Observations regarding the salmon fishery of Scotland. Especially with reference to the stake-net mode of fishing; the regulation of the close-time; and the necessity of a legislative revisal of the antiquated Scots statutes at present applicable to these subjects

Ec.H
0 1436

Observations regarding the
salmon iisheiy of Scotland.
1824.

0

OBSERVATIONS

REGARDING

THE SALMON FISHERY

1

OF

SCOTLAND.

ESPECIALLY WITH REFERENCE TO

THE STAKE-NET MODE OF FISHING ;

%

THE REGULATION OF THE CLOSE-TIME;

;

AND

THE NECESSITY OF A LEGISLATIVE REVISAL OF THE

ANTIQUATED SCOTS STATUTES AT PRESENT

APPLICABLE TO THESE SUBJECTS.

508141

EDINBURGH :
PRINTED FOR BELL & BRADFUTE;

AND JAMES DUNCAN, LONDON.

1824.

ALEX. LAWRIE & CO. PRINTERS.

OBSERVATIONS, &c.

In the lakes, rivers, and seas of Great Britain and her
dependent islands, there abounds a rich and choice va-
riety of fish ; and the situation of the country, the habits
of the people, and the nature of the coasts, are peculiarly
favourable for carrying on the fisheries.

Accordingly, the fisheries have at all times been con-
sidered, not merely as an important source of individual
wealth ; but even as of much national importance. Great
efforts have been made to foster and protect the Herring
and White fisheries, more particularly, by bounties, and
exemptions from duties,— in short, by a continual watch
over their interest.

But there is one national fishery, — that of the Salmon,
— which, though once, perhaps, in greater favour with the
Legislature than any other, has latterly been altogether
neglected : while the antequated enactments of a rude age,
intended to give it support, unfortunately remain in force,
only to injure and depress its best interests.

It will be the object of what follows, to direct public
attention to the importance of the Salmon Fishery in
Scotland,— leaving the fisheries of England and Ireland to
those better acquainted with them, — and to point out the
necessity of a legislative inquiry, preparatory to an amend-
ment of the laws by which that fishery is regulated.

In early times, the Salmon fishery of Scotland attract-
ed more, perhaps, of the attention of the Legislature,
than any other matter of public police. As a branch of
national subsistence, it was eminently important in an
age when agricultural industry was scarcely awakened -,
and, instead, therefore, of being abandoned to casual oc-
cupancy, or attached as an appendage to the property
of land, it was considered as constituting a separate estate
in the crown, to which a right could be acquired only
by special royal grant. But, in the exercise of this right,
the interest of the public,-1— or, at least, what was then
considered to be the public interest, according to the nar-
row and imperfect views of the times,— was not lost sight
of j and various provisions and limitations were framed
by the Legislature, which, however inefficient, and even
hurtful, some of them may now appear to the sounder
knowledge and wider experience of the present times,
had the preservation and security of that interest alone, for
their object.

The professed and well meant intent of all these en-
actments, was one equally important to the public, and
to the proprietors of the fisheries, — the propagation of
the Salmon species, and the protection of the fry, or
young brood of Salmon, against the rapacity of indivi-
duals, and against the consequences of injudicious and
destructive modes of fishing. This object was attempt-
ed to be accomplished in two ways : — partly, by limiting
the period during which the fishery might be carried on ;
and partly, by prohibiting the use of those devices and
modes of fishing, which were calculated to prevent the
spawning fish from reaching the grounds in which the
spawn is deposited, or afterwards to intercept or destroy
the fry in their descent from the spawning ground to the
sea.

Experience, and the observation of fishers, have, how-
ever, discovered that the period during which, by the ge-
neral law in the statute-book, the fishery is forbidden, is
not the proper period for attaining what the Legislature
had in view.* And, in like manner, as to the modes of
fishing; — how extraordinary soever it may appear, the
regulations which were intended for the protection of the
fry or young brood of Salmon, are now acknowledged, in
their operation, to have the very opposite effect ; — pro-
tecting, on the one hand, the very engines which, in the
present state of the law, destroy the fry and ruin the
fishery; and, on the other, preventing the use of appa-
ratus, harmless as to the propagation of the species, and,
at the same time, powerful beyond all other known means,
for increasing the produce of the fishery.

The real value of the Salmon fishery has thus, in a
great degree, been lost sight of, both by the public, and
by the Legislature. It has been regarded as a source of
profit to individual proprietors, but seldom, in modern
times, considered as of importance to the state. The ex-
perience of the last twenty years in some parts of Scot-
land, and, perhaps, more particularly the experience of
the last four or five years, on the northern parts of
the east coast, hap, however, opened the eyes of many,
and displayed a source of national wealth and national

* Accordingly, in some of the rivers of Scotland, special
statutes have altered the season, and in others, local usage, by
common consent, from time immemorial, has overcome the ge-
neral law : while, in many of the principal rivers, the original
statutory regulation is still in force. And, in consequence, as
will be afterwards noticed, the most extraordinary diversities
exist, in regard to the periods during which the fishery is al-
lowed to be carried on in the different rivers in the kingdom.

strength, which was before unknown. And, as a convic-
tion of this truth, must spread wider and wider every
day, there can be no doubt, that, sooner or later, the at*
tention of the Legislature must be directed to it.

The modes of Salmon fishing in use in Scotland, were,
until within the last thirty years, extremely rude and in-
artificial ; and, generally speaking, were adapted only to
the narrow rivers. There was, indeed, it may be said,
wo Salmon fishing in the friths or estuaries,— none of the
modes in use, being suited for such situations.

The most simple mode of fishing was the moveable net
or seine, still in use, generally known by the name of the
coble-net. But the indolence of a rude people naturally
looked for a fixed apparatus, which would perform its
work without the necessity of constant attendance ; and,
accordingly, such a mode of fishing seems to have been
early resorted to in most rivers. The most ancient of
this description, was called a croe, or cruive ; — examples
of which, supported by prescriptive usage or special grant,
are still in existence. It consisted of a dike, or solid
mound of earth, stone, or wood, running across the river
from bank to bank, wherein, at intervals, were placed cer-
tain pieces of machinery for detaining and entangling the
fish in their transit up and down the river.* This dike
or mound, with its boxes or traps, — which were generally

* It has been said, that, properly speaking, it was to this
machinery, inserted in the mound or dike, that the name of
croe or cruive was given. And, — with some plausibility cer-
tainly, considering the structure of such machinery, even at
the present day, — etymologists have described the word croe
to be the same with crib.

of close spars, or wattled work, — must, of course, have to-
tally interrupted the navigation of the river. But it must
also have prevented the transit of the fish, and been ut-
terly inconsistent with the propagation of the species and
destructive to the brood, not of the Salmon only, but
of all kinds of fish frequenting the river.

Cruives were adapted for fishing in any river not of
too great magnitude for such an erection, — whether the
station was above or below the influence of the tide.
There was another species of engine, however, termed a
i/air, which in many respects resembled the cruive, but
was used only within the influence of the tide. Its na-
ture and formation is not precisely known ; but, like the
cruive, it appears to have been possessed of most injuri-
ous qualities; — destroying the brood, and preventing the
transit of the spawning fish. One important part of the
apparatus, seems to have consisted of mounds of wood,
stones, wattled work, or other materials, forming, as in
the cruive, a very extensive inclosure. And it may, per-
haps, convey some idea of its nature, to notice, that,
in statutes regarding yairs, mill-dams are mentioned also;
and, as of the same class, that, in some charters, yairs are
denominated jishing-stanks.

These cruives and yairs, attracted, at an early period,
the anxious attention of the Scots Legislature. There
is a statute extant, so early as the time of Alexander II,
subjecting them to certain restrictions, remarkable for
their rustic and ludicrous simplicity ;* and there is sub-

* This curious production is entitled ' Lex Aquarum,' and
is in the following terms.—' Haec est assisa Regis Alexandri,
f facta apud Perth, die Jovis, ante festum Margaretac, per
' Comites, Barones, et Judices Scotia), quod filum aquae seu

6

scquently a regular series of statutory regulations in va-
rious reigns, down to the time of Queen Anne, all hav-
ing one common object, — the propagation of the Salmon
species, and the protection of the^r^ or young brood of
Salmon. The act of Queen Anne, (21st September 1705,
cap. 11), which ratifies and approves all the former laws
and acts of parliament, enumerates them as being ' made
* anent the slaying and destroying of red-fish, smolts, and
< fry of Salmon?

At the date of this act, and, indeed, for some time after
the Union, the modes of fishing appear to have been
little farther advanced than they were centuries before.
The fishery seems still to have been confined to the nar-
row rivers. It was not attempted, — at least, not by any
efficient mode, — in the friths or estuaries. And it may
fairly be doubted, whether it was then known that Sal-
mon could be caught on such stations, in any consider-
able numbers*

Gradually, however, as the country awakened, and

enterprize was encouraged, and markets were opened,
the fishery began to advance, particularly in the Tweed

* medium aquae, lie streame, debet esse liberum, usquequaque

* in tantum, adeo .quod unus porcus, trium annorum bene
' pastus, posset se vertere infra filum aqua? : Ita quod neque
' rostrum porci, nee cauda appropinquat sepi, vel ripae. Et
' debet aqua esse libera, ita quod nemo ibidem pisces capiat,
' a die Sabbathi, post vesperas, usque ad diem Lunaa post or-

* turn solis.'- — Alexander II, cap. 1 6. The Scots translation of
.this Statute, as given in Skene's Regiam Majestatem, bears,
' that the streame of the water sail be in all parts swa free,
f that anc swine of the age of three zears, wecll fed, may turne
' himself within the sir came, round about > swa that his snowt nor
( taill sail not touch the bank of the water.'

and the Solway, and various means were attempted to
render it more productive. What was called a toot-net
was. tried ; and at some stations another engine called a
stage-net, was introduced. The toot-net, in some respects,
resembled the common seine, or coble-net; but it was
much larger and stronger, and extending to an indefinite
length from the beach into the water, was secured at its
extremity by an anchor. The construction of the stage-
net was more complicated. The fish were here, by means
of a long line of network, fastened like the toot-net by
an anchor, conducted into gins or traps, or what were
termed pock-nets, placed below a wooden platform on
which the fisher stood to watch ; and when they were
inclosed in these gins or traps, he raised them to his stage
or platform, and so secured them.

