
old fish in his, her, or their possession, or exposing
the same for sale, shall forfeit and pay the sum of
twenty pounds, and the same may be seized and
publicly burnt. And carts, waggons, and ware-
houses may be searched, and if any such unseason-
able fish or salmon are found packed up with good
seasonable fish, the whole shall be seized and sold
for the benefit of the poor where seized. And be
it further enacted, that if any person or persons in
drawing for salmon, shall inadvertently and un-
avoidably by nets or seins, take and catch any
salmon spawn or shed,* without throwing back the
same immediately into the water, he or they shall
forfeit and pay the sum of one pound for every such
salmon spawn so caught and kept.

And whereas the mesh of nets now used in the
salmon fisheries is not only contrary to an existing
law, but so small as to be destructive of the breed
of salmon, and the salmon fisheries, by catching and
destroying unsizeable fish, — be it therefore fur-
ther enacted, that no nets shall be used for the
taking of salmon unless the mesh of such nets in
and throughout shall be two inches and half broad

* This should never happen, because the lawful mesh for
taking sizeable salmon will always enable the spawn to escape.
However it is as well to provide against it.

90 ON THE CHANNEL-FISHERIES.

from knot to knot;* and all fishermen and others
having, possessing, or using any net or nets for the
taking of salmon with a mesh less than before men-
tioned, shall forfeit and pay the sum of twenty
pounds, together with the loss of such nets, which
shall be seized by any conservator, or other order
of any magistrate, and publicly burnt.

And whereas all such salmon and fish of the sal-
mon kind, or the greatest part of them, as ascend
or get into rivulets and small streams,! either from

* The fishermen very well know what is meant by a mesh of
two inches from knot to knot, though some, from selfish pur-
poses, have endeavoured to quibble about it ; they call it dia-
mond fashion, that is, the measure is to take place from knot
to knot, when the mesh is stretched out in the form of a dia-
mond or four square.

f This is an evil of a much greater magnitude than may be
supposed, and there is no law whatever to prevent it ; for from
the impediments which the fish meet with in their efforts to
ascend the principal rivers, from weirs and close gratings,
coops and hutches, and other devices, they force themselves
in time of flood into any little stream which lies open, not de-
serving a better name than a gutter ; and when such floods
abate and these little streams return to their ordinary size,
every fish is inevitably destroyed ; for when once they are dis-
covered it is impossible they can escape, and it very rarely
happens that they can elude the perseverance and skill of the
salmon hunter, either man or otter. I could mention several
extraordinary but well authenticated instances of salmon taking
refuge in these little paltry streams in the last season, in con-
sequence, as is inferred, of being prevented by the Totnes
weir from going up the Dart. A most unusual number of sal-
mon in the last season also went up the river Harbourne (a
branch of the Dart, about three miles below Totnes, which has

20

ON THE CHANNEL-FISHERIES. 91

necessity, accident, or natural inclination, are, from
the narrowness of such rivulets and streams, and

its source between South Brent and Dean Prior, flowing
through Rattery, Harberton, and Ashprington, and thence into
the Dart by Cornworthy) ; the greatest part of these, if not the
whole, were destroyed by those nocturnal depredators the
spearmen. I have been assured, that on this little stream,
more than two hundred unseasonable salmon were speared in
the autumn of 1819, having entered it for the purpose of
spawning ; they were consequently of scarce any value, if not
absolutely unwholesome. Thus but little profit accrued to the
poacher, whilst the whole of the increase that would have
arisen from them was lost to the public, instead of yielding
them as formerly, (and as it would do again were the subject
properly attended to,) wholesome salmon at the moderate price
at which, not many years since, it might be bought ; for many
can recollect when salmon sold for three halfpence per pound.
Farther, there are on this rivulet, the Harbourne, from New
Bridge to Brent, Harberton Ford (a space not exceeding eight
miles), nine mills, if not more, every leat to which is a trap for
the destruction of the fish, so that if a few by a miracle escape
the spear, they must perish, or be taken at the mill-leat. It is
generally supposed that the greater part of the fish above men-
tioned, in consequence of not being able to surmount the im-
passable Totnes weir, returning down the Dart, and finding an
opening in this collateral rivulet, entered it, and were conse-
quently all destroyed. Hence, then, the necessity of a power
in the magistracy, after all improper obstructions are removed,
to order the best means which they can devise, to shut out the
fish from all such diminutive streams, and keep them in the
large rivers where they cannot be so easily destroyed. I know
where there are two salmon, a male and female, at the moment
at which I write, in a stream so small that a man can step
across it. Should they be discovered, their fate is inevitable.
It is not meant that this power is to exclude the fish from small
streams and to operate to the prejudice of any right of fishery,

92 ON THE CHANNEL-FISHERIES.

the small quantity of water therein, as well as from
the number of mills which are generally erected on
such rivulets and small streams, exposed to certain
destruction, by the facility thereby afforded to
poachers, who use the spear and other unlawful
means for the taking such fish, and the young of
such fish as happen not to be killed before they
have spawned, are also all or the greatest part of
them taken or destroyed at mill-tails and in mill-
leats, and produce no increase to the public stock.
It is therefore expedient that the evil last before
stated should,- as far as possible, be remedied by the
said fish being shut out or kept from such rivulets
and small streams, and kept in the main and prin-
cipal rivers where they can find better shelter and
protection. Be it therefore enacted by the author-
ity aforesaid, that the magistrates aforesaid in ses-
sions assembled, shall have power to enquire into
the state, condition, and aptitude of all such rivu-
lets and streams, and collateral branches of rivers,
and to determine whether they or any, and which
of them, are fit and proper, and of sufficient mag-
nitude for the breed and protection of the said fish,
and shall have further power to erect or order, or

if such exist, in the proper season, when they may be taken at
all places by legal and proper means ; but only to prevent their
being destroyed at unseasonable times during the fence days,
when they ought not to be molested by any person, by any
means, or at any place It therefore appears to me that there
cannot be any well-grounded objection to this clause, designed
as it is for the benefit of all and the prejudice of none.

ON THE CHANNEL-FISHERIES." 93

cause to be erected or ordered, any grating, weir,
or such other means as they shall think proper, at
such place and places, at such season, and for such
length of time (during the fence days only, when
salmon go up the rivers to spawn) as they shall
deem expedient, to prevent such fish from getting
into such rivulets and small streams. Such erec-
tions or contrivances for the purposes aforesaid,
being constructed and managed so as to do no in-
jury, or as little as possible, to the lands adjoin-
ing. — And if any person or persons shall remove,
destroy, or injure such erection or means as afore-
said, so put up by order of the said magistrates, he,
she, or they shall forfeit and pay the sum of 50L
to be recovered in manner as hereinafter ex-
pressed.*

And whereas it is a very common practice for
fishermen to fasten nets across rivers, or to hold
them in their hands at each end thereof for a con-
siderable time, after such nets are shot, and before
they are drawn, contrary to the letter and spirit of

* There ought also to be a handsome reward for the de-
struction of otters, as these animals make sad havoc among the
salmon in the breeding season. So do also porpoises; — it
is highly desirable that some method could be devised for
taking them, and I think a net might be so constructed as to
answer the purpose. I have known porpoises taken even
in the herring nets ; and if so, they might easily be taken in
great numbers in nets made and constructed for the purpose,
and their oil would richly repay the fishermen. This fish being
of the cetaceous genus is soon drowned when once ensnared in
a net.

94. ON THE CHANNEL-FISHERIES.

the 2d Hen. 6th, c. 15. Be it therefore enacted,
that the said act of the 2d Henry 6th, c. 15, shall
stand in full force as if here further recited, and in
addition thereto or explanation thereof, be it fur-
ther enacted, that no such net or nets, shot as
aforesaid into or across any river or rivers, for the
purpose of taking salmon, or fish of the salmon kind,
shall remain stationary at all, either in the hand or
fixed to any thing whatever ;* but the same net or
nets so shot into the water for the purposes afore-
said, shall constantly be kept in the regular or
ordinary motion or act of drawing, without stop-
ping at all from the shooting of such net or nets
until the drawing thereof to shore ; and any per-
son or persons so offending against this act in the
last mentioned respect, or against the said recited
act of Henry 6th, and shall thereof be convicted by

* The statute of Henry 6th proves this to be a very old
practice, which is greedy in itself and hurtful to another's right
of fishery ; it however continues to the present day. Thus
the more we investigate this painful subject, and find out all the
abuses and villanies that are practised upon it, we are almost lost
in wonder, that there should be such a fish as a salmon in exist-
ence. They seem to be practised in all quarters, and by all per-
sons, high, loiv, rich, andpoor; — to have engaged all the qualities
of the human mind, except its wisdom, and all the propensities
of the human heart, except its goodness. Ingenuity itself
seems to have been tortured to find out expedients for erasing
this valuable fish out of the book of nature. — The penalty, too,
under the statute of Henry 6th, is not practically recoverable ;
it is therefore necessary, that such penalty should be placed
upon the same footing as the other penalties of this act, that is
to say, made recoverable before the magistrates.

ON THE CHANNEL-FISHERIES. 95

the oath of one witness, shall forfeit and pay the
sum of 51. for every such offence, to be reco-
vered and applied in manner as hereinafter men-
tioned.

And whereas by an act passed in the 13 and 14
Charles 2d. c. 28., entitled an act for the regulation
of the Pilchard Fishery in the counties of Devon
and Cornwall, after reciting therein, that the pub-
lic honour, wealth, and safety of the realm, as well
in the maintenance of trade and support of navi-
gation, as in many other respects, do in an high
degree depend upon the improvement and encou-
ragement of the fishery ; and that for as much as
of late years there have divers pernicious disorders
and abuses, by the licentiousness of the times,
crept in, and yet continue evidently destructive to
that trade, for prevention and redress whereof there
was no law hitherto particularly provided for the
growing evils occasioned by driving nets and other
fraudulent and injurious practices, to the extreme
damage of the fishery ; it was enacted, that after
the 20th of May, 1662, no person should in any
"year, from the first of June to the last of December,
presume to take fish in the high sea, or in any bay,
pool, creek, or coast, of or belonging to Devon or
Cornwall, with any drill-net, trammel, or stream-
net, or any other net of that sort or kind, unless
it were at the distance of one league and half at
least from the respective shores, upon the penalty
of the forfeiture of the nets so employed, or the

96 ON THE CHANNEL-FISHERIES.

full value thereof, and one month's imprisonment
without bail or mainprize.

And whereas the salutary provisions of the said
recited act* are totally disregarded, by the fisher-

* This I know to be a fact, for when the herring and pil-
chard fishermen have encircled large shoals of this sort of fish
and mackarel in their seine nets within half or a quarter of a
mile from the shore, the trawlers have purposely dashed in
among their nets, and broken them to pieces, and permitted all
the fish to escape. Now the reason assigned for this extraor-
dinary conduct is curious enough, but I have been respectably
informed that it is the true reason ; namely, that the taking of
mackarel, herring, and pilchard, prejudices what is caught by
the sale of the trawlers, which is chiefly confined to the better
sorts of flat fish. I say, I know this to be a fact, because I once
knew of an information at the suit of the king's attorney -general
for this very offence, and in that information it was sworn to as a
very common practice, and that the trawlers, to avoid detection,
would cover the names of their vessels on the stern, and would
threaten to run down any boat which should come near them.
The expence of this information was considerable, and such as
no man will incur a second time. It is therefore necessary, if
government wish to give the country the benefit of this act, to
give at the same time a more effectual way of putting it in
force than by the necessity of having communication with
the attorney-general, who in his professional capacity is a gen-
tleman equally to be dreaded either as friend or foe. It is
impossible that the sea-fish can ever be plentiful whilst these
trawlers are allowed, with their small-mesh nets, to fish close
upon the shore ; and the injury which they do to themselves
and the public is incalculable, for the reasons before assigned.
An owner of a fishing smack this day (27th May, 1820,) told
me, that the fishery was ruined by what he called the bay
Jishery, that is, by fishing so near the coast in the bays and
creeks, and by the twelve feet nets : and added, that it was to
be lamented the practice was not put an end to. But I say, that

ON THE CHANNEL-FISHERIES. 97

men using trammel or trawl-nets, either by means
of the great costs and difficulty of prosecuting upon
the said recited act, or by other means ; but such
fishermen cast their trammel or trawl-nets so near
the shore as they think proper, contrary to the let-
ter and spirit of the said recited act, in the bays,
creeks, and coasts of the said counties, and to the
very great and manifest prejudice of the pilchard,
herring, and other fisheries on the said coasts j
the nets of which are broken to pieces or other-
wise injured by the said trawl-nets, as well as to
the very great injury and destruction of the fry and
breed of sea fish in general ; be it therefore en-
acted, that from and after the passing of this act,
if any person or persons shall in any year from the
1st of June to the last of December, presume to
take any fish in the high sea, or in any bay, pool,
creek, or coast of or belonging to Devon or Corn-
wall, with any drift-net, trammel, trawl, or stream-
net or nets, or any other net or nets of that
sort or kind, unless it be at the distance of one
league and a half at least from the respective
shores, shall, upon every such fishing within such
distance of the said coast, as allowed to be proved by
the oaths of two credible witnesses, forfeit and pay

though this conduct is unlawful and the effect of it is personally
prejudicial, it cannot be put an end to, because the remedy is
practically unattainable. Let it then be asked whether such a
public mischief should be without an effectual redress ? Who
is to prosecute through the attorney-general? — the idea is
quite absurd.

H

98 ON THE CHANNEL -FISHERIES.

the sum of 501. for the first offence, together with
the nets so unlawfully employed, or the value there-
of; 100/. for the second offence, together with the
forfeiture of such nets ; and the like penalty of
100/. for the third offence, with the forfeiture of
the fishing vessel so using such nets, and all her
tackle, gear, and appurtenances, and one year's
imprisonment of the offending party, being the
commander of such vessel, without bail or main-
prize. And the money arising from such forfeitures,
either of the said sums of money, or the sale of such
nets and vessels, shall be recovered, paid, applied,
and disposed of as hereafter mentioned. And be it
further enacted, that if the fact of distance aforesaid
shall not be clearly proved to the satisfaction of the
jury impanneled to try the same, under the direction
of such magistrates as in other trials for offences, or
if there be any nicety in the calculation or ascer-
taining such distances, or if it be shewn that such
fishermen were not aware that they were fishing
within the distance aforesaid or contrary to any
notice or warning such fishermen might have re-
ceived to that effect ; or that he or they did not
intend wilfully to infringe the provisions of this
act, it shall and may be lawful to and for such
jury, under the directions of such magistrates in
sessions aforesaid, not only to mitigate the penal-
ties last aforesaid, to any sum the said court and
jury sworn shall think proper, but altogether to
relinquish and discharge the same. And as upon
some occasions difficulties may arise respect-

18

ON THE CHANNEL-FISHERIES. 99

ing the clear proof of the distance of vessels from
the coast or shore, it shall and may be lawful for
such magistrate in sessions assembled (if they shall
think proper) to receive the testimony on oath of
the persons on board such vessels, and to require
the same, as to the distance of such vessels from
the shore or coast, and to judge thereof as they
shall think the same deserving of credit.

And whereas, by an act passed in the 1st Geo. 1.
c. 28, entitled an act (among other things) for
the preservation of the fry ofjish. After reciting
that of late years, the( breed and fry of sea-fish
have been greatly prejudiced and destroyed by the
mesh of nets of too small size or mesh, and by
other unwarrantable and illegal practices ; — it was
enacted, that from and after a day therein men-
tioned, if any person or persons should use at sea
upon the coast of England, any trawl-nets, drag-
net or nets, or any net whatsoever, for the catch-
ing of any kind of fish (except herrings, pilchards,
sprats, or lavidnian), which hath any mesh or make
of less size than three inches and a half at least,
from knot to knot ; or which hath any false or
double bottom, or pouch, or shall put any net or
nets, though illegal size or mesh, upon or behind
the other, in order to catch and destroy the small
fish, which would have passed through any single
net of three inches and a half mesh; all and every
person and persons so offending shall forfeit all
and singular such net or nets so used, contrary to
the true intent and meaning thereof. And also

H 2

100 ON THE CHANNEL-FISHERIES.

for every such offence the sum of 20/., to be re-
covered and levied by distress and sale, as therein
mentioned. And the said act directed the said
penalties to be divided between the informer and the
poor ; and the said nets to be burnt. — And by the
seventh section of the said act, "Jbr the further
preservation of the said fry qfjish," it was enacted,
that if any person bring to shore in England, sell,
offer, or expose to sale, or exchange for goods, any
unsizeable fish, viz. : bret, turbot, brill, or pearl,
codlin, whiting, mullet, bass, plaice, soles, or
flounders, which shall not be of the several lengths
or sizes following, from the eyes to the utmost extent
of the tail, viz. : every bret or turbot, 16 inches ;
every brill or pearl, 14 inches ; every codlin, 12
inches ; every whiting, six inches ; every bass and
mullet, 12 inches ; every sole, eight inches ; every
plaice or dab, eight inches ; and every flounder,
seven inches ; every person so offending shall for-
feit such unsizeable fish so brought on shore, sold,
offered, or exposed to sale, or exchanged &§ aforesaid,
as in the said act mentioned, together with the
sum of 20^., to be levied as therein mentioned;
and, in default of payment, to be sent to the com-
mon gaol of the county, there to be severely whipt
and kept to hard labour for six days, and not longer
than fourteen days."*

* This act, as has been already observed, was passed to preserve
the fry o/Jish ; and yet, without incurring its penalties, the fry of
fish are destroyed with the most unbounded latitude. The fisher-
men should be prohibited from keeping such unsizeable fish,

ON THE CHANNEL-FISHERIES. 101

And whereas the said recited statute is so much
disregarded and set at nought, as if no such law
existed, either from the difficulty of proving of-
fences committed under the same, or other causes,
the trawl fishermen using nets of a mesh so small
as to destroy innumerable quantities of fry and
unsizeable fish, which are either consumed by such
fishermen for their own private use, as not being
saleable ; or thrown into the sea as altogether use-
less, instead of fishing with nets of a mesh of three
inches and half, according to the directions of the
said last recited act, which would enable the
small and unsizeable fish to escape unhurt. Be it
therefore enacted, &c., in addition to the said last
recited act, that if any person or persons shall
wilfully take, kill, or destroy, at any time or place
whatever, any of the before named fish under the
size before mentioned, with any net whatsoever,
and shall not throw back into the sea again all and
every such unsizeable fish which may be acci-
dentally or unavoidably taken, he, she, or they,
shall forfeit or pay the sum of 61. for every time
such net shall be drawn, either on shore or on
board such vessel. And be it further enacted, that

and as far as possible from catching them, — and if the use of
the legal net were enforced,-it is not likely that many unsizeable
fish would be taken. As it is not possible for the motions and
actions of these trawlers to be watched when at sea, there is no
rational way of preventing it, than by seeing that they possess
no unlawful nets, and making their vessels subject to search
and seizure/

H 3

102 ON THE CHANNEL-FISHERIES.

if any person or persons shall have in his, her, or
their possession, or on board any vessel or vessels
belonging to him, her, or them, whether com-
manded by the owner or any other person for him,
her, or them, such person or persons in whose pos-
session such unlawful net or nets, made contrary to
the said last recited act, shall be found, or the owner
thereof, or of such vessel, shall forfeit and pay the
.sum of 50/., together with the forfeiture of such
nets, which shall be burnt by order of such magis^
trates in sessions aforesaid after conviction. And
if such unlawful net or nets shall be found on
board any vessel whatever, after 20 days' public
notice of this, act shall be given by order of such
magistrates in the market or other common places
of every fishing town upon the coast of Devon and
Cornwall, the vessel and vessels on board of which
such nets shall be so found, shall be seized and
detained, forfeited, sold, and disposed of, as here-
after mentioned. And be it further enacted, that
an information on oath being given to any magis-
trate, by a conservator appointed under this act,
of the place or places, vessel or vessels, where such
illegal net or nets may be suspected to be de-
posited or secreted, it shall and may be lawful, and
any magistrate is hereby commanded to issue his
warrant or warrants to the constables of the parish
where such illegal nets are suspected to be, or to
any conservator or conservators appointed under
this act, and which constables or conservators are
hereby authorized to take any person or persons to

ON THE CHANNEL-FISHERIES. 103

his or their assistance, and to make search for and
seize such nets on board such vessels or else-
where, either at sea or elsewhere, as well as such
net or nets, either in part or in whole as shall be
found therein, and to secure and dispose of the
same as such court of sessions may direct; and any
person or persons rescuing or attempting to res-
cue after the seizure thereof^ either by force or
fraud, such net or nets, or vessel or vessels, shall
be guilty of felony, and transported for seven
years ; and any person or persons refusing to per-
mit such peace-officer or officers, or conservator or
conservators, to search his, her, or their vessel or
vessels, either on shore or at sea, for such unlawful
net or nets, after producing the warrant from such
magistrate, or shall obstruct such peace-officer or
any officer or conservator appointed under this act,
either relating to the salmon fisheries, or otherwise in
the execution of his duty, he, she, or they shall forfeit
the register of the said vessel or vessels, so refused
to be searched, and such vessel or vessels, by order
of the collector of the customs of the port to which
such vessel belongs, shall not be allowed to go to
sea without being liable to seizure, as contraband
or seizable property, until the owner or commander
of such vessel shall have delivered up such unlaw-
ful net or nets, if he or they have any such, and shall
have given security to such collector of customs not
to violate or disobey this act, for the time then to
come, and shall also enter into recognizance with two
sufficient sureties, to answer and make amends for any

H 4

104 ON THE CHANNEL-FISHERIES.

outrage committed on or injury done to such peace-
officer or officers or conservator in the execution of
his or their duty under this act ; and shall forfeit the
sum of 20/. for such obstruction on any conservator.
And be it further enacted, that after notice of this
act shall be given to any maker or manufacturer of
fishing nets, if he, she, or they shall make or ma-
nufacture any trawl net or nets with a mesh contrary
to the said last recited statute, or any other net or
nets contrary thereto, or the same net or nets in
part or entire, can or shall be found in his, her, or their
possession, or on his, her, or their premises, or at any
other place within his, her, or their knowledge, after
such notice as aforesaid, he, she, or they, shall forfeit
and pay the sum of 501. for the first offence, and
100/. for every other offence, to be levied, seized,
and disposed of after conviction, by the court of
sessions aforesaid, as hereafter mentioned, together
with the said nets, which shall be publicly burnt
by order of the magistrates in sessions aforesaid.
And be it further enacted, that nothing contained
in this act shall extend, or be deemed or construed
either to legalize any fish-hook, coop, bay, or other
.work which shall have been erected, put, placed,
fixed, or used in any such arm of the sea, or
estuary or mouth of any river, or in, or upon any
bank, sand, or shore thereof, or near thereto, or in
or near any river, rivulet, brook, stream, pond,
pool, lead-mill, dam, sluice, or cut which runs into,
or otherwise communicates therewith, or to the
present modes or methods used for taking and

ON THE CHANNEL-FISHERIES. 105

killing fish therein, other than, and as are in this
act particularly prohibited ; nor to take away the
right of angling with rod and line, nor to affect
any right of fishing by grant or prescription in any
individual or body corporate, nor to demolish, take
away, or destroy such fish-hook, coop, or other
work ; but the legality or illegality thereof shall
stand and continue the same, as if this act had
never been passed, any thing herein contained to
the contrary notwithstanding.* And be it further
enacted, that the magistrates in sessions aforesaid,
shall have power to appoint such and so many
other conservators, when, where, and as often as
they may think proper, who shall be sworn duly to
execute the office of conservator, and to give in-
formation to some magistrate of all and every viola-
tion of such part of this act as relates to the sea
fishery, in like manner as such conservators are
appointed for the preservation of the salmon fish-
eries, as may come to their respective knowledge,
and all prosecutions under this act shall be carried
on, and notices thereof given in the name or names
of such conservator or conservators, whose ex-
pences and loss of time shall be defrayed out of the
penalties to be recovered under this act, according
to the discretion and direction of such magistrates
in sessions aforesaid. And be it further enacted,
that all conservators appointed under this act, shall
and may in the exercise and performance of their

* This clause should be altogether omitted, and the act
should contain nothing but a reservation of private rights, such
as exist by grant or prescription.

