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ANTE wey
1 f eynemeneanane seventeen eae
you
pane mony Ke He pe
caer envi :
' wd
- Sabscription Fonr
, Dellarsper aunan,
| VOL. SVE ec ini ies.
“NEW-YORK, "SATURDA 3
2 Ceuth ts powertul an will prevatl,
“MARCH 12
1842, Pt gory eid tay peed
f Oaice corner of P: ‘ear
nd Centre Streets,
JNO, At,
(0 | the True & uiet, .
Pu eons fy UN et) gti mn
“Wao is the patriot, who i is he, Doles yan
‘When slaves are struggling to be ise .
Freedom's best-beloved ma claim, rs
‘To be her holiest Oriflamb
Vow agtayd eH 1
“He who joineth hands with power,
“hes the anarch would devour:"'
mpled right insurgeot ]—He.
ree pe apt on erty. coda aq sed
zm ‘He who claimeth kin with righty» m
pees “Ferfamed or in ermine dig’
wing not the “ rabble 2”.
-Fateth iruth aad liberty. °"*
Who | for iriith’s sake" would érabrace’ ¥
, Adie, who seeks fit time and place -
To traffic with his birthright ?— We
y Fallow not expediency. *; ee oe ‘D
oie who through distress and scorn’ ”
Freedom's crass hath gra aly. borne, §..
‘The uncompromising !—He shall be ..
» The bannerman of liberty.) yea 9s
sar on bl
poe Though he wear no title-brand,
- Though he own no salen land,
Proudet as on aprigbt man 2
, Thaa tocrawl ia fashion" ‘svar,
rT = phough bis bearing be uneouthy
aces ppg his zeal be rude as truth, soy be
at Though he lieth or sttunedy po bas crf hued
_Findicaor.
a
wa Report ‘of the Fishery Case, Poole Gabbett, Es sg v8. -Tho-
ore Mr? beive Ball.
s, 1841, and
“By. Wilh
royer, tried befor
and a Special Juan "he Limerick Summer’ Assiz
we « which occupied, the, Court for over fue days.
O'Brien, Limericks: 31,
ae - Report of the iSelect Committee on n the Salmo
1, United Kingdom, ae :
; 3. Second Resto the ‘Select "Committee on “gti 1825. at
Report from Select Committee on diltoy 1827400 dm. ° 4
+ 2 Second R Report of the’ Commissioners of Inquiry into the stale
“of the Irish Fisheries, with the minutes of evidence Presented (
batt Frouses of Parliaments 1836. Hea eb stern Sa ae
aatise e Game and Fishery Laws of Ireland.»
Filey, E - LL.D, Barrister-at-Law, wr. Dubiio, 189%, |
"(Continued from our ‘lat Da
erations we dave been somewhat disappnidted.
other respects ‘productive of préat
In this expe
‘was, ‘how
0 had gone, from. ulin on @ special t
motel ge he would proceed, only for the fishery vlaimed i in
the fifth count, and that the principal question for the j jury.s would
be,’ what was the’ nature, aod, w ounds’ of it?
* 4 We say they are ‘theses that it “tends from the great Lax-
the river. to a place which the viewers saw, namely,
weir aw Cratloemore, | ‘which is a distance, of three or four
jeg westward on the river, and which has, been but recently
g the bouadary ; and let it be uoderstood shat itis
ty we claim, and that we do not claim a fishery of sixty
me og in the river Shannon. ' We claim nd such thing’: we
n t'that the Fisher's Stent extende to this point, and I think,
i ds there and, no, further, and I am satisfied that.I dis-
my duty better and mare fairly towels my client by
if to ‘what f think are vhe it, and claim-
isan whateid, my judgment Me Gabber i is entitled
i
wo." (pe Fs
*
ascertained @
&). Cha veceia racemes ne
poration ave up for ever all their pretensions 10
. seers of ae entire river, and 'admited that they
the ek rest vestige ‘of a title to more. than three or four
i that there was oot tbe reiotest particle of ex-
; for thé fines and imprisooments x which they
nftic ae
0, the igh of the erown to ‘appropriate, wit
ery. of navigable: rivers, seems
voided by Mr. Smith ‘who was evi-
“had caused to
“Ihe question ast
jastime.of memory, tbe.is
inapposite: “Iu the Severa tl
. deny eomacins of he, de en, with we be bad to agentes. soi t 7 the tarde scat ih
: ears cry unintelligible Tauguage ;.but of the maoner in | 20°71 snot ieta 1 ane Rou Rion on thosinee ana yee une aebiog,
\ rivers ns right may b reseription, of soa ot may be wai is common toa subjects”—Lord Fite Waltar'schte; 3 Keb, 22,
asa igen mes eee la snitch che
signe: 2 Be, isle They, tower 8 % ve een Elizabeth i in point 1 history ie evidence to provea igonoral matter, Pil he
points for chem 10 or at fisher andy, if 80, did she grant to] 94, be Reem atort see aeecana rBensta |!