None of these modes of fishing, however, effected any
material improvement upon the produce of the fisheries,
which remained almost unaltered, until a more efficient
species of apparatus, which was introduced about the
close of last century, by some enterprising fishers in An-
nandalc, opened up new views, and caused a total revolu-
tion in the Salmon fishery of Scotland.

On the extensive fiats or sand-banks in the Solway
Frith, large excavations are made by the eddies of the
current, which, at ebb-tide, form on the banks large
pools,— or lakes, as they are termed by the fishers. At
these lakes, the fishers erected what was at first called
a tide or Jloating-net, in consequence of the net being so
constructed, that it was the operation of the tide itself
which secured the fish. It consisted of strong and coarse
net-work, the meshes of which were ten or twelve in-
ches in circuit, placed along the margin of the lake
and surrounding it on all sides. This net-work was fast-
ened to stakes driven into the banks, at considerable dis-

8

tances from each other ; and at various places in the
lower or flood side, it was so constructed as to open
and shut with the current. These places, again, were
kept open by the flood-tide, so that the fish, during the
flood, were allowed to go freely into the net ; but when
the current of the tide changed and took the opposite
direction, the loose net- work, pressed by the receding
water, was closed,— thus forming a complete inclosure,
in which the fish were detained. And as the tide ebbed,
they sunk down into the lake, where they were caught
by the fishers, at low water.

Such was the origin of what is now called the STAKE-
NET. And it is a curious circumstance, worthy of parti-
cular notice, that, induced by the success of the fishery
in these lakes, — two brothers, William and James Irvine,
experienced fishers on the Solway, and nearly related to
Messrs. Little, who afterwards introduced the invention
into the Tay, — visited the Tay, for the purpose of ascer-
taining whether there were any suitable lakes in that frith,
upon which tide-nets might be erected. But they return-
ed, reporting to their friends that there were none.

It turned out, however, that these lakes were not es-
sentially necessary for the successful prosecution of the
new mode of fishing. Accordingly, Mr. John Little, one
of the Solway fishers, and a gentleman of great ingenuity
and intelligence in other matters, having accidentally visit-
ed the Tay about the year 1797, resolved to try the ex-
pcriment in that frith, and before he left it, he took, for
himself and three brothers, a lease of the Salmon fisheries
on the estate of Seaside.

A net, precisely similar to those on the Solway, having,
accordingly, been erected at Sea-side, the success exceeded
the most sanguine expectations. Previous to this time,
there was, it may -be said, no fishing at that station, the

width of the frith being there not less than two miles.
But now the produce was such as excited the astonishment
of the district, and occasioned the utmost alarm among
the proprietors in the upper parts of the river.

This net had not, however, been long in operation be-
fore a material improvement was made in its construction.
The entrance to the inclosure of the net, as originally
used on the Solway, was shut by the action of the ebb-
tide. But it was observed at Seaside, that, for some time
after it had been thus shut, the fish continued to gambol
on the banks ; and that many might be caught, were the
net so constructed as still to admit them into the inclos-
ure. Instead, therefore, of the former entrance, which,
like a valve, opened and shut with the tide, the net was
now so constructed, as to leave the passage always open ;
but, with such a degree of intricacy in the chambers, or di-
divisions in the body of the net with which it communicated,
that the fish, after being led from one to another, found
themselves completely entangled, and could not again get
into the passage out. By this highly ingenious inven-
tion, which at once displayed and depended upon an in-
timate knowledge of the habits of the Salmon, the opera-
tion of the net was extended to the ebb, as well as the
flood-tide ; and its produce was, of course, much greater
than ever.

Induced by their success at Seaside, Messrs. Little be-
came tacksmen of many other fisheries ; and, gradually,
the newly invented engine, — now familiarly known as the
stake-net, — came into general use in the Frith of Tay.
Upwards of seven thousand Salmon, a quantity equal to a
fourth or a fifth of the previous produce of the whole
river, was caught in one season by a single net at Sea-
side; and at Birkhill, Balmerino, Minefield, and other
places, the success was corresponding. All of these sta-

10

tions, however, are situate in the upper part of the Frith.
But, at the very mouth of the Tay, and at stations which
most men would describe as situate in the ocean itself, the
stake-net was resorted to, with no less extraordinary suc-
cess. The fisheries on the north shore, belonging to the
Honourable Mr. Maule, became, in consequence, of very
great value. Before the introduction of stake-nets, they
were let for ^100; — afterwards they produced £2,750.
The fisheries on the opposite shore, again, belonging to
Mr. Dalgliesh of Scotscraig, which, before the invention,
had produced annually only a few pounds, were now let
for £2,105 of yearly rent. In short, it may be stated,
as a general fact, that a corresponding increase took place
in the value of all the fisheries in the Frith of Tay. *

By one of those coincidences which sometimes occur,
the latter end of last century was likewise remarkable for
a valuable discovery by the late George Dempster, Esq.
of Dunnichen ; by means of which, the fishers were en-
abled to transmit the Salmon, preserved in ice, to distant
markets. Without this discovery, although the benefit
of the improved mode of fishing would have been experi-
enced in the markets, near the fishing stations ; yet the

* The full extent, however, of the value of the fisheries in the
Tay, was never ascertained. Some of the principal stations
were not fished at all, or were only partially fished. On the
extensive coast belonging to Lord Dundas, on the south side
of the Frith, almost immediately opposite to Seaside, not a
stake-net was erected. The same may be said of the Errol
estate, adjoining to Seaside. And the Town of Dundee's valu-
able stations were only partially fished. In fact, from the
small number of individuals engaged in the fishery, few pro-
prietors had an opportunity of ascertaining the real value of
their property.

11

Salmon conld not have been sent in a fresh state to any
distant place. But now, with its aid, the fishers were
enabled to preserve the Salmon fresh as they came from
the sea, and the advantages were spread all over the na-
tion. And, in consequence, a great additional tonnage of
shipping was constantly employed, during the summer
months, in carrying the Salmon, packed in ice, to the dif-
ferent markets in the kingdom.

It seemed, in short, as if a new source of wealth had
opened up. And while proprietors found that their fish-
eries were, in many instances, nearly as valuable as their
lands, a considerable number of individuals found em-
ployment as fishermen, seamen, &c. &c., and wealth was
rapidly acquired by all concerned with the fisheries.

Nor was this state of matters confined to the Tay.
The use of stake-nets gradually extended into other
friths, particularly in the north. And although, from
the want of knowledge and experience, the success, at
first, was not quite equal to that which attended the fish-
eries on the Tay, yet, everywhere, the produce was be-
yond all former experience.

So striking and universal was this result, that the
upper heritors) — >the proprietors of the old river fisheries,
—became alarmed. The new mode of fishing was, ge-
nerally speaking, altogether unsuited for their stations,
and threatened with destruction that MONOPOLY which
they had so long, and so injuriously for the public, been
permitted to enjoy. Accordingly, first, in the Tay, and,
afterwards, in other rivers, these proprietors used every
effort to put an end to the new mode of fishing which had
been adopted in the friths. They asserted, that so tre-
mendous a capture of Salmon could not be made without
the most pernicious consequences. They complained that

the breed of Salmon would be destroyed, and that, unless
stake-nets were prohibited, the species would become ex-
tinct. A hue and cry, in short, was raised. The pro-
phetic clamour was well calculated to work on the igno-
rance and credulity of the public ; and, with one accord,
all were in arms.

Whether the upper heritors really believed all that
they alleged, it is not necessary to inquire; although
it will be seen in the sequel, that never were fears
more groundless. But, if they were not truly alarm,
ed by this phantom of their own creation, at least they
certainly perceived that the monopoly which they had
until then enjoyed, was in danger ; and that, if a quanti-
ty of fish, ten times greater, and of a richer quality, and
in better order than had ever before been in the market,
\vas brought into competition with the produce of their
fisheries, the prices which they had been in use to receive,
could not be maintained.

This, however, was a ground of alarm in which the
public was interested in a sense directly opposite to the
private and exclusive interests of the river proprietors. It
was one, accordingly, which the latter never ventured,
and could not venture to state. There was thus some
difficulty in getting up a different pretext on which to
found the defence of their monopoly. But at length
this was thought to be discovered in the ancient Scots
statutes already mentioned, which had been passed in
dark and rude ages,— centuries before stake-nets, or any
thing resembling them, had even been thought of ;— at
a time, indeed, when there was neither capital nor enter-
prize for such an establishment,* — when there was not in-
dustry and activity among the people sufficient for its
success, — and when there was not even a market for the

i's

produce. The language of these statutes, unfortunately,
was genera], and at the same time obsolete and of doubt-
ful import ; and the usages and interpretations of later
times, in the gradual progress of the art, had attached
meanings to it, by which the enactments had acquired a
very extended operation.

Founding upon these statutes, therefore, the upper he-
ritors on the Tay applied to the courts of law for an in-
terdict or injunction against the use of stake-nets in that
river or frith ; and they were but too successful in their
application. After a long and patient investigation, and
a discussion, conducted on both sides with great learning
and ability, and after much diversity of opinion among
the judges, it was at length decided by the Supreme
Court in Scotland, and the decision was affirmed by the
House of Peers on appeal, that according to the existing
Scots statutes, the fishing of Salmon by stake-nets in ri-
vers, friths, and estuaries, is unlawful.

