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OF THE

SALMON FISHERY OF SCOTLAND

VIEW

SALMON FISHERY OF SCOTLAND

WITH OBSERVATIONS ON THE NATURE, HABITS, AND INSTINCTS OF

THE SALMON ; AND ON THE LAW AS AFFECTING

THE 1UOI1T8 OF PARTIES, ETC.

BY THE LATE

MURDO MACKENZIE

ESQ. OF ARDROSS AND DUNDONNELL

Kion n'cst beau quo le vrai.

BOILEAU.

WITH APPENDIX

WILLIAM BLACKWOOD AND SONS

EDINBURGH AND LONDON

MDCCCLX

CONTENTS.

PAGE

INTRODUCTION, . . VU

PREFACE, 1

SECTION I. PRESENT STATE OF THE SALMON-FISHERY, . . 5

II. NATURE, HABITS, AND INSTINCTS OF SALMON, . 12

... III. STAKE-NETS, 42

... IV. RIGHTS OF PARTIES, ...... 58

V. SCOTTISH STATUTES, 85

... VI. RIVERS, FRITHS, ETC., . , . . . 103

... vii. MR KENNEDY'S COMMITTEE, . . . . 113

... VIII. CLOSE-TIME, 135

... IX. TROUTS, . 147

APPENDIX, ..... 167

INTRODUCTION,

ON the occasion of giving publicity to the following
treatise, Mr Mackenzie of Arclross and Dundonnell
avails himself of the opportunity to subjoin in an
Appendix a discussion on the affinity of the species of
salmon with that of grilse — the result of close observa-
tion and protracted practical experience — to supply the
only omission in his father's production, written thirty
years ago, on the nature and habits of salmon ; as well
as to throw out suggestions on the interesting subject
for naturalists to meditate upon, and for praiseworthy
experimentalists to clear away the obscurities that sur-
round them.

DUNDONNELL HOUSE, ROSS-SHIRE,
April 1860.

P E E F A C E.

IT is universally admitted, that the history of Salmon and the
true nature of the Salmon Fishery — the causes of its decline,
and the means of its improvement — are yet but very imper-
fectly understood. That we have much to learn relative to
the natural history of this fish, as well as of all other fishes,
whose movements are in an element where they cannot be
traced, is most true ; and this will probably continue to be the
case for a long period of time, unless some friendly Mermaid,
or other inhabitant of the deep, shall kindly supply us with
information upon points which seem at present utterly beyond
human power to ascertain or elucidate. Yet there are many
facts, with reference to Salmon, which we do know, and which
may at least enable us to form a pretty correct opinion of the
nature of the Fishery. Indeed, all the knowledge relative to
the habits of the fish that is useful, or which seems necessary
for the benefit of the Fishery, Providence has placed within
our reach : it is only those parts of its history which it would
merely gratify our curiosity to learn, that are still hidden in
darkness ; and even these, as well as other operations of Na-
ture with which we are yet unacquainted, may, possibly, like
the power of steam, be in time developed — each new discovery
exciting fresh wonder, and all showing the immensity of the
Power and of the Intelligence by which the whole was created,

A

2 PREFACE.

It would be ridiculous in one who, from long experience,
knows well what we are acquainted with, and what we are
not, to attempt to write anything like what may "be termed a
history of the fish in question. Nothing, indeed, can be far-
ther from his mind than any pretension of the kind ; but, ob-
serving the errors which are afloat on the subject, and the
great injustice to individuals which those errors have occasioned
in the Courts of Law, to whose decisions the decline of the
Salmon Fishery in Scotland may perhaps be more ascribed than
to anything else, he has deemed it a sort of duty to those whose
properties are in jeopardy, or who may have to stand up in
defence of their just rights, to put the following observations
upon paper, in the hope that others, better qualified to do jus-
tice to the subject, will follow his example, from a similar
sense of duty, and that thus a better system may be ultimately
brought about.

It will undoubtedly be deemed a high degree of presumption
in one who knows so little of Law, save from the suggestions
of common sense, to meddle with it at all. But Law in Scot-
land, in nine cases in ten, is nothing else than the mere acci-
dental opinion of the Judge, varying with his knowledge of
the subject before him ; and, in truth, the administration of
justice is so intimately connected with the state of the Salmon
Fishery — so interwoven with its very existence — that they can-
not be separated. The Court of Session holds, in fact, the fate
of the fishery in its hands : it may ruin it by declaring the
most destructive modes of fishing legal — for the will of the
Court is law ; or it may prevent the possibility of its improve-
ment by tearing up the rights of the owners of the rivers in
which the Salmon are produced ; for the idea of improving it
elsewhere, as will be shown, is all delusion and nonsense.

We abhor injustice in every shape, from the very bottom of
our soul. Where it is the consequence of ignorance, negli-

PREFACE. 3

gence, or incapacity, it is an evil of the most malignant de-
scription, which strikes equally at the interests of individuals
and the security of society.

To the public the improvement of the Fishery must ever be
a subject of considerable interest ; since the quantity of lux-
urious food which may be derived from this source, under a
proper system, is incalculable. As the population of the
country becomes more dense, more land may be brought into
culture out of the millions of waste acres in the kingdom ; but
the number of the Salmon rivers cannot be increased, — they
must remain FOE EVEE stationary. No species of property is,
therefore, likely to become of more value to individuals ; and
there is none more deserving of protection, with reference to
the public, though upon none has so little been hitherto be-
stowed.

Much cannot be expected from a mere salmon-fisher, qui
devient barbouilleur de papier malgre lui, and whose hand an
OAK would suit much better than a pen. All he can pretend to
is experience of the fishery. He has killed salmon with stake-
nets and with coble-nets, with cruives, spears, and rods, — in
the tide- way and out of the tide- way, and has paid deep atten-
tion to all their motions, having really a friendship for the
whole persecuted race ; and if the facts he states cannot be
controverted, or the inferences that result from them be denied,
he cares very little about the style in which they are expressed.
If salmon-fishers minded such bagatelles as style, grammar, or
othography, neither a late author, the salmon-fishing patriarch of
Dochnalurg, nor himself, would venture to put pen to paper.
All he asks is to be judged with candour and impartiality, if
such things there be ; for, to say truth, he has met with very
few of these exotics in his journey through life, the corner of
the country where his unlucky stars have placed him being of
too barren a soil for the generous plants to thrive in. Where

4 PKEFACE.

his statements do not carry the conviction of truth with them
let them be condemned at once without mercy. They are only
presented as mere sketches for others to follow up ; and the
greatest gratification he can receive is, that they will do so,
since truth must ultimately prevail. It is like a fishing-cork,
which may be kept for a time under water, but will at last get
to the surface. Au reste, the same points recur so often in
different parts, that repetition may be expected without ceasing ;
repetition, besides, refreshes bad memories ; but, says a French
author, Q'importe la route pourvu quon arrive au but ? and our
but is, that the TEUE nature of the fishery and the obstructions
to its improvement should be better understood.

VIEW, ftc.

SECTION I

PRESENT STATE OF THE SALMON-FISHERY.

" LOOK BEFORE YE LOUP.

Scotch adage.

IT is a fact admitting ot no dispute, that salmon, which were
formerly so plentiful in the rivers both of England and Scot-
land, have, for a considerable time past, become comparatively
scarce. In England, indeed, the fishery has fallen off to an
enormous extent ; in Scotland it has long been fast declining,
though, happily, it has not yet reached the same state of de-
pression as in the sister country. This seems to be in the
natural course of things. In all unimproved and partially
civilised countries, such as the western coast of North America,
the rivers are full of salmon ; while, in the rivers on the eastern
coast of that continent, where, in former times, the fish were
equally abundant, they have now become scarcer, and will,
doubtless, continue to diminish in numbers in proportion to
the increase of population and the improvement of the arts of
life. And the reason of this is plain ; for all animals which
nature has brought within the reach of man, and fitted to
minister either to his comfort or subsistence, must necessarily
become less numerous the more they are destroyed ; especially
when, as in the case of salmon, the rate of multiplication or
increase depends, in a great degree, upon causes over which we

6 SALMON -FISHERY OF SCOTLAND.

have no manner of control. When destruction, therefore, is
pushed beyond a certain limit scarcity must ensue. It is thus
that Nature punishes us for the abuse of the benefits she con-
fers upon us ; it is thus that our rapacity comes, in time, to
defeat its own objects. No animals are so easily destroyed as
salmon, because none are brought, by their habits and instincts,
so much within our power, in returning to the rivers ; and
hence there is a corresponding danger that destruction may be
carried further than the generative powers of nature can re-
place.

Formerly, when the modes of fishing in use were less exter-
minating than at present, such destruction could not, or at least
did not, take place ; and, accordingly, salmon were then plen-
tiful both in England and in Scotland. Servants of farmers
used to stipulate with their masters that they should not be
obliged to eat salmon except on a certain number of days in
the week. How different is this from the state of matters at
present, when salmon, instead of being a common article of
food for the poor, have become a luxury for the rich, and when
the supply and the demand frequently vary in an inverse pro-
portion ! The cause, however, is abundantly obvious. As the
population increased in numbers and in wealth, the destruc-
tion of the fish became greater than the powers of nature could
replace or restore, and scarcity was the necessary consequence.

In Scotland, previous to the last thirty or forty years, the
quantity of salmon caught being greater than an immediate
market could be found for, they were salted; but the price of
salt-fish was then so low as to offer no inducement to over-
fishing ; so that the rivers kept full of breeding fish, while
the aggregate amount sent to market continued nearly the
same. It is deserving of notice that, in many rivers, the salmon-
fishery used then to be nearly over by the end of May ; in
some of the late rivers indeed it continued somewhat longer ;
but the salmon-vats being by this time generally full, the
grilses were deemed of so little importance that one-half of
them was not destroyed. Yet, at the period referred to, 1000
barrels of salmon were exported from fishings which do not
now produce one-third of that quantity. But there was then,

SALMON-FISHERY OF SCOTLAND. 7

it will be observed, scarcely any fishing of salmon on the
coasts ; the whole was confined to the rivers, and carried on by
means of what the stake-net fishers are pleased to call the rude
fishing apparatus of our rude ancestors ; although they have
forgotten to add, that it has always been among rude nations,
and by means of rude fishing machines, that salmon have been
caught in the greatest abundance.

In England, as we have already remarked, the salmon-fishery
has declined in proportion as the population and riches of the
country have increased. In Scotland, the discovery, by the
late Mr George Dempster of Dunichen, of exporting salmon in
ice to the London market, has contributed to produce the same
effect, by raising the price of the fish, and thus stimulating the
salmon-fishers to a greater destruction of the species. From
this period, accordingly, may be dated the commencement of
the decline of the Scotch fisheries ; which, though compara-
tively trifling at first, has latterly been accelerated in a ratio
which threatens, at no distant period, the entire extinction of
this important branch of national industry.

The rise of price occasioned by the means which Mr Demp-
ster's discovery had furnished, of sending salmon in a fresh
state to the London market, not only rendered the fishers more
assiduous and industrious in their fishing operations, but proved
a strong inducement to employ new and more destructive
modes in capturing the fish. Hence stake-nets were intro-
duced from the Solway into the Tay, and thence into all the
other friths in Scotland ; and vast quantities of salmon were
caught in these engines— quantities which were represented as
so much absolute gain to the public, inasmuch as, but for these
admirable engines, they could never, it was said, have been
caught at all ! The stake-nets, accordingly, became quite popu-
lar, and were regarded as a great practical discovery. To keep
up the delusion, their owners maintained that the supply of
fish was perfectly inexhaustible ; that the sea literally swarmed
with them ; that salmon were as numerous as haddocks along
the coasts ; and that nothing was wanting but effectual means
of capturing them, which their apparatus alone supplied. And
till this the public believed, because the public knew nothing

8 SALMON-FISHEKY OF SCOTLAND.

whatever of the matter. But the owners of the rivers, whose
properties were thus destroyed, maintained, on the other hand,
that the supply of fish, so far from being inexhaustible, was,
from the very nature and habits of the salmon, necessarily
limited ; that, in point of fact, their fisheries had decreased
exactly in proportion as the stake-nets were productive ; and
that, consequently, there was no absolute increase of supply, as
the owners of the stake-nets had pretended, nothing, in short, ex-
cept an increased capture at some points, and a correspondingly
diminished capture at others. By all who know anything of
the subject, these are now admitted as unquestionable truths,
yet nobody believed them. It was universally supposed that
the opposition of the river proprietors to the new engines arose,
not so much from the alleged interception of the fish, as from
the ruin of their monopoly, as it was termed, consequent on the
introduction of these machines, and from a selfish desire of
keeping up the price of salmon in the market. They were
branded as monopolists, who would be content with nothing
short of a monopoly price for their -commodity ; while the
generous and liberal owners of stake-nets were recommended to
public favour as men who, having augmented the supply,
sought no more than the rate of the market, whatever it might
be. In point of fact, however, the market price of salmon never
fell one farthing below its ordinary average level, even while the
stake-net manner of fishing was at its height ; and it would have
been marvellous if it had, seeing that, in truth, no additional
quantity of fish had been sent to market, and the former rela-
tion between supply and demand remained undisturbed. But,
notwithstanding this decisive fact, the plausible fallacies of the
stake-net owners continued to be credited ; and no regard
whatever was paid to the statements of the " fresh-water pro-
prietors," as they were derisively called, either by the public,
or in the courts of law, where the new engines were protected
as far as the law would possibly permit.

Some of the judges compared the river heritors to men who
would wish to prevent their neighbours raising superior crops
of grain, lest their own should, in consequence, fall in price.
But there is obviously no analogy whatever between the real

SALMON FISHERY OF SCOTLAND. 9

case and that which these learned persons supposed, for the
purpose, it may be presumed, of illustrating it. Indeed it
seems never to have occurred to them, that such a combination
as that implied in the supposition is as impracticable as it is
absurd. If one farmer raises a superior crop, another may do
the same. Each looks to his own interest; his object is to
raise as much grain as possible himself, whatever others may
do ; and he knows that he must take his chance of prices. The
idea of combination, in such a case, is utterly ludicrous. In
the same way, what haddock or herring fisher ever thought of
preventing others from fishing, that the price of his capture
might thereby be enhanced ? The thing would never enter his
imagination except as the subject of a jest, and even in that
case would speedily be dismissed as a very stupid one. But if
the operations of one set of farmers or haddock-fishers were of
such a nature as to interfere materially with those of another,
and to diminish, in a great degree, the product of their labours,
as well as to neutralise a large portion of the capital invested in
their respective employments, a new and very different ques-
tion would arise, namely, whether such interference was con-
sistent with that equal protection which is due to all kinds of
property, and whether one man is entitled to avail himself of
the advantages of a peculiar situation to enhance the value of
his own property at the expense of his neighbour's, or, which
comes to the same thing, to the utter destruction of rights
secured to the latter by unchallenged titles, and exercised by
him from time immemorial. Now, this is precisely the matter
at issue between the stake-net men and the river proprietors.
The question is not, whether two men shall fish where there is
unlimited abundance, and no possible interference of rights or
pretensions ; but whether one shall fish in such a manner that
the other shall not fish at all', although his title be at least
equally good, and the exercise of his right fortified, perhaps, by
ten consecutive prescriptions.

Were salmon like sea fishes, the stake-net owners would, in
that case, have some reason to complain of the opposition of
the river heritors, and of the hardship of not being allowed to
kill salmon as they might kill cod, haddocks, or herrings. But

10 SALMON -FISHEKY OF SCOTLAND,

as there is not a salmon in the sea but which, from the very
law of its nature, must come to the rivers, it is obvious that
every fish intercepted by a stake-net is taken from some river
fishing or other ; and that, while the public gain nothing what-
ever in consequence, the owners of the rivers are deprived of
their natural and legal rights by this interception of the fish.
In short, the effect of the new system is merely to produce a
transfer of property from one set of proprietors to another ; to
enrich the stake-net owners, who have neither right nor title to
such a boon, at the expense of the river heritors, whose pro-
perties have been secured to them by the strongest muniments
of title and prescription.

In the meanwhile, the fishery, as might be expected, continues
to decrease, on the whole, more rapidly than ever. If, as has
already been observed, the salmon-fisheries, in all countries,
decline in proportion as wealth and population increase, from
the constant and growing destruction of the species, the ad-
dition of so many new modes of destruction, since the inven-
tion of stake-nets, must necessarily serve to aggravate the evil :
and such, accordingly, is the fact. Instead, therefore, of en-
couraging modes of fishing, which evidently trench deeply on
the sources of supply, and must ere long cut them entirely off,
the object of the legislature and of the courts of law should be
to restrain the capture of the fish by every means in their
power, consistent with the fair exercise of the rights of pro-
perty. This they could easily do by restricting the mode of
fishing, in all parts, to the movable coble-net. But the courts of
law, from mistaken notions relative to the fishery, have hither-
to done just the reverse, and have given every encouragement
to fixed nets, which they conceive can do little or no injury to
the rivers ; as if salmon dropt into them from the clouds, or
were in the same predicament with haddocks, herrings,* or cod.

This conception, or rather misconception, however, has been
singularly disproved by the result. The fishery, as already
stated, has been progressively declining, and more rapidly, too,

* Since this was written the notion has been growing, that herring may be
over-fished as well as salmon, and this has helped to lead to the prohibition of
the trawl, or circle net, by 14 £ 15 Viet. Cap. 26.— ED.

SALMON-FISHERY OF SCOTLAND. 11

than before the introduction of the fixed nets. This is a fact so
perfectly notorious that it cannot be disputed or denied. In
order to remedy the evil, a new Act of Parliament has been
resorted to for the protection of the breeding fish in the rivers,
to the destruction of which the stake-net owners of course
ascribed the decline of the fishery, which has been greatly
accelerated by their own engines. Of this act notice shall be
taken hereafter. The destruction of the breeding fish is un-
doubtedly a great evil, which has prevailed at all times, and
formerly, we believe, to a much greater extent than of late years.
Where the breeding-fish are killed, however, the effects are
immediately visible in the scarcity of young fish. But it is
not here that the decline of the fishery is by any means most
conspicuous, since the young fish are comparatively plentiful
and constitute now, in effect, the staple of the fishery ; a proof
that the alleged destruction of the breeders is not the principal
cause of its decline. It is of grown fish that there is the great-
est scarcity, because from the multiplicity of fishings, and modes
of destruction, the salmon are not allowed to attain their full
size. Indeed there is hardly a full grown salmon now to be
seen, at least not one for a score that were formerly caught,
which could only happen from over-fishing. If all the lambs
and year-old sheep in the country were killed, would not mutton
be scarce ? It is the same with salmon. And if they grow from
five to eight or ten pounds each in a year, and are almost all
destroyed in the early stages of their growth, must not the
fishery, from this cause alone, be, on the whole, in a declining
state ? The weight or absolute quantity of food thus lost to
the public is immense ; and until this evil be remedied, which
can only be done by restraining fishing operations in the man-
ner already hinted at, and affording the necessary protection
to the rivers, it is idle to expect that the fishery can ever be
brought to a proper state of improvement. If the public want
to have abundance of salmon, let the salmon-fishers be com-
pelled to return to the rude apparatus of their ancestors, so
much ridiculed by our modern stake-net poachers, but in reality
the only mode compatible with the preservation of the fishery,
and the regular supply of the market. Hacc ha.ctenus.

SECTION II.

ON THE NATURE, HABITS, AND INSTINCTS OF SALMON-

lt La nature de toute principe des choses est le secret du Cre'ateur. Notre nature
— celle de 1'univers — celle de la moindre plante — tout est plonge pour nous dans un
gouffre de tenebres." — Voltaire.

SALMON, like herrings, are both a gregarious and migratory
fish. Hatched in rivers, they perform a migration to the ocean,
whence they return periodically to their natal streams ; and
they form themselves into gregarious collections, or shoals,
composed of separate tribes, or families, belonging to the re-
spective rivers, which keep distinct from each other during the
period of their migratory abode in the sea.

Some have called the salmon a sea fish, merely because it
performs a temporary migration from its native river to the
ocean. On the same principle, a parrot, born in India, which
has passed his life in this country, may be called an English
bird. A salmon is a true highlander, born amid the mountains,
but who, like other highlanders, goes to forage elsewhere. A
salmon, which returns to an early river in December, will not
leave it till after it has spawned the December following, — thus
remaining near twelve months in the river. Some even go the
length of saying that salmon breed in the sea, as if they had
ever seen different or contrary instincts exist in the same spe-
cies of animals ; but Mr Hogarth's experiment has proved,
what, indeed, required no proof, that the thing is impossible ;
for, having reared fry in a bottle, the ova which he put into salt
water perished ; and even some of the fry, which had been re-
moved into salt water at an earlier period of their existence than
when they naturally proceed to the sea, died. Yet one of the

SALMON-FISHERY OP SCOTLAND. 13

luminaries of the Scottish bar, distinguished for his grave elo-
quence, declared, that if all the rivers in the kingdom were
blocked up, salmon would become more plentiful than ever, as
they would then IOQ forced to spawn in. the sea. This gentle-
man, who is no naturalist, will make an excellent judge in
fishing cases.

Even in rivers salmon are never known to deposit their
spawn in deep, or in still water, or in lakes, but on fords, where
the stream runs rapidly. Sir H. Davy supposed the reason for
this to be, that the water is there more saturated with fixed air,
but the bottle experiment shows that this is not the case. The
true reason may be traced to the spawning operations them-
selves, in which the exertions of the spawners are greatly
assisted by the action of the water in streams ; they commence
their operations at the lower extremity, shedding the ova and
milt as they proceed, so that in working upwards, the gravel,
thus stirred, is carried down by the strength of the current, and
covers the spawn as it is deposited. In still water this would
not be the case ; nor, unaided by the current, or action of the
water, could the fish make the necessary furrows ; their in-
stincts, therefore, which in all animals are perfect, point out to
them the proper place for their operations. The process of
spawning has* been so often described, that it is useless to
repeat it. A late writer has represented it as resembling that
of a hen digging a hole in the earth or sand with her wings,
the spawners lying on their sides, making the furrows, or re-
moving the gravel by a quick jerk and curvature of their
bodies, principally with the 'fins and tail. At this period they
are always accompanied by a horde of river trouts, who often
are very alert in picking up the ova as they drop, and the male
spawner is every now and then seen chasing them away.
Theorists, or closet salmon-fishers, and even stake-net fishers,
as Mr Halliday, who, in regard to the true nature of the salmon-
fishery, are little better than closet-fishers, tell us that, as there
are from 16,000 to 18,000 ova in a female salmon, six or eight
pair of fish would be sufficient to stock the Tay. What be-
comes, says Mr Halliday, in the committee, of all these ova ?
Poor simple soul ! let him ask the river trouts, and eels, and

14 SALMON-FISHERY OF SCOTLAND.

water ousels, and other birds that are constantly preying upon
them, and upon the fry in their infant state, when no bigger
than needles, and to whom his 18,000 ova would scarcely make
a breakfast. Even when going down to the sea, clouds of sea-
gulls hover over them, darting down every instant and picking
them up ; and after they have reached the sea, they are no
doubt devoured by all other fishes, according to the universal
law of the marine regions. But the greatest destruction of all,
in the Scotch rivers, of both the ova and fry, is by severe
and rapid winter floods, which in some instances tear up the
spawning beds, so that scarcely a vestige of them is left, cover-
ing the adjacent meadows with ova and fry ; while in other
parts such quantities of sand and gravel are thrown upon
them, that the spawn is quite smothered. If Mr Halliday and
his stake-net friends happened to be taking their morning walk
along the banks of a river on one of these occasions, and saw
the meadows strewed with ova and fry, they would no doubt
see the necessity of sending for a few additional breeders to
repair the loss. There is, however, but one practicable cure :
namely, to keep the rivers always well supplied with breeding
fish, so that, if much of the spawn be destroyed, much will have
a chance to escape. It is the only way by which the quantity
of salmon can be increased.

The salmon which enter the rivers in the early part of the
season, in the spring and summer months, which, though all
charged with spawn, the stake-net fishers do not consider breed-
ing fish, are always the very best and surest breeders, because
they are enabled to reach the higher parts of the rivers, where,
the quantity of water being less, the spawning-beds are not so
liable to be destroyed by winter floods. The fish which do not
enter the rivers till towards the conclusion of the season or
close-time (and these are often very few in number, as the fish
then become scarce), which the stake-net fishers and our theor-
ists think quite sufficient, seldom ascend beyond the lower
parts of ths river, where the spawn is exposed to the whole
force of the water, enlarged by the various streams that fall into
it, and is often swept away in the manner we have stated. Fish
ought, therefore, to be allowed to run up the rivers at all periods

SALMON-FISHERY OF SCOTLAND. 15

of the season ; but this cannot be done without a considerable
sacrifice on the part of the river proprietors : and is it likely, or
natural, or reasonable, to suppose that they will, voluntarily,
make this sacrifice, for the benefit of the coast proprietors, who,
by intercepting the fish when returning from the sea, would
reap the principal advantage resulting from it ? This is one of
the great evils arising to the salmon-fishery, from the system of
the Scotch Court in giving every encouragement in their power
to the coast proprietors, at the expense of the river fishings.

The number of salmon in a river, granting that it is suffi-
ciently stocked with breeding fish, depends upon its length, the
extent of its spawning grounds, and the number of its tributary
streams. In all these particulars the Tay and the Spey stand
conspicuous among the Scotch rivers, and they accordingly
produce by far the greatest quantity of fish ; but if salmon
entered rivers only as chance directed, as the stake-net fishers
tell us, it is evident that all those advantages, or the number
of fish bred in a river, would not be of the least use to its
fishery, as the fish would take the first river they met with, and
another river, possessing none of those advantages, and in which
a single salmon was not bred, if situated more in the course of
the fish, would kill the greatest quantity. This would be so
contrary to experience, and to common sense, that we find the
advocates of the chance system themselves, even where their
rivers are in such remote situations that no chance fish would
apparently reach them, incurring considerable annual expense
for the preservation of their breeding fish, which is a tacit
acknowledgment of their being conscious of the reverse of what
they say.

Salmon spawn in different rivers at different periods of the
season. Those which come earliest into a river, and reach the
higher parts, generally spawn sooner than those below. In all
rivers it seems necessary that the salmon should remain some
weeks in the river previous to spawning, and they are generally
several days on the spawning-fords before the operations com-
mence. Mr Home Drummond's Act* has, therefore, trenched
greatly on the spawning season, in the early rivers, as well as

* 9 Geo. 4, Cap. 39.— ED.

16 SALMON-FISHERY OF SCOTLAND.

curtailed the number of breeders, by extending the period of
fishing eighteen days beyond the usual time. When on the
fords the breeders are easily destroyed. A man may then kill
them sometimes with even a walking-stick, in the higher parts
of the rivers, and in the streams where there is often scarcely
water sufficient to cover the back fins, so much are these fish
brought by their instincts, from the depths of the ocean, within
our power. The thief who steals a sheep from a common is
hanged ; but the greater and far more destructive thief, who,
without a particle of more right, steals the breeding fish, con-
taining 18,000 ova each, and which are then rendered by
nature lean, black, slimy, and disgusting, is only fined a mere
trifle ; yet, whether with reference to the proprietors of the
fishery, or to the public, his offence is unquestionably infinitely
the greater of the two. Such is the consistency of our laws,
the wisdom of our Legislators, and the discrimination of our
Judges.

After the spawning operations are concluded, the spawners,
then denominated kelts, or spent fish, retire to the sea. The
kelts generally drop down the river during the winter and early
part of the spring, in so exhausted a state, that many of them
are found dead on the banks. At this period vermin are found
in the gills of the spawners, that is, after spawning, but are
never found save in kelts, or spent fish ; though the stake-net
fishers would wish to have it supposed that they attack all
salmon in rivers and force them to return to the sea, which is
not the case, for after a salmon has entered a river it never
leaves it till it has spawned ; nor, as we have just said, are
vermin ever found in their gills till then. Whether such vermin
be the consequence of their emaciated state after spawning, as
in the case of other animals, or to what cause they may be im-
puted, is one of those secrets of nature to which we have not
the key.

Every river, and even every branch or tributary stream of a
river in which salmon are produced, has a variety of the species
peculiar to itself, and which return regularly to it from their mi-
gration to the sea. This is an important fact in the history of
salmon, not merely with reference to the natural history of the

SALMON-FISHERY OF SCOTLAND. 17

fish itself, but also in a legal view, for regulating the rights of
parties, as will be hereafter shown ; and we must, therefore, as
it seems to be still doubted by many, be permitted to dwell
upon it at some length. In one river, for instance, a large breed
is found, averaging, perhaps, twenty pounds weight, while in
the very next river there is a small breed, averaging scarcely
seven pounds. In some rivers the salmon are long and narrow,
or lank ; in others broad and short — so broad and so short, that
when cut up they are nearly circular. In one river we find all
the salmon straight in the back — in another, round or hog-
backed. In some rivers their heads are all large and clumsy —
in others, small and neat. Even in the spots and scales there
is often a visible difference. In short, the distinctions are so
numerous that it is needless to detail them. The salmon of
some rivers are so strongly marked that a stranger would re-
cognise them at a glance, — while he could only be sensible of
the distinctions between those of others by comparing them,
when the difference would strike him at once. Now, when
salmon of exactly the same shape and description, and no
others, are uniformly found in the same river, where can there
be room for doubt on the subject ? Or how could this be the
case if they did not return to breed in it ? Will any man say
it is possible it could be so, if other or different breeds en-
tered it — that is, if salmon entered rivers by chance, or pro-
miscuously ? When, then, people talk of the particular fish of
different rivers, under the chance system, they speak nonsense,
since, under such a system, all the breeds would be mixed
together — so that a river, like the Shannon, which had a large
breed one year, might have a small breed the next. The fact
of the different varieties found in the different rivers, admits of
even legal proof, if the evidence of the senses can be deemed
so. Many doubt it, for no other reason than because they
think it wonderful ; but what is there in the works of nature,
when closely examined, that is not so? If no two human
faces, or voices, — no two flowers, — no two leaves of a tree, are
absolutely alike — if the varieties of nature are boundless —
where is the great cause of wonder that each salmon-river
shoiild possess a variety of the salmon species belonging to itself ?

•n

*

18 SALMON-FISHERY OF SCOTLAND.

When Nature, then, or rather Nature's great Author, formed
all these varieties of the salmon race, and planted one in each
river, it was certainly not that they should be all lost by pro-
miscuous intermixture ; and he, therefore, engrafted instincts
into them, sufficient for perpetuating what he had made. By
the gregarious instinct, each variety, or tribe, is made to shoal
by itself, unmixed with other varieties, even in the sea ; and
by another powerful instinct, all are made to return from their
migration, with perfect regularity, to their native rivers ; by
which means the whole varieties of the race have been con-
tinued as they were originally formed. And it is the same
with herrings, of which each loch has its own variety or distinct
breed.*

If salmon entered rivers by chance, it is plain that they
would all go into the first river they met with, if all could get
into it without choking up its course, and that the rivers in
remote situations would have none ; or a river might be full of
fish one year, and be quite deserted the next — without even a
breeder. How different this from the manner in which all now
get regularly their share, in consequence of the instinct which
brings the fish back to their own rivers. A straggling fish of
one river, may, no doubt, sometimes go into another, because
the organs of a salmon may be. .diseased as well as those of
another animal ; but this seldom occurs. It may also happen
sometimes, that when a shoal or tribe of salmon are scattered,
either by their natural enemies, or by stake-nets placed on their
course, when returning to the rivers, a stray fish belonging to
one river may mix with and follow a shoal belonging to another
river, as a stray sheep will sometimes mix with a flock of
passing sheep ; but even if the salmon should accompany the
strangers into their own river, he would soon leave it, if not
killed, and return to his own. We have heard an instance of
such a salmon being taken and marked, and allowed to escape,
and retaken in his own river next day at a distance of forty
miles.

We know that some salmon-fishers, whose experience has

* There is not, too, a trout loch or stream in Great Britain, or, as Sir H. Davy
remarks, in Europe, that has not its own variety of the trout species.

SALMON-FISHERY OF SCOTLAND. 19

been limited to fishing on the coasts, or at the mouths of great
rivers, though they do not absolutely deny that salmon return
to their native rivers, do not admit the fact, because they are
ignorant of it. These men, finding salmon of different shapes
in their nets, suppose it is the fish of different rivers. They do
not reflect that there could be no different breeds belonging to
different rivers, if salmon entered all rivers by chance : the
inconsistency never struck their minds. These fish were,
however, the salmon of the different branches of the same river,
caught by them, at or near its mouth ; all which would proceed
up the common channel, and strike off, each into its own
branch, or natal stream, as it reached it. The upper fishers, or
the inhabitants in the vicinity, could point out with ease the
fish of each branch ; they could sort them as a shepherd would
different breeds of sheep ; but the sea fishers, whose sole object
is to catch all they can, never give themselves the trouble of
investigating such matters. It would be absurd, however, to
consider ignorance of a fact as proof of its non-existence, in the
face of positive proof to the contrary.

All intelligent salmon-fishers, indeed, who have had the
means of knowledge on the subject, fully acknowledge the fact.
Even Mr Little, the celebrated stake-net fisher, admits it. He
states, in the Committee, —

" I believe every river has a peculiar breed of fish, both as to
salmon and grilse. We have three fishing rivers that fall into one
bay in Ireland, the Bush, the Bann, and the Foyle ; and we can
easily distinguish the salmon of the different rivers when we take
them. The salmon of the Bush is a long-bodied round fish, nearly
as thick at the head as it is at the middle. The salmon that we kill
at the Bann is what I call a very neat-made fish, very broad at the
shoulder, and the back-fiii tapering away towards the tail, and quite
a different shaped fish from the Bush fish. In the Foyle we get few
salmon but grilses. The Shannon fish are very large, few of them
under twenty pounds, and many of them thirty and forty pounds and
upwards. The salmon that are bred in the Bush never get larger
than nine or ten pounds. A large salmon never will come from a
small breed : a Bush salmon would never grow to the size of a Shan-
non fish, though he were to live to any age."

20 SALMON-FISHERY OF SCOTLAND.

The Committee ask Mr Wilson of Berwick, —

" Can you inform the Committee whether salmon, bred in a river,
and going to the sea, return to the same river, or go to other rivers,
as accident may lead them 1 " — " I am fully of opinion that every
river has a peculiar breed of salmon. They all return to the same
river where they were bred."

" Have you ever known, during any season, the salmon quit the
river Tweed, from any accidental cause, and run to any other river ?"
— " No, never. I have attended a few weeks in the year at Montrose,
where there are two rivers, the North and South Esks, and the species
of salmon is quite different in these rivers."

" Do you mean to say that you yourself, from your own knowledge,
could distinguish a fish of the North Esk from one of the South Esk?"
— « Yes."

" Can you describe the distinction?" — " One is a large, coarse,
scaly fish — the other is a small and finer fish."

In a communication from Sir George Mackenzie, of Coul, to
the Chairman, he states, —

" But the principal fact to be ascertained is, whether salmon, bred
in a river, uniformly and certainly return to it f — That they do is,
I think, beyond dispute : not only so, but that each river has its own
variety or tribe of fish. I know more than even that : for it is a
fact that three varieties of salmon, quite distinct from each other,
enter the river Conan, and that two of these belong to its two
branches. I one day happened to be angling below the junction of
its lower branch, with a party of strangers on a visit to the late
Lord Seaforth at Brahan Castle, when, by a singular chance, I killed
three salmon, one of each variety, and I showed them to the gentle-
men with me. The variety that belongs to the main river is a hand-
some fish, being considerably broader, in proportion to its length, than
the others ; the salmon of the upper branch, the river Rasay, or
Black- water, are more round and full, and are reckoned the best (in
quality) of the three varieties. That belonging to the lower branch,
the river Orin, is a long lank-looking fish, and is little esteemed
when compared with the others."

The same facts have likewise been stated by other persons
many years ago. A gentleman in the vicinity of the Tay, in
an Essay* upon Salmon, says, —

" Each river has evidently distinct fish of its own, which with a

* Prize Essays.

SALMON-FISHERY OF SCOTLAND. 21

wonderful instinct explore their way to their parent stream. From
the sea they run to the Tay, from the Tay to the Isla, and through
that river for several miles, till they come to the junction of the
Ench, where, without exception, every fish ascends, and then leaves
the Isla, none going up it further. Those spawned in the Linth are
known to take their course up the Rhine ; out of that river up the
Aur, through the lakes of Zurich, and so into the Linth. In like
manner, through various rivers, lakes, and windings, they push up
to the very interior parts of North America, on purpose to breed in
the natal waters.* There are, however, some instances of animals
mistaking their instincts. The flesh-fly has been seen to deposit its
eggs in the flower of the fetid stapelia, deceived by the resemblance
of its smell to that of carrion. So I have known salmon to run up
rivers in which they were not bred — but this seldom occurs. I re-
member a circumstance of the kind when angling in the Ench. I
caught a salmon, whose figure appeared to me very singular. It had
a hogged back, something resembling that of a perch. I showed it
as a curiosity to a fisherman who was near me, and asked him if he
had seen the like before 1 His reply was, Yes ; that is a Tummel
fish : it has lost its way and strayed up here."

Another acute observer f of the nature of fishes remarks, —

"Salmon, it is well known, form gregarious associations, into
which only those are admitted which belong to the same tribe or
family. So much is this the case, that the salmon of one river is
never known to run up another, though they might easily mistake
their way when the streams are muddy. As an example of this, it
may be stated that the rivers Forth, Teath, and Allan, form a junc-
tion near Craigforth, and each contains salmon that are easily dis-
tinguishable, both in size and shape, from the others ; yet the salmon
of one of those rivers are never known to enter the others, though
the streams are often swelled from excessive rains,"

In the same way, another writer,J a practical salmon-nsheiv
who had the fact daily under his eyes, states, —

" That every river, in which salmon are bred, has its own peculiar
fish, and that the salmon of one river differ in appearance from those
of other rivers, are facts known to every person in any degree ac-
quainted with the salmon-fishery. In proof of this it may be men-
tioned, that the river Berridale in Caithness, of which I am tenant

* 8ir Alexander Mackenzie's Travels. t Survey of Forfarshire.

+ Prize Essay*.

22 SALMON-FISHEKY OF SCOTLAND.

is formed of two rivers, which, hold their courses at nearly four miles
from each other till within four hundred yards of the sea, where they
unite. One of those rivers produces a short thick fish, the other a
long and lank one ; when the salmon return from the sea they go
each into their own river, as naturally as a horse goes to the stable
to which he has been long accustomed, and there is scarcely an in-
stance of a fish entering the river of which he is not a native.

" It is no less remarkable that, when we fish in the sea, near the
mouths of the conjoined rivers, we find the salmon in two separate
shoals : and it very seldom happens that a fish, originally of the one
river, is found shoaling with those of the other."

The grand point, then, that each salmon river possesses a
variety of the species peculiar to itself, and that all salmon are
forced, by a powerful instinct, implanted in them for the pur-
pose of continuing or perpetuating those varieties, to return
from their migration to the ocean, to their natal waters, may,
we think, be thus set at rest ; and if this is the case, it must be
quite obvious that, if there were a thousand stake-nets, or other
fishings on the coasts, of either the sea or estuaries, they could
add nothing to the general supply, or catch a single salmon,
save by interception on its progress to its river. The farther
we trace the instincts and habits of the fish, the stronger and
more invulnerable will this truth appear.

The fry, or smolts, become vivified towards the beginning of
March ; and about the middle of April they begin to descend
the rivers in their migration to the ocean, always keeping to-
gether in close ranks or shoals, even in going down the rivers,
on their grand migratory voyage. To what regions of the
deep these little beings, led by nature from their parent streams,
and the kelts, or spent fish, direct their migratory course, is
one of those points in the history of salmon which has, in all
ages, puzzled the most experienced salmon-fishers to ascertain ;
which we can do nothing more than form random conjectures
about, and which is likely to continue in darkness, unless, as
we said, some friendly mermaid shall whisper a word of infor-
mation into the ear of some favoured fisher on the subject.
Some persons have supposed that salmon do not go far from
the land, but we never could learn that they had any grounds
for thinking so, or that a single fact could be adduced in sup-

SALMON-FISHERY OF SCOTLAND. 23

port of their opinion. In general, the fishermen believe that
they migrate somewhere to the north, as it is from thence they
are always observed to come, which is all they know of the
matter. The Committee ask Mr Bell of Perth, a salmon-fisher
of great experience, —

" Where do you think the salmon come from 1 where do you think
they winter ? " — " I believe that is a mystery."

" What do you suppose 1 " — " I believe they come from the
north."

Dr Fleming is asked by the Committee, —

" Where do you think the fry and spent fish proceed after their
descent to the sea?" — "The question is one of extremely difficult
solution ; but the following circumstances may be mentioned, as
throwing some light on the subject. They do not retire to the sea-
shore, otherwise the stake-nets would succeed in capturing the kelts
at least; and if they frequent the nearer banks on our coasts, I
should think it probable that the bait employed by our fishermen to
catch the different kinds of white fish, would occasionally tempt a
hungry kelt. It is not known that such fishermen do take such
kelts, consequently I would be disposed to conclude that the fry and
kelts betake themselves to deep water, at a considerable distance
from the shore — indeed to parts with which we are wholly unac-
quainted."

In all this we agree entirely with the Doctor. The only
question seems to be, to what remote regions of the deep they
do retire ; and in solving this insolvable question, we are
thrown, as we have said, wholly on speculation and conjecture.
Let us, then, take a look at herrings, between whom and sal-
mon there are so many analogies, to see if it will assist us on
the subject.

It is beyond dispute that all the herrings which constitute
our herring-fishery are bred on the banks around our coasts,
and in the sea-lochs and friths by which the northern parts of
the kingdom are indented. In the Cromarty Frith nine cart-
loads of herring fry have been taken out of one yair in a tide :
in another yair, in the frith of Inverness, at Tarradale, the fry,
principally those of herrings, are often sold by the bushel ; and
in the frith of Dornoch, at Kincardine, the swine have been

24 SALMON-FISHERY OF SCOTLAND.

usually fed with them. The fact, then, that the herrings spawn
in the sea-lochs and estuaries is, obviously, beyond all doubt ;
and it is equally indisputable that the herring-fry, while in
their infant state, perform a migration from their natal waters
to distant parts of the ocean, just as their little neighbours the
fry of salmon do from the rivers.

Now, it is pretty well known that the fry of herrings migrate
to the Polar Sea, from whence they are seen to return annually,
their course being distinctly marked by the clouds of sea-birds
which hover above them, among whom, the solan goose and
arctic gull, both birds of high latitudes, are conspicuous.
Herrings, too, like salmon, are gregarious fishes, forming them-
selves into divisions, or tribes, or families, composed of the
herrings of each bank, or sea-loch, which keep separate from
each other, even when collected into one great shoal. Thus Mr
Headrick remarks, —

" The general opinion is, that the herrings retire to the Polar sea,
or frozen ocean, and from thence move southward, in one immense
mass, in June. On the outside of this great shoal whales are often
seen, while an immense assemblage of sea-fowl form a belt, or zone,
above it farther than the eye can reach, and whose screams are
heard, even when too remote themselves to be visible. This great
shoal is composed of subordinate shoals, or subdivisions, which keep
separate by themselves, as an army is composed of battalions."