106 ON THE CHANNEL-FISHERIES.

several duties, either by night or day, walk by
the banks and sides of rivers, or upon the sea
coast, upon any man's land, doing no wilful injury,
without being guilty of any wilful trespass, and
may pursue any suspicious persons who run from
him to any place whatsoever, without being guilty
of such trespass, though amends shall be made
for any actual injury done.

And be it further enacted, that all and every
the pecuniary and other penalties and forfeitures
by this act imposed, shall be sued for, recovered,
and adjudged, and every offence against this act
heard and determined (except as hereafter men-
tioned) by and before a jury of the county, where
such offence shall be committed, impanelled and
sworn (who shall be the judges of all matters of fact
herein contained) and the magistrates assembled
at the general quarter sessions for the county,
shire, division, city, or place, wherein any offender
against this act shall be or reside, by and upon the
oath of one or more credible witnesses (except as
aforesaid relating to vessels fishing within a league
of shore) or by the party or parties in like manner
as the said court of quarter sessions have been
accustomed and has a right to try, hear, and
determine, all and every other offence and
misdemeanour over which it has jurisdiction
and cognizance. And in case any person who
shall be convicted of any offence or offences against
this act, shall not within one month after such
conviction pay into the hands of the clerk of the

ON THE CHANNEL-FISHERIES.

peace of the county, where the same shall be tried,
the penalty or penalties, in which he, she, or they
shall have been so convicted, it shall be lawful for
the said court of quarter sessions by warrant, to order
any peace-officer to take charge oi\ and keep m
custody, any such person so convicted, and there-
by commit every such offender to the common gaol
or house of correction for the county or place for
the time hereinafter mentioned, unless such penalty
or penalties shall be sooner paid, or otherwise such
court of sessions may grant their warrant and war-
rants in due form of law, to levy and recover the
said penalty and penalties by distress and sale of
the offender's goods and chattels, after five days*
notice in writing that the same may be sold to the
greatest advantage. And all such penalties and
forfeitures to be paid or levied as aforesaid, shall
be paid, applied, and disposed of as follows : one
clear moiety thereof to the informer or informers,
and the other moiety, after defraying all costs,
charges, and expenses, to the poor of the parish
where such offence or offences shall have been
committed, or to the poor of any other parish near
thereunto, according to the discretion of the said
magistrates, and the overplus, if any, to be re-
turned to the owner of the goods distrained. And
in case sufficient distress or distresses shall not be
found, or such penalty or penalties shall not be
immediately paid, according to the judgment of
such court, the court aforesaid shall commit such
offender or offenders to such gaol or house of cor-

108 ON THE CHANNEL-FISHERIES.

rection as aforesaid, for any time not exceeding
four months, nor less than two months ; for the
second offence, any time not exceeding eight
months, nor less than six months; and for the
third offence, and every other offence, any time
not exceeding twelve months, nor less than eight
months ; there to be kept to hard labour, and to
be and remain without bail and mainprize, save
and except as aforesaid, when it is otherwise
directed by this act

And be it further enacted, that it shall and may
be lawful for any justice or justices upon informa-
tion being made to him or them upon oath, against
any person or persons who shall or may offend
against any thing contained in this act, to grant
his or their warrant or warrants, to apprehend any
person or persons so offending, and to cause such
offender or offenders to be brought before him or
them, and to enter into recognizance with two
sufficient sureties, to appear at the then next en-
suing quarter sessions of the county or place, there
to be dealt by according to law, and in default of
such sureties, such offender shall be committed to
the house of correction for the said county, unless
such justice shall think proper to take the recog-
nizance of the offending party alone, which he is
hereby authorized to do. And it shall and may be
lawful for such court on motion and proper cause
shewn, to adjourn the trial of any offence com-
mitted under this act, to the next following sessions,
if they think proper so to do.

ON THE CHANNEL-FISHERIES. 109

* And be it further enacted, that no owner,
farmer, or occupier, or any person otherwise em-
ployed in any fishing or right of fishing in any arm
of the sea, river, or other water whatever, shall be
deemed an incompetent witness to prove any of-
fence or offences done or committed against this
act, by reason of his, her, or their being such
owner, farmer, or occupier.

And be it further enacted, that every pecuniary
penalty and forfeiture imposed by this act, may be
sued for and recovered, together with the full costs
of suit, by and to the only proper use and behoof
of any person who shall inform or sue for the same,
in any of His Majesty's courts of record at West-
minster, by action of debt, bill, plaint, or informa-
tion, wherein no essoin, wager of law, nor more
than one imparlance shall be allowed. — And be it
further enacted, that no person who shall be con-
victed of any penalty under this act, shall be
prosecuted under any other for the same offence ;
and that all and every conviction and prosecution
under this act, shall be deemed and taken to be
final to all intents and purposes whatsoever. — And
be it further enacted, that no action at law shall
be brought against any magistrate or magistrates,
or other person or persons, for any thing done in
the execution of this act, until one calendar month

« I have continued this section more because it is in the
former act than because I think it necessary or proper.

110

ON THE CHANNEL-FISHERIES,

after notice thereof in writing shall have been
given to the person or persons against whom such
action shall be intended to be brought or left at
his, her, or their last or usual place or places of
abode or residence, setting forth the cause of such
action, and containing the name or place of abode
of the plaintiff or plaintiffs, and also of his or their
attorney, and that every action brought for any
thing done as aforesaid, shall be brought within the
space of three calendar months next after the cause
of action or complaint shall arise and shall be laid
and sued in the county, shire, city, or place, where
the fact shall have been committed and not else-
where, unless the offence shall be committed on
the sea, in which case it shall be laid in that
county opposite the coast of which or near unto
which the cause of action shall arise, and the de-
fendant or defendants therein may plead the general
issue, and give this act and the special matter in
evidence at any trial to be had thereupon, and
that the same was done by virtue thereof; and also
that it shall and may be lawful to and for such
person or persons at any time before action brought,
or after, by leave of the court where such action
shall be pending, to tender amends to the party
complaining, or his or their agent or attorney ; and
in case the same is not accepted, to plead such
tender in bar to the action, for the further prose-
cution thereof, together with the plea of not guilty,
and any other plea with the leave of the court.

ON THE CHANNEL-FISHERIES. Ill

And if on the trial of such action, it shall appear
that the same was brought before the expiration of
one calendar month next after such notice shall
have been so given or left as aforesaid, or after the
end of three months next after the cause thereof
shall have arisen, or if such action shall have been
brought or laid in any other county or place than
as aforesaid, or after sufficient tender of amends
shall have been made to the party or parties ag-
grieved, that then and in any of the cases aforesaid,
the jury shall find a verdict for and acquit the
defendant or defendants in such action ; or if
plaintiff or plaintiffs shall discontinue the same after
the defendant or defendants shall have appeared,
or shall be nonsuited ; and if upon demurrer judg-
ment shall be given against the plaintiff or plaintiffs,
the defendant or defendants in such action shall
have double costs, and have the like remedies for
recovering the same, as defendants have for reco-
vering their costs in other cases at law, and that
no action, suit, information or proceeding whatso-
ever shall be brought or commenced against any
person or persons for any offence or offences against
this act, unless the same shall be laid or com-
menced within six calendar months next after
every such offence or offences shall have been com-
mitted.

Provided always and be it further enacted, that
nothing herein contained shall extend to affect the
rights of any lord or lords, lady or ladies, and

ON THE CHANNEL-FISHERIES.

they are hereby required to appoint conservators
for the protection of any river or rivers, coast, bay,
or creek, within their respective manors. *

Provided such conservators are sworn duly to
execute that office as aforesaid.

Provided also, and it is hereby enacted, that
nothing in this act contained shall extend or be
construed to extend to prejudice or derogate from
the rights, interests, privileges, franchises, or au-
thority of any body or bodies politic, corporate, or
collegiate, or their successors, or to prohibit, de-
feat, alter, or diminish any power, authority, or
jurisdiction, which such body or bodies politic,
corporate, or collegiate, at the time of the passing
of this act, did or might lawfully claim, use, or
exercise in any river or rivers as aforesaid.

Provided also, and it is hereby further enacted
and declared, that nothing in this act contained,
shall extend or be construed to extend to prejudice
or derogate from the rights, interests, privileges,
franchises, or authority of the mayor and com-
monalty and citizens of the city of London, or
their successors, or the Lord Mayor of the said
city for the time being, or to prohibit, defeat,
alter, or diminish any power, authority, or juris-
diction, which at the time of the making this act,

* It is, however, proper that the sessions should have a concur-
rent and controuling power with lords of manors, otherwise,
through ignorance or obstinacy, this part of the act might be
rendered nugatory.

ON THE CHANNEL-FISHERIES.

113

the mayor and commonalty and citizens of the city
of London, or the Lord Mayor of the said city,
for the time being, as conservators of the river
Thames and waters of Medway, did or might law-
fully claim, use, or exercise.

114

CONCLUSION.

THE state of the salmon and channel fisheries is
now before the public, Every man, from the
prince to the poorest peasant, is interested in their
prosperity. But I will venture to affirm, that
though some good may be done by enforcing the
present defective laws, yet, unless the act which
I have drawn, and which, with the substance
of this work, was published three years ago
in the newspapers, or some such act, and as
much better an one as can be framed by any one
who will take the pains to do it, be passed, the
fisheries will never attain to that importance to
which they are entitled, nor produce the advan-
tages of which they are capable. There cannot be
a stronger proof of the truth of this remark, than
the wretched condition to which the fisheries, and
the salmon fisheries in particular, are reduced.
This is so notorious a fact that it cannot be
either denied or controverted. It follows then, that
the cause should be removed : and I think it must
appear that such cause is wholly artificial and
removable, and by no means physical and irre-
mediable. Let it never be forgotten, that whilst

CONCLUSION. 115

the deadly spear is suffered to " operate unseen,"
screened by the shades of night; and whilst
impervious weirs, small meshes * to nets, fish
locks, injudicious close times, and such other
unwarrantable contrivances as are already par-
ticularised, which obstruct the free passage of
the fish, are suffered to exist, this subject will
never present any thing but a forlorn hope. Ex-
clusively of the impolicy of such conduct, there
is something absolutely bordering upon brutality
in thus destroying the salmon, when they are out
of season and unwholesome ; when they seem to
court the protection of man by placing themselves
in his power ; and when, just about to shed their
roe, the destruction of one is the destruction of so
many thousands.

I am, however, given to understand, that I have
greatly overrated the produce of the salmon; it is
very possible ; but it signifies little to the ge-
neral question ; the bearing of which is, that a
most extensive abuse exists, and demands to be
corrected. It is not at all unlikely that there

* I have this very day, 26th August, seen the fishermen in
the Dart, between Totnes bridge and weir, "sweeping the
whole river with a net, the mesh of which was not an inch
broad. I took the net in my hand and examined it. How can the
fishery survive, thus abused ? Not a drop of water running over
Totnes weir, but the whole stream conducted into the mill-
leat. Such fish, great and small, as come up the river, are
stopped at the weir, and are there taken either in the lock or
by the small-mesh net.

116 CONCLUSION,

actually is a great difference in the fecundity of
different fish, arising from their nature, age, and
size, and, perhaps, from the season of the year.
But the estimate which I have made is founded on
a reported experiment. There may be great dif-
ficulty in fixing an average number of ova where
fish vary in size from 8 and 10 pounds to 60 and 70;
for it cannot be imagined that a small fish will
yield as many pea as a large one. About four
years ago I was very desirous of ascertaining this
fact, but no book could furnish the desired infor-
mation. At last, after much inquiry, I met with
a person who assured me, as I have already stated,
that he had counted a certain portion, and after-
wards, by weighing what remained, he judged the
whole to be 600,000.

There is no reasoning from analogy to other fish ;
us a proof of which we have only to refer to the pro-
duce of the sturgeon, the cod, and the crab. Even
the little herring has a roe containing 10,000 ova:
and it is said by Goldsmith, vol. ii. 410 — 415, that
the progeny of a single one, suffered to multiply
unmolested and undiminished for twenty years,
would become greater in bulk than ten such
globes as that we inhabit. Let us not wonder,
then, or think it at all extraordinary, that so
large a fish -as a salmon, of perhaps 20, 30, or
40 pounds, should produce so many pea. Yet it is
remarkable, that no author, in the history of this
.fish, that I could ever find, gives the amount by
experiment, or even ventures a. statement upon it.

CONCLUSION. 117

Whether, however, some produce 600; 000,- and
others only 5000 or 500, there can be no justification
•for their impolitic, and wanton destruction ; on the
contrary, the fewer the number, the greater the
reason why they should be more closely protected
and preserved.

The detail of the foregoing bill is open to every
man's animadversion and correction — to add or to
curtail — in short, to improve. There is no design
at subterfuge. The most severe critical discussion
will favor the objects which I have in view — truth,
justice, and the public good. I have taken this trou-
ble for no other purposes. It will probably be com-
plained, that there is a great deal of tautology in
these remarks : there may be ; but I have no thirst for
literary fame ; and as a literary performance the work
is altogether beneath criticism. I readily submit to
such accusation ; yet there may be some advantage
even in repetition, since the oftener a truth is told
the more likely it is to make an impression. It may
be said again, that the book contains much irre-
levant matter ; and, though it may not be so, yet
I will allow that charge also, only observing, that
if such matter should not elucidate or explain, there
is no great harm in trying to enliven a dry work.
All these weighty charges I must however bow to,
and I can afford to do so, confident that the impor-
tance of my object will abundantly outweigh the
defects of its performance.

I therefore conclude with observing, that Pro-
vidence has filled the rivers and the seas with

i 3

118 CONCLUSION.

abundance ; that they are literally animated with
the means of administering to the necessities, the
comforts, and the luxuries of every rank of soci-
ety. As an encouragement to trade they would
pour forth inexhaustible riches, and yet — won-
derful to say in this enlightened age — we see the
greater part of their valuable produce rendered
abortive, through the want of a law which would
compel the human species to act a part equally
dictated by humanity and by sound policy.

119

ABSTRACT OF THE EVIDENCE BEFORE THE COMMIT-
TEE OF THE HOUSE OF COMMONS.

Mr. John Wilson, a proprietor on the Tweed,
and a partner in a large company, tenants of fish-

NOTES.

ON reading through this report, I was much gratified
to find that in all material points the witnesses before the
committee have unequivocally confirmed the suggestions in
this pamphlet, which were, with a few slight alterations,
submitted to the public through the Western Luminary? in
a series of weekly papers about three years ago. The pro-
posed Act remains exactly as it was then printed (in May,
1820), and has been given to the publisher of the present
edition in print. Before I indulge in any observations on
the detail of this evidence, I would wish briefly to state the
general impression which it has made on my mind, and the
particular objects of its consideration. With the exception of
the testimony respecting cruives, it may be said that there
is a general concurrence of all the witnesses in the propriety
of protecting the breeding fish, extending the close time,
and such other measures as are suggested in the course of
this pamphlet ; though it is rather to be lamented that a
few more respectable people, such men as Mr. Drummond,
perfectly disinterested in the fisheries, had not been ex-
amined, instead of interested fishermen. To expect per-
fectly impartial evidence from people who are interested in

I 4

120

ABSTRACT OF EVIDENCE

eries there. — Attributes the scarcity of salmon to
the destruction of the breeding fish in close time,

NOTES,

the subject matter, is expecting more from human nature
than it is capable of performing. We must make all
due allowances, and not require from others what we should
not be able to do ourselves. Still we must find out the real
truth if we can, but we must look for it among those who
have no interest in its concealment.

There is a great deal of matter in this report, though
curious and instructive, which cannot be applied to any
beneficial purpose ; things of most importance to be wel
understood are those which can be improved by the power
of mail. It is desirable to obtain whatever will add to our
stock of knowledge ; but it is most desirable to dive deepest
into, and investigate most closely, those branches of sci-
ence which can be turned to the most profitable account.
The grand question on this subject is, how are the abuses
to be prevented which render the fish scarce, and how are
such fish to be rendered more plentiful, so as to serve the
wants of the public in the most beneficial and effectual
way ? In the more material bearings of this question, all
the witnesses cordially and fully agree. These, then, are
settled. The committee might about as profitably examine
witnesses to ascertain whether there is a moon, as ask
further questions upon these points. There are, however,
other objects of much less moment on which there appears
to be a difference of testimony ; and these objects, after
which the committee seem to have made hottest pursuit, are,
first, the stake-net?, then the coble nets, the grampuses,
the species of the fish itself, and the cruives ; upon all these
we will make some remarks, as I take all the other matters

BEFORE THE HOUSE OF COMMONS. 121

though they are never at that time good or whole-
some ; to the defects of the laws ; and to depreda-

NOTES.

to be settled by universal consent. We are, then, at issue
only on the cruives and the species of salmon, of which
in their order.

1. As to the stake-nets, I confess that until I read this
report and saw the drawing at the end of it, I had formed
a very different conception of the thing from what it really
is. We see that the evidence is different on their operation;
some say that they are injurious, others that they are bene-
ficial; the man who derives his living from them cannot be
expected to concur in their condemnation, whilst he who
is prejudiced by them represents them to be of the most
destructive nature. As well might we expect the poacher
to condemn the spear, and the net and coble, in close time,
as the owner of stake-nets to say they are prejudicial to
the general prosperity of the salmon fisheries. This fact
must be ascertained by the knowledge of impartial, disin-
terested, and intelligent men. Without pretending to de-
cide the question, I would merely suggest, if the other
much more important points were settled to be carried into a
law, whether, if the stake-nets were only used without the
rivers in the six summer months, and the mesh or moke
were to be two inches and a half broad, by which the un-
sizeable fish would escape, they would do any harm. This,
however, must be decided by other evidence than that of
interested fishermen. I have heard it remarked, and I
believe it to be true, that if the more important abuses are
corrected, the stake-nets in the proper season are not en-
titled to any consideration.
• 2. As to the net and coble; the fish must be taken with

ABSTRACT OF EVIDENCE

tions committed in the months of October, Novem*
ber, December, and January. Fish are attracted

NOTES.

something. If this net be prohibited in close time, and
that close is extended to the end of March, this net can
do no harm. It is allowed to be only injurious when the
bottom rope is drawn over the spawning beds, as it then
injures or destroys the nests of eggs by removing the sand
by which they are covered. If this net is not allowed to
be used until after the ova are fructified into animation,
and if it be made with the legal mesh, it can do no mischief,
as all the fry and unsizeable fish will escape ; then extend
the close time to the end of March, and there is an end to
all possible objection to the net and coble. If this should
not be deemed sufficient protection for the spawn beds,
prohibit the use of it to one month longer, at all places
beyond the flow of the tide.