The example of the upper heritors on the Tay, was
followed by those on other rivers. And, in consequence,
all stake-nets have now been removed, not only in the
Tay, but in most of the friths in Scotland. If in any
frith they are still allowed, it arises from the forbearance
or tolerance of the upper heritors ; for it is now settled
and unquestionable law in Scotland, that any one pro-
prietor, whether actuated by private hostility, or by real
or imaginary interest, may put down, or prevent the erec-
tion of stake-nets in the frith or river in which his fishery
is situate.

In the course of the discussions to which these various
law proceedings have given rise, but more especially,
perhaps, since the use of stake-nets has been prohibited,
the public has discovered that these nets have not the
pernicious tendency which was alleged ; and a gradual re-

volution has accordingly been wrought in public opinion
with regard to them. But although eight years have
now nearly elapsed, since the illegality of the use of
stake-nets in friths and rivers under the existing law of
Scotland, was finally declared ; yet no effort has been
made by the proprietors of the fisheries in the friths, to
avail themselves of this change in the public opinion, and
to obtain relief from their fetters. They have submitted
to them calmly and quietly,—- charmed, one would almost
believe, by some potent spell, which it is impossible to dis-
solve,— and have allowed their own fisheries to return to
their former state of non-existence. The upper heritors
have not been so idle ; but have kept united, carefully
watching over the welfare of their monopoly. Nay, in
some districts, schemes have actually been laid to take
advantage of the lethargy of those most interested, and,
by smuggling a bill through Parliament, to rivet, by the
force of a modern statute, the absurd and noxious fetters
already existing. And in other districts, emboldened by
their former success against the fisheries in the friths, the
river proprietors are now aiming a deadly blow against a
discovery, — for it truly is one, — *even more valuable and
splendid than the original. — This is a matter which it
deeply concerns the public to attend to.

At the time when the use of stake-nets was prohibited,
the tenants, and those who had been practically engaged
in the stake-net fisheries, had large capitals invested in
them, which could not be diverted into any other chan-
nel of employment but at a very great loss. They, how-
ever, have not remained so inactive as the proprietors of
those fisheries. No sooner were they driven out of the
friths and estuaries, than, with an enlargement of view*
and an elasticity of invention beyond all praise, they ex-

15

tended the field of their operations into the proper ocean
itself. And it is now discovered, and by the test of ex-
perience put beyond all doubt, that stake-nets may be used
with success, ON THE OPEN COAST, AND ALL ALONG THE

SHORES OP THE SEA.

This discovery has been made only within the last few
years ; and although, comparatively, the sea fishery has
not hitherto been carried on to great extent, yet, from the
experiments which have been made, it appears to be cer-
tain, that unless the proprietors of the river fisheries be
allowed, in this instance also, to destroy the hopes and in-
terest of the public, a very few years more will introduce
a total and most unexpected alteration on the Salmon fish-
ery of Scotland.

On various parts of the north-east coast, stake-nets have
been erected, and everywhere with the most complete suc-
cess. At Woodston, the property of Lord Chief Com-
missioner Adam; at Duninald, the property of Mr. Ark.
lay ; at Rossie, and several other stations within a very
few miles of each other, on the open sea coast near Mon-
trose, the fishery has been carried on with remarkable
effect. Four years ago there was not a stake-net on that
coast ; and already, those erected produce a revenue to
the proprietors, of about L. 4,000 yearly. But this is
a small sum in comparison with what may yet be re-
ceived. The fishery is in its infancy. Those stations,
even, at which the nets are erected, have been only par-
tially fished. Their full value is thus still unknown.
And there are a great many other stations on the same
coast admirably fitted for the fishery, which have not
been tried.

On the Aberdeenshire coast, in like manner, the fishery
has made considerable progress. Between the Don and

16

the Ythan, it is understood that eleven stake-nets were
lately erected, all of which have been attended with more
or less success. And this mode of fishing is now also in
use at various places on the coast towards Peterhead, — in
the Murray Frith, and in Cromarty Frith.

But the practicability of this kind of fishing has re-
mained so completely unknown until the present time,
that although, in all the rivers, fishing grants have existed
from the earliest ages,— --even at places where the fishery
is hardly worthy of attention, — yet the right to the sea
fishing is still in the Crown. And at this moment, there
are under consideration of the Barons of Exchequer, a
number of applications by landed proprietors, for grants
of a right of fishing on the sea coast opposite to their re-
spective properties, which, if obtained, may ultimately
perhaps, become more valuable, in many instances, than
the land to which the fishings are naturally attached.

All such applications are now opposed by the proprietors
of the river fisheries. And even where grants of sea fish-
ings have already been obtained, those proprietors — per-
ceiving, that, by this new discovery, if its operation be not
checked, their monopoly will, after all, be equally endan-
gered, as it was formerly threatened to be, by the fishings
in the friths and estuaries, — have again united to put an end
to the sea fishery also. The proprietors of the Don and the
Dee have instituted actions, to have it declared illegal
to fish with stake-nets in the open ocean. The proprie-
tors of the Findhorn have commenced proceedings, to put
an end to a stake-net fishery on the coast, eight miles dis-
tant from the mouth of their river. And the upper he-
ritors of the Tay and other rivers, are ready to lend their
aid ! Such is the state of things at this moment : The ac-
tions are in Court ; and, — though no one will now believe

ir

that the question involves any thing but the protection of
a highly injurious and impolitic monopoly, — the probabi-
lity seems to be, that if the existing laws shall not be
amended by the wisdom of Parliament, the new hopes of
the Salmon fishery will soon be at an end.

It is true, that the decisions regarding stake-nets, which
have hitherto been pronounced, apply only to friths,
and that the point of law,— Whether the operation of the
statutes, extends also to the ocean ?— is still unsettled,
and, indeed, has never been discussed. But, until within
these last few years, it was even unknown that a success-
ful fishery could be prosecuted in the ocean. It is impos-
sible, therefore, to anticipate what views our courts of
law may entertain on this subject ; though it is not to
be forgotten that when the decisions in the Tay cases
were pronounced, more than one Judge is reported to
have expressed an opinion that the operation of the sta-
tutes extends to the ocean,—-' to wherever the tide ebbs
4 and flows.'

Without presuming, however, to say any thing on this
question, — which the courts must dispose of, according to
the law as they find it, — at least it may be remarked,
that after the experience which has been acquired in the
case of the frith proprietors, of the consequences of a te-
dious, expensive, and doubtful litigation, it is more than
probable that many proprietors of sea fishings will sub-
mit, rather than encounter their opponents ;— that the
fishery will thus not be attempted at any new stations ;—
and that unless Parliament interfere, the public interest,
as well as the rights of individuals, will be weighed down
purely by the dread of oppressive and protracted discus-
sion in courts of law.

18

The first step towards Parliamentary interference, is to
ascertain distinctly the nature and extent of the evils to
be remedied. The chief of these seem to be referrible,
1. To the defective state of the existing law as to the
regulation of the close-time ; and, 2. To the prohibition
of the stake-net mode of fishing.

I. As to the regulation of the close-time.

A general regulation of the fishing season, originally
applicable to all Scotland, is contained in a statute of
King James I, passed in the year 1404. By this act,
it is forbidden, < that onie Salmound be slaine fra the
< feaste of the Assumption of our Ladie, quhill the
' feaste of Saint Andrew in winter, nouther with netts,
• nor cruives, nor nane uther waies.' And this statute
still regulates the fishery in the Forth, the Tay, and many
other of the principal rivers, — the fishing season ending,
and the close or forbidden time beginning, on Assump-
tion Day, old style, that is 26th August: — and the close
or forbidden time ending, and the fishing season again
beginning, on St. Andrew's Day, old style, being 10th
December. But, although this act still regulates the
Forth, the Tay, and other rivers, yet it does not regulate
all the rivers. In many of them the seasons are altogether
different, — special enactments, in some instances, and in
others, common consent, supported by prescriptive usage,
having sanctioned a departure from the regulation of the
ancient statute. Thus, in the Tweed, the Sol way y the
Don and Dee, the North Esk, and other rivers, the
fishery is allowed to be carried on until a much later period
than 26th August ; — in some until near the close of Sep-
tember; and, in others, until the middle of October. And,

19

on the other hand, while, as already noticed, the close-
time ends, and the fishing season begins in the Forth, the
Tay, and most other rivers, on 10th December ; it begins
so early as 30th November in the Spey and some others,
and not until 2d February in the Tweed, the North Esk,
and the rest.

This single circumstance, that the existing laws per-
mit of such diversity as to the time of fishing within the
different districts of the same kingdom, is of itself a
satisfactory proof that the present regulation of the
close-time is not what it ought to be. There can be
no natural principle, arising from change of climate or
any other cause, to warrant so great a variation as
exists between the fishing seasons in the various ri-
vers. And experience, likewise, presents the same re-
sult; for practical fishers, — as well in the fresh water
as in the friths, — all concur in reprobating the present
most anomalous state of the law. There is, no doubt,—-
as at all times, there will be, when private interests inter-
fere,— some difference of opinion as to the nature and ex-
tent of the necessary alterations. But all are agreed that,
to some extent or other, revisal and amendment are in-
dispensable.

The present system, however, is not defective in unifor-
mity alone; nor would its evils be corrected though any one
of the local regulations now in use, were to be fixed on,
and extended in its operation as an universal rule over
the whole kingdom. The duration of the fishing and
close seasons ought to be regulated, and can be regulated
properly, only by accommodating it strictly to the known
habits and history of the fish.

The common Salmon is a native of the North, and de.

20

lights in rather a cold climate. It is to be found upon
the northern coast both of Europe and America. But
the remarkable purity and moderate temperature of the
rivers and seas of this country, — neither so warm in sum-
mer, nor so cold in winter, as the rivers and seas in the same
latitude in other parts, — render them more particularly
the haunt of the Salmon. We have, — at least until within
these few years, — been accustomed to see the fish chiefly
in our rivers ; and, therefore, it is vulgarly regarded as a
river fish. But its proper and natural abode is in the
ocean and the estuaries on the coasts : though at particular
seasons, and when impelled by the various instincts to
which it is subject, it leaves the sea for a time, and re-
sorts to the fresh waters.