xtent‘aad’ boundary of that
1 By the evidence, however, wich he offered, he appears
greats rove B wteared oul in fee,
jought it necessary to pro
i ines Jeavoured fo meat, wha be fea would ve taid
pad thus ae eie eee
upo
[sive right of fishery beyond
dowa a as law from the judgment-seat.” This evasioa io state
meat, and admission in fact, of the general principle of law on
we find Mr. Elean, the leading counset for the defendants, ob-
serving, not way of contradiction or qualification. of Mr.
Smith's positions, butas if laying down an'unquestioned axiom,
‘So strict is the law ia preserving the right of [fishing aod na-
vigation] for the subject, that it'is now clearly laid down, that
the crown itself coald not establish a right to exclude the public
,| from fishing in a navigable river, unless the crown bad that right
prior to the reiga of Henry the second;” and that he did not
deny thut the crown “bad title to a several fishery,” but merely
that the plaintiff bad + shown no title in the crown to acy thing
more than the Lax-weir” (p. 55); and the judge finally saying,
‘as tegards the question of law on the 6 ubje ct, it is fortunate
opinion whatever. It is execedingly
ble, it admits of no dispute; and no
p- 86.) The defendants! counsel
therefore admitted that a title was proved to the great or Lax-
, according to their cwn views of the law, but denied that it
we proved toany tbiag more ; and the whole of the trial turned
he‘ questions, whether Elizabeth was seized of an exclu-
the Lax-weir to Castle Donnell (as
claimed ia the fifi count); whether she granted it; whether the
defendants had fished within its limits; and whether the plaintiff
an exclusive right at all.* ith these questions we have
ho. concern. The jury, after bearing speeches and evidence for
five days, and beiog locked up a whole night, separated | without
agreeing to a verdict.
We regret that.we are conipélled to differ from the eminent
jaieyers who were engaged for the defendants, as to the proof of
a prescriptive title to the great welr in this case.) We cannot
understand how they could have imagined that any such title
was proved.’ ~The earliest, document produced, in proof of it
iwas a grant in 1202,.by King Joho to, William of Bradosa, of
|] the -hovor of Limerick, # witb all its appurtenances). wood, wa-
(| ters, mills, fisheries, &c.° &c.""4-" fisheries” being like the rest,
a mere word of form, without reference to any particalar fishery,
‘The next docpment, was a grant, by John in 1216, of £10 a year
° the Bishop of Limerick, for and in consideration of his claims
ni “the fisaery of Limerick.” The third document bore date
1274, from which it appeared « that a gulf in the waters 0
Limeney was held at a rent of 100 marks annually by the itt
zens of Limerick.”} Itis obvious that the first’document was
not of the slightest earthly cousgquence in the considering of
the question then before the court, and even if it we ‘ire
teen years posterior, to the first, year of Richard I. Sad the last
of Henry IL, The second document is uventy-veven
years posterior ié Jet important legal epoch, and one year to
the signing of the great ‘charter (1215). So that here the proof
of, prescription or possession ia the reign of Henry IT. complete-
ys failed; and as this was a claim aga’ ainst common righty there
resumption’ in its’ favour.~ maiatained, it
should be sly proved, , Io all the English ceseg on thig sub-
‘as been carried back to the reign of Henry II.