3. As to the grampuses, porpoises, and seals ; in my
opinion it is quite easy to catch all these rapacious monsters
when in an estuary or river ; and as their depredations are
so extensive, the experiment would be well worth the ex-
pence, and the produce of the animals themselves would
largely contribute to defray it.

4-. As to cruives ; this engine I take to be what we call
fish locks, or something of that nature, of which there are
a most ingenious variety, all equally destructive ; in law a
nuisance^ in fact an engine whose effect is annihilation, and
a rank piece of injustice to those who have fisheries above
them, as they prevent the fish from having a free passage,
capturing all those which go up, and obstructing those
above from going down. Whilst these cruives or fish
traps are tolerated, the fisheries can never prosper. I have
* 5

BEFORE THE MOUSE OF COMMONS.

by lights and then speared, a practice which is
called burning the river. Fry are also killed at

NOTES*

said so much on this subject already as to render it unne-
cessary to add more. Power once possessed, is so fre-
quently abused, that it is at all times a dangerous and
formidable weapon in the hands of man ; it should therefore
be guarded with caution, and watched with jealousy.
These cruives once put up in the least objectionable way,
soon get a legal footing ; they become prescriptive, are in-
numerable, and are the destruction of all the fish on every
stream where they exist. Let them not then take root ; it
is easier to exclude than to eradicate. Prescription is a
dangerous doctrine. Those which exist in England have
their origin in encroachment. What the Scotch laws may
be I know not, but by those of England we have seen that
the statute of Elizabeth says, that salmon shall not be taken
by any engine or device, but by the net of two inches and
half mesh : if so, how can these things be regarded in any
other light than as encroachments on the privileges of the
public ? Down then with your fish traps and cruives, and
give the fish a fair chance, by which we shall have a
thousand, where we now get one.

Mr. Wilson very honestly tells us the truth, that the
scarcity proceeds from the destruction of the breeding fish
in close time, and to the defects of the laws, as we have
just seen by his evidence. If fry are destroyed in any way
it is very easy to prevent it; but it is absurd to attri-
bute the few taken by the amusement of angling as
contributory to the general scarcity; it is as a drop in
the ocean, and wholly beneath the dignity of parliament
to take that recreation from gentlemen who delight in it?

124

ABSTRACT OF EVIDENCE

mill-sluices, and with different engines. He repro-
bates angling in April and May ; in these months
fry go to the sea, and return again in June and July
from three to four and five pounds' weight, then
called gilse ; they appear like gilse when one pound,
and have no other name than those of fry and gilse ;
no destruction before the spawn comes to life ;
destruction in close time is much increased of late
years ; many fish are unwholesome besides those
caught in close time ; cannot suggest any im-
provement in the mode of fishing j thinks the close

NOTES.

-who ever have inherited it as their patrimonial right,
secured by statute, and forming part of the laws of England.
The rigour of the game laws should rather be diminished
than increased. He thinks the close time should com-
mence on the ] Oth of April ; this would certainly be an
improvement, the fish being then large in roe (of which I
have had two instances this last week, 12th September), yet
the fish were very good : whether the defence should com-
mence so soon must be determined by the wisdom of parlia-
ment; but the rivers should certainly not open until the 1st
April. " That the 'same close time should apply to all rivers"
I heartily agree with him, for the reasons which I have
before assigned, and I now feel confident that I am right.
He also confirms my idea of the, propriety of seizing poachers
by the sides of rivers; but as this witness approves of the
cruive, and asserts that its removal would not allow more
fish to go up, I should rather suspect that he is the owner,
or occupier of one.

BEFORE THE HOUSE OF COMMONS.

time should commence on the 10th of September,
and end on the 1st of February; many unwhole-
some fish are caught in September, full of spawn ;
salmon are at their best about Midsummer ; fall off
afterwards ; a whole family died in consequence of
eating unwholesome salmon ; they begin to leave
the sea about August ; the same close time should
apply to all rivers ; angling very destructive to
fry in April and May ; repeats that the close time
should apply to all rivers ; no fishing should be later
than the 10th of September ; thinks that all salmon
return to the same rivers where bred; thinks there
are different species of salmon ; all fish come into
the rivers if they can ; poachers by the sides of
rivers should be arrested in close time.

Examined again. — No artificial works or manu-
factories on the Tweed that prevent the passage of
the salmon ; some mill-sluices in the small rivers ;
without a new law the fisheries on the Tweed will
not pay the expenses of fishing; angling should be
prevented, because if the fry are killed there can
be no salmon ; foul fish are more greedy after the
fly than new fish ; spearing much practised high
up the Tweed in close time ; a fish of a pound will
go through the net ; it will take one of a pound and
a half; stake-nets destroy the fisheries ; the mesh
of the nets two inches and a half; does not think
the cruive any injury to the free passage of the
fish, or that its removal would allow more fish to
;go up the river.

126 ABSTRACT OF EVIDENCE

James Bell, fisherman on the Tay. — Fishery
decreased generally ; attributes the diminution to
the stake nets, killing the Jish In close time, and
destroying the fry ; there is a cruive dyke in the
Arne river that runs into the Tay ; the present
laws are not sitfficient for the preservation of sal-
mon ; stake nets are injurious to the fishery; can't
say when they were established, but the salmon
have decreased ever since they have been used ;
poachers fish with a net and use the spear in close
time; fish good on the 10th of December in the
Tay ; thinks the fishing should end on the last of
September, and open on the first of April ; thinks
the fish in different rivers vary, and that they
return to the rivers in which they were bred ; the
removal of the cruive dykes would allow the fish
to go further up ; it is all poaching in close time.

William Bell, foreman to the former. — Attri-
butes the diminution of the fish to a want of
attention to the close time, and to the stake nets on
the coast ; stake nets on the Tay established there
about twenty-seven years ago, removed about twelve
years ago ; an increase of fish immediately after.

NOTES.

Mr. James Bell. — After attributing the decrease to the
causes before mentioned, this gentleman says, the fishing
should cease on the last of September, and open on the
1 st of April. That the removal of the cruive dykes would
alloiv the fish to go further up ; and that " it is all poaching
in close time"

BEFORE THE HOUSE OF COMMONS.

Thomas Proudfoot, fisherman on the Tay. —
Attributes the decrease to the stake nets, the vio-
lation of the close time, and the want of a new law ;
thinks fish return to the river where bred ; recom-
mends guarding the close time better ; reprobates
angling.

James Bell again examined. — Some fish are
more forward in roe than others.

William Bell again examined. — Says it is a
mystery where salmon winter; thinks they come
from the north.

John Johnson, fisherman. — Acquainted with
the rivers of Scotland and Ireland ; salmon gene-

NOTES.

Mr. Thomas Praudjbot recommends guarding the close
time better ; he generally confirms what the others say as
to the main points.

Mr. John Johnson does not think they spawn early
in the season, and I believe he is 'right. Some may
spawn earlier than others ; the fry are chiefly animated
in March. — If this gentleman's estimate of the number of
pea in a salmon roe be correct, I must have been grossly
imposed upon. It must, however, be recollected, that this
calculation was made on a Scotch salmon, mine was on
South Hammer. Perhaps the rivers in Scotland may be as
poor as the earth is barren and unfruitful, so that the
inhabitants of the water, like those of the land, can be
just preserved from actual starvation ; and such waters
are not favourable to fecundation. This, however, is

128

ABSTRACT OF EVIDENCE

rally spawn in the tipper parts of the river out of
the tide ; they may spawn where the tide reaches ;
often in the shallow fords, and in small streams
connected with large ones ; roe and milt begin to
appear in May ; applies this to all rivers, and to
salmon generally ; the latter exhausted by being in
the fresh water ; would go back to the sea, if they
could, to recruit their strength ; get worms and
maggots if long in the fresh water, and these
would kill them if they did not go back to the sea
in order to acquire strength to spawn ; best in
season when they have the sea-louse ; does not

NOTES.

more matter of curiosity than of consequence, since we
can neither add to or diminish their powers of multiplica-
tion; and, as I have said before, the fewer they produce
the more they should be taken care of. What this gentle-
man says about the different species is answered before ; —
it is opinion only, he knows of no experiments. He confirms
what I had before published about the destruction by the
mill-wheel. He, also thinks that the fence days should be the
same all the kingdom over. I am indebted to Mr. Johnson
for thus confirming every thing which I published three
years ago in the Western Luminary ; he but differs from
me in opinion as to the species of gilse and salmon. I have
observed before, that nothing is more easy than to catch all
the grampuses, porpoises, and seals, when in the estuaries
and rivers ; the two former have only one young one at a
time, and if their number were once materially diminished,
they would not be soon recruited. The Mysticetus whale
is almost annihilated in Greenland. I do not under-

BEFORE THE HOUSE OF COMMONS 129

think they spawn early in the season, but only in
the autumn months ; fish don't breed in the open
sea ; they spawn principally in November, Decent-
her, and January ; male and female meet, furrow
in the sand, deposit their spawn, and cover it up
with gravel ; male fish has a large beak upon his
mouth then ; after spawning they return to the sea,
if not obstructed ; fry principally animated about
March, some before ; they reach the sea about
May; ova from 13 to 26,000, average about
20,000 ; thinks that every pea may come to a fish,
but cannot state any circumstances on which to
found his opinion ; does not consider the whiting
or laspring to be a young salmon ; assigns as a
reason that they have milt and roe ; does not know
of any experiments by marking the tails whether
they are the same fish or not ; considers sea-trout

NOTES.

stand the description that is given by the witnesses of these
fish ; a grampus is twenty feet long ; they speak of their
being half the size ; our porpoises generally run from eight
to ten feet. Perhaps they might have been more plentiful
upon this coast when salmon were so ; but they generally
appear when the herrings do, and are thence called Her-
ring-hogs. We have no seals, though a wandering indivi-
dual, I have been told, is sometimes seen on the coast of
Cornwall. Of otters we have abundance, which do incre-
dible mischief to the breeding fish, when assembled high
up the rivers for the purpose of spawning. This animal
is a wanton slaughterer ; he will kill twenty without eating
one : they often leave the salmon on the banks of rivers,

K

130 ABSTRACT OF EVIDENCE

to be a distinct species ; differ little from the sal-
mon in form ; they spawn and return as kelts ;
could not distinguish the fry of the sea-trout from
that of the salmon, they all descend together ; kelt
means Jish fifter spawning ; the term is applied to
all three Jish ; some call them foul fish ; net and
coble fishing the great injury to the fisheries ; great
numbers of salmon fry are destroyed by mill-
wheels ; cannot go down by means of dykes acros
the rivers; recommends an escape for the fry;
close time must be enlarged and regulated ; salmon
do not advance far up the rivers at all seasons,
only in the spawning time; they run backwards
with the tide in all directions ; great number de-
stroyed in the Tay by grampuses, porpoises, and
seals ; the two former appear in April, the latter
all the year ; often caught in the stake nets ; five
grampuses in one tide ; stake nets have diminished
their numbers ; thinks these animals destroy twice

NOTES.

bitten and a little eaten behind the heads. The time when
they commit the greatest mischief is when the fish are en-
gaged in the act of spawning. They hunt them to those
spots as a dog does a hare. They come on the fish by
surprise ; and when they are not prepared for such an at-
tack, the otter flies upon his prey with the velocity of an
arrow, and never misses either wounding or taking. A
man last winter stuck his spear into an otter instead of a
fish. Four or five guineas a head would procure the de-
struction of the whole in six months. The new act should
provide a clause to that effect.

!

BEFORE THE HOUSE OF COMMONS. 131

as many as men ; attributes the decrease to the
non-protection of the breeding Jish and the fry.

John Johnson again examined. — Salmon get bad
after being out of the sea; get worse and worse ;
lose their bright colour and firm state ; get longer
and lighter, when in the fresh water ; the nearer
the sea the better the fish ; do not continue good
many days after being out of the salt water ; as-
cribes the decrease in the Tay to the non-protection
of the breeding Jish ; to beginning too early to
Jish ; to poaching fishing in close time ; to the de-
struction of the breeding Jlsk, and of the spawn or
fry ; and to the want of efficient modes ofjishing ;
sea-louse does not remain many days after the fish
come into fresh water; they go off by degrees.
The breeding season is the same in all places, but
the fence days are not so ; THINKS THE FENCE DAYS

SHOULD BE THE SAME ALL THE KINGDOM OVER ;

all fish find a market, bad as well as good ; but
the foul fish are very unwholesome; people will
buy any thing that is cheap ; has seen the sea-louse
twelve miles up the rivers ; recommends the begin-
ning to jish ON THE 10th MARCH, and to leave off
the MIDDLE OF SEPTEMBER, as a GENERAL RULE ;
yet a few sound fish may be caught earlier in the
year ; the law is seldom enforced for the protection
of the breeding fish ; 'vast numbers of Jish killed in
close time, in fact the fisheries are ruined for want
of protection ; spearing by torch-light is often prac-
tised ; laws not carried into execution / the fluctu-

K %

132 ABSTRACT OF EVIDENCE

ations arise from the want of protection to the
breeding fish ; to the fishing all the year over ; at-
tributes the decrease solely to those causes ; spawn-
ing beds are in fords in running water generally ;
thinks gilse a different species from salmon at
ten pounds' weight; when full of spawn they are
full grown ; thinks they get their full size in 16 or
17 months ; young salmon are four, five, and six
pounds at a year old, when they return to the
rivers.

John Halliday. — Has been engaged in the sal-
mon fishery forty years, as well in Ireland as in
Scotland ; salmon spawn in running streams in
fine sand ; don't spawn all at the same time ; full
of spawn by October, and from thence even to
January ; this is the general case with all rivers ;
they begin to ascend the rivers in August to
spawn ; many in the spring and summer months ;
salmon fall off after being in the fresh water ; get

NOTES.

Mr. John Halliday. — After confirming every thing which
the other witnesses and myself have said in all material
points, he adds, that he thinks the same close time should ex-
tend to all rivers in Scotland and England, — (I am indebted
also to Mr. Halliday,) — and that close time should extend
to the latter end of March or the beginning of April, and
should not continue longer than the 10th of September ; very
advantageous if the kelts were allowed to return to the sea.
He thinks that the cruivespreventthe mother fish from going
np to breed ; and reprobates the mill-dyke without an escape.

BEFORE THE HOUSE OF COMMONS. 133

worse and worse as the roe grows ; spawn in No-
vember, December, and beginning of January, in
furrows ; they throw themselves on their sides when
they come together, and rubbing against each other,
they shed their spawn, both into the Jurrow at
once ; I have seen three pair upon a spawning bed
at a time ; I have stood and looked at them, both
while making the furrow and laying the spawn ;
takes some days before they have done spawning ;
they do not lay it all at once, takes eight or twelve
days ; young fish first appear in March ; not the
same number of pea in all fish, from 17 to 20,000 ;
does not consider the whiting to be young sal-
mon, or yet the gilse or sea-trout ; speaks of the
injury done by drawing nets over the breeding
beds ; much fry destroyed by mill-dams ; there ought
to be a sluice or escape for the fry ; much mischief
done by manufactories ; thinks the coble-net fish-
ing most injurious, as destructive of the breeding
places, by moving the sand ; stake-nets being still
don't injure the spawn ; attributes the destruction
not to the stake-nets, but to the parent Jish and the
fry ; strongly approves of stake-nets ; more salmon
destroyed by grampuses, porpoises, and seals, than
all the fishers in England ; hunt in packs ; has seen
3 or 400 porpoises at a time, go up and down with
the tide.

John Halliday again examined. — Grampuses
and porpoises have taken the fish from the stake-,

K 3

134 ABSTRACT OF EVIDENCE

nets ; very destructive to the fish ; many porpoises
captured in stake-nets following the fish ; of very
great importance if a method could be devised by
which these rapacious monsters could be destroyed ;
their devastation enormous ; salmon taken in the
sea are the richest and best fish ; become unsound
after being detained in the fresh water any season,
and unfit for food but when they come immediately
out of the sea, ; close time should commence about
the Wth of September, and end at the latter end of
March or beginning of April ; thinks the same
period should extend to all rivers in England and
Scotland ; recommends the appointment of people
to superintend the rivers in close time, and to take
care of the spawning fish ; great numbers of newly
spawned fish are taken in February and March ;
decidedly of opinion that the close time should ex-
tend to the latter end of March or the beginning of
April ; by extending the close time so late all the
fry would escape ; salmon are unfit for use after
the 10th of September ; has seen many taken by the
1st of October quite unwholesome. Fishing opens
in the Tay on the Wth Dec. ; thinks this very in-
jurious ; pay no regard to the close time in Tay ;
equally advantageous to preserve the breeders and
the kelts, as the kelts may become breeders again ;
ascend in August as well as at the breeding time ;
cruive dykes not injurious to the fish going up to
spawn ; in close time they ought to be taken out ; not
injurious to salmon out of season ; recommends the

BEFORE THE HOUSE OF COMMONS. 135

cruives because by being fixed they don't come over
the spawning beds ; cruives prevent the mother fish
from running up.

Mr. John Halliday again called in. — Stake-nets
have increased the supply on the Newberry fishery.
At page 86. speaks of a mill-dyke across the river ;
takes all the water out of the bed of the river into
the mill-dam, which must be very destructive to the
whole fishery in the river, as if must impede the
spawning fish in going up, and the fry and parent fish
in returning to the sea ; might be prevented by a
sluice to enable the fish to go up and down ; in-
jury of a dam-dyke may be prevented by a stop ;

. I think the fisheries could be provided for without
the necessity of removing the dam-dykes ; thinks
that they don't see the salmon from the time they
leave the river as fry until the next year early
in the spring, when they begin to return to the
rivers young salmon ; thinks they don't return to
the river where bred ; can't distinguish one river

fish from another when the fish are well grown ;
nothing but salmon in a porpoise, which is their
sole food. P. 89. Coble-nets not destructive but on
the spawning beds ; when salmon find themselves
enclosed they go to the bottom ; under rope must
be close to the bottom ; has seen small sea-fish and
worms in the stomach of the salmon ; greater
quantity of good food in the sea than in the rivers ;
the cause of scarcity, which applies to all the rivers,
is the want of protection, and the increased quantity

K 4

136 ABSTRACT OF EVIDENCE

of mill-dam dykes near the sea ; one mill-dam dyke
near the sea will do more injury than all the stake-
nets in the kingdom ; salmon ebb and flow with the
reflux of the tide ; stake-nets to be carried high
up the river and extended beyond low water must
be injurious.

Mr. Charles Kerr. — Produced a copy of the
process of declarator between the Duke of Athol
and Maull ; a stake-net has a small mesh, which is
fixed by stakes in the river, about forty or fifty
yards from high water mark ; that this is a line
or bag net, the mouth of which looks up the river ;
that the spirlings are caught when the tide ebbs by
being caught in it, and some few by hanging in
the meshes ; the object was to prove that no fry
was injured by the stake-nets ; the result of a long
enquiry for the purpose of proving that the stake-
nets were not injurious to the fry.

Mr. Steward Sheppard. — A very great number
of grampuses, porpoises, and seals in the Tay,
which destroy immense numbers of salmon ; much

NOTES.

Mr. Kerr's evidence only applies to the stake-nets ;

Mr. Steward Sheppard's chiefly to the monsters of the
deep. But if the obvious and reasonable suggestions be-
fore so often stated be carried into a law, there would be
salmon enough for the grampuses of the land, without
depriving those of the sea of their share.

BEFORE THE HOUSE OF COMMONS. 137

for the interest of the salmon fishers if they could
be destroyed ; seen grampuses six to ten feet long ;
a salmon will spring out before the grampus and
will be caught in his mouth in the descent ; has
seen it ; salmon their principal food ; never saw
any other food than salmon taken from their
stomachs ; has see^i 200 grampuses at a time in
the Tay, and even more seals ; when the seals
sleep one or two always watch ; on the approach
of a boat they go into the water ; the destruction
by these monsters a great cause of the scarcity.

George Little, Esq. — Some of the fisheries have
decreased and some increased considerably ; gives
an account of the annual produce ; attributes the
increase to the appointment of water-keepers like
game-keepers ; we place them at certain distances,
and give them salaries ; the Moy cost 3407. last
year for keepers ; their duty is to watch the river
at night, to protect the mother fish and the fry in
the proper seasons ; people in Ireland are against
the fisheries, because formerly salmon could be
bought for three farthings a pound, and now they

NOTES.