The most important of these instincts,— and it is the
one with which, at present, we have to do, — is that con-
nected with the propagation of the species. The proper
spawning place of the salmon, is in the upper parts of the
rivers and brooks having alpine sources. And it prefers
to all others, a gravelly pebbled bottom, where there are
large stones free from every kind of slime. To attain
these stations, it leaves the sea, and ascends the rivers
with impetuous violence, disregarding the rapids and ca-
taracts, and overcoming obstacles almost incredible. When
the spawning season is over, it returns to the sea. Some,
what later, the young brood comes into life, and, as it gains
sufficient strength, it also descends to the sea.

The fish usually conceive about the end of July, or ear-
ly in August, and it is in September that they begin to
leave the sea and ascend the rivers. This transit continues
during the months of October and November. About
the beginning of November the spawning commences, and
it continues until towards the close of December. These

are ordinarily the periods ; but, of course, they are liable
to be affected, in some degree, by various causes.

The spawning fish generally betake themselves to re-
tired shallows, where a kind of trough or furrow is formed
in the gravel, in which the female first deposits her ova ;
and the male immediately thereafter, emits a whitish fluid
or matter upon them. Both fish then proceed to throw-
up the gravel upon the troughs, which they level with
wonderful precision, They pay no more attention, how-
ever, to their spawn. But the exertion required for these
operations, aided, perhaps, by the effects of the fresh
water, reduces them to a very weakly state, and retains
them for about a fortnight on the spawning ground.
They then begin to move downwards, and, gradually as
they gain strength, seek their way back to the sea. In
the month of January they have begun their course ; and,
in February, they are found in great numbers in the
lower parts of the fresh water rivers, and in the friths. In
March, particularly at the beginning of the month, many
are still to be met with. But, by the end of March, they
become rare ; and although they are occasionally found
even in April, yet the number is small.

It is a considerable time before the spawn become ani-
mated, and assume the appearance of fish. Early in the
spring, under the influence of the sun's heat, they begin
to grow up, (as was forcibly described by witnesses in
the Tay case), ' like beds of young onions,' or * the
' thick briard of a well manured field ;' the head, con.
tinuing imbedded in the gravel, and the other parts of
the body rising in the water. In the end of March, or
beginning of April, the young fish separate from the ova,
and are finally detached from the gravel. They are then
extremely diminutive and delicate. After growing,—-

which they rapidly do, — to the length of a few inches, and
while yet without much appearance of muscular vigour,
their natural instinct leads them towards the sea, and they
are aided in their progress by the vernal floods.

At first, they keep near the margin of the river, avoid-
ing the current of the mid stream as too impetuous, and
seeking what fishermen call the easy-water at the side. In
most rivers, this migration takes place about the end of
April, or beginning of May ; and, as the fry pass down-
wards through that part of the river which is not affected
by the tide, or only so affected as to moderate the current,
they may be seen in myriads, moving along slowly and
with seeming timidity.

But there is a certain point in the course of every
great river, where the margin ceases to be easy-water,
where the tide operates more directly, and where there
is a constant and considerable agitation along the shore.
At this part of the river, the same cause which before com-
pelled the fry to seek the banks, induces them to resort
to the waters in the mid stream, which have now become
deep, and comparatively quiet and tranquil. Here, ac-
cordingly, they disappear. And though no longer to be
seen, they fall gently down with the tide to the sea.

From this account of the habits and history of the fish,
the error of the existing regulations of the fishing season
is apparent. If there be any truth in what has been
said, — and the statements are in substance what all na-
turalists and fishers are agreed upon, — it is evident, that
the general regulation under the statute of 1404, allows
the fishery to begin just at the very time when it ought
to be most strictly fenced ; and that the regulations ap-
plicable to the Tweed, the North Esk and South Esk,
and other rivers, — which allow the fishery to continue

until the middle of October, — authorize the destruction of
the fish at the moment when, loaded with spawn, they are
seeking a place in which to make their deposit.

What particular limits should be assigned to the re-
spective endurance of the fishing and close seasons, is a
question, however, of some nicety, and one on which in-
dividual proprietors, weighed by their private interests
and habits, will of course differ considerably. Perhaps,
in conformity to the present system, it will be maintained
by some, that, during certain periods, the fishery might,
with safety, be allowed at some stations, when at others
it ought to be prohibited. For example, it may plausibly
be said, that the fishery might be prosecuted with public
advantage in the sea, and in friths and estuaries, at times
when it would be attended with noxious effects in narrow
rivers ; that, when in the rivers, fry would be destroyed,
or none but spawning fish taken, and so every capture be
injurious, — the fishery might, in the open ocean, be car-
ried on without any destruction of the spawning fish, and
without the slightest injury to the fry, which would then
be either in the fresh water, or imbedded in the depth
and stillness of the mid-stream. On the whole, however,
from the great number of private interests, which are in-
volved in the question, as well as from other considerations,
the more expedient course seems to be, at once to put
down this plan of local or partial legislation. The best
and surest chance of legislating with advantage to the
public, is assuredly to introduce one broad and uniform
system, applicable alike to every possible diversity of sta-
tion.

Without, then, intending to say, absolutely, what ought
to be the duration of the jishing season^ it may be sug-
gested generally, that the present period of its closing,

agreeably to the general regulation under the statute
1404, viz, 26th August, is, perhaps, not far from what
it should be. Some fishers^ indeed, say, that so many
sound fish might be caught after 26th August, with
comparatively little injury to the breeders, that the fish-
ing should be continued for a fortnight longer; — there
would remain, they say, a number of breeding fish,
fully sufficient for propagating the species, although
it were continued until the end of the first week of
September. But other fishers contend, that the season
ought to close on the 1st of August. And between such
conflicting opinions, it is difficult to ascertain the truth.

With regard to the duration of the c/o*c or fence-time,
and the period when the fishing should be allowed again
to commence, all are agreed . that it should be much
later than is prescribed by the general statute of 1404.
At the statutory period, (10th December,) the fish are in
the very act of depositing their spawn ; and, for some
time afterwards> they are still in the upper parts of the ri-
vers, incapable of exertion and unfit for use. Even the pe-
riod observed in the Tweed, &c. (2d February), is ac-
knowledged to be too early. It is chiefly in Febru-
ary that the fish, after having deposited their spawn,
are found, under the name of/bit/ fish, seeking their way
to the sea : — and, while these fish are almost useless,
though taken, there are, it may be said, no others in a
sound state to be met with. Even in March, some of the
unwholesome fish are in the fresh waters, and few sea fish
have entered the rivers.

But this is not the only reason why the close-time should
be prolonged. The spawn does not become animated, and
leave the ova, until the end of March or beginning of April ;
and even in the end of April, or sometimes in the begin-

. 25

ning of May, the/ry are still in their progress to the sea«
Now, taking this fact in connection with the destruction
of the fry necessarily attendant on the present modes of
fishing, it is evident, that so long as those modes are
continued, the close season ought to be greatly pro-
longed.

The mode generally in use,— laying out of view the
cruives, at particular stations,— is the coble-net ; which is
a loose floating net, the upper side being buoyed up by
cork or blown bladders, or other means ; and the under
side kept upon the gravel, by ponderous weights, — lead
or iron, or heavy knotted ropes.

This net is used, — or shot as it is termed, — in different
ways, according to the local currents and the nature of
the station at which it is employed. But, in general, in the
upper parts of the rivers, one end being first connected
with the shore by a rope, the net is placed in a coble,
which is rowed across the river as near as convenient to
the opposite bank, and, as the coble proceeds, the net
drops into the water; the lower side with its weights or
ropes sinking to the bottom, and the upper being buoyed
to the surface of the river. The current operating upon
the net, presses the body of it along with the stream, so
that to keep it always extended, it becomes necessary for
the fishermen on the shore, to drag the inner end along
the bank ; and for those in the coble, in like manner, to
drag the outer end along with the body of the net, as it is
carried onwards by the pressure of the current. In the
course of its progress, a bay or chamber is gradually form-
ed towards the centre of the net, into which all the fish
which it encounters are received. The outer end of the
net is afterwards brought rapidly to the bank, thus en-
closing all the fish within the bay ; and, by means of

windlasses, the net, and all that it contains, are then
dragged on shore.

While the net is in this manner impelled down the ri-
ver and drawn on shore, its weights, or heavy ropes, are
dragged along the banks, and upon the bottom of the
river, tearing up the gravel, and crushing and bruising
every delicate matter they fall upon. The effect of thus
dragging the net, with its ponderous weights, along the bot-
tom, where the spawn is deposited, or the young fish are ri-
sing into life, tearing them up, and crushing and bruising
them among the gravel, must be destructive to a degree
beyond the power of numbers to state. And how great
also must be the destruction, even at a later season, after
the young fish are detached from the oza, and are gaming
strength, or seeking their way to the sea !

These are matters deserving of serious consideration,
in framing any new regulations of the close and fishing
seasons. And they demonstrate, beyond all question, the
necessity of the fishery being forbidden, in rivers at least,
until a period greatly later than is at present in observance.

II. We come now to consider, whether the old Scots
acts, under which the use of stake-nets has been held to be
prohibited, ought not to be repealed.

