III.: Erroneous Interpretations.

It is not surprising that a pastime so passionately followed as falconry, should have left its traces on two chapters of Magna Carta, the full import of which has not been appreciated by commentators, partly from failure to read them together, but chiefly through the assumption that the words ad riviandum and in defenso referred to fishing rather than to fowling.

It has been confidently inferred that the framers of Magna Carta, when forbidding additional banks to be put “in defence,” equally as when demanding the removal of “weirs” from non–tidal waters, intended to preserve public rights of fishing against encroachment. This is an error: in the Middle Ages, fishing was a means of procuring food, not a popular form of sport: to depict John and his action–loving courtiers as exponents of the gentle art of Isaac Walton is a ridiculous anachronism.

It is true that the value of fish as an article of diet led in time to legislation directed primarily to their protection; but apparently no statute with such a motive was passed previous to 1285. It is further true that in the reign of Edward I. it became usual to describe rivers, over which exclusive rights of fishing had been established by riparian owners, as being in defenso; but rivers might be “preserved” for more purposes than one.

From Edward’s reign onwards, however, rights of fishing steadily became more valuable, while falconry was superseded by other pastimes. Accordingly a new meaning was sought for provisions of Magna Carta, whose original motive had been forgotten. So early as the year 1283 the words of a petition to the King in Parliament show that “fishing” had been substituted for “hawking,” in interpreting the prohibition referred to in chapter 47 of John’s Charter. The men of York complained that Earl Richard had interfered with their rights of fishing by placing in defenso the rivers Ouse and Yore “against the tenor of Magna Carta.” This error, which thus dates from 1283, has been accepted for upwards of five hundred years by all commentators on Magna Carta. The credit for dispelling it is due to Mr. Stuart A. Moore and Mr. H. S. Moore in their History and Law of Fisheries, published in 1903.