George Little, Esq. — This gentleman proves, that though
the fisheries in general are much diminished, yet some are
actually improved ; which he accounts for in a very rational
and satisfactory manner ; namely, by the adoption, volun-
tarily, at a private expence, of that which ought to be
the result of a general compulsory law. This is demon-

138 ABSTRACT OF EVIDENCE

are sent out of the country they are much dearer ;
spawn in gravel beds ; roe and melt appear at all
times ; they enlarge until we give over taking
them ; get large bellied in August, September, and
October ; enter the rivers to spawn in August and
September, and continue to the end of the year ;
they would go back to the sea if they were not
killed ; all killed in the early part of the year ;
come into the rivers to rid themselves of the louse,
which the fresh waters do ; soon fall off in condi-
tion after being in the fresh water ; must go to the
salt water to rid themselves of the maggot, and to
the fresh water to get off the louse ; make a furrow
in the gravel in the current twelve feet by eight or
ten ; male and female threw themselves on their
side and WORKED ONE AGAINST THE OTHER ; conti-
nued thus many days ; if frightened would go away
and icturn again ; takes many days before the
spawning is completed ; known them forsake their
spawning beds ; the bed or furrow is covered as

NOTES.

stration at once: what need is there of further evidence?
I think this gentleman's account of the act of impregnation
more satisfactory and more probable than any of the others.
Instead of the male fish impregnating the ova after exclu-
sion, the two fish, by rubbing their bodies together in
close contact, complete it by a simultaneous and mu-
tual operation. He also confirms my idea that the spawn-
ing time is the work of many days ; and that they will
forsake their beds or nests if disturbed. He does not
think the whitings, or salmon peal, or the gilse, are sal-

BEFORE THE HOUSE OF COMMONS. 139

they proceed ; both assist, and while in the act of
depositing the spawn, male gets a hard bill on the
under jaw ; decreases after spawning ; spawn gene-
ratty begin to rise about the beginning of March ;
spawn rise from the bed like a crop of oats or a
thick bryard of grain, rushing up all round the
stones in very great numbers ; the tails come up
first ; part of the pea sticks about their heads ; his
brother averaged the roe of the salmon at 17,000,
gilse at 10,500 ; all the eggs would become fish
without an accident ; knows the spirlings, or whit-
ings, or pinnocks, thinks they are the same fish ;
never see such a fish in Ireland ; abound in the
Solway Frith and the Tweed; are found only in
the rivers where they breed ; a few in the Tay ;
much like a salmon or trout ; we do not see a sal-
mon of that age ; it is only shaped, headed, and
tailed like a salmon ; from twelve to fifteen inches
long ; some are red, but mostly white ; thinks it is

NOTES.

mon : to this I can only oppose the statement which I have
already made, and add, that experiments are more satisfac-
tory than opinions. If Mr. Little is correct in his opinion,
that the male gilse can impregnate the roe of the salmon,
the whole fabric of his reasoning falls to the ground ; and
they are (contrary to what he says) decidedly one and the
same fish ; for it is a well known fact, that no animal in
the creation in a state of nature (not under control),
except one, will forsake his kind and copulate with animals
of a different species : if I hen the gilse mtt impregnate the
roe of the salmon, they must be one Jish.

140 ABSTRACT OF EVIDENCE

not a salmon ; frequently don't find them in rivers
where there are salmon ; see them going down
kelt ; they return to the same rivers to spawn as
salmon do, for the same purposes, at a certain
season of the year ; thinks it full grown when of
the size above-mentioned, that is, about twelve or
fifteen inches long; has never observed their fry,
thinks it must be much less than the salmon fry ;
may go down with the salmon fry ; thinks the gilse
a different fish from the salmon ; thinks there are
different kind of salmon in different rivers ; gilse
differ in shape from salmon ; never exceed nine or
ten pounds ; few salmon live to the age of four or
five years.

George Little, Esq. again examined. — Considers
the sea-trout a different fish from the salmon ;
found only in particular rivers, where they breed ;
not found in all salmon rivers ; do not breed, and
not to be found in Ireland ; if young salmon, they
would be found where salmon are ; a salmon gets
seven, eight, or nine pounds the first year ; every
river has a peculiar kind of fish attached to it ;
has been informed that the fry had been marked
at Lancaster, and had been killed the following
spring full grown salmon ; does not know of the
fry of gilses thus marked and caught ; admits that
the male gilse could impregnate the roe of the sal-
mon ; salmon are best and most plentiful in May,
June, and July ; in August they begin to fall off;
the nearer to spawning the worse they get ; the

BEFORE THE HOUSE OF COMMONS. 141

fishing should not commence so early, and should
fish a little later; the destruction in the winter
season was dreadful ; a most destructive fishery
carried on in the Tweed in close time, when the
fish are spawning ; foul fish very unwholesome ;
no fish should be killed in close time, or by nets
travelling over the spawn beds ; in Ireland we
only use such nets in the tide- way, where there are
no spawn* ; assigns the decrease to the non-protec-
tion of the mother Jish and the destruction of the
fry ; the present law is not sufficient to protect the
breeding fish ; pollution of the water in some rivers
by machinery is detrimental ; does not think liming
the land is destructive ; salmon going into small

NOTES.

* This is the case here ; the seine is only used in the
tide-way.

Whenever waters are polluted with improper matter,
there can be no doubt but it is extremely injurious to the
fish. But this is not the case with all rivers. There are
a great many, particularly in this county, where no such
occurrences take place, and the water is always as clear as
crystal. As salmon return to the same rivers where bred,
this can never cause a general decrease. It proceeds from
other causes : nor has the liming of land any thing to do
with it. As Mr. Little says, spawning fish should be kept
from small brooks ; an unfortunate pair of fish, forced
into a brook from inability to keep the main stream, will
meet with certain death.

It is a bold thing to say that the magistrates do not un-
derstand the law, but, if it be true, why should it not be

ABSTRACT OF EVIDENCE

rivulets is very destructive to spawning ; mill-dams
are very destructive to the fish and fry; magis-
trates are unwilling to act; don't understand the
laws ; recommends a consolidation into one general
Act; there should be an escape for the fry and
salmon from mill-leats ; roe of salmon is potted for
kail ; gentlemen buy it ; the old laws of Scotland
very defective ; does not know much of the En-
glish law, but there are places in England where the
^fisheries might be as good as any in Scotland ; does
not know much of the Devonshire fisheries, but
has heard they are much neglected ; complains of
the magistrates and the defective laws ; if proper
attention was paid to the fisheries they would be
very much increased, and cause a great reduction
in the price ; Jlsh in the Moy much increased by
appointing people to watch the breeding Jish and
the fry ; the cruive fishing advantageous if not
used in the close season ; they take the fish going
up ; there should be openings for the kelt to go
down ; reprobates angling ; a proprietor ofjish-

NOTES.

said ? Mr. L.'s advice is equally sound in recommending
a general consolidation act : it is quite perplexing and mon-
strous that there should be a different law for almost every
different river in the kingdom, when the same circumstances
apply to all rivers. He is also very correct in saying,
that the rivers of England would answer as well for salmon
as the rivers of Scotland if they were properly looked after ;
but, as Bell says, u it is all poaching in close time." Now it

BEFORE THE HOUSE OF COMMONS. 143

eries ; great numbers of salmon are destroyed by
grampuses, porpoises, and seals ; they live wholly
upon them ; salmon get bad after being in the
fresh water a few days ; falls off in a week ; but
seldom remains a week in the fresh water; not
injured by being taken in a cruive, as they are
generally taken out once a day.

George Little, Esq. again examined. — The peo-
ple collect in bodies, and will fish in spite of the
owner, supported by arms, and protected by an
officer of yeomanry and a magistrate ; very unwil-
ling to convict ; water-keepers frequently shot, one
killed ; witness had been shot at ; small nets used ;
salmon can't get through, nor yet even the fry ;
the poachers do this ; fisheries are good or bad as
they are or are not protected ; small rivers best to
breed in ; employs a superintendant and others
under him ; he instructs the magistrates how to act ;
they cost 3 or 400£ a-year ; small rivers require
most protection, because the fish can take care of
themselves in large rivers \ herring nets should be

NOTES.

is of far more consequence to the metropolis, that the fish-
eries on the rivers of England should be protected, than
those of Scotland, because their fish can be conveyed to
London with so much greater facility, than from the north
of Scotland, where a very troublesome, expensive, and
tardy process is unavoidable.

This gentleman, as a proprietor of fisheries, reprobates
angling.

ABSTRACT OP EVIDENCE

used when the fry are coming down the rivers ;
more salmon killed last winter in the Solway frith by
poachers with small mesh nets in close time, than by
the lawful Jishers ; destruction of the Jish in close
time the ruin of the fisheries ; weirs in the tide-way
very destructive ; made by driving stakes and wat-
tling them ; stake-nets should not be put in rivers,
or half a mile of the mouth of a river ; but weirs
destroy the fry ; the close time cannot be observed
whilst such weirs continue ; no opening left in the
weirs for the fish to pass ; if weirs were to be pro-
perly regulated it would be a great improvement ;

NOTES.

There are no finer rivers for salmon in England, than
those on the south coast of Devon ; namely, the Tamar, the
Plym, the Anne, the Avon, Dart, Teign, and Exe. I
do not know much of the large river on the north coast
which runs up to Barnstaple and Bideford, though there
is little doubt but it is as favourable as the others ; nor of
the Exe, which I have been told is much injured by the
various manufactories at Exeter and Tiverton.

As small rivers are best to breed in, it follows of course
that they must be protected, or every fish must fall by the
spear. The men call the spearing time their harvest.

It is very true that close time cannot be observed whilst
weirs continue ; but weirs might be so contrived as to al-
low the fish passage up and down.

People who are interested in salmon do not wish even
that a single fry should be taken. This ridiculous " rail-
ing accusation" against the innocent, gentlemanly recre-
ation of angling, is carrying the point too far, and makes
one blush for the selfishness of those who urge it.

BEFORE THE HOUSE OF COMMONS. 145

great numbers of fry destroyed by angling; angling
for salmon no great injury ; back fish take the fly
more readily than new fish ; poachers are the best
water-keepers ; their invariable practice is to go
during the day and find where the fish are, and in
the night to go and kill them,
j Many rivers in England have been injured by

NOTES.

It is stated in some books upon this subject, (I be-
lieve it is somewhere mentioned here,) that one of the mo-
tives for the salmon frequently having recourse to the fresh
water is to rid themselves of the sea lice, but no reason is
given for this opinion. Yesterday (14th Sept.) I had an
opportunity of conversing with a very experienced fisher-
man ; he gave the same opinion : I asked him his reasons ;
he said the fish had always the appearance of pain and rest-
lessness when these vermin were on them, shifting and
changing about from place to place, and constantly leaping
out of the water. He said, further, that one day they
observed a fish in this restless condition, constantly leaping ;
they drew the net several times without being able to suc-
ceed ; at last they took a fine salmon with a great number
of sea lice on him, and also a large lamprey eel adhering
to his skin. They could perceive from the motions of the
fish that he felt great bodily annoyance ; and from this cir-
cumstance it is not improbable that they have recourse to
the fresh water to get rid of them. There is also another
very powerful motive on their actions, namely, the por-
poise : more salmon were taken in the Dart, in May last,
than at any other part of the year; there were then many
porpoises on the coast, and nine large ones were seen up the
river so far as Sharpham.

L

146 ABSTRACT OF EVIDENCE

manufactories ; lime and other things will kill the
fry ; tanners, hatters, and those who cure sheep-
skins, putting them in lime, letting the refuse go
into little rivers, washing the filth from the skins,
steeping of flax, and gas wasting, are very injurious;
there ought to . be an opening in dam-dykes for the
salmon to go up and the fry to come down. The
improvement of the fisheries would employ the
people ; great abundance of salmon in river Moy,
but no sea trout ; his opinion is, that they do not
return to the rivers above sixteen inches long,
but thinks that the salmon is of far more rapid
growth than is generally supposed.

James Gillies. — Salmon have much decreased,
from the brood not being protected, and from the
number of poachers in close time ; saw %5Q in one

NOTES.

I too could garnish this tale of infamy with many illus-
trious cases ; but what has been admitted — what is not
denied — and what has been proved over and over again,
needs not further illustration ; 'tis a revolting subject alto-
gether;— nothing but poaching from one end of the king-
dom to the other.

Just the same sort of work carried on in the north as in
Devonshire.

Constables of every parish should be appointed conser-
vators, and a high premium should be offered for the ap-
prehension of poachers of every description.

There certainly is a misapprehension, not only with the
committee but the witnesses, about grampusses and por-
poises. At page 103, the committee ask this question : "Do

BEFORE THE HOUSE OF COMMONS. 147

cellar in Trent ; seen 50 in a night killed ; always
found a ready market ; seen upwards of a hundred
killed in a night, most of them full of roe, kip-
pered with saltpetre to make them red ; the people
spear by torch-light ; Mr. Bell buys the fish all the
year round, even during close time ; he has sold
foul fish taken on the spawning beds to Bell ;
fishery up the Tweed ruined by fishing in close
time ; they poach all the winter ; poachers go in
bands or gangs ; one water-bailiff cannot prevent
them ; his brother killed upwards of 400 fish at one
hauling-place in one night in close time j it was a

NOTES.

the grampusses, or porpoises and seals — ?" as if they took
the two fish to be one sort ; and the witness Mr. Sheppard
says he has seen a grampus from six to ten feet ; — why a
grampus is commonly twenty feet long, and the ordinary
length of a porpoise is from eight to ten feet. I very much
doubt that there is any such fish about the salmon fisheries
as a grampus, but that they are all porpoises ; they are too
unweildy a mass to enter far into shallow rivers generally.
Mr. Halliday, at page 74, says, " he has seen the porpoises
catching the salmon till they were quite glutted with them,
and then they would play with them by throwing them into
the air, and catching them again before they reached the
water, as a child would amuse itself with a ball." I believe
Mr. Halliday quite mistakes this matter. It is very true the
porpoise throws his prey up into the air and catches it
again, yet this does not proceed from satiety or wantonness,
but from necessity ; he cannot, from the position of his
mouth, take his prey under water, but forces it to the sur-
face, when it springs out of the water and he takes it on its

148 ABSTRACT OF EVIDENCE

regular thing done ; the mischief is done high up
the rivers ; if these illegal practices were put an
end to, a great increase would take place imme-
diately.

Henry Hume Drummond, Esq. — The fisheries
have decreased generally in Scotland from a com-
bination of causes, chiefly the violation of the close
time, for the preservation of the breeding fish and
the fry ; the close time should be extended to a
longer period of the year ; the spawning fish and
the fry should not be destroyed; recommends
persons to watch the breeding fish and the descent
of the fry ; recommends persons who have no other
avocations ; there should be a break in all dyke
dams ; if cruive jishing could be abolished, it would
very much increase the brood ofjish by opening the
rivers not only for the ascent of breeding jlsh, but
for the descent of the fry ; noxious matter is injurious
to the fish.

NOTES.

return. This information I had from a person this day
(15th Sept.), who said he had seen it done thousands and
thousands of times. It is well known that all rapacious
animals have a peculiar method of taking their prey : a lion
will not spring on a horse till it turns, nor the cat on a rat;
the goss-hawk strikes by a side shoot, some other hawks by
flying under, and some again by flying above; the shark turns
on Ms side ,• this habit of the porpoise was new to me until
this day, nor is it mentioned in any book. It is, thus, not
an act of wantonness, but of necessity.

BEFORE THE HOUSE OF COMMONS. 149

James Gillies again examined. — Much fry de-
stroyed by angling ; if the close time is not altered
and enforced, the rivers will be barren altoge-
ther ; cruives continue set a month after the close
time.

George Little, Esq. — A number of salmon come
to the cawl, over which they cannot get ; and a
number of poachers go to kill them there ; no other
obstruction but the mill-cawls. Edinburgh and
Glasgow are supplied with an immense number of
kippers killed in close time.

Sir H. Davy. — Distinguishes the salmon into two
species ; the salmo solar or common salmon, and
the salmo erlox / the latter has different names in
different districts, such as salmon peal, sea or bull-
trout ; but its most correct appellation is sea-trout ;
points out the difference ; multiply in winter
and require running water ; has seen salmon full of

NOTES,

I believe there is but one species ; that the peal, the fcrout,
and the salmon are one species of fish. If there is any
difference I never could discover it, and I have examined
and compared a great many, side by side, in every part of
the body, general shape, head, tail, fin, ray, brachia, la-
teral line, spot, and also in the flesh itself; there is not a
fiftieth part of the difference that there is between veal
and ox beef.

If roe be visible in salmon in March, and such roe is
not shed until the autumn months, it must lie in the parent

L 3

150 ABSTRACT OF EVIDENCE

ova in March ; young salmon do not go far into
the sea from the rivers, for in August and Sep-
tember, fish, exactly resembling them in form, and
from ten to fourteen inches long (called whitings or
whitelings*), without visible ova or spermatic secre-
tion, are found in salmon rivers a mile or two from

NOTES.

fish to increase in number and size six months or upwards.
— The roe in the peal must be the same, and therefore not
fit to spawn for many months after it is seen in July and
August.

* This is the salmon peal to be sure, or young salmon ;
but Sir H. D. is mistaken in saying that they have no visible
ova. 1 have seen a great many this summer taken in
the Dart, with a visible though embryo roe, and calcu-
lated only to be shed at a very distant time. The fish are
taken twelve or fourteen miles from the sea in the Dart, and
would go further up if the weirs and fish-locks would allow
them.

Here Sir H. D. says, the salmon and the gilse are the
same fish.

I can say nothing about Scotch law ; but I understand
and believe that in England those cruives, answering to
our fish-locks, are altogether illegal. Three different sorts
of this contrivance I have seen, and there are" a great many
that I have heard described which I have not seen. The
public may depend upon it that there are few greater im-
provements to be made upon the fisheries, than a power
of keeping all salmon from artificial cuts of water into the
natural stream.

Sir Humphry Davy says, that the close time should be
enlarged generally ; but if a man of his scientific celebrity
had specified the time when the rivers shoujd open and

BEFORE THE HOUSE OF COMMONS. 151

the sea, and which return to the sea without attempt-
ing a further migration ; the next year they are fit
for propagation. The salmon fifteen or eighteen
months old are called in Scotland gilse ; gilse differ
in size, probably from their different ages ; those
spawned first under common circumstances, being

NOTES.

shut, it might have aided this inquiry. Since, however, I
have read the evidence of the witnesses before the Com-
mittee, I adopt their opinions, that the close time should
commence on the tenth of September, and not be delayed
a day beyond it ; that the sessions should be stripped of
this power ; and that, as all the witnesses agree, that there
should be the same close time for all the rivers in England
and Scotland, the legislature should cut short the discus-
sion and fix the time at once. There is no pretence for
saying that different rivers are in season at different times
of the year ; it is contrary to every principle of nature. — It
may just as well be pretended that partridges breed in
Kent and in Cornwall at two different seasons.