And here it may be remarked, in the outset, that there
seems to be no reason for holding, what the heritors on the
fresh waters have sometimes maintained, that their private
rights would be invaded, if stake-net fishings were per-
mitted. This is an argument against the use of stake-
nets, which any one who considers the subject dispas-
sionately, must perceive to be totally without foundation.
The statutes by which stake-nets are held to be prohibit-
ed, are public statutes ; having no other object in view but
the public advantage, and liable to be repealed the mo-

merit it shall appear that they do not promote the inte-
rests of the public. This, indeed, is the only legitimate
ground on which the Legislature could ever have taken
the fishery under its controul. It would have been in
opposition to the interests of the state, as well as to com-
mon justice, to prohibit the most successful mode of fish-
ing at the stations belonging to one heritor, had no bet-
ter end been in view than the private advantage of ano-
ther heritor, who might happen not to possess the same
local advantages. Such an act would have been absurd
and iniquitous. No man would venture, in these times,
to advocate such a policy; nor can it ever have been, in
any age, the policy of the Legislature. That the exist-
ing statutes, accordingly, were viewed by the Supreme
Court, as exclusively directed to public objects, every one
must be aware, who has attended to the legal discussions
which have taken place since the introduction of the
stake-net mode of fishing. Nay, so forcibly was this view
urged by some of the Judges, in advising the Tay case, in
1812, that they deprecated the very idea of the statutes
having been framed for the private interest of individuals,
as * inexpedient ,' ' absurd,"* and ' unjust ? as ' abominable?
as an ' imputation on the Legislature.'1 *

* The observations of the late Lord Meadowbank, and of
Lord Gillies, on this subject, are well deserving of attention. —

Lord Meadorvbank, — (whose opinion, by the bye, was hos-
tile to stake-nets upon the law of the case), said, in explanation
of the grounds of his opinion, in favour of the pleas of the up-
per heritors, that f I by no means rest on this, that the legislature
' nould have been even justified in depriving the inferior heritors,
' on the estuaries at the mouths of great rivers, of their right of

'jtsking

It may also be noticed, that the question of the expe-
diency or inexpediency of allowing stake«nets to be
used, did not at all enter into the consideration of the
Judges, in determining the question of law, whether the

' fishing in any manner they pleased, upon any principle or pur-
( pose of destroying their monopoly. They could HOT BE jus-

* TIFIED if they had done so. It would have been AN ABOMI-
' NABLE ACT to have destroyed the right of the fortunate pro-
' prietorsj who had their valuable interests within reach of the
' sea, in order merely to have favoured the naturally less pro-
' ductive fisheries of the upper heritors. It would have been

* just the same thing as to have prohibited a proprietor on the sea
' shore from cultivating the better sorts of grain, Sfc. upon his lands,
f in order that the proprietors situated on the mountains might
' not be outdone by him. It is so ABSURD, that there can be no
( ground for it. It is AN IMPUTATION UPON THE LEGISLATURE

* to suppose so. The only legitimate purpose they could have,
' was to preserve the fry, and favour the increase of the fish-
' ery generally ; and, on that footing, they were entitled to
f stop every engine that they thought might tend to displenish
' the rivers of fish,— every kind of engine which was incom-
' patible with keeping the rivers in a full supply of fish.
' There was no intention that the inferior heritors should be
' deprived of any part of their right,' in order to give the supe-
' rior heritors more valuable fishings.— That purpose would

* have been quite illegitimate.'

Lord Gillies said, that he had no doubt that the upper herit-
ors ' are wrong in their proposition, that it was any part of
•' the object of the legislature to prevent inferior heritors from
' monopolizing the Salmon. They meant to preserve the breed ;
•' and not only do I conceive that such was their object, but
. f that, neither in point of justice or expediency, could they have

' had

mode of fishing fell under the prohibition in the statute-
book. They had nothing to do with it. They had to take
the law as they found it, fettered by the precedents and
usages of former times. And one and all of them, accord-
ingly, laid out of view the question of expediency, leaving
it to the legislature, to whom it properly belonged. The
late Lord Meadowbank is reported to have expressed him-
self in these distinct and decided terms.— c Much /said his
Lordship, * has been said of the immense patrimonial
4 and national importance of the question. I beg leave

* to say, that I divest my mind as much as possible of

* the great value of the interests in competition. I com-

* pel my mind to consider it as if it were the case of an

' had any other object. In the first place, IT WOULD HAVE
' BEEN INEXPEDIENT to prevent Salmon from being caught in
' the greatest possible quantity, and the nearer the sea the better,

* as thejish are the most likely to be in a good and Jirm state.
' In the next place, IT WOULD HAVE BEEN UNJUST to deprive
' inferior heritors of the natural advantages arising to them from
' their actual situation. Many such advantages there are, and
' they are inseparable from property. One man has an estate

* near a sea-port, or adjoining a great turnpike road, and he
' has benejits thence arising, which place him in a belter situation
' than the generality of his neighbours. In the same way, where

* a person has a Salrnon-Jishing, his property is enhanced in va-
' lue by it ; and where it is near the sea, the property is still
' more enhanced than if it were situated far up the river. All
' these are adventitious benejits resulting from natural situation.
' Such are the benefits enjoyed by the lower heritors in the
' present case, and it would have been A MOST ABSURD AND
« UNJUST POLICY, if the legislature had intended to prevent
' them from catching as many Salmon as they could/

30

individual merely ; for it is a question of law which I
am bound to construe as a judge, tied by precedents, and not
biassed by its consequences in any way. As to the various
questions of expediency, as to the new light which has

4 been thrown, by great ability, on what it is alleged
ought to be the construction of the statutes, I am hum-
bly of opinion, that it is the province of the legislature

c only to appreciate these, and apply the remedy, if wrong has

* been done, not of your Lordships. You must tread in
c the footsteps of your predecessors ; you must separate
'the new lights, which have been recently thrown upon
' this subject, from the case as it stood upon the old acts

* of parliament, and the decisions of this Court. That

* is all that you have to do ; you must consider these

* matters only, and decide upon them, whatever injury
may be occasioned thereby to any person or body of
men ; and if there shall be any wrong done to the public
interest, by any judgment that you may pronounce, you
may rest in tranquillity, in the assurance that THE WRONG

* WILL BK RECTIFIED BY THE POLICY AXD WISDOM OF

* THE LEGISLATURE.'

The general question, then, whether as a great public
measure, Salmon fishing, by means of stake-nets, ought
or ought not to be prohibited, remains still to be determin-
ed by the result of an inquiry into their expediency or
inexpediency. It is not fettered by private rights in the
upper heritors, nor has it been judged of by the courts
of law. It lies with the legislature to inquire into the
policy and effects of the prohibition, and to alter and
amend the laws accordingly.

Now, with reference to the simple question of the ex«-
pediency or inexpediency of allowing stake-nets to be
used, — the objections which have been stated to this mode

31

of fishing are chiefly these : — 1. That it is injurious to the
breed of the Salmon, by capturing the spawning fish and
the fry ; and, 2. That, by means of it, such immense
numbers of Salmon are caught in the sea and in the friths,
that eventually the species itself may be annihilated.

1. The first objection, — that the use of stake-nets is
injurious to the breed, — is deserving of much attention.

Buts in the first place, so long as the fishery is allowed
to be carried on at a period of the year when the spawn-
ing fish and the fry are exposed to capture, all modes
of fishing, more particularly in the rivers, must more or less
affect the breed. It is in this view, accordingly, that we
have already pointed out the necessity of some alteration
in the existing law as to the fishing and close seasons.
But if these were properly regulated, the spawning fish
and the fry would be protected, whatever the nature of
the fishing apparatus. It is, therefore, an absurd and
narrow policy to prohibit any mode of fishing, in other
respects beneficial, merely because, under the existing
regulations, it affects the breed of the fish. Instead of
prohibiting this or that engine, the Legislature ought to
direct their attention to the time of fishing ; and if the
regulations, in that respect, were once made suitable, the
nature of the engine, so far, at least, as respects the breed,
would comparatively be of little importance.

It is unnecessary, however, to shelter the stake-nets,
under any general argument of this nature. The charge,
that the breed is injured by this mode of fishing, is alto-
gether unfounded.

This point was set at rest in the Tay case. Two careful,
intelligent, and impartial persons were in 1809, employed to
make a survey of the Tay ; and were furnished with writ-
ten instructions, prepared and signed by the present Lord

Cringletie, (then Mr. Wolfe Murray), "counsel for the
lower heritors, and which had previously been communicated
to the upper heritors* These persons were instructed,
that they * should go up the Tay till they found
6 the fry, and saw them distinctly seeking their way
4 downwards to the salt water ; that when the fry were

* discovered, they should be carefully traced till they

* change their situation in the water, that is, when they

* leave the sides, or easy water, and go more into the
( stream : that the fry should then be farther traced and

* watched minutely, till they disappear entirely ; and,

* that under the point where the fry disappears, between
c that and the occean, nets, with very small meshes,

* should frequently be drawn in the water, between high
' and low water-marks, in order to prove whether any

* Salmon smolts are to be found in that body of the tide.'
And they were also instructed, « that the stake-nets should

* be daily examined, in order to discover whether any
< Salmon fry were to be seen in them.' These instruc-
tions are quoted, in order to shew the care with which the
matter was investigated. The result was a confirmation
of what has already been noticed in considering the ques-
tion as to the close-time ; — that, in their progress to the
sea, the fry are so guided by instincts, or affected by ob-
vious physical causes, as invariably to prevent their ap-
proach to those parts of the coast where stake-nets are
used. They keep at first the easy water at the margin
of the river, avoiding the impetuosity of the jilum jlumi-
nis ; but at the point where the margin ceases to be easy
water, where the operation of the tide, the flux and reflux,
agitates the sides of the stream, they leave the banks, and
seek the peace and stillness of the deeper waters in the
middle ; and thus, without ever afterwards approaching

1

the coast, beyond this point, — without being more seen,
— they find their way, undisturbed and uninterrupted, to
the ocean.*