And Mr Pennant observes, —

" The great rendezvous of the herrings is within the arctic circle.
There they continue many months, the seas within that space
swarming with insect food in a degree far greater than in our warmer
latitudes. The mighty army begins to put itself in motion in the
spring. "We distinguish this vast body by that name, for the word
herring is derived from the German Heer, an army, to express their
numbers, They begin to appear off the Shetland Isles in April and
May : these are only the forerunners of the grand shoal which comes
in June, and their appearance is marked by certain signs, and by the
numbers of birds, such as gannets and others, which follow to prey
on them : but when the main body approaches, its breadth and its
depth is such as to alter the very appearance of the ocean. It is
divided into distinct columns, and they drive the water before them
with a kind of rippling. Sometimes they sink for the space of ten

SALMON-FISHERY OF SCOTLAND. 25

or fifteen minutes, then rise again to the surface, and in bright
\veather reflect a variety of splendid colours, like a field of the most
precious gems, in which, or rather in a much more valuable light,
should this stupendous gift of Providence be considered by the inha-
bitants of the British Isles.

" The first check this army meets in its march southward is from
the Shetland Isles, which divide it into two parts ; one wing takes
the east, the other the western coast of Great Britain, and fill every
bay and creek with their numbers : others pass on to Yarmouth.
Those which take the west, after offering themselves to the Hebrides,
where the great stationary fishery is, proceed towards the north of
Ireland, where they meet with a second interruption, and are
obliged to make a second division : the one takes to the western
side, and is soon lost in the Atlantic ; but the other, which passes
into the Irish Sea, rejoices and feeds the inhabitants of most of the
coasts that border upon it. Were we to consider this partial migra-
tion of the herrings in a moral light, we might reflect, with venera-
tion and awe, on the mighty Power which originally impressed in
this most useful body of His creatures the instinct that directs and
points out their course, that blesses and enriches these islands, which
carries that, at certain and invariable times, to quit the vast Polar
deeps, and offer themselves to our expecting fleets. It is not from
defect of food that they put themselves in motion, for they come to
us full fat, and on their return are almost invariably observed to be
lean and miserable."

Another later writer * of great intelligence states, —

" It appears from various reports that all the herrings which visit
the British shores proceed, in the month of June, in one great body,
from a high latitude, and from a great distance, to the north-west of
the Shetland Isles. On one occasion particularly, this immense shoal
was discovered by Provost Finlay of Campbeltown, an experienced
seaman and herring-fisher. Many leagues to the north-west of
Shetland he passed through a shoal of herrings, the extent of which
he estimated at twenty leagues in length, and four or five in breadth.
At this time they seemed all to observe the same course, their heads
being directed the same way, which was to the south-east. The
weather being fine, the shoal came sometimes to the surface of the
water. This great shoal, when it approaches our coast, divides
itself into two divisions, one of which takes the west, the other the
east coast of the kingdom, sending detachments into the different

* Dr Walker.

26 SALMON-FISHERY OF SCOTLAND.

bays and lochs as it passes. It is thought by some that, after the
herrings have spawned in our shore, they return to the deep, but not
far distant from our coasts, where they remain at the bottom till
next season ; but they have never been discovered in this situation,
and no herrings have ever been known on our shore, except what
proceed from the northward of the Shetland Isles, from whence
they pay their regular annual visit to the coasts of Scotland."

This is confirmed by a great practical herring fisher*, who
remarks, —

" It is the opinion of some that the great shoals of herrings never
retire to any considerable distance from the coasts of Scotland : this,
however, is a mistaken idea, because, if this were the case, they
would be found in the stomachs of large fishes, such as cod and
ling, of which great quantities are taken on the coasts, yet none are
found in the stomachs of these fishes during the absence of the her-
rings, whereas, after their return, three or four full-sized herrings are
frequently found in the stomach of one of these fishes. There is,
therefore, every reason to believe that the herrings proceed, in the
state of fry, to the Northern Ocean, whence they return periodically
when they come to maturity. This is farther proved by the facts,
that the farther north the earlier the fishery commences, and that
when the herring shoals first approach our coast they are accom-
panied by whales, and by Arctic gulls, whose plumage differs from
that of other gulls."

From all these facts, then, there seems little reason to doubt
that the herrings, which are bred on our coasts, perform, as fry,
a migration to the Polar Ocean, from whence they return an-
nually, full grown, with perfect regularity, in one immense
mass, formed of separate subdivisions, or tribes ; that, on reach-
ing our coast, this immense mass divides into two parts, one of
which proceeds towards the Irish Channel, and the other takes
its course along the east coast, both throwing detachments into
the various lochs and bays as they pass. Those detachments,
however, the above writers seem to suppose are thrown into
the lochs from the main body by mere chance : they have not
traced the operations of nature with sufficient minuteness :
they left the most wonderful part of this grand system unex-
plored : if they had considered that each herring loch has a

* Mr John Mackenzie.

SALMON -FISHERY OF SCOTLAND. 27

distinct variety of the species belonging to itself, as each sal-
mon river has its own breed or variety of salmon, they would
have seen that the separate subdivisions, or tribes, of which the
great shoal is composed, are the distinct families or tribes be-
longing to each loch, which detach themselves from the main
body, and enter their respective lochs as they reach them, just
as the salmon enter their own rivers.

Dr Walker, indeed, states, " It may be questioned whether
or not herrings return to the place where they were spawned,
as on this point I could obtain no certain information." The
only information, however, which it was possible for him to
obtain on the subject, was the simple fact, that the same dis-
tinct variety of the species was uniformly found in the same
loch. This fact alone was sufficient ; because, as with salmon,
it could not exist, save by each returning to breed in its own
loch, and to no other. The thing would be quite impossible,
since, as we have remarked with regard to salmon, all the
varieties of the species would be blended together by promis-
cuous intermixture. Why, it may be asked, did Nature, which
has done nothing in vain, or uselessly, or without a purpose,
engraft into herrings, as into salmon, the gregarious instinct of
collecting into tribes, each composed of a distinct variety of the
species, and of preserving themselves from intermixture with
other tribes ? What other purpose could there be for it, save
the one we have stated? Mr Headrick, who seems to have
bestowed much attention on the fisheries, remarks, " No High-
lander was ever more averse to spurious intermixture with
other clans than herrings are to associations with other tribes.
I have been told of two shoals meeting, which crossed each
other with some confusion, but without an individual of the
one shoal associating with the other. In fact, a discerning eye,
assisted by the sense of taste, can perceive a difference of
quality and frequently of size, between the herrings which
frequent the different lochs."

This difference is, in fact, acknowledged universally. The
fishermen at Loch-duich can distinguish the herrings of that
loch from those of Loch Long, though the two lochs are only
separated from each other by a narrow point of land ; and at

28 SALMON-FISHERY OF SCOTLAND.

Loch Erebol, and Loch Glendhu-beg, when a herring of a dif-
ferent loch is found, amid a mass of their own, the fishermen
say, " Here is a stranger, let us see what loch he belongs to."
But we need not go farther than Lochfyne, the quality of whose
herrings is known to all. These herrings have uniformly re-
tained their character of superior excellence. Has this been
owing to the food ? No, for in the great shoal all the herrings
feed alike. Is it casual? Is the quality good one year and
bad another ? No, it is the same every year, as far as memory
can trace. This, then, could only happen in consequence of
the gregarious instinct which makes them cling to each other
and shoal in a separate division, or tribe, in the great mass, and
return to breed in their natal loch, without intermixture with
inferior tribes ; and, assuredly, these instincts were not infused
into the herrings of Lochfyne alone, but were engrafted in the
whole race. In some lochs the herrings are so large that 800
will fill a barrel ; in others it requires 1100, and in some 1500.
An experienced herring-fisher has remarked, " These distinct
sizes certainly formed one great shoal before they entered the
lochs, but must have gone in separate divisions or squadrons
from each other, otherwise how is it possible that the size of
herrings caught in each loch is found nearly equal, that is,
without there being a mixture of small among the great, or of
great among the small 2 " The reason is just the one we have
stated. There can be no other. Each loch gets its own her-
rings. The large breeds do not mix with the small, nor the
small with the large. If they did, the whole would be one
mongrel breed, instead of the distinct and wonderful varieties
with regard to quality, as well as to size and shape, which
exist, and which have existed from the beginning, and are con-
tinued and perpetuated by invariable and perfect instincts.

Sir H. Davy has observed, writh reference to the instincts of
bees, that " the laws of a perfect, social community, as it were,
are adopted by beings that we are sure cannot reason. In the
hive-bee, for instance, the instinct of the workers leads them to
adopt and obey a queen ; and if she is taken from them, or
dies, they have the power of raising another from offspring in
the cells by an almost miraculous process : they work under

SALMON-FISHERY OF SCOTLAND. 29

her government for a common object, allow males only to exist
for the purpose of impregnating females, who preserve the
society, and under whose government they send forth swarms,
who readily place themselves under the protection of man. In
the geometrical construction of their cells, the secretion of wax
from their bodies, the collecting of food, and the care of the
brood, there is a series of results which it requires a strong
reason to follow, and which are the consequences of perfect
instincts." •

But what can be more wonderful than the instincts of her-
rings ? — the fry, scarcely two inches in length, proceeding from
the various lochs and banks around the kingdom, all in one
direction, to the Polar Sea — congregating there in one immense
mass, in separate and distinct tribes — returning altogether in
that mass, regularly, at a stated period of time, yearly ; — this
immense mass, on reaching our coast, forming itself into two
divisions — the one taking the west, the other the east coast ;
and each tribe so admirably, so systematically stationed in so
vast a mass, that, when it divides, all the tribes belonging to
the lochs and banks on the east coast, should fall, with perfect
regularity, into the one division, and the tribes of the west
coast into the other : a tribe belonging to the Moray Frith
never following the western division to Lochfyne or the Isle of
Man, nor the tribes of those parts straying with the eastern
division to the Moray Frith or Yarmouth.* Let the im-
mensity of the shoal observed by Provost Finlay, sixty miles in
length, and from twelve to fifteen in breadth, all in one mass,
be only contemplated, and then the marvellous arrangement of
the tribes in this mighty shoal will be duly appreciated. When
shall all the arcana — all the wonders of nature be developed
to man ? Not till thousands and thousands of years shall have
rolled over his head — if ever.

We have heard it said that herrings sometimes desert a loch
for years and go elsewhere. We do not believe it, any more
than we believe that salmon can forsake their river. It would

* If this were not the case, while the superior herrings of Lochfyne were
found there one year, the inferior tribes of the Moray Frith, or Lochroag, might
be found there the next.

30 SALMON-FISHERY OF SCOTLAND.

be contrary to the general law implanted in their nature :
Deleterious ingredients, as lime thrown into the water, might
probably kill all the salmon in a river, but would not make
them abandon it, and go to another river. We cannot conceive
that an instinct, engrafted from the creation in a race, can cease
its operation, or abandon them for a few years, and afterwards
return again into them. It would be an anomaly totally
beyond our comprehension. If Nature works by general laws,
nothing can overset those laws. The herrings of a particular
loch may, by over-destruction, be rendered so scarce, that the
few that do return may be deemed undeserving of notice ; or
they may be liable to accidents we are unacquainted with. Such
scarcity, we know, has been complained of at Lochroag. The
herrings of that loch are of a particularly large breed, harsh in
the flesh, and fibrous, and easily distinguished from those of
other lochs ; yet we never could learn that during their scarcity
there they were found elsewhere, though they would be recog-
nised at a glance amid the herrings of the other lochs.

If, then, the herrings perform a migration to the Polar Sea,
we think it very probable that salmon, which, as we said, have
so many analogies in common with them, migrate to the same
regions ; for we can see nothing more extraordinary in the fry
of salmon, bred in our rivers, doing so, than in the fry of the her-
rings, produced in the friths and bays into which those rivers
discharge themselves. It is evident that the salmon retire to a
considerable distance from land ; for, exclusive of the reasons
adduced by Dr Fleming, there can be no doubt that if they
remained in the seas around our coasts they would sometimes
be observed by the crews of the vessels that are constantly
navigating those seas, which is not the case ; they would, too,
be at all times flocking into the rivers : there would not be
that periodical, regular, annual return, of shoal after shoal, as
at present ; and, besides, we do not think there would be food
in our comparatively barren seas for the great quantities of sal-
mon and grilses that are produced in all our rivers. They evi-
dently do not live on haddocks, whitings, or mackarel ; and
the few sand-eels that are on our banks would afford very little
sustenance to such numbers ; but herrings are found frequently

SALMON-FISHERY OF SCOTLAND. 31

in their stomachs, and they all return fat and full fed, which
shows that their migration is performed to regions abounding
with food. Even the herrings fall off when they come into our
seas. Dr Walker observes, " During the residence of the her-
rings on the coast of Scotland we know of no food they use, no
sort of palpable aliment being found in their stomachs, and
during all this time they become gradually leaner." These are,
therefore, not seas for salmon to get fat in.

But the case is very different in the arctic seas. We have
been informed by the crews of whale ships that those seas
abound with a sort of mucilage, evidently intended by nature
as food for fishes. Mr Pennant, as we have seen, remarks,
"Those seas swarm with insect food, in a degree far greater than
in our warmer latitudes ; " and Dr Walker states, " In the
seas in those parts a vast profusion of a singular substance
is seen floating on the surface, to such an extent, as to make
the sea appear as if covered with oil, — but has been no-
where observed on the coast of Scotland. If this account, given
by persons of observation and veracity, is correct, we need no
longer be surprised at the retreat of the herrings to those tracts
of the Northern Sea, nor at their return from thence in a full
fed and fat state." If, then, the salmon migrate thither they
must have food in great abundance.

Those seas, indeed, appear as if formed by nature as a grand
nursery of fishes, which abound there to an infinitely greater
extent than in more southern latitudes. The numbers taken on
the coast of Norway, all the way to the North Cape, show this.
Von Buch states, that the fishery at the Vaage alone employs
18,000 men and 4000 boats. "The yearly arrival," says he,
" of the cods at the spawning-banks takes place with regular-
ity. After spawning they return to the ocean, either in quest
of herrings, or to unknown regions of the deep ; " and Brooke
tells us, that " the fishery at the Loffoden Isles gives employ-
ment to 25,000 men and 5000 boats." " The fish," says he,
" come invariably from the north, and pass on to the south-
ward." The great numbers of seals, too, found in those seas
by the whale ships, whose cargoes are often in a great degree
made up of them, also shows that fish must abound there ; and

32 SALMON FISHERY OF SCOTLAND.

these fish were assuredly not formed by Providence for seals
alone. The rich mucilage, with which those seas are covered in
such profusion, seems peculiarly adapted to afford nutriment
to the hordes of herring fry, which repair thither annually, and
would do so too to the fry of the salmon, as these, when grown,
would feed on the herrings themselves, which supply food for so
many fishes, and which are so frequently found in the stomachs
of the salmon when they first come upon our coasts that many
salmon-fishers consider them as their common food. The
wonderful progress of the fry from our shores to those parts is,
of course, regulated by their instincts. " Sometimes," says an
author already cited, " the herrings swim slowly, at other times
they go faster than a boat can row." Perhaps the fry, on leav-
ing our coasts, are directed into under currents, which may
possibly carry them quickly to their destination.

If we look to what appears to be the principles of the
migratory system, certainly not the least curious or the least
beautiful in the scheme of the universe, this migration of the
salmon and herring tribes to the arctic seas will be found in
perfect accordance with it. In taking a glance at this singular
system, there are some circumstances so obvious that they
must strike all. First, all the great migrations of the migra-
tory tribes are invariably made to distant parts : next, they
are made annually : and lastly, they are always made in
groups or masses. All these circumstances we trace to the
migrations of herrings and salmon, in common with the tribes
of migratory birds with which we are acquainted, such as the
swallow, the lapwing, the woodcock, Teal duck, &c., which
must, necessarily, come from a great distance before they reach
our shores, which come only once a-year, and whose migratory
movements are always made in groups. A gentleman informed
us that he once saw a large tree in the churchyard of the parish
of Eddertown, in Ross-shire, absolutely covered with swallows,
ready to take their migratory flight ; and another gentleman
stated that he had seen a meadow in Caithness where an
immense flock of lapwings were collected, apparently for the
same purpose. Any person who has observed a squadron of
wild geese in spring, winging their way to the north, must

SALMON-FISHERY OF SCOTLAND. 33

have been struck with the systematic order and regularity
with which their migratory flight was conducted. In MacgilTs
Travels in Turkey, it is remarked, respecting the migrations
of the stork, —

" These birds pay an annual visit to Turkey. They arrive in vast
numbers, and always in the night. They arrange their progress
very systematically. They send forward their scouts, who always
make their appearance a day or two before the grand army, and
then return to give in their report ; after which the whole body
advances, and in its passage leaves, during the night, detachments
in the different towns and villages on their way.* Early in October
they take their departure in the same manner, so that no man can
tell from whence they come, or whither they go. A person who, at
the season of their departure, was in the habit of coming from the
interior, told me, that on his journey the year preceding, he had
seen thousands, and hundreds of thousands, of them near the bank
of a river, and that they annually assemble there ; and when the
general sees that his whole army is collected, he, at a given moment,
sets it in motion, leaving a detachment to bring up the stragglers."

The migratory system seems, therefore, to be regulated by
the same general laws in all parts. That salmon and herrings
perform their migrations in masses is indisputable ; that they
do so annually is equally so ; and that they migrate to distant
parts we think must be evident from the facts we have stated.
The very circumstance of their migrations being performed in
shoals, or masses, would, alone, aiford a strong presumption
that they proceed to distant parts, from whence their return
could obviously not be so well or so regularly made singly as
in masses. Common fishes, which swim about our shores in
search of food, do not require to form themselves into gregarious
tribes or shoals : to them the gregarious instinct would be worse
than useless — it would be an impediment ; but to fishes which
have to proceed to distant regions, and to return periodically
at stated times, it seems absolutely necessary, to enable them to
perform their migrations, and, therefore, Nature has implanted
this instinct in them. Undoubtedly the great Being, by whom

These detachments break off from the main body just as those of salmon
and herrings do, each detachment of storks stopping at the place of its nativity,
like those of the above fishes. The analogies of the system are obvious.

C

34 SALMON-FISHERY OF SCOTLAND.

all was formed, had He pleased, could have supplied food for
those fishes in the seas around our coasts : so He could to the
migratory tribes of birds in the parts from whence they come ;
but then, what would become of the migratory system, which,
as we have said, forms so curious and so beautiful a link in
the order of the creation? Of what use, too, would those
inhospitable regions, the Polar seas, be, abounding in fish
doomed to remain there as mere food for seals? To send
ships to such a distance, to fish for small fishes amid moun-
tains of ice, would be out of the question. While, therefore,
other seas facilitate the intercourse between distant nations,
and thus render the various productions of the earth common
to all, the Polar Sea has its use, as a great nursery or magazine
of fishes, which, by the migratory system, are brought regularly
within the reach of man, the means of supplying whose wants
forms so prominent a feature in the works of creation.

Let us follow up this system a little further. We have
already remarked that the same habits and instincts are uni-
formly found to pervade the same species of animals throughout
the whole of the animal creation. A dog, or a cat, or a spar-
row, in Spain or in Eussia, or a crow, which is found in so
many parts of the globe, differs in no respect, in its habits and
instincts in those countries, from the same animal in Great
Britain ; and as a thrush builds its nest in the Hebrides, so
exactly does another thrush in Cornwall. This uniformity of
instinct in the same species of animals, in all parts, appears,
therefore, to be a general law of nature ; and we will venture
to say, that however they may differ in size, shape, or quality
(as is the case in our own rivers), there is no difference what-
ever, in point of habits and instincts, between a salmon in
Kamschatka and one in the Tweed — every individual of the
species being influenced by the same instincts, and subject to
the same laws. If, then, all the salmon, and all the herrings
belonging to Great Britain are forced, by the law of their
nature, to perform a migration to the Polar Sea, the salmon
and herrings of the Baltic,* of North America, and Kams-

* In Sweden the general opinion is, that all their herrings come from the
Polar Sea.— Cox's Travels.

SALMON-FISHERY OF SCOTLAND. 35

chatka, must do so too : All, having the same instincts, and
acting under the same laws common to the race, must take
the same course — must, necessarily, perform the same migra-
tion to those icy regions, which, let it be observed, are equally
centrical to the whole of them, the whole being produced
within the same northern latitudes. What a magnificent
scene, then, does this migration of all these tribes of birds and
fishes exhibit, performing their grand annual evolutions to
distant parts, through the trackless regions of the air and of
the deep, with the regularity of clock-work, in obedience to
laws eternal and immutable !

The progress of the salmon shoals from the north cannot be
traced, like those of herrings, by the birds by which they are
accompanied ; — yet there are circumstances, even in their
course, which tend to confirm the hypothesis we have been
stating. When the shoals first approach our coasts, they often
swim so near the surface, probably to get hold of the fresh
water from the land, which floats uppermost, and leads them
to the shore, that the ripple they make in the water is seen at
a considerable distance. A fisherman of Orkney has informed
us that he has frequently observed them always coming from
the north, some taking the west side of those islands, as if
proceeding to the coast of Caithness and the Moray Frith,
while others keep the sea-side, as if steering their course for
the southern rivers. When one of these shoals approaches
the rivers Bighouse or Thurso on the north coast, the fishers
at those rivers are always ready, with nets of 200 fathoms in
length, to row round them, by which means they sometimes
take the fish of various tribes ; but it often happens that, when
the shoal gets within a certain distance of the land, the head-
most fish makes a leap out of the water, which is a signal to
the shoal to stand off and alter their course, which the whole
immediately do, leaving only the tribes belonging to the rivers
in those parts behind. After this the shoal continues its course
along the coast, within a short distance of the land, till it
meets with another river in its way, when those belonging to
it enter, just as the herring tribes separate from the main body,
and enter their respective lochs as they reach tl\em, while the

36 SALMON-FISHERY OF SCOTLAND.

rest pass on. Sometimes, however, the salmon remain a little
while in the tide-way of the river, where many of them are
caught by the river fishers ; and sometimes the shoal is broken
and dispersed by the stake-nets placed on their course. When
they reach their respective rivers, the objects of their destina-
tion, they never leave them, as we said before, till they have
spawned.*

Such appears to us to be the progress of the salmon and
herring tribes, led in their infant state, as fry, by nature, or
instinct, to their northern nursery, where they grow large and
full fed, and return at stated periods, in shoals, like fleets of
ships, to their respective destinations, pursuing the same unde-
viating course, the same track, year after year, which their
predecessors did 4000 years ago, and which succeeding shoals
will continue to follow in all future time, unless the race be
destroyed by the blind rapacity of man.

After the salmon get into the rivers, the exertions which
they make to push their way up, and to overcome every
obstruction in their way, form a singular trait in their history.
The stake-net owners tell us they are constantly running down
from the rivers again to the sea — an assertion which carries
absurdity upon the very face of it. If all the salmon are
under the influence of the same instincts, which they neces-
sarily must be, it is contrary to common sense to suppose that,
while some of them ascend the rivers with ardour, others, after
having entered the rivers, return to the sea, before they have
effected the purpose for which they came there. The assertion
is directly in the teeth of every principle of the migratory
system, and rests, besides, upon no proof whatever. We have
seen a salmon, in the early part of the season, attempting to
push his way up a shallow part of a river, and tried to beat
him back with a stick ; but after receiving repeated blows on
the back, instead of turning down, he pushed his way on, and

* Mr Stephen states, in the Committee, " Our cruives on the river Don are
BO constructed that salmon of ten pounds weight can at all times go up, but
none can descend, past the cruives. We fish generally in the pool above the
cruives ; and if the unspawned salmon returned again down the river, we would
undoubtedly catch them there, which is never the case.- They are never seen
to descend the river, except as kelts, after having spawned."

SALMON-FISHERY OF SCOTLAND. 37

effected his purpose. A writer on the subject* has truly
observed, —

" The exertions which salmon are known to make to overcome
obstructions in their passage up rivers are truly surprising. To
those who are admirers of the wonderful works of the Author of
Nature, no sight can be more gratifying than to observe salmon
ascending torrents, and throwing themselves up rocks of such a
height as no other fish would attempt. A singular instance of this
is to be seen in North America, at the great Bellows Falls, where
the fishermen hang arm-chairs, secured by a counterpoise, and catch
the salmon as they spring. In the early part of my life, I have,
with pleasure not to be described, stood for hours together viewing
the salmon when in floods, facing the passage of a waterfall called
the Keth, in the river Ench, a tributary stream of the Tay. This
rock is about fourteen feet high when the water is low, but in floods
not so much. At this time the strength of man could not resist the
Current, while they, with considerable facility, make over it. They
sometimes fail in their first essays, but, undismayed, and with an
unremitting ardour, they renew the attempt, till they prevail in
clearing it."

After they reach the rivers, salmon, as before remarked, like
herrings, after they come upon our coasts, seem to require very
little food: for the few worms that are washed down from the
adjacent grounds, and the flies which flutter on the water, are
next to nothing. In the sea they feed well, whole herrings, as
we have said, being often found in their stomachs : if they
required anything like the same quantity of food in the fresh
water, Nature must have filled the rivers with worms, or other
insects, to such a degree as to become a nuisance and pollute
the water : but instead of this, the streams are pure, and the
stomachs of the fish are so constituted as to extract the neces-
sary sustenance almost wholly out of the water itself. Accord-
ingly, nothing is almost ever found in the stomach of a salmon
killed in a river. That salmon rise to a fly, is true ; but let any
man examine the fly, and see how little food there is in it, or
let him watch the river, and see how seldom salmon rise to or
catch at flies. In a pool containing a score of salmon he will
n<>t, perhaps, see one rise to a natural fly in four-and-twenty

* Prize Essays.

38 SALMON-FISHERY OF SCOTLAND.

hours. This instinct of rising to flies seems therefore to have
been infused into salmon by a beneficent Providence, if not as
a source of pleasure to man, at least as affording him the means
of capturing the fish, just as sporting dogs have been given
him to enable him to capture game. Angling has been
called a cruel amusement ; yet many philosophers have been
anglers. Doctor Paley was a great angler, and so was Sir H.
Davy. All animals are made to die, and having no foreknow-
ledge of death, it signifies very little whether they are killed
one way or another. A salmon which was hooked in the eye
arid escaped, leaving his eye on the hook, rose a few hours
afterwards, with the other eye to the fly, and was killed.

Salmon rivers are usually classed as early rivers, and late
rivers ; and it seems to have puzzled Mr Kennedy and his
Committee exceedingly, to ascertain what occasioned a differ-
ence between them. In some early rivers the new fish of the
season begin to come on in November and December, and con-
tinue to do so till April, when the fishery falls off ; while, in
the late rivers, it is only then it commences. In the former
the fish begin to get foul, and heavy with spawn in August ;
in the latter they continue clean till the middle or end of
October ; so that, taking the whole together, it is quite clear
that, under a proper system, there might be a constant supply of
clean salmon at market during the whole year, the late rivers
ceasing to produce their fish just when the early rivers begin
to yield those of the new or ensuing crop ; and yet the wise
men of our legislature have put the whole upon the same foot-
ing, and have directed all the rivers to open and close at the
same time.

Some of the savans of the north, who think they can account
for all the operations of nature, state in the Committee, the
reason why salmon enter some rivers at an earlier period than
others, to be, that their water, flowing from large lakes, is more
pure ; yet it is when rivers are in flood, that is, in their most
impure state, that salmon are keenest to enter them. Besides.
none enter those early rivers save their own fish, the purity of
the water, it seems, having no attraction for the fish of other
rivers. Those gentlemen might have considered, that a fish

SALMON-FISHERY OF SCOTLAND. 39

which enters a river early, must have left his migratory abode
at an earlier period than the fish of late rivers — and must, there-
fore, according to their doctrine, have had a foreknowledge of
the quality of the water that would please him, and where it
was to be found. The truth is, that some rivers are so consti-
tuted by nature as to produce early fish, while other rivers
produce late fish, just as some rivers produce large fish and
others small fish ; and the instincts of the fish are regulated
accordingly — the salmon of each river leaving its migratory
abode, and proceeding to the river to which it belongs, at the
period the instincts implanted in it for that purpose begin to
operate, the principle of perfection, visible in all the works of
nature, being traceable to the minutest parts of the whole
system. Some rivers produce both early and late fish ; be-
cause some of their tributary streams possess an early, and
some a late, breed of fish — all of which must pass up the main
or common channel.

The Eev. Dr Fleming is asked in the Committee, —

" How do you account for salmon entering rivers early, when they
don't spawn till late in the season 1 " * — " It is a question of ex-
tremely difficult solution. Salmon seem to require a residence of a
few months in rivers previous to spawning ; but as they are known
to enter rivers, four, five, or six months before spawning, it seems to
me extremely difficult to account for such apparently premature mi-
gration, unless we take into account that migration of salmon into
rivers is a natural instinct of the species, and that, in certain cir-
cumstances, this instinct may prematurely exercise its function."

Science is, undoubtedly, a fine thing ; it is a pity it should
be sometimes so nearly allied, by any of its professors, to non-
sense. The answer of the Doctor, we conceive, to be a very
singular one. We do not pretend to understand the migration
of an animal into its native element ; and, to use the Doctor's
own words, we find it extremely difficult to believe, that know-
ing, as he unquestionably does, how perfect the instincts of all
animals are, and how rarely deviations from those instincts

* The Committee might have just as well asked the Doctor how he accounts
for woodcocks visiting this country ; and he would no doubt have given an
equally scientific answer.

40 SALMON-FISHERY OF SCOTLAND.

occur, he can really suppose, that at least half, if not three-
fourths, of all the fish of the early rivers, are year after year,
with systematic regularity, led into those rivers by the prema-
ture exercise of their instinctive functions. The winter months
are, in truth, as much the regular fishing season of the early
rivers as the summer months are of the late rivers ; and yet
the Doctor, who seems utterly ignorant of the distinction be-
tween early and late rivers, tell us that all this fishing is
entirely owing to a premature operation of the instincts of the
fish ! Here we have science, in opposition to nature, in per-
fection. The Doctor forgets he told us that the fish spawn in
December and January, so that if they require only, as he says,
a few months of previous residence in the fresh water, and that
those which enter the rivers four, five, or six months before
spawning, must do so from a premature exercise of their in-
stincts ; the whole of the summer fish must also be in the same
unfortunate predicament — that is, the fishery altogether.

The worthy and Eeverend Doctor might, we think, have
found, if not so scientific, at least a more orthodox reason, in
the bounty of Providence, who has formed so many animals
evidently for the use of man. He has made the rivers to pro-
duce a fish, of the richest quality, in such abundance that the
rivers themselves could not supply food for one-thousandth
part of them ; He therefore engrafted into them the wonderful
instinct of migration, by which they are led to distant regions
of the ocean, where they grow large and fat, and from whence
they are made to return again to the rivers — thus bringing them
within the power of man, as an article of subsistence, as well as
for the reproduction of the species. If the latter were the sole
object of their return, it would be undoubtedly answered by
their coming all at once in August or September, previous to
spawning, and no early rivers would be necessary ; but instead
of this, from their first appearance in the early rivers in No-
vember, till they cease coming in the late rivers in October,
every stream-tide brings with it a fresh supply, in some river
or other, in constant succession, of clean fish during the whole
year. The intention of Providence cannot therefore be mis-
taken ; the whole history of the origin and migration of the

SALMON-FISHERY OF SCOTLAND. 41

fish shows it. But in making this fine present to man, Provi-
dence has assuredly given it to an ingrate, who, instead of
gratefully protecting and nursing the animal, brought so com-
pletely by its instincts within his power, for his own use, pur-
sues it in all parts, even almost to a system of extermination,
for which he is justly punished by the decrease of the species.
When we look to herrings, the same intentions of Providence
are visible. Forced by their instincts to migrate to the Polar
regions, they are made to return to our coasts, and are thus
brought within our power ; for no man will doubt that He could
have made them breed equally well in the icy seas of the north,
had such been His will.

Here we must stop. We have spun the subject out into too
great length already for a Sketch. There are other particulars
relative to the fish in question, which we may possibly take
another opportunity to state ; unless, as we hope, some other
better qualified person shall take up the subject, and render
any farther statements on our part unnecessary. In the mean
time, we think it must be abundantly obvious to all that the
rivers are the true source of the salmon-fishery ; and that there,
and there only, can it be improved. Everything, therefore,
which tends to diminish the interest of the owners of the rivers
in the fishery must necessarily operate as a preventive to its
improvement, and prove as detrimental to the public as to the
proprietors.

SECTION III.

STAKE-NETS.

" In truth I heard it, Provost ; and was glad to hear that the scoundrels had so
much pluck as to right themselves against a fashion which would make the upper
heritors a sort of clocking hens to hatch the fish that the folks below were to catch
and eat. " — Redgauntlet .

AFTER the salmon have left their migratory abode in the ocean,
on their return to the rivers, they proceed, as we have stated,
in successive shoals along the coast, at a short distance from
the land. It is, therefore, obviously a matter of considerable
importance to the fishery, that the course of the fish should be
kept as clear, and as free from obstructions, as possible.*
Formerly, at the periods when the fishery was in its most
flourishing state, this was the case, for there was then scarcely
even a coble-net fishing to be seen beyond the mouths of the
rivers, or if there happened to be one, it seldom extended more
than a few yards from the shore ; accordingly, the shoals
arrived unbroken at the rivers. In this view the ancient Scot-
tish statutes, by which all fixed engines are prohibited within
reach of the tide, which necessarily embraced the whole sea-
coast of the kingdom, and consequently the course of the sal-
mon returning to the rivers, as will be afterwards shown, were
of essential service to the fishery. Some years ago, however, a
new mode of fishing, or species of fishing-apparatus, called
Stake-nets, has been introduced into the estuaries, and from
thence extended to the sea-coast, by which the salutary enact-
ments of the statutes have been defeated, and from which the
most pernicious consequences have resulted, and must farther

* The method of fishing proposed by Mr Russel (in Edinburgh Review, vol.
xciii. p. 365, and Quarterly Review, vol. ci. p. 168), is that, when practicable,
river-fishing should be carried on by one fixed engine, that would take every fish
when in operation, and could be managed to let them pass at will.

SALMON-FISHERY OF SCOTLAND. 43

result, to the fishery. This fishing-apparatus is formed of a
long range of stakes carried out from the shore sometimes a
mile into the water, that is, to the low-water mark, with nets
and traps affixed to them ; the whole forming a barrier of the
most formidable description in the course of the fish, and
which, it must be evident to all, must not only break and
scatter the shoals as they come on, and thus most materially
hurt the fishery, as regards the public, but which may be so
multiplied on the coasts, as to ruin the river fisheries entirely.*
If we only consider the progress of the salmon shoals along
the coast, the effects of such machinery, placed in their way,
may be easily conceived. We have already remarked that, in
coasting their way, in search of the rivers, they generally keep
at a short distance from the land. When a shoal meets with
a stake-net, some of the fish are caught in the traps, or cruives,
or what is called its chambers, others start off ; in short, the
shoal is broken and dispersed. The scattered fish, however,
always guided by their instincts, gather in again to the land,
singly, or in groups, and continue their course with the tide,
until they meet with another similar engine, when the same
capture and dispersion is repeated. It sometimes happens
that, as stake-nets are, as we said, always placed on ground left
dry at ebb-tide, the shoals may pass on the outside of some of
them at low water ; but this is but a partial intermission, for
as the tide rises, and the fish are enabled to approach the land,
they fall into other engines farther on, so that at length only a
few scattered fish reach the rivers singly, instead of whole
shoals as formerly. It is, therefore, not easy to conceive a

* Bag-nets are, if possible, still more destructive. Both are constructed upon
the same principle, the only difference between them being that the one is fixed
by stakes, and the other by anchors, and floated by corks. Stake-nets are
always placed on sands, or ground left dry by the receding of the tide ; but
bag-nets may be set in the alveus or deep water, and their arms or leaders be
extended an indefinite length, so as in fact to embrace a whole frith. So many
bag-nets have been placed in the sea, near the mouth of the river Don, at Aber-
deen, that nearly three-fourths of the salmon are, it is said, now intercepted
before they can reach the river — by which the river heritors are utterly de-
prived of their properties. If the object of Law is protection of property, it is
not so felt at Aberdeen. But, in Scotland, Law is one thing, and Justice another.
They may sometimes meet, but in general Law, or what is called Law, kicks
Justice out of the field.

44 SALMON-FISHERY OF SCOTLAND.

more complete destruction of property than is thus occasioned
to the river heritors.

In the Courts of Law, where the nature of the salmon-fishery
is so imperfectly understood, it is supposed that, unless a stake-
net be planted in an estuary, or in the vicinity of a river, it can
do but little injury to the river fishery ; but any man gifted
with common sense must see that the injury must be the same,
whether the engine be set in an estuary, or on the coast of the
sea, if it be placed in the course of the fish ; just as the injury
to the owner of a mill is the same, whether the mill-water be
intercepted, or taken away, at the distance of ten yards or ten
miles from the mill. It has been said, that stake-nets increase
the supply of fish at market ; but if they act, and can only act,
by interception of the fish proceeding to the rivers, how can
they increase the supply, since the increase in one part must,
necessarily, be met with a corresponding diminution in
another ? So sure are the instincts of salmon, that none can
be taken on the coasts which, if not so taken, would not reach
the rivers. It is, indeed, upon the very strength of this in-
stinct that the stake-net system is founded, since, but for it,
such timid animals would all fly back at the sight of such for-
midable machinery ; yet they often attempt to force their way
through the arms, or leaders, where they are found suspended
without entering the traps at all, so strong is the impulse
which leads them to the river.

The whole of the fish thus returning, that is, the whole of
the fish which come on the coast, whether intercepted in the
stake-nets, or allowed to reach the rivers, it will be observed,
are charged with spawn. Every one of them, therefore, if not
killed, would become a spawning fish ; and as the spawn can
only be deposited in the rivers, it is obvious that all of them,
from this fact alone, must necessarily, from the law of their
nature, be on their progress to the rivers. In the early part of
the season the roe is small in all salmon, and it increases in
size as the season advances, until the period of spawning. The
stake-net owners say, that the salmon caught by them woul&
not go to the rivers ; — in other words, that when a shoal of
salmon, in its progress to its river, comes in contact with one

SALMON-FISHERY OF SCOTLAND. 45

of their engines, the shoal is composed, not of fish all impressed
with the same instincts, but of fish with different and even
opposite instincts, — some with instincts impelling them on to
the rivers, and others with contrary instincts which would drive
them back to the sea (though in this view it is difficult to con-
ceive what brought them there), and that it was only the latter
which were caught in their engines, the former continuing their
course to the river ; — but in order to support this insupportable
absurdity, they ought to be prepared to show that the fish so
caught by them were not, like the others, charged with spawn,
or at least give some other reason of common sense for the
assertion. The Committee ask Mr Bell, —

" Have the fish that are caught in STAKE-NETS roe or milt in
them ? " — " Every fish has roe or milt in it."

Johnstone, the stake-net fisher, —

" The fish are ALL, more or less, full of spawn.'*

Stephen, —

" In the early part of the year the roe in ALL salmon is small, and
it increases in size as the season advances."

And yet, in the face of all this, Dr Fleming, the naturalist,
and the friend of the stake-net fishers, stated in the Committee
that, of the 30,000 salmon taken in the stake-nets in the estuary
of the Tay, every one of which was charged with spawn, none
would have gone to the river ! Having admitted that during
their migration they retired to remote parts of the ocean, the
reverend gentleman ought to have stated what he conceived to
have been the object which brought them back, if it was not to
proceed to the rivers ; and on what grounds he asserted that
they would not go to the river — if it was in his power to do so.

The stake-net owners allege, as proof that their engines do
not kill breeding fish, or, in other words, that they only kill
the barren fish that are mixed with the breeding fish in the
shoals, which we have stated as a great absurdity, the whole
being charged with spawn — that towards the conclusion of the
season they take scarcely any fish, the breeders then keeping
the channel, or deep water. Thus Mr Halliday tells the Com-
mittee,—

46 SALMON-FISHEKY OF SCOTLAND.

" The stake-nets begin to fall off materially as the season goes on.
The fish do not visit them half so much when the spawning season
approaches, as they do during the summer months. Towards the
end of August the stake-net fishing falls off very materially. In
September we catch almost nothing. The fish then keep the chan-
nel or deep water."

Now, we have already stated, that there is not a salmon
taken, either at a stake-net or river fishing, at any period of
the season, but would, if not taken, become a spawning fish — the
whole, without a single exception, being charged with roe or
milt, increasing in size as the season advances. If one com-
pares the roe of a salmon caught in a stake-net on the first of
May, with the roe of another salmon taken on the same day, at
a river fishing, they will be found to be exactly in the same
state : if the experiment be repeated on the first of August or
September, the same result will appear. There is no difference
whatever between them — both, therefore, as we have said, if
not killed, would become breeders or spawning fish ; but the
stake-net fishers, in order to impose upon ignorant persons, en-
deavour to make it be supposed that only the last fish which
come in would be breeders. The reason why their sea-engines
kill few or no fish in September is obvious ; nearly the whole
of the shoals of the season have by that time passed on, and
there are no more fish to kill. Mr Halliday could not, indeed,
have stated a fact more confirmatory of our statements in regard
to the migratory movements of the fish, or that could tend more
completely to contradict his own doctrine ; for if salmon were
always swimming about the shores, like haddocks, and if the
sea, as he says, abounds with them, they would be caught in
his sea stake-nets in September, as well as in June or July ;
but they are only caught, or rather intercepted in them at the
periods when the shoals of the season are passing on to the
rivers. After the shoals have passed, and there are no more
fish to intercept, he, poor innocent, thinks they then keep a
different track.

Of the grand migratory movements of the salmon tribes,
from the ocean, along the coast, to the rivers, shoal succeeding
shoal, the stake-net fishers seem to have no conception. They

SALMON-FISHEKY OF SCOTLAND. 47

admit their gregarious associations, like those of herrings, and
yet seem to think that the gregarious instinct was implanted
into them for no purpose, while swimming about the shores
like haddocks. They tell us that they are driven into the
rivers by sea-lice, without adverting that the assertion is
utterly incompatible with the gregarious instinct, — for if the
lice can force individuals to leave the shoal, they must, of
course, overcome the gregarious instinct which keeps them
together. This idea of lice impelling salmon to proceed to the
rivers is a very absurd one. When a shoal of salmon leaves
its migratory abode in the ocean, in obedience to instinct, or
the law of its nature, to proceed to its river, it must accomplish
its destination, whether any of the fish of which it is composed
have sea-lice or not ; yet, according to the stake-net doctrine,
after the shoal had reached the estuary, only those fish which
were infected with lice would go to the river, and the rest, after
amusing themselves on the banks for a little while, would
return back to the sea, unless intercepted by them, — though
every fish they take is just as much infested with these
lice as those which are taken at the rivers. The whole of their
arguments, indeed, form one mass of inconsistency and absurd-
ity. They will, perhaps, next tell us, that the migratory birds
are sent to us by vermin, and not in consequence of instincts
connected with the migratory system, — and that when a migra-
tory flight reaches our coast, the whole tribe is not actuated by
the same instinct, but like salmon, have different and even
opposite instincts ; some of them having the instinct of re-
maining, while others, on the contrary, after they reach our
shores, set off again immediately to whence they came, just
according as they were, more or less, troubled with lice.

