Caught by the River

An Ancient Free Fishery on the Wye

20th December 2011

by Robert Mann.

One hundred years ago, George Harris, fisherman and hedge-layer, of King’s Caple, Herefordshire, and Frank Bailey, from the neighbouring village of Hentland, made what was for them a momentous journey to London. They went up to the House of Lords to hear the Law Lords pass judgement on an appeal which, apart from having potentially serious consequences on their livelihoods, had become something of a cause célèbre, both locally and nationally.

The story began a few years earlier in 1906 when they were sued for trespass by the Earl of Chesterfield and a Mrs Foster, local landowners who owned several miles of Wye riverbank between Ross and Hereford. George Harris and Frank Bailey had been doing what they’d done for years and what their fathers and grandfathers had done before them, namely, fishing for salmon. The landowners claimed exclusive riparian rights; the fishermen claimed that as freeholders of the five parishes of the Manor of Wormelow they were in possession of an ancient right to fish the Wye.

The first court found in favour of the fishermen but the landowners appealed and had the ruling overturned. Facing financial ruin, Harris and Bailey took their case to the House of Lords. The legal fees were considerable and many villagers and well-wishers contributed money to help pay their fees. At the same time, the local gentry, horrified at the idea of a precedent which could dilute the value of their fishing rights, rallied around to support the landowners. The battle lines were clearly drawn.

After all the legal toing and froing, by the summer of 1911 the seven Law Lords who had heard the case were ready to give their judgement. Or, at least, six of them were – one, Lord Kinnear, was absent from the House.

Each of the six Lords gave detailed reasons for their rulings. In support of the fishermen, the Lord Chancellor had no doubts about the legality of their right to fish. He wrote, ‘It has been proved beyond doubt that freeholders within five riparian parishes (King’s Caple, Hentland, Sellack, Ballingham and Bolstone) have been in the habit of fishing within the stretch of water for centuries, not by stealth or indulgence, but openly, continuously, as of right, without interruption’.

He even went on to speculate that the right to fish may have originally been granted to these villagers by the Crown in return for military service – a not unusual arrangement in the Middle Ages. The Manor of Wormelow was part of Archenfield, a shadowy area between the Wye and Monnow, which for many years had neither really been part of England nor of Wales. Into this tiny ‘buffer state’ there were frequent incursions (Owain Glyndwr may himself have been killed within Archenfield in 1416) and so the Lord Chancellor’s speculations were entirely feasible.

Summing up the case, he said, ‘Now, My Lords, there can be no question about the view which Courts of Law entertain in regard to a claim of this kind. When long and continuous enjoyment is established, a lawful origin will be presumed if it is reasonably possible …… this appeal should be allowed’.

Lord Ashbourne, agreeing with the Lord Chancellor, cited a ‘mass of old documents’ which he believed indicated that a fishing right existed, ‘possibly before 1297’. A third Law Lord also found in favour of the fishermen.

However, three Lords decided to reject the appeal. They argued that no real right ever existed and that the fishermen had merely been tolerated by the landowners. They pointed out the vagueness of the old documents – who, exactly was entitled to fish? Some ancient documents implied it was the right of all the inhabitants of the Manor of Wormelow, others said it was only the right of the freeholders and their servants. Other papers referred instead to the Hundred of Wormelow or Archenfield – were the Manor and the Hundred coterminous? Such were the niceties that led them to find in favour of the landowners.

So, three Lords for, three against. The seventh, and deciding, Law Lord, Lord Kinnear, was still nowhere to be found. The proceedings had to be postponed until the following day. One can imagine the tension – all the protagonists (it’s said that this was the one and only occasion in his life when Frank Bailey wore a neck tie) and reporters had gathered to hear the final conclusion of a case which had by now dragged on for five years, only for them to be told they’d have to wait yet another day.

Eventually, Lord Kinnear did deliver his verdict, but not in person. He did it by telegram to the Lord Chancellor. Without giving any reasons, he simply stated that he rejected the fishermen’s appeal. ‘One wonders whether in English jurisprudence there is any parallel for so fateful an opinion being conveyed in a sixpenny telegram’, said the Hereford Journal.

There was much condemnation in the press of the Lords’ verdict. ‘The rights of the poor, though centuries old, can be destroyed by a legal quibble …. the decision is certainly a proof that grave injustices are possible under English land laws’, stated the Manchester Guardian. The Morning Reader referred scathingly to the minds of lawyers, ‘steeped in a thousand devices of the books for entrenching private property’. The Daily Chronicle said it would like to, ‘lay the idle fishing rod over the backs of the judges who draw some £50,000 a year for their ignorance of the law’. The Daily News was quick to point out that the four Lords who rejected the appeal were all Tories.

But, apart from the anger, the press also communicated something of the sadness of the verdict. These were the words of the Hereford Journal, ‘One feels with regret that another little bit of Old England has disappeared with the shattering of the long cherished tradition that the dwellers in these five Wyeside villages enjoyed extensive privileges over the waters that course through their midst’.

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The story I heard as a child, told to me by my grandmother, who was the granddaughter of George Harris, was that the reason Lord Kinnear was not present to deliver his judgement in person was because he was staying at Brockhampton Court, a country house not far from King’s Caple. This was the home of Mrs Foster, the landowner who, along with Lord Chesterfield, had instigated the original court case. I do not know whether or not this is apocryphal but I think it matters little because, without doubt, it is poetically true. The landed gentry closed ranks and the villagers lost an ancient right.

Even with their outrage at what they saw as a travesty of justice, the liberal commentators of the day with their unshakable faith in progress, would have dismissed as ridiculous any notion that, one hundred years on, Britain would still be ruled by the same privileged elite and that the gap between the haves and the have-nots would be increasing steadily. On the other hand, I suspect that George Harris and Frank Bailey would hardly have raised an eyebrow.

Robert Mann is the great great grandson of George Harris. He lives on the banks of the Rio Genal in Andalucia.