The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to Second Edition.
• From Preface to First Edition.
• Historical Introduction
• Part I.: Events Leading to Magna Carta.
• Part II.: Feudal Grievances and Magna Carta.
• Part III.: Magna Carta: Its Form and Contents.
• Part IV.: Historical Sequel to Magna Carta.
• Part V.: Magna Carta: Original Versions, Printed Editions and Commentaries.
• Text, Translation, and Commentary
• Preamble.1
• Chapter One.
• Chapter Two.
• Chapter Three.
• Chapter Four.
• Chapter Five.
• Chapter Six.
• Chapter Seven.
• Chapter Eight.
• Chapter Nine.
• Chapter Ten.
• Chapter Eleven.
• Chapter Twelve.
• Chapter Thirteen.
• Chapter Fourteen.
• Chapter Fifteen.
• Chapter Sixteen.
• Chapter Seventeen.
• Chapter Eighteen.
• Chapter Nineteen.
• Chapter Twenty.
• Chapter Twenty–one.
• Chapter Twenty–two.
• Chapter Twenty–three.
• Chapter Twenty–four.
• Chapter Twenty–five.
• Chapter Twenty–six.
• Chapter Twenty–seven.
• Chapter Twenty–eight.
• Chapter Twenty–nine.
• Chapter Thirty.
• Chapter Thirty–one.
• Chapter Thirty–two.
• Chapter Thirty–three.
• Chapter Thirty–four.
• Chapter Thirty–five.
• Chapter Thirty–six.
• Chapter Thirty–seven.
• Chapter Thirty–eight.
• Chapter Thirty–nine.
• Chapter Forty.
• Chapter Forty–one.
• Chapter Forty–two.
• Chapter Forty–three.
• Chapter Forty–four.
• Chapter Forty–five.
• Chapter Forty–six.
• Chapter Forty–seven.
• Chapter Forty–eight.
• Chapter Forty–nine.
• Chapter Fifty.
• Chapter Fifty–one.
• Chapter Fifty–two.
• Chapter Fifty–three.
• Chapter Fifty–four.
• Chapter Fifty–five.
• Chapter Fifty–six.
• Chapter Fifty–seven.
• Chapter Fifty–eight.
• Chapter Fifty–nine.
• Chapter Sixty.
• Chapter Sixty–one.
• Chapter Sixty–two.
• Chapter Sixty–three.
• Appendix. Documents Relative To, Or Illustrative Of, Magna Carta.
• I.: The Charter of Liberties of Henry I.1 (1100.)
• II.: The Second Or Oxford Charter of Stephen.1 (1136.)
• III.: Charter of Henry II.1 (circa 1154.)
• IV.: The So–called “unknown Charter of Liberties” of John.2 (circa 1214–1215.)
• V.: The Articles of the Barons.1 (1215.)
• VI.: Writs Supplementary of John’s Great Charter.
• VII.: The Great Charter of Henry III.2 (third Reissue, 11th February, 1225.)
• VIII.: Carta De Foresta.1 (6 November, 1217.)

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 shore.

The object of this provision is not open to doubt; it was intended to remove from rivers all obstacles likely to interfere with navigation. Its full importance can only be understood when the deplorable state of the roads is kept in view. The water–ways were the great avenues of commerce; when these were blocked, townsmen and traders suffered loss, while those who depended on them for necessaries, comforts, and luxuries, shared in the general inconvenience. Magna Carta mentions only one kind of impediments, namely, “kydells” (or fish–weirs), not because of the purpose to which these were put, but because they were the form of obstruction that called for repressive measures at the moment. This word seems to have been used by the framers of Magna Carta in a wide general sense, embracing all fixed contrivances or “engines” intended to catch fish, and likely by their bulk to interfere with the free passage of boats.1

It has been gratuitously assumed that the motive for prohibiting “kydells” must have been of a similar nature to the motive for constructing them; and that therefore the object of the present chapter was to prevent any monopoly in rights of fishing. Law courts and writers on jurisprudence for many centuries endorsed this mistaken view, and treated Magna Carta as an absolute prohibition of the creation of “several” (or exclusive) fisheries in tidal waters.1 Although this legal doctrine has been frequently and authoritatively enunciated, it rests on a 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–shore.” It would have been a manifest absurdity to allow monopolies of taking fish in the open seas, while insisting on freedom to fish in rivers, the banks of which were private property. The sense is clear: no objection was taken to “kydells” 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, 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.”2 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.1

So far as 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 kydelli had been purchased from Richard I. for 1500 marks, and a further sum had been paid to John to have this confirmed. These charters (dated 14th July, 1197, and 17th June, 1199) “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 went further than that of Richard, making it clear that the prohibition referred to Medway as well as to Thames, and granting the right to inflict a penalty of £10 upon anyone infringing its provisions.2

Magna Carta confirmed this provision and extended it to all rivers, and this was repeated in the reissues of Henry III. The citizens of London, not content with a clause in a general enactment, 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.1

[1 ]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.” For weirs in Domesday Book, see Ballard, D. Inquest, 175–6.

[1 ]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. For an unsuccessful attempt to extend the principle to Scotland, after the Act of Union, see an interesting review of the first edition of this work in Jurid. Rev. for March, 1905.

[2 ]25 Edward III., stat. 3, c. 4.

[1 ]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.

[2 ]It seems to have been generally assumed that these charters conferred positive as well as negative privileges on the citizens, including rights of administration and jurisdiction over the waters of Thames. See Noorthouck, New History of London (1773), 36. Luffman, Charters of London (1793), 13, says of Richard’s grant in 1197: “By this charter the citizens became conservators of the river Thames.” This is an anachronism, but Patent Rolls of 33 Edward I., 5 Edward III., 8 Edward III., contain Commissions of Conservancy. See Moore, op. cit., p. 176. In 1393 the statute of 17 Richard II. c. 9 granted authority to the Mayor of London to regulate weirs and generally to “conserve” the Thames from Staines downwards, and the Medway.

[1 ]See Rotuli Cartarum, 11 Henry III.