Suppose we were to put the following questions to Mr
Halliday : — You say that the salmon are driven into the rivers
by lice. — Who told the salmon that fresh water was a cure ?
How did you discover that salmon knew, or have found out this
secret ? Did a seal tell you so ? Why did not the salmon
taken in your stake-nets, all of which had lice upon them, go
also to the rivers ? You say you intercepted them returning to
the sea, — were they carrying back their lice to the sea with

48 SALMON-FISHERY OF SCOTLAND.

them, instead of going to the rivers ? Perhaps these salmon
were not made acquainted with the cure. Have not cods and
skate similar lice ? Why do they not also go to the rivers for
a cure ? Are not almost all salmon infested with these insects
while in the sea ? Why do they not, then, rise all at once and
go into the first river they meet with, to rid themselves of
them ? Why, under such annoyance, do not salmon seek relief
in the nearest fresh water, but, with exemplary patience, pass
river after river till they reach their native stream ? Is it only
their natal water that can kill the lice ? How do you think
the salmon found this out ? We believe it would not be easy
to Mr Halliday to answer these questions. To account for the
great operations of nature, or the migrations of animals, by lice,
is undoubtedly a rare idea : it is altogether piquant ; — this
lousy argument is, therefore, said to have had great weight in
the Parliament House, by proving that the salmon are driven,
without ceasing, from the sea to the rivers, and from the rivers
back to the sea, like shuttlecocks.

In truth, to speak seriously, there is only one fact, amid all
the nonsense, and all the mass of absurdities, resorted to by
the stake-net fishers in support of their pretensions, and for the
purpose of enabling them to transfer to themselves, by means
of their new machinery, the whole property of the river heri-
tors, and to ruin the river fisheries, by breaking the shoals, and
intercepting the fish on their return to the rivers, which merits
refutation — namely, that salmon are sometimes caught in the
ebb cruives of their engines. This fact, however, is easily
accounted for ; when one once gets hold of the true system,
any little discrepancies which seem inconsistent with it only
require to be investigated to be blown away. In their progress
along the coast to the rivers, the salmon always proceed with
the flood-tide, which carries them on to, and ends at, the ravers,*
and rest, during the ebb-tide, in eddies, and in easy water ;
hence great numbers are always caught in the flood-traps of
the stake-nets placed in their course, while comparatively but
few are got in the ebb-traps. In proceeding forward, at a short

* " Salmon," says the stake-net fisher, Johnstone, in the Committee, " in the
sea, never go against the tide."

SALMON-FISHERY OF SCOTLAND. 49

distance, as we said, from the laud, such as happen to be near
the shore after the ebb-tide sets in, when they find the water
becoming shallow from the receding of the tide, are led by their
instincts to drop down with the tide into deeper water, until
the return of the flood-tide enables them to continue their
course, and in thus dropping down, some fall within the range,
and are caught in the ebb-traps of the engines in question ; but
it is in the summer season, in dry weather, that by far the
greatest number are so caught. At that period, when the rivers
are so low that they cannot enter them, their instincts lead
them to swim backward and forward with the tide, in the
vicinity of the rivers, until a flood enables them to enter them.
" It is well known," says Dr Fleming, " that when floods occur
in a river, the salmon, ready to ascend, speedily enter upon their
upward migration. In truth, the fact is so notorious, that any-
thing like personal testimony on the subject is unnecessary.
There are many things connected with a river in a flooded state
suitable to the ascent of the fish. As the water in the river
increases in quantity, the shallow parts of the river become
deeper and better fitted to enable the salmon to pass over them,
and at the same time the artificial obstacles in the form of mill-
dams, and the natural ones in the form of falls, are all dimin-
ished in force, so that the flooded state of the river is the one
best fitted for the fish to ascend, and the instincts of ikefisk seem
to be regulated accordingly." Again, Mr Hogarth states, " If
the rivers were in a state to receive them, I believe the salmon
would all go up the rivers as they come upon the coast ; but
the water, during the summer months, is frequently so low,
that great numbers of the fish* keep floating backwards and
forwards with the tide, until a land-flood takes place, when a
great burst of them go up at once/'

Is it any wonder, then that, when the fish are thus floating
backwards and forwards, waiting for water to carry them into
the rivers, they should be taken in both the ebb and flood
cruives or traps of the numerous engines with which the coasts
are lined ? Accordingly, Mr Halliday, the greatest of all great

* Particularly the heavy fish.
D

50 SALMON-FISHERY OF SCOTLAND.

stake-net fishers, whose authority will not be disputed, states
in the Committee, —

" In the whole course of my practice in fishing, I have always
found, in dry weather in summer, a greater quantity of fish taken in
the nets placed for the purpose of catching them with the EBB-tide,
than in wet weather. At the time the stake-nets at the Newby
fisheries are most successful, the river Annan is at that time so very
small, that the fish in general would not enter it, and most of them
are taken in the stake-nets with the

Here, then, we have the fact fully accounted for, out of the
mouth of this stake-net fisher himself. If the fish intended, as
he supposed, to return to the sea, they would not keep floating
backwards and forwards near the shore, within the range of his
machinery ; they would go out at once into deep water like
the kelts. There is not, therefore, a single fact or circumstance
stated by these men, that will be found, on investigation, to be
contrary to the principles of the migratory system, or to the
instincts and habits of salmon, as we have represented them ;
or which can, in the smallest degree, confirm their own hypo-
thesis — an hypothesis formed of a whole string of absurdities,
every one of which is at variance with the other.

The destruction of these flowing and ebbing fish towards the
end of summer, by stake-nets, we consider an evil of great
magnitude with reference to the fishery, and one of the causes
of its decline. In the early months the fish are keen in enter-
ing the rivers. If they were equally so at the conclusion of
the season, as they always become, as we said before, scarce
towards close-time, there would be a danger that there would
be a scarcity of breeders, to guard against which nature seems
to have intended those flowing and ebbing fish as a corps de
reserve for that purpose — as many of them would not enter the
rivers till they were unfit to be taken ; but all these are now
destroyed by the stake-nets, by which means the rivers are
denuded of the necessary quantity of breeding fish — and so has
fared the fishery. This was not the case formerly, when no
other fishing implements were in use than the " rude appara-
tus " of our forefathers — and accordingly salmon were then, it
is admitted by all, in great abundance.

The stake-net owners further tell us, that their engines save

SALMON-FISHERY OF SCOTLAND. 51

many salmon from being destroyed by grampuses and seals.
We believe they have the contrary effect. That salmon become
the food of many fishes of prey, during their migratory abode in
the ocean, is very probable ; but, after they come upon our
coasts, they keep so near the shore that they are generally out
of the way, at least of the grampuses, except when the shoals
are dispersed by stake-nets, and the fish forced out into deep
water, where of course they may be picked up by them. Seals
again watch the stake-nets. The seal is an acute and daring
animal — a compound of the tiger and of the fox, and knows
well where to find his way. A salmon will often escape from
a seal, in a fair chase, but when hemmed in by a stake-net, he
has no chance of escape. Mr Johnstone, the stake-net fisher,
states in the Committee, — for these men have often stated in
favour of their engines circumstances which, in fact, have an
effect directly the reverse, —

" I have seen seven or eight seals, ranged in a line, before a stake-
net ; and when they discovered a salmon they icere immediately in
pursuit. They break the nets, kill a number, and let away all the

rest."

And his brother fisher, Halliday, says, —

" I have seen the seals frequently coine and break into the nets,
taking what fish they could, and set all the rest away. I have seen
one seal, which fretiuented a stake-net at Budden, take either ten or
twelve salmon and grilses in the course of two tides ; and I have
known one seal take six or eight fish in the course of two hours and
a half. Indeed, I have often been heard to say, that I thought they
would take the fishing from us altogether"

Poor gentleman ! The seals appeared to have used him just
as he used the owners of the rivers, though they seem to have
been the honester depredators of the two. The worthies divided
the fish, and left it to the owners of the rivers to hatch more
for them to catch. Seals, however, will have their food, coute
qui coute. That stake-nets aid them greatly in doing so is
obvious : the best way, then, is to kill themselves. Such is the
way game is preserved from vermin.

Some suppose that the fish taken in stake-nets is of a better
quality than what is caught at the rivers. They might be
better than what used to be formerly taken in the higher parts

52 SALMON -FISHEKY OF SCOTLAND.

of rivers, after they had remained long in them ; but they can-
not possibly be better than what is caught in the tide-way of
the rivers, where nine-tenths of the fish are now taken. We
would defy the most fastidious palate to discover a difference
between them, or to distinguish the one from the other on the
table. Mr Little, who was a great stake-net fisher, states on
this point, in the Committee, —

" I do not consider that there is any difference between a salmon
taken in the sea, or in a river, provided he is taken soon after he
enters the fresh water. If he is taken in the course of a week after
he enters the river I do not consider him any worse ; but few salmon
are allowed to remain a week in the river during the fishing season."

Mr Hogarth, —

" As to a salmon that has been in the river not above a week, I
don't suppose that it would be possible to know any difference between
him and one taken in the sea."

Mr Wilson, —

" There is no difference whatever."*

If we take the fishing altogether, the balance, even in point
of quality, is greatly against the stake-net mode of fishing ; be-
cause the farther the fish advance towards spawning the worse
they get in quality, and it is then that nearly the whole are
killed in stake-nets, which take few but during the summer
months. Thus, the Committee ask Johnstone, —

" Generally speaking, during what period of the year would stake-
nets pay the expense 1 " — " I should think from April till Sep-
tember."

" In what months of the year are the greatest number of fish
usually caught 1 " — " Generally in the months of June and July,
but sometimes there are more salmon in May — but generally in June
and July. Sometimes in August there are more."

These are, therefore, all very late fish — far advanced in spawn.

* Salmon are always better for being a few days in their native water. It in-
creases, like crimping, the firmness of the fish — insomuch that while a salmon
caught in the morning in the sea is soft enough to be boiled and pickled the
same evening, one caught in the fresh water retains its firmness, and would
break in the kettle if boiled before next morning. The fish-curers or boilers,
who are great epicures, always, accordingly, prefer for their own palates fish that
have been some days in fresh water.

SALMON-FISHERY OF SCOTLAND. 53

Now, in the river fisheries, a great part of the salmon are taken
during the winter and spring months, when the fish are of
much superior quality to the summer salmon, being farther
from the spawning time, and the roe and milt being then
smaller. Thus, Mr Houy states to the Committee, —

" Salmon are in the finest condition in the early part of the season,
and are valued in proportion to the smallness of the roe and milt
they contain, and are less so every day as the season advances."

Lord Olive, —

" The best fish that are taken in the Severn are commonly in the
winter months — in November, December, and January ; those which
are taken in the summer months are very inferior fish, and people
are always ill-disposed to purchase them."

Dr Fleming, —

" The fish fall off in value and become lean, in proportion as the
milt and roe increase in size."

Mr Little,—

" The nearer salmon come to be in a state for spawning the worse
they are in condition — that is, from the month of May they are
gradually growing worse till the spawning time."

And yet it is after May, as above seen, that the greatest part
of the fish are taken by stake-nets. This, we think, ought to
satisfy those who are of opinion that it is by those engines the
whole fishery should be carried on, or who would restrict it to
the months when the fish are of least value and in the worst
condition ; yet Mr Home Drummond, in his late act, has ex-
tended the fishing season from the 26th August to the 15th
September, in order to saturate honest folks with inferior fish ;
while the winter fish of the early rivers — the very finest of the
season — must not be taken, and are thus utterly lost to the
community, at least those of the rivers in Scotland, though it
is not so in England or Ireland.

There is, therefore, not a single tenable argument or fact that
can be adduced in favour of the stake-net system — a system
which acts, and can only act, by spoliation of the river fisheries ;
thus, in truth, reducing the whole arguments and case to be a
mere transfer of property, as has been already stated. The
stake-net owners have made a great clamour about the addi-

54 SALMON-FISHERY OF SCOTLAND.

tional quantity of fish produced by their engines in the Tay,
which they state at 30,000 annually, without any injury, they
say, to the river fishings ; for, even Dr Fleming states in the
Committee, —

" I have no reason to think that, during the operation of the
stake-net mode of fishing in the estuary, there ever was a decided
diminution in the produce of the river fishery."

This, however, was perfectly impossible, from the nature and
instincts of the fish. Besides, so great an increase of supply
from the Tay alone, in addition to the increased supply from
all the other stake-nets in the kingdom, must have reduced the
price of salmon at market most considerably ; and yet the
Doctor in almost the next sentence tells us, —

" It does not appear that the price of salmon fell in consequence
of the additional supply from the stake-nets of the Tay."

It did not fall, because there was in fact no additional sup-
ply. The supply from the river fisheries, notwithstanding the
Doctor's assertion, diminishing in the same proportion in which
that from the stake-nets increased. From the accounts pro-
duced by Mr Buist, in the Committee, the correctness of which
cannot be disputed, as they were extracted, not from his own
books, but from the books of the Dundee Shipping Company,
by whose vessels the fish from all the fisheries were sent to
London, it appears that, during the last three years, when the
stake-nets were in operation in the estuary, viz. 1810, 1811,
and 1812, the average annual export from the river fishings was
only 1665 boxes of fish ; while, according to the statements
of the stake-net fishers themselves, their exports amounted
to 4000 boxes — making together 5665 boxes yearly. Now,
during the first three years after the stake-nets were removed,
the average annual amount of the river fisheries was 4552 boxes ;
and during the next three years, after the river had somewhat
recovered from the effects of the stake-net system, it amounted to
5930 boxes, being, during these three years, 265 boxes a-year
more than was produced by loth fisheries while the stake-nets
were in operation. If we look to individual fishings they will be
found to confirm the statement. Lord Gray's fishings, which,
during the stake-net system, produced, in two years, only 8534

SALMON-FISHERY OF SCOTLAND. 55

salmon and grilses, produced in the same time after the stake-
nets were removed 46,332. The rent of this fishing, accordingly,
which at the former period had fallen to ^1205, immediately
rose to c^OOO, and the rent of the whole river fisheries rose
from ^5 101 to <£! 2,005. All this corresponds but indiffer-
ently with the statement of the reverend gentleman, that, during
the stake-net system, no decided diminution took place in the
produce of the river fisheries : This moral teacher ought to
have been more sure of his facts before he threw the weight of
his evidence into the stake-net scales (however convenient these
engines may have been in the vicinity of the Manse) for the
purpose of affecting the rights of any set of men : If, as he says,
" there were many other situations in the estuary most suitable
for the erection of these engines, which were unoccupied," we
conclude that, had the whole been occupied, the river fisheries
would have been annihilated altogether. '

In the other estuaries the effects of the stake-net system were
nearly the same as in the Tay. From the accounts produced
by Mr John Steavenson, in the Committee, it appears that,
previous to the introduction of stake-nets into the Cromarty
Frith, his fishing in the river Connon produced in one year
7656 salmon ; while, after the Frith was covered with these
engines, the same fishing produced, in another year, only 633
salmon ; the stake-net having, during the latter year, accord-
ing to the accounts of Mr James Taylor, intercepted no less
than 6500 fish. Both gentlemen being stake-net witnesses,
their accounts cannot be doubted.

In the river Ness, again, it is stated in the Committee by Mr
Alexander Fraser, that the rent of the river fisheries, sixteen
years ago, was ^1055, 11s. and that it is now only «£)124.
This witness, who is a stake-net fisher, and a very honest man,
is asked by the Committee, —

"Is it consistent with your knowledge that the river fishery
has diminished in proportion as the stake-nets have increased*" —
" IT HAS."

In the same way the Committee ask Mr Wilson of Berwick,
who is tenant of the fishing of the river Beauly, which falls
into the Inverness estuary, —

56 SALMON-FISHERY OF SCOTLAND.

" In point of fact, to your knowledge, lias the fishery of the river
Beauly increased or decreased ?" — " DECKEASED MOST CONSIDERABLY."

"To what causes do you ascribe the decrease1?" — "To the stake-
nets and yairs in the Frith. The stake-nets destroy the fishery in
the river very much. Since 1816 it has been a losing concern."

"Are there any other causes to which, in addition to stake-nets,
you attribute it?" — "None that I have heard of."

All these facts are in direct contradiction to the statements
of Dr Fleming, and, added to the documents produced by Mr
Buist, prove beyond dispute, if, after what has been said rela-
tive to the habits and instincts of the fish, any proof were
necessary, that the stake-net system has added nothing to the
public supply of salmon. To the public the system must be
injurious, because it is so to the fishery in general ; — first, by
the dispersion of the salmon shoals on the coasts, which is an
evil of the very greatest magnitude ; — next, by the excess of
fishing which it has occasioned ; — and, lastly, by destroying
the interest which the proprietors of the rivers have, or ought
to have, in the improvement of the fishery, and making them,
as the great author has expressed it, mere " clocking hens to
hatch fish for others to catch," — every one of which reasons
tend directly to the decline of the fishery. On the score of the
over-fishing system, the Committee ask Mr Hogarth, —

" Do you conceive that, by any improvement or extension of the
mode of fishing now in use, an increased quantity of salmon could
be permanently supplied?"— "I do not; on the contrary, I think
the fishings are much too assiduously fished at present, and have
been for many years. It is owing to too close fishing that the size
of the salmon has decreased as well as the number. We seldom
now see a fish above two years old."

"Do you suppose this is owing to the fishery being over-fished?"
— "Yes, certainly."

On this point, a gentleman who wrote many years ago* on
the subject of the salmon-fishery, remarks, —

" The fishing of salmon may certainly be carried on with so much
accuracy as gradually and greatly to diminish their number ; and it
is believed that this has already become the case in many of the
fisheries in Scotland. The first settlers in the province of New

* Prize Essays, 1803.

SALMON-FISHERY OF SCOTLAND. 57

Brunswick, not many years ago, found the rivers crowded Avith fish
to a surprising degree, but they have pursued the fishery with such
industry that for some time the numbers have been very consider-
ably diminished. There is no doubt that the same has also taken
place in this country, and that, by unremitting industry in fishing,
the number of salmon may and must be so reduced as to hurt mate-
rially the interest of the proprietors and of the public"

Another writer says, —

" It cannot be doubted that the species are fast decreasing — for
the genius and industry of man are ever on the stretch to find out
new modes for their destruction"

The present state of the fishery confirms what these writers
wrote near thirty years ago ; yet such is the way in which
justice is now administered in Scotland — and such the absence
of directing principles, that though stake-nets have been de-
clared ILLEGAL in the Frith of Tay, by a judgment of the
Court of Appeal, — and though it must be evident, on the
plainest principles of common sense, that what is illegal in
one frith cannot be legal in another, — it has hitherto been
out of the power of the owners of the rivers which discharge
themselves into the Inverness and Cromarty Friths to obtain
from the Court protection to their properties against the stake-
nets in those friths ; and the system of spoliation still con-
tinues there to as great an extent as ever. Had the Court
acted upon competent knowledge of the subject, the judgment
in the Tay case would have been the signal for clearing all
the estuaries in the kingdom at once of those destructive
engines. By dint of petty specialities, by raising up abstract
and insoluble questions totally irrelevant to the real subject-
matter of the question, by entangling it in the meshes of an
endless multiplicity of unnecessary or frivolous details, and,
worst of all, by a total ignorance of the true principles upon
which the question ought to be adjudicated, the administrators
of the law have unwittingly rendered it an instrument for not
discovering the truth, but, at the same time, all powerful in
entailing ruin upon individuals engaged in a hopeless struggle
to protect their rights from invasion and their property from
plunder.

SECTION IV.

RIGHTS OF PARTIES.

" Quel est done cette sauve-garde des lois qui laisse la fortune d'un citoyon a la
merci de quiconque veut 1'attaquer dans les formes juridiques ? "

L'ffermite de la Gfuiane.

WE shall now take a glance at the rights of the proprietors
of lands situated on the coasts to salmon-fishings, which they
conceive entitle them to intercept the salmon in their progress
to the rivers by every means in their power, and give them
an EQUAL title to the fishery as the owners of the rivers them-
selves.

The rights of the owners of the rivers to the salmon of those
rivers are founded upon the universally acknowledged prin-
ciple, that a right to property carries a right to its produce —
the very ground upon which the proprietors of lands on the
coasts claim a right to the corn and sheep produced upon their
estates. Salmon are not like animals which are ferae naturce,
and belong to no particular property. Each river, as has been
shown, possesses its own variety of the species, which BELONGS
to itself exclusively, and which is forced by instinct to return
to it, and to no other river. The natural right of the owner of
such river to its salmon, therefore, is just the same as the right
of the owner of a bee-hive to its bees, or of a dove-cot to its
pigeons. They constitute, in fact, as Erskine says, his ESTATE.
If there were no fishings except in the rivers, each proprietor
of a river would get his own salmon, the produce of his own
property, and none else, for none else would enter it. The
proprietors of the rivers would thus have every encouragement,
like the owners of land-estates, to improve their properties, by

SALMON-FISHERY OF SCOTLAND. 59

incessant care, in keeping the rivers always well stocked with
breeders, watching the spawning-fords and fry, — lessening the
number of their enemies, and taking every other means that
would increase the number of fish, for their own benefit and
the benefit of the public. Under the present system, as there
can be but little motive or inducement to improve, so none of
these results can take place ; for what owner of a farm would
be at expense and trouble for its improvement, if the crops
were to be carried off by others ? The loss which the public
sustain from the present system must, therefore, be obvious.

But upon what principle does the proprietor of a land-estate
situated on the coast of the sea, at perhaps twenty or thirty
miles' distance from a salmon river, claim a right to its salmon ?
How can he connect himself with them ? They do not even
trespass on his lands, like bees or pigeons, so as to afford so
much as a pretext upon which to engraft a claim to them. If
they migrate to the ocean, the ocean does not belong to him.
The rights of his lands end at the water-edge. He has not a
particle of right one inch beyond that more than any other in-
dividual of the community, or to the salmon passing in the
adjacent water, any more than he has to the birds which are
flying in the air over his head. To talk, therefore, of his na-
tural right, ex adverso (as lawyers say) of his lands, to the
salmon belonging to the rivers, passing by in an element to
which his lands can pretend no right, is a perfect absurdity.
He might as well claim, ex adverso of his lands, a right to the
ships which are sailing past them. If the owners of the lands
have any right at all, it must be a legal right, opposed to the
natural right of the owners of the rivers.

Let us then examine this pretended legal right. We believe
it to be, au fond, very little better than the other. We are told
by lawyers, that the first great principle of the feudal law is,
that the whole lands, rivers, and salmon-fishings in the king-
dom belong originally to the sovereign, from whom all rights
to such must emanate, and who may dispose of them either to-
gether or separately as he may think fit. When the sovereign
makes a grant of a land estate, the grant conveys a right to the
lands and all that is upon them ; but it cariies no right to

60 SALMON-FISHERY OF SCOTLAND.

salmon-fishings, which, being a species of property entirely
distinct from land, requires a special grant. The lands may be
granted to one person, and the salmon-fishing adjacent to the
lands to another. There can, therefore, be no right of salmon-
fishing, in a legal view, any more than in a natural view, ex
adverso of lands, which is mere legal jargon devoid of sense,
until a right to such be conjoined to the lands by royal grant.

The next great principle of our law, lawyers tell us, is, that
after the sovereign has made a grant of property, it is no longer
in the power, or, as they express it, it is ultra vires of the sove-
reign to injure it, or to authorise others to do so, in any manner
of way. Without this there would be no security to property.
No man could call his estate his own. The Crown might be
constantly curtailing it, or be granting servitudes over it. It
would be utterly valueless and unsaleable.

For example, after the Crown has made a grant of an estate,
and it has become private property, it would be ultra vires of
the Crown to grant even the servitude of a road over any part
of it in favour of an adjacent proprietor ; or if there was a mill
on the estate, the Crown could not authorise such adjacent
proprietor to obstruct or intercept, even upon his own property,
the stream of water proceeding to it, to the loss or injury of
its owner. No court of law would sanction such an act. It
would be deemed quite illegal and of no effect.

Upon the same principle, after the Crown has made a grant
of a salmon-river, or, what is nearly the same, the salmon-
fishings of a river, it can be no more in the legal power of the
Crown to authorise conterminous proprietors of lands or others
to intercept the salmon proceeding to the river, than to inter-
cept the water on its progress to the mill. The principle is
exactly the same in both cases. We defy any casuist of the
Parliament House to make a distinction between them. It is,
therefore, clear that all the grants of salmon-fishings to coast
proprietors, which, as we have shown, can only act by inter-
ception of the fish on their way to the rivers, to the manifest
loss and injury of the owners of the river fisheries, being all
made in direct violation of a. great and acknowledged principle
of the law, are all necessarily, radically, and fundamentally

SALMON-FISHERY OF SCOTLAND. 61

ILLEGAL. Such, then, are the boasted rights of the coast pro-
prietors.

When the Crown granted away the river fisheries, all the
salmon-fishing property of the Crown was, in fact, exhausted.
It had no more to grant, except by taking away what it had
already granted — by depriving its grantees, the owners of the
rivers, of a part of what had already become their vested rights.
To say that the Crown had other salmon-fishing property on
the coasts to grant, as if salmon were fixed to the lands like
oysters, is a perfect absurdity. The salmon merely pass along
the coast in their progress to the rivers ; and all the Crown
could do, if it had the legal power to do so, would be to
authorise the proprietors of the lands to intercept them in
passing, which would be, in fact, a SERVITUDE upon the rivers ;
but it could not be called a property, though it might be
attached to property. Thus, for example, were the Crown to
make a grant of a rookery, the rooks, after foraging all day,
might, when returning in the evening to the rookery, be killed
and intercepted at various parts on their way. Now, suppose
the Crown were to grant a right to the owners of those parts
or stations where the rooks were so killed or intercepted to do
so, which, after having granted the rookery, and it had become
the property of another, we conceive it would be not only ultra
vires, but an act of swindling in the Crown to do ; still these
stations could not be called rookeries, but merely servitudes upon
the rookery, which might be so multiplied as to extinguish the
rookery altogether, and thus deprive the owner of his whole
property. And it is thus, exactly, that the Crown has been
using the owners of the rivers, by illegal grants to the pro-
prietors of lands situated on the coasts, to intercept the salmon
in their return to them, and which the Scotch Court are doing
all in their power to favour and support, even by means of
illegal engines, and to the utter destruction of the river fisheries.
That the river fisheries were granted long before coast fish-
ings were thought of is quite obvious. Salmon, when congre-
gated within the narrow limits of a river, were easily caught
even in the rudest ages ; but it required a considerably advanced
state of civilisation before means were invented of taking them
in the sea, and accordingly till lately scarcely any have been

62 SALMON-FISHERY OF SCOTLAND.

so taken. Men navigated rivers before they attempted to cross
the ocean ; and they caught salmon in the streams ages before
they ever dreamt that they could be taken in the sea. It is
remarked, in one of the stake-net pamphlets, " The modes of
fishing formerly in use were efficient in rivers ; but from their
nature it is obvious they were not applicable to the open sea,
or to bays and estuaries. Accordingly there has been very
little fishing until of late years except in the rivers ; so little,
in truth, that the salmon is vulgarly regarded as a river fish."
A clamour has been raised, as we before observed, by the
coast heritors, against the owners of the rivers, as possessing a
monopoly of the fishery. This is much about as just as if a
clamour were raised against the proprietors of coal mines as
possessing a monopoly of coals, or against the owners of landed
property as possessing a monopoly of corn. All possess the
produce of their respective properties, and it is the interest of
all to render those properties as productive as possible. In
this respect, the interest of all owners of property, the salmon-
rivers included, and of the public, must always be the same.
To call the possession of property, of any description, which is
publicly bought and sold at market, and which may be pur-
chased by any, a monopoly, is assuredly a great absurdity.
We believe what the coast heritors mean is, that a portion of
the property of the river heritors should be taken from them,
by some agrarian measure, or by the use of machinery, which
would have the effect of such a measure, and transferred to
themselves. To this we suppose the river heritors would have
no objection, if, on the same principle, a share of the lands of
the coast heritors were given to them, since it is very certain
that the coast heritors possess a much greater monopoly of
land than the river heritors do of salmon-fishings. But the
coast heritors are not content with the peaceful possession of
their monopoly of land, but must covet the fishing properties
of their neighbours, as if there were any natural connection
between their lands and salmon in a different element — or as
if salmon-fishings were not considered as distinct a property
from land in law, as they are by nature, until conjoined to
land by a Crown grant.

SALMON-FISHERY OF SCOTLAND. 63

To the public this contention between these proprietors can
be of no importance, in any other view than as it affects the
market supply of salmon, and we have already shown that that
supply, which was at its height, at a period when the fishery
was almost entirely limited to the rivers, has been declining in
proportion as the coast heritors have interfered with it, and
more rapidly since the introduction of new modes of fishing
than before. The fishery is scourged into barrenness, and our
courts of law seem to suppose the best remedy is to scourge it
more, by allowing all species of machinery on the coasts. In
the same way, when a land farm is run out by overcropping,
the best way to render it fertile would be to crop it still more !
To recover the rivers, the owners of the fishery ought, volun-
tarily, to allow many fish to escape ; but can this sacrifice be
expected of the owners of the rivers for the benefit of the coast
heritors ? What farmer, as we said before, would be at the
expense of liming his land, if others were to carry away the
crop ? Monoply, truly ! If the coast heritors had not a mo-
nopoly of the produce of their lands, we believe they would put
themselves to very little trouble or expense to raise crops.
Honest Eob Eoy used to ease their predecessors of a few of
their spare stots and heifers, and they wish to do the same
friendly office to the owners of the rivers.

One great cause, we may say the principal cause, of the
errors committed by the courts of law, in all cases relative to
the salmon-fishery, is, as we before remarked, their considering
salmon as common sea fishes, like haddocks, swimming about
at random, and visiting rivers, as chance may direct, instead of
attending to the peculiar instincts by which they are distin-
guished from other fishes. We trace the effects of this grand
error to all their acts, and even to their construction of the law,
which cannot be correct when founded on an erroneous prin-
ciple, or an erroneous view of a subject.

We shall begin, for example, with the rights of the Crown.
Lawyers tell us that salmon are inter regalia, and belong all to
the Crown. That they did so originally is admitted ; but we
conceive the Crown has long ago denuded itself of all its right
to them, and that, as we said before, after having granted away

64 SALMON-FISHERY OF SCOTLAND.

the rivers, it had no longer any right to the fish of those rivers.
This will be best explained by analogous cases of other animals,
with which persons in general are better acquainted. Some
animals are, by their nature and instincts, capable of being
rendered property, others are not. Suppose, then, the whole of
these animals belonged to the Crown, the Crown in giving
away the one would give a right of property, while it could
only give a right to take or " catch" the other. Thus, for in-
stance, the Crown could only give a right to catch haddocks,
for haddocks do not admit, by their nature, of being rendered
the property of any. In the same way, take larks, or thrushes,
or other common birds, which are attached to no particular
part, and have no particular instincts, the Crown might give a
right to one man to shoot them in one part, and to another
man to shoot them in another part ; the one right would not
interfere with the other, since none could claim a right of
property in such animals. But there are other animals of a
quite different description, which, as we have said, do admit of
becoming property ; thus, pigeons, for instance. If the Crown
granted a dove-cot with its pigeons, no man would say, that
the Crown granted only a right to kill the pigeons, for that
would be an absurdity ; the Crown, in making the grant, con-
veyed the pigeons in property] and they, from thenceforth, be-
longed to their owner, just as much as they formerly belonged
to the Crown. And it is exactly the same with salmon rivers,
since the salmon are not like haddocks, or common fishes,
swimming about at random, but belong to the rivers, just as
much as pigeons belong to their cots. If only stray or chance
pigeons came to the cot, its owner would, then, indeed, have
only a right to take such as might chance to come there. He
would have no right of property in any pigeons : but the pigeons
are linked by their instincts to their cot, as bees are to their
hives ; they belong to the cot, and upon this rests the right of
property of the owner of the cot to them ; yet the instincts by
which pigeons are linked to their cots, and bees to their hives,
are not half so strong, or half so sure, as the grander and more
powerful instinct which conducts the salmon through the ex-
tensive regions of the ocean, by the invincible law of his nature,

SALMON-FISHERY OF SCOTLAND. 65

to his native river. What the pigeons are among birds, and
bees among insects, salmon are among fishes : they are all
property. If the pigeons belong to their cots, and bees to their
hives, salmon may be said to belong still more emphatically
to their rivers ; for a pigeon will sometimes leave his own cot
and go to another, but a salmon never forsakes his river for
another stream. To assimilate salmon, therefore, to haddocks,
or other vague fishes, is still worse than to class pigeons, with
their peculiar instincts, with larks, or other common birds ;
nor can the right of property in the salmon be denied more
than in the pigeons, both resting on the same instincts, and on
the same principles.

Suppose, then, as we said, all the pigeons, and all the bees,
and, we may add, all the rabbits in the kingdom, all of which
admit, by their nature and instincts, of becoming private
property, as salmon among fishes, from similar instincts, do,
were, like salmon, inter regalia, and belonged to the Crown
originally, would it not be a great absurdity to say that, after
the Crown had made grants of all the dove-cots and their
pigeons, of all the bee-hives with their bees, and of all the
rabbit-warrens with their rabbits, as the Crown has done of all
the lands and salmon-rivers in the kingdom, to individuals, and
that those pigeons, bees, and rabbits, had become the property
of such individuals, that, nevertheless, they still belong to the
Crown, because they did so originally, before they were granted
away ? If there were other salmon besides those belonging to
the rivers, the Crown would still have a right to them ; but
there is not one which does not belong to one river or other,
nor, therefore, any which, after having given away the rivers,
can still belong to the Crown. The Crown is in exactly the
same predicament with any other proprietor, who, after having
sold or disposed of a subject, has no longer any more right of
any kind to it, than if it had never belonged to him. The
Crown, as we said, in granting a right to haddocks, or larks,
could only give a right to take them in particular parts ; but
in granting the dove-cots, including their pigeons, the bee-hives
with their bees, the salmon-rivers with their fisheries, the
rabbit-warrens with their rabbits, the Crown bestowed all these

E

66 SALMON-FISHERY OF SCOTLAND.

in property, and all the right of the Crown to the whole, or any
individual part, of such property, from that moment ceased.
In short, the right to any subject must depend on the nature of
the subject.

That a salmon-river with its salmon is as much a property
as a dove-cot with its pigeons, or a rabbit-warren with its
rabbits, or even a sheep-farm with its sheep, we think is indis-
putable. The salmon are bred in the river as the sheep are on
the farm, and the instincts by which the one are attached to its
parent stream, are at least as strong as those which bind the
other. The temporary migratory absence of the salmon can
make no difference, for the certainty of their return renders the
right of property in them as secure as to sheep which may be
sent to winter elsewhere. We have, however, heard lawyers
doubt that salmon-fisheries could be called property. If a
salmon-river is not a property, what is it ? Is it a servitude ?
If it is a servitude, on what property is it a servitude ? We
know of no other distinction except property, and servitudes
upon property — so that if it is not the one, it must be, neces-
sarily, the other. But the salmon are, as we said, bred in the
rivers, and no animals can be bred on a servitude. A salmon-
river is, therefore, a property, or it is nothing. On the other
hand, a coast-fishing, or a right to intercept the passing fish,
which, when they reach the rivers, remain there, can from its
very nature be only a servitude — though it may be attached to
property or land. It is to all intents and purposes a servitude
upon the rivers, a servitude which the Crown had no more a
right, as we have said, to inflict upon the rivers, than it had to
impose servitudes upon lands, or than it would have to author-
ise the interception of the pigeons returning to their cots. If
the right were admitted, it might, as we said before, be so ex-
tended in all parts along the coasts, as to occasion the utter
extinction of the river fisheries — which, alone, ought to show
its illegality, as being absolutely incompatible with every prin-
ciple of protection to property. If salmon were like haddocks,
there could be no servitude on the river properties, because the
owners of the rivers could claim no right of property in chance
fish which did not belong to the rivers ; but we can see no

SALMON -FISHERY OF SCOTLAND. 67

good reason why our judges should view the rights of the pro-
prietors of the rivers in the same light as if salmon were like
haddocks, any more than they would view the rights of pro-
perty of the owners of dove-cots, as if the pigeons which
belonged to them were like larks or thrushes ; or why they
should suppose the Crown had a right to impose servitudes on
the one more than on the other ; or argue about animals as if
they were different from what they really are — of salmon as if
they were like haddocks, or of pigeons as if they were like
larks ; in short, why they should prefer a wrong principle to
the right one, — the unnatural to the natural— the principle of
error to that of truth and common sense.

It is then, as we said, clear that, after the Crown granted
away the salmon-rivers, the rights of the Crown were exhausted,
and that the Crown had no more right in salmon, and no more
salmon to give, without taking away what it had already given,
and had become the vested rights of the grantees, any more
than the Crown, after having given away all the dove-cots in
the kingdom, with their pigeons, could have more pigeons to
give away, except by taking away those it had already given ;
or than a man, who had sold or given away all his sheep-farms
with their sheep, could still have a right to those sheep, or to
dispose of them to others, after he had parted with his right to
them. In a recent question in the Court of Appeal, the judge
put the case, whether, if the Crown had only granted ten fur-
longs or ten yards of the fishings of a river, the Crown would
be thereby precluded from granting the rest of the river ? We
do not think this is exactly in point to the right of the .Crown
to grant servitudes to the coast heritors to intercept the salmon
proceeding to the rivers. How the river fishings were origin-
ally granted, whether in detached parts, or as a whole, which
was afterwards sold in detached parts by the original grantees,
cannot at this distance of time be traced ; but the FACT that
the whole of the fisheries in all the salmon-rivers in Scotland
have, under the existing grants, been possessed for ages, is beyond
all dispute ; so that the case put by his Lordship becomes a
mere speculative one, which can have no existence in fact.
We shall put the same case to his Lordship in another shape :

68 SALMON-FISHERY OF SCOTLAND.

suppose the whole fishings of a river, the Spey, for instance, for
which the Duke of Gordon receives ^1 1,000 a-year of rent, —
had been granted to his Grace's predecessors for great public
services, which we suppose was the fact, and had been possessed
by his family for time immemorial, — and that the Crown should
say, There are ten furlongs, or ten yards of land, near the mouth
of the river, to which (fishing being distinct from lands) no
right of fishing has been attached ; we will grant a right of
fishing to the owner of these ten furlongs, or ten yards, which
will enable him to intercept the whole of the fish as they enter
the river, and thus deprive the Duke of his property ; would
his Lordship, notwithstanding the length of possession, sustain
the measure, and deprive his Grace of his property ? Would
he deem it compatible with either law or justice to do so ?
This very case, thus put, we maintain to be, ALONE, sufficient to

refute the jus tertii doctrine of Lord ,* and to show that

that doctrine, instead of being LAW, is founded directly, and
pointedly, though not intentionally by his Lordship, on the prin-
ciple of KOBBEKY and spoliation, and must, therefore, be as incom-
patible with SOUND law, as it is in the teeth of JUSTICE and of
common sense.

And this brings us back to the great principle of protection,
which we can never lose sight of, That after a subject, be it
what it may, has become the vested right of an individual, it is
ultra vires of the Crown to injure it ; and, therefore, as we said
before, just as much so to injure a salmon-fishing estate as a
land estate. The principle is quite clear, and nothing can
overset a clear principle, without which there would be no
security to property. People may quibble and sophisticate,

* Corehouse ought, we believe, to fill this blank. The judge in the Court of
Appeal alluded to is Lord Brougham, who advised the judgment of the House
of Lords in M'Kenzie (the author) v. Houston, August 13, 1831 (reported in 5
Wilson and Shaw, 422), and whose able opinion is well worthy of perusal, though
it fails to meet the logic of the text ; because it ignores the fact of the certain
ascent of the salmon to the river, if not intercepted by engines like Houston's.
The technical ground on which M'Kenzie lost his cause was, that he had averred
no right of property in the fishing at the spot where Houston fished ; the strength
of the argument for him lay in the somewhat neglected fact, that the salmon
caught at that spot were all on their way up to him. — ED.

SALMON-FISHERY OF SCOTLAND. 69

and nibble at it as they please, but still the principle stands
firm as a rock. That the Crown has been in the practice of
making grants of servitudes to coast heritors to intercept the
salmon passing on to the rivers, can add nothing to their legal-
ity, since no practice can render that legal which is in itself
otherwise. So has the Crown been in the practice of granting
the coast heritors rights to yairs, which are declared (even
those of the Crown itself) by repeated Acts of Parliament to
be illegal, and the mere fact of their being granted by the
Crown cannot render them otherwise ; yet the Court of 'Session,
which, as we have said, seldom troubles itself with principles,
has been in the habit of considering these yair grants as legal,
and it is therefore the less wonder that they should look on the
grants of the servitudes upon the rivers to be so.

If these servitudes of intercepting the fish passing on to the
rivers cannot be defended without violating a great principle
of law, the claims of the coast heritors will not acquire much
strength on the score of justice ; for, exclusive of what we have
already said, that there is no possible connection between their
lands and the salmon in a different element, let us just look
to the manner in which their grants have been obtained. For
example, a possessor of land on the coast, some fifty or a
hundred years ago, takes it into his head that he could catch
salmon opposite to his lands, and applies to the Crown for a
fishing grant, as a bagatelle, to be obtained for asking. The
Crown, however, lest any existing vested right should be in-
jured thereby, renders the application public by advertisement,
and if no objection be made, taking it for granted that no
injury could arise from it to any, the grant is given, gratis, as
asked. The grant, after being thus obtained, is found, how-
ever, to be useless, and becomes a dead letter in the titles of
the lands, so that if the estate is sold, not one farthing is paid
for fishings which have no actual existence, and which pay no
rent. In the mean time stake-nets are invented, and all the
grants immediately start into life. These engines, placed on
the course of the salmon, open a prospect of intercepting nearly
the whole of them on their way to the rivers, and of transfer-
ring the fishery to the coasts. Unfortunately, the ancient stat-

70 SALMON-FISHERY OF SCOTLAND.

utes interpose their protection, and the coast heritors, who, as
we have said, never paid one farthing for their fishings, exclaim,
What injustice ! Only think of the hardship, the cruelty, of
being thus prevented from appropriating to ourselves the pro-
perties of the river heritors, which, having always paid rents, were
purchased many of them at high prices, and have been possessed
for time immemorial, just as we have possessed our lands.
Here the Sovereign might tell them, You got your grants under
the idea that they would do no harm to other properties — why
else do you suppose your applications were rendered public by
advertisement ? and rest assured, that the motive from which
that was done, would, had stake-nets been foreseen, have pre-
vented the grants being given at all. You must, therefore, fish
according to the usage of the fishery at the period 'the grants
were made, for long usage constitutes law ; and you have no
right to use the grants for the purpose of spoliation, and trans-
ferring properties to yourselves, which were never intended to
be given to you. Certes, in every view the clamour of the
coast heritors is ridiculous, as well as unjust ; but they have
received a degree of support from the courts of law, which has
in many instances proved most disastrous to the river fishings.
A volume would scarcely contain all the acts of injustice which
we could relate on the subject, since the introduction of fixed
nets into the fishery. The greatest depredations have been
committed on the established fisheries, from a dependence by
the depredators on the delays of the law, regardless of what the
event might be, provided the produce of the fishery could, in
the mean time, be carried off. Illegal spoliation of property
became, in short, a legal speculation — fostered by the conduct
of the Court in refusing interdicts — as if there could be any
hardship in forcing parties to continue the usage of the fishery
until the legality of the new modes of fishing, that is, of the
new fishing-engines, which can never, in any instance, be per-
mitted without injustice, should be ascertained.