It is likewise said by Sir H. and by all the witnesses,
and, indeed, it is the generally received opinion, that the
eggs of the salmon require to be deposited in beds covered
with running water. That such is the common habit of
the fish is quite certain ; how far it is absolutely requisite
is another matter ; we can only conclude, that " what is,
is right;" that as it is so, it is necessary it should be so,
though the cause is hidden from us. Every sort of bird build s
a nest so distinguished in its character from that of another,
that the nest of every species may be so decidedly known, as
to establish a rule and a law of nature admitting of no ex-
ception : for instance, the thrush lines his nest with mud or

L 4

152

ABSTRACT OF EVIDENCE

of largest size ; the gilse that has spawned after re-
turning from the sea is called a salmon ; growth of
salmon in the sea not accurately known ; all fish-
eries have decreased in England, Scotland, and
Ireland. The simple remedies for this national evil
are : —

NOTES.

earth ; not one thrush, but all thrushes, wherever thrushes
exist ; the blackbird, at all places, lines his nest with small
fibres or roots. Why or for what purpose this universal
distinction exists we know not; but as it is instinctive in the
animal, it is our duty to believe that the principle is placed
in him for somewise purpose: — nevertheless, we cannot
suppose but that the eggs of a blackbird could be hatched
in the nest of a thrush, and so vice versa ; as we know that
it is common in Egypt to hatch eggs in ovens ; and it is
possible that eggs are capable of being hatched in still water,
though it is the instinct of the fish generally, if not always,
to prefer running streams. Trout confined in ponds never
breed, but grow to a great size. But what will the world
say to the following fact, for fact it is, because my in-
formant, a man of credit, will verify it on oath ; and he has
no interest in saying what is untrue. Though it is a com-
mon saying, that one had better tell a probable lie than an
improbable truth, yet a truth should never be withheld be-
cause it is improbable. The fact related is this: — a few years
ago my informant says that he, with two more, caught
two salmon in rather a poaching way ; one of the fish
weighed six pounds, which they gave to their assistant ;
the other was a very large fish of about 20 pounds weight*
both apparently in high and seasonable condition. He
and his companion kept the large fish, and divided it ; the

16

BEFORE THE HOUSE OF COMMONS. 153

1. To suffer more fish to spawn of all ages and
sizes.

2. To prevent any fish from being killed in rivers
after spawning.

3. To prevent the young salmon and salmon
fry from being killed.

NOTES.

head part happened to fall to his share; the fish was a
female and had a great quantity of pea, but they were not
in a very forward state, being about the size of swan shot.
The next day his wife boiled part of this fish for their din-
ner, but it was not eatable ; it looked like glue ; the ap-
pearance was enough to turn a man's stomach ; and it was
of course thrown away. He was displeased with his wife
for not having boiled it properly ; but she maintained that
she had dressed it as she had always dressed salmon before.
He then enquired of his companion how his part of the
salmon turned out, and was answered, that it was good for
nothing, and totally uneatable. He was then convinced
that the fish was out of season ; this was in the month of
September ; and he immediately buried what remained, the
Jish and the pea, in his dunghill. He did this as secretly as
possible, being ashamed lest any one should discover such
a thing in his possession. — After this he thought no more
of the buried fish, concluding that the whole would rot and
perish. About two months afterwards, he sold the heap
of dung to a person of the town, who sent a man with a
horse to carry it into his field for manure. By the time
this man had dug a little way into the heap of dung, the
fellow began to hop and caper about, crying "snakes' eggs!
snalccs* eggs !" — and laid about him in all directions with
his shovel, to crush and destroy them. He had himself no

154 ABSTRACT OF EVIDENCE

That salmon and sea-trout return to the rivers,
and stake-nets should not be allowed on the coast.
No cruives or weirs, to prevent the running up of
fish, should be allowed ; that is to say, no close-

NOTES.

idea but that they really were the eggs of this reptile, which it
is well known deposits them in dunghills ; but presently after,
the head of the salmon and the back bone made their ap-
pearance. These eggs 'were full as large as the top of a man's
JZnger ; they must, then, have grown there to that size, from
the bigness of swan shot ; from what causes it must be con-
jectured. It is to be lamented that here the fact ends, and
that an examination of some of the eggs had not taken
place ; but such was not the case. Still it must appear
very wonderful to every one, that the pea of the fish, under
such circumstances, should have retained life for such a
length of time, and have grown so very considerably As
to ultimate consequences, there can be little doubt, but that
if these eggs had been suffered to remain in the dung for
the space of time that they usually remain in the sand-beds
in the water, they must have been all addle. The only
inferences which I draw from this fact are, first, that the
eggs continue to grow after they are laid, and until they are
vivified by the heat of the sun ; and secondly, that they attain
a size equal to the production of a fish three inches in length.
I need not add, that they are very little larger than this
when we become first acquainted with them, in the charac-
ter and under the name of fry, and see them making the
best of their way down the rivers towards the sea. We
may truly say, " Ex fumo dare lucem ,•" who could have
thought that such a trivial incident would have thrown
light upon the works of nature, and have explained a phe-

BEFORE THE HOUSE OF COMMONS. 155

tmds ; so that there should always be a free
passage for fish, that early fish may go up as well
as late fish ; no burning should be allowed in a
river, by which all spawning fish may be killed;

NOTES.

nomenon that the naturalist, and the most acute observer
of these things, never guessed at? It always puzzled me to
understand how the young fry should first appear from an
egg not larger than a pea, since they could not then exceed
half an inch in length, and would be exposed, unable to
protect themselves, to the ravenous jaws of trout, eels,
and other fish ; independently of their own parents, who, as
some say, are always on the watch to seize and devour
them. It seemed an impossibility ; but the fact is now ex»
plained : the eggs, differently from the eggs of birds, must
grow, after exclusion from the body of the parent ; this they
do, until they attain a size capable of producing a fish of three
inches in length, for they are never seen less, and the angler
frequently takes them of that size. Then it is that they
burst into life ; and, as Mr. Little says, " the tails come up
first, part of the pea sticking about them." This last remark
is a strong corroboration of the above discovery : for if
they were so small, as they must be if they proceeded from
an egg not larger than a pea, it would be very unlikely
that they should in the water be able to be seen at a dis-
tance, with their tail first appearing, and the pea sticking
on them.

Those who have means, opportunity, and curiosity to
investigate the wonderful works of the Almighty, may, by
an experiment, ascertain whether or not there is any truth
in this deduction. It is, at least, far more probable than
that the pea should remain in the sand-beds, in the state

1,5(5 ABSTRACT OF EVIDENCE

nets should be limited to a certain size, so as to
render it impossible to sweep a river j no angling

NOTES.

in which they came from the old fish, for three, four, or
five months, and then produce a little diminutive animal,
incapable of self-protection, and surrounded by enemies of
every description, intent upon devouring him. I rather
wonder that, under so particular an examination as Mr.
Little's, it was not ascertained, either from him or the
other witnesses, what was the actual size of the fry when it
first appeared from the sand-bed*

I should not have ventured to publish the extraordinary
anecdote which I have related, if my informant had not
offered to attest it upon his oath ; and he will do so at any
time.

POSTSCRIPT.

Sept. 24>th. — HAVING mentioned the above extraordinary
circumstance of the growth of the salmon pea in the dunghill
to a gentleman who has devoted a long life to the study of
natural history, he appeared to be greatly astonished. The
next morning he said to me, that he had been thinking of
what I told him almost the whole night, and he was con-
vinced that it was impossible to be true ; that the eggs must
have been those of a snake. Upon this, I made a point of
seeing the labourer who removed the dung, and to my
questions he gave the following answers: — That he perfectly
well recollected the circumstance before stated ; at first he
thought the eggs mentioned to have been snakes* eggs,,

BEFORE THE HOUSE OF COMMONS. 157

should be allowed in salmon rivers till May, and
not after October •> the period of close time should
be extended.

NOTES.

because he had often seen snakes' eggs in dunghills, " and
squeezed out the young snakes ;" (a sort of black snake
which is oviparous, and lays its eggs in a dunghill : it is not
poisonous, and will not bite ; no provocation will make him
do so ;) that these were about the same size, and he could
not expect to see any other eggs in a dunghill ; but he soon
found that they were not so, but were the roe of a salmon,
of which he presently after turned up the head and jowl ;
that they were about the " size of a magpie's eggs 5" of a
reddish colour ; not oval, but perfectly round ; in number
a great many hundreds, whereas a snake only lays about
1 5 or 1 6 ; that he did not examine their contents particu-
larly, though he observed they contained a liquid matter ;
and that such as were not destroyed he carried away in the
dung.

158

A VIEW OF THE STATUTE LAWS RELATING TO THE
SALMON AND CHANNEL-FISHERIES.

THERE can be no stronger proof that the com-
plaint of the scarcity of fish, particularly of the
salmon kind, is well founded, than the present
deplorable state of the fisheries. That salmon
should formerly, even within the memory of man,
be sold at from a penny to twopence per pound,
and now at from two to three shillings, is demon-
stration that there is an error somewhere. There
does not appear to be any physical cause for it in
this part of the kingdom ; and therefore such
scarcity must entirely proceed from the defects oi
the laws, the indifference with which they are
regarded, the laxity with which they are put in
force, and the various mal-practices of those who
evade them. I shall not, in this place, add more
upon the subject, but will at once proceed to
examine those laws chronologically, and subjoin
such observations as their nature suggests ; at the
same time pointing out the destructive practices
by which they are evaded.

I have already exhibited the substance of an
act embodying the whole subject, and rendering
all other acts unnecessary; which, if put into

STATUTE LAWS. 159

execution, will restore the fish to its former abund-
ance. I here venture briefly to recapitulate the
outlines of my plan, which is, — First, that the
natural history and habits of the salmon should
be understood as well as possible, in order that
the subject may be discussed and conducted
with every advantage. — Secondly, that on the
progress of the fish from the sea to the rivers in
the autumn, for the purpose of breeding, he should
meet with no artificial obstructions to his attaining
the sand-beds, where alone the pea can be advan-
tageously shed. — Thirdly, that such fish, during
the breeding season, when the rivers are put in
defence, should be protected by the strictest laws.
— Fourthly, that the old or spent fish should on
no account be destroyed at any time whilst they
remain unseasonable, but should have free and
uninterrupted access to the salt water. — Fifthly,
that the salmon fry or spawn should not be taken,
but should have free access to the sea also. —
Sixthly, that no salmon should be taken by any
other ways or means than by a fair net of two inches
and a half broad in the mesh, during the period
specified by the sessions ; and that all unlawful nets
should be seized in the first instance. — Seventhly,
that all coops and fish-traps across and by the sides
of rivers and streams should be prohibited. —
Eighthly, that all weirs, if not absolutely destroyed,
should be so - constructed as to admit the free
passage of salmon, at all times of the year, up and
down rivers. — And, ninthly, that a sufficient num-

\60 STATUTE LAWS RELATING TO

her of conservators should be appointed, and sworn
to see the laws enforced.

If these principal objects are carried into a law,
salmon will soon be as plentiful as they ever were.
As we proceed, we shall see how inadequate the
present laws are to that end. Still, invalid and
defective as they are, some good may arise to the
public from their being put into execution, should
a new act never be obtained ; though it be confined
to removing obstacles and seizing unlawful nets,
under the 1st Elizabeth, with the assistance of a
jury. The first act on this subject is,

9 HENRY III. c. 23.

66 All weirs from henceforth shall be utterly put down
" by Thames and Medway, and through all England, but
*' only by the sea coasts."

Confirmed and amended by 12 EDW. IV. c. 7.

With respect to weirs, a very important deter-
mination took place a few years since before Lord
Ellenborough. It was the case of Wild and
Hornby, 7 East. Reports, p. 195. The pleadings
and arguments of counsel may be seen by referring
to the reports, but I shall only transcribe the
judgment of the court as delivered by Lord Ellen-
borough. The action was brought for building an
impervious stone weir or dam in lieu of an ancient
brush-wood weir ; and a verdict was given for the
defendant. The question came before the court
on an application for a new trial ; and when it was

THE SALMON AND CHANNEL FISHERIES. 161

moved to set the rule nisi aside, Lord Ellenborough
expressed himself as follows : " It is impossible to
'" sustain this verdict. The right set up by the
*6 defendant to have a stone weir is plainly founded
*' upon encroachment. The erection of weirs
" across rivers was reprobated in the earliest
*' periods of our law. They were considered as
" public nuisances. The words of Magna Charta
" are, ' that all weirs from henceforth shall be
" ' utterly pulled down by Thames and Medway,
" < and through all England;' and this was followed
" up by subsequent acts, treating them as public
<c nuisances, forbidding the erection of new ones,
** and the enhancing, straitening, or enlarging of
" those which had aforetime existed. I remem-
" ber that the stells erected in the river Eden by
*' the late Lord Lonsdale and the Corporation of
" Carlisle, whereby all the fish were stopped in
" their passage up the river, were pronounced in
" this court, upon a motion for a new trial, to be
" illegal, and a public nuisance. Now here it ap-
" pears, that, previous to the erection of this com-
" plete stone weir, there had always been an
" escape for the fish through and over the old
" brush- wood weir, in which those in the stream
" above had a right ; and it was not competent for
" the defendant to debar them of it by making an
" impervious wall of stone through which the fish
" could not insinuate themselves, as it is well
" known they will through a brush- wood weir, and

M

162 STATUTE LAWS RELATING TO

" over which it is in evidence that the fish could
" not pass except in extraordinary times of flood.
" And however twenty years' acquiescence may
" bind parties whose private rights only are affected,
" yet the public have an interest in the suppression
" of public nuisances, though of longer standing,
" No objection, however, of this sort, can apply to
"the present case, where the action was com-
" menced within twenty years after the complete
" extension of the stone weir across the river, by
" which it has been proved that the plaintiff has
" been injured. Then, however general the words
" of the ancient deeds may be, they are to be con-
" strued, as Lord Coke says, ' by evidence of the
" ' manner in which the thing has always been
" « possessed and used.' " — Lawrence, Justice.
" The jury themselves have found the fact that the
" plaintiff's fishery is injured by the stone weir,
" and therefore the verdict is against the evidence,
" and there is no bar to the action from any
"length of possession in the defendant." — Rule
absolute.

From this case there are many most important
conclusions to be drawn. First, that weirs across
rivers are public nuisances ; that new ones cannot
be built, or old ones altered ; that other obstruc-
tions impeding the passage of the fish are public
nuisances ; that an ancient weir having an escape
for the fish cannot be altered ; that one person
having a right to fish above, cannot be obstructed

THE SALMON AND CHANNEL FISHERIES. 163

or debarred of that right by another having a right
to fish below ; that though twenty years' possession
may affect private rights, it is no ground to sup-
port a public nuisance.

The public will know how and where to apply
this doctrine. There are too many opportunities
for such application, not only in this county, but
in this neighbourhood.

I lately took Mr. Chitty's opinion on the condi-
tion of Totnes weir, stating, that, within the
memory of man, the salmon could freely pass over
the old weir whenever there was sufficient water ;
that it then had an escape for the salmon, called
the gullet; about forty years ago, this old weir
being washed away, a new weir was built without
such escape or gullet, materially altered and much
contracted, having a wooden platform at the foot
or bottom, which rendered the passage of the fish
all but impracticable. From this moment the
number of fish began to decrease, until the fish-
eries on the Dart were almost ruined. The plat-
form was erected by a tenant whose object evi-
dently was to stop all the fish at that particular
place, that he might take them at his own pleasure.
About two years ago this weir was again washed
away in part ; the fish availed themselves of the
opportunity to ascend the river, and a vast increase
of young salmon was immediately perceived. The
weir was then again rebuilt, and altered a second
time, by which second alteration the passage of

M 2

104 STATUTE LAWS RELATING TO

the fish was rendered still more difficult than it was
at first, and became altogether impossible. On
which Mr. Chitty gave the following answer : —
" I am of opinion, that the above-mentioned alte-
" rations in the weir, constituting so material an
" obstruction to the water- course and fishery, is a
" public nuisance, and that any person, notwith-
" standing the lapse of time, may legally abate the
" same, or proceed by indictment. As the nui-
" sance has been so long permitted to continue, it
" will certainly be most prudent to indict the par-
" ties who cause this weir to be continued." Yet
this weir still continues.

Nothing can be more prejudicial to the salmon
fisheries than weirs, because they direct the natural
stream into artificial cuts, where snares are erected, in
which all the fish are taken. They are so contrived,
in such various shapes, at different places, that no
fish, great or small, can pass up or down but by the
permission of the owner. A well-known paper-mill
in this county has the whole contrivance under lock
and cover within the mill-house, and the capture and
destruction of the fish are committed in privacy.
No investigation can be made, or light thrown
upon the subject, but by entering a house by force
and breaking lock, and these are things not plea-
sant to be attempted. Weirs, however, may be
so constructed, as to answer the fair purposes of
trade, without entailing ruin on the fisheries. — So
much for weirs.

THE SALMON AND CHANNEL FISHERIES. a 65

13 EDWARD I. c. 47.

A penalty for taking salmons at certain times of die
year. — "It is provided that the waters of H umber, &c.
" and ail other waters wherein salmon be taken, shall be
"in defence for taking salmons, from the Nativity of our
" Lady* unto Saint Martin's Day; and that, likewise,
" young salmons shall not be taken, nor destroyed by nets,
" nor by other engines at mill pools, from the midst of
••" April until the Nativity of Saint John Baptist; and in
" places where such rivers be there shall be assigned over-
" seers of this statute, which being sworn shall oftentimes
" see and enquire of the offenders ; and for the first tres-
" pass they shall be punished by burning their nets and
" engines ; and for the second time they shall have impri-
" sonment for a quarter of a year ; and the third trespass
" they shall be imprisoned a whole year; and as their
66 trespass encrease so shall the punishment."

45 ED. III. c. 1.

Confirms the great charter, that is, the 9 Hen. III., in
all points.

13 RICH. II. c. 19.

A confirmation of the stat. Ed. I. c. 47., touching
the taking of salmon. — "Item, whereas after reciting and
" confirming the above statute, it enjoyned that young sal-
" mon should not be taken during the same time at miH
" dams, nor in other places, upon the same pain; prohi-
" biting the use of nets called stackers, nor .any other en-
" gine destructive of the breed of salmons. ' And in parts
" c where such rivers be, there shall be assigned and s*worn

* That is, according to Sergeant Hawkins, that no salmon
shall be taken between the 8th of September and the 11th
of November.

IVI 3

166 STATUTE LAWS RELATING TO

" * good and sufficient conservators of this statute, as it is
" ' oi'dained in the statutes of Westminster / and that they
" shall punish the offenders after the pain contained in
" the same statute, without any favour thereof to be
" shewed."

As no specific remedy is pointed out by these
statutes, I apprehend the only course to give them
effect is by indictment at the sessions, and that is a
remedy which is too often worse than the disease 5
no individual in his senses will incur the risk, un-
certainty, and expence of a proceeding of this sort j
therefore it may be said that this was a very ineffec-
tual law, and that our code had not then been orna-
mented by the discovery of " summary conviction.'*
It however appears that the legislature was very
much dissatisfied with the conduct of the conserva-
tors, for neglect of 'duty, as appears by the act which
next follows, though it does not appear that those
whom they next appointed had been more diligent ;
if they had, we should not now have so many public
nuisances as have been the ruin of the fisheries.
Young salmon ought not to be taken at any time of
the year, much less in the time prohibited by the
foregoing statutes.

17 RICH. II. c. 19.

Justices of the peace shall be conservators of the sta-
tutes made touching salmon. — " Item, after confirming the
"13 Ed. I. and the 13 Rich. II., but which statutes have
66 not been hitherto duly executed from default of good con-
" servators, as our lord the king hath perceived by com-
" plaint made to him in this present parliament ; where-
« fore it is accorded and assented , that the justices of the

id

THE SALMON AND CHANNEL FISHERIES. 167

"peace of all the counties of England shall be conservators
" of the said statutes in the counties where they be justices ;
" and that they and every of them, at all times when they
" may attend, shall survey the offences and defaults at-
" tempted against the statutes aforesaid; and also shall
" survey and search all the weirs in such rivers, that they
" shall not be VERY STRAIT for the destruction of such fry
" and brood, but of reasonable wideness, after the old
66 assize used or accustomed ; and that the same justices or
" any of them which shall find default or abuse against the
" statutes aforesaid, shall make due punishment of them
" which be found in default, after the content of the same
" statute; and that the same justices shall put good and
66 sufficient under-conservators of the same statutes under
" them, which shall be sworn to make like surveying,
" search, and punishment, without any favour thereof to
" be shewed; and moreover that the same justices in their
" sessions shall enquire as well by their officer as at the
" information of the under-conservators aforesaid, of all
" trespasses, misprisions, and defaults, made against any
" of the points aforesaid, and shall cause them which be
" thereof indicted, to come before them, and if they be
" thereof convict, they shall have imprisonment and
" make fin£ after the discretion of the same justices ; and
" if the same be at the information of any of the under-
" conservators aforesaid, the same under-conservator
" shall have half of the said fine." — [The remaining part
of the act relates to the lord mayor of London, as conser-
vator of the Thames and Medway.]

It seems that the main object of this act was to'
confer the conservancy of rivers upon the magis-
trates ; but I never heard or read of any inter-
ference of theirs on the subject. I cannot find,

M 4

168 STATUTE LAWS RELATING TO

either by the statutes at large, by Burn or Hawkins*,
that this act was ever expressly or impliedly re-
pealed ; and if not, it is still in force, and the jus-
tices are conservators of rivers virtute officii. They
have power to judge of the offences against the
statutes aforesaid ; to survey all weirs and see that
they are as they should be, that they may punish
the offenders discretionally. " Due punishment"
means, such as the justices think proper. They may
appoint under-conservators ; and they are bound in
their sessions, though they never do so, to enquire,
by virtue of their own offices and the information
of the under-conservators, of all trespasses against
the said statutes, and to cause the offenders to be
indicted. The 1 Hen. IV. c. IS. gives the sheriff a
power to pull down weirs ; but that act applies
more to ships than fish. If the magistrates would
act up to this statute of the 17 Rich. II. in the pre-
sent state of the fishery laws, they would do a great
deal of good. There must have been some great
defect or neglect in the execution of this act, for,
in the following reign,

4 HEN. IV. c. II.

Commissions shall be awarded to justices to enquire
of wears, kiddles, &c. — " Item, because that by weirs,
" stakes, and kiddles, being in the water of Thames and
" of other great rivers through the realm, and common
" passage of ships and boats is disturbed and much people
" perished, and also the young fry of fish destroyed, and
" against reason wasted and given to swine to eat, contrary
" to the pleasure of God and to the damage of the king

THE SALMON AND CHANNEL FISHERIES. 169

" and people, doth grant that the statutes thereof made'*
[that is, the statutes before mentioned] " be holden and
" kept and put in due execution ; joining to the same that
" commissions be awarded to certain justices and others in
" every county of the realm where need shall be, to enquire of
" all that which is contained in the said statutes, and to
" punish the offenders of the said statutes by fine, accord-
" ing to their discretions." The king reserves the fines,
which are to be estreated into the exchequer ; the sheriff
is to pay the justices four shillings a day for their travel-
ling expenses ; and he himself is to be paid out of the
exchequer.

As Mr. Serjeant Hawkins takes no notice of this
act of Hen. IV., perhaps he thougKt it related more
to other matters than to fish ; but the preservation
of the fry of fish and their improper application are
particularly mentioned ; and the act does not ap-
pear to be repealed ; the justices are therefore
entitled to their remuneration of four shillings a-
day if they think proper to put the act in force.
Next comes an act to prevent a very great and con-
stant abuse which is not before touched upon.