at the eee ‘aad generally to the reign OF the Conqueror ; an
extract from Domesday-took being the first document common-
ly produced.t But’ supposing even that thé jury might be at
liberty, from those documents, to presume an appropriation by
‘one intg evidence at all, could have rebutted that presvenption
by producing any history of Ireland or of Limerick :§ fr
which, it wonld appear to the satisfaction af any. reasonable
being, that nenber, in presumption of law. in fact, could
there have been any such appropriation. , Fo! srthis teaeon alone,
we cannot poderstand why Ihe title to the weir should have. been
admitted.
pair the crown in the reign of Heary II., the defendants, had they
h | 8
3
may be excused for dwelling further on: it. +: It is by svely
weirs that the monopolists throughout the entire country almost
universally exercise thei¢ privileges: io the most effectual and
objectionable manner, and inflict, as we have , already shown
the greatest, possible amount of mischief and injury.on all classes
ofthe people, The utility, therefore, of abating them requires
no farther Bemonetration. whatever may be soid against
the Limerick weir will, apply to all of them, and many things
nay be said against them which would not apply to it, we shall
dircet against ita, battery of a few of the statutes and cases of
sguich we are masters, 80 that wen it is demolished, all the others
may find it *t the better partof valour" to surrender at discretion,
‘The reader, will bear.io mind all that we bave already said"
respecting this weir., We shall bere, merely add, that but for
, the river wonld be 2 navigable for some distance sbove it, and
* Aa the meaning of the word gurges
and the want of proof of exelumve ponenin was the
relied on,tho following obeerva atious by Lord
1d ono great nutjet af contention,
only ground of nonauit
ilar eases may not be
ee
so
Teieny wiv had eld ie mn e117 of ant? ie Bandas in F194 that ke te
year founded the eathed ‘wt igh re oesensiony
driven out again bj they mext oftain
ot appear, Maria 1109 eke cups Voued sudor thew authority, an
dl by's pruvont, nya uted grad paiveut® ed? Yo antusi @ st
i
The legality of this ‘weir is: @ matter of such i importance, that gb
at the tide rises to a height of twelve feet at each side of it. It
made of stone piers extending across the river like the piers of
thi8 subject, does not appear to have attracted any notice; as| a bridge, ‘and lath-work stretched across securely from pier te ‘
pier at the westero side, or that on which the salmon come from *
the sea. To every alternate pair ‘of piers there is lath-work ~
affixed at the eastern side also, so as to enclose a complete cham-
ber. There is an aperture for the salmon to getin, and of course
none to get out. Between the other piers there is no passage
for them, so that when they push their snouts against the lath- '
work they are obliged to grope their way aside ill they get into
these very snug “chambers.” Thus this weir stands continually, *
from morning tll night and vight till morning doring the fishing !
season. , We need ecarcely add that it was not erected by “the ¢
wisdom of our ancestors” in the reign of Hear, Upto the *
winter of 1825-6, there bad been on the same site a i weir 60 con-
structed as not to allow a salmon to pass il, and not having even
the passage in the middle required by the statute,*, This having
been swept away by the floods, the lessee of the corporation re-
placed it by the present ingenieus contrivance. , At. the trial,
there was no attempt made to prove that the present or the old
weir was erected prior to the reign of Edward I., and therefore
under the provisions of several acts it is illegal merely for im-
peding the navigation. But if it should be proved to have been
erected prior tothat reign, acd as there can be no proof to carry
it back to the reiga of Heary II., it must at all events be illegal
ander the provisions of tbe great charters and the common law. :
If, again, it should escape. both these ordeals, and be proved
older than the reign of Henry IL., and not to impede the navi-
gation, it would seem to. pe ilenal {according fo Robson vs. o- ”
binson, under the 2
. The laws against such weirs are'plain and intelligible. By !
