CHAPTER THIRTY-THREE.
Omnes kydelli de cetero deponantur penitus de Tamisia, et de Medewaye, et per totam Angliam, nisi per costeram maris.
All kydells for the future shall be removed altogether from Thames and Medway, and throughout all England, except upon the sea coast.
The object of this provision is open to no reasonable grounds of doubt; it was intended to remove from rivers all obstacles likely to interfere with navigation. The full importance of such a measure can only be understood when the deplorable condition of the few roads which existed in the Middle Ages is kept in view. The water-ways were the great avenues of commerce; when these were blocked, the townsmen and traders suffered loss, while those who depended on them for their necessaries, comforts, and luxuries, shared in the general inconvenience. Magna Carta intervened in the interests of all classes, and demanded the immediate removal of obstructions which interrupted inland traffic. Only one class of impediments indeed was mentioned, “kydells” (or fish-weirs), not because of the purposes to which these were put, but because they were the form of obstruction which called for repressive measures at the moment. This word, whatever narrower technical meaning it may have borne in later days, seems to have been used by the framers of Magna Carta in a wide general sense, as applying to all fixed and bulky contrivances or “engines” intended to catch fish, and likely to interfere with the free passage of boats.[[717]]
It has been gratuitously assumed that the motive for prohibiting these “kydells” must have been of a similar kind to the motive for constructing them; and that therefore the object of the present chapter was to prevent the Crown or others from acquiring a monopoly of rights of fishing to the exclusion of the public. Law courts and writers on jurisprudence for many centuries uniformly endorsed this mistaken view, and treated Magna Carta as an absolute prohibition of the creation of “several” (or exclusive) fisheries in tidal waters.[[718]] Although this legal doctrine has been frequently and authoritatively enunciated, it rests undoubtedly on a historical misconception. The Great Charter sought to protect freedom of navigation, not freedom of fishing; and this is obvious from the last words of the chapter: kydells are to be removed from Thames and Medway and throughout all England “except upon the sea-coast.” It would have been a manifest absurdity to allow the creation of monopolies of taking fish in the open seas, while insisting on perfect freedom of fishing in rivers, the banks of which were private property. The sense is quite clear: no objection was taken to “kydells,” whatever they might be, so long as they did not interfere with navigation.
The erroneous view, however, had much to excuse it, and acquired plausibility from the circumstance that the destruction of obstacles to the free passage of boats incidentally secured also free passage for salmon and other migratory fish; and that later statutes, when legislative motives had become more complicated, were sometimes passed with both of these objects in view. The change is well illustrated by a comparison of the words of two statutes of 1350 and of 1472 respectively. The first of these repeats the substance of this chapter of Magna Carta, and thus explains its object:—“Whereas the common passage of boats and ships in the great rivers of England be oftentimes annoyed by the inhancing of gorces, mills, weirs, stanks, stakes, and kydells.”[[719]] Here there is no allusion to fish or rights of fishing. The later act, while confirming, under penalties, previous statutes for the suppression of weirs, not only states its own intention as twofold, namely, to protect navigation of rivers, and “also in safeguard of all the fry of fish spawned within the same,” but retrospectively and unwarrantably attributes a like double motive to Magna Carta.[[720]]
So far as the Thames and Medway were concerned, this provision contained nothing new. To the Londoners, indeed, the keeping open of their river for trade was a matter of vital importance. The right to destroy all kydelli in the Thames and Medway had been purchased from Richard I. for 1500 marks, and a further sum had been paid to John to have this confirmed. The charter of Richard I. is dated 14th July, 1197; and that of John, 17th June, 1199. Each king declared, in words practically identical, that Hubert Walter, Archbishop of Canterbury, and others had pointed out “that great detriment and discommodity hath grown to our said city of London, and also to the said realm by occasion of the said kydells.” Accordingly each charter declared that the king has “granted and steadfastly commanded that all kydells that are in the Thames be removed wheresoever they shall be within the Thames; also we have quit-claimed all that which the Warden of our Tower of London was wont yearly to receive from the said kydells. Wherefore we will and steadfastly command that no warden of the said Tower, at any time hereafter, shall exact anything of any one, neither molest nor burden nor make any demand of any person by reason of the said kydells.” John’s charter of 1199 went further than that of Richard, making it clear that the prohibition referred to the Medway as well as to the Thames, and granting the right to inflict a penalty of £10 upon anyone infringing its provisions.[[721]]
Magna Carta merely confirmed, and extended to all rivers, a prohibition already secured by the Londoners specially for their own river. The provision was repeated in the reissues of Henry III. The citizens, however, did not rest content with a clause in a general enactment, but purchased for 5000 marks three new charters exclusively in their own favour. One of these, dealing with kydells in Thames and Medway, was issued by Henry on 18th February, 1227, in terms almost identical with those of Richard and John.[[722]]
[717]. The Oxford English Dictionary defines it as “a dam, weir, or barrier in a river, having an opening in it fitted with nets or other appliances for catching fish,” and also as “an arrangement of stake-nets on the sea-beach for the same purpose.”
[718]. Blackstone, Commentaries, IV. 424, declared that this chapter “prohibited for the future the grants of exclusive fisheries.” Cf. e.g. Thomson, Magna Charta, 214, and Norgate, John Lackland, 217. See also Malcolmson v. O’Dea (1862), 10 H. of L. Cas., 593, and Neill v. Duke of Devonshire (1882), 8 App. Ca. at p. 179,—cases cited in Moore, History and Law of Fisheries, p. 13, where the fallacy is exposed.
[719]. 25 Edward III., stat. 3, c. 4.
[720]. 12 Edward IV. c. 7. Apparently the earliest statute which refers to weirs as causing injury to fish was one passed in 1402, namely, 4 Henry IV. c. 11, see Moore, Fisheries, p. 175.
[721]. It seems to have been generally assumed that these charters conferred positive as well as negative privileges on the citizens of London; that not merely were obstructions to navigation thereby prohibited in their interests, but that wide rights of administration and jurisdiction over the waters of the Thames were conferred on the city authorities (rights which previous to 1197 had been exercised, it is assumed, by the Constable of the Tower of London). See Noorthouck, New History of London (1773) p. 36, and Luffman, Charters of London (1793) p. 13. The latter says of Richard’s grant in 1197: “By this charter the citizens became conservators of the river Thames.” The Patent Rolls of 33 Edward I.; 5 Edward III.; 8 Edward III., etc.; contain Commissions of Conservancy. See Moore, ibid., p. 176. In 1393 the statute of 17 Richard II. c. 9 granted authority to the Mayor of London to regulate weirs likely to destroy fish, and generally to “conserve” the Thames from Staines downwards, along with the Medway.
[722]. See Rotuli Cartarum, under the year 11 Henry III.