The salmon-fishery now constitutes so large a portion of the
property of Scotland, and the law on the subject seems to be so
ill understood, every new case which occurs undergoing the
same tedious course of litigation, as if the judges were groping

SALMON-FISHERY OF SCOTLAND. 71

their way in the dark, at a loss, amid clouds of mystification,
supported often by the most barefaced falsehoods, how to act,
that we think it would be of vast service to the country if one
judge were set apart for fishing cases, whose legal knowledge,
all bent upon one object, would soon have added to it so
thorough a knowledge of the true nature of the fishery, as
would enable him to render the law clear on the subject, and,
by reducing the whole to fixed principles, would prevent the
absurdities and the anomalies which now daily occur. His
remarks and reports would be most valuable, not merely with
reference to the rights of parties, but with a view to the im-
provement of the fishery as regards the public, while they
would save a world of expense in litigation, and much fishing
property from destruction. At present the fishery may be said
to be absolutely without legal protection, save in the Tay, as if
the statutes were framed for that estuary alone. In short, the
whole fishing system seems to be in a state of general and ab-
solute confusion — a state, perhaps, the best possible for the
lawyers and agents, but which parties, from the one end of the
kingdom to the other, look to with dismay.

Hitherto it has been considered the law, that without a
Crown grant (whether legal or otherwise) salmon-fishing opera-
tions could not be legally carried on anywhere ; but, amid all
the improvements in the fishery, it is now found, that even this
may be dispensed with, and that the salmon may be taken in
all parts without a grant ; in other words, the fishery, hitherto
limited to the Crown's grantees, has been thrown open to uni-
versal spoliation. The cases wherein this new law has been
declared, the most important, perhaps, in principle, after the
decisions in the Tay and Kintore cases, which has taken place
for a century, ought to be generally known, and, when known,
will be scarcely believed, so contrary is the principle — so un-
guardedly and unfortunately laid down, to the common rules
of justice.

Mackenzie, proprietor of the river Shinn, in Sutherlandshire,
one of the four salmon-rivers which, combined, form the fresh-
water estuary, called by Boethius, and other ancient writers,
the Kiver of Portnacoulter, now termed by some the Kyle of

72 SALMON-FISHERY OF SCOTLAND.

Sutherland, by others the Frith of Dornoch, and which is, in
fact, a collection of fresh water, or of conjoined rivers, subject
to the influx of the tide, or a great tide river — and tenant or
tacksman of nearly the whole of the rivers and upper fishings,
paying high rents, and supporting expensive fishing establish-
ments, was lately forced, after all remonstrance had failed, to
raise an action against Houston, possessor of some land, called
Creich, on the estuary, for intercepting the salmon proceeding
to the rivers, at a part where the channel of the estuary, at low
water, was one-third less in breadth than the Thames at West-
minster bridge, without having either a Crown grant, or a pre-
scriptive right, or, in short, a right of any kind, which could
authorise him to do so. Houston admitted the absence of all
right on his part, but contended that, if he had not a right, the
right, that is, the right of interception, was in the Crown, or in
some one else, and denied the title of the pursuer, as an upper
heritor, to raise the action ; but this defence was unanimously
rejected by the Second Division of the Court, the title of the
pursuer, as an upper heritor, sustained, and Houston found
liable in expenses, which put an end to the case.

In the meanwhile, Houston's immediate neighbour, Gilchrist,
who had lately acquired right to a small spot called Spinning-
dale, on the banks of the estuary, lately belonging to a cotton-
spinning manufactory, commenced similar proceedings, with-
out any right. Another action was accordingly raised against
him, when the same defence was resorted to, namely, the want
of title in the pursuer, as an upper heritor to pursue. This
case having come before the Ordinary of the other, or First
Division of the Court, his Lordship pronounced an interlocu-
tor directly the REVERSE of the one in the former case, finding,
that the pursuer, as an upper heritor, had NOT a title to raise
the action, unless he could produce a right to the very spot
where the interception took place, or show that the fish were
intercepted by an illegal engine, the matter, that is, the inter-
ception of the fish and consequent loss of property, being, his
Lordship said, wholly jus tertii to the upper heritors ; and the
man who was fraudulently transferring to himself what, by his
own avowal, he had no right to, was found entitled to his ex-

SALMON-FISHERY OF SCOTLAND. 73

penses from the person he was robbing — the bond fide grantee
of the Crown, all which was confirmed by his Lordship's Divi-
sion of the Court.

Here we have two judgments of the Court, on precisely the
same point, directly in the teeth of each other. Which of them,
then, was LAW ? If the law was clear on the subject, how
happened the whole of the judges of the Second Division of the
Court, whose contrary decision, as we said, was unanimous, to
be utterly ignorant of it ? The question was, in fact, a very
simple one — viz. Whether a person, who complains of injury,
or loss of property, from the acts of one who, by his own con-
fession, had no right to inflict such injury, had a title to seek
redress ? The one Division of the Court were unanimous that
he had, the other that he had NOT ; and as the latter prevailed,
the sufferer was found liable in expenses, for making the
attempt, to the person whom it was not once pretended had a
right to inflict the injury. The opinion by which the Court
were led was, that the Crown might, if it chose, inflict the
injury complained of, and as the Crown might do it, the de-
fender, who only did what the Crown might do, could only
be punished by the Crown for doing it ; and this miserable
QUIBBLING was held out as law, for the purpose, as we have
said, of enabling a man to appropriate to himself what he had
no right to.

It could not, however, be very agreeable to the Court that
these contradictory judgments, on the same point, should
remain, in the face of each other, upon the records. What
would the country think of it ? What would future lawyers
say ? What opinion would they form of the Court ? Which
decision would hereafter be considered law, the one in accord-
ance with justice, or the one which disregarded and trampled
upon justice ? Then the legal reputation of the two divisions
of the Court was brought into unfortunate collision. Which
of the two divisions must succumb ? All this was undoubtedly
most mortifying ; but que faire ? So, to end the matter,
Houston's agent, a man of excellent tact, if scrimp of brains,
kindly brought his case again into the Second Division, and
though the judgment had become final from the lapse of time,

74 SALMON-FISHEKY OF SCOTLAND.

or what lawyers term a res judicata, and though not one single
new argument was advanced, the Court reversed their former
unanimous decision, and found Houston, in his turn, entitled
to expenses !

When we saw this decision, in which it was found that the
interception of the fish passing on to the upper fishings gave
the upper heritors no title to complain, unless they could show
a right, on their own part, to the very spot where the fish were
intercepted, we were led to suppose that salmon had been con-
sidered as fixed to the ground, like oysters, so that, to entitle a
man to raise an action, he must have a right to the ground to
which they are fixed ; or, when the matter was declared to be
jus tertii to the upper heritors, that it was believed the salmon
fell into the rivers and upper fisheries direct from the clouds,
as the wise Olaus Magnus tells us the rats, or lemmings, do in
Lapland, and consequently that the interception of the fish in
the estuary could do the upper heritors no harm ; but then this
would be at variance with the part of the interlocutor which
declares that the title of the upper heritors would be good if
they could show that the salmon were intercepted by an illegal
engine, which was an admission that they were really on their
way to the rivers, and did not fall into them like the Lapland
rats of the wise Olaus Magnus. The upshot of the doctrine is,
that an illegal mode of fishing gives a title to pursue, but that
the illegal act of fishing without a right does not. Can any-
body understand this legal distinction between an illegal MODE
and an illegal ACT of fishing, as constituting a title to pursue ?
To us it appears very like nonsense. It is one of those niceties,
so very nice, as to defy common sense to comprehend it ; but
what shall we say of the justice of the country, when a distinc-
tion, which carries absurdity on the face of it, is laid hold of to
shelter injustice ? To defeat a title, and thus prevent a com-
petition of rights which could not stand a moment's hearing ?
It must be clear to common sense that, if a man has a title to
pursue for the interception of the fish by an illegal engine,
his title must be equally good to pursue for their interception
by a poacher — a person without a right. It is no wonder if men
of plain sense exclaim, Such are the mysteries of the law ! what

SALMON-FISHEKY OF SCOTLAND. 75

fine-spun brains those lawyers must have ! we cannot compre-
hend them. And truly nonsense is a mystery which is not
easily comprehended. We suppose the argument means some-
thing like this : if a man knocks another on the head, the
knockee will have no title to complain of the knocker, unless
he can show that the knock was given with an illegal weapon.
In the same way, if a man should steal, or appropriate to his
own use, a sheep on its way to another man's farm, to which
he himself had no right (and when a man appropriates to him-
self what he has no right to, it looks very like stealing, or at
least is brother-german to theft), under pretence that though HE
had no right to it, the parson might, if he chose, take it as his
tithe, or his Majesty might take it, if he pleased, for taxes.
Scotch law would tell the farmer, " the man, it is true, had no
right to the sheep, and you have suffered a loss by his taking
it ; but as the parson or the king might have taken it, they
only can pursue him for doing so, unless, indeed, you can show
that it was carried off in an illegal way ; for instance, in an
illegal sack, that is, a sack made of contraband stuff, for that
would give you a good title to pursue, which the loss you have
suffered, or the loss of your whole property, would not." Que
tout cela est beau, quoth the farmer ; Vive la Justice !

Every judge knows, or ought to know, that the only differ-
ence which there can be between an illegal engine and the usual
mode of fishing, quoad the upper heritors, as the lawyers say,
is that the one intercepts a greater number of the passing fish
than another. An illegal engine may intercept 150 salmon,
while a common net will only take 100. The difference is,
therefore, only in degree, and this degree of difference must
constitute the title to pursue, for the mere illegality of the
engine would, of itself, give no title to pursue, since, if placed
on land, the upper heritors would have no title to object to
what did them no harm. Some reason in common sense should
have been given why the additional 50 salmon intercepted by
illegal machinery should constitute a title, while the same
number intercepted by the carcase of a poacher does not. We
conceive the one engine to be just as illegal, on the point in
question, as the other. The illegality of the engine alone,

76 SALMON-FISHEKY OP SCOTLAND.

Scotch law says, does not constitute a title, and the taking of
the fish alone does not constitute a title ; separately, they are
innocuous — quite harmless — useless ; but, united, they form a
good title, just as two ciphers, when added together, make an
unit, or two blanks a prize. Such is the law brought into
existence by the opinions of judges, and by which the most
valuable property of individuals is disposed of.

If we were to ask what has made this LAW, we believe any
judge would be somewhat puzzled to inform us. If he were
to tell us candidly the truth, he would say, " that which makes
nine-tenths of our law the mere accidental opinion of the
judge." When the legislature makes a law, there is debate
upon debate, it is canvassed in all its parts, viewed in every light,
must pass through both Houses, and acquire the final sanction
of the King : but a judge saves himself all this trouble ;
in five minutes he makes a law at once ; declares any vague
idea which comes across his brain to be LAW ; and the one law
is just as effectual for the disposal of property as the other.
It is a pity, possessed of such despotic power, that where there
is not clear law, the judge does not always extract law from the
feeling or sentiment of justice. But the vulgar instinct of
justice is common to all men, and excites no admiration, while
a legal subtlety shows the acuteness of the mind of the judge.
Besides, if law were always founded in justice and common
sense (we mean the law dealt out to us, for sound law is ever
so), it would lose that mysteriousness, that charlatanism in
which it is enveloped, and which creates the wonderment of
the people. It is therefore necessary to show up the magic-
lantern, to keep the country in a state of delusion, and to add
to the dignity of the judge. In this respect the interest of the
legal profession and of the people is in direct opposition to each
other. It is the interest of the people that law should be ren-
dered as simple, and justice as certain as possible ; it is surely
not the interest of judges to perplex the law, in order to retain
their darling POWEK over property, though it may be of the
lawyers in order to increase litigation — which, if justice were
invariably to take place, would be- reduced to one-half its
present extent. Accordingly, justice, as we said before, is in

SALMON-FISHERY OF SCOTLAND. 77

little repute in our Courts, and law is everything. Every case
which comes into Court is made to turn upon some sophism, or
subtlety, or nicety, or chimerical distinction of what is called
law ; and justice, the end and object of law, the very thing for
which law has been made, and with which, as we have before
observed, sound law is never at variance, is utterly disregarded ;
of which the case before iis, with the quibbling distinction,
between an illegal mode and an illegal act of fishing, and still
more quibbling assertion, that what the Crown may do, all
others may also do, is a clear instance.

When the case came before the Court, we would have ex-
pected that, instead of having recourse to such quibbles, it
would have been said to the defender, " Sir, the river heritors
hold their properties by grants from the Crown, and under
these grants they have been in the immemorial possession of
the whole of the fish which pass up through the channel of the
estuary : you wish to appropriate to yourself a portion of these
fish, of which they have been in immemorial possession, while
you admit that YOU have no right to them. A man who ap-
propriates to himself what he has no right to, commits an act
of THEFT, be it on whom it may. If the salmon belong to the
Crown, he steals the property of the Crown ; if to the Crown's
grantees, he steals their property. In either view, he is to
every intent and purpose a thief, and this is what you wish us
judges to protect you in. If, as Erskine states, the fish con-
stitute the estate of the owners of the fishings, it would be a
great absurdity to say that they have no right of property in
what constitutes their estate. There is not a salmon taken by
you, which, if not so taken, the tacksman of the upper fisheries
would not be as sure of as if it were in his ice-house.* You
take what may belong professedly to the Crown, but what is
substantially, or, in FACT, the property of the owners of the
fishery ; but, in either view, you take what does not belong to
YOU. Sitting here as judges, bound by our OATHS, to adminis-

* We once tied a bit of tape round the tail of a fish taken at a lower fishery,
and allowed it to escape — and sent off a man immediately to one of the upper
rivers to which we knew it belonged, but before the man reached the river, the
fish was caught there, with the tape about it.

78 SALMON-FISHERY OF SCOTLAND.

ter justice as well as law, we cannot sanction your conduct.
We cannot consider, as law, a quibble which has, on the very
face of it, and by your own showing, no other object than to
cover theft ; and it would be contrary to all justice to allow
you, and if you, all others, to appropriate to yourselves, with-
out a right, what had been possessed for time immemorial, by
the owners of the rivers under their grants from the Crown —
to allow you, by your united efforts, in fact, to deprive them
of their properties altogether. Every principle of honour, of
justice, of sound law, and even of morality, forbids it ; and
when a judge loses all sense of morality, and covers an act of
dishonesty by a trick, he loses all title to respect. Go home,
then, sir, and be satisfied with what you have a right to, with-
out appropriating to yourself what you have not a right to.
Learn a lesson of honesty : at all events expect not that we
will do your dirty work for you/' But no judge said this :
moral judges, who could put on black caps to sentence to the
gallows the unfortunate criminal, pressed, perhaps, by necessity,
to appropriate to himself what he had no right to, appear un-
intentionally to shield the same offence in another, by a miser-
able quibble, and even find him entitled to COSTS ! Accord-
ingly, the tacksman of the upper fisheries is told, " The Crown
might, if it pleased, deprive you of all the fish — of your pro-
perty— of your vested rights : and if the Crown could do it, so
may the defender, for the defender does nothing but what the
Crown might do, if it pleased. You have no redress : you must
put up with your loss : you cannot help yourself : the loss of
your property is a matter wholly jus tertii to you, with which
you have no manner of concern : such is the law, which is the
essence of justice." Now, suppose our tacksman were disposed
to return to the inventor a dose of his own law, and, aided by
a posse of his fishermen, as a press-gang, were to carry him on
board one of his Majesty's tenders, in Leith Eoads, and then
say to him, " His Majesty has a right to impress men into his
service as seamen ; I have done nothing to you but what his
Majesty might do if he pleased, and his Majesty alone can find
fault with me for it. You have no redress : you cannot help
yourself : the matter is wholly jus tertii to YOU. Such is the

SALMON-FISHERY OF SCOTLAND. 79

law, and the law, you say, is the essence of justice. A voyage
to New South Wales will do you a vast deal of good, and will
give you leisure to ruminate on all the consequences of the law
of jus tertii, as laid down by yourself, and now brought home
to you. Good-by, mon cher : portez vous bien. If you find
any salmon in New South Wales, you will probably think of
your friend, the/^s tertii tacksman."

If a man were to cut down and carry off, or steal a tree
from one of his Majesty's forests, the act would no doubt be
truly jus tertii to all others, except his Majesty, because to no
others could it do any injury ; though, even in this case, there
would be no great room to admire the morals of the court, who
would attempt to screen the offence, by the absurd quibble that
because his Majesty himself might, if he pleased, cut the tree,
all others might do so too ; but granting that the quibble, for
it can scarcely be called a principle, because it is contrary to
every principle of common sense, did apply to this case, still
it could not be made to extend to cases where an actual injury
was inflicted on others, by depriving them of property for time
immemorial possessed. If, as we have just stated, on the
authority of Erskine, the salmon constitute the estate of the
Crown's fishing grantees, as much as the land constitutes the
estate of the Crown's land grantees, it must, as we said, be a
great absurdity to maintain that they have not a right of pro-
perty in such estate, or that the very article which he says
constitutes their estate, should still belong to the Crown, because
it once did so. To deny their title, therefore, to prosecute those
who deprive them of such estate, is the very highest degree of
injustice; for if the salmon do not constitute the estate, what
does so ? Perhaps we may be told, in the hackneyed style, to
which we have already alluded, that in making the grants to
the river heritors, the Crown only gave them a right to catch
salmon there. Let any lawyer show us, if he can, a grant in
which the word " catch " is inserted — and if he cannot, where is
his authority for saying it ? He may say, that in granting all
the mills in the kingdom, the Crown granted only a right to
grind in them ; but would the mere circumstance of his saying
so, or thinking so, or the idea having come into his head, be

80 SALMON-FISHEKY OF SCOTLAND.

considered proof of it, or make it law ? We have already re-
marked, that if salmon were like haddocks, which seems to be
the notion entertained of them by some judges, the Crown
could only give a right to " catch" them, because haddocks do
not admit, from their nature, to become property ; but, to
return to our former illustration of pigeons belonging to their
cots, which is so applicable to salmon belonging to their
rivers, if the Crown granted to a man the pigeons of a certain
dove-cot, would any honest lawyer maintain that the Crown
only granted him a right to " catch" them, and gave no right of
property in them, or that, notwithstanding having so granted
them away, they still belong to the Crown ? To argue upon a
grant of pigeons, as if they were like larks or thrushes, or re-
garding salmon as if they were like haddocks, or, in short,
regarding any one animal, not as it actually is, or upon its own
nature, but upon the nature of other animals, can never, in any
instance, as we before remarked, lead but to error ; and this, as
we have already stated, has been the grand cause of so much
error regarding salmon, which are viewed, not as they actually
are, belonging to the rivers, the right to which was just as much
a right of property as a right to the pigeons belonging to their
respective cots, but as haddocks, which belong to no particular
part, and to which, therefore, no right of property could, as we
said, be affixed. But, setting all argument on the subject
aside, the very FACT stated by Erskine, and obvious to all, that
the fish constitute the estate of the grantees, from which a right
of property CANNOT be separated, is conclusive on the subject.
It is a point which cannot be got over.

That the Crown, in granting the river fisheries, reserved a
right to impose servitudes upon them, of intercepting the fish
in their way to them, we have repeatedly denied — for there is
no such reservation, as we have said, inserted in the grants,
and it would be absurd to say it could be implied with regard
to salmon-rivers, any more than with regard to lands. The
single circumstance we have already stated, that such servi-
tudes might be so multiplied along the coasts as to occasion
the utter eviction of the river fisheries, is alone a sufficient re-
futation of such doctrine. But even if the Crown had the

S U,M< )\-FlSHERY OF SCOTLAN I >. Si

power of creating such servitudes, still it is evident that they
do not exist, and cannot exist, until the Crown creates them,
or brings them into existence ; could anything, therefore, be
more absurd than to say, that Houston was exercising, in the
room of the Crown, a right of fishing, which the Crown had
not yet created, or brought into existence ?

Let the owners of the salmon-rivers in Scotland only look at
the consequences of the law, as laid down in this case, and un-
fortunately affirmed recently in the Court of Appeal. A man
may have been possessed, under a grant from the Crown, of a
salmon-fishing in a river, for time immemorial, with a free and
unobstructed run to the fish from the mouth of the river to his
fishing ; and not only, we are told, may the Crown, notwith-
standing his immemorial possession, but his immediate neigh-
bour below him, who has no right of fishing, may NOW, without
any authority from the Crown, sweep the whole river in front
of his fishing, within a few yards of it, and absolutely extinguish
it, and he will have no title to prevent him. Even a man
possessed of only ten furlongs or ten yards of land, worth not
perhaps five shillings a-year, near the mouth of a river, may
intercept the whole of the fish as they enter, and thus ruin the
fishery of the river ; and though unpossessed of a particle of
legal right, may transfer to himself the whole fishing property
of the river, worth perhaps ^?500 or «P1500 a-year, and the
legal owner, thus robbed of his property, will have no title to
prevent it. In the same way, should a parcel of fishermen
form themselves into a gang, and have wherewith to purchase
nets, they may, as a fishing speculation, in consequence of
this new law, sweep the whole waters in front of the estab-
lished fisheries, from one end of the kingdom to the other,
and if they pay a trifle to the owners of lands, to prevent
molestation on their part, neither the owners nor the tacks-
men of the fisheries will have a title to prevent them. In
short, all protection is at once removed from fishing property
all over Scotland.

That such law, which carries the grossest injustice on the
face of it, should be affirmed in the Court of Appeal, and
affirmed, too, by such a man as Lord Brougham, is to us of all

F

82 SALMON-FISHERY OF SCOTLAND.

things the most astonishing* — and can only be accounted for,
by supposing that the case was not laid before his lordship in
its proper light ; for we cannot permit ourselves to believe, for
one moment, that, if it had been fully explained, this would
have been the case. We entertain the highest possible respect
for the Court of Appeal. Its judgments are almost always
founded in correct principles, and the mind of the judge is
invariably pure ; but if cases are not fully developed, and
placed in their proper light, error, the lot of fallible man, must
sometimes find its way into the judgment, though we believe
that in no Court on earth does it do so more seldom ; and of
all cases which can come into the Court, there are none so
liable to misconstruction and error as those which regard the
salmon fishery, for there are none which either the judge or
the counsel, or even the agents, can be expected, from their
nature, to be so little acquainted with. An occasional error,
in a fishing case, seems therefore, in an English Court, scarcely
avoidable ; but we have not the least doubt that when such is
discovered, the candour and the love of justice by which all
noble minds are distinguished, will lead the highly gifted indi-
vidual who presides in that Court to take the earliest opportu-
nity of rectifying it. In the mean time, however, its effects
must be fatally disastrous to many individuals, and to many
fisheries, and the sooner, therefore, another case of the same
kind is brought under the view of the Court the better. That
the judgment is founded in a wrong principle there cannot be
a doubt, because that CANNOT be a right principle which en-
ables one man to rob another of his property, under the pre-
tence that a third person might do so ; but unless it was
explained to the judge that such would be the effect of the
principle, which we understand was not done in the case in
question, how was he to know it ? How, unacquainted per-
sonally with the subject, was he to know the extent of spolia-
tion to which the principle would lead ? That all salmon-
fishings emanate from the Crown is true ; and so, as we said
before, do all lands ; but both can be now only considered as
private property, entitled to the same legal protection. With

* September 13, 1831.

SALMON-FISHEKY OF SCOTLAND. 83

regard to the rig] its of the Crown, whatever they may be, it is
time enough to try the point when a question with the Crown
arises, and which it was entirely and truly jus tertii in Houston
or any other to institute.

The maxim, then, that there can be no wrong without re-
dress, is an error ; since it is now openly and publicly estab-
lished as LAW by the highest tribunal in the kingdom, founded
in a quibble, that not only may a wrong, and a great wrong,
be committed with impunity, but that a man may be even
deprived of his whole property by another who has no right
to it, and that he will have NO TITLE TO EEDEESS.

But to continue Houston's case in the Court of Session.
When the honest man found that the Court was so well dis-
posed towards him, he judged that he might even venture a little
farther, and make hay while the sun shined. He had hitherto
fished only in the usual way, or with the movable coble-net ;
but he now planted fixed or bag nets, which we have already
described as the most destructive of all fishing engines, in the
very alveus or channel of the water, or passage of the fish to
the upper fisheries, and which but few fish could escape. A new
complaint from the tacksman to the Court was necessarily the
consequence of this new aggression, but the Court heard him
with the utmost apathy, and would not listen to a word he
could say on the subject. The interdict which they had granted
in a similar case in the Tay,* they refused to him, and allowed
the man who had no right to fish, or to intercept the fish in any
way, not only to sweep the channel with movable nets, but even
to fill it with the most destructive fixed machinery, with engines
which they themselves had interdicted in situations far less
destructive elsewhere ; and to continue his operations during
the season. How can this refusal of all legal protection, granted
to others, be then justified, except by supposing unacquaintance
with the subject of the salmon-fishing ? Did the Court suppose
that the fish could go through Houston's nets to the upper fish-
eries ? Or was the quality of the water their reason for it ? The
water at the part in question is in general quite fresh, and never
more than brackish, corresponding exactly with the Thames at

* Duke of Athol v. Wedderburne, 16th December 1826.

84 SALMON-FISHERY OF SCOTLAND.

Woolwich ; but let it be what it might, were it as salt as the
ocean, could that justify so gross an act of injustice to the
whole upper fisheries as to allow the passage of the fish, only
178 yards in breadth, the only way by which they could reach
them, to be blocked up with fixed machinery, which must be
deemed illegal, and a nuisance in common law, were the fish-
ing statutes, or the supposed quality of the water to which
they allude, not in existence ? The whole of the salmon of the
four upper rivers must necessarily pass through this narrow
channel, of the breadth we have described ; and yet the Court,
guided by their new law founded on ignorance of the nature of
the fishery, not only allow a man (who has no right, even by
his own avowal) to sweep the channel with movable nets, but
even to plant it with fixed machinery, leaving the upper heri-
tors and their tacksman, with his rents and fishing establish-
ments, to their fate.

SECTION V.

SCOTTISH STATUTES.

Ceux qui se sent fait un metier de la chicane ne peuvent avoir 1' esprit juste et
^claire". ROCHEFOUCAULT.

WE have just remarked, that the grants by the Crown of
salmon-fishings to the proprietors of lands situated on the
coasts, being made in direct violation of an acknowledged great
principle of the law, must necessarily be illegal ; the whole
salmon-fishing rights of the Crown being, in fact, exhausted
when the rivers were granted, so that nothing remained to the
Crown to give ; and the Crown could therefore give nothing,
except by taking away, by interception, what had been already
granted to the owners of the rivers, and had become their
vested right, as much as any landed estate in the kingdom is
so. But even were this not the case, still the use of fixed
engines in coast fisheries is prohibited in Scotland by the
Statutes, which in this respect have come in aid of justice. By
the usage of the salmon-fishery, — and we believe long usage
alone constitutes law, when not contrary to any legal enact-
ments,—the whole fishery was, as we have said, carried on by
net and coble. Now many salmon will pass the movable
coble-net ; even in the act of hauling it in, the fish pass on to
the adjacent fishery ; but if a fixed net were placed in front of
such fishery, it would extinguish it at once. This power of
extinguishing an adjacent fishery we conceive to be utterly
illegal in PRINCIPLE, and ought alone to be sufficient to con-
demn the fixed-net system in all parts ; for no system can be
legal which lays the property of one man at the mercy of an-
other. If, by the usage of the coble and net, coast fishings

86 SALMON-FISHERY OF SCOTLAND.

were of little value, the owners of them, in purchasing their
properties, paid as little for them : and if they paid nothing
for ideal fishings, illegal in the very Grants, and which in most
cases had no actual existence, is it just that they should be
allowed, by new fishing machinery, to extinguish, or to trans-
fer to themselves, the properties of their neighbours — properties
which are in every respect as much entitled to legal protection
as their own lands, or any other species of property ? A man
may improve, as we have already remarked, a land estate
without any injury to others, but he cannot improve his salmon-
fishery — in a part where others have rights — by new fishing
engines, without occasioning a corresponding diminution of
their fisheries ; and this we conceive to be an unanswerable
reason, in justice, why the usage of the fishery by net and
coble, under which the whole fishing properties were acquired
or purchased, should not be departed from.

When stake-nets were introduced into the estuary of the
Tay, the upper heritors, however, whose fisheries were threat-
ened with being rendered utterly useless by the interception
of the fish, and which had in fact declined exactly in propor-
tion to the increase in the number of the stake-nets, as has
been already shown, instead of proceeding against these engines
on the ground of the common law, founded on the usage of the
fishery, or upon the mere plain principles of justice, either of
which ought to have been quite sufficient for their purpose,
had recourse to certain ancient Statutes of the Scottish Legis-
lature, by which yairs and similar engines are prohibited " in
waters where the tide ebbs and flows, as destructive of the fry
of all fishes.'7

We shall not trace all the lengthened course of litigation
which took place in this celebrated Case, which occupied the
attention of the Court of Session for so long a period of time.
It was, in truth, a Case of mere quibbling and sophistication
from one end to the other. Great lawyers made fine speeches,
replete with eloquence and with nonsense, which, as is often
the case, left the matter in greater obscurity than they found
it. The meaning of the word " Water," in the statutes, was a
puzzle of the very worst kind. - Did it mean waters in general,

SALMON-FISHERY OF SCOTLAND. 87

or only rivers ? This was a sad point, which it took fourteen
long years to determine. Both the Judges and the Counsel,
no doubt, did their best, in the way in which they handle all
the cases which come before them. The Judges quoted old
songs, and the counsel cited the classics — Ovid, Virgil, and
Horace — to show the intentions of those ancient worthies, the
Scotch Legislators, in framing their fishing Statutes, until at
length, by their united efforts, they made nonsense of the
Statutes, and then most unjustly laid the blame — not upon
themselves, and their absurd constructions, but upon the
defunct legislators.

If the Court had only read these statutes like other Acts of
Parliament, and as we conceive all Acts of the Legislature in-
tended for the guidance of the lieges ought to be read — in short,
in the only way which a Court of Law has a right to read
them, namely, in the plain common -sense meaning of the
words — they would have found them as consistent and intelli-
gible, and as full of good sense, as any Acts in the Statute
Book. But this would not satisfy the Scotch Court ; any man
might do that — they must do something more — they must
see difficulties where none existed — put constructions upon
words the reverse of what in their natural sense they bore, and
discover intentions in the ancient Legislators which never
entered into their heads, else where would be their superiority
over others ? Besides, as we said before, plain common-
sense seems to be held in utter contempt where quibbles, and
sophisms, and subtleties, and chimerical distinctions are alone
attended to. This we cannot too often repeat, because it cannot
be too often impressed upon the Scotch public, who are gulled
with what is called law, and denied JUSTICE. The Court accord-
ingly declared that the prohibitions in the statutes were
intended by the Legislature to be confined to rivers, or fresh
waters, and they held and still hold out this as LAW — the law
of the statutes — and daily decide upon questions of fishing
property by this law. Now, without any disrespect to the
Court, which we hold, as in duty bound, in high reverence, we
deny that this is the law ; we maintain that it is NOT the law
of the statutes, but law of the Court of Session's own mak-

88 SALMON-FISHERY OF SCOTLAND.

ing, in direct opposition to the statutes. We assert that the
Court have altered the meaning of the statutes — have done
what none but the Legislature has a right to do — have sub-
stituted a law of their own in the room of the law of the
statutes, which even the affirmation of the Court of Appeal
cannot convert into law, since nothing can legally do so save an
Act of Parliament. All the decisions, therefore, which have
taken place upon this supposed law — this perversion of the
statutes — must be deemed illegal, unless it be admitted that
the Court of Session possess legally the power, which it un-
questionably often assumes, of 'making law — that is, of declaring
its own sentiments to be law ; and good enough law too, per-
haps, it may be said, for the country that could so long sub-
mit to it, without petitioning the Legislature for reform of
such abuses.

The ground upon which the Court has declared that the
prohibition of fixed engines in the statutes was intended to
apply only to rivers, is their construction of the word "Waters,"
which, after fourteen years of deliberation, as we said, it has
asserted, means fresh waters or rivers — an assertion which
is directly contradicted by every expression in the statutes
themselves. The only mention of rivers or fresh waters in the
statutes, is where cruives are expressly allowed there, though
prohibited in all other parts. It is quite clear that the word
" Waters " was used either in its general sense, as applying to
all waters, or in its more confined sense, as denoting rivers, a
sense in which it is often used in the technical language in
the titles to Scotch estates. If the expression was deemed
ambiguous, instead of looking for explanation in the classics,
we think the better way would have been to look for it in the
statutes themselves. The first, or model statute (Eobert I.),
from which all the subsequent statutes seem to have been
framed, says, " In Aquis ubi ascendit mare et se retrahit, et ubi
salmunculi, vel smelti, sui frice alterius generis piscium maris vel
aquae dulcis" &c. That is, in waters where the fry of sea
fishes, or of fresh-water fishes, or of any kind of fish, are to be
found. Now, does the Court of Session suppose that the fry of
SEA fishes, or of all fishes, are only to be found in fresh-water

SALMON-FISHERY OF SCOTLAND. . 89

rivers ? Can there be a more direct contradiction than the
words fry of sea fishes, or of all fishes, which are never
found in rivers or fresh waters, and which could not live there
a day, to the assertion of the Court, that the word " waters "
was intended to be restricted to rivers or fresh waters, — and
that it was not used in its general sense, as applying to waters
of every description, where the fry of sea fishes, or of all fishes,
or of any kind or description of fish, are to be found and could
be destroyed ? We do not think that it was possible to ex-
press the prohibition in terms more general or comprehensive.
Yairs could only be placed where the tide ebbs and flows ; and
the statutes therefore prohibit them in "all waters within
reach of the tide;" that is, in all parts where they could be
placed, or where fry of any kind, whether of sea or river fishes,
could be destroyed. But the Court of Session says this only
means rivers, where yairs could not be erected, and where the
fry of sea fishes are not to be found. The statutes describe
these yairs as actually destroying the fry of all fishes ; and the
Court of Session tells us this must mean rivers, which the fry
of all fishes never enter ! Some of the statutes expressly
mention the prohibition to be in salt water that ebbs and flows,
where the fry of all fishes are truly and actually destroyed by
yairs, as the statutes state ; the fry of sea fishes swimming
about the shores, and the fry of salmon in their descent from
the rivers : but the Court of Session says that salt water
means fresh water, because it is in fresh water only the fry of
sea fishes can be destroyed ; and this perfect nonsense it assures
the country is LAW — the law of the statutes — and dispose of
the most valuable vested rights of individuals, as we said, ac-
cordingly. If Lord Lyndhurst, from want of proper explana-
tion, or of due consideration, acceded to the opinion of the
Court in the Kintore Case,* that assuredly (however this in-
dividual case may have been disposed of by it) does not con-
stitute it LAW, contrary to the plain meaning of the statutes —
since nothing, as we said before, can legally do so save an Act
of Parliament.

* This is the first case we have ever seen decided in the Court of Appeal on
grounds of absolute nonsense.

90 SALMON-FISHERY OF SCOTLAND.

The object of the Scottish Legislature in framing the statutes
is obvious. In those remote periods of time, Scotland, always
poor from her soil and climate, possessed no article for. export
trade save the produce of her fisheries, which nature bestowed
liberally on her, to make up for her other wants. Of these
fisheries, salmon formed, undoubtedly, a part ; but it is clear
that the herring and white-fish fisheries were the most impor-
tant in a public or national view ; the care of the Legislature,
however, extended equally to both, and, indeed, to the preserva-
tion of the fry of every kind of fish around their coasts, as the
whole of the statutes show. Even in later times, in the pre-
amble to an Act of Queen Anne, it is said, " Our Sovereign
Lady and Estates of Parliament, taking it into consideration
the great many advantages that may arise to this nation by
encouraging the salmon, ivhite and herring, fisheries, they being
not only a certain fund to advance the trade and increase the
wealth thereof, but also a true and ready way to breed seamen,
and set many poor and idle people to work," &c.

Now, of all the engines by which fry could be destroyed,
yairs were by far the most destructive. They consisted of a
long range of stakes, with wattling, somewhat resembling a
hedge, carried from the land into the sea to low- water mark, in
the form of a crescent — with a croe, or cruive, in the centre,
and a curve or horn at the extremity. These engines, like the
present stake-nets, were always placed on the coasts of friths
or of the sea, in parts where the tide left the sands dry at low
water to a great extent ; for so simple was their construction,
that nowhere else could they be of any use. Thus Mr Little
states in the Committee — " Yairs could not fish but in the
TIDE." The tide was, therefore, the sine qua non of all such
erections, and hence, as we said, the prohibition in the statutes
of these engines "where the TIDE ebbs and flows." In general,
they were used more as a matter of convenience than of profit,
by affording a constant supply, at every ebb-tide, of small sea-
fishes, as flounders, sea-trout, cuddies, and occasionally a few
herrings and salmon ; but they were, in every instance, most
destructive of the fry of all fishes, floating about the coasts in
the easy water near the shore ; and, among the rest, of the fry

SALMON-FISHERY OF SCOTLAND. 91

of salmon in tlieir descent from the rivers. In the Tay case it
was attempted to be proved, by theorists and jobbers, that the
salmon-fry on leaving the rivers plunge into deep water — but
the FACT of their being caught in yairs on the coasts shows the
contrary.

No yairs ever were attempted to be placed in rivers in Scot-
land, because there are no situations within the banks of Scotch
rivers where they could be erected, or where, if erected, they
would not be swept away by the first flood in the river ; and
yet it is where they could not be erected — where they never
were attempted to be erected, and where the fry " of all fishes "
are never found — that the Court of Session declare the ancient
Legislature passed act after act to prevent their being erected,
which is not consistent with common sense. The only men-
tion, as before observed, in the statutes of rivers or fresh
waters, is for the purpose of regulating the cruives which
were expressly allowed there, directing that the hecks should
be three inches wide, which will allow a salmon of ten pounds
to pass through. With the same width of hecks, cruives could
not obstruct the passage of fry anywhere, yet they are prohi-
bited by the statutes in all parts except in the rivers — the very
part to which the Court, reversing the meaning of the statutes,
say the prohibitions do apply — the desire of the Legislature
being evidently to keep the coasts clear of all standing machin-
ery, in the way of either the fry or of the salmon returning
to the rivers, else why, when cruives were allowed in the rivers,
should they have been prohibited elsewhere ? No man will
allege that hecks which would allow a salmon of ten pounds
to pass through them, could be injurious to fry along the
coasts, any more than in the rivers, where they are expressly
allowed : the prohibition of them elsewhere could therefore
only arise, as we have just said, from a determination in the
Legislature to keep the coasts clear of all fixed machinery
whatever ; and when we consider the manner in which the
salmon-shoals, when coming on to the rivers, are broken and
dispersed by such machinery on the coasts, we cannot but
admire the knowledge and sagacity with which the various
enactments were made, both with regard to them and the fry.

92 SALMON-FISHERY OF SCOTLAND.

Hence Sir H. Davy remarked to the Committee, that by the
ancient Scottish law, salmon-fishings were never considered to
belong to the coasts.

The species of machinery called yairs, which were the fore-
runners of the stake-nets, and which, as we said, were invari-
ably placed, and could only be placed, on the coasts of friths
and the sea, actually destroyed immense quantities of the fry
of all fishes, as the statutes state. The herrings in particular,
as we have before remarked, breed in the friths and on our
coasts, where the fry remain till they commence their migra-
tion to more distant regions. While, therefore, they continued
floating up and down with the tide on the coasts, great quan-
tities of them could not but be destroyed, together with the fry
of other sea-fishes, and of the salmon in their descent from the
rivers, in those yairs. A great herring fisher * has remarked
many years ago : —

" In an arm of the sea where a shoal of herrings had been known
to spawn the preceding winter, I have seen the fry moving towards
the ocean during a considerable time in the early part of the sum-
mer. They always keep near the shore, and double every headland
in their way, in order that they may not be driven out of their
course by the tides and storms in the Channel. Perhaps there may
be other causes why they keep near the shore, as that they may be out
of the reach of larger fishes, and may have opportunities of picking
up those small insects which swarm on the surface."

Now, observe what Mr John Steavenson states in the Com-
mittee : —

" I am acquainted with two or three yairs in the Moray Frith. I
consider them most destructive. They are not only destructive of
the fry of salmon, but destructive of the fry of every other descrip-
tion of fish ; so much so, that it has come within my knowledge that
carts have been loaded with the fry of fishes — I will not say of sal-
mon, but of salmon among others — and sent to market."

And Mr Leslie, another witness in, the Committee, states : —

" Both yairs and stake-nets are destructive of fry. I have seen
five large basketfuls of fry taken out of a stake-net, and about a fifth
part of them were salmon-fry. Yairs are still more destructive"

* Mr Melville.

SALMON-FISHERY OF SCOTLAND. 93

Here, then, is full elucidation of the motives which induced
the ancient Legislature to prohibit yairs and all such engines
on the coasts, or in waters within reach of the tide, where, as
stated by the witnesses, such quantities of the fry of sea fishes
and of all fishes were destroyed by them, as expressed in the
statutes. Let us then take a glance at these abused statutes,
and see where the ambiguity so much complained of in the
Scotch Court is to be found, or whether anything appears in
them contrary to this plain common-sense construction of them.
The first is the one already cited— the words of which we will
repeat — viz. the Statute Eob. I. 1318 : —

" Omnes illi qui habent croas, vel piscarias, vel stagna, aut molen-
dina, in aquis ubi ascendit mare et se retrahit, et ubi salmunculi,
Arel smolti, vel fria alterius generic piscium, marts, vel aqusB dulcis,
ascendunt et descenclunt," &c.

The words of this statute, then, correspond exactly with
what has been stated by the witnesses. There is not one word
in it which can show that the prohibition was intended to be
restricted to rivers. The fry of sea fishes, and of all fishes, is
conclusive on the subject ; for if the fry of sea- fishes are not
to be found on the coasts of the sea, where are we to look
for them ? And had not the Legislature the same power of
legislation in all parts of the kingdom, at least within flood-
mark? and on the sea-coasts as well as on those of friths,
or on the banks of rivers ? If the power of the Legislature
be not denied on the coasts of the sea, or that the fry of sea
fish are to be found there, we defy any man to show that
the prohibitions in the statutes do not extend to it.