the alreaily cited clauses of the great charters they are strictly *
forbiddea; by the common law they were regarded and proti~ |
bited ag Duisances.} By the 25. Ea. +» C. 24, it is provided ©
that, ‘t whereas the common pas “
great rivers of England be oftentimes annoyed b yt
of gorces, mills, wears, stanks, stakes, and kiddles, in great dang
i
'
age of the people, it is accorded, and ‘established, that all suc! :°
gorces, mills, wears, stanks, stakes, aod kiddles, which be levied |
and set op in the time of King Edward, the king's grandfather, *
aod after, whereby the said ships and boats,be disturbed that’
the ey cannot pass in such river as they-were wont, shall bé out’)
aud utterly pulled down without being renewed, and therevpon
writs shall be seat to the sheriffs of the places where peed shall |
be, to survey and inquire, and 10 do thereof execution,” &c. &ews
This was,confirmed and extended by the 45 Ed. 1IT., e. 2. and §
both were further confirmed and extended by the 1] Hen. Iv. ce.
2,'and penalties sufficient! ly severe, provided for offenders.” B
the 2 Hen. VIL, c. 15,4, itis ordained that the standing of nets”
or engines called trioks, and alJ other ‘ pets which be, and were. .
Vio be, fastened and hanged eontinivally ‘day and night, by |
a a certein time in the year, to great posts, boats, and anchors,
overthwar the tiver oF Ths names, Mand other rivers of the realms.”
which standing is a cause of as great and, more destruction of
the brood and fry of fish and distarbance of the common pas-
sage of vessels, as be the weirs, kydels, or other engines, be |
wholly defended for ever., And that every person that setteth ;
or fasteneth them hereafter to such posts, boals, and anchors, or!
like ‘thing, continually to stand as afore is said, aud,be duly |
thereof by the course of the law convict, shell forfeit to the king
one hundred shillings at every time that he is 60 proved in de=
fault, provided always, that it ‘shall be lawful to the possessers ;
of the said trinks, if they be of assize, 16 Ash wich them in all |
seasovable times, drawing. and pulling them by hand," ‘as other”
fishers do with other nets, and not fastening or tacking the eaid”
nets to posts, boats, and Bachna continually §° to stand, as afore
g always to every. of, the. hiug’s liege people their *
ight, title, and inhetaoe, | in their fishings in the said, water.’*_
By the 12 Ed. IV.vc. 7, all the statutes relative to weirs and‘
fisheries, from Magna. Charta inclusive, were confirmed and!
farther ext aided, aud rill more stringent, remedies aod penal-
ties were provi sect enumerates “ weirs, fish- -garths, |
mille, ‘nilldams. tmillstaoks, locks, ehbing-wears, sakes, ke els,”
hecks, flood-gates, or other noyarices, sigarbance mpedi- |
meats,” which might destroy tbe ene or fr ase the!
flooding ‘of lands, of impede the passage of yee “A these |
enactments apply to this eee P as by the 10 Hen. V IL, ©. 22!
(Irish), all English statutes concerning thé common’ weal of
the realm of England” were, extended, to Ireland,” _ There can*
be no doubt that vader all or some or'ane of, then) 'the Limerick
weir ia a nuisance, , Inthe constrection atid eppli
we are not wholly without assistance from decisi t
We shail select a few of these which appear. mos
and bear most and distinctly an, this, Lin
«(To be concluded inour next) ,...,
Sue
ed by the French, from the old Abbey to fhe, teft
ped
aud rised edition 3 che ate hie fy vatinor rod »
dali shall beltaken continual
take fs and a8 the time of fishing endure
jporsibite, far otberwise
the river Thames: 19 Rep,
I. The Mog of Aughr
‘the batile of Aughrim ‘ot veicanaat ‘as it 'Wal’call
of'the Teh:
‘position 3,8 baule, unsuccessful ‘indeed Gn the “side of the Trish,’
rbot Ceroriea, ora W, aterkoo, fought with beroisray, and lost’
jonour. és Looking among, she ‘dead, three daya
é inhausing tae
28
TA So ee
aoe?