2 HEN. VI. c. 15.

No man shall fasten nets to any thing across rivers. —
" Item, it is ordained that the standing of nets and engines
" called trinks, and all other nets, shall be and were wont
" to be fastened and hanged continually day and night by
" a certain time of the year to great posts, boats, and
" anchors, over-thwart the river Thames and other rivers
" of the realm, which standing is a cause of as great and
" more destruction of the brood and fry of fish, and dis-
" turbance of the common passage of vessels as be the

STATUTE LAWS RELATING TO

weirs, kydels, or any other engines, be wholly defended
for ever ; and that every person that setteth or fasteneth
them hereafter to such posts, boats, and anchors, or like
thing, continually to stand, as afore is said, and be duly
thereof by the course of law convict, shall forfeit to the
king Cs. [that is, 1005.] at every time that he is so
proved in default : Provided always, that it shall be law-
ful to the possessors of the said fisheries, if they be of
assize, to fish with them in all seasonable times, drawing
and pulling them by hand as other fishers do with their
nets, and not fastening or tacking the said nets to posts,
boats, and anchors, continually to stand as afore is said,
saving to the people their right of fishing."

The misfortune of this act of parliament is that
it can only be enforced by the king's attorney-
general, as the fine is to the king ; it is, however,
greatly abused, for there is no practice more com-
mon than for the fishermen to do that which this
act expressly prohibits. I have been an eye-wit-
ness to it several times. Salmon move up the
rivers on the flow of the tide, generally keeping in
the middle, and in the deepest water ; at the proper
time after the tide has begun to rise, a net is shot
off on one side, and there held generally by a man,
and carried by the boat to the other, to which it is
fastened, so as to be secured on the one side by the
man, and by the boat on the other. This is con-
tinued as long as the fishers think necessary ; which
is generally about half an hour, more or less. Be-
fore the first net is drawn a second is cast off) and
remains for the like space of time. Thus they con-

THE SALMON AND CHANNEL FISHERIES. IJl

tinue alternately, during that part of the flow of the
tide when they think the fish are in motion. This
has the effect of impeding the passage of the fish,
and is also a very unfair practice, since it prevents
another from enjoying his right above. As the
word " engine" is made use of in this act, I do not
see why the power of the justices as conservators
should not extend to the bars and gratings which
cross the rivers and prevent the passage of the fish,
and " which are fastened and jixed every day and
night" Few things can be more prejudicial to the
fisheries ; and I would humbly suggest whether these
bars impeding the fish, and coops having bars only
one inch and two-tenths wide, from which the fish
after they get in cannot escape, being a descrip-
tion of engine, are not within the letter and meaning
of this act, and are not altogether public nuisances,
and founded on encroachment. It may be dif-
ficult at the present day to say what particular de-
scription of engine a trink is ; but the statute re-
quires that those who use them should have them
" of assize" from which it is evident, though no act
mentions the size of the mesh, except that of Eliza-
beth, that there was an anterior limitation upon
this subject applicable to nets as well as to engines.
It is not much to be wondered at that but few
questions have arisen on this statute, as the penalty
is given to the king. I am aware but of two ; the
first is 12 Coke, p. 89., Mich. 9th James, in
which it was held that nets are not to be fastened
to posts, boats, or anchors, but to be drawn conti-

172 STATUTE LAWS RELATING TO

nually by the hand, as is the practice with other
fishermen : the mischief lies in the fastening them.
This case is reported in Mr. Chitty's Appendix,
p. 866. The other is somewhere in the Term
Reports I believe, but I cannot find it at present.
It is so many years since it came under my obser-
vation, that I have forgotten the result. — I am
only certain of having seen it ; and should feel
indebted to any one who would point it out.
Fastening nets, contrary to this statute, is a prac-
tice as common as it is pernicious ; but the penalty
of this statute is very inadequate to the suppres-
sion of the evil ; it is not within the jurisdiction of
the magistrate, or the subject of an indictment;
there appears to be no other remedy than an action
at the suit of the king ; consequently there is no
remedy at all,* and the fishermen may at their option
place and fasten their nets as long as they please.
I publish this in the hope that an effectual law will
soon take place to mend the evil, for it ought not
to continue.

12 EDWARD IV. c. 7.

"An Act for taking away of Weirs and Fish-garthes." After
reciting all the before-mentioned statutes, and confirming the
same, for pulling down of weirs; "it is further enacted, that
" if it be found that any such weirs, mill-dams, mill-stanks,
" locJcSy ebbing- wears, stakes, kedels, hecks, or flood-gates,
" be made, levied, enhansed, straitened, or enlarged,"
the offenders being warned by the sheriff, of such weirs,
&c., and within three months next after they do not break
down the same, shall forfeit to the king 100 marks ;

THE SALMON AND CHANNEL FISHERIES. 173

and if the offence is continued after three months, then the
forfeiture to be 1 00 marks a month ; half to the king, and
half to him that will sue for the same by action of debt,
with the like penalty against the heir of the offender.

By all these acts it plainly appears, as Lord Ellen-
borough said, "that the erection of weirs across
" rivers was reprobated in the earliest periods of
" our law. They were considered as public nui-
" sances (stating the words of Magna Charta) ;
" and this was followed up by subsequent acts,
" tre'ating them as public nuisances, forbidding
" the erection of new ones, and the enhancing,
" straitening, or enlarging of those which had
" aforetime existed." — And this act of Edward IV.
plainly says, not only that weirs but locks shall be
destroyed under certain penalties. And if diffi-
culties occur in enforcing the payment of those
penalties ; if they are public nuisances and en-
croachments upon the rights of the public, they
still continue indictable offences ; and it is well de-
serving the consideration of all lawyers, whether
these weirs, fish-locks, and fish-coops, erected across
rivers, and streams connected therewith, so de-
structive to the fisheries, are legally erected and
cannot by some means or other be removed. We
see what the before-mentioned acts say upon the
subject ; and as it was admitted in 12 Co. Rep.,
that the statute of Hen. VI. "was in full force," so
there is no reason for doubting, but that this sub-
sequent one is equally so, as it does not appear to

174

STATUTE LAWS RELATING TO

be repealed. If it be in force, I do not see how
these fish-coops and locks can be justified.

It has often been to me a subject of much sur-
prise, that these fish-locks, contrary to the express
letter of so many acts of parliament, should ever
have been erected ; and still more, that they should
have been continued and tolerated for so many years.
One is very apt to fancy that certain things which
have long existed have had a lawful origin : from
having been accustomed to see the fish-locks upon
this river from a boy, I always imagined that they
were built on some well-grounded authority, and
never entertained a doubt of their lawful existence
in some shape or other ; but on closely examining
this right of erecting fish-locks, I cannot find that
there is any ground upon which it can be justi-
fied. This is, perhaps, one of the most important
branches of this subject, for if a man can cut a
channel through his private property to take in an
entire river, and in that channel place, under cover
and lock, a trap which must take every fish going
up and down the river, it is quite absurd either to
write or to legislate for the purpose of improv-
ing the salmon fisheries. From all that I have ever
been able to collect on this subject, it appears that
these proprietors of fish-locks have nothing to sup-
port their claim but usage or prescription ; and that
though they originated in usurpation, yet the heal-
ing hand of time has sanctified their illegal creation,
However, I do not understand that there is any

THE SALMON AND CHANNEL FISHERIES. 175

prescribing against an act of parliament, or that
any duration of enjoyment will legalise encroach-
ment. If the channel and trap be private property f,
the power of taking fish contrary to law cannot be
a private right. The net of the fisherman is private
property ; but he cannot take fish with such net un-
less the mesh be constructed according to law. This
seems to me to decide the question.

We are now arrived at a more enlightened and
less turbulent period, — the reign of Queen Elizabeth.
By the strong language used in the preamble to
a statute passed in the first year of her Majesty's
reign, it appears that very great excesses had been
committed by the destruction of the fry of fish ;
and therefore, by —

1 ELIZ. c. 17.

Entitled, " An Act for the Preservation of the Spawn and
Fry of Fish, (at first limited, but made perpetual by the
3 C. I.)—

1. It is enacted, that no person with any manner of
net, or device, or engine made, or to be made, shall take or
kill any young salmon or other jish, at weirs, mill-tails, or
other places, or take or kill salmon not being in season.

2. No person shall take or kill salmon not being 16
inches in length.

3. No person shall fish or take Jish with any manner of net,
$c., " or by any other engine, device, ways or means whatso-
" ever, but only with net or tramel, whereof every mesh or
" mash shall be two inches and a half broad ;" angling ex-
cepted.

4. Smaller mesh-nets may be used for taking certain
small fish, provided other fish are not taken therewith, con-
trary to the tenor of this act.

176

STATUTE LAWS RELATING TO

5. Penalty is 205. with the fish taken, and the unlawful
nets or engines.

6. Certain persons are empowered to enquire into of-
fences against this act, by the oaths of twelve men, and
to hear and determine the same in their respective juris-
dictions, and conservancy.

7. Application of the pains and forfeitures.

8. Lord of the Leet to enquire of offences within the
Leet.

9. Forfeiture to the lord of the Leet.

10. A steward of a Leet, who does not give this act in
charge to the jury, forfeits 40s. ; half to the queen and her
successors, and the other half to him who shall sue for the
same (qui tarn). Every juror who conceals any offence
forfeits 205.

11. If the offences "for taking, killing, or destroying
« ofjfish, or fry and spawn, be not mentioned at the Leet
" where they shall be committed, within one year after such
66 offence committed, that the justices of the peace in their
" sessions, justices of oyer and terminer, and justices of
" the assize in their several circuits, shall have full power
" and authority to enquire thereof, and to hear and deter-
" mine all offences committed contrary to the tenor of this
« act."

1?. A saving of the liberties of all persons having a
right to enquire of and punish the offences."

13. This act doth not extend to the Tweed and certain
other rivers.

The first part of this act is nothing but a repe-
tition of former acts, with this addition, that it
affixes a penalty, but no one can tell whether it is
2Qs. or 207. ; and it prohibits the taking unseason-
able jftsh. This is fresh and wise matter ; but it

THE SALMON AND CHANNEL FISHERIES. 177

was not a very wise act for the legislature to de-
clare, in the 43d of the late king, that all salmon
taken in the Dart, Teign, and Plym, between Fe-
bruary and November, should be deemed season-
able, unless they had the power of making them so ;
because they ought to have known that the greater
part of the salmon in the early part of the year, and
all the old back, or spent fish, are not only unsea-
sonable, and uneatable, but are absolutely poison-
ous. Lord Chief Justice Wilmot was mistaken
when he said that " an act of parliament mowed
down every thing before it." It cannot mow down
or change nature, with all its power; it cannot make
a salmon seasonable that is fit only to be thrown
to the dunghill, or make that fit to be eaten which
is poisonous. If those who gave their assent to
this extraordinary measure had been compelled
first to eat half a pound of unseasonable salmon,
I rather think they would have paused and consi-
dered a bit before they committed so palpable and
outrageous an absurdity. We must give this act
of 2 Eliz. full credit for fixing the size of salmon,
not to be taken, and the mesh of the net by which
they are to be taken. This is also entirely new
and valuable matter, and we may reasonably infer,
that as the act says they shall not be taken " by any
"other engine, device, ways, or means whatsoever,"
those destructive and abominable engines called
fish locks, and fish coops, are altogether unlawful
and indictable. This appears to me to be as clear
as the noontide sun. It is equally true that no one

N

178 STATUTE LAWS RELATING TO

can justify taking salmon but by the fair and legal
net, which is the net described by this act. The
use of other nets to take small fish opens a door to
much fraud, since, under a pretence of taking fish
of little or no value, vast quantities of unsizeable
salmon are destroyed: this is a widely-extended
evil and a source of much complaint.

I am not antiquary enough to give any opinion
upon the value of %0s. in the days of 2 Eliz., nor
am I competent to say whether the penalty is 20s.
or 207. ; Dr. Burns thinks it is the former ; but
under such and other circumstances there may be
difficulty in recovering the penalties, which is the
weakest part of the act, at least as suitable to the
present times. Still the engines and traps may be
seized and destroyed, which is a very great point,
since it opens a free passage to the fish, and enables
them to keep in the natural streams. The unlawful
nets may be seized likewise if they can be found ;
but neither they nor the engines can be seized be-
fore conviction, as was determined in Bulbrooke's
case, 3 Bur. 1770. It is perhaps the difficulties
attending the execution of this act ; and the prac-
tice of holding courts of conservancies having be-
come obsolete, except such as are within the pre-
cincts of a leet; added to the trouble and expense
of summoning juries, and the neglect of stewards
to give the act in charge to those juries, that have
perpetuated the use of those unlawful nets with
which salmon are constantly and openly taken ; and
been the 'means of encouraging the number of un-

THE SALMON AND CHANNEL FISHERIES. 179

lawful engines, coops, and traps upon the rivers
and rivulets in this county, so particularly favour-
able to the breed of salmon. The inquisition of a
jury is a very constitutional way of investigating
offences, but the conservator should have the power
of seizing the unlawful nets in the first instance,
instead of first giving evidence of such illegal nets,
and then trying to seize them when they are not to
be found. The most satisfactory and decisive evi-
dence of the existence and state of a thing is the
thing itself; and therefore the net should be taken
and presented to the jury, which is more conclu-
sive than a thousand oaths. It has been determined
that the killing ever so many hares on one day,
incurs only one penalty. I suppose the law is the
same in killing fish ; and the occupiers of fish
coops, and those who use small mesh nets, can very
well afford to pay this trifling sum, which is but
20s. per day for all the fish they catch, if they
should be compelled to do it. It is another very
important part of this act, that in default of pre-
sentments to the leet, of offences after a year, the
sessions and judges of assize have jurisdiction over
them ; this is shamefully neglected ; but I hope
will not be so for the future, as it may be done at
any time. Though there are many important
points established by this act, yet generally speak-
ing, it must be admitted that it stands in much
need of reformation and amendment. The laws of
" summary conviction," as before observed, were
unknown in those days ; and though they now form

N %

180

STATUTE LAWS RELATING TO

so material a branch of the legislation of this coun-
try, yet there is no occasion for their being en-
larged or extended. Trespasses against the fish-
eries may be brought before the sessions, and there
tried by a jury in the first instance ; this would be
decisive at once, and more congenial to the spirit of
the English constitution.

That dreadful instrument the spear, (used only in
the breeding time, when the destruction of one female
fish is the extermination of so many thousands) was,
it is likely, unknown in those days. It is now used
both by day and by night ; and it is thought that
more fish are destroyed by the latter than in the
former : but this point has been treated of more at
large in another place.

The penalty of 20s. was altered to 51. by the
1 Geo. I. ; but then that penalty only applied to
particular rivers mentioned in the act, not one of
which is in Devon, where are some of the finest
rivers in England for the breed of salmon j the act,
then, is not general.

Every steward of a leet is subject to a qui tarn
action for not giving the statute of Eliz. in charge
to the jury. On the whole, this act of Eliz., if put
in force, would be very beneficial in many points.
The best parts of it, however, are turned to no
account, and its defects, though numerous, are not
supplied. Still I understand the law to be, that no
salmon can be taken by any device, engine, or other
means than by the fair and lawful net. This alone
is of incalculable value if properly enforced.

THE SALMON AND CHANNEL FISHERIES. 181

33 Geo. II. c. 27.

No person shall take, have in his possession, or sell un-
sizeable or unseasonable fish. Any person may seize the
same with the baskets, and charge a constable with the
offender and with the goods, and carry them before a ma-
gistrate ; and on conviction before such magistrate the
same to be forfeited and delivered to such prosecutor, and
the offender shall forfeit 20s., half to the prosecutor and
half to the poor where the offence is committed ; on default
by distress ; to be committed to hard labour not exceeding
three months, unless sooner paid. Justices may remit the
penalty to one half.

i
Those who attempt to put this beneficial act in

force must keep in mind that they cannot seize any
unseasonable salmon taken upon Dart, Teign, and
Plym, because the parliament have made all fish
taken upon these rivers between February and No-
vember wholesome and seasonable, in law, though
they would poison a horse, in fact !

We have next in order of time to consider this
notable statute, in which we shall have something
to applaud, but much to censure ; and ample jus-
tice shall be done both to its good and bad pro-
perties. Being but a local act, and of confined
operations, I should not have noticed it, did I not
conceive that it contained some most pernicious
enactments deserving of public animadversion, as
well as some principles that cannot be very easily
comprehended, applying to three such rivers as
the Dart, the Plym, and the Teign, which, if

N3

182 STATUTE LAWS RELATING TO

properly regulated, would supply the whole county
with salmon at a reasonable price. I think it pro-
per that the defects of the act should be particu-
larly scrutinized.

43 Geo. III. 1803.

Proprietors of fisheries in Dart, Teign, and Plym,
Devon, or in any streams of water communicating there-
with, are empowered at any time between the 4th of March
and the 4-th of December in TEIGN, " with legal and pro-
" per nets, or hooks and lines, to take, kill, or destroy any
" salmon, salmon peal, or salmon kind," and to offer to sale
such fish between the last mentioned periods. And also
between the 15th of February and the 15th of November
on DART and PLYM, " with legal and proper nets, or hooks
" and lines, to take, kill, or destroy any such salmon, salmon
" peal, or salmon kind, and to offer the same to sale ; and
" such fish taken in the periods aforesaid, shall be deemed
" and considered to be in season and proper to beMled."

No one on Teign between the 4th December and 4th
March, and no one on Dart and Plym between the 15th
November and 15th February "shall take, kill, or destroy,
" pursue, liurty or injure, or attempt or endeavour to seek,
" take, kill, or destroy, or to pursue, hurt, or injure any
" salmon, salmon peal, or salmon kind, or any of the
" spawn, brood, or fry of salmon, or any kepper or shed-
" der salmon by any act, means, or device whatsoever,- nor
" shall any person offer to sale, or dispose of any of the
" said fish so taken in the times last mentioned ; and no
" person shall pursue, take, kill, or destroy, or seek or
" endeavour to take, kill, or destroy, pursue, hurt, or in-
" jure any such fish by means of any engine or weapon
" called a spear, nor offer such speared fish to sale."

" No rouges or sea trout shall be taken in the said rivers

THE SALMON AND CHANNEL FISHERIES. 183

" between the 29th September and the 2d February, and
" that none of the said fish hereinbefore mentioned, of what-
66 ever kind or description the same may be, shall at any
" time be pursued, taken, killed, or destroyed, or attempted
" so to be, or to be otherwise hurt or injured within the
" said rivers, at any time of the year on a SUNDAY."

Offenders may be convicted before any justice, either upon
view of such justice, or confession of such offender, or by
the oath of one or more credible witness, or the oath of
any such owner, proprietor, or other such person legally
entitled to fish as aforesaid, or his servants, who shall be
competent witnesses : penalty not less than 21. or more than
51., forfeiture offish and engines; second offence, not less
than 2/. nor more than I0l., with fish and engines ; one half
to the poor, the other to the informer, to be levied by dis-
tress and sale ; in default, commitment to hard labour, not
exceeding six months nor less than two. Justices shall
order the nets and engines to be seized and cut in pieces.
May appeal to the next sessions, entering into recogni-
zances, with sufficient sureties, to abide the event of the
appeal. Ten days notice in writing. Justices to determine
the matter of appeal, and give such costs as they shall think
proper. Costs may be levied by distress and sale. De-
termination of the sessions to be final, and not removable
by certiorari or any other writ. A public act. Judges
shall take notice of it without being specially pleaded.

The preamble to this act directly acknowledges
the force and effect of the statutes of Edward the
First and Richard the Second, and professes to be
passed for the express purpose of altering the times
mentioned in those acts for taking salmon. I
mention this fact as an answer to those who fre-

N 4

'ATUTE LAWS RELATING TO

quently amuse themselves by remarking that old
acts of parliament are become obsolete, when they
want to advance some favourite hypothesis or
opinion of their own, It might have been, and I
believe it was, not only necessary to alter the
times for taking salmon on Dart, Teign, and Plym,
but on every river; though, if the times of defence
had been left to the county sessions, or fixed by
the parliament in the first instance, it would have
been much more likely to have met the reason and
policy of the case, than to have settled it in the
manner we have seen : especially since it appears
that very little attention could have been paid to
the nature of the subject.