In the discussions which took place regarding this statute,
a manifest error was committed by the Court in translating
the word mare, in the expression, " In aquis ubi ascendit mare
et se retrahit," literally, in waters where the sea ebbs and
flows, instead of where the tide ebbs and flows, which is
the meaning of the expression. The reason why the tide
is mentioned at all in the statutes, is because it is only
where the tide ebbs and flows, as before remarked, that yairs
could be placed. To prohibit them, therefore, in " waters

94 SALMON-FISHERY OF SCOTLAND.

where the tide ebbs and flows," was, in fact, a general
prohibition, since nowhere else could they be erected. Now
the operation of the tide cannot be expressed in the Latin
language, except by the word mare : fluxis et refluxis MARTS.
The words, " In aquis ubi ascendit mare et se retraliit" there-
fore, clearly mean in waters, generally, where the tide ebbs and
flows ;* and this is placed beyond doubt by the words which
follow — viz. where the fry of any fish of the sea, or of fresh
water, or of any kind of Jfish, can be destroyed. We believe
that this obvious error of translating literally the word mare
into sea instead of tide, tended greatly to mislead the Court in
their construction of the statutes. In the literal sense of the
word, the sea flows into very few of the Scotch rivers — indeed
into none which fall into friths, as most of them do, where it
is not the sea, but their own fresh or brackish water, that is
driven back into them by the reflux of the tide ; so that, in
fact, the statutes, on their interpretation of them, would apply
only to the few rivers which fall into the sea direct.

When the Kintore case was in the House of Lords, the
Lord Chancellor, in alluding to this statute, upon which he
laid great weight, as the model statute, remarked that the
words " ascendunt et descendunt " appeared to him to denote
the ascent and descent of the fry of salmon in rivers ; and this
seems to have been one of his lordship's reasons for affirming
the judgment in that miserably mismanaged case, which has
laid the foundation of interminable litigation all over Scotland.
If his lordship had studied the nature of salmon, he would
have known that the fry never ascend a river as fry ; it would
be contrary to their instincts. "As soon," says a salmon-
fisher, " would a feather go against the wind as salmon-fry
ascend a river." Descend they must, on their migration to the

* In Scotland the words where the sea ebbs and flows, and where the tide
ebbs and flows, are deemed synonymous. The expression, " In waters where
the tide ebbs and flows," was in fact the most general and comprehensive the
Legislature could use ; for it included, with the conciseness peculiar to the
Scotch Acts, in one word all descriptions of water — whether fresh, salt, or
mixed — in short, every part where the prohibited engines could be placed ;
and it would be absurd to suppose, that even if one Legislature erred, so many
successive Parliaments would have used the same mode of expression, if it was
not deemed the best suited to convey their intentions.

SALMON-FISHERY OF SCOTLAND. 95

sea, but they never ascend except as grilses or salmon. ' The
words alluded to by his lordship are therefore the strongest
proof that it was not to rivers the clause alludes, since the fry
of salmon, as we have said, never ascend rivers ; the words
mean merely the ascending and descending, or flowing up and
down of the fry of all fishes on the shores, with the tide, by
which they are carried into and destroyed in the yairs, which,
if they remained stationary, could not happen. If a cart-load
of fry were taken out of a yair in one tide, there might be
another cart-load carried into it by the next tide, — the con-
stant flowing up and down of the fry with the tide along the
shores rendering them liable to destruction every tide in those
engines, which shows the good sense with which the statutes
were framed, prohibiting fixed engines in all waters to which
the tide reached.

The next is the statute of James I., 1424, which ordains
that

"All cruives and yairs set in fresche waters, where the sea filles
and ebbes, the quhilk destroys the fry of all fishes, be destroyed and
put away for ever mair notwithstanding ony privilege given to the
contrair ; and they that has cruives in fresche waters, that they gar
keep the laws anent Saturday's slap, and that ilk heck of the cruives
be three inches wide, as the auld statute requires," &c.

Any one who reads this statute must see at once that there
is an error in the word fresche in the first part of the clause,
which prohibits cruives in fresh waters, and then states that
those who have cruives in "fresche waters " must regulate
them according to law. The error is so palpable that any
explanation seems almost unnecessary. If the word fresh be
omitted in the first part of the clause, the statute will be quite
consistent with the rest of the statutes ; and this alone is suf-
ficient to show that the word was an error, to whatever cause
it was owing. — It will farther be evident,

First, — Because the clause prohibits cruives and yairs in
fresche waters, where, it says, they destroy the fry of all fishes :
but " the fry of all fishes" are never found in fresh waters : so
that it is quite evident the word fresche could not have been in
the original statute.

96 SALMON-FISHERY OF SCOTLAND.

Second, — The word " fresche," in both parts of tlie clause,
makes nonsense of the act. One of them must therefore have
been an error, on this ground alone. The error could not have
been in the latter part of the clause, because cruives are allowed
in fresh waters in the whole of the acts. The error must, there-
fore, necessarily be in the insertion of the word in the first or
prohibiting part of the clause ; — which is confirmed by the fact,
that the word will not be found in that part in a single one of
all the other statutes.

Third, — In a subsequent statute, wherein the words of this
statute are expressly cited, the error does not appear — from
which it may be presumed that, in the original statute, it did
not, as we said, exist. The words of this statute are as follow :

" Act 1477. — Item, It is statute and ordained that the Act made
of before be King James First anent cruives set in waters, be ob-
served and keepit — the qnhilk bears in effect that all cruives and
yairs set in waters ivhere the sea fills and ebbs, destroys the fry of all
fishes, be put away and destroyed for evermore," &c.

The omission of the word, therefore, in this statute, which
expressly cites the former, is, we conceive, sufficient proof that
the error did not exist in the original statute — or, if it did, that
it was deemed so palpably an error, that it was omitted in the
next statute, and, indeed, in the whole of the subsequent statutes
on record. There is not one of these reasons which is not
sufficient, even singly, to show that the word was a mere error,
wherever it originated. Eemove the error, and the statute is
in all other respects consistent with the other statutes. If the
word was not an error, then the clause, as it stands, is, as we
said, nonsense, and the statute should be passed over, there
being no lack of statutes on the subject. But even if it were
not nonsense, at the very worst all that could be said is, that
it prohibits yairs in fresh waters, where yairs could not be
placed ; but that is no reason why the subsequent statutes
should not prohibit them in salt water, or on the coasts — that is,
in those parts where they could be placed, and where they
would destroy fry of all descriptions or of all fishes. It would,
indeed, be extraordinary if this statute were to neutralise or
defeat all the subsequent statutes. — We have heard of statutes

SALMON-FISHERY OF SCOTLAND, 97

repealing former statutes, but never before of one which annul-
led those which came after it. It is singular, that though the
clause in this statute, owing to the error we have stated, is, as
we have said, absolute nonsense, upon which it would be just
as great nonsense to say that law can be founded, and upon
which no court on earth, composed of men of common sense,
would indeed attempt to found law, the Court of Session clung
to this statute and founded upon it more than upon all the
others — so congenial was it to practice, which can extract good
Scotch law even out of nonsense itself.

Some have tried to explain the clause, by saying that the
word fresh in the one part meant the lower part of the river,
and in the other the higher ; but this nowise mends the matter,
for in no part of fresh water could yairs be erected, and in no
parts of them are the fry of sea fishes, or of all fishes, to be
found. The Act, with the word " fresche " in the prohibitory
clause, will be nonsense in any way in which they can dispose
of it — 'such thorough nonsense, that no set of men who know
principles would waste their time, or allow their understand-
ings to be so muddled with quibbles and sophisms as to
attempt to extract law out of it, or who would be so insensible
to the claims of justice as to dispose by it of the properties of
individuals every day, in a course of litigation which they can-
not but see must be ruinous to all involved in it.

It is needless to follow the statutes minutely any farther, the
whole of them being of the same uniform import. The statute
1469 prohibits prynnes or narrow masses set in rivers that
have their course to the sea, or set within flood-mark of the sea,
meaning thereby, as stated in the Court of Session, the mouth
of a fresh-water river.

The statute 1488 ordains that all yairs and fish-dams that
are in salt water, where the sea (tide) ebbs and flows, be
utterly destroyed, as well those that pertain to our Sovereign
Lord, as all others throughout the realm ; and that cruives set
in fresh water be made according to law. It will be observed
that, while the words of this Act furnish additional proof that
the word " fresche" in the prohibitory clause of the Act 1424
was an error, as we have said,— they expressly show that it

G

$8- SALMON-FISHERY OF SCOTLAND.

was in salt water, or on the coasts, that yairs were truly pro-
hibited, as destructive of the fry of all fishes : yet salt water is
interpreted into fresh water ; thus directly falsifying the statute.

The statute 1489 anent cruives and fish-yairs which destroy
the fry of fishes and hurt the common profit of the realm, or-
dains that they be all utterly destroyed, and that the cruives
in fresh waters be three inches wide. The words of this statute
bear out what has been stated to have been the primary object
of the Legislature — viz. an anxiety for the preservation of the
fry of all fishes of every kind along the coasts ; but it was
supposed that the destruction of cartloads of the fry of sea fishes
in the yairs on the coasts was no hurt to the common profit of the
realm, and, therefore, we were assured that the prohibition of
yairs was intended only for the rivers. The very way, indeed,
in which fresh waters are mentioned in the Acts — " and they
that have cruives in fresh waters " — shows that it was to a dif-
ferent description of waters the prohibitions applied.

The statute 1563 ordains that all cruives and fish-dams
which are in salt water that ebbs and flows — those in the water
Solway alone excepted — be utterly destroyed, and that the
cruives in fresh waters be made according to law. Nothing
can be more correct than the mode of expression in this Act.
It is free from all negligence in point of style, while it confirms
the whole tenor and import of the former statutes, all having
evidently the same object in view. If there was not another
Act upon the Statute-Book, this Act alone should be quite
sufficient for the purpose. The Legislatures by whom this and
the other later Acts were framed, were undoubtedly better
judges of the meaning of the former statutes, and of the inten-
tions of former Legislatures, than some of the present day can
pretend to be ; but let the intentions of those who framed the
earlier statutes, have been what they might, nobody will say
that the subsequent Legislatures might not make further enact-
ments if they thought fit ; — or, that even if the original statutes
had limited the prohibition of yairs to fresh waters — which
most assuredly was not the case- — the subsequent Legislatures
might not have extended the prohibitions to salt water, if they
chose to do so; .and that they have done it— whether -as a new

SALMON-FISHERY OF SCOTLAND. 9£

enactment, or as a continuation of the old, it matters not — must
be plain to all who read the Acts. While these later statutes,
therefore, remain on the Statute-Book, the engines in question
are beyond a doubt illegal in salt water, which comprehends
the whole coasts of the kingdom — unless, indeed, the mere,
opinion of judges, as we said before, shall be deemed equivalent
to an Act of Parliament, by which the statutes are repealed,
or, which is the same, rendered useless.

All then, we repeat, that is necessary to understand these
statutes is merely to read them, as all acts of the Legislature
intended for tJie guidance of the people ought to be read, in the
plain common-sense meaning of the words, when it is not
possible that the intentions of the Legislatures by which they
were framed can be mistaken. No series of statutes can be
more consistent, nor more full of good sense and knowledge of
the subject to which they relate. All the absurdity imputed
to them is owing, not in the least to themselves, but to the
ridiculous constructions which have been forced upon them.

Some weight has been given to the opinion of Lord Stair —
who remarks,

" There is a special way of fishing by cruives and yairs, both in
fresh water and salt, all which cruives are absolutely prohibited to
be set in rivers in so far as the tide ebbs arid flows, as being de-
structive of the fry of all fishes."*

Lord Stair's opinion is unquestionably entitled to respect in
most cases ; but on the point in question he admits that no
cases had been tried, and seems . to have bestowed but little
attention upon it. The truth appears to be, that, when he
wrote his book, he found it necessary to say something on the
subject ; and the little he did say, he said very superficially,
probably from a mere cursoiy glance at the statutes, which, at
the time, were deemed but of little importance, and which have
scarcely ever been looked at by lawyers previous to the stake-
net questions. Had his Lordship taken time to reflect, he
would have seen the absurdity of supposing that the "fry of
all fishes" could be destroyed in any part of rivers or fresh

-- * C. 2,- tit. 5..

100 SALMON-FISHEKY OF SCOTLAND.

waters. He can, therefore, be considered no authority in the
matter. It was a subject out of his usual course of study, and
which had probably never occupied his mind for half an hour.
Had he been engaged in its investigation, like the learned
judges of the present day, for the best part of a quarter of a
century, the case would be very different. His Lordship was
not infallible more than other mortals. He had no other means,
of forming an opinion but from the statutes themselves, and
these statutes are now before us just as they were under his
eyes, and are better authority than all the lawyers in the uni-
verse. If his Lordship's shade takes now and then a peep into
the Parliament House, to see what is going on there, it must
have been sadly grieved at the use that has been made of an
inadvertent expression on a point which he had evidently not
studied, in depriving many of their fishing properties.

That there are still yairs of the old description to be seen on
the coasts in different parts of the kingdom, can only prove
breaches of the law. Such violations of the law must have
occurred frequently even under the vigilant eyes of the ancient
Legislature, which was no doubt the cause of the repetition of
their acts; — and it is the less to be marvelled at that they
should happen since. We wonder, if a case of this kind, where
it could be proved that one of these yairs on the coasts,
destroyed nine cartloads, or a ton of fry of all fishes in a tide,
were to be brought before the Court of Session, it would be
maintained, in the face of the express words of the statutes,
that it did not come within the prohibitions, because not
placed in a fresh- water river ? If violations of the law were to
operate as exemptions from the law, or were to render the law
nugatory, we know not what law would be in force in the
remote parts of the kingdom. There is a law against tracing,
hares on the snow, yet we have seen it openly practised even
by their little lordships, the sheriff-substitutes of northern
counties. It is, therefore, no wonder if the fishing laws should
be so, and millions of the fry of all fishes be destroyed, where,
however much the public interest should suffer thereby, no
individual would choose to involve himself in law proceedings
to prevent it — in a country where no man can institute a

SALMON-FISHERY OP SCOTLAND. 101

on the clearest grounds, without being entangled in the mazes
of chicanery, — uncertain as to the result, but always sure, be
that what it may, of being well fleeced — and, perhaps, as in the
cases of Houston and Gilchrist, of having some hundreds of
pounds of costs to pay to the trespassers.

The effects of the Kintore decision have been most disastrous
to many of the Scotch salmon-fisheries. Had the decision in
that case been the same as in the Tay case, it would have put
an end, at once, to all litigation on the subject ; but those de-
cisions being contrary to each other, the one declaring stake-
nets illegal in friths, the other legal in the sea, a door has been
opened to endless litigation, there being no decided principle
by which a line of distinction can be drawn, in waters varying
so much from each other, to ascertain exactly where an engine
is legal, or where it is not. In every case, all the defence
necessary is just to assert that the engine complained of is
situated in the sea ; and should it be in water as fresh as if it
were taken out of a fountain, it will answer all the ends of
delay, chicanery, and injustice, and the most scandalous spolia-
tion of property for at least three or four years : while the
injured party, thus despoiled of his property, involved in all
the chicanery of the Scotch complicated system, and ruined by
expenses, has every chance, through the treachery of his agent,
or some whim or crotchet of the Court, of being ultimately cast,
in spite of the justice of his case, with costs. Sucli are the
effects of our present blessed system. Since the decision on
the Kintore case, so many bag-nets have been placed in the
sea, up to the very mouths of the rivers Dee and Don, that
only one-fourth of the fish usually caught in those rivers is
now permitted to enter them, the other three-fourths being
intercepted in those engines. Yet these rivers seem just as
much entitled to legal protection as the Tay ; and, assuredly,
the statutes were never meant for partial operation, for nothing
can be more general than the words in which they are ex-
pressed ; extending, as has been shown, to all waters within
reach of the tide, whether fresh, salt, or mixed. We trust the
proprietors of the North and South Esks will bring a case from
these rivers into Court, rather than be for ever exposed to such

102 .SALMON -FISHERY OF SCOTLAND.

destructive engines. We think, that before the present able
;and enlightened judge, who presides in the Court of Appeal,
they would have every chance of success, notwithstanding the
decision in the Kintore case. In one of the stages of the Tay
case, the eminent judge who then sat on the woolsack said,
that "he was not prepared to say, even if the case could not be
distinguished from the former one, it would not be carrying the
matter a great deal too far to say that, from what might be
stated on the statutes, a different view might not be taken in
this case."*

We will even go further, and state our conviction, that if
rthe Kintore case itself were brought again into the Court of
;Appeal, at the instance of an heritor who had not been a party
in the former case, a different judgment would be obtained.
The judgment of the Court of Session in that case, affirmed in
the Court of Appeal, was founded upon a construction of the
statutes not consistent with common sense, as has been already
fully shown— viz. that " Waters where the tide flows and ebbs,
and where the fry of any fish of the sea, or of fresh water, or
the fry of all fishes, are destroyed," only meant rivers, or fresh
waters, where the fry of sea fishes, or of all fishes, are never,
and can never, be found ; — and, further, that salt water means
fresh water — and within flood-mark of the SEA only the lower
part of a river — all of which is, on the very face of it, downright
absolute nonsense; and as nonsense CANNOT be law, nor law be
founded in nonsense, — particularly when the statutes are excel-
lent sense in the natural construction of the words — it follows
that the judgment cannot be held to be a valid one, nor in any
degree influence that in any other case which may be brought
forward,

* March 26, 1805.

SECTION VI.

KIVEKS, FEITHP, ETC.

Le premier devoir d'un juge est d'etre juste avant d'etre formaliste. C'est un
grand abus dans la jurisprudence que Ton premie pour loi les reveries et les erreurs
d'hommes sans aveu qui donnent leurs sentimens pour des lois.

MONTESQUIEU.

IF the plain natural common-sense construction had been
put upon the statutes, it would, as we have seen, have put an
end at once to all stake-net questions, in all parts, and saved
much trouble, as well as great destruction of individual pro-
perty, and immense expense to the country in litigation ; but
it having been declared that the general word waters meant
rivers — or fresh waters — where the prohibited engines could
not be erected, and that salt water that ebbs and flows means
exactly the reverse — it ought at least, in mercy to litigants, to
have been told to the country what was understood to be rivers,
and to what precise parts the statutes, in the construction given
them, do apply. But we suspect this to be no easy matter : if
we set out in error, every step subsequently taken has only
involved proceedings deeper and deeper in absurdity. If it
took fourteen years to discover that the word waters meant
.fresh-water rivers, which a single serious perusal of the sta-
tutes would have at once refuted, the sixteen years that have
followed have not determined either what are to be considered
as rivers, or where they are to terminate — points which con-
tinue still as much involved in darkness as ever — and which
are subjects of constant and endless litigation and expense to
all concerned in the fishery.

By the usage of Scotland, even at this day, and such assur-

104 SALMON-FISHERY OF SCOTLAND.

edly was the usage at the periods when the statutes were made,
a river is deemed just what is termed the river proper, or body
of fresh water, contained within its own channel and banks,
and before it falls within the shores or local boundaries of a
frith or the sea — the only water in short, within reach of the
tide, where yairs could not be erected — though the Court say it
was there only the erection of such is forbid : the only water
within reach of the tide where the fry of sea fishes or of all
iishes are not to be found, though it is there only the Court say
the destruction of them was prohibited — all which cannot be
too often repeated, or be made too glaring. It is indeed singu-
lar, that absurdity is never considered a bar to a legal fiction,
or argument, or nicety ; being deemed just as good law as any-
thing else, of which we could give instances without number.
We have never heard that this is the case in other countries,
even among the most uncivilised nations, all of whom appear
to pay some regard to common sense. Had our lawyers, when
conning over the statutes, said to themselves, These statutes
describe the prohibited engines as actually destroying the fry
of sea fishes, and of all fishes. Such fry are never found in
rivers, and certainly they are not found there exclusively.
This shows that the word "waters" was used in its general
sense, and we have no right to force a construction upon it,
which is contradicted by every other word in the statutes, and
which, in fact, would make nonsense of them. But they do
not accustom themselves to such reasoning. They do not take
time for it, or bestow so much attention on the cases that come
before them. Besides, if it be deemed proper to declare abso-
lute nonsense to be law, who will dare to say otherwise ? Is it
the Scotch Press ? It is cowed into the most abject submission.
No country ever owed less to its Press than Scotland. Is it
the Scotch Bar, composed of many men born with generous
minds, but who, under practice, become heartless and sophisti-
cated, and swim with the stream ? We have often grieved to
see a body for whom we entertain respect, have so little for
themselves.

The Scotch Law has, in fact, ALTERED the statutes — that is,
it lias altered the import and plain meaning of the statutes,

SALMON-FISHERY OF SCOTLAND. 105

and substituted a novel law in their room, which is declared to
be law. The statutes prohibit yairs in waters, generally, where
the tide ebbs and flows — and the new law restricts this to
rivers or fresh waters ; the next point was, therefore, to define
the rivers or parts to which this new law was to apply : but
this has not been done, during even the quarter of a century
which has elapsed since the new law was declared ; so that the
matter remains, as we have said, still involved as much in
darkness and confusion as ever. We are told the prohibition
of fixed engines is confined to rivers — to fresh waters ; but
what those rivers or fresh waters are, or whether they include
the whole, or only a part, or what part, of friths or estuaries,
we are still as ignorant of as the child unborn.

By the usage of Scotland, as we have remarked, rivers mean
just what is termed the river proper, or body of fresh water
contained within its own channel and banks, and before it falls
within the shores or local boundaries of a frith or the sea.
But the new lawgivers, though clinging still to the word river,
which is never once mentioned in the prohibitory clause of the
statutes, seem to be aware of the absurdity of restricting the
prohibition to the rivers proper, and appear therefore disposed
to extend them more or less into the friths, and to consider a
part of the friths as fresh-water rivers, and the rest as the sea,
— sweeping the useful denomination of Friths entirely from
the map of the country, and dividing them between the Kivers
and the Sea. The difficulty, however, was how to do so, or by
what means, without the aid of the magical rod of Moses, to
divide a frith, as he divided the Eed Sea, into two parts, the
one to be considered a /res/i-water river, the other the pure
unadulterated salt sea ? This was a point quite sufficient to ex-
ercise wisdom, if wisdom could condescend to bestow a thought
upon the matter. The lawgivers were undoubtedly sadly
puzzled to extricate themselves out of this dilemma, into which
their absurd construction of the statutes had led them, and
which they could discover no principle to support. If, however,
they could not make the division de facto, they did it in idea,
and made the application de facto. How a rustic, or other un-
sophisticated son of nature, would stare, if he were gravely told

106 SALMON -FISHERY OF SCOTLAND.

.that his mountain stream, which discharged itself into a lake,
did not end with its channel or banks, but extended half way
into the lake — or in other words, that half the lake was the
mountain stream, and the other half a quite different water : he
might, perhaps, admire such exalted notions, as he would the
reveries and tourbillons of Descartes — or he might, perhaps, take
to his heels, thinking he was in unsafe company ; but as to the
actual possibility of the thing, it would never once enter into
his head, or we believe into any heads save those of learned
men, so brimful of legal lore, and so mystified with legal niceties
and subtleties, as to be unable to distinguish sense from nonsense.

It is true friths differ from lakes in the quality of the water,
but that nowise mends the matter. Friths are, in fact, bodies
of mixed water, composed of the fresh water of the rivers flowing
in at the one extremity, and of sea water flowing in with
the tide at the other, — both blended together by such imper-
ceptible degrees, by the constant action of the tide, that all the
chemical knowledge of a Sir H. Davy would be unable to draw
.a line of distinction between them, or to say at what precise
part all above could be called a river or fresh water, and all
below the sea. Besides, even were it practicable to fix upon
such a line, which it evidently is not, it would vary with every
flood in the rivers, so that what would be declared to be the
sea in the morning, might be the river in the afternoon.

It is, therefore, clear, that if we admit any parts of a frith to
be a river, in the extended sense of the word as used by other
nations, though not in the Scotch sense, they must include the
ivlwle of the frith to the fauces terras, since no INTERMEDIATE
line of distinction can be drawn. In truth, the fauces terrce, or
local boundaries, are the natural boundaries of all waters. It
may be the same water which flows out of a river into a mill-
race, or into a canal ; it is the locality alone that makes the
difference. An eminent quibbler in the Tay Case, which, as
we have said, was a mere mass of quibbles from one end to
the other, argued that "the frith being, he said, the sea, it
would be unmeaning tautology to maintain that the sea flowed
into itself." He might have added, that a river, which flows
out of a lake, being the same water, it would be nonsense to

SALMON-FISHEKY OF SCOTLAND; 107

eay that the river is not the lake." Salt water from the sea
flows with the tide into all the great rivers in the world ; but
no man ever thought of calling those rivers the sea on that
account. That was an absurdity reserved for the Scotch Law.
When water flows from one body within the local or natural
boundaries of another body of water, it becomes, necessarily, a
part thereof. If salt water alone, without extent, constituted
,the sea, a horse-pond might be filled with it, and be called the
sea. But friths, as before remarked are bodies per sey composed
of mixed water, which are neither fresh-water rivers on the one
hand, or the sea on the other ; though in the Tay Case they
were sometimes called the one, and sometimes the other ; and
sometimes both, just as it suited parties to state.

In that celebrated Case, the Court being greatly puzzled
where to draw a line of demarcation between the river and the
sea, across the frith, in order to divide the waters above from
the waters below ; and not knowing how to act, in the dilemma
,into which they had brought themselves, a scientific gentleman
who had been philosophising and taking levels in the estuaiy,
appeared upon the scene, and stated to the Court, that the proper
criterion for fixing the termination of all rivers was the tide,
that is, that a river terminates, not with its banks, or with the
fauces terrce of the frith — but exactly in that precise part,
WITHIN THE FKITH, where the medium tide is always either
ebbing or flowing. Here, then, was a principle just such as
the Court wanted, for dividing a frith into two parts, without
the aid of the magical rod of Moses, and for showing the ter-
mination of one body of water within another, by a power
which acts upon both indiscriminately. The principle having
the merit of novelty, and above all of science, was hailed in the
Parliament House with universal applause. It was grand, and
was not adopted, only because it was supposed to have been
unknown to the mere common-sense legislators by whom the
statutes were framed. It is quite obvious that the tide must
flow up all rivers, more or less, just according to the DEPTH of
their channels and the levelness of the ground. It flows up
the Thames to Richmond — and we believe the medium low-
water mark is somewhere about Putney ; so that, according to

108 SALMON-FISHERY OF SCOTLAND.

the above criterion, all below Putney, which is higher up than
all the London bridges, is the SEA ; and only all above it the
•river Thames. We know not what the Thames watermen
would say to this ; or how it would affect the Lord Mayor's
jurisdiction in the river, which we suppose would not extend
into that part of it at London, converted by our civil engineer
into the sea. In the river Potomack, again, the tide flows
above Washington, a distance of upwards of 280 miles. We
wonder how much of this internal space would, by the same
criterion be termed the river, and how much the SEA. Honest
Jonathan would be quite delighted to learn that he possessed
so many inland seas which he never dreamt of. But the Court
rejected it, and had to hunt out for another principle for
themselves, and at length hit upon one not a whit better — viz.
the charters or titles of parties — as if charters or legal docu-
ments could be proof of a natural fact. They accordingly
extended the river to Drumly Sands, but without prejudice,
they added, to those who had sea-fishings above that point,
that is in the river, which is downright nonsense, and thus
ended that very drumly Case, just as it had begun — to the
great edification of all concerned.

In another case, of recent date, from the Frith of Dornoch,
relative to a fixed engine placed in the very channel of the
water, in that part not so broad at low water as the Thames at
London Bridge, and which, though the water was quite fresh,
the party, as a last desperate resource, chose to affirm was the
sea, knowing that in the Scotch Court it would ensure him
three years mala fide possession, till the point was determined,
a remit was made to another civil engineer, who was directed
by the Court to report his opinion whether the part in ques-
tion was the sea or not, as if the mere opinion of this man were
sufficient to authorise the disposal of the vested rights of indi-
viduals. Our engineer accordingly inspected the part ; he
reported to the Court, that as they had been greatly puzzled,
and the vested rights of parties greatly distracted, by the vari-
ous denominations of friths, fiords, rivers, and estuaries, he
would supply them with a criterion that would settle all matters
at once, being applicable to all cases. He adopted the former

SALMON-FISHERY OF SCOTLAND. 109

principle of the level of the tide, only rendering it more ridicu-
lous by applying it to the bottom instead of the surface of the
water (perhaps on the ground that truth lies at the bottom of
the well), in order, as he expresses it, " to ascertain the point
at which the level of the sea touches the land under the super-
stratum of fresh or drainage water ; " and, upon this principle,
which he assures the Court proved quite satisfactory in the
Thames and the Dee, in proving both rivers to be the SEA, he
declares the part in question, where he admits the water to be
quite fresh above, and only brackish at the bottom, to be the SEA !*
Having settled this point so satisfactorily, and in a way so con-
sonant with science, if not with common sense, he next tells
the Court that he has farther discovered, that " the waters of
the frith obey the same general law which regulates the ocean,
being thereby affected in their flux and reflux ;" in other words,
that the tide ebbs and flows there just as it does elsewhere.

We were anxious to. see how these great discoveries, which
were to remove the puzzles of the judges and settle the distracted
rights of parties in all time coming, would be received by the
Court — and no doubt the discoverer was just as anxious himself
to witness his triumph, and to receive the compliments of the
Court on the occasion. Unfortunately the matter came before
an Ordinary, qui en savait plus que lui — the Lord Moncreiff,
whose superior mind saw through the whole juggle at once —
and who treated the superstratum of drainage water and the
fresh-wake? sea with utter contempt ; but it was paid for. It
is a common practice with the Court of Session to make remits
of this kind to men, whose reports, not being made on oath, can
be of no value, or have any other effect than to increase expense
upon litigants. We have seen many such remits to land-
surveyors, agriculturists, and dabblers in science, but we have
never seen one where the business was not, to all appearance,
jobbed.

In the Cromarty Frith stake-nets are still in their full glory^
and the rivers nearly useless. In the river Alness, which dis-
charges itself into that frith, and where, of yore, dozens of
salmon might be angled in a forenoon, scarcely a fish is now to

* .This is exactly the case in the Thames at Woolwich,

110 SALMON-FISHERY OF SCOTLAND.

be seen. The water of this frith is some shades salter than in
the adjacent friths, and this circumstance is deemed legally
sufficient, it is alleged, to deprive the rivers in this estuary of
the protection of the statutes, as if the quality of the water
could defeat the claims of justice, or remove all protection from
property. If the fauces tefrce are the natural boundaries of
friths, as of rivers, there is no frith in Scotland better denned
than the frith of Cromarty : but it is said the lay is so fine,
and the anchorage so good, that the whole British Navy might
ride there with safety — and this was brought forward as an in-
vincible, and, we believe, a successful argument, to show that
it was not a water where the tide ebbed and flowed, or where
fry of any kind could be destroyed, in the words of the statutes.
The argument was doubtless quite unanswerable. But any
argument, whether in point or not, will serve the purpose,
where delay is wanted ; and the worse the argument, in general
the more effectual it seems to be in law.

In the Inverness Frith a stake-net has been condemned by
the Court as illegal, at Eedcastle, within a few miles of the
river Beauly ; while another stake-net at Culloden, still nearer
to the river Ness, and therefore, according to the ideas of the
Court with regard to the statutes, still more illegal, has been
found to be directly the reverse, and has continued regularly at
work, intercepting the fish of both rivers. In short, no man
can know where an engine is illegal, or where it is not. No
man can call his fishing property his own — or be sure, for one
hour, that a fixed engine may not be run out immediately in
front of it, and extinguish it at a stroke. Such is the state of
the salmon-fishery at present ; and if the sufferers look for
redress — the redress of the dice-box — it is the merest chance
that it will be even ultimately obtained, after years of litiga-
tion, while the expense, quite ruinous, is certain. In a case
now under the consideration of the Court from the same frith,,
an issue has been sent to a jury to try, whether an engine,
placed about midway between the illegal stake-net at Eedcastle
and the legal one at Culloden, is in a river or in the sea ? The
engine is in mixed water — between the river Beauly and the
river Ness, and at many miles distance from the sea. It is

SALMON-FISHERY OF SCOTLAND. Ill

therefore obviously neither in a river, nor in the sea, but in
the mixed water of the frith, composed of both river and sea
water ; yet no alternative is left to the jury but to find, upon
their oath, that it is in the one or the other. This is placing
the jury in a pretty predicament. The Court might just as
well force them to declare, upon their great oath, whether a
mule was a horse or an ass ! It is an excellent specimen of
the manner in which matters are conducted. If the jury
system is to be introduced into Scotland in all cases, in the
simple way it is practised in England, and it would be an in^
finitely greater boon to the country than the Catholic Act wag
to Ireland, the Legislature in sending down the Act should
send some English judges along with it, to infuse a little com-
mon sense into the proceedings, and prevent juries being
forced to find, upon their oaths, that mules are either horses or
asses, instead of being a compound of both.

It is needless to cite further instances of the practice in the
Court, it being quite clear that the salmon-fishery must con-
tinue in its present anomalous state, until a return is made to
a proper construction of the statutes. The sooner, then, the
better — for until that be done, robbery, and spoliation of pro-
perty, and injustice, and a constant waste of expense in litiga-
tion, must continue to take place. We would, therefore, re-
commend to the Court to adopt at once the TRUE common-
sense construction of the statutes. All mortals are, doubtless,
liable to err. It is the lot of that proud two-legged animal
called Man ; but it is only the self-important vulgar soul that
persists in its errors : generous minds are ever ready, even
impatient, to acknowledge and repair the evils which may
have arisen from those they have unconsciously committed.
If interdicts were granted in every instance against new
engines, it would prevent much injustice taking place, and save
the rights of many an injured individual : but these the Courts
almost uniformly refuse to grant. They do not consider that,
in suppressing a fixed engine, its owner loses in fact nothing
which he possessed before ; while every hour it is allowed to
stand deprives the owner of some river or other of a portion of
his property — of property that has been purchased, like all

112 SALMON -FISHERY QF SCOTLAND.

other property, on the faith of legal protection, and to which
his right is as unquestionable as that of the stake-net proprie-
tors, or coast heritors, is to their lands. On the score of jus-
tice, a doubt cannot exist on the subject ; and, when real honest
substantial justice is allowed to be constantly defeated by pre-
tended fictions or sophisms of law, there is, assuredly, a radical
fault somewhere — either in the constitution of the Court, or of
the Judges.*

* The best Judges Scotland ever had were the English Judges sent down by
Oliver Cromwell. Their administration of justice gave universal satisfaction,
and their removal at the Restoration was as universally regretted. When their
upright administration of the law was mentioned to Sir Hew Dalrymple, Presi-
dent of the Court of Session, he observed, " The deil thank them for a parcel
of kinless chiels."

SECTION VII.
ME KENNEDY'S COMMITTEE.

All that glisters is not gold.

SHAKESPEARE.

" Le monde est plein de fous,

Et qui veut n'en voir,
Doit se nicher dans un trou,
Et casser son miroir."

French Aiitkor.

THE proceedings of this Committee have made a considerable
impression upon the public mind. To call these proceedings
evidence would be ridiculous. They convey merely the opi-
nions of the witnesses on a subject in which the personal inte-
rest of the whole of them was more or less concerned. Disin-
terested investigation in the leader of the Committee, or
impartial statements on the part of the witnesses, we hold,
therefore, to be entirely out of the question. Some of the
witnesses, though not upon oath, spoke truth ; others stated
mere fictions and absurdities, to promote their own views ; —
the whole together forming such a mass of contradiction, that
any man, personally unacquainted with the nature of the
salmon-fishery, must rise from a perusal of it quite at a loss
what to think of the matter. To show the spirit in which the
business was carried, we shall cite what was afterwards stated
in the Committee on the Bill by Mr Sheppard, an Irish gentle-
man, who had been sent over by the proprietors of the rivers
in Ireland, and who had been previously examined in Mi-
Kennedy's Committee. The Committee ask him, —

H

114 SALMON-FISHEEY OF SCOTLAND.

" When you were examined before, your evidence was confined to
the river Lee principally!" — "I was examined, I beg to say, with
great respect to the Committee, only on ONE side of the question."

" On which side of the question 1 " — " I trust I am not indecorous
in saying that there were no questions asked me that bore on the
interest of the proprietors."

" You consider you were examined against the proprietors ? " — " /
was asked such questions as bore against them"

Such was not the case with regard to the stake-net fishers,
Johnstone, Halliday, Little, and Co., who were brought out in
high style, — to show off their system to the best possible
advantage, by statements sometimes so perfectly absurd as to
be absolutely ludicrous. The Committee ask Johnstone,

" Is the Committee to understand that there are salmon which
frequent the friths, and go out again to sea, without going up the
river ? "— « YES."

Now, we would like to ask Mr Kennedy how he conceived
it to be possible for the witness to know whether there were or
not ? After the salmon reach our coast, and particularly after
they enter the estuaries and rivers, it is their nature to conceal
themselves as much as possible. No fisherman can trace their
motions in a river or in a frith for five seconds together. He
may see one leap out of the water occasionally, perhaps once
or twice in a day, perhaps not once in a week, which is all he
can know on the subject. He may see a salmon leap with his
head downward with the ebb tide, if the rivers are in a low
state ; and he may see one, half an hour thereafter, leap with
his head upward, returning with the flood-tide ; but he cannot
know whether it be the same fish or not, it being utterly beyond
human power, as we said, to trace their motions under water
for five seconds together ; and yet Johnstone and Halliday,
and other stake-net fishers, talk of both the motions and inten-
tions of the fish, as they would of a flock of sheep upon a
meadow.

The Committee, in the same strain, ask Mr Halliday,
" Are there a great many salmon which come into friths that do
not go to the rivers, but return again to the sea ? " — " There are a
great many."

SALMON -FISHERY OF SCOTLAND. 115

" Do you mean that they are going down from their own natural
impulse, or from being carried down with the tide ? " — " They are
going down from their own natural impulse with the tide."

" You mean to say that these fish are seeking to get to the sea ? "
— " Yes, seeking down to get to the sea."

" You have no doubt that such is the fact ? " — " I am certain it
is the fact."

Had Mr Kennedy known anything of the principles of the
migratory system, he could never have supposed that, after the
salmon had left their migratory abode in the ocean, and reached
the mouths of the rivers, they would, without any apparent
cause, turn back again, any more than a flock of lapwings or
woodcocks would do so after having reached our shores, and
would not have asked an ignorant man such ridiculous ques-
tions ; which, besides, common sense might have showed him
it was impossible the witness could know or answer ; for what
means could the witness, or any man, have of discovering
whether the fish went down from their own natural impulse,
with the tide ; or, in short, whether they went down at all,
since he could not see their movements under water even in
the space of a hundred yards, much less over the whole ex-
panse of the frith ? And if the witness had been a sensible
man, he would have answered,—" Sir, how do you suppose
that I could trace the motions of the salmon that enter a
frith, or know their^ intentions ? we sometimes find them in
the ebb-traps of our engines, but farther than that I cannot
say ; if you want to know more, you must ask a seal, or some
other marine animal, who sees what passes under water, and
who alone can tell you." Mr Kennedy, however, continues,

" You do not consider that all the fish that are caught by stake-
nets placed at the mouth of an estuary or river, are fish which would
have gone into the river ? " — " No."

As if it were possible, as we have just said, for the witness to
know anything about the matter. The Committee afterwards
ask the witness,

" What do you conceive to be the object which induces salmon to
visit the rivers at the early periods of the season 1 "

Mr Kennedy might have as well asked him what he con-

116 SALMON-FISHERY OF SCOTLAND.

ceived to be the object which induces the cuckoo to visit this
country ? The one question would be just as sensible as the
other. The witness, however, never at a loss for a reason,
answers,

" One evident object is to get clear of the vermin called the sea-
louse — and they come in search of food also. I consider a salmon to
be in search of food wherever he goes."

If salmon come to rivers in search of food, they come to
parts where there is very little food for them. Here we find
the true haddock hypothesis — the fish swimming about in
search of FOOD — for as to the system of migration, the witness
never dreamt of such a thing, and as to the sea-lice, we have
said enough already. The fresh water kills these lice, because
any truly sea animal cannot exist in fresh water. We wonder
Mr Halliday did not ask himself why all the salmon in the sea
that are infected with these lice do not take the rivers at once ?
And how it happens that the salmon of late rivers have never
those lice, like the salmon of the early rivers, in winter and
spring, so as to " induce " them to enter the rivers then ? Do the
lice fix themselves regularly to the salmon of the early rivers
in the early months, and to those of the late rivers in the late
months ? In short, as all the salmon got in stake-nets have
lice upon them as well as the others, why do these salmon not
also betake themselves to the fresh water as well as the rest ?
But it is useless to waste time in exposing such manifest
absurdities.

It is amusing to see how minutely Mr Kennedy, whom Mr
Sheppard accuses of asking him no questions that bore on the
interest of river proprietors, brings out everything he con-
ceives calculated to strengthen the stake-net system. He asks
the above witnesses,

"Do the stake-net fishermen become expert sailors?" — "They do
— a great many of them have gone into the sea service. There are
several of them in the ferries. They become very much qualified to
manage boats and small vessels along the coasts, and many of them
arrive to be captains of smacks and coasters, and some of them have
gone on board the navy."

" Have they any other employment during close-time connected

SALMON-FISHERY OF SCOTLAND. 117

with the fisheries?" — "Some of them have, but the greater part are
tradespeople and labourers, principally weavers."

Now, all the operations connected with stake-nets are carried
on on dry ground. The stakes are planted — the nets are
attached to them — and the fish are taken out of them at ebb-
tide. Of all fishers, of whatever description, the stake-net fisher
has the least connection with boats or with the water. Even
his fish he carries to the ice-house on land, or to the vessel in
harbour, that is to convey them to London ; yet it is by these
dry-shod iveavers, rendered by stake-nets such expert seamen,
that our navy is to be manned. — Certes, the country is much
indebted to Mr Kennedy for bringing so important a fact into
notice.

The Eeverend Dr Fleming is a witness of a higher caste. He
is a naturalist, and a man of science ; — he has written an
article, he says, on Ichthyology in the Encyclopaedia ; — and he
knowf more, his friends the stake-net owners tell us, regard-
ing the natural history of salmon than all the men in his
Majesty's dominions. We must, therefore, bestow a little more
notice upon him. Johnstone and Halliday have stated, as we
have seen, that salmon are induced to enter rivers to get rid of
sea-lice, and in search of food. — The Doctor has discovered
another reason, viz. — terror ! He says,

" Towards the heads of estuaries salmon must be frequently in-
duced to enter rivers properly so called, in order to escape from the
numerous foes which persecute them in the estuaries."