* Mr. James Sime, tenant at Wester Flisk, one of the per-
sons appointed to make the survey in the Tay, was examined
upon oath, as to the result. He swore, that having been
desired to select a person to make the survey along with
him, e he chose Stewart Shepherd, tenant at Balmerino,
' as being the person, so far as the deponent knew, best qua-
' lified, without any interest in the fishing, to assist in the pro-
' posed survey.' And he afterwards depones, That ' the re-
' suit of the survey is, that he has inspected the whole stake-
1 nets which are erected this season in the Tay ; and he. has
' never found in any of them, either Salmon-fry or small Jlsh
' of any kind, except a few flounders.1 And with regard to the
progress of the fry towards the sea, he ' depones, That he has

* been acquainted with Salmon-fry for twenty-seven years;
' and, on the 28th of April last (1809), he saw a great quantity
' drawn ashore at Stockgreen, by the nets used in the net and
' coble Jishing, part of which were left on the bank, and part
' went back into the river with the net Depones, That the
' deponent and Shepherd never used the small meshed net a-
' bove the mouth of the Earn, as the Salmon^fry mas visible
' to the naked eye in the Tay a little above that spot ; and the
' reason for using the small meshed net at Carpow was, because
' the Salmon fry there ceased to be visible. Depones, That the
' result of this survey is, that below Carpcw-Bank the deponent
' and Shepherd found no Salmon-fry, although they fished the

* river with the small meshed net, both in the eddy water and
1 in the stream. Depones, That during all the time he has
' fished for spirlings, he has never found any Salmon-fry in
' these spirling-nets, although the deponent believes that the

E « fry

34

This point in the river Tay was found to be near Car-
pow Bank, immediately below the junction of the Earn
with the Tay. Until the fry approached to within half
a mile, or three quarters of a mile, of Carpow Bank, they
were seen distinctly at the margin. When they first dis-
appeared, they were found, by trials with the small
meshed net, to be in the mid-stream : but a short way
farther down, they were so completely in the depth, that
they could no longer be discerned. Now, no stake-nets
were ever erected in the Tay above Carpow-Bank. And
from the very habits and instincts of the fry, therefore,
none could be within the reach of the stake-nets in the
Tay.

These habits and instincts, indeed, afford a gene-

* fry goes down the river in the month of April ; and the nets
' used for catching spirlings are so small in the mesh, that
' they would catch Salmon-fry, as they have caught spirling-
' fry, which is smaller than Salmon-fry. Depones, That dur-
' ing the survey of the stake-nets, along with Shepherd, the
' deponent just saw onejbuljish or kelt in the Monorgan stake"
' net, which was taken out and thrown back into the, river. De-
' pones, That during their survey, the deponent was generally
' in the stake-net before thejishers came to take out thetfish. De«
' pones, That they observed no Salmon-fry in the Tay till the

* 28th day of April, when thcyjirst saw them at the Coal Shore,
' immediately below Perth, in thousands, and found them down-
' wards all the way, till within half a mile above the junction of
f the Earn with the Tay. Depones, That at high water, and at
' the first of the flood, the deponent observed the fry in the
' easy water, near the side of the river, and when the tide eb-
' bed, they appeared to go into the current ; and the last fry
' which the deponent caught with the net in going down the river ,
' was in, the channel opposite to Carpow-Bank.'

35

ral protection to the fry from injury by the stake-nets;
for, although in most rivers, it would certainly be possible
to use such nets with success, at stations above the point
where the fry disappear, — for example, farther up than
Carpow-bank in the Tay, — yet at most places, the coble-
net might be used with equal, if not perhaps with greater
advantage *. It is chiefly in the open sea, and in the wide
friths and estuaries, that the superiority of stake-nets is
experienced- In the upper parts of rivers, the coble-net
may be extended from bank to bank, so as to intercept all
the fish which come into them ; thus accomplishing all
that could be expected from the most efficient stake-net,
and at infinitely less trouble and expence. In the sea
and the friths, however, more extended apparatus is in-

* No stake-nets, it is believed, were ever erected in the
Tay, even so far up as Carpow Bank. But there seems to be
no reason to doubt that they might be successfully used even
as far up as Kinfauns. And it is the same in other rivers.
The chief difficulty arises from the navigation, which might be
materially interrupted were the use of stake-nets allowed at
the upper stations, where the river is narrow, unless they were
subjected to suitable regulations. But, at the same time, there
are two things which, perhaps, merit consideration. In thefast
place, would the stake-nets be a greater interruption than the
cruives or fishing dykes which are at present allowed to run
into rivers ? And, secondly, might not the navigation be in
some measure even benefited by the stake-nets, in as much as,
by obstructing the free course of the tide and so in effect con-
tracting the outlet of the water, they would have a tendency
to deepen the mid-channel of the river ? If any general legis-
lative measure shall be adopted in reference to the salmon
fishery of Scotland, careful provision should be made with re-
spect to the navigation of the rivers.

36

dispensably requisite, in order to procure such a circuit as
•will bring the fish within reach of the net. And it is, ac-
cordingly, only in the sea and the friths that the full value
of the stake-net invention is experienced.
i Before the fry enter the friths, however, they have left
the margin of the river, and sought the depth of the mid-
channel, far from the shore, upon which alone the stake-
nets can be erected. And, in the sea itself, none are ever
to be observed. Neither, therefore, in the Tay, as has
been seen, nor in any other frith, and far less in the sea,
have any Salmon fry ever been destroyed by the stake-
nets. The contrary, no doubt, was at one time alleged,
and believed ; but it is now unquestionably established,
that never was a charge more destitute of truth.

But, even were the habits and instincts of the young
brood not so decisive of themselves, it would still be im»
possible that any injury to the fry could arise from the
stake-nets. The structure of a stake-net is such that it
cannot detain the fry. The net does not hang loose, but
is extended on stakes; — and every mesh is open, pre-
senting a circuit of from ten to twelve inches, and a side
fully three inches in length. Now, it is evident, that
such an apparatus could not injure or interrupt the fry,
even if they were within its operation. They would, on
the contrary, pass through as freely as the tide.

It is extremely worthy of notice, however, that though
the charge of injuring the fry, falls altogether to the ground,
when applied to the stake-nets, it holds good, and is highly
applicable with regard to the coble-nets of the fresh water.
These nets are to the utmost degree, destructive of the fry,
by intercepting them as they float along the margin of the
river. The meshes are small, and, from the nets hanging
loose, they are at all times close ; so that the fry, in their
progress downwards to the sea, get entangled in them

37

and cannot afterwards extricate themselves : by which
means, great numbers of the brood are lost. Much
greater numbers are destroyed by being inclosed in the
net itself, when it is rapidly swept along the bank, and
all that fall within its circuit are dragged to the shore,
But the loss which is occasioned by the weights attached
to the nets, tearing up, crushing, and bruising the yet
inanimate beds of spawn deposited at the bottom of the
river, is altogether incalculable.

So far as respects the fry, therefore, nothing farther
needs be said. It is established, as clearly as evidence
can establish any thing, that it is the coble-nets alone,—
those favourites of the law, — by which the fry is injured
or destroyed ; while the stake-nets, which the same law
at present prohibits and puts down, are altogether harm-
less.

How, then, stands the case, next, with reference to
the spawning fish ?

It is very evident, that there must be a destruction of
these fish, in a greater or less degree, at all stations to
which they resort, whether the engines in use be stake-
nets or coble-nets. But here, again, as in the case of the
fry, the result is infinitely more favourable to the stake-
nets than to the other.

The stake-nets, it will be kept in view, are not fitted
for narrow rivers, neither can they extend through the
depth of the mid-channel, — the place of navigation. They
can be used with advantage, only upon the banks and
shoals of the friths, and the sloping shores of the ocean,
which the tide leaves when it ebbs. But it is not at these
stations that the spawning fish are to be found in any great
numbers. Stray fish may, no doubt, find their way within

38

reach of the nets; and at stations in frith ^immediately below
the fresh water, they may even be found, in considerable
numbers, at late periods of the season, waiting for the floods
to aid them in ascending the rivers to the spawning grounds.
But, generally speaking, the spawning fish, impelled by
their natural instinct, rush from the sea to the fresh wa-
ter with great impetuosity. And both in ascending the
rivers, in order to spawn, and afterwards, in returning to
the sea, they almost uniformly keep the direct course
afforded by the mid-channel, where they have the assist-
ance of the tide. It is seldom, therefore, that such fish are
to be found at the sea fishings. It is in the fresh waters
that they are caught in the greatest numbers.

Accordingly, in the Tay case, on a particular investi-
gation of this point, it turned out that the number of red
or unspawned fish, which had been taken by the stake-
nets, was very small ; and that the capture of foul or new-
ly spawned fish, or kelts, as they are termed by the fish-
ermen, was equally inconsiderable : — while, on the other
hand, the destruction of both descriptions, by the coble-
nets, was very serious. A regular survey was made in the
month of August 1809, of some of the upper fisheries,
and it appeared that the coble-nets there, captured forty-
six Salmon between the 14th and 28th of August, and
that of these forty-six, twenty-three were red jish, or fish
ready to spawn, and seeking the spawning ground.
And as to the kelts, it was likewise given in evidence, that
they were taken in vast quantities by the net and coble
fishers, — even cart-loads of them at a time, — and were
sold at a low price to the poorer class of people. At the
stake-nets, however, the capture of a red fish, or of a kelt,
during the same period, was a circumstance that rarely
occurred. Can there be conceived any thing more decU

39

sive as to the relative effects of the respective modes of
fishing ? *

As to \hejirst objection, therefore, — that the stake-net
mode of fishing is injurious to the breed of the Salmon, by
destroying the fry and spawning fish, — it may now surely
be assumed, that it is worse than groundless. It appears
that that mode of fishing is not nearly so destructive as the
one at present generally in use. And, hence, so far from
its being expedient to prohibit the use of the invention,
it would seem that a totally opposite conclusion must be
drawn ; and that the protection and fostering hand of the
law, cannot too speedily be extended in its favour.