There are very few salmon which are in season
and fit to be caught so early as the 5th of March ;
there may be some* but not enough to pay the
fishermen for their nets, time, and trouble. The
defence of these three rivers is taken out of the
general act. The sessions have no jurisdiction or
discretion over the time for taking fish in them.
Certainly, in this instance, the act does "mow
down every thing before it," without mercy, judg-
ment, or consideration : there is no power to relax
its severity : the close .time is two months too late
and two months too early. If, indeed, it had been
left competent, to the magistrate to say, on the
production of the fish, whether such fish were in
season or not, (and it is impossible there could be
any mistake even from the appearance of the fish
alone,) then a stop, or, at least, some check might

THE SALMON AND CHANNEL FISHERIES. 185

have been given to this horrible, and it may be
justly termed, unnatural practice. But, by a ge-
neral sweeping clause, to say, that the fishing shall
commence at a given time, and that all fish taken
between two certain periods shall be deemed "sea-
" sonable and fit to kill," when they are not only
uneatable and nauseous, but absolutely poisonous,
is so repugnant to every notion we have on the
subject, that one can neither think of it with
patience, or write upon it with temper. All I will
say further about this inconsiderate enactment is,
that it ought immediately to be repealed : and that
if the day specified for beginning to fish is to stand,
the fact of unseasonableness, at least, should fall
back upon the judgment of the magistrate, accord-
ing to the 33 Geo. 2. — Let us now only look to
the consequences of the abuse of this power. The
people who occupy these fisheries are, generally,
yearly tenants ; they therefore destroy every thing
which comes within their power, for 1 have heard
them say, they don't know that they may have the
fishery the next season, and, like the Turkish judge,
they have purchased their situation, and will make
the most of it. I have been credibly informed,
and I believe that I could prove it on oath if ne-
cessary, that ship-loads of salmon, unsaleable in this
country, have been sent away to Guernsey and
other places, and sold at reduced prices : by this
I mean unseasonable fish, caught after the autho-
rised time. If these fish had been sent to Exeter,
in their way to London, they would have been

186 STATUTE LAWS RELATING TO

seized and condemned ; whether right or wrong is
not the question. These fish, I understand, were
old spent salmon returning to the sea after having
shed their pea. There ought not to be any power
to take such fish at any time; nor do I expect
that any man will venture to assert the contrary.
Indeed, I even doubt the validity of the power,
though proclaimed by parliament, on account of
its rendering the act nugatory and absurd, and
affecting to do that which parliament had not the
power to accomplish. To pronounce a rotten fish
eatable and seasonable, is an absurdity in terms,
and nugatory in effect: query, then, how far lawful ?
One would suppose that those legislators who
could so nicely discriminate and ascertain, from
the nature of the fish, why there should be a differ-
ence in the defence of the rivers Teign and Dart
by only a few days, when the two rivers lie only a
few miles from each other, must have known that
a great many fish were not fit to be killed after the
time mentioned in the act. Was this discrimina-
tion the result of science and reflection ? or was it
to promote the interest of the public, or the inte-
rest of individuals ? It should be altered without
loss of time, for the credit of the House, as an
oversight ; as well as for the benefit of the country,
as an evil.

Hitherto we have seen that there is nothing in
any of the acts before quoted, to legalize or justify
the use of fish traps and coops across rivers and
streams, for the taking salmon or any fish of that

THE SALMON AND CHANNEL FISHERIES. 187

species ; but, on the contrary, all the acts repro-
bate such engines and devices in the severest terms,
as ruinous to the fish, both old and young. For
the credit of this local act, under the circumstances
in which it was obtained, it is rather remarkable
that nothing should be introduced on this subject :
there is nothing, however ; and the fish are to be
taken by "legal and proper nets ;" of course, they
are to be taken by no other means. And what are
the legal and proper nets ? Why, those nets which
are described by the act of Elizabeth, of a mesh
or make of two inches and a half broad. The
same act says, that no fish shall be taken with any
manner of net, fyc. or any other engine, device, ways
or means whatsoever, except a net of the above
description. Upon what ground then do all these
fish locks, upon these three very rivers, so destruc-
tive to the rights of the commonwealth, stand ?
Clearly not by act of parliament — as clearly not by
the common law. Is it then by grant from the
Crown ? I believe not : and if it were, no royal
grant can prevail against an act of the three estates
of the realm. Neither will prescription, which
presupposes a grant, sanctify usages against so
many acts of parliament, or against the common
law, without a grant, and hostile to the interest, of
the public. I think Lord Ellenborough is pretty
clear and decisive upon this point. However, the
facts are now before the public, who will act as
they think proper. This I will venture to pro-
nounce, that the fisheries can never prosper whilst

188 STATUTE LAWS RELATING TO

fish locks, which, contrary to all the laws rehearsed,
abound in every direction, are suffered to exist.
It is a question well worthy the attention of
the public, if ever they wish to have salmon cheap
and abundant, to ascertain by the soundest law
authorities, whether these fish traps can be sup-
ported or not. If an engine or device of this
description be legal, then another question arises, —
whether the bars of this engine or fish coop ought
not to be two inches and a half wide or broad? for
it seems quite irreconcileable not only to law but
to common sense, reason, and justice, that the
mesh of the net shall be required to be two inches
and a half broad, so as to permit all un sizeable fish
to escape, and, yet, that the mesh of the coop
shall be suffered to be but one inch and two
tenths, so as 'to catch every unsizeable fish that
comes within it. The coop is but a wooden net ;
the difference is a mere distinction of terms : both
are engines for catching salmon : the one is claimed
to be lawful and the other is prohibited : but no
one can deny, that if the wooden stationary net, or
coop, is allowed to stand, it ought to be regulated
by the same mesh as the moveable corded or twine
net : this is nothing but common justice as well as
reason. Then arises another question, — whether
these engines can be at all stationary or fixed, con-
trary to the 2 Hen. 6., and the case reported in
Coke, where the judges held, that engines and nets
were not to be fastened, but were to be drawn
by hand as fishermen usually draw their nets*

THE SALMON AND CHANNEL FISHERIES. 189

Fishing with hook and line is nothing more than
a confirmation of the old English favorite recrea-
tion of angling, which is excepted by the statute
of Elizabeth; and which, I should hope, no one
will think of proposing to abridge.

The objects of the act are "salmon, salmon peal,
and salmon kind." By the first must be meant
the salmo solar , or common salmon ; as to the
second, the salmon peal, there is a power given to
kill them, under the supposition, I should imagine,
that this fish constituted a distinct species from the
former. I trust, however, it has been already satisfac-
torily shown to be young salmon, as its very name
denotes. It proceeds from the pea of the sal-
mon ; of which millions are destroyed in traps and
illegal nets, to the very great prejudice of the
salmon fisheries. There is not the slightest dis-
tinction between this fish and the full-grown
salmon, either internally or externally, excepting
in size ; and salmon vary from ten to nearly eighty
pounds. As to the loose expression, "salmon
kind," no one can tell what it means: it is so
indefinite, that we can but guess at its signification.
There are nearly thirty different species of fish
which authors include under the genus salmo, such
as the chars, the fario or trouts, and a great
many others; but the material, if not the sole
object of all the leges scriptce, has been the salmo
salar or common salmon, which includes as one
species, the salmon, the peal, and the trough or
sea trout, of which, I believe, there is but one

190 STATUTE LAWS RELATING TO

species, and not even a natural variety. There
may be a considerable difference, not only in the
appearance, but in the quality of salmon, in differ-
ent rivers, as there is in cattle even in the same
county, arising from food and climate. How un-
like each other are the common trout caught even
in different branches of the same river, yet they
are all trout, and the same species. This point
has, however, been already treated at large. I
shall here only repeat, that in my judgment, the
salmon peal, the trough, and the salmon, are all
one fish, at different ages ; and that all such as are
under the size mentioned in the act of Elizabeth,
ought not to be taken. Still, by this " mowing
down" act, they are allowed to be caught and sold,
and therefore they cannot be seized after they are
caught. Nevertheless, they can only be taken
with the "fair and legal net." Yet it is incredible
the number which have been destroyed this summer
in the fish coop at Totnes weir, and at the fulling-
mill trap, by a small-mesh hand-net. The public
ought to look into these shameful instances of
violation and monopoly. They may take their
" pound" if they can, but they have no right to
draw even one drop of blood after it : that pound
or this fish, that is, the salmon peal, can only be
justly taken by the "fair and legal" mode. If,
therefore, this act is enforced, they cannot be
taken at all, because they will all escape through
a two inch and a half mesh, which is the dimension
specified by the act.

16

THE SALMON AND CHANNEL FISHERIES. 191

There is an universal outcry from one part of the
kingdom to the other, against the causes which
produce the scarcity of fish, and no attempt is
made to remove them. I would recommend an As-
sociation for this purpose, such as is formed for the
prosecution of felons and trespassers. I am con-
vinced it would do a vast deal of service to this
cause; much may be effected by the co-operation of
many, that is wholly impracticable by the exertion
of an individual. I know that this system has an
amazing effect on the conduct of ill-disposed peo-
ple, when they know that a whole parish are bound
together to prosecute for offences. The expenses
of a prosecution, though terrifying to an individual,
are not felt by a great number united, and this
they well know and feel.

The oversight of considering all fish as fit to kill,
by a legislative act, that are not so in reality, has al-
ready been noticed. The spear, with other improper
means, is prohibited during the fence days ; but the
use of this deadly and destructive instrument will
never be abolished by the simple means chalked out
by this act ; a more efficacious remedy must be ap-
plied to this evil, the particulars of which have been
so plainly set forth. Rouges are young salmon, and
if unsizeable, ought not to be taken at all: this
act gives a power to take them in the three rivers
therein-mentioned, but it extends no further.

We are now arrived at the sabbath-breaking
part of the act : — " No fish hereinbefore men-
" tioned, shall at any time be pursued, taken,

192 STATUTE LAWS RELATING

" kitted, or destroyed, or attempted so to be, or to be
" otherwise hurt or injured, at any time of the year
" on a Sunday." Men do not, as far as I know,
take any active steps to break any of these prohibi-
tions on the Lord's day ; but what do they do ?
why, they set a trap on the Saturday night, or ra-
ther continue a trap which is set all the season, day
and night, exactly like a mouse-trap, by which the
fish can get in but cannot get out ; so that the fish
are virtually taken on the Sunday, and kitted on
the Monday morning. The act says, persons shall
not take, or otherwise attempt to hurt or injure
them ; but not only are many of the fish hurt
and injured, but actually destroyed by this means,
from the violent rush of the water. The fish,
then, by this trap are, contrary to the express
words of the act, taken, killed, hurt, and injured.
One of Dr. Johnson's definitions of " to take," is
" to get, to have, to appropriate ;" another, " to
entrap, to seize in a snare." Whether this^ is a
fair construction of the word " to take," as used
in the act, must be judged of when the fish thus
ensnared cannot escape, but may be taken pos-
session of by the hand, at any time when the water
is drawn off. Besides, this rush at Totnes weir, ac-
cording to the weight of water above, in the course
of the interdicted 24< hours, injures all the fish and
kills many ; nine dead salmon have been taken out
of this coop at one time, five at another, and many
others at different times, — this is a matter of positive
fact, and not of conjecture. It was intended that

THE SALMON AND CHANNEL FISHERIES. 193

all these rivers should be in defence during the
sabbath day ; yet this profanation is justified, as
every thing else is, when there is an interest in so
doing ; and how ? — the veil is too flimsy not to be
seen through. There are four fenders which open
into this weir- coop ; one of them is drawn ; the
fish may escape if they can through the space of this
drawn fender, but that is impossible, the water
rushing through, as may be easily conceived, with
an impetuosity that is irresistible. As soon as the
fish, old and young, get into the trap at the en-
trance beneath, they take refuge behind the three
other fenders in the eddy ; if they attempt to get
out by the drawn fender, the violent force of water
takes their broad side and washes them back upon
the bars below ; when thus beaten about, they are
soon either much injured or killed. This is the
course pursued throughout the season on a Sunday,
and thus are every one of the respective words of
the act violated, and the public injured. If the
fish can perform impossibilities, then they may get
out, but as they cannot do what is not to be done,
they are all taken. As a further proof that the
fish thus ensnared are taken and cannot escape, it
is a notorious fact, that on the Monday morning
there are more dead and living fish removed, than
on any other day of the week ; yet the act says,
they shall be neither killed, hurt, or Injured! It may
be very true that the fish are not taken out by the
Jiand or net on the Sunday ; but this is a mere
contemptible quibble ; the act must mean that they

o

194

STATUTE LAWS RELATING TO

shall not be taken possession of. Now a fish in a
trap from which he cannot escape, is as much taken
as a bird in a cage or in the hand. As well may
those who use the fair and legal net, draw on a
Sunday, and keep the fish in the water, encircled
by the net, until the Monday morning. No man
has any absolute property in fish until they are re-
duced to possession : there may be a qualified in-
terest, but that is liable to defeat by the fish shift-
ing their quarters ; and this taking and stopping
the fish may prejudice the rights of others. If the
possession of fish in a private pond gives a pro-
perty, so must the possession of fish in this trap if
the trap be lawful ; and I incline to think, that if
fish were to be stolen out of it, the occupiers would
be apt to say that the trespassers had incurred the
penalties of the 5 Geo. III., or the black act. The
fish, then, are as much taken and secured on the
Sunday, as if they had been encircled in a net
and only waited their deaths until the Monday
morning. The net and the trap produce the same
effect by different operations.

This act gives the magistrate a power to determine
offences, upon a view, which power does not exist
in the general acts. What this view can have refer-
ence to, I cannot imagine, unless it was intended to
be directed to these particular kinds of nuisances in
the characters of traps and engines; there is nothing
else mentioned in the act that demands a view, over
which the judgment is required to be exercised ;
and if so, there must be things in the contempla-

THE SALMON AND CHANNEL FISHERIES. 1Q5

tion of the legislature, as necessary to be destroyed,
which the magistrate has power to view and to de-
cide the fate of; but we seldom hear of these
things being done. The penalties are too trifling ;
but the destruction of the engines, if strictly en-
forced, would be of vast importance, since it would
open a free passage to the fish which are seen
trying to beat up the stream throughout the year.
This natural inclination must have some object,
though it cannot be explained or comprehended j
and that object of nature should not be thwarted by
injurious and perhaps injudicious mechanical con-
trivances, which certainly have this three-fold effect,
— viz. of giving a monopoly to one man, depriv-
ing another higher up the stream of his right,
and injuring the public at large. Another vast
evil attending these fish-locks is, that as they pre-
vent the new fish from going up the rivers, so they
operate also as an engine to prevent the old fish
from going down to the sea. Hemmed in thus, and
prevented from going to the salt water, they look
more like hakes than salmon. They wander up and
down, seeking for an outlet and finding none, until
they pine away and die. There are a great many
in this condition at the present moment above
Totnes weir.

The advantages, then, deducible from this act,
are, that the fish are to be taken by " fair and legal
nets," and consequently by nothing else ; there-
fore, not with the spear or other engines, which the
justice may seize and destroy,

o «

196

STATUTE LAWS RELATING TO

The disadvantages of this act are, that it justifies
the taking unsizeable and unseasonable fish. Salmon
peal, being young salmon, are all unsizeable, and
should not be taken, any more than salmon fry or
smelts. Nature, who is an unerring guide, should be
consulted in preference to the cunning suggestions
for private gain, which, however they may promote
the interest of individuals, are sure to end in
public mischief. It was a great misfortune for the
public that this act should have pronounced that to
be seasonable which neither was nor could be made
so; the seasonableness offish, as it varies so much
at every part of the year, as a matter of fact,
should have been made, as it was before, deter-
minable by the magistrate.

We are now come to the consideration of the
last general act for the preservation of the salmon
fisheries, — its merits and demerits ; arid I confess
it surprises me, that, in this enlightened age, some-
thing more to the purpose had not been produced.
How defective it is in many particulars will soon
appear.

58 Geo. III. c. 43.

1. Justices in sessions may appoint conservators to pro-
tect salmon and their fry.

2. Where no provision is made for limiting the time for
taking salmon, and fish of the salmon kind in any rivers,
justices may, at the request of any person, first giving
notice of his intention in some newspaper, fix certain days,
not exceeding 1 50 in each year, for each river > to be fence

THE SALMON AND CHANNEL FISHERIES. 197

days, during which' it shall not be lawful " to take, kill, or
" destroy, or attempt to take, kill, or destroy, any salmon,
" salmon-trout, or fish of the salmon kind, or any brood,
" spawn, or fry of such fish." — Justices may vary the num-
ber of days and the periods at which they shall commence.

3. No person shall kill any salmon or salmon kind by
hot lime, or other matter pernicious to fish ; or use any
fire, or light, or white object ; or lay down any kind of net,
engine, or device ; or do any act whatever, in any river,
&c., for the destruction of the brood, spawn, or small fry
of salmon therein (angling excepted) ; or shall hereafter
" make, erect, or set any bank, dam, kedge, or stank, net
" or nets ; or place any fire or fires, light or lights ; or
" white object or objects, so that the young fry or young
" salmon be prevented from going down from such rivers,
" &c. : forfeits for his first offence, not exceeding 10/., nor
66 less than 51. ; second and subsequent offence, not exceed-
" ing 151. nor less than 10£, with the fish, nets, weapons,
" lines, instruments, boats, devices, or things used in taking
" thereof."

4. Prohibits the taking or sale of fry, or any unsizeable
or unseasonable fish, " commonly called old salmon," or
salmon caught during the fence days ; conservators may
seize such fish with the baskets, and deliver the person on.
whom found to a constable, who is to take the whole to a
justice, and on conviction, such offender shall forfeit the
fish and baskets, and pay not less than 5L or more,
than 10/.

5. Nothing in this act shall legalize or demolish any net,
fish-lock, coop, bay, or other work, " which shall have been
" or may hereafter be lawfully erected" in any such arm of
the sea, or estuary, or mouth of any river ; or in or upon any
bank, land, or shore thereof, or near thereto, or in, or near
any river, rivulet, brook, stream, pond, pool, or other

o 3

198

STATUTE LAWS RELATING TO

water-mill heat, mill-dam, sluice, or cut which commu-
nicates therewith ; or to the present modes or methods
used for the taking and killing fish therein, other than and
as are in this act particularly prohibited.

6. Penalty may be recovered before one justice upon the
oath of one witness. If penalties and costs not paid, justice
may order the constable to take charge of the person con-
victedj and may grant his warrant to commit the offender,
unless the penalties and costs be sooner paid, or otherwise
may distrain for the same. Moiety to the informer, after
defraying the costs ; the other to the overseers of the poor.
In case of insufficient distress, commitment, for the first of-
fence, not less than two nor more than four months;
second, not exceeding eight months, nor less than six;
third, and every other offence, not more than twelve nor
less than eight ; to be kept to hard labour, without bail or
mainprise.

7. Justices, on receiving information, may grant war-
rant to apprehend offenders.

8. Owners of fisheries may be witnesses to prove of-
fences.

9. Penalties may be sued for in a summary way, or by
action to the use of the informer. Only one imparlance
allowed.

10. Forms of conviction : which shall not be quashed
for want of form, nor be moved by certiorari or otherwise,
but be final.

11. Persons convicted under this act not to be prose-
cuted under any other.

12. Appeal to be made to the next, or next but one,
general quarter sessions ; not to be heard unless the appel-
lant shall, within ten days next after such judgment, and
twenty days at the least before the holding such sessions,
give and leave in writing, as well at the public office of the

THE SALMON AND CHANNEL FISHERIES. 1Q9

clerk of the peace, as to the person or the dwelling-house
of the informer, notice of his attention to bring such appeal ;
and also shall enter into recognizance in 20/. conditioned to
try the appeal, and pay the costs within ten days. Justices
may, upon due proof of such notice given as aforesaid, hear
and determine every such appeal in a summary way, and
award costs, according to their discretion, to either party.
After ten days, costs may be levied by distress.

13. No action shall be brought for any thing done in
execution of this act, until one calendar month after notice
thereof in writing shall have been given to the person or
persons against whom such action shall be intended to be
brought, or left at his last usual place of abode, setting
forth the cause of action, and containing the name and
place of abode of the plaintiff or plaintiffs, and also of his
or their attorney or attorneys ; and that every action shall
be brought within the space of three calendar months next
after the cause of action shall arise, and shall be laid in the
county where the fact shall have been committed; and the
iefendants may plead the general issue, and give this act,
and the special matter in evidence at the trial, and that the
same was done by virtue thereof; and such person, at any
time before action brought, may tender amends to the party
complaining, or his attorney ; and in case the same be not ac-
cepted, may plead such tender in bar to the action, toge-
ther with the plea, if not guilty, and any other plea with
leave of the court : and if, on trial of such action, it ap-
pears that the same was brought before the expiration of one
calendar month next after such notice shall have been given
or left as aforesaid, or after the end of three months next
after the cause thereof shall have arisen, or if such action
shall have been brought or laid in any other county, or
after sufficient tender of amends, then the jury shall find a
verdict for the defendant ; or if the plaintiff shall discon-

o 4

200

STATUTE LAWS RELATING TO

tinue the same after defendant shall have appeared, or shall
be nonsuited, and if upon demurrer judgment shall be
given against the plaintiff, the defendant shall have double
costs ; and no action, suit, infprmation, or other proceed-
ing, shall be brought for any offence against this act, unless
the same shall be commenced within six calendar months
next after such offence committed.

14. Nothing in this act shall alter any act of parliament,
or any clause or penalty contained in any act, in force for
the regulation of the fisheries, or preservation of the fish
in any particular river, &c.

15. Saves the rights of lords of manors, who may appoint
conservators.

16. Nor to affect the rights of corporations, or to dimi-
nish any rights which they " did or might lawfully claim^ use,
or exercise in any river"

17. Nor the city of London.

Here ends the last general act relating to salmon
and their progeny ; and if the sense which is given
to some part of it be the true sense, it were better
for the public if no such act had ever passed.

The act is intitled and professes to be " An Act
for preventing the Destruction of the Breed of Sal-
mon, and Fish of the Salmon kind;" it adds very
little to the laws already in force upon that subject,
and yet, unless it did something more, it may have
been as well, and much better, left alone. I trust,
however, that the construction which is put upon the
clause adverted to is not the right one; if it be, it is
a "mowing down act" with a vengeance. So little
has the act to do with what it professes to be, that
its proper title ought to have been, " an Act to

THE SALMON AND CHANNEL FISHERIES. 201

regulate the times of the year for taking salmon,
and fish of the salmon kind," and there it should
have stopped, or have said something more satis-
factory and effectual. The act consists of 4,420
words, and contains one new clear idea, though it
is very doubtful how far even that has a beneficial
effect ; and one other idea, whose signification is
extremely ambiguous. This will appear in the
progress of our examination.