" How far (the Committee ask) do you think the salmon may go
into a river when not obstructed, and return to the sea without
having spawned1?" — u A good deal must depend on the degree of
terror of the fish, — its strength, — and the state of the river/'

This is a new reason why salmon enter rivers, which certainly
has no connection with any of what appear to be the principles
of the migratory system. The degree of terror in the Tay fish
must be very great, for many of them never stop till they reach
Loch Tay.

We wonder how many degrees of terror salmon experience,
or how long they continue. We always thought that the eye
was the principal organ of terror in a salmon, and that in this

118

SALMON-FISHEKY OF SCOTLAND.

point the adage, " Out of sight, out of mind," might be applied
to him ; but the Doctor makes the length of his residence in a
river to depend upon the strength of his MEMOEY. What ex-
cellent memories salmon must therefore have ; for Mr Stephen
has furnished proof that, after they enter rivers, they never
leave them till they have spawned. We do not know if the
Doctor is a phrenologist. Perhaps he has paid particular
attention to the bump that denotes memory upon the nobs of
the salmon, for we cannot conceive by what other means he
could have made the discovery. We know not what foes per-
secute them at the heads of friths. Now and then a solitary
seal appears there, but their principal foes in those parts are the
fishermen. In another part the Doctor has told us that salmon
enter rivers in the early part of the season from a " premature
exercise of their instincts." Perhaps there are no foes, at that
time, at the heads of the friths to drive them into the rivers, or
the one cause may have produced the other — the terror occa-
sioning the premature exercise of the instinctive functions.
Medical men say that terror frequently produces premature or
abortive effects. It seems to be when the rivers are in flood
that the foes of the salmon, from the seals to the sea-lice, are
busiest, for they then drive them into the rivers without ceas-
ing. Which of all these reasons — viz. the premature exercise
of their instinctive functions, the quality of the water, sea-lice,
or terror, is the true cause of the salmon entering the rivers,
naturalists only can determine, but we think the whole may be
justly termed the Hodge-Podge System.
The Doctor continues : —

" When a fish has advanced a considerable distance into the fresh-
water stream, instigated by its own natural instincts^ I should be in-
clined to think it would proceed to the place of its destination with-
out again returning till it had spaivned"

The Doctor first tells us that the length a salmon will go into
a river depends upon the degree of terror he experiences : — and
then he informs us, that after he has got a considerable way into

it, " INSTIGATED BY HIS OWN NATURAL INSTINCTS," he proceeds

to the place of his DESTINATION. But why should he suppose

SALMON-FISHERY OF SCOTLAND. 119

that, after salmon had entered a river at all, they would return
before they had reached the place of their destination ? Does
he think their " natural instincts" do not begin to operate till
they advance a "considerable distance" into the river? At
^uhat distance do their instincts commence to operate ? How
DID HE ASCERTAIN THE FACT, or that, after entering a river, they
do return to the sea ? Has he made any experiments to that
effect ? Did he tie a bladder to a salmon that had entered the
Tay, in order to trace his motions under water ? If he had
done this, we believe the salmon would have soon led him up
the river, au pas de charge, through briars and thorns, till he
saw his balloon fairly skimming the surface of Loch Tay ;

Monsieur 1'Abbe* ou allez vous ?
Vous allez vous casser le cou,
Vous allez sans chanclelle, &c.

French Song.

We have heard of a person who tied a goose to a salmon that
was caught a short way within a river, and returned into it ;
but, though the salmon often drew the goose under water, he
never attempted to return to the sea. That would be contrary
to his instincts. Probably it was some experiment of this sort
that enabled Johnstone and Halliday to trace the course of the
fish returning from the rivers through the expanse of the estu-
aries. If a goose was tied to each salmon, what a glorious fleet
of geese would be seen sailing down the friths, cackling, into the
repositories of the stake-net fishers, who, perched upon their
engines, and waving their hats with exultation, would welcome
their friends into port.

The idea that salmon, after having reached their river, return
again to the sea, before they have accomplished the objects
nature had in view in bringing them there, is equally inconsis-
tent with the principles of the migratory system as with common
sense. When the migratory tribes of birds reach their destin-
ation, they immediately disperse. In like manner, when the
salmon reach their rivers, the gregarious instinct which kept
them together in the sea being no longer necessary, having per-
formed its functions, ceases, and the fish disperse all over the
river. Their migratory voyage is then at an end. This may

120 SALMON-FISHERY OF SCOTLAND.

show the absurdity of supposing that salmon are constantly
running down from the rivers to the sea — for which there is
not a particle of proof.

The worthy Doctor calls the salmon a sea fish, because he
resides, during his migration, in the sea. On the same prin-
ciple, he might call a Highland stot, bred in Skye and fed in
Yorkshire, an English bullock. He, however, again admits, as
we shall see immediately, that salmon belong to the rivers ;
and if they belong to the rivers, how can they belong to the
sea, or be sea fishes ?

The Committee ask him, —

" Do you believe that the fish always return to the same rivers?"
— "Generally speaking," says he, "they may, perhaps, endeavour to
return j but there are many circumstances to derange their course,
so as in fact to render it impossible that they should return to the
river."

"But if they live, they are most likely to return to the river in
which they were bred?" — " Yes; if they live, and are not deranged
in their movements — conditions not likely ever to occur."

But why, Doctor, should they endeavour to return to the
rivers in which they were bred, unless an instinct has been
implanted in them for that purpose ? Your admission of the
endeavour implies an admission of the instinct ; and yet you,
a naturalist, can suppose that the instinct is inadequate for the
purpose for which it was intended ; which, in other words, is
to deny the principle of perfection in the works of the Deity.
This we would not expect from a son of the church. Being
further pushed on the point by the Committee, the Doctor
continues, —

" The fish, after they have left the river, seem to retire to the
remoter parts of the ocean — indeed, to parts with which we are wholly
unacquainted ; but we are in some measure acquainted with the
number of foes which unceasingly persecute them, and which must
necessarily mix the families, or tribes, BELONGING to the different
estuaries, and to the different rivers connected with those estuaries,
and as salmon are obviously gregarious animals, it seems difficult to
conceive how, after such intermixture and persecution, the different
BREEDS of fish, of the DIFFERENT RIVERS, could again separate from
the common flock, to collect into original groups.

SALMON-FISHERY OF SCOTLAND. 121

Here, then, is a direct admission of all that we have been
maintaining. The different BKEEDS belonging to the DIFFERENT
RIVERS is fairly acknowledged ; and it is for the Doctor to
show how there could be different breeds with promiscuous
intermixture, or if the fish did not keep separately in the sea,
and return to their respective rivers. If this was not the case,
no river could have a different breed, for all the breeds would
be mixed. The breed that would be in one river one year,
might be in another river, mixed with other breeds, the next.
The Doctor's argument is, therefore, at perfect variance with it-
self. It is, in fact, nonsense. Does he suppose, too, that Omni-
science, when he created grampusses and seals and salmon, did
not foresee the effects that would result from such persecution,
as he calls it — a persecution that is common to all the animal
race, on land and in water — and so regulate the instincts of the
salmon as to prevent the effects which the Doctor conceives must
arise from it ? The fact that the salmon DO return to their own
rivers, and that each river STILL continues to possess its own
peculiar variety of the species, shows that he is mistaken.

The Committee ask the Doctor, —

" Do you think that the fish of a particular river can be distin-
guished from the fish of other rivers?" — " I have heard experienced
fishermen make the assertion, and I have heard other experienced
fishermen give a flat contradiction to such a statement — so I have
much hesitation in admitting that they are readily distinguished."

If there are, as the Doctor has said, different breeds belonging
to different rivers, how does he suppose there can be different
breeds, if they cannot be distinguished from each other ? Can
there be a difference without a distinction ? If the different
breeds cannot be distinguished, is it not nonsense to say there
are different breeds ? Whatever ignorant fishermen might have
said, the Doctor should not advance an inconsistency. When
so logical a head admits a fact, it should not deny the conclusion
that must necessarily result from it.

The Committee farther ask, —

" Is it not a fact that salmon differ very much in form?" — " It
certainly is a fact that salmon do differ very considerably in point of
form from one another, as I have repeatedly witnessed by looking

122 SALMON-FISHEKY OP SCOTLAND.

at the fish taken at the same place, and collected together in a
boat."

" How do you account for individuals of the same species differing
in form1?" — "Precisely as individual differences are accounted for in
other species of animals. Salmon are exposed, in their young state,
to very different circumstances. Some are longer in the river after
having left their spawning-beds than others — and it may be supposed,
likewise, that during their residence in the sea they may have access
to different quantities and different qualities of food. In fact, the
ordinary circumstances that produce varieties in other individuals of
other species, I should think likely to exist and produce individual
differences in the salmon."

Having admitted that there are different BEEEDS belonging
to different rivers, we should think that it would be more con-
sonant with the Doctor's sagacity, and to common sense, to
impute the difference of form to that circumstance. If he saw
salmon of different shapes collected in a boat in the Tay, he
might have concluded that they were the fish of the Earne and
of the Tay itself, and its different branches or tributary streams,
which we suppose was the fact ; but to impute difference of
form to difference of feeding, was, of all reasons, the most
absurd. Difference of feeding may increase the size or improve
the condition of an animal ; but how can it alter its form or
shape I How could it make the whole of the salmon of one
river, uniformly, and year after year, round or hog-backed, and
others straight-backed? Would difference of feeding give a
dray-horse the symmetry of a race-horse, or a mastiff the shape
of a greyhound ? We would recommend to the Doctor to keep
this in view when he writes his next book on natural history.

The Committee ask the Doctor why he considers the grilse
to be the young salmon, and not a distinct variety of the
species ? and he answers, with his usual tone of science, —

' ' Fish are known to breed long before they arrive at maturity ;
and as a proof that they do, it may be. stated, that at the end of the
season the salmon caught in a state fit for spawning are by no means
of the same size ; if, then, we are to take size as an index of aye, we
must arrive at the conclusion that salmon spawn at different ages,
and before they have reached their full size."

We have all along thought that the Doctor's knowledge of

SALMON-FISHERY OF SCOTLAND. 123

salmon was merely theoretical, picked up in his closet and
from his conversations with his stake-net neighbours, and this
answer to the question of the Committee is quite enough of
itself to convince all the world of it. Who, that knows any-
thing of the salmon fishery, would consider size an index of
age, except with regard to fish of the same river ? — since the
salmon of one river will be larger in one year than the salmon
of another river will in ten. " A salmon of the Bush," says
Mr Little, " will never grow to the size of a Shannon fish, were
he to live to any age." In the same way, a young greyhound
will grow larger in one year than a terrier would in twenty,
were he to live so long, let the quantity or quality of his food,
which the Doctor supposes alone make a difference in animals,
be what it may.

The Doctor's ideas of spawning seem to be singular enough.
He thinks that in this respect the Tay should be taken as a
standard for all rivers : —

"I take the Tay," says he, "as a standard, because it is freed
from, anomalies — -being the river which pours the greatest quantity
of fresh water into the ocean, and it being the river which has pro-
duced the greatest quantity of salmon."

This is undoubtedly a very original idea — viz., of having a
standard river, to regulate the spawning in other rivers. We
only fear it will be somewhat difficult to make the salmon of
all the rivers understand the necessity of regulating their breed-
ing organs thereby ; — though perhaps the united wisdom of the
Doctor, Mr Home Drummond, and Mr Kennedy, may contrive,
with the aid of an Act of Parliament and new stake-net or other
ingenious machinery, some means of effecting it, and of altering
the natural constitution of the salmon race.

The Committee farther ask the Doctor, " whether an obvious
diminution must not take place in those rivers where there are
stake-nets in the estuaries ? " Here the interest of the Doctor's
dear stake-net friends was brought directly to the point, and he
accordingly replies : —

" If stake-nets catch salmon advancing directly to the rivers, they
must occasion a corresponding diminution in the river fisheries j but
such fish arc not caught in stake-nets."

124 SALMON-FISHERY OF SCOTLAND.

Upon what grounds could the Doctor take upon himself to
assert that the salmon taken in stake-nets were not advancing
to the rivers ? What facts can he adduce in support of his
opinion ? We defy him to produce one single fact from which
such a conclusion can be drawn. He has admitted that the
salmon retire to remote parts of the ocean : what, then, does he
suppose to be the object of their return but to reach the rivers ?
And does he, a naturalist, say that, when a shoal of these salmon
enter an estuary, they are not all actuated by the same instincts?
— Can he believe, without any proof, that different and contrary
instincts exist in the same race — or the same tribe or family
of animals ? for he has admitted that the salmon-shoals are
composed of the tribes or families belonging to the different
rivers ; and yet he thinks that the instinct of proceeding to
the rivers, after having come from such a distance, was only
implanted into some individuals of the shoal, and not into all.
If salmon proceeded to or were caught in the rivers only at the
spawning season, the Doctor would have some reason for the
assertion ; but he knows perfectly well that they are constantly
going to the rivers, and that from the beginning of the season
they are regularly taken there by the river fishers ; and, there-
fore, to divide the shoals into fish that would go to the rivers, and
fish that would not, or fish with and without instincts, or under
the influence of contrary instincts, is an evident absurdity. In
proceeding up the estuaries the fish do not go in a direct line
to the rivers ; they are sometimes in the channel, and some-
times not, according to the state of the tide. At low water they
must be in the channel, as the sides of the estuaries are then
dry, from the ebb of the tide ; but at flood-tide they proceed
in all parts of the estuaries, and it is then they are intercepted
by stake-nets. The Doctor says that 30,000 were caught
annually in the stake-nets of the Tay. These 30,000, there-
fore, in his opinion, came from the ocean, without the instinct
of proceeding to the rivers being implanted in a single one of
them, though all were equally charged with spawn as those
which proceeded to the rivers, for he says that not one of them
would be caught at the rivers. Why, we again ask, does he
suppose these 30,000 left their migratory abode in the remote

SALMON-FISHERY OF SCOTLAND. 125

parts of the ocean to which he has told us he believes they
retire ? Why did they come upon our coasts at all, if they had
no intention, or were impelled by no instinct, to proceed to the
rivers ? He ought to show us what their object was. It is evi-
dent that the Doctor fell into the stake-net error of considering
salmon as mere common fishes like haddocks, swimming about
the shores at random, and entering rivers as chance might
direct, for the purpose of breeding ; but then, how can he re-
concile this belief that they migrate to EEMOTE parts of the
ocean, and his admission that they consist of tribes, or different
breeds, or families belonging to the different rivers ? In point
of consistency, our naturalist is nowise better than the herd of
stake-net fishers.

The Doctor further states that the capture of these 30,000
salmon by the stake-nets, occasioned neither a decrease of the
price of salmon at market, nor a diminution of the produce of
the river fisheries. It is not easy to reconcile these two facts.
It is well known that the price of all articles at market depends
upon the increased or diminished supply. A very little reflec-
tion upon the subject might have satisfied the Doctor, that
there could not have been a real increase of so great a quantity
as 30,000 fish, or it must have occasioned a fall in the market-
price ; and he ought, therefore, as we said before, to have hesi-
tated before he threw the weight of his testimony, as a natural-
ist, into the scale of the stake-net fishers, particularly as the
vicinity of his residence to Perth gave him ample means of
ascertaining the truth. Had he been disposed to do this, Mr
Buist could have shown him, as he showed the Committee,
that the river fisheries fell off exactly in proportion to the
increase of the stake-nets, till at length they scarcely produced
a third of their usual quantity of fish, the other two-thirds
being intercepted by those engines ; and he could have ascer-
tained the accuracy of the fact by a personal inspection of the
books of the Dundee Shipping Company, by whose vessels the
fish of both parties were sent to market. We have therefore
nothing complimentary to say in favour of the Doctor's can-
dour, any more than of his knowledge of the salmon-fishery.
The stake-nets were no doubt, as we said before, very conve-

126 SALMON-FISHEBY OF SCOTLAND.

nient in the vicinity of the Manse ; but justice had also had
some claims on our naturalist, upon whose evidence, but for
his reputation as such, we would have bestowed very little
notice, considering it, as we do, full of ignorance regarding the
true nature both of the fish and the fishery.

Mr Little, being bred a stake-net fisher, and, in truth, the
father of the stake-net system, the bias of his mind lay natu-
rally that way ; but it is deserving of remark, that when these
engines were making their approaches to his own river, he
opposed them most stoutly by every legal means in his power.
He tells the Committee that if stake-nets are kept half a mile
from the mouth of a river they will do its fishery no harm ;
supposing, of course, that when a shoal of salmon return from
their migratory voyage and enter a frith, those which have the
stake-net instinct in them steer for the stake-net banks, and
the others for the rivers, so directly up the channel, that they
diverge neither to the right nor to the left till within half a,
mile of the river mouth — when, tired of their monotonous
course up the channel, or impelled by curiosity, they wander a
little out of the channel, so that, if this last half-mile be kept
free of machinery, it signifies not to the upper fisheries how
full the rest of the estuary may be of it, there being no risk of
the fish deviating from the channel till they come in view of
port — that is of the river, the very part, we should think, where
they would be most apt to keep the direct course ; and there-
fore, says Mr Little, no stake-net should be allowed within
that half mile. Nothing can be more conclusive than this
reasoning, though it is somewhat at variance with the terror-
argument of Dr Fleming, and with the lousy argument of the
stake-net fishers, which would lead us to suppose that the
salmon would then rush into the rivers at once.

Another witness examined in the Committee, a gentleman
also of scientific pretensions, Mr John Steavenson, of Fortrose,
tells us that salmon enter rivers just as the water happens to
be to their TASTE. He says, —

" Salmon are - extremely nice, and will only go into fresh water
when it is exactly to their taste. For example, the Ness, Ewe,
Shinn, and Thurso supply the earliest fish. The reason is plain.

SALMON-FISHERY OF SCOTLAND. 127

These rivers are discharged from the largest lakes in Scotland, and
consequently during the winter and early spring months send down
water purified of all its disagreeable qualities, and in a state liked
by the fish ; while the late rivers, running from a mossy country,
only commence to yield fish when the loch rivers above mentioned
are beginning to fail (that is, when their water begins to become
impure), indeed, when the seasons of some of them are terminated.
In the Ness the season commences on the 10th of December legally,
and the river immediately commences to give clean fish : they con-
tinue to increase in quantity till the first of March ; they then
decline gradually till the middle of May, and from that time till the
end of July scarcely a salmon is taken in the river."

The water of this river must be shockingly impure during
the summer months, when the water of other rivers is in its
purest state. If Dr Fleming's plan of restricting the fishing
season in all rivers to the summer months, that being the sea-
son when the engines of his friends fish best, were adopted, the
river Ness would not add many salmon to the common supply.
Mr Steavenson, however, as we said before, forgot to explain
why, if the purity of the water is what induces salmon to enter
the rivers at particular seasons, none enter them save their own
fish. — Yet he tells us that the seasons of the early rivers are
nearly over towards the month of March, which might show
him that each river has its own season, — that is, that the fish
of the different rivers are so constituted that they come to their
respective rivers at their allotted time ; the fish of some rivers
beginning to come in November — while others do not come
till March — and some not even till May. The salmon of the
Shinn, which is one of the rivers to which he alludes, begin to
come in November and December, through ice, and through
miles of the very impure water of several other rivers, all col-
lected in the common channel ; yet they push their way
through that impure water to their own river. It is not, as
we have before remarked, after the salmon have reached the
rivers, and have tasted the water, that the returning instinct
commences its operation. — It must come into action long before
then ; or, to speak in the Quaker style, the spirit must move
the fish of some rivers to quit their migratory abode in the

128 SALMON-FISHEBY OF SCOTLAND.

ocean months before those of other rivers begin to take their
departure. If this were not the case, the salmon of the late
rivers would be all collected en masse at the mouths of their
respective rivers, till the water became sufficiently pure, or to
their taste, to induce them to enter. The fish of all the rivers
come with regularity at their respective seasons, be the taste
or quality of the water what they may, — all proceeding, like
machines, obedient to their instincts : we observe the facts, and
that is all we can know of the matter.

Mr Steavenson farther states — (we, like to follow those scien-
tific gentlemen, there being always something new and particu-
larly edifying to be learnt from them) —

" I would wish to state, generally, that the fish taken in rivers are
always of finer or inferior quality according to the state the river is
in to receive them. When a river is in a state (that is, when the
water is exactly to their taste) to induce fish, we get them of much
finer quality than at a period when they do not enter so readily :
they are apparently better fed — in better health, and in every
respect superior fish."

This is a rare discovery. The feeding, and health, and
quality, and appearance of the fish depend, not upon the parts
they have come from, but upon the state of the water that is
to receive them. Cela est piquant ! It is no wonder if Mr
Steavenson was a favourite witness of the Committee.

" The nearer (continues this poetical salmon-fisher) salmon are
got to salt water, the finer is their quality ; so much so, that any
one versed in the state of salmon, would at once be able to pick out
from five hundred head of fish those that had been more than two or
three days in the river : indeed, I am not sure that I could not dis-
tinguish the fish which had been taken ONE MILE from the sea !"

Now, a salmon will run a mile in less than ten minutes or a
quarter of an hour. What an admirable coup d'ceil Mr Steaven-
son must have — qu'il a le nez fin ! Baron Munchaussen himself
could scarcely do more. Messrs Hogarth, Little, and Wilson —
all great salmon-fishers — declare that it would be impossible to
see any difference in a salmon that had been only a week in
fresh water ; but these men are mere drivellers compared with
this salmon-fishing Mattadore, who can perceive the difference

SALMON-FISHERY OF SCOTLAND. 129

which running a mile in fresh water would make in the
quality of the fish so clearly, that he could at once pick such a
salmon out of 500 head, even though he had entered a water that
was quite to his taste. We wonder how Mr Steavenson dis-
covered ce 'beau secret. We suspect he must have found it from
the old rascal of a seal who misled Mr Halliday — for the High-
landers believe that the fallen spirits have been sent into seals ;
and certainly it required something more than human — or,
as our neighbours would say, il fallait etre un peu plus que
diablc — to have made the discovery ; which, au reste, was much
of a piece with those of Messrs Johnstone and Co., relative to
the movements of the fish under water, as stated in the Com-
mittee.

Mr Steavenson further remarks, that there cannot be a doubt
that salmon spawn in the sea. Did the seal tell him this also?
Perhaps, being a great sportsman, he has met with some wild
ducks that build their nests in trees, while others make their
nests on the ground, and has sagely concluded from thence
that some salmon spawn in fresh waters, and others in the sea.
We hope, however, that Mr George Hogarth, who has immor-
talised himself by rearing fry in a bottle, will convince him
that he is mistaken ; for it were a pity that so great a
naturalist, and so accomplished a salmon-fisher, should con-
tinue in error : but such is the lot of poor human nature ; the
very greatest minds are sometimes mistaken.

The Committee, with their usual wisdom, further ask this
witness, —

" Do you consider it to be the habit of salmon to seek the rivers
during the summer months, or does any considerable proportion
remain in the sea T1

The proper answer to this question, we think, would be —
that salmon seek the rivers during the summer months is
proved by the fact that they are daily caught there by the
river fishers ; whether any considerable portion, or what pro-
portion, of them remain in the sea, it is impossible I can know.
But Mr Steavenson replies,

"I am rather of opinion that the greatest proportion of them
remain constantly in the sea."

I

130 SALMON-FISHERY OF SCOTLAND.

" Do you mean that they remain in the sea as matter of habit —
(0 sage Committee !) or from any cause obstructing their progress to
the river?" — "As matter of habit in most instances — (replies the
equally sage witness) — but in some cases, because the river which
they happen to visit is not in proper condition to receive them when
they visit it. It is not my doctrine that each fish has its own river.
If they meet with a river in a proper state to induce them to enter,
the probability is that many of them will enter the river ; but
finding the water in a disagreeable state, they will either pass on the
coast to another river, or they will leave the coast entirely, and
remain at sea. It is within my knowledge that very great quantities
have visited the mouths of many rivers I am acquainted with, and
after having remained there for a short period of time — days in some
instances, in others weeks, and I would almost venture to say
months — they have left the mouth of that river, and gone to sea
again, without having been seen ever more near it."

It is a pity the Committee did not put a few cross questions
to Mr Steavenson regarding these stationary fish, which
remained for months at the mouth of his river. They might,
for example, have asked him — How do you know that these
fish were stationary, and not passing fish proceeding to their
own rivers, and replaced by others on the same course, — fresh
salmon being then hourly coming on in constant succession, so
as to render it impossible to distinguish the one from the
other, in an element impervious to sight ? If they were in the
mouth of your river, why did you not run a net round them
and catch them ? If they were not near enough to do so, how
could you see them under water ? How could you know it was
the same fish ? It was not possible you could see them in deep
water, or trace their motions ; but, perhaps, you saw a fish leap
occasionally out of the water : now salmon, in a frith or in the
sea, never leap, except when proceeding on their course, and if
you should see one leap out. of the water to-day, and another
to-morrow, having no mark upon them, how could you know
it was the same fish, or that they were stationary, and not
passing fish ? Your whole tale relative to these stationary fish,
which you could not possibly know to have been stationary or
not, seems to us to rest on no evidence other than mere vague
conjecture, unsupported by a single fact; for what fact could

SALMON-FISHERY OF SCOTLAND. 131

you bring forward to show what passes under water, or that it
was the same fish, unless you had indeed some of Dr Fleming's
balloons tied to them? and then you might no doubt trace
their motions. Mr Steavenson, however, was not troubled
with any questions of the kind, being a stanch stake-net
fisher — whose evidence it would be by no means advisable to
demolish.

In taking a view of the proceedings of the Committee,
nothing strikes a man so much as the total absence, on the
part of both the chairman and the witnesses, of all knowledge
of the true nature, and instincts, and habits, and migratory
movements, of the fish ^n question. The witnesses, indeed,
could only answer such questions as were put to them ; and
they were in general so frivolous, and often so absurd, and
even ludicrous, that it excites wonder how wise men and
great legislators could put the like. We repeat, let • the
evidence of the stake-net fishers Johnstone and Halliday
only be looked at: the complacency with which the same
silly interrogatories are repeated every instant, to show off
their system in the most captivating light, in order to impose
upon the ignorant public ; for what could be more ridiculous
than to be constantly putting question upon question, which it
was impossible any man could answer, relative to the motions
of the fish in an element where no man, as we said before,
could trace them for five seconds together, —- and even about
their intentions ! Could anything be more farcical ?

But while this was going on, the most important point of the
whole, in so far as regards the public — viz. the obstruction and
DANGER to navigation from the engines in question, was slurred
over with very little notice. This point Mr Kennedy seems
to have cautiously avoided, having put only a few questions
on the subject to the stake-net fishers, whose answers, dictated
by their own interest, he was sure of. One of the witnesses
examined in the Committee had been prosecuted in a court of
law for directing an engine of great extent, carried across an
estuary (and which by overlapping another of almost equal
extent, carried out from the opposite side, so that a boat in
avoiding the one was thrown upon the other, thus rendering

132 SALMON-FISHERY OF SCOTLAND.

the navigation of the estuary so dangerous, that some of his
people, who had been driven upon it in the night by the force
of the tide, had nearly lost their lives), to be removed, without
any application to legal authority, which in that country was
so partial and corrupt, that any such application would have
been useless, while the danger was immediate and pressing ;
yet Mr Kennedy, while he introduced the prosecution, with
which (being a private matter) the public had no concern, in
order to throw discredit upon the evidence of the witness as a
river fisher and an enemy to stake-nets, which he himself so
ardently patronised, never once put a single question to him
for the purpose of explaining this jdanger — a circumstance
deserving of particular remark ; and when another witness,
Mr Sheppard, stated that, in the bay of Cork, a boat's crew, con-
sisting of eight men, had been DROWNED upon a similar engine,
instead of farther examination into so material a point, the
fact was suppressed in the proceedings, that it might not meet
the public eye.

It has been maintained by the stake-net owners that those
engines are useful to navigation. That they point out the
banks to large vessels, may be true, though a single stake, or
buoy, placed upon a bank, would serve the purpose equally
well ; * but no man will say that, if the coasts of the estuaries
and the sea were barricaded with engines, of perhaps a mile in
length, formed of strong stakes (and they must be necessarily
of great strength, to support such a weight of heavy net, and
to resist the action of the wind and tide), it would not prove
both a serious and dangerous obstruction to the navigation of
boats and small craft, by depriving them in stormy weather of
the shelter of the land, and forcing them to go round them at
the risk of being carried out to sea? Besides, at flood-tide
these engines are nearly level with the surface of the water,
and would not be observed by a strange boat till she came
upon them, when she would be upset or swamped. Even Mr

* In 1816 the sloop Speedwell of Aberdeen, laden with timber, was driven
upon a stake-net in the frith of Cromarty, and the stakes went through her
bottom — which was the cause of considerable dispute between the owners and
the underwriters.

SALMON-FISHERY OF SCOTLAND. 133

Halliday admits in the Committee that, " if the night is very
dark you cannot see the nets" Accordingly, in a dark night the
crew of the boat belonging to the witness we have mentioned,
had, as we said, been lost upon one of these engines in the frith
of Dornoch, clinging, after the boat was upset, to the stakes,
till they were relieved. We wonder what the Lord Mayor of
London would do if both sides of the Thames were covered
with machinery of this description ? He would no doubt order
its immediate demolition ; and are not the inhabitants in the
remote parts of the kingdom entitled to the same protection ?
Perhaps not.

The only question seems to be, whether they may remove
such dangerous nuisances viafacti, or must involve themselves
in endless litigation in the Courts of Law for that purpose.
Mr Chitty, a celebrated English Counsel, as appears in the
proceedings of the Committee, gave it as his opinion, that an
obstruction of a much less formidable and dangerous descrip-
tion, which deterred the fish from ascending, might be legally
removed by ANY person, as a public nuisance, without an
application to a Court of Law ; and Mr Saurin, late Attorney-
General in Ireland, gave an opinion to the same effect regarding
stake-nets, which was acted upon, and the engines demolished ;
but when the same thing, in one of the worst instances of the
kind, was done in Scotland, the party was immediately attacked
by all the satellites of the law, and fined, by a salmon-eating
jury (who expected that, under the stake-net system, they
would be saturated with salmon, and in whose eyes the LIVES
of the people were of much less value than their own gastric
functions), £100, with costs amounting to twice as much
more — the honest and learned Judge never once telling them
that an engine which was in itself illegal could not, upon the
clearest principles of the law, be made the subject of a legal
action ; because, in Scotland, the clearest principles of the law
are utterly disregarded when it is intended that an individual
should be oppressed, a mere pretext being always sufficient.*

* Nay, let me tell you, professionally, that the legality of the mode of fishing
practised by your friend Joshua is greatly doubted by our best lawyers ; and if
the stake-nets be actually an unlawful obstruction raised in the channel of the

134 SALMON-FISHEKY OF SCOTLAND.

Instead, however, of questioning the witness, as we have said,
on the points relative to the danger to the lieges from the
machinery in question, Mr Kennedy studiously avoided putting
a single question to him on the subject, but brought forward the
above action as a means of throwing discredit on his evidence,
as a river fisher, and an opposer of his favourite system ; and
another witness, a man who knew no more of salmon-fishing
than of naval tactics, and who was, besides, an inveterate
enemy of the witness in question, was brought up 600 miles
for the same purpose. This man, being asked, — " Did he con-
sider stake-nets to be injurious to navigation ? " answers, " No,
quite the reverse : " — " Did he ever hear of a boat or other vessel
being put to inconvenience or danger during their existence ? "
"Never in his life." "What was the breadth of the channel
left unobstructed where the stake-net was demolished in the
Dornoch frith T "I should think FULL A MILE." Now the
breadth, by measurement, was exactly fifty-two yards.

Such were the Committees under the unreformed regime. It
is, however, to be hoped that, under the auspices of his present
most excellent and patriotic Majesty, a different system will be
adopted in all the departments of the State, and, above all, that
the Augean stable, for it is truly such, of the Scotch law, will be
cleansed and purified by the Commissioners appointed for that
purpose.

estuary, an assembly who shall proceed, via facti, to pull down and destroy
them, would NOT, in the eye of the law, be deemed guilty of a riot. — Red-
gauntlet.

SECTION VIII.

CLOSE-TIME.

Let them alone : they be blind leaders of the blind. And if the blind lead the
blind, both shall fall into the ditch.— ST MATTHEW.

THE present Act of Parliament relative to close-time, generally
called Mr Home Drummond's Act, possesses one merit, namely,
that of rendering the prosecution of poachers more simple
and easy, which, in the present miserable state of chicanery and
expense in the Scotch courts of law, is undoubtedly no small
advantage ; but this single merit is unfortunately accompanied
by great destruction of private property, and by many absurd-
ities most injurious to the fishery itself.

We shall not inquire what right Parliament has to interfere
with the salmon-fishery any more than with any other species of
private property. That the public has an interest in the fish-
ery is granted : but has the public not an interest, and a much
greater interest too, in corn ? Why, then, does not Parliament
lay down regulations for corn farmers ? Why does it not enact
that they must all, from Caithness to Cornwall — be the differ-
ence of soil and climate what it may — commence and end
reaping their crops on the same day ? That would be too ridi-
culous ; every one would see at once the absurdity of it ; yet this
is the very thing that has been done relative to the salmon
rivers, by placing the early rivers and the late rivers on the
footing. The only difference between the cases is, that the
one is less palpable than the other, because it is less understood
and less visible to all ; but, in point of fact, there is no differ-
ence whatever between them. If it be said that the individual

136 SALMON-FISHERY OF SCOTLAND.

interest of the com farmer is a sufficient guarantee to the
public, the same argument applies, with equal force, to the
owner of a salmon river — that is, if his property were placed on
the same basis of legal security with other property.

By this new act, the fishery begins on the 1st of February,
and ends on the 14th September, in all the rivers in Scotland.
We here trace the effects of the stake-net theory, by which no
distinction is made between the early and late rivers, because,
as stake-nets fish only during the summer months, the owners
of these engines wished to bring the whole fishery as near their
own fishing season as possible ; and, accordingly, the candid
Dr Fleming recommended that it should be carried on only
from the 1st of May to the 1st of August. Neither this gentle-
man, nor the stake-net fishers, nor Messrs Drummond and
Kennedy, seem to know that the winter months, as we said
before, are as much the regular fishing season of the early rivers
as the summer months are of the late rivers, and that the fish
are then of by far the finest and richest quality ; if Messrs
Drummond and Kennedy do not know this, after all the fish-
ing knowledge they acquired in the Committee, it is a great
pity to see the whole salmon-fishery of Scotland at the mercy
of such ignorance : if they do know it, how will they justify
depriving the owners of the fishery and the public of so much
valuable fish? For, by this Act, the owners of the early
rivers, which the salmon enter clean from the sea during
the winter, dare not touch them — dare not, in a country the
" envy and admiration of all mankind," touch their own pro-
perty, until it becomes useless — that is, until after the 1st of
February, when the fish have lain so long in the fresh water
as to have grown lean and discoloured, and then, our wise legis-
lators tell them, they may kill them and send them to market.
In the Tweed, and all the English and Irish rivers, this is not
the case ; for the new fish may be taken still in those rivers in
their natural season, when they first make their appearance
from the sea. The market is shut to Scotland alone, as if that
degraded country were doomed by nature to be the victim of
injustice, from her legislators as well as her courts of law ; we
say degraded, because we cannot conceive greater degradation

SALMON-FISHERY OF SCOTLAND. 137

of mind, than to submit, from selfish motives of prudence, to
every injustice, without complaint, until apathy at length ends
in a general bouleversement. Mr Kennedy attempted to extend
the benefit of his act to Ireland, but the Irish members resisted
it manfully. They could not, they said, accede to so much in-
justice— to such destruction of private property, without any
advantage to the public ; so that the early rivers of that coun-
try escaped, while those of Scotland fell a sacrifice to the ignor-
ance and pretension of the Scotch members, who, with a
singular, but, we hope, not national, perversity, are always
forward when nobody wants their services, and backward when
the united voice of the country loudly calls upon them to
stand forth in her cause ; and to whom acts of spoliation and
injustice do not appear to have the same nauseous odour as to
the more honourable minds of the Emerald Isle.

They know little of the nature of the salmon-fishery who do
not understand that no injury can be inflicted upon a salmon
river in which the public does not largely participate. If the
owners of the 'rivers are prevented, by the interception of the
fish by stake-nets, from improving them, fewer fish will be
reared : if, by absurd and unjust acts, they are prevented from
catching them in their proper season, the public are deprived
of the finest part of the fish at a season when they are a luxury :
in every view the interest of the owners of the rivers and of
the public is inseparable. This great fishing truth, we repeat,
is utterly undeniable. If the different constitutions of the
rivers, as they were formed by Nature, be only attended to, it
will be found that, under a proper system, as we before ob-
served, a constant supply of fresh salmon might be obtained
to the public throughout the whole year, instead of the three
months recommended by Dr Fleming — one river ceasing to
produce her fish just as another commences. In some early
rivers, the new fish begin to come on early in November, in
others in December, and in many in January and February.
In those early rivers the fishery generally declines in April,
when the fish of the late rivers begin to make their appearance,
and in some of these they continue good till the middle or near
the end of October — thus forming, from the admirable system

138 SALMON-FISHERY OF SCOTLAND.

of Nature, a succession of clean fish from one river or other
during the whole year. Mr Sheppard states in the Committee,
that the rivers Carragh, Lee, Bush, Newport, Bunderouse, and
others, produce their new fish in November, December, and
January, and decline towards April, giving few fish after that
period ; while the late rivers, such as the great Baillisharmon
Eiver, the Earne, &c., do not begin to give fish till then ; and
Mr Little states that, in the Foyle, scarcely any are got till
June ; while, in the Shannon, the fishery, he says, is nearly
over by the middle of May. In the Scotch rivers it is exactly
the same. In the pamphlet published lately by Mr Eraser of
Dochnalurg, to which we have already alluded, it is said that a
greater weight of salmon used to be taken in the Ness previous
to the 1st of February — that is, during the time none are at
present permitted to be caught there — than during all the rest
of the season. In the rivers Thurso, Shinn, and others, the
salmon begin to enter in November, and the fishery almost
ceases in April : in the Linshadder more salmon have, previous
to the late Act, been caught in November, than during any
other three months in the year ; while, in an adjacent river,
few make their appearance till May. In other rivers, such as
the Spey, there are, as we formerly mentioned, both early and
late fish, because some of their branches, or tributary streams,
produce the one, and some the other, all of which go up the
common channel. In the early rivers the fish accordingly go
out of season, or become foul much sooner than in the late
rivers. In many early rivers they are unfit to be taken after
the end of July or the middle of August ; while, in some late
rivers they continue, as we said, good till after the middle of
October. Mr Little states that the fish of the Dee are nearly
a month earlier than those of the Nith, and are in bad condi-
tion nearly a month sooner ; the close-time, therefore, says he,
ought to be different in different rivers. Mr Buist states that
the Tay fish fall greatly off in August, while those of the Esk
continue good till the middle of October ; and Mr Leach ob-
serves that, in the river Camel, the fish are in the best condition
in October and November. All the most intelligent witnesses
accordingly recommend a close-time suited to each river, which

SALMON-FISHERY OF SCOTLAND. 139

every man who studies Nature must agree ought to be the case.
The Committee ask Mr Proudfoot, " Do you conceive that, in
general, one law as to close-time would answer all rivers ? " —
" I am far from that opinion." To the same question Mr Buist,
the most intelligent of all the witnesses, replies, " Most cer-
tainly NOT ; " and Mr Sheppard remarks, most justly, that it
would be the destruction of the fishery, since the proper close-
time for some rivers would comprehend nearly the whole fish-
ing season of other rivers. But Messrs Drummond and Ken-
nedy, steady to the stake-net principles, think that they can
force the salmon of the early and of the late rivers to spawn
at the same time ; that what nature made different they can
render uniform, and control Nature by an Act of Parliament !

And they accordingly fixed one general close-time for all
the rivers in Scotland, from the 14th September till the 1st
February. This we conceive to be the very essence of absurd-
ity. Formerly the fishery ended in many of the Scotch rivers
on the 26th of August, and even this was too late for the early
rivers by at least a month ; but, instead of fixing the close-time
of those rivers on the 1 st of August, the Act authorises the de-
struction of the fish — that is, of those which ought, unquestion-
ably, to be left for breeders — to the 14th of September; and this
addition of eighteen days to the period of destruction is called
lengthening the close-time ; — while, to make up for this, they
add to close-time the winter months, when no fish go up the
rivers to breed, for all the breeders of the season are then up,
the clean, or new run, fish which come on at that time being
all fish of the ensuing crop, which would not breed till the fol-
lowing autumn. The close-time is, therefore, thus curtailed, in
fact, eighteen days, at the very period when a single day added
to it would be of more importance than the whole winter
months put together, without any benefit whatever to the
fishery, except the saving of a few kelts, which might be other-
wise sufficiently protected, and which can be no equivalent for
the destruction of the fish, that ought to be reserved for breeders
during these eighteen days, or the loss of the winter fish to the
proprietors and the public.

To the owners of the fishery the injustice of the measure is

140 SALMON-FISHERY OF SCOTLAND.

too gross to require comment ; and we do not think it likely
that any great public measure which rests upon a basis of
injustice can be ultimately successful. Injustice is always
odious, whether it proceed from an individual, or from a body
of individuals :* from a Scotch court of law, or from the British
Parliament, or, in short, come from where it may. In the pre-
sent instance, instead of benefiting the public or the fishery, it
has a direct contrary effect, since it evidently injures both.
We therefore trust that, under the existing enlightened admin-
istration, in whose minds we believe honour — that rarity in
public men — prevails over the jobbing system by which the
country, to the disgrace of the age, has been so long governed,
and which has polluted all its institutions, particularly in Scot-
land, where public virtue seems to have been swept from the
face of the country (if, indeed, it ever existed in it), some pub-
lic-spirited individual in Parliament will move, at an early
period, for the repeal of the present Act, and get another,
founded in common sense, substituted in its room.

Why do our legislators suppose the Creator made early and
late rivers ? Was it that they should be put upon a footing ?
And does reptile man think he can alter the order established
by Him ? Every man of sense must see at once that the sys-
tem of Nature ought to be followed ? The only question is, how
is this to be done ? The grand evil in the salmon-fishery is
the multiplicity of fishings, which begets so many contending
interests, and makes each individual pursue a selfish system of
destruction incompatible with the improvement, on a great
scale, of the fishery. If anything could justify the violation
of private rights for the benefit of the public, the owners of
minor fishings should be made to sell their rights for a just
equivalent, in order to concentrate the fishery as much as pos-
sible. If a whole river belonged to one individual, he might
do with it as he liked. In such a river there should be
no close-time. The owner of it would take care to keep
it at all times full of breeding fish. He might make it
like a game preserve, in which immense quantities would be

* We think to commit downright injustice is ultra vires, as the lawyers say,
of any human tribunal.

