and apathy of one man can stamp out a public industry and prevent a large body of proprietors from reaping the natural fruit of their own property, he himself all the while being beyond the reach of loss or injury. The value of the mill may be trifling in comparison with the great fishery interests on which it forms a perpetual servitude; and yet though no injury can possibly result to the dam, the prosperity of the fisheries, to which a highway for fish over that dam is essential, is left by the Legislature entirely at the miller's capricious disposal. Can any practical mind defend such a state of the

law?

The subject of this well-founded grievance has often been inquired into by Parliamentary Committees; but owing to the want of knowledge of a definite plan of fish-pass, no Committee, previous to the discovery of Mr. Smith, of Deanston, could throw light upon it. It is also to be lamented that the Parliamentary Committees subsequent to that date have only dealt in safe generalities, instead of conveying to Parliament an outline of the requisite details. Unless some details are added as to the modus operandi, people are in effect told nothing at all, and the subject is not advanced. The Committee, which was presided over by Mr. Dodds in 1869-70, was the first which effectually grappled with this question, and brought to light and kept steadily in view the main essentials to an efficient pass, and the obstacles to its adoption. But, unfortunately, the report of that Committee contains the same serious blemish as its predecessors. It seems to dispose of the subject by a few general flourishes, instead of giving Parliament some intelligible details such as practical men can understand and apply. Owing to the vague and shadowy terms of that report much of the good effect produced by the evidence collected has been lost, and unless persons were to read all that evidence they are not helped by the report itself to any precise or vivid impression of how the difficulty of arranging a satisfactory fishpass is to be met.

It is also to be regretted that the English Act of 1861 misconceives the subject of fish-passes, and by stating a constant run of water as the only criterion is altogether misleading, not to mention other wanton injuries it causes to mills. The Scotch Bye-laws of 1868 also fail to show much insight into the subject, and mislead by erroneous admeasurements, as the result has fully shown. The authors of the Tweed Act of 1857 show total error and bewilderment, and confound the height of a dam with the head of water kept up, not knowing that it is quite consistent with the latter that a small notch

may be made in the crest of the dam. Engineers, however, are now beginning to demonstrate this result. On the Wharfe some recent fish-passes recall attention to the right conditions; and on the Tees, it is said, the right rule has been recently applied. An efficient fish-pass will soon become, if it has not already become, matter of common knowledge, and as easily made as any agricultural implement. The cant hitherto current that no rule can be laid down, and that we must choose between milling or fishing, and cannot have both, is for ever exploded, and deserves no more attention than a mediæval superstition.

The mode of constructing sufficient fish-passes over all weirs being now ascertained and well-known to practical men, the only question is, what is the Legislature expected to do? The salmon angler cannot, it is said, expect the Government and the national purse to pay for his private amusement; but the least the Legislature can do is to alter the law so as to make it possible to have fish-passes over all the dams which now obstruct the passage of fish. The first thing is to take away from the millowner the present power of obstruction which he possesses as owner of the dam. It is sufficiently established that a fish-pass made over, through, or round his dam cannot possibly do injury to him, and must necessarily do much good to all the owners of fisheries above and below the dam, and thereby must increase the public food and the employment of the public fishermen. These are sufficient reasons for legislative interference. Another vital point is that the Legislature shall provide some expeditious and inexpensive mode of settling once for all the difficulties of detail that will arise out of the form of the fish-pass. The millowner may, if a plan is suggested to him, prefer some other plan. If the east end of his weir is fixed upon for the site, he may prefer the west, or the middle, or one of the banks. He may want the inlet higher or lower, or smaller, and allege apprehension of damage, if his suggestions be not adopted. All these objections, and even prejudices, should be fairly considered and disposed of by hearing both sides, and deciding which is sound and which is delusive, which is honest and which is frivolous. He should have an appeal to a court of law, if the decision should be wrong; for the height or position of the inlet of a fish-pass may clearly involve a question of legal right, unless carefully guarded by prescribing conditions for its use. Owing to the want of such an expeditious mode of solution, fatal delay and obstruction have hitherto prevailed. The Act of 1861 gave a certain limited power to the

VOL. CXXXVII. NO. CCLXXIX.

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Secretary of State to authorise third parties to make fishpasses, if no injury was done to the mill. But this last qualification gives rise to the whole difficulty. No administrative officer, however high his station and influence, can adequately dispose of the objections that arise. If there is a difference of opinion-one opinion being as good as another-a resort to a court of law or equity can alone settle it. Hence, during the last five years only sixteen fish-passes have been approved by the Secretary of State; and even in those instances it does not appear that the making of the fish-pass was other than voluntary. The appointment of some court to dispose of such disputes was urged for Scotland, in 1865, by Mr. Grant Duff; for Ireland, by Mr. Wingrove Cooke; and has often been urged for England. Whether it be the County Court, the Petty Sessions, or a superior court of law or equity, or a special court improvised for the purpose, this mode of solution of these complicated embarrassments seems the only one adapted for the work; and after the experience of the Tithe and Copyhold and Inclosure Commissions can be made to work well.