The power of appointing conservators, as we
have already seen, is mere surplusage, unless the
legislature extend the power and define the duty
of that officer, giving him also protection and re-
muneration ; and particularly the power, without
warrant, to seize and search suspected characters
prowling about by the banks of rivers, or lighting
fires — known and avowed spearers, in fact — and
to take them before a magistrate.

The power here given to the county sessions to
fix and regulate the fence days for each particular
river, is not only a new but a perfectly clear idea.
It will be pronounced by some to be one in the
praise of which too much cannot be said, and that
it entitles the person from whom it sprung to the
gratitude of every lover of good salmon throughout
the kingdom ; that it is the essence of good sense
and sound policy, since it places the exercise of a
discretionary power in the wisdom of the county,
the magistrates being gentlemen renowned for their
talents, activity, science, learning, independence,
and probity ; that without adding to the number of

202

STATUTE LAWS RELATING TO

useless, contradictory, and incomprehensible sta-
tutes, it completely supersedes the necessity of any
local act whatever, and justifies the compression
of the whole subject into one enactment ; and that,
as there are different opinions as to the times when
salmon are in season, and ought to be caught, in
particular rivers, such magistrates, in their legis-
lative capacity, would have the power, by hearing
evidence, to regulate this point to the satisfaction
of every one, if that be possible ; at least to the
satisfaction of themselves. I once thought this all
very right, but, on more mature consideration, I
think it extremely problematical, and am of opi-
nion that it will be more for the advantage of the
fisheries, that the legislature should at once put the
rivers in defence for the whole 150 days, which in-
clude the six winter months. Whether the salmon
of different rivers are in season at different times
of the year is another question, and has been fully
discussed already. The number of days, too, that
they may put the rivers in defence, being 150,
nearly half a year, exactly corresponds with my
idea, that salmon should only be taken in or about
the six or seven summer months, being prohibited
the three last and the three first in the year. Of
this, more is said at that part of the subject in
which we have considered of the time when rivers
ought to be put in defence.

The third section of the act professes to contain
the main objects for which it was passed ; namely,
that salmon should not be injured by hot lime, or

21

THE SALMON AND CHANNEL FISHERIES. 203

an incorporation of improper matter with the water.
This is saying something, and doing nothing, be-
cause the offence is one which is never practised ;
and if it be practised, it is an offence at common law,
indictable before the sessions, and punishable in a
much more exemplary and effectual way than that
provided by this heterogeneous act. A mischievous
farmer's apprentice may have been known to throw
a stone of lime into a brook in order to catch a
few trout, but this is a very rare occurrence ; and
it is so because happily it defeats itself, since the lime
corrupts the fish, and makes them unwholesome.
Bad as human nature is, it is not often that it in-
dulges in mere wanton mischief to answer no end
at all. When a public mischief is committed, it is
to answer some private end or other : either per-
sonal revenge or individual advantage ; in the pre-
sent case, if the one, it can but seldom occur,
and only in particular places ; the other can never
happen at all : this, then, amounts to nothing.

It next says, that no such means (that is, of
the lime, &c.) shall be employed, or anyjfire-light
or white object used, or any engine for destroying
the spawn or brood.

Fire and white objects are used to attract the old
breeding Jish within the reach of the spearer, that
they may be struck with greater and more certain
effect with that instrument, not to destroy the
spawn.

The destruction of the spawn by other improper
means is prohibited by former acts, as well as the

"STATUTE LAWS RELATING TO

use of improper engines and erections to prevent
tlje spawn from descending the rivers. And here
again it is extraordinary, that the fire, the light,
and the white object, should be secondly men-
tioned, when they are only applied for the purpose
of attracting the old fish. What then can lights
have to do with the fry, or their passage down the
rivers ? The whole of this section does extremely
little good to the cause, and is not very intelligible
either; for the magistrates do not know how to
frame a conviction by it. Taken in any sense, it
is nugatory and useless. It is very true that sal-
mon ought neither to be destroyed by lime nor by
arsenic, and they are as often taken by the one as
trie other : but who will eat fish rendered putrid
by poison? for lime corrupts and {nitrifies the
whole animal mass ; it acts upon a fish, as any one
who chuses to take the pains may, at any time, see
it act upon a snail ; it turns the whole body yellow
and corrupt. The offence, then, of destroying
salmon by lime, is little more than imaginary. The
young fry certainly ought not to be thus destroyed,
nor are they ; neither ought they to be obstructed
in going to the sea, nor are they, but in a very
partial way ; for if they were, there could be no
salmon. This rant, then, about destroying and
obstructing the spawn, is a mere outcry about
nothing. Those who imagine that the decay of
the salmon fisheries proceeds from the destruction
of the fry, or the barriers which prevent them
from going to the sea, know very little about the

THE SALMON AND CHANNEL FISHERIES. 205

subject. Formerly, perhaps, there might have
been great havoc of the fry ; they might have been
given as food for swine and dogs, when they were
in multitude like sand upon the sea shore ; but it
is not so now, generally ; a few, and but very few,
are taken by children in the diversion of angling,
nor is there any public object in taking a few little
trifling fish, not bigger than a man's finger: be-
sides, from their being so small, the few of them
that exist generally contrive to make their escape
to the sea. Salmon, then, are not scarce because
their spawn are destroyed or obstructed, though
impediment will occasion destruction, and destruc-
tion scarcity. This is all delusion and absurdity.
The scarcity proceeds from other causes. It is
not because the fry are destroyed, but because
they have never existed; because the parent stock is
obstructed in going to the beds of the rivers with
the freedom and facility they require ; because,
when they do get there, (scarcely any one can tell
how,) the spear is too much used during the breed-
ing season; because, after the defence ceases,
which always begins too late and terminates too soon9
the livers and their branches are again shut up,
and the old or spent fish are kept in a state of im-
prisonment in the fresh water, where they perish ;
it is because the young salmon, called salmon-peal
and sea-trough, on their return from the sea to
the rivers, are mostly taken in traps and coops in
an unsizeable state; it is because unlawful and
small mesh nets are used ; it is by throwing the fish

206

STATUTE LAWS RE]

[NG TO

out of the natural stream, where they ought to be
only taken by fair and legal nets, and might pro-
tect themselves, into artificial cuts, where they are
unfairly ensnared and taken in Jish-locks ; and in
the Dart, Plym, and Teign, by taking the unsea-
sonable, old, stinking fish, which the parliament
has made sweet and good. These are the evils
to be remedied ; — they are substantial, and not ima-
ginary. If the legislature be seriously desirous of
restoring the salmon fisheries to their former pros-
perity and productiveness, they must set about the
work, not by throwing sand into the eyes of the
public, or lime into the rivers, which may answer
the end of a monopoliser, but they must do it by
an independent, public spirited, and energetic dash
at the spearer, the unlawful obstructions, the traps,
the unwise limitation of the close-time, and the
other evils before mentioned ; then, and not till
then, will or ever can the salmon fisheries prosper,
so as to be of any service to the public.

The fourth section is little else than a repetition
of the 33 Geo. II., only extending the penalty
from I/, to 51. How strange it must appear to the
public at large, that all unseasonable fish shall be
seized and destroyed, excepting such unseasonable
fish as are taken upon Dart, Teign, and Plym,
where they may be caught, and sold — if a pur-
chaser can be obtained ; and eaten — if any one has
the stomach to swallow them.

Here, then, is an act of parliament professedly
passed for the preservation of the brood and fry of

THE SALMON AND CHANNEL FISHERIES. £07

salmon, which in no one particular contributes
towards that object, further than by regulating the
fence days. That this is the fact, is obvious and
undeniable. And when we come to consider the
next clause, the fifth section, if the construction
that some folks put on it be the legal construction,
it has the appearance of something even more cen-
surable, and excites a considerable degree of sus-
picion, not only with regard to the sincerity, but
the actual intention of the whole act. It invidi-
ously cuts up, in short, per stirpes, the good effect
of every act from Magna Charta to the present
day. However, I trust it is not so, and that,
even under this construction, the section is nuga-
tory, and bears within itself its own death-warrant.
I hope it can be relieved from this obloquy. Some
say, that though the professed and avowed object
is to preserve the salmon spawn, yet the true ob-
ject of this section is to legalize the fish-coops.
If this be indeed its real intention, and the va-
rious obstructions and fish-traps can stand against
all the acts which we have just seen, particularly
that of Elizabeth, which says, that the fish shall
not be taken by any engine, but the fair net ; —
against the common law, without grant or pre-
scription, but, by mere dint of daring encroach-
ment, from the neglect of putting the act of
Elizabeth into force, — then, I say, that unless this
section be repealed, the situation of the salmon
fisheries is of a very hopeless nature. If this sec-
tion is to countervail the general policy, and to

208

STATUTE LAWS RELATING TO

prevent the operation of the act, then the act is
altogether nugatory and useless ; for it
as demonstration can m

any th

is as plain
that

appear

if a fish-coop may be set across, and taking in, the
whole of a stream, so that no fish can pass or repass
without going into this trap, it ceases to be a ques-
tion,—it is an insult to common sense to make it
one, — whether the spawn can be preserved, or the
fisheries ultimately prosper. The law should judge
of these devices as they stood before the passing
of this act, and they should stand or fall by their
own merits.

Every stream abounds with these fish-locks.
Many belong to gentlemen of rank and fortune in
this county, who ought to shew a different exam-
ple ; and to exhibit to the public, by a liberality
of conduct, and an observance of the law them-
selves, where their true interest lies. But they
ingeniously profess that the spearers do all the mis-
chief. I grant that the spearers do enormous in-
jury, and it must be put a stop to, by some means
or other ; but if fish were plentiful, as they would
be but for the traps, and the various other ob-
structions, the practice of spearing would die of
itself; for the wretched spearer would have no
object in destroying an unseasonable ', worthless
fish, when he would be able to buy a good whole-
some one at, perhaps, a penny or three half-pence
a pound again, as salmon have been known to be
bought within the memory of man. At present,
whilst the trap proprietor destroys a hundred

THE SALMON AND CHANNEL FISHERIES. 209

without reproach or fear of consequences, the4
spearer is sent to the county gaol for killing a sin-
gle one.

" The colonel swears the agent is a dog ;
The attorney vows the colonel is a rogue ;
Against the thief the attorney loud inveighs,
For whose ten pounds the county twenty pays ;
The thief damns judges and the knaves of state,
And dying, mourns small villains hang'd by great*"

I suppose this is human nature : but in all such
cases, where the pursuit of private advantage in-
vites men to overlook the rights of their neigh-
bours, the controlling power of the legislature
becomes doubly valuable, in the adjustment of
conflicting claims, and in the protection of public
right.

We will now endeavour to ascertain the fair
meaning of this section. — Those who are inte-
rested in the continuation of fish-locks say, that it
completely establishes the legality of those erec-
tions. I think otherwise : though I admit that
the words in the first part are indefinite and equi-
vocal. Taking, however, the whole together, the
sense is clear enough. The section consists of
three separate sentences or divisions : the first is,
that the act shall not legalize any fish-lock lawfully
erected. This is important indeed ! But what
is lawfully erected does not want to be legalized :
if it be lawful, nothing more is required : the sti-
pulation is, therefore, nugatory. — The next sen-

p

STATUTE LAWS RELATING TO

tence is, that the act shall not destroy any fish-lock
lawfully erected. If it destroyed any thing that
was lawful, it would be the first instance of the
kind that was ever heard of. A lawful right can
be taken from no man without remuneration. Here
the meaning is clear enough, but the provision is
altogether unnecessary. — The concluding sentence
is, that the act shall not extend to the present
modes of taking fish therein, (that is, to the fish-
locks,) other than and as are in this act prohibited ;
(that is, that no lime shall be used in such locks to
destroy the salmon or the spawn, or any engine or
obstruction to destroy the spawn, or impede their
passage to the sea.) The construction, then,
which I put on the whole of this section is, that
the act does not extend to or legalize any fish-lock,
nor does it prohibit any such, nor shall it extend
to the present methods used for taking fish in such
fish-locks, other than such as are by this act pro-
hibited, which are those before mentioned. From
hence I conclude, that if the act shall not extend
to make fish-locks lawful, nor yet suffer them to be
destroyed under an idea that they may be unlaw-
ful, and that if it does not extend to the modes of
killing fish in such fish-locks, or to any other, ex-
cept such as are prohibited by this act; then, I
say, that this act leaves these points in question
still open, and has nothing whatever to do with
any fish-lock. It does not, in its own language,
in its very words, " extend to" them ; it neither de-
clares them, nor the modes of taking fish therein, to

THE SALMON AND CHANNEL FISHERIES. £11

be lawful or unlawful, but leaves the question of
legality upon the same ground that it stood upon
before the passing of this act. It is as clear as
day-light, notwithstanding what is said by the trap
men, that this act neither justifies the establish-
ment or the demolition of fish-locks, or the methods
of catching fish in them. To give it any other con-
struction would be quite monstrous ; it would have
tli£ effect of palming a fraud upon the public, of
perverting the object of the act, and of rendering
it altogether nugatory and inoperative. The only
wonder is, that the act should mention fish-locks
at all, since it does nothing either way towards
deciding the question of their legality. I do not
say that they are unlawful ; let that be determined
by better authority ; but I consider them as en-
croachments on the privileges of the public, and
injurious to the rights of fishery belonging to other
persons. I, therefore, trust that enough has been
here advanced to establish the necessity of clearly
ascertaining whether they are legal or not, and to
convince the unprejudiced, that, whilst they conti-
nue, it is impossible for the salmon fishery ever to
attain to a flourishing condition.

The penalties of this act, — which; if it legalize
the fish-locks as they are at present used, is the
most ruinous and insidious ever passed, — are to be
enforced by " summary conviction ;" a new but
very common method of enforcing compliance with
an act of parliament, dispensing with the constitu-
tional method of so doing by trial by jury. Since

STATUTE LAWS RELATING TO

this exotic was first introduced into English soil, it
has flourished but too luxuriantly; it has spread
so rapidly, that if not checked in season, it must
infallibly, at one time or other, undermine that
privilege in which Englishmen have so much glo-
ried, and which has been termed the palladium of
their constitution : like other wild and pernicious
weeds, it will choke the growth of the more salu-
tary ; and legitimate trial for offences must be even-
tually lost. Such is its extensive use, that it seems
naturalized already. We hear of its increase even
without surprise or emotion, when those who first
suggested the plan even dreaded to hazard its pro-
posal. Such is the effect of habit. It has, never-
theless, been severely reprobated by Mr. Justice
Blackstone, as sacrificing too much to " conveni-
ency." It has enormously increased since his time :
" it is still increasing, and ought to be diminished."
Let any man consider, in a constitutional point of
view, the alarming powers with which the magis-
trate is armed by the recent Trespass Act. I do
not say they are necessarily abused, but I could
quote an instance or two where they have been
abused most flagrantly. The practice may be pro-
ductive of great good ; as all arbitrary power, well
exercised, must be; still the power is unconsti-
tutional, the example is dangerous, and its increase
is, therefore, to be dreaded.

I do not mean in this place to give a history of
the laws of summary conviction, how they origi-
nated, how they are administered, and how they

THE SALMON AND CHANNEL FISHERIES.

have been reprobated; — though I have such a work
ready for the press; — but, exclusively of the diffi-
culty of drawing convictions on penal statutes, the
minuteness and severity with which they are ex-
amined by the courts of law, who very properly
watch this kind of outlandish trial with a jealous
eye, and the number of them which we see quashed,
I consider that one person, who is made the judge
of the law, the fact, and the punishment, uniting
in the same person the several offices of judge,
jury, and executioner; appointed by the crown,
removable by the crown, and, therefore, under the
influence of the crown, possesses a power much
too great to be held by one individual. It is in-
compatible with the natural and inherent privileges
of an Englishman, who, from the great fountain
of our liberties has a right to say, "nullus liber
homo capiatur vel imprisonetur, aut aliquo modo
destruatur, nisi per legale judicium parium suorum
vel per legem terrse." Such an almost unlimited
power of fine and imprisonment as the laws, upon
many occasions, give to one or two men, is truly
terrific.

This is all I shall say upon this subject here,
having already, in my proposed bill, suggested that
all offenders be bound over to the court of sessions
in the' first instance, and there tried by a jury like
other offenders. It is better to do this, than to
allow an appeal from a conviction, which, from its
intricacy and nicety, may be quashed ; by which
justice may be defeated, and the benefit of exem-

STATUTE LAWS RELATING TO

plary punishment lost to the public. The expence
must be nearly the same.

How far it is right that owners of one fishery upon
a river, should be competent witnesses to prove
offences committed by the owners of other fisheries
upon the same river, must be determined. It seems
contrary to the spirit of English law, and breaks
down the boundaries of evidence, which generally
incapacitate as witnesses all persons who are in-
terested. Circumstances might arise in this par*
ticular instance to render such testimony dan-
gerous. In some cases, such as requiring a man
to prove his own qualifications to kill game, it may
be necessary to reverse the order of things; but how
far it is necessary in such a case as this, when the fact
can be proved by other means, is another question.
Though the penalties may be recovered by sum-
mary conviction, yet an alternative power is given
to an informer by qui tarn action.

Lords of manors may appoint conservators
within their manors. Now this is a very great
evil, and if ever another act should be passed re-
lating to the salmon fisheries, this power should be
altogether withheld ; or, if conceded, the sessions
should retain not only a concurrent jurisdiction,
but a controlling power to appoint conservators
likewise within and over such manors. This may
appear wrong at first ; but I ground my opinion
upon a fact, and there may be many such facts for
aught I know. There is no calculating upon hu-
man consistency or propriety in individuals where

THE SALMON AND CHANNEL FISHERIES.

private interest is to be promoted, or passion to be
gratified. The office of conservator is of a public
nature ; its duty is to see that there is no infrac-
tion of the laws, nor prosecution of private advan-
tage, beyond what is compatible with an observance
of them. Suppose the lord of a manor, through
whose extensive rights a river runs particularly
favourable to the breed of salmon, should neglect
or refuse to appoint any conservators to protect
such salmon ; suppose he should appoint an im-
proper person, who either connived at the mal-
practices of others, or, perhaps, was an associate
and co-operator with the offenders ; suppose he
should not disapprove of the spearing of salmon,
from motives which we will not investigate ; sup-
pose he should threaten an action against the
county conservator for coming within his manor to
see the laws respected ; — and this latter supposi-
tion is the fact to which I allude ; — then, I say, that
under such circumstances it is but reasonable that
the sessions should have a concurrent power to ap-
point county and general conservators, if the lord of
a manor appoint improper persons ; and a control-
ling power, if he should appoint none, to see the law
properly executed. Perhaps the magistrates at large
may have this concurrent power, under the statutes of
Edward and Richard, if they would but exercise it.
No harm, however, can arise from expressly stating
in the new act what ought to be done, if such act is
ever passed. Besides, if conservators be to be ex-
cluded from entering manors, there is pretty nearly

STATUTE LAWS RELATING TO

IS

an end to their office altogether ; for there
hardly any fishery that is not within some manor.
As we recognize the maxim of solus populi, I trust
this will appear reasonable and proper.

Having now gone through all the general laws
relating to the salmon fishery, and made a few
remarks on the local act of the 43 Geo. III., it must
appear evident to every 'one, that though by an ener-
getic exertion to carry those laws into execution
by aid of a public association, a great deal of good
might arise; yet, as they now stand, neglected and
unenforced, and the right of the public imperfectly
ascertained, it is no wonder that salmon are as
scarce and as dear as we find them. To make the
laws as complete as the nature of the thing will
admit, it is absolutely necessary that a new act
should be passed, embracing the whole subject
altogether, repealing the general act of the 58th of
the late king, and the local act for the Dart, Plym,
and Teign, and all local acts whatever. As the
law of nature is the same at all places, so ought to
be the law of the land to give nature proper ef-
fect. The whole law upon the subject, then, might
be brought under one view, and comprised in one
act, without perplexing the magistrate in making
him turn to different acts, and find out what he
wants by piece-meal, running the risk of frustrat-
ing the administration of justice, by quashing a con-
viction, or entangling him in frivolous minutiae.
To shew in a most striking manner the inapplica-
bility of the present law, we need only look back

THE SALMON AND CHANNEL FISHERIES. 217

to the last act, where instead of the fire, the light,
and the white object being prohibited, as employed
against the old fish to attract them to destruction,
it is made to apply to the young fry and their pas-
sage down the rivers to the sea, where no one ever
thought of employing lights or white objects. So
great a misconception as this of the nature of fish
ought to be rectified ; for it is very well known,
that lights are the principal means by which the
breeding fish are attracted, and then destroyed by
the spear, during the autumnal months. I can
place any one at a particular point where he may
see at the same time, every night throughout the
months of October, November, and December,
several fires blazing by the banks of a river, and
the spearers moving about from place to place,
with lanthorns, employed in this work of destruc-
tion. There is no effectual law to prevent the
practice ; and until there be such, this evil, with
the many others I have enumerated, can have
no hope of remedy.

THE END.

LONDON :
Printed by A. & R. Spoltiswoodc,

New- Street-Square.

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m