SALMON-FISHERY OF SCOTLAND. 141

reared. He would restrict the fishery entirely to a few stations
near its mouth, and fish there constantly while clean fish
appeared, supplying the public with new fish as they came on,
even at the period the old fish were breeding in the upper parts
of the river, without the smallest injury to the fishery ; but a
single upper heritor, were his fishery not worth ,^5 a-year,
could put a stop to the whole plan. There are, accordingly,
no rivers in the kingdom at present under so complete a system
of improvement as those of the Duke of Sutherland in Suther-
landshire, under the able direction of Mr Loch, M.P. But this
cannot happen in rivers which belong to different proprietors,
and therefore a close-time seems absolutely necessary for such
rivers — that is, such a close-time as a majority of the proprie-
tors should consider best suited to each river ; it being always
understood, as we have already said, that the interest of the
owners of the rivers and of the public is necessarily the same —
viz. the production of as many fish as possible.

We believe that one of the reasons which influenced Mr
Drummond in establishing a general close-time for all the
rivers was, lest the salmon of one river might be smuggled to
market as coming from another. But what did it signify, if
the fish were clean, from what river they came ? And foul fish
never can be sent to market as clean fish, for their appearance
would betray them at once. The deception would be seen at
a glance ; — as well might a man attempt to sell a black horse
as being a grey one. In truth, no salesman would now venture
to present foul fish at market : and if the fish are salted or kip-
pered, we would defy any man to determine whether they were
killed a week before or after close-time, or, indeed, to bring
legal evidence to bear on the subject, since, as we said, salmon
are as foul in some rivers in August as they are in other rivers
in October. Besides, protection to one river can never be a
good reason for injustice to the owners of another ; and nothing
can be more grossly unjust than to deprive the owners of the
rivers Ness or Thurso of a great part of their properties, lest
foul fish from the Tay or Tweed should be sent to market as
coming from those rivers. If the Tay or Tweed are poached,
let the proprietors be at the expense of a greater establishment

142 SALMON-FISHERY OF SCOTLAND.

of river-keepers, and not look to the annihilation of other pro-
perties to save their own purses. Here we have a striking
example of Scotch principles of justice embodied into a British
Act of Parliament at the instance of Scotch members : — Mr
Home Druinmond, as a check on the poachers in the Tay and
Tweed, deprives the owners of the Thurso, Ness, and other
early rivers, of half their properties, and the public of the
finest fish.

In fact, very few foul fish have, at any period, been sent to
market from the Scotch rivers, except from those parts of the
Tay that are in the immediate neighbourhood of Perth. More,
we believe, have been sent from the Tweed alone than from all
the rivers in Scotland. It is in the remote parts of the rivers
that the greatest number of foul fish are destroyed, and these
parts are far from market. Nearly the whole is therefore salted
and consumed in the families of the poachers. In the rivers
which run through extensive mountainous tracts of sheep
pasture, the shepherds are particularly destructive of the breed-
ing fish. Lords of the wastes, they act as they please, for there is
no eye to see them. The men who are employed by them in
smearing their flocks are, accordingly, sent every night to kill
the breeding fish, as food for themselves during the smearing
operations, and many rivers are thus denuded of breeders. The
proprietor of a river in the north sent some river-keepers among
those worthies, but they could not procure a hut for shelter,
and were obliged to return, the shepherds informing them, that
their master had sent instructions, that if any of them should
give a night's lodging to a river-keeper they would be dis-
charged his service, which, on inquiry, was found to be
true. Yet this master of shepherds is a magistrate ;— a dis-
tributor si justice and an encourager of poaching — no rare thing
in a northern Scotch magistrate.

Many of the breeding streams belonging to the Scotch rivers
run through lands which are not the property of the owners of
the fishery, so that, unless the proprietors of the lands be forced
to allow shelter-huts to be erected for the river-keepers, upon
payment of a reasonable rent, it is evident that any enactments
of the legislature for the preservation of the breeding fish will

SALMON-FISHERY OF SCOTLAND. 143

prove, in such rivers, entirely nugatory. A clause to that effect
ought, therefore, to be introduced into any new act that may be
passed on the subject ; with power further to the owners of
the fisheries to remove any falls or rocks which may obstruct
the ascent of the fish. Such enactments would tend greatly to
the increase of the salmon in all the rivers, and could do no
injury whatever to the proprietors of the lands.

The fines in the present Act are greatly too low, and an ab-
surd power of mitigating them is vested in the magistrates. In
the ancient statutes, which contain many excellent regulations,
none of the fines are under ten pounds, which was equal to as
much sterling money of the present day. Scotch magistrates
have often the weakness to prefer popularity to honour and
duty. While the power of mitigating fines on illicit distillers
was left in their hands, illicit distillation held steadily its
course ; but when that power, which of all men a Scotch ma-
gistrate is the last it should be intrusted to, was withdrawn,
and the fines were raised to twenty pounds, an end was put at
once to the evil.

We are no great admirers of the punishment of fines and
imprisonment for all offences ; a little variety would be
better. To fine or imprison a poacher, is to visit the punish-
ment on his family as well as on himself, which is not just. It
would be better to make the carcase of the offender suffer for
his fault. A good sound whipping on a market-day would, at
the same time, be a salutary example to others. We recollect
an instance of a prosecution of some poachers before two worthy
magistrates — a worthy bailie, and a land-owner — when the fines
imposed were so ludicrously trifling, that the poachers speared
the fish again before they reached home. Had they been laid
up a week with sore backs this would not have been the case.

We can, indeed, see no good reason why the stealing a salmon
out of a river should not be declared theft, and punished as such,
as well as the stealing of any other article. No man can deny
a breeding fish, as we said before, to be infinitely a greater loss,
both to the owners of the river and the public, than stealing a
sheep off a common, or a pig out of its sty ; yet the one is a
capital offence, while the other is considered a mere trifle. It

144 SALMON-FISHERY OF SCOTLAND.

would be considered as a great hardship by farmers to be ob-
liged to keep an expensive establishment of servants to prevent
their corn from being stolen off their fields in the night ; nor
would trifling fines on the depredators prove any protection
against such an evil. And it is the same with the owners of
the rivers. These proprietors are unprotected, because the laws
are inefficient, and the public participates largely in their loss.

There is one clause in those ancient statutes which directs
that magistrates who fail in their duty should themselves be
severely fined ; and we believe that, during the time of one of
the Jameses, a Lord of Session, whose decisions were reversed
three times, was declared unfit for the office. The principle
was founded in excellent sense. If judges judge often errone-
ously from incapacity, they are unfit for their office : if they
do so from corruption of heart, or, what is nearly the same,
from apathy or negligence, they are equally unfit. It is right
that proper respect should be paid to the judgment-seat ; but
in Scotland this is carried a great deal too far. The judges are
not the servants, but the LORDS, of the community, WHOSE
WILL is LAW, and who dispose of property, without a particle
of responsibility. If Scotland had a manly, independent, and
free press, the system could not have lasted so long ; but no
country on earth, as we said before, is less indebted to its press,
and so it fares — for there is no other country more ridden and
oppressed.

In Ireland, where the true nature of the salmon-fishery ap-
pears to be much better understood than by our Kennedys and
our Drummonds, and where the salmon are consequently much
more plentiful, the owners of rivers are not prevented from tak-
ing the new or clean fish when they come on from the sea,
even during close-time, though the breeding fish are then pro-
tected in the upper parts of the rivers. This is as it should
be, for the owners of the rivers have thus the full and natural
use of their properties, which no legislature has a right to de-
prive them of, — all that is wanted from the legislature being
mere protection. Thus Mr Sheppard states in the Committee, —

" The close-time is only applicable to persons not proprietors of

SALMON-FISHERY OF SCOTLAND. 145

the fishery. — The proprietors, by the existing Acts, are allowed the
power of protecting the spawning salmon, and taking new fish when
they offer."

"What then," the Committee ask, "is there to prevent a net
catching fish in an improper state ? " — " The interest of the pro-
prietor."

" You say, you try for new fish in December *? " — "Yes."

"And the fish are then coming up the river for spawning ?" —
" They are up the river a long way then, i.e. the spawning fish."

Here the Committee fell into the common mistake of con-
founding the fish of different seasons, for there are no fish com-
ing up then to spawn, — the new fish which enter clean from
the sea in the winter months, with small roes, being, as we said
before, all fish of the ensuing crop or season, while those that
are up the rivers belong to the last crop, or bygone season. The
former would, of course, not spawn at the same time with the
latter, which are then up the rivers spawning ; but if not
killed they would spawn during the ensuing autumn with the
fish of the season to which they belong. Mr Little has fallen
into the same error, when he considers these winter salmon as
barren fish, not making the proper distinction between the fish
of the two seasons, and confounding, as we have said, the fish
of the incoming season with those of the past one.

Mr Sheppard farther states that —

" In the year 1774, a Bill was introduced into the Irish House of
Commons, having for its object a general fence or close-time and
weekly close-time, such as the two clauses now complained of, and
the proprietors of the fisheries memorialised his Majesty on the sub-
ject, and he referred it to the Attorney and Solicitor General Thur-
low and Wedderburn, who, after hearing evidence, expunged the
clause, declaring that a general close-time was inapplicable, as a vast
difference existed as to the periods of time at which new fish
ascended the rivers — and that the clauses would be destructive of
private property, and do no public good."

And it is this very obnoxious measure, condemned after
hearing evidence, by such men as Lords Thurlow and Lough-
borough, which Messrs Drummond and Kennedy have, from
a most erroneous notion of their own superior fishing know-
ledge, forced upon the owners of the Scotch salmon rivers ; as

K

146 SALMON-FISHERY OF SCOTLAND.

if the nature of the salmon in Scotland were different from
that of those in Ireland. It ought to be always kept in view,
that the regulation of close-time, and the suppression of poach-
ing, are two quite different things. The close-time which
existed previous to the present Act in Scotland has been
observed these four hundred years, during the period the
salmon-fishery was in its most flourishing state. The present
proprietors made no application to Parliament to have it
altered. The alteration has been made most unnecessarily by
Messrs Drummond and Kennedy, and has been made greatly
to the injury of the fishery, of its owners, and the public : all
that was wanted by the proprietors being, as we have said,
mere protection against poachers ; and to this our legislators
ought to have restricted themselves, if the legislative mania
would have allowed them to do so, on points which they did
not understand.

SECTION IX.

TROUTS — WITH REFERENCE TO THE SALMON-FISHERY.

Des hommes sans loi, et sans regie certaine, faisant tout par leur volonte et par
leur CAPRICE. MONTESQUIEU.

THE trout is classed by Linnaeus as a species of the genus
Salmo : and as each salmon river has its own peculiar breed of
salmon, so has each river, and stream, and lake, in which
trouts are bred, its own variety of trout. If strangers to the
salmon-fishery wonder that each salmon river should have a
distinct variety of salmon, or each herring loch or bank, where
herrings are bred, a distinct variety of the herring species,
their wonder or scepticism must, we think, cease, when they
find that even each trout stream, and river, and lake, not
only in Great Britain, but, as Sir H. Davy remarks, in Europe,
and, we doubt not, in the world, which are so infinitely greater
in number than the salmon rivers, possesses a different breed
of trout, varying from each other in size, shape, colour, quality,
and flavour, and weighing, from the little trout in the streamlet
to the great lake trout, as Sir H. Davy states, from less than
half an ounce to sixty pounds — so boundless, as we before
remarked, are the varieties in the works of Nature.

The quantities of trout produced in the Tweed, and in many
of the Scotch rivers, particularly the Spey, are very great. In
the river Ness many weigh from ten to fifteen pounds and
trout have been caught in the river Shinn, in Sutherlandshire,
which weighed thirty pounds. Some of these large trouts can
only be distinguished from salmon by experienced fishermen.
Formerly, when salmon were sold at a penny and three half-

148 SALMON -FISHERY OF SCOTLAND.

pence per pound, the trouts, in general, were considered of no
great value, and in many rivers were given by the owners of
the salmon-fishing as a perquisite to their fishermen, whose
wages were less in consequence ; but since salmon have been
sent in ice to London, the trouts are packed in the boxes with
them, and in many rivers form now a considerable item in the
produce of the salmon-fishery.*

A question has lately arisen in the Court of Session relative
to the right to these trouts in the salmon rivers, the proprietors
of the adjacent lands claiming them as a natural pertinent of
their lands ; while the owners of the salmon-fisheries maintain,
with somewhat more reason, that they are, on the contrary, a
natural pertinent of the salmon-fishery, and have ever been
possessed as such in all the salmon rivers in Scotland. The
question, like every other relating to the salmon-fishery, is not
without its importance to the public, as well as to the indivi-
duals concerned, from its tendency to add an additional ob-
struction to the improvement of the fishery, since, if it is diffi-
cult to prevent poaching even at present, when every person
who is found prowling about a river is liable to a fine, by Mr
Home Drummond's Act, how much more difficult would it be
if a trout-rod were a sufficient passport to all poachers 1

The destruction of young salmon by trout anglers is well
described in the Committee.

Mr Little is asked —

" Do you consider that the destruction of salmon-fry by anglers
is so great as to occasion any serious injury to the fishery?" — " I do
think it is. There is an immense quantity taken out of the different
rivers by anglers, in a state out of which they would be certain to
grow to perfection. I have known even boys and children go and
kill, in the course of an afternoon, twenty, thirty, and forty dozen.
I have known one man kill thirty-five dozen in an afternoon ; and if
you take twenty or thirty in a day of those anglers, what an
mmense number it comes to !"

Wilson —

" I have seen, from my own window, upwards of seventy or

May 13, 1831, reached Billingsgate, from the river Spey, seventy boxes
iced fish, whereof thirty were trout, the take of three days, which sold for one
hundred and forty pounds.

SALMON-FISHERY OF SCOTLAND. 149

eiyhty people angling within the distance of half a mile on the
Tweed."

Proudfoot —

" There are a great many anglers who get liberty from gentlemen
to go and fish — half-pay officers and others — who kill the salmon ;
but the greater number are of the lower orders. They say they have
a right, by the law of Scotland, to kill trouts. I know some of those
fellows who go about with rods in the daytime and observe where
the fish lie, and come again in the night with nets and carry them
away. This I know to be a fact"

The Committee ask Mr Little : —

" Do you know that poachers make angling a pretence for observ-
ing where the spawning fish are lying on the fords, in order to kill
them during the night ?" — " I know that is frequently done. I have
been told it by the people who practised it, and who afterwards
engaged with us as keepers. We find that poachers make the best
water-keepers. They tell me that it is the universal practice to go
during the day and find where the fish are, and return during the
night and kill them."

Before, then, a right which exposes the rivers to such abuses,
and which must prove so detrimental to the salmon-fishery of
the country, be established in law, it ought to rest on very
CLEAK grounds indeed. When the amusement of angling is
granted as a matter of courtesy — and it is seldom refused to
respectable persons — it is not often abused ; but if claimed as a
right, there would be no check on its abuse, except by a con-
stant recurrence to the courts of law, which, as law is at pre-
sent administered in this country, is of itself an evil of no
little magnitude. It is, therefore, a claim so destructive in its
effects, that it ought to be resisted by the owners of the salmon-
fishery to the uttermost. We may perhaps be told that the
Scotch land-owners are too liberal-minded, too generous, too
liigh-souled, to permit such abuses on their properties. No
doubt they are so. They would give themselves a great deal
of trouble, put themselves to a great deal of expense, prosecute
even their own tenants, where they had no interest in the
matter, or were on bad terms with the owner of the salmon-
fishery, to preserve HIS property. They would never kill the

150 SALMON-FISHERY OF SCOTLAND.

salmon themselves by stealth even when heavy in spawn, for
their amusement, or bribe the river-keepers to allow them and
their friends to do so ; and if a poacher sent them a present of
stolen fish, they would not receive it ; but these generous,
high-souled, disinterested gentlemen, the very pinks of the
Scotch magistracy, and of the Hidalgo race in the North, may
be occasionally absent from the country, or too much engaged
in their own affairs, to attend to the interest of others, and
then the rivers would be left to their fate. The best protec-
tion of the fishery is to prevent the means of its abuse. Even
the amusement of the land owners themselves would be pro-
moted by it ; for though a proprietor might be able to preserve
his own side of a river, as all the pools are accessible from the
opposite bank, he would not be a bit the better for it ; whereas,
under the general check of the owners of the salmon-fishery,
none would be allowed to approach the river but persons of
respectability.

It being, therefore, as we have said, a matter of considerable
importance to the individual owners of the fishery, as well as
to the salmon-fishery itself, as regards the public, all over Scot-
land, which depends so much on the protection of the rivers,
to shut out as much as possible all access to poaching under a
general system of trout-angling, we shall take a glance at the
rights of parties as regards the law on the subject.

We have already remarked, that it is admitted by all lawyers
that the first principle of the feudal law is, that the Sovereign
is the original proprietor of all the lands and rivers in the
kingdom, which, like any other proprietor to which the whole
might belong, he might parcel out as he pleased. He might
give a land estate to one man, the adjacent river to another,
and the salmon-fishery of the river, if he chose, to a third, each
having a right just to what he got, and no more. All this, we
believe, no lawyer will dispute. It follows, then, that when a
land estate has been granted, the grantee has a right to all that
is within the bounds of the estate or grant, but nothing further :
he can acquire no right beyond that, save by prescription. If
the estate be bounded by a river, the water edge is necessarily
the march. There the lands end, and with the lands his right.

SALMON-FISHERY OF SCOTLAND. 151

To say that the lands on each side may claim half the river, as
if they met in the middle of it, can rest on no principle, for the
whole of the river continues the property of the Sovereign, or
of the person to whom the Sovereign may have granted it ; but
if the rivers belonged to the lands, the Sovereign could not, in
any instance, grant a river, for in NO instance could he have a
river to grant ; yet we know that in many instances the Sove-
reign has granted the rivers together with their salmon-fishery,
distinct from the lands, with which, in law, they are considered
to have no connection. The only right, then, of any kind,
which the owner of the lands can claim in a river beyond the
bounds of his grant, must be as a servitude, founded on pre-
scription, as before remarked.

The right of the Sovereign to the trouts, as well as to the
salmon, in those rivers, is beyond dispute ; since, if all the
lands and all the rivers originally belonged to him, all that
was upon the lands and all that was in the rivers must have
necessarily belonged to him also, according to the usual law of
property. Lawyers no doubt tell us that salmon are inter
regalia, and trouts not. They may just as well tell us that
the whole kingdom is inter regalia, since all the lands and
rivers of which it is composed are supposed to belong to the
Crown, as well as the salmon. Why salmon should be specially
considered inter regalia we leave to those to explain who can
unravel legal inconsistency. We think it likely the salmon
were looked upon in those days as SEA fishes, which, only
visited rivers occasionally, and that it was in that view they
were considered, with the sturgeon and whale, to be inter regalia,
without which they might be killed in the sea without a Crown
grant ; but this does not in the least affect the argument, or
rather the principle, that, as owner of the rivers, the Crown had
a right to the trouts in them, just as much as the owner of a
land estate has a right to the nettles on the land as well as to
the wheat, or to the shrubs as well as to the trees, that grow
upon it. The right is founded upon a principle of property
which is utterly unassailable.

The question then arises, To whom has the Crown given the
right of these trouts ? The owners of the land say, The trouts,

152 SALMON-FISHERY OF SCOTLAND.

not only in the streams within the bounds of our grants, but
also in the rivers beyond the bounds of our grants, belong so
naturally to the land, like the grass which grows upon it, that
the one follows the other as a matter of course ; besides, the
Crown has granted to us the trouts in all adjacent rivers, let
them belong to whom they may, by the words piscationibus et
pertinentibus in our titles ; and, moreover, trouts are res nullius,
which belong to nobody : see upon what a firm and consistent
footing our right stands ! The owners of the salmon-fishery,
on the other hand, say, The Crown has granted to us the trouts
with the rivers, or as a part and pertinent of the salmon-fishery,
of which they are undoubtedly a more NATUEAL pertinent than
of your land ; and as we have possessed them, as such, for time
immemorial, our right to them is indisputable. Such, we un-
derstand, are the arguments or grounds of right of both parties ;
but we must follow them more into detail.

First. — As to trouts being a natural pertinent of land, we
think we need scarcely say much about the matter, since it
speaks for itself. We may perhaps be next told, that partridges
are a natural pertinent of water. " Fishes of any kind," says
Stair, "cannot be considered as annexis oiconnexis of land, having
so little connection with land." The right of a man to the trouts
in the streams on his estate arises, not because fishes are a na-
tural pertinent of lands, which is nonsense, in any way in which it
is taken, but because they are upon his property. Besides, who
else could claim them ? Thus, a man has a right to the trouts
in a pond — not because the trouts in the pond are pertinent of
the adjacent land, but because the pond belongs to him ; and,
on the same principle, he has a right to the trouts in his
streams.* The streams belong to him, and consequently the
trouts in them. But this is very different from the trouts in
rivers beyond the bounds of his lands or grant, though the Court
of Session seem to have blended both together. Such rivers do

* Lawyers tell us that the game upon a man's estate does not belong to him,
but that he may prevent others from committing a trespass upon his ground.
Of what use is all this tortuosity ? Would it not be more simple to say at once,
the game belongs to the owner of the estate while it continues upon his pro-
perty 1 His right to the trouts is stronger, because they do not leave the
streams upon his estate.

SALMON-FISHERY OF SCOTLAND. 153

not belong to him : they are separate property of the Crown
or of the Crown's other grantees ; and in no instance can the
produce of one property, be it of what kind or description it
may, be claimed as a natural pertinent of another property, —
a rule which we hold to be without exception. There is not,
in short, a single argument of common sense to support the
absurd assertion that trouts are a natural pertinent of lands.

Next, with regard to the second point of the landowners,
that not only the trouts in the streams upon their estates, but
also in the salmon rivers adjacent to, though beyond the bounds
of their estates or grants, have been conveyed to them by the
Crown, in the words piscationibus et pertinentibus (which they
conceive have a more imposing sound than the words " fishings"
and pertinents), the first question that arises is, what is meant
by this general expression of " fishings," which includes salmon
and fish of every description, and which can, therefore, be only
explained by the possession? The trout lawyers say it can
mean only trouts, because salmon require a special grant. But
if the word invariably means trouts, and trouts only, and was,
as they say, intended to convey a special right to such, even
without possession, was it not as easy to say trouts at once,
instead of the general word "fishings?" Suppose the estate
was situated on the sea-coast, where there are no trouts ? Still,
they tell us it means trouts : where there are none 1 Yes. And
why not haddocks, which, if the Crown can, as they say, grant
what is res nullius, may be meant as well as trouts 1 After all,
the explanation of the word must depend, as we have said, on
the possession ; so that, per se, it can convey no right to any one
kind of fish more than another, and to say that the word alone
conveys the trouts specially in all the adjacent rivers, is an
absurdity. The truth is, that the words piscationibus et per-
tinentibus are mere verbiage or words of style introduced into
all titles, and which are of no earthly use, except as a title for
prescription. This is so notoriously known that it is useless to
deny it. But, granting that the expression really means trouts
and nothing else, which no man could discover from the words
themselves, still it can only mean the trouts in the streams and
lakes upon the property, and nothing further. The titles, for

154 SALMON-FISHEKY OF SCOTLAND.

exinaple, convey " the lands and estate of , with houses,

biggings, muirs, mosses, woods, fishings, grazings, parts and
pertinents," that is, the lands and estate, with the houses, muirs,
mosses and woods upon the estate. The words are mere unne-
cessary tautology, which make a sort of parade in legal jargon,
and convey nothing which a right to the estate would not itself
carry. No man would be so absurd as to say that the " houses,
muirs, and woods," mean woods, muirs, and houses upon other
properties ; and it would be just as absurd to maintain that any
one word in the clause has a more extended meaning than the
rest ; or that while all the other words of the clause were con-
fined within the bounds of the estate, such word ought to extend
beyond the bounds of the estate, even if unsupported by any
possession. If constructions were put on words contrary to
common sense, there would be no end to the confusion in which
rights would be involved. This construction of the word pisca-
tionibus, as meaning the fish in the streams that are within the
bounds of the grant, is confirmed by the institutional writers
on the Scotch law. Thus, according to

Stair—

" Cum aucupationibus^'scafo'o^'te, SIGNIFY privilege to kill fowls,
fishes, and wild beasts ON THE FIAR'S OWN GROUND."

Bankton —

"The proprietor of the ground may no doubt fowl and fish

THEREON."

Erskine —

" The right of hunting, fishing, and fowling WITHIN ONE'S OWN
GROUND, naturally arises from one's right of PROPERTY therein."

Pertinents, again, are, in every instance, regulated by the pos-
session. Indeed it would be an utter impossibility, in any case,
to know what sort of a pertinent was meant under the general
word pertinents, or to discover the undescribed pertinent, if any
such there was, much more to establish a right to it, save by
the possession. The word may, as we said, be used as a title
for prescription, but in any other view it is absolutely useless.
Accordingly, we believe there is not a single instance on record

SALMON-FISHEEY OF SCOTLAND. 155

of a claim of pertinent being established save by the possession.
It is a rule which admits of no exception.

Thirdly. — With regard to the assertion that trouts are res
nullius, and trout-fishing consequently a common law right
which all might exercise, it is evidently in direct contradiction
to the other pleas of the landowners ; for if trouts are res nullius,
they could not be a natural pertinent of their lands, nor could
the Crown have granted what did not belong to itself ; but, as
we said before, if the rivers belonged to the Crown, the trouts
in the rivers must have belonged to the Crown also, and could
not therefore be res nullius, for it would be contrary to all prin-
ciple to say that the produce of any property can be res nullius,
since, from the very nature of property, its produce must belong
to its owner. We would like, too, to see the law which declares
trouts to be res nullius. Where is it to be found ? Let it be
produced. Assertions are nothing. Any man may assert what
he pleases to be law, but let the grounds for asserting it is law
be shown. Let the precedent appear upon which it is founded.
But the landowners, while they make this assertion to aid their
claims, admit that the trouts belong originally to the Crown,
for their principal argument is founded upon that principle,
the res nullius, or common law right, being only brought in as
an accessory thereto. Accordingly, they assure us that the right
is a good heritable right as can be, flowing, as all heritable
rights do, from the Crown, as a pertinent of the land, while the
owner of this heritable right stands upon terra firma ; but if
he steps into a boat, this sam'e heritable right immediately
becomes a personal common law right, changing its character
just as he changed his position : a sort of mongrel, demi-herit-
able, demi-personal, hermaphrodite right, of recent discovery
among the magi of the Parliament House. Such are the in-
consequences which too much ingenuity often leads to : it over-
does itself.

We have been trying to discover the grounds which gave
rise to the vague notion which seems to be floating, like a
dream, among the mists in the craniums of some lawyers, that
trouts are res nullius, but could only trace it to a random
expression of Stair, that " white fish, as cods, trouts, perch, &c.,

156 SALMON-FISHERY OF SCOTLAND.

are common to mankind ; " but Stair was in error, for trout
and perch are not white fish, as cod, haddocks, &c. That sea
fishes, which are produced in an element which belongs to
none, should be considered as common to all, we can readily
understand ; but if the rivers were the property of the Crown,
all they contained, as was said before, must also have belonged
to the Crown. Perhaps Stair, not adverting to this principle,
was somewhat at a loss how to dispose of the trouts, and
accordingly, most un-Linna3us-like, threw them into the sea or
white fish res nullius squad, which random act our lawyers of
course consider as law, equal to an Act of Parliament. But
an expression even of Stair cannot defeat a principle. Stair,
however, made the amende honorable on the point in question,
by admitting that a right to trouts might be acquired by pre-
scription, which we scarcely think he would allow with regard
to haddocks, or anything that was truly res nullius ; but his
random expression has afforded a pretext, which is quite
enough to set all the mouths in the Parliament House a-bark-
ing. It is, at any rate, clear he did not consider trouts a
natural pertinent of lands. Every one of the grounds, then,
upon which the owners of lands rest their claim to trouts in
salmon rivers adjacent to their estates, it thus appears, is un-
tenable. They all, when investigated, slip from under their
feet, without leaving as much as is worth the tail of a trout
behind. Their claim has not, in fact, a foot to stand upon,
except on the point of prescription alone, which they leave
entirely out of their case.

It is amusing to follow the logical train of their arguments
on the subject. For example — all the lands and rivers belong
originally to the Crown, ergo the trouts in the rivers belong to
the Crown also. But trouts are not, like salmon, inter regalia;
ergo trouts do NOT belong to the Crown, But the Crown has
granted a right to the trouts by the words " piscationibus et
pertinentibus ;" ergo, trouts DO belong to the Crown. But
trouts are res nullius; ergo, trouts do NOT belong to the Crown.
But trouts are only res nullius when fished for from a boat ;
ergo, when the fisher stands on land they are NOT res nullius,
but a pertinent of land, or heritable property. But the same

SALMON-FISHERY OF SCOTLAND. 157

right cannot, in any circumstances, be both an heritable and
personal right ; ergo, the right is not a legal right, or a right
acknowledged in law. But the right combines two rights
which, separately, are legal rights ; ergo, they are legal when
joined, upon the principle that two blacks make a white, or
two bad arguments one good one. But the trouts have been
possessed by the salmon-fishers as a pertinent of the salmon-
fishery, and as all pertinents are regulated by the possession,
their right cannot be set aside until the law be altered. But
a judge in Scotland can make new law, and he has ruled, that
fishes, like trees, are so NATUEAL a pertinent of lands, that no
possession is at all necessary ; ergo, the possession of the
salmon-fishers goes for NOTHING, and you are a dunce. The
logic is doubtless quite conclusive and unanswerable.

Let us now take a look at the other side of the question.
Where a river itself has been granted by the Crown in pro-
perty, together with the salmon- fishery, there can be no doubt
of the grantee having a right to the whole fishes in the river,
on the principle we have already stated, that a right to pro-
perty carries a right to all that is contained in it, just as a
grant of land carries a right to all that is upon it ; nor is it
more necessary to specify the trouts in the river than the trees
or woods on the land. Where the Crown has granted, not the
river itself, but the salmon-fishings of the river with pertinents,
it may become a question between the grantee of the salmon-
fishery and the Crown to which of them the trouts belong ;
but the matter is wholly jus tertii to the owner of the lands,
who can show no right to interference in the matter. In this
case, the owner of the salmon-fishery claims the trouts on two
grounds ; first, as being included in his general grant of salmon-
fishing ; and next, as having been always possessed as part and
pertinent thereof. We shall make a few remarks on each of
these grounds separately.

First. — A general grant of the salmon-fishings of a river
must be held to include all the varieties of the salmo species in
the river, and the trouts, some of which, particularly the bull
trout, Salmo eriox, weigh more than 30 lb., are all classed by
Linmeus, who is the best authority on the subject, as mere

158 SALMON-FISHEEY OF SCOTLAND.

species of the salmo family. Omne magus continet in se minus.
There is no restriction in the grant to the Salmo solar, or com-
mon salmon ; on the contrary, the grant is as general as words
can make it. If it were limited to the Salmo solar, it might
be contended that the grilse was not included, for it has never
yet been legally proved that the grilse is the young salmon,
which Mr Little and other experienced fishers deny; while
Sir H. Davy, who was a naturalist as well as an angler, main-
tains that the trout called the whiteling, or fimiock, is the young
salmon. If, then, the general grant does not include all the
species of the genus, and all the varieties of the species, which
of them does it include ? Does it include the grilse ? or the
finnock ? If the finnock is, as Sir H. Davy states, the young
Salmo solar, how can it be excluded ? Or how be a pertinent
of land ? Or how could its destruction amid the other trouts
be prevented, if the landowners were to get a right to the
trouts ? Besides, if, under the general terms of the grant, the
whole species and varieties of the salmo family in the rivers
have, as is the case, been possessed for time immemorial by the
salinon-fishers, is not that sufficient in law to establish their
right to them? We do not see how, after such possession,
they can be deprived of them ; nor, until it be clearly estab-
lished, by proof, which of these fishes become the Salmo solar
(if to the Salmo solar the grant shall be restricted), and which
of them continue trouts (which it will be no easy matter to
ascertain), do we see how any of them can be excluded from
the general terms of the grant ; nor what title the owners of
the lands have to contest the point, it being a question entirely
between the owners of the salmon-fishery and the Crown.

Secondly. — But, exclusive of the argument, that the general
grant includes all the species and varieties of the salm,o, the
salmon-fishers claim the trouts as part and pertinent of the
salmon-fishery, under the word pertinents in their grants ; and
if they have been possessed, as above stated, by them, for time
immemorial, in all the salmon-fisheries in. Scotland, both on the
coasts and in the rivers, we do not see, we repeat, how such
possession can be got over, since in all other cases of pertinent,
prescription is conclusive on the subject. The whole case, there-

SALMON-FISHERY OF SCOTLAND. 159

fore, on both sides, on this point, that is, as part or pertinent,
depends upon the possession or prescription ; but it is clear,
that the same subject cannot be part and pertinent of loth the
lands and the salmon-fishings.

There has been only one case, we believe, tried on the sub-
ject, in the Court of Session, previous to the present time,
namely, the case of Stirling v. Colquhoun, from the river Leven,
about half a century ago ; and it appears to have been so slightly
and so imperfectly gone into, that it cannot be justly deemed a
precedent, whereby all future cases should be regulated. If we
look to the sentiments expressed by the judges, we find them
all in contradiction with each other: no clear principle of law
is laid down on the subject; and we search in vain for the
precise ground upon which the decision was founded. The
case was, however, a very plain and simple one. Sir James
Colquhoun exhibited on his part a grant from the Crown of the
salmon and other fishes in the river : his opponent produced no
grant, but founded his claim upon the words " piscationibus
et pertinentibus" in the titles of his lands, with immemorial
possession. Sir James had, therefore, a clear right to the pro-
perty of the trouts from the original general proprietor, subject
to a servitude to his opponent, from prescription ; yet the Court,
while they acknowledged, in the fullest manner, the right of the
Crown to the trouts, with inconceivable inconsistency, utterly
disregarded the Crown's grant aliorum piscium, and bestowed
the trouts upon his opponent as a pertinent of his lands, — but
whether as a natural pertinent, or in consequence of the words
piscationibus et pertinentibus, or from the admitted possession,
does not appear. The Crown gave the trouts to Sir James, but
the Court, superior to the Crown, gave them, in the face of the
Crown's grant, to the other party. We shall cite the opinions
of the Judges, and let the case speak for itself.

Henderland —

" THE CROWN HAS AN UNIVERSAL RIGHT IN LAND AND IN WATER,
and in making grants it may reserve or convey the fishings. If Mr
Stirling or his authors have possessed trouts, his right will be good."*

* This judge, it will be observed, places Mr Stirling's right upon the possession,
or prescription. He does not once say, the trouts are a natural pertinent of lands,

160 SALMON-FISHERY OF SCOTLAND.

Swinton —

" Fishing is res nullius : the right of fishing is properly by grant." *

Monboddo —

" I know nothing in this country which is res mdlius, excepting
the air," &c. t

Justice-Clerk —

" Salmon-fishings require grants ; trout-fishings go with the lands
as part and pertinent. It has been said that trouts are res nullius.
In one sense they may be said cedere occupante ; for, though I have
a right to lands, it does not follow that I have a right to trouts
swimming in the river, but I have a right to kill them. J This right
may be renounced, or it may be acquired by others. § The Crown

nor that they are res nullius, or a common law right, which does not reqiiire
possession : on the contrary, he requires the possession, which is directly against
the res nullius doctrine.

* This honest man calls the trouts, if by the general word " fishing " trouts
are meant, res nullius; yet, with the same breath, adds, that the right to them
is properly by grant, as if what was res nullius, as observed by Mr Erskine, could
be the subject of a grant.

t This judge flatly denies that trouts are res nullius; in other words, that trout-
fishing is a common law right, which every man may exercise, which is founded,
and can only be founded on the res nullius principle ; and it is not likely that if
there was such law, this judge, and Lord Henderland, wrho admits the right of
the Crown, could have been ignorant of it. The denial of Lord Monboddo,
therefore, shows that it was NOT generally considered as the law.

J We have rare inconsistency here. His Lordship first says, that trouts are
a pertinent of lands — and if they are a pertinent of lands, they are an heritable
subject ; yet in the same sentence he says, that the owner of lands has NO
right to this pertinent, swimming in the water, but he may take and kill them,
thus converting the pertinent into a personal right. If he meant merely that
the owner of the land might kill the trouts, like others, he should not have
called them a, pertinent of the land, which shows great confusion of ideas. If,
again, they are cedere occupante, and not res nullms, who is the ceding owner,
unless it be the Crown 1 And if they are cedere occupante, how can they be a
pertinent of the lands ? Can anything be more ridiculous than all this ?

§ If the trouts, as he said before, are a pertinent of the lands, and at the
same time cedere occupante, not belonging to the owner of the lands, which is a
contradiction in terms, who is it that might renounce this cedere occupante sub-
ject! Is it the owner of the lands, who, he says, has no right to them except
as cedere occupante? He tells us the Crown has no right to them, and if they
were res nullius, a right could not be " acquired " to them, any more than to
cods or haddocks. To whom, then, do they belong] for he says, as already re-
marked, if I have a right to the lands, it does not follow that I have a right to
the trouts (though a pertinent of the lands) swimming in the river? Do they
then belong to nobody — this pertinent of land ? but this would bring us back to

SALMON-FISHERY OF SCOTLAND. 161

has no right to trout-fishing, any more than it has to fowling or
hunting. The clause aliorum piscium is unmeaning. It could give
no right which would not have attended properly although not ex-
pressed."

Monboddo — •

" I cannot understand a grant aliorum piscium to mean nothing.
In burns there may be a right to trouts as part and pertinent ; not so
in rivers ; there must be a grant." *

Braxfield —

" Fishings may be separated from lands, then the Crown will have
a right to all fishings ; f but if the Crown feus out cum piscationibus,
and with parts and pertinents, this will carry inferior fishings/ '$ A
grant aliorum piscium may be effectual by prescription. § Sir James

the res nullius, aud to the question, who is it that is to " renounce" this res
nullius ? or how acquire a right to it ? It seems to us all a tissue of absurdity.
A pretty precedent, truly, for regulating all future cases on the subject. He
considers the clause aliorum piscium- unmeaning, as it could give nothing to the
lands but what they already possessed — that is, as pertinent, which was " cedere
occupante," and to which the owner of the land had " NO right, when swimming
in the water ! ! ! "

* In other words, that the trouts in the burns or streams upon a property
belong to the owner of the property ; but that in rivers adjacent to the property
he must have a grant — consequently they are not a natural pertinent of the
lands, any more than they are res nullius or cedere occupante. This judge and
Lord Henderland appear to be the only consistent men, as we noticed before,
among them. They admit directly the right of the Crown, which the Justice-
Clerk, as we have just seen, as directly denies. Which of their opinions are we
to consider LAW ?

t Has the Crown a right to fishings before they are separated from lands 1
We thought both the one and the other belonged originally to the Crown, and
that it could convey them together or separately : it is not easy to understand
what his Lordship means, or to make sense of his speech.

J If, as he says, the Crown has not a right to fishings till after they are sepa-
rated from lands (from which they are separated by nature), how could the
Crown grant a right to them with the lands by the words plscationibus and parts
and pertinents ? He, however, admits the right of the Crown, which the
Justice-Clerk denied, and thus virtually rejects the res nullius and cedere occu'
pante doctrine.

§ Why should not a grant from the Crown aliorum piscium be as effectual,
without prescription, as a grant cum piscationibus, the one being an express grant,
the other, as we have said, mere words of style ? Stair, and the other writers
on the law, as before noticed, say that piscationibus can only give a man a right
to fish in the streams on his own ground, but this judge makes no distinction,
whether he meant any or not.

L

162 SALMON-FISHERY OF SCOTLAND.

Colquhoun might have acquired a right to trout-fishing by prescrip-
tion, but he has not ; he has been wont to catch trouts, but not to
exercise a trout-fishing.* He is not entitled to catch trouts with a
net appropriated to that purpose, "f

Eskgrove —

"Lands and fishings are understood to be the right of the Crown
originally. Grants from the Crown cum piscationibus carry NOTHING,
unless explained by POSSESSION. Such a grant might imply that the
Crown was not to resume it. Heritors may fish trouts ex adverse
of their lands ; but I doubt whether they can interrupt those who
may choose to fish from a boat."J

Such, then, is the only precedent on the subject. Each
learned judge not only contradicts most learnedly his neigh-
bour, but contradicts himself. All seem as if playing a game
at cross purposes, more like a parcel of schoolboys than a set
of grave judges uttering the dictates of wisdom, and founding
their judgment upon a clear principle of law. Only one of

* Sir James acquired his right by his grant from the Crown. The distinc-
tion between catching trout, arid exercising a trout-fishing, is nothing but quib-
bling. Did Mr Stirling do more than catch them ? If it is meant that Sir
James did not keep a regular trout-fishing establishment, it is what has never
been kept anywhere, even yet, and certainly was not by Sir James's opponents.
The trouts in those days would not pay a tenth part of the expense of euch.
They have been always, and are still, killed by the saZmcm-fishers. This judge
appears to have looked upon Sir James's side of the question with a very jaun-
diced eye. The whole of his remarks show it.

t Here was another gross instance of partiality, for this was allowed by the
Court to the other parties — to persons who, in fact, had no right, and denied to
the Crown's grantee !

£ He admits that the words cum piscationibus carry nothing without prescrip-
tion, and imply only that the Crown was not to resume it. Where did he ever
hear of the Crown resuming a grant once made 1 When he says an heritor may
fish ex adverso of his lands, we presume he means after he has acquired a right
by prescription, as he before remarked. He does not say that the man who fishes
ex adverso of the boat, requires prescription, like the man with piscationibus in
his titles on land, nor that he needed a right from the Crown, though he admits
the Crown to be the original proprietor of the fishings. The right is an heritable
one to the man on land, derived from the word piscationibus and his possession ;
but to the man in the boat it is quite a different thing — or what our trout law-
yers call a common-law right, a mixture of res nullius and cedere occupante
flowing from the Crown to the one, and from the unknown ceding owner, sup-
posed, also to be the Crown incognito, to the other. All this exposition of the
law is altogether amusing.

SALMON-FISHERY OF SCOTLAND. 163

them, Swinton, calls trouts res nullius, which Lord Monboddo,
who, notwithstanding his notions about tails, seems to have
been the best judge among them, flatly contradicts. Another,
the Lord Justice-Clerk, considers them cedere occupante, but he
stands alone in his opinion ; and a third, Eskgrove, doubts
whether a man could be prevented from killing them in a
boat. It is quite clear, from the confusion of their ideas, in
which the most opposite doctrines are jumbled together, that
they could find no particular law which bore on the subject, or
which rendered a right to trouts different from any other
question of an heritable nature that might come before them,
and they ought, therefore, to have put it on the same footing,
and judged it by the same rules, as any other heritable right.
The whole case was clearly a simple question of servitude or pre-
scription. We do not think that Sir James Colquhoun got any-
thing like fair play on the occasion, with his grant from the
Crown aliorum piscium in his hand ; for while his opponent,
with, wre may say, no grant at all, was allowed to kill trouts
with nets, Lord Braxfield expressly declared that Sir James,
the Crown's grantee — the legal owner, in fact, of the subject —
should not be allowed to take them with a net appropriated to
the purpose.