It is true that still another point of importance bearing on the erection of fish-passes is the expense. It seems to be universally admitted, except (by some blunder) in Ireland and the Tweed, that where the owner of an obstructive mill-dam has not acquired a legal title to maintain such obstruction to the prejudice of his neighbours, he, and he alone, should bear the expense of a proper fish-pass, and no option should be allowed to him in the matter. On the other hand, where the owner has acquired a legal title to keep his dam as it is, and however injurious it is and may have long been to his neighbours, opinions are divided as to who should bear this expense. Some recommend that the expense shall be equally divided between the owner and the Fishery Board of the district. In Ireland and on the Tweed this expense is thrown on the Fishery Board entirely. In Scotland the expense is thrown on the owner of the dam entirely. In deciding legal rights appertaining to mills, courts of law do not pry minutely into the antecedents of the right; but the Legislature may well think twice when settling who should bear the burden of this incidental expense. It does seem inequitable, after millowners have, not by straightforward purchase, but entirely owing to the good-nature, apathy, or ignorance of country gentlemen, indirectly acquired a technically legal right to keep up their milldams, so as permanently to injure all the fisheries above and below, that the very persons so unconsciously injured should

have to buy back the very rights which a court of law by a legal fiction and a legal fiction the reverse of truth-assumes that they gave away gratuitously. If, however, we assume that where the title to use the weir has been legally acquired the Boards must pay the expense of rendering it innocuous by making a fish-pass, the money will not be difficult to find. It is true all Boards are suffering from that universal complaint, deficiency of income. They cannot go to the Chancellor of the Exchequer for an advance; but they can mortgage their license duties, and they ought to be able to increase these duties for this special purpose. Even if there be no other ready way of raising the expense by loan, they might get powers to set up a bag-net at a convenient place, and apply the proceeds for a few years towards completing their emancipation. If once the requisite power of making and settling the form of a fish-pass over all weirs were given, country gentlemen themselves, for their own interest, would advance the money. What has deterred all persons hitherto from lending money for such purposes has been the knowledge that unless the dams nearest to the sea are first made passable, all expenditure on dams higher in the river is comparatively fruitless. This would be different if the Fishery Board could systematically clear their river by beginning with the lowest dam, and so proceed upwards. The investment would then be profitable. New energy would, at all events, be restored to all Fishery Boards; and, what is of no small importance, there would be the satisfaction that Parliament had done for this long-vexed class of Her Majesty's subjects all that legislation can do. Self-help would then be a more familiar practice than hitherto. Parliament has already done a good deal at the public expense to favour the owners of fisheries and help them to supply our markets with a favourite food. In 1861 the Government appointed inspectors for the express purpose of aiding them with good advice and experience, so as to restore the value of their fisheries, and apply the new views of management to a neglected subject. Though this boon was at first conceded only for three years, successive Governments have annually continued it, until every country gentleman now knows as much as he is ever likely to know of the subject. Such a boon no Government has vouchsafed to the breeders of poultry and cattle, or to market-gardeners, who also supply our markets. Every farmer would be glad to multiply food at high pressure, if enlightened and instructed by able professors sent out by the Government to teach them the most profitable way.

The Government has also acted liberally towards fisheryowners by appointing and maintaining special commissioners to settle once and for ever the legality of fixed engines and fishing-weirs and fishing mill-dams, which had so long been an intolerable burden on all the rivers. No man could tell whether and to what extent these fixed engines were legal, and hence no justices of the peace could enforce many of the enactments of the Salmon Fishery Act of 1861, owing to the defendants setting up what is called a claim of right. All these questions are now set at rest, and can never more disquiet the upper proprietors. They now know the length and breadth of the mischief. The illegal engines have been weeded out and removed, and certificates and plans of all the existing legal engines are registered with the clerks of the peace, so that every one can readily ascertain whether any illegality is or will hereafter be committed. Those engines which have been certified as legal are in no instance a very serious obstacle to the regeneration of the salmon fisheries. The following table gives the leading result of the labours of the Special Commissioners up to April 1872:

Of cases

Total cases decided up to April 1872, 656.

within the jurisdiction two-thirds were declared illegal.

Not only should fish-passes be made compulsory in the manner explained, but the additional grievance from the mill-races should now be redressed. In Ireland and Scotland, including the Tweed, the owner of a mill can be compelled, at his own expense, to put and maintain gratings across his mill-races to prevent salmon being diverted and imprisoned, and often clandestinely killed. Engineers like Telford and Jardine told Committees of Parliament fifty years ago, and others have told many a Committee since, that these gratings can be put so as not to obstruct the flow of water, merely by widening the millraces for a few feet at the place where the grating is put.