2. But another objection which has been stated against
the use of stake-nets is, that by means of them, such an

* The deleterious quality of redjlsh and keltr, has been fre-
quently experienced, especially in Ireland, where greater free-
dom is used in destroying them than in this country. One
remarkable and very melancholy case, however, occurred here,
several years ago, in the parish of Moffat in Annandale. The
men of two families had been very assiduous, and but too suc-
cessful in killing red Jish, in October and November ; which
were salted for winter use, and served for some months, as al-
most the only food of the families. In spring, a putrid and vi-
rulent fever, arising from this circumstance, took place in both
houses. The one family consisted of seven, and the other of
nine persons ; each comprehending a husband, wife, and some
sons and daughters, grown up to be men and women. In the
course of three months, and in spite of medical assistance, the
sixteen persons of these families, were all swept off by this
mortal fever, except one young man, who with great difficulty
recovered.

40

immense number of Salmon is caught in the sea, and in
the friths, that there is great danger that the species will
become altogether extinct.

The secret ground, however, of this objection, is an ap-
prehension on the part of the upper heritors in rivers, that
the produce of their fisheries would be very greatly reduced.

That an extension of the salmon fishery by means of
stake-nets, would be deeply injurious to these heritors, by
at once breaking in upon their present monopoly, is un-
doubted. But this, so far from being prejudicial to the
public, has already been shewn to be a very great benefit,
and consequently to afford an insuperable argument in
favour of the extension of the new mode of fishing.
And it is not true, that the introduction of stake-nets
at the fisheries of the lower heritors, would, in any other
way, affect the interests of the upper heritors, than as an
opening up of their monopoly.

It is not necessary to dispute, that an immense num-
ber of Salmon might be caught by stake-nets, if the use of
them was freely allowed, as it ought to be, in the friths
and estuaries, and all along the open shores of the sea.
It is the immense increase in the produce of the fish-
ery, which would follow from the permission of stake-
nets, that forms one chief ground for desiring a re-
visal and amendment of this part of the existing law.
The produce of the fishery would possibly exceed all that
has ever been contemplated.* But it is a vulgar error to

* The progress of stake-net fishing, has hitherto been re-
tarded, both by its fluctuating and hazardous character, and
by the want of persons of sufficient capital, knowledge, and
experience, to prosecute the fishery. To construct a stake-
net properly, — while it requires some capital, and an inti-

41

suppose, that any increase in the produce of the nets in
the friths and in the sea, would materially, or in any per-

mate knowledge of the habits of the fish, and of the currents
and tides on the coast, — requires also, no small portion of na-
tural talent. It often happens, that one man will catch a vast
number of fish, where another, wanting the same skill and in-
genuity, altogether fails. There is so much difficulty in se-
lecting a proper station, — in placing the leaders of the net, so
as to be effective, — in choosing the proper scite for the cham-
bers, where the fish will be most subject to capture, — and in con-
structing them, so as to entrap the fish in the greatest num-
bers, and, at the same time, with sufficient intricacy to detain
all which they receive ; — that it is not every fisher who can
display the full value of a station, or the efficacious powers of the
engine. Messrs Little, — to whom, and their partners, the country
is chiefly indebted for the invention, — left the Scots fisheries, after
the stake-nets were prohibited in the friths and estuaries, and re*
moved to Ireland, where they have now extensive establishments.
But Mr. John Holliday, of Droughty Ferry, — the nephew and
formerly the partner of Messrs. Little,— is still engaged in the
fishery here. He is the tacksman of several of the principal
stations on the coast near Montrose, and at other places ; and
is, perhaps, better qualified than any other individual in Scot-
land, to prosecute the fishery with advantage. Indeed, the suc-
cessful fisheries are, for the most part, in the hands of those
who have received their knowledge from Messrs. Little and
Holliday : And even the sea-fishings, so far north as the Mur-
ray Frith, are held by fishers from the Tay, recently connected
with them. Were the use of stake-nets legalized, however,
persons possessed of the requisite qualifications, would not be
wanting, to prosecute the fishery to an extent hitherto unknown.
But the law, in regard to them, is so calculated, in its present

F

ceptible degree, affect the produce of the river fisheries.
And it is utterly absurd to suppose that the species itself
would be endangered.

In ihejirst place,, let us consider the effect of the stake-
nets upon the produce of the river fisheries.

The Salmon, as was formerly noticed, is not a river
fish, but chiefly, though not exclusively, an inhabitant of
the ocean. And it is a migratory fish, — wandering from
coast to coast. It frequents the fresh waters only when im-
pelled by its natural wants and instincts, but it cannot
remain in them without becoming wasted and diseased.
So serious is the effect of the fresh water, that a full-grown
salmon, proceeding in all its richness and firmness from the
sea to the river, will lose, in a few days, two or three
pounds of its weight. This is a fact quite familiar to
fishers : who have no difficulty in distinguishing a fish
which has been in the fresh water, even for a very short
time. In those places, — common in Ireland, — where the
salmon are caught in cruives, or cuts as they are sometimes
termed, and kept alive in the fresh water, until an oppor-
tunity occurs for sending them to market, a very few
days detention diminishes considerably the weight of the
fish. And, as might naturally be inferred from these facts,
it is ascertained that the Salmon avoids the fresh water,
unless when compelled to resort to it.

It has already been seen, that the most powerful and
direct impulse under which the Salmon leaves the sea, is
that which tends to the propagation of the species. But,

state, to repress the spirit of enterprise, that it is not to be
expected that stake-net fishing will be a favourite mode of
investing capital, or that any will engage in it, who were not,
in some measure, connected with fisheries before the law was
finally declared.

43

occasionally, it resorts to the shores and to the fresh
water, to seek relief from certain small insects with which
it is tormented in the ocean. It is then seen along the
banks and shores of the friths, rubbing its body on the
gravel, to drive the insects from it ; and sometimes, it
rushes into the fresh water, where these insects cannot ex-
ist ; — and having thus obtained relief, it returns to its
natural haunt. Other wants and instincts of a similar
kind, likewise influence its motions. And thus it is, that
although the great body of the fish are always in the ocean,
numbers of them are in a continual state ot transition,
from the ocean to the friths and rivers, and from the friths
and rivers back again to the ocean.*

What has now been stated, involves the whole merits
of the question. In supposing that the river fisheries
are seriously affected by the success of the stake-nets,
it is assumed, that the fish which are captured below,
would have gone to the upper fisheries, if they had not
been intercepted. But this is not the fact. The fish which
are captured by the stake-nets, are not those which would
frequent the fresh waters. The latter are almost invariably

* The insect by which Salmon are annoyed, after long re-
sidence in the sea, is called by fishermen, the sea louse. It ad-
heres to every part of their body ; but dies and drops off after
they have been a very short time in the fresh waters. Scarce-
ly, however, have the rivers become their temporary element,
than the Salmon grow wasted and diseased. Their appearance
gradually changes, and a species of worm, (said to be the lernea
Salmonea of Linnaeus), now infests their gills. In the salt-
water, however, this worm cannot exist. And the fish soon
after their return to the sea, gradually recover their farmer
good condition and richness.

under the impulse of some powerful instinct ; and as it is
the habit of the fish, when so impelled, to take the direct
course of the mid-channel, they are thus seldom within
reach of the stake-nets. No doubt, some fish seeking the
fresh water, — a few, which, if not intercepted, would
have found their way to the upper fisheries, — may fall
within reach of the nets in the sea and the friths. But
the number is small. The fish captured by the stake-nets,
are, almost exclusively, those which, if not so intercepted,
would have gone back to the ocean, or pursued their gam-
bols on other shores.

This is evident, from many considerations ; especially
from the fact, that the success of the stake-nets is equal-
ly great in the ebb-tide as in the flood. In the Tay, the
Sol way fishers excited some surprise when they proposed
to turn the opening of the court or chamber of the net, to
the ebb* Who, it was said, can believe that the fish will be
caught in the ebb, when they are all seeking their way up
the river ? But the knowledge and skill of the fishers was
soon apparent ; for the nets which had their chambers to
meet the ebb, were just as successful as those which received
the flood. There were just as many fish daily going down
the frith, as there were daily coming up. And, according-
ly, a great number of the most successful fisheries, not only
on the Tay, but everywhere else, have had e£6-nets. One
half, it may be said, of all the fish which were caught by
the stake-nets in the Tay, were caught by e&6-nets, — in
other words, were fish going out of the frith. To some
situations, indeed, the ebb-net is most applicable. Thus,
at Kirkside, near the mouth of Montrose Bay, by which
th a North and South Esk fall into the sea, a stake -net
has \lately been erected, which has all its chambers to the
ebb, \o that it receives no fish except what are going out,

45

and yet it captured last season (and the season was gener-
ally unproductive,) about 1700 fish. At Burghhead, at
the mouth of the Murray Frith, and about eight miles,
along the open sea coast, from the river Findhorn, which is
the nearest river, an ebb-net caught, in the year 1822,
about 2,000 fish. And in like manner, numerous examples
might be given throughout all Scotland.

There is, however, actual experience as to the effect of
the stake-nets ; and, therefore, it is not necessary to defend
them by what some will be disposed to term theoretical
speculation. In the Frith of Tay, the stake-nets were
for a considerable number of years in general use. And,
in the processes to which this gave rise, their effect on
the upper fisheries was the subject cf minute and patient
investigation.

The general result of this investigation shewed, at the
first view, that even if the upper fisheries were seriously in-
jured, at least there was a vast public benefit arising from
the new mode of fishing. The average produce of the
frith and river, before the introduction of stake-nets, ap-
peared to have been about thirty thousand Fish ; while the
average produce, subsequent to the use of stake-nets, (even
limited and fettered, and only partially in operation, as they
were,) was about sixty thousand ; so that, if the upper
fisheries suffered, at least the public were gainers to the
number of thirty thousand fish.

But the investigation referred to, shewed farther, that
the produce of the upper fisheries was not sensibly affected ;
and that the injury complained of, was altogether imagin-
ary, except, indeed, in so far as it operated in reducing the
price in the market.

The upper heritors on the Tay had alleged, and were
allowed by the Court to prove, that the produce of their
fisheries had decreased since the introduction of stake-nets.

But when the time for proving arrived, they not only fail-
ed to substantiate their averments ; but even, by producing
mutilated and fallacious statements, left room to believe,
that, if the truth were told, the very opposite of what they
had alleged would turn out to be the case. From one state-
ment which was exhibited by them, it appeared that the
average produce for the ten years immediately preceding
the introduction of stake-nets, was 31,063 salmon, and
6,443 grilses. And if a corresponding statement of the
produce during the immediately succeeding ten years had
been exhibited, there would have been a fair means of com-
parison. But, instead of the statement exhibited for
the succeeding ten years, being a counter-part to the first,
it did not comprehend all the fisheries, an account of
the produce of which had formerly been given. It contain-
ed only some of them, — some fisheries one year, and some
another. In the first statement, the fisheries included,
were eighteen in number ; but only seven of these eighteen,
were noticed in the account for the year 1807 ; — and so, in
a similar proportion, for other years. Of course, no direct
comparison could be instituted. There was no second ave-
rage to set against the first. And thus, it is a fair and na-
tural presumption, that, if the whole truth had been ex-
posed, it would have appeared that there was no percep-
tible diminution in the produce, while the stake-nets were
in operation. *

* No useful result could be derived from contrasting the
produce of the river fisheries, for any one or two years, with
the produce for any other one or two years. It fluctu-
ates so much, that no regard would be due to the result of
such a comparison. A curious example of this fluctuation
may be thought worthy of notice. During the year 1804, in
consequence of an interdict which had been granted, but which

47

But although there could be no direct comparison be-
tween the produce of the river, as a whole, before the use
of stake-nets, and the corresponding total produce after
their introduction, yet it was possible to institute a com-
parison in so far as respected the particular fisheries no-
ticed in both statements. This comparison, accordingly,
(and it will be kept in recollection, that the upper heritors
themselves had selected the fisheries), demonstrated, that,
at those fisheries at least, there had been no perceptible
diminution in the produce. Thus, at the Earl of Mans-
field's fishery, in the upper part of the Tay, the average
produce was as follows, viz.

Salmon. Grilses.'

For ten years preceding 1798 10,324 1,692

For do. subsequent to do. - 11,694 3,326

INCREASE, during the time when
stake-nets were in use in the frith
below .... 1,370 1,

was recalled in the immediately ensuing year, there was not a
stake-net in the Frith ; and the produce this year, at the upper
fisheries, appears to have been 11,732 fish. In the following
year, 1805, the stake-nets were restored, and in active operation ;
and the produce of the upper fisheries, — of the coble-nets, —
was no less than 25,527. Thus, when there were no stake-
nets at the lower fisheries, there was a scarcity of fish at the
upper fisheries : But plenty returned to the coble-net fishings
when the stake-nets were restored in the Frith. The explana-
tion of this anomaly is to be found in the fluctuating nature of
the fishery,— depending on causes totally unknown. This

48

At the town of Perth's fisheries, again, the total produce
was as follows, viz.

Salmon. Grilses.

During ten years preceding 1798 31,536 6,070

During do. subsequent to do. - 32,477 10,518

INCREASE during the last period when
the stake-nets were in use in the
frith below .... 941 4,448

A still more striking illustration perhaps, is afforded by
the Moncrieff fishery. During the last three years of the
first period, viz. 1795, 1796, and 1797, the number of Sal-
mon taken at that fishery was 6,356
While, during the corresponding years of the
second period, viz. 1805, 1806, and 1807,
when stake-nets were more extensively em-
ployed in the frith below than at any previ-
ous period, thejiumber taken, was „ - 7,398

INCREASE on the last three years 1,042

The results at other stations were similar. And although
no account of the produce, since the removal of the stake-
nets, has been exhibited or can be referred to, yet it is
perfectly notorious that the river fisheries have not, during
the period which has elapsed, been more productive than
they were previously.

But it is unnecessary to pursue the inquiry farther.' Nei-

shews, however, that for the purpose of instituting a fair com-
parison, the experience of a number of years must be resorted
to. And, accordingly, ten years was fixed upon in the Tay case,
by common consent.

49

ther is it desired to attach greater importance to these re-
sults than is reasonable. There is no necessity for denying,
what may be held as certain, that out of the thirty thou-
sand fish annually caught below, some would, in all proba-
bility, have found their way to the upper fisheries, and
there have been captured, if the stake-nets had not inter-
cepted them. But it is very evident, and after the inves-
tigation, of which the result has been stated, — after the
experience which has been had of the river fishery, before
the use of stake-nets, during their use, and since they were
removed, — it cannot reasonably be disputed, that the di-
minution of the produce of the upper fisheries in the river,
by the success of the stake-nets in the frith, must, on the
whole, have been so very small as to be utterly impercepti-
ble.

This is certainly a very satisfactory conclusion. But,
though it had been otherwise, it would appear that the
question, — whether the success below would diminish the
success above, — is rather curious than important : for, in
natural justice, there is no reason for preferring the upper
proprietors to the lower ; and assuredly, it is of no conse-
quence to the public, whether the fish are caught by this
or by that individual. As already observed, however, it
is sufficiently evident, both from the habits of the fish and
the actual experience in the Tay, that the success below
creates no sensible diminution of the produce above.

It next remains, to consider the other branch of the ob-
jection,— that if the use of stake-nets be allowed, the con-
sequent destruction of so many fish may, in the end, anni-
hilate or materially affect the species.

This is an objection which no one, who has any know-
ledge of the subject, will be disposed to urge. It would

50

be qiiite as reasonable to suppose that the race of the
Herring or the Cod is in danger, in consequence of the
multitudes which are taken, as to believe that any per-
ceptible diminution of the Salmon species, would arise
from the success of the fishery. Everyone knows that
the herring and the white fish exist in myriads past num-
))er ;- — that they compose the food of the larger marine
animals ; — and that although man vindicates his right to
a share, yet all that he obtains, or indeed all that he could
consume, bears no sensible proportion to what are destroy-
ed within the ocean itself. And it is just the same with the
Salmon. The Salmon is not destined for the food of man
alone ;—- there are hordes of voracious animals in the ocean
which continually prey upon it, and of which it composes
the principal food. Wherever Salmon are to be found,
there are these animals^also. At some stations, porpoises
may be seen, in vast numbers, rolling along with the tide,
in pursuit of their prey ; — while seals, again, abound on
every rock and sand-bank, as well as in the open sea, and
sometimes they even find their way into the nets, and de-
liberately, in presence of the fishers, destroy the fish. Who,
will venture to say what are the limits to the destruction
effected by these animals ? or, in how many such ways,
unknown to man, the Salmon is destroyed* ?

* In the Tay case, some of the witnesses incidentally men-
tioned the destruction of salmon by porpoises and seals. An-
drew Crichton, who had been a fisher for twenty years, *4 de-
" pones, That there are great numbers of porpoises in the Tay,
" and the deponent has seen above A THOUSAND AT ONE TIME :
" That he has seen a great number as high up as Balmerino :
" That these porpoises are very destructive to salmon, and it is
" in quest of them that the porpoises go so far up the Tay : That

51

The belief, that the existence of the species may be af-
fected by the increased produce of the fishery, has been
more readily believed, in consequence of the fact, that in
many rivers, — as, for example, in the Thames, — where, in
former times, the Salmon-fishery was prosecutedwith great
success, almost no fish are now taken.

But the falling off, of the fishery in such rivers, has its
origin in causes different altogether, from the success of the
fisheries below. The Salmon is a fish peculiarly fastidious
and delicate in its habits. It delights in the pure cool
waters, and avoids those which have become, even in a

" he has caught hundreds of salmon which had been bit by per -
"poises : That there are a great number of seals on the banks
" below the bar, which are also destructive to salmon : That he
" has seen a seal opened, and a salmon taken out of its belly"
He might have added, that that salmon was afterwards sent to
market, a fact not without precedent. Alexander Boyter, ano-
ther fisher, " depones, That for the last twenty years the der
*; ponent has annually killed a number of seals 5 that he has n -
*' ceived a premium from Messrs John Richardson & Co." (the
then principal tacksmen of the Tay fisheries,) " for his success
" in killing them, for about a dozen of years j but this premium
4' has been discontinued for the five last years, but he still coi -
'* tinues to kill them on his own account : That he knows that
" seals are very destructive to salmon, and he has seen them
*' caught and eat by them : That porpoises are still more destruc-
** tive than seals to salmon ; and there are great numbers of
" them in the Tay : That upon one occasion, about a year agct
" he opened a porpoise, and found as much SALMON WITHIN IT

" AS T[IE DEPONENT COULD HAVE CARRIED." And the testi-
mony of these witnesses was confirmed by that of several others.

52

slight degree, impregnated with deleterious substances.
This is the reason why the Thames is deserted ; and, for
the same reason, other rivers also will be deserted in their
turn.

It is a familiar fact, that lime is extremely noxious to
the Salmon. If lime be put into a stream or pool, the
Salmon very soon die ; and knowing this, the peasantry
frequently dam-up the small rivers, and put lime into the
pools, for the purpose of obtaining the fish. The very im-
provement [of lands, therefore, by the use of lime, has, in
a greater or less degree, the effect of injuring the waters
in rivers. But how much greater must be the effect aris-
ing from the ingredients used in chemical bleaching, in
dye-works and such establishments, — from the refuse of
gas-works, — and from the many other noxious substances
which, in modern times, find their way into the rivers ?
What, even, must be the effect arising from the increase
of navigation, and from the copper on the bottoms of the
vessels ? Consider the state of the water in the wet-docks
in any of the great ports, — the West India docks on the
Thames, for example ; and, consider what must, for a
time, be the state of any river into which the contents of
these docks are discharged !

. If all these things, then, be put together, there