This right of trout-angling is evidently a right which CANNOT
be exercised, which cannot even exist without injury to the
salmon-fishery ; and it requires a greater strength of reason
than we are possessed of, to conceive the LEGALITY of a right
which cannot be exercised without injury to superior rights. It
appears to us in the shape of a legal right, as an anomaly, which
we can no more understand, than we can understand how a
right can be loth an heritable and a personal right at the same
time. It is a right, per se, of which there is not an example in
the whole catalogue of our rights — a right sui generis, a non-
descript, which has its fellow only in the bond of honest
Shylock, who might take his pound of flesh, if he could, with-
out a drop of blood — a right legally to do what one cannot do
legally ; a right, in short, founded in no KNOWN law, and con-
trary to all justice. Such is the mongrel, demi-heritable, demi-

164 SALMON-FISHERY OF SCOTLAND.

personal right granted as a NATURAL pertinent of land, without
either title or possession, or a particle of legal ground on which
it can rest, save the sic volo principle of the Court, opposed to
the IMMEMORIAL POSSESSION of the owners of the salmon-
fishery.

Such is the present state of the Scotch salmon-fishery. It
is as clear as that two and two make four, that the fishery can
only be improved in two ways : first, by rearing as many fish
as possible, which can only be done by incessant attention on
the part of the owners of the rivers and next, by preventing
the fish from being kill 3d in such quantities, before they reach
their proper growth, by ever-fishing ; and in both particulars
the Court of Session seems to bb doing all in their power to
depress the fishery, by cutting up the rights of the river heritors,
by whom alone it can be improved, and by extending the over-
fishing system on the coasts. It seems to be running a race
against the fishery, as if for the express purpose of preventing
its improvement, and so has fared with it ; for in the very
first article of the Eeport of the Committee of the House of
Commons, it is stated that the fishery has for many years been
decreasing, and is still decreasing so rapidly, that unless
means be adopted to -prevent its further decrease, the loss
to the public must be very great. In the Provincial or Sheriff
Courts, the same system seems to be followed. In a recent
case, the tacksman of a river was foiled in his attempt
to prosecute a poacher, who had been fishing in the night
with a fixed or hang net, declared illegal by repeated decisions
of the Court of Session,* on the ground that the matter was
jus tertii to him, according to the doctrine recently promul-
gated, and he had eighteen pounds of expenses to pay for mak-
ing the attempt ; f and on another occasion, a reservoir, which
the tacksman had made for keeping the fish alive, in order that
they might be sent to market in ice, instead of being pickled,
was, after having been peaceably possessed during eight years,

* Duke of Queensbery v. Marquess of Annandale, 19th November 1771.
Dirom v. Little, 25th February 1797.

t Qu. Who has the right to bring offenders against the law to justice 1

SALMON-FISHEKY OP SCOTLAND. 165

most wantonly ordered to be demolished by the Under-Sheriff,
whose jurisdiction only extended to seven years, though its
legality was neither struck at by the statutes, nor by any
decision of the Court ; yet these instances of judicial oppres-
sion were quietly submitted to, as a less evil than entering
into that gulf of litigation, the Court of Session, in quest of
redress ever uncertain, and always accompanied by the most
ruinous expense. In short, it seems to be the fate of the
salmon-fishery to have obstructions thrown in the way of its
improvement in every quarter ; and this is likely to continue
to be the case until the true nature of the fishery be better
understood, when it is possible that the interest of the public,
if not justice to individuals, may force the Courts of Law to
adopt a different system or mode of procedure.

In the mean time, we would strongly recommend to the
owners of the rivers to join, and try another SEA stake-net case,
say from Montrose, and another jus tertii case from somewhere
else, for the purpose of having the law on these important
points fully settled upon proper principles, and set finally at
rest.

P.S. — It was forgotten to be stated in the proper place, that
if we appeal to NATURE for the termination of the sea or of a
river, we may find it. The attraction of the moon raises the
sea above its natural level, and produces the tidal wave. Now
it appears to us that the line of coast, the margin of the sea,
should be that which the sea exhibits when there is no external
cause operating upon it. Were the attraction of the heavenly
bodies removed, the margin of the sea would be the line shown
at what we call low water, which is in reality its natural
margin. This doctrine, if it have not the ingenuity of those
of Messrs Jardine and Steavenson, has at least truth and sim-
plicity and nature on its side ; and we venture to state that,
when our forefathers made the cruelly misinterpreted laws

166 SALMON-FISHEKY OF SCOTLAND.

relative to the salmon-fishery, they had the very same view of
the matter. For, as before noticed, they knew that cruives
could not be set in the sea, nor yairs in rivers ; and hence they
regulated cruives in fresh water, and prohibited yairs where
the tide ebbs and flows, because it is the ebbing and flowing
of the tide, and nothing else, that enables yairs to catch fish,
and destroy the fry of all fishes which are not found in rivers.
If it be desired to preserve the fishery, all estuaries should be
declared rivers to a certain distance from the rivers which
flow into them.

APPENDIX.

DO GKILSE GKOW TO BE SALMON.

M. I have frequently heard you remark that a grilse is a
distinct fish from a salmon, though of the same family.

H. Yes ; its instincts in some respects are different, though
its habits are precisely the same ; and this is the reason why
superficial observers have considered them one and the same
fish.

M. Explain to me how you have arrived at that conclusion,
so opposed to the theory generally received ?

H. The answer to your question can only be developed by
degrees, as we proceed with the examination of the subject.

M. Before proceeding further, I should like to hear your
definition of instinct, a word frequently used in connection with
animals, but which seems to me to be but little understood ?

H. Instinct is a law of nature which influences animals with
systematic regularity, and without the aid of any reasoning
faculty in themselves, to the exercise of those functions bestowed
upon them by Providence, in the same mysterious manner as
the needle of the mariner's compass is influenced by an invis-
ible attraction, always pointing to the north whichever way
the compass is placed ; and it would be just as impossible for
a salmon to alter its physical shape at will and become a shark,
or any other animal, as to deviate from its instinct, as the

168 APPENDIX.

Almighty Power that created the animal exercised an equal
amount of omniscient knowledge in devising an instinct for its
guidance and functions. Instinct is, therefore, unerring, or the
word should be expunged from our dictionaries.

M. I am perfectly satisfied with your definition of instinct ;
tell me now how it influences salmon differently from grilse ?

H. As the human eye cannot follow the motions of fish
while in the sea, their habits can only be ascertained by watch-
ing them during their annual migrations to the rivers, where
they are completely within the reach of our observation. Ex-
perience then shows us that salmon, impelled by their instinct,
leave the sea for their home or rivers in winter and spring ;
whereas the grilses do not leave the sea for the rivers until
summer, clearly showing that the one is a spring, and the other
a summer fish. Another difference, which I shall explain
more fully hereafter, is, that although I have a hundred times
made inquiry on the subject, I have never yet heard any old
Highland poacher assert that he had seen salmon and grilse
spawn promiscuously ; but, on the contrary, that he invari-
ably found either two grilse or two salmon performing that
operation. My own experience as a fisherman for thirty years
goes to corroborate the same fact.

M. If instinct is unerring, how do you account for some
rivers producing salmon earlier than others ?

H. Instinct has nothing to do with the nature or the circum-
stances connected with early or late rivers ; but in the seasons
of their migrations, instinct directs the fish of each river to
itself ; and were all the fish in the sea suddenly to become
blind, every fish would proceed directly to its own natal river,
passing all others, regardless of their taste or temperature, still
impelled onwards by its instinct, which does not cease operat-
ing from the time the fish left the ocean until it had reached
its destination ; the only inconvenience it would experience
from blindness being, that it could not escape from its enemies,
or procure its food.

M. If, then, the instinct in salmon leads them to return to
their natal river, passing all others, how do you account for the
fact of fish, recognised as belonging to a certain river, being

APPENDIX. 169

caught at or near the mouth of another river at some distance
from its own ?

H. It is admitted by all parties that salmon, when leaving
their rivers, migrate to the north. It is therefore not surpris-
ing to find salmon intercepted in the innumerable traps laid
for them when they return on their way south. For instance,
the Tweed bull-trout, commonly known as the " black tail/'
a very conspicuous fish, may be intercepted on its way from
the north, but it has never yet been seen to the south of the
Tweed ; and if its instinct was not perfect, the Dee, Don, and
other rivers, by this time of day, would abound with it, as the
Tweed does. I may here hint my belief, that it will prove im-
possible ever to succeed in propagating salmon in the Australian
rivers ; and this in consequence of the inflexible instinct always
drawing them in their migrations towards the north pole.
Were this not the case, all the rivers in South America, Africa,
and India, would have salmon in them, making an annual
migration to the south pole. Thus, had nature so decreed it,
there would have been salmon in the southern as well as in the
northern hemisphere.

M. Now that you have brought salmon back to the rivers,
what is their condition and general appearance ?

H. They have a beautiful silvery appearance, and are in
high condition. Before ice was made a substitute for boiling
and kitting salmon, it was proved by the quantity of oil — a
perquisite of the salmon-boiler — skimmed off the boiling kettles,
that spring fish invariably produced more oil than summer
fish ; thus showing that early fish are superior as food to late
fish. It was also proved by those boilers, that they generally
had little or no food in their stomachs ; that every salmon
contained either roe or milt, and that the quality of the fish
decreased in an inverse ratio to the growth of the roe, and
as the spawning season approached. A curious fact, relative
to the roe in grilse and salmon, and proving in a great mea-
sure my assertion that they are distinct fish, is, that when the
grilse appear in May and June, their roe is in precisely the
same stage of growth as it was in the salmon when they
made their appearance in the rivers in January, from which

170 APPENDIX,

time their roe has been gradually progressing in size ; so
that in May it may be called half-grown, at the same time
that the roe of the grilse is so small as to be scarcely percept-
ible. As, however, the two fish spawn at the same time, it
follows, as a natural conclusion, that the roe in the grilse re-
quires only half the time which that of the salmon requires to
bring it to maturity ; which shows a decided dissimilarity in
their organisation.

M. We have not yet said a word about grilse ; where are
they all this time ?

H. The instinct of the grilse leads them, in May, to per-
form their annual migrations on their way to the rivers, as at
this time of the year the salmon-fishing in all quarters is vir-
tually at an end, — their season having gone by, and grilse
taken their place, — though they are not seen in large numbers
until June and July, with but comparatively few salmon inter-
mixed with them. Hence it is a common remark amongst
fishermen, that though the salmon-fishery may be bad, still
the grilse-fishery may be productive, each fishery varying in
quantity to correspond with the favourable or unfavourable
season in which they were spawned, — clearly showing two dis-
tinct fisheries and nature of fish.

M. Is that your only reason for supposing that grilse do
not grow to be salmon ?

H. No. Some people suppose that the smolts of a few
inches in length, that go down to the sea in March, return
again to the rivers in May, after an absence of only two
months, as grilse of an ordinary size, from four to seven pounds'
weight. But my belief is, that when the smolts that required
twelve months to arrive at the size of from four to five inches
in length, and apparently in good condition, as their appear-
ance is round and plump, will necessarily require a longer
time than two months to arrive at the size of from four to seven
pounds' weight, notwithstanding the virtue in salt water. But
the absurdity of the theory consists in the assertion that the
smolts of salmon, going down to the sea in company with the
smolts of grilse, also return from the sea under the denomina-
tion of grilse, — thus dispossessing the sea entirely of a crop of

APPENDIX. 171

salmon for next year's supply ; as it necessarily follows that, if
instinct operates on an individual salmon or grilse in bringing
it back to the rivers in summer, it must operate on the entire
body collectively. So that the illogical and vulgar theory of
leaving to the option of some of the fry to return to the rivers,
while their companions remain in the sea, and apparently with
no object in view beyond the very considerate one of benefit-
ing the spring fishermen, must be dismissed by the naturalist
as being in direct contradiction to the laws of nature and the
grand migratory system.

M. Under that impression, you maintain that salmon and
grilse remain in the sea a longer time than is generally sup-
posed ?

H. Yes. The fry of salmon, as well as that of grilse, are a
year old before they quit the rivers. I believe they remain
another year in the sea — perhaps longer — when the instinct of
salmon moves them to quit the sea in spring, and some in the
latter months of winter, on their way to the rivers. The in-
stinct of grilse does not operate till the beginning of summer,
when they commence their journey also to the rivers — all for
the purpose of propagating their kind, precisely in the same
way as do the swallows, lapwings, teal-ducks, and all gre-
garious creatures, whether birds or fishes.

M. Have you any other proof in support of your theory ?

H. One simple and palpable fact, which any ordinary ob-
server might have remarked is, that grilse in May weigh from
three to five pounds ; in July, they are met with as large as from
ten to twelve pounds ; and instead of finding them, in August
and September, grown to the size of sixteen or twenty pounds,
which would be but natural if they continued to grow to become
salmon, they apparently begin to grow backwards ; as in Octo-
ber we have them as small as we had them in May, not grow-
ing one inch larger from that time till they return to the sea in
March and April as kelts. Before quitting this subject, I may
as well mention another fact, which of itself seems to me con-
clusive ; and that is — that there are some rivers in Scotland
which produce salmon with but very few grilse. Such is the
Shinn, in Sutherlandshire, whose fishing season is considered

172 APPENDIX.

virtually finished before the time when grilse make their
appearance ; and so few of these frequent that river that they
are not calculated upon as part of its commercial produce.
Other rivers, such as the Oykell, produce very few salmon,
and these of indifferent quality, but depends almost entirely
upon its grilses, which it produces in shoals. This is also the
case in a very marked degree in the rivers in Ireland.

M. Have you at any time marked grilse with wire or
otherwise for the purpose of ascertaining whether they grow to
be salmon ?

H. Upwards of thirty years ago I marked a number of
grilse by tying a wire round their tails. Three years after-
wards some of them were caught with the wire round the tail,
and grilse still. I have read of grilse being marked by other
people, and some of those grilse afterwards caught weighing
fourteen pounds, and called salmon. Until, however, grilse
are found to have grown to be salmon beyond that weight, I
must still continue to believe them to be grilse, though mis-
taken for salmon, as fish allowed to be grilse, weighing fourteen
pounds, are said to be caught in the month of July ; particu-
larly as my present object is to enunciate principles, and riot to
controvert the results of ill-devised experiments, such as the
Stormontfield ponds, or markings at any other places or rivers,
of salmon or smolts. Similar markings have been practised,
to my knowledge, for upwards of thirty years, without arriving
at any very practical conclusion.

M . How then do fishermen distinguish salmon from grilse,
if they have no distinctive peculiarities, and are not always
regulated by weight ?

If. They affirm that a grilse has a younger appearance than
a salmon ; but without any external guiding index there can
be no certainty in determining a point where one man's opinion
is as good as another's. The only distinction I could ever
ascertain is, that the tail-fin of a grilse tapers off to a finer
edge than in the salmon : this distinction is observable in the
smolts also.

M. How do you account for the variety in size of grilse,
some being so much larger than others ?

APPENDIX. 173

H. You might as well ask me to explain the difference of size in
salmon, which varies from six pounds to fifty pounds, and some-
times sixty pounds. The only way it can be accounted for is, that
the large salmon are the produce of rivers or their tributaries so
formed by nature as to produce a large-sized fish, other rivers
producing a salmon of a small size. The same law holds good
in rivers producing grilse ; and although there are occasion-
ally very large grilse met with, the aggregate size of one year
does not vary much with that of another throughout the season.
Hence it is that we have the average of six pounds' weight
in May, and a similar size in October ; but if grilse grew to
be salmon, and as rapidly as is generally supposed, we should
have no grilse in October, but all salmon.

M. Suppose now that such of the grilse and salmon as have
escaped the various snares, which the ingenuity of man and
the watchfulness of the fishers have placed in their way, have
arrived in the rivers for the purpose of spawning, when do
you think that operation takes place ?

H. From experience and induction, I believe that the pro-
cess of spawning takes place chiefly in the month of Novem-
ber. From experience, because year after year I have seen
them crowding the fords, spawning in that month ; which
feature is particularly observable in the tributary streams
falling into a loch, wherein they are not seen throughout the
year, except in the month of November, for the purpose of
spawning, and then they are to be seen in multitudes. This
is the case in a remarkable degree in Loch-na-Shalag and
Loch Maree, on the west coast of Eoss-shire. The same in-
stinct is very conspicuously exemplified in the char, a
beautiful and highly-flavoured fish, found in many Highland
lochs, and particularly numerous in the above-mentioned
Loch-na-Shalag, but which, from its habit of remaining in the
deepest parts of the loch, can be but seldom caught by the
fisherman. It is a well-known peculiarity in these fish, that
at an appointed time, in October, they quit the lochs, keeping
clear of intermixing with the innumerable families of trout,
and betake themselves in shoals and nations, with stereotyped
regularity, to the tributary streams, for the purpose of spawn-

174 APPENDIX.

ing. As soon as this is accomplished they fall back again to
the loch, not leaving it until that time next year, when in-
stinct again comes into action, compelling them to go through
the same process. By induction, because the month of No-
vember, by the laws of nature, is decidedly the month pecu-
liarly fitted for that operation to suit the instincts and habits
of the fish, as well as to guard against the severity of Decem-
ber frosts ; as when the fords are bound up with ice in winter,
the progress of spawning would be utterly put a stop to. In
early rivers the salmon come to them early in the season, and
will, as a natural consequence, commence probably to spawn
a fortnight earlier, and in late rivers a fortnight later ; but
in no river will the spawning operation proceed when the
river is covered with ice ; and Nature foresaw this contingency
when it appointed the month of November. Besides, the
uniform progressive growth of the roe towards maturity, gradu-
ally increasing from January in the salmon, and May in the
grilse, shows that of necessity it must be deposited in Novem-
ber as ova in the fords, for if it be delayed long beyond that
time it will become unproductive.

M. Are there any peculiarities connected with the process of
spawning ?

H. The same instinct prompts fish to prepare a place in the
gravel to deposit their ova that bestirs a bird to prepare a nest
for its eggs ; the only difference being that, living in opposite
elements, their mode of action must be different, inasmuch as
the bird builds its nest with its beak in carrying the materials,
and the action of the body to fashion its shape ; whereas the
salmon chiefly depends on the action of the water in assisting
the progress of its operation.

M. That is the reason, I suppose, why salmon select fords
or the running stream, instead of still water, as most suitable
for their purpose ?

H. Precisely so : two salmon, a milter and a spawner, in-
stinctively select a suitable situation in a ford, and by a
mutual impulse commence to agitate the sand by a vibratory
action of their fins, tails, and bodies, thereby stirring up the
gravel, and almost simultaneously throwing themselves by a

APPENDIX. 175

muscular exertion of their tails upon their sides, and by gentle
contact emit their ova, which is carried off by the action of
the water, and gradually subsides immediately behind them,
mixed up with the gravel. This operation is carried on for a
fortnight by each pair of fish, if they are not disturbed, when
the process is completed. The general opinion is, that first the
fish dig a hole, and deposit their spawn therein. If those
people were only to give the subject a moment's serious reflec-
tion, they would at once find that such a supposition could not
in point of fact ever be realised ; as, with every additional
agitation of the gravel in the bottom of the hole, the roe would
be thrown out of it along with the gravel. By the time the
spawning operation is ended, a hill or molecule of considerable
size has gradually accumulated immediately behind the hole
or bed excavated by the fish, and any person taking the trouble
of examining that mound will find the ova mixed up in it ;
and were we as conversant with the laws of hydraulics as
Nature is, I have no doubt we should find the ova more secure
in mounds immediately below the excavation, than if deposited
in that excavation. Salmon do not spawn in pools, because,
without the action of running water, they could not cover in
their ova, — without which precaution it would be left exposed
to be dispersed by floods, or swallowed up by other fishes.
Eunning water is not, however, essential to the vivification of
the young fish, for we find that the ova of carp, breams, barbel,
and trout that inhabit ponds, come to perfection in still
water.

M. I have read in a pamphlet that the salmon dig the
spawning hole or bed with their " snouts"

H. By its physical conformation a naturalist would at once
pronounce that it is an impossibility for that fish to apply its
snout to a digging purpose. In the first place, the creature
has no neck, and consequently has not the power of moving
its head up or down without a corresponding movement of its
entire body ; and, even if the fish .retreated a few yards,
reculer pour mieux sauter, to give it an impulse, it would still be
necessary for it to raise its tail out of the water at an angle of
45°, to enable it, like a pick-axe, to knock its snout against the

176 APPENDIX.

gravel, or, for anything the poor creature knew, against a stone.
Had a salmon a snout like a pig, with joints in its neck, we
might then come to the conclusion that those necessaries were
provided by Nature for the purpose of digging. In the second
place, the cartilage of the nose is so tender that it could not,
with any degree of comfort to the possessor, be applied to such
violent shocks without disturbing its equanimity, and dis-
gusting it with its work, however amusing it might be to
lookers-on from the bank of the river. Besides, the gravel
disturbed by the snout would enter the fish's mouth, and either
choke it or destroy its gills. Instead, however, of setting
about its work in such a violent manner, the salmon moves
through the water, and performs its duties quietly and unos-
tentatiously ; the fish sustaining no injury beyond the slight
abrasions on the tail, the fins, and cheeks, necessarily pro-
duced by coming in frequent contact with the gravel.

M. Do all salmon and grilse come to the rivers for the pur-
pose of spawning ?

H. We see that salmon and grilse come to the rivers for
the purpose of spawning, and as the laws of Nature are perfect,
we must conclude that they all come for that purpose, as
they are charged either with roe or milt. Some people
assert, without having produced any facts to substantiate their
conclusions, that salmon spawn in the sea. I should like to
put a few cross-questions to any one maintaining this notion,
and ask him — Was it at high- water mark, or at low-water
mark, or during the spring-tides, or neap-tides, you saw the
fish spawning in the sea ? or did you have yourself let down
in a patent diving-bell to quietly contemplate the mysteries of
the deep en philosophe, with sixty fathoms of water overhead ?
I might, with equal assurance, assert that herrings and cod-fish
spawn partly in the sea and partly in the rivers ; but my
assertion would make me appear ridiculous, because the fact
that they did not do so is so notoriously known to be contrary
to fact and Nature. So also does the same imputation apply
to those who attempt to separate the nature and habits of
salmon, and give them two instincts, to suit their own theories,
and with an eye to their interests, no doubt.

APPENDIX. 177

M. Do grilse spawn by themselves, and in rivers, as salmon
do?

H. I have already hinted at the difference of instinct between
salmon and grilse, ]jy making one a spring and the other a
summer fish, although in their habits they are precisely the
same, each coming to the rivers and ascending them as far as
they can, and there depositing their spawn precisely as the
salmon do, at the same time keeping distinct from them as a
separate family. The only way to arrive at the truth is to
watch the burns and discover the bed of one pair only where
they would be easily captured, which would set the matter at
rest. This, to my knowledge, has been frequently done, and
uniformly resulted in the same fact — viz. either two salmon
were found together, or two grilse, which is very different from
the vague statements of those who profess to arrive at conclu-
sions from seeing a number of fish spawning on fords in large
rivers, or capturing one fish with the leister, the fellow escap-
ing in the crowd of other fishes.

M. Why is it that people assert that salmon spawn with
grilse or with trout, and that they do not make a fuss about
the operations of sea fishes and land animals?

H. Therein consists the absurdity of theorising without con-
sulting nature at all. If you look to the different tribes of
animals, birds, and fishes, you will find that each family ad-
heres strictly to its own members, and never intermixes with
the tribe. For instance, a sparrowhawk keeps itself distinct
from the gosshawk, the gosshawk from the harrier, the har-
rier from the gled, the gled from the osprey, and the osprey
from the golden eagle. In like manner, the innumerable
branches of the families of antelopes observe the laws of nature,
keeping separate and distinct, and thereby perpetuating the
different kinds without ever running into an heterogeneous
amalgamation. The same law applies to fishes. Yet were all
these varieties of the hawk first seen by a person ignorant of
their nature and habits, he would very likely, as people do
regarding salmon and its many varieties, pronounce the spar-
rowhawk a young eagle, a rook a young raven, or a grilse a
young salmon.

M

178 APPENDIX.

M. Do you believe that all the grilse and salmon that come
into a river spawn ?

H. As a general law of nature, all animals are subservient
to the instincts and functions placed in tiiem ; and if salmon
were not disturbed in the rivers, either by floods or by man,
they would all accomplish the object for which they came to
the rivers ; but they are so frequently interfered with and in-
terrupted in the process of their spawning operations, that all
those who do not get that process accomplished before the
middle of December have their object frustrated, and the
spawn becomes vapid ; so that if the ova in the salmon, called
" bag gits" caught in the Tweed in the month of February,
were to be conveyed to an experimental pond, my belief is,
that it would prove addled and of no avail, as it would be an
anomaly in the laws of nature to suppose that salmon had the
power of prolonging the time of gestation to an indefinite
period.

M . When do the parent fish leave the river ? or is it neces-
sary for them to superintend the education of the young fry ?

H. They quit the rivers by degrees, extending over all the
spring months, nor do they evince any great solicitude for the
fry ; if they did, they would require to remain in the river six-
teen or seventeen months : but such solicitude is not necessary,
as their instincts lead the young smolts in their journey to
their destination. A more convincing proof of the powerful
action of instinct can in no instance be more apparent than in
the cuckoo. It makes its appearance about the commencement
of May ; it has never yet been known to build a nest for itself;
it deposits its egg in another bird's nest, and disappears before
its progeny has quitted its foster-mother's guardianship. Yet
a few weeks thereafter the young bird also mysteriously dis-
appears, without any assistance or guide but the force of in-
stinct ; showing that the same instinct leads to the same result,
though not simultaneously. I could state some interesting
facts relative to cuckoos ; but that would be entering into de-
tails which is not my object, either as regards the salmon or
the illustrations brought forward, to elucidate the mystery that
obscures the difference between salmon and grilse.

APPENDIX. 179

M. Then do you believe that cuckoos are migratory ?

H. No ; I do not believe that any vague or non-gregarious
birds or fishes are migratory ; but that the cuckoo, like the
stone-chatter and water-wagtail, is of hybernating habits —
which is not more wonderful in the works of creation than
that the bat, humble-bee, and other animals, should exist in a
torpid state all winter. If we have so much difficulty in arriving
at the true history of animals living in our own element, it is
not to be wondered at that theorists, in their attempts to dis-
cover the habits of creatures of another element, should reject
the laws of nature, and propagate opinions opposed to them, in
accordance with their own theories.

M.. How long do the fry remain in the rivers after vivify-
ing?

H. Mr Shaw has proved that they remain in the rivers
about twelve months before they proceed to the sea in March,
April, and May. During those twelve months their appear-
ance does not indicate that they have lived in an unconge-
nial element ; for when they are intercepted on their way to
the sea, they look round, fat, and plump, yet they do not
measure much more, on an average, than five inches in length.

M. Then you repudiate the idea of their returning that year?

H. Yes ; on the grand principle of the annual migratory
system ; which seems to be uniformly admitted as regards her-
rings, that visit the Caithness coast once in the twelve months,
swallows, the teal-duck, lapwing, &c. ; that is to say, that at a
regular stated period of the year these creatures are invariably
expected, and that they never fail to appear at that time, unless
their progress is intercepted. So I believe that the smolt of
the salmon requires one year at least to perform its migrations,
to the North Sea it is supposed, and at the expiry of that time
it returns as a salmon ; for it seems quite contrary, indeed, in
direct opposition to, the law of migration, to suppose that they
do not migrate at all, but only remain in the sea for a period
of two months, at the expiry of which time they return to the
rivers weighing three or five pounds. An authority on this
subject says that salmon run to the sea and back again at
pleasure, like shuttlecocks, when they find themselves growing

180 APPENDIX.

either too fat or too thin. But before we can bring ourselves
to accept such a theory, we must entirely give up the idea of
salmon being a migratory fish, and indeed resign ourselves to
the necessity of depriving it of instinct altogether. Yet were
the supporters of these specious theories and quibbles deliber-
ately to think the matter over, they would find that in bring-
ing back the entire produce of a year's spawning, as well of
salmon as of grilse, within the period of two months, they
would inevitably deprive themselves of a crop of salmon for
the ensuing spring fishery.

M. Then you maintain that, when the/r?/ of salmon descends
to the sea, it does not return to the rivers in the shape of a
grilse, but remains in the sea until it is a salmon, and that the
produce of grilse only return as grilses.

H. I do. Let theorists bring back the grilse two months
after they quitted the rivers as smolts, if they will, for the sake
of their own theories ; but let them, for their interests, leave the
fry of salmon in the sea until they become salmon, and supply
their fishery with salmon next spring. To explain to you more
clearly what I mean, let us suppose that, at the commencement
of the world, when the produce of the first year's spawning
returned in summer, two months after they had left the river,
whence was the spring fishery of the ensuing year to be sup-
plied ? for even admitting that the kelts, or spawned fish, came
back in spring — when most of them are still in the rivers as
kelts — after a brief stay in the sea, they would form but a
sorry fishery, as they are well known to be in a half-emaciated
state, with jagged gills, and parasites adhering to them, evi-
dently exhibiting every symptom of fish that have recently
spawned, without flavour, and devoid of the perfect symmetry
which characterises the clean salmon.

M. It is admitted that salmon are degenerating, and that
they will soon become a fish of history, unless the legislature
step in to protect them. What measures would you suggest
as best calculated to restore the rivers to what they were in
the olden times ?

H. Individual interests and opinions are so conflicting that

APPENDIX. 181

it will be difficult, even for the legislature, to enact laws suffi-
ciently stringent to secure so desirable an object, unless they
found them upon the old Scotch statutes; and by strictly adhering
to them as their guide, they cannot err, as those statutes are
founded upon knowledge of the nature and habits of the salmon ;
providing against unlawful modes of extermination, as well as
sufficiently guaranteeing an ample period for spawning-tirne,
and protecting the spawning fish from poachers. These statutes
were framed at a time when Scotland had a Parliament of her
own in Edinburgh, and when the Legislators, intelligent men,
residing on their estates all the year, except when they were
assembled, were unquestionably capable of framing Acts to
harmonise with the nature and habits of the salmon, and the
requirements of the public, without prejudice to their own in-
terests, or the ample supply of fish. Very different men from
many of the representatives who are now sent to St Stephen's,
whose first and only acts were the payments of their election
bills. I would, however, suggest that all sheep-farmers should be
compelled to abstain from washing sheep in rivers, a practice
most detrimental to fish ; and that they should be obliged to make
ponds at a considerable distance from the rivers to wash their
sheep in, a necessary adjunct to the sheep-farmer that could be
constructed at a trifling expense. And further, that all salmon-
fishings, whether in the sea or in rivers, should be restricted
to coble and net, as sanctioned by use and wont. Unless
this mode of fishing for salmon be inflexibly enforced, the
salmon-fishery of Scotland will inevitably dwindle away, as it
has done in England.

M . I have been told that poachers are much more successful
in angling for salmon than are sportsmen ; how can you ac-
count for it ?

H. Timidity is a ruling feature in all wild creatures ; and as
with deer, so with salmon. A deerstalker has to keep out of
view of the deer, and guard against the influence of the wind,
to insure success. In precisely the same way the angler must
not only keep out of view of the salmon in approaching the
river, but even keep his rod as much in the background as

182 APPENDIX.

possible, and cast his line from a distance, letting the fly alight
on the water like a snow-flake. If the angler will practise this
precaution, and not wade into the water — salmon having a keen
sense of taste or smell — it will be owing to the scarcity of fish
if he fails. I always went about my business in this style.
But in the present day, not only do gentlemen not observe this
precaution, but they order stone erections to be thrown out
into the rivers at stated casts, to bring them into direct view of
the fish. I repeat again, that the great secret in successful
angling is to stalk the fish — and down river.

THE END.

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Bothwell : A Dramatic Poem.

By the same Author.
Third Edition, price 7s. 6d.

The Ballads of Scotland.

Edited by Professor AYTOUN.
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Pirmilian; or, the Student of Badajoz:

A SPASMODIC TRAGEDY.
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The Book of Ballads.

Edited by BON GAULTIER.

Fifth Edition, with numerous Illustrations by DOYLE, LEECH, and CROWQUILL.
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10 MESSRS BLACKWOOD AND SONS' PUBLICATIONS.

The Russian Shores of the Black Sea

IN THE AUTUMN OF 1852, WITH A VOYAGE DOWN THE VOLGA, AND A
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By LAURENCE OLIPHANT.
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Life in the Par West.

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Narrative of a Journey through Syria
and Palestine.

By Lieutenant VAN DE VELDE.
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The Story of the Campaign of Sebas-
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Written in the Camp, by Lieut. -Col. E. BRUCE HAMLEY.

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Three Years in California.

By J. D. BORTHWICK.
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Salmon-Casts and Stray Shots:

BEING FLY-LEAVES FROM THE NOTE-BOOK OF JOHN COLQUHOUN,
Author of the " Moor and the Loch," &c.
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MESSRS BLACKWOOD AND SONS* PUBLICATIONS. 11

The Chemistry of Common Life.

By PROFESSOR JOHNSTON.
A New Edition, Edited by G. H. LEWES.
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The Physiology of Common Life.

By GEORGE H. LEWES.
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Contents— Hunger and Thirst. — Food and Drink. — Digestion and Indigestion. — The Structure and
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The Physical Atlas of Natural Phenomena.

By ALEX. KEITH JOHNSTON, F.R.S.E., &c.,

Geographer to the Queen for Scotland.

A New and Enlarged Edition, consisting of 35 Folio Plates, 27 smaller ones, printed in
Oblours, with 135 pages of Letterpress, and Index.

Imperial Folio, half-bound morocco, £12, 12s.

Atlas of Astronomy.

A complete Series of Illustrations of the Heavenly Bodies, drawn with the greatest
care from Original and Authentic Documents, and printed in Colours by Alex.
Keith Johnston.

Edited by J. R. HIND.
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A Geological Map of Europe.

By Sir R. I. MURCHISON, D.C.L., M.A., F.RS., &c., and
JAMES NICOL, F.R.S.E., F.G.S.,
Professor of Natural History in the University of Aberdeen.

Constructed by ALEX. KEITH JOHNSTON.

On Four Sheets Imperial, beautifully printed in Colours. Size, 4 feet 2 by 3 feet
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12 MESSES BLACKWOOD AND SONS' PUBLICATIONS.

The Book of the Farm.

By HENRY STEPHENS, F.R.S.E.

A New Edition. In Two Volumes, large Octavo, with upwards of 600 Engravings,
price £3, half-bound.

" The best practical book I have ever met with." — Professor Johnston.

" One of the completest works on agriculture of which our literature can boast."— Agricultural
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Book of Farm Implements and Machines.

By JAMES SLIGHT and R. SCOTT BURN.
Edited by HENRY STEPHENS, F.R.S.E.

Illustrated with 876 Engravings. One large Volume, uniform with the " Book of the
Farm," price £2, 2s.

"The author has omitted, most judiciously, those machines not now used, and he has confined
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commended, and deserve the commendation ; others, on the contrary, are condemned, and it
would seem with equal justice : but the character of all is stated distinctly Full, com-
plete, and perfect in all its parts ; honestly compiled, and skilfully illustrated with numerous and
valuable engravings and diagrams, it is not saying too much to state that there is no parallel to
this important work in any country of Europe, and that its value to the agriculturist is almost
incalculable. " — Observer.

The Book of the Garden.

By CHARLES M'!NTOSH.
In Two large Volumes, Royal Octavo, published separately.

VOL. I. — On the Formation of Gardens — Construction, Heating, and Ventilation of Fruit and
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1073 Engravings, pp. 776. Price £2, 10s.

VOL. II.— PRACTICAL GARDENING contains : Directions for the Culture of the Kitchen
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The Year-Book of Agricultural Pacts.

Edited by R. SCOTT BURN.
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A Handy Book on Property Law.

By LORD ST LEONARDS.
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capable of ' beguiling a few hours in a railway carriage.' "—The Times.

MESSRS BLACKWOOD AND SONS' PUBLICATIONS. 13

Works of Professor J. F. W. Johnston.

A Catechism of Agricultural Chemistry and Geology.

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Elements of Agricultural Chemistry and Geology.

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Instructions for the Analysis of Soils, Minerals, Manures, &c.

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On the Use of Lime in Agriculture.

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Experimental Agriculture :

BEING THE RESULTS OF PAST AND SUGGESTIONS FOR FUTURE EXPERI-
MENTS IN SCIENTIFIC AND PRACTICAL AGRICULTURE.

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Notes on North America —

AGRICULTURAL, ECONOMICAL, AND SOCIAL.
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Rural Economy of England, Scotland, and

Ireland,

By LEONCE DE LAVERGNE.

Translated from the French. With Notes by a Scottish Farmer.
Octavo, price 12s.

The Architecture of the Farm :

A SERIES OF DESIGNS FOR FARM HOUSES, FARM STEADINGS, FACTORS'
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By JOHN STARFORTH, Architect.
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Catechism of Practical Agriculture.

By HENRY STEPHENS, F.B.S.E., Author of the " Book of the Farm."
With numerous Engravings on Wood, price Is.

The Yester Deep-Land Culture :

Being a detailed Account of the method of Cultivation which has been suc-
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Yester.

By HENRY STEPHENS, F.R.S.E., Author of the " Book of the Farm."
Foolscap, price 4s. 6d.

Stable Economy:

A TREATISE ON THE MANAGEMENT OF HORSES.
By JOHN STEWART, V.S.
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14 MESSRS BLACKWOOD AND SONS' PUBLICATIONS.

The Geology of Pennsylvania.

A Government Survey ; with a General View of the GEOLOGY OF THE UNITED
STATES, Essays on the Coal-Formation and its Fossils, and a Description
of the Coal-Fields of North America and Great Britain.

By Professor HENRY DARWIN ROGERS, F.R.S., F.G.S., Professor of
Natural History in the University of Glasgow.

With Seven large Maps, and numerous Illustrations engraved on Copper and on Wood.
In Three Volumes, Eoyal Quarto, £8, 8s.

Introductory Text-Book of Geology.

By DAVID PAGE, F.G.S.
Third Edition, with Engravings. In Crown Octavo, price Is. 6d.

" It has not been often our good fortune to examine a text-book on science of which we could
express an opinion so entirely favourable as we are enabled to do of Mr Page's little work." —
Athenaeum.

Advanced Text-Book of Geology.

DESCRIPTIVE AND INDUSTRIAL.

By DAVID PAGE, F.G.S.

Second Edition, enlarged, with numerous Engravings, 6s.

"An admirable book on Geology. It is from no invidious desire to underrate other works-
it is the simple expression of justice, which causes us to assign to Mr Page's Advanced Text-
Book the very first place among geological works addressed to students, at least among those
which have come before us. We have read every word of it, with care and with delight, never
hesitating as to its meaning, never detecting the omission of anything needful in a popular and
succinct exposition of a rich and varied subject." — Leader.

"It is therefore with unfeigned pleasure that we record our appreciation of his Advanced Text-
Book of Geology. We have carefully read this truly satisfactory book, and do not hesitate to say
that it is an excellent compendium of the great facts of Geology, and written in a truthful aud
philosophic spirit." — Edinburgh PhilosophicalJournal.

" We know of no introduction containing a larger amount of information in the same space, aud
which we could more cordially recommend to the geological student." — Athenaeum.

Handbook of Geological Terms and

Geology.

By DAVID PAGE, F.G.S.
In Crown Octavo, price 6s.

" ' To the student, miner, engineer, architect, agriculturist, and others, who may have occasion
to deal with geological facts, and yet who might not be inclined to turn up half a dozen volumes,
or go through a course of geological readings for an explanation of the term in question,' Mr Page
has carried out his object with the most complete success. His book amply fulfils the promise
contained in its title, constituting a handbook not only of geological terms but of the science of
It will not only be absolutely indispensable to the student, but will be invaluable as a

complete and handy book of reference even to the advanced geologist. " — Literary Gazette.

" There is no more earnest living practical worker in geology than Mr David Page. To his ex-
cellent Introductory Text-Book of Geology and his Advanced Text-Book of Geology, Descriptive and
Industrial, he has now added an admirable system of geological terms, with ample and clearly-
written explanatory notices, such as all geological observers, whether they are able professors and
distinguished lecturers, or mere inquirers upon the threshold of the science, must find to be of the
highest value. " — Practical Mechanics' Journal.

" But Mr Page's work is very much more than simply a translation of the language of Geology
into plain English ; it is a Dictionary, in which not only the meaning of the words is given, but
also a clear and concise account of all that is most remarkable and worth knowing in the objects
which the words are designed to express. In doing this he has chiefly kept in view the require-
ments of the general reader, but at the same time adding such details as will render the volume
an acceptable Handbook to the student and professed geologist." — The Press.

IN THE PRESS.

Complete in Two Volumes,

PHYSIOLOGY OP COMMON LIFE.

BY GEORGE HENRY LEWES,

Author of " Sea-Side Studies."
Illustrated with numerous Engravings ; and a copious INDEX.

II.
A CHEAP EDITION OP

SEA-SIDE STUDIES.

By GEORGE HENRY LEWES,

Author of "Physiology of Common Life," &c.

III.

LECTURES ON THE HISTORY OP
THE CHURCH OF SCOTLAND.

BY THE LATE REV. JOHN LEE, D.D., LL.D.,

Principal of the University of Edinburgh.
In Two Volumes, Octavo.

IV.

THE BOOK OP FAEM BUILDINGS

THEIR ARRANGEMENT AND CONSTRUCTION.

BY HENRY STEPHENS, F.R.S.E., AND R. SCOTT BURN.

In large Octavo, with numerous Engravings.

V.

A Third Edition, enlarged, of

THE FORESTER.

A PRACTICAL TREATISE ON THE FORMATION OP PLANTATIONS, THE
PLANTING, REARING, AND MANAGEMENT OF FOREST TREES, ETC.

BY JAMES. BROWN,

Wood-Manager, Grantown, Strathspey.

IN THE PRESS.

VI.

A NEW NOVEL BY THE AUTHOR OP "ADAM BEDE."

THE MILL ON THE FLOSS.

BY GEORGE ELIOT,

Author of " Scenes of Clerical Life," and " Adam Bede."
In Three Volumes.

VII,

ST STEPHENS

A POEM.

ORIGINALLY PUBLISHED IN " BLACKWOOD'S MAGAZINE.

VIII.

CONQUEST AND COLONISATION
IN NORTH AFRICA;

Being the substance of a Series of Letters from Algeria published iu the Times,
and now by permission collected.

With INTRODUCTION and SUPPLEMENT, containing the most recent French
and other Information on Morocco.

BY GEORGE WINGROVE 000KB,

Author of "China in 1857-1858."
With a Map.

FLEETS AND NAVIES,

BY CAPTAIN CHARLES HAMLEY, R.M.

ORIGINALLY PUBLISHED IN " BLACKWOOD'S MAGAZINE."

In. Two Volumes, price 24s. ,

LECTURES ON LOGIC,

BY SIR WILLIAM HAMILTON, BART.

Edited- by the Rev. H. L. MANSEL, B.D., and
JOHN VEITCH, A.M.

WILLIAM BLACKWOOD & SONS, EDINBURGH AND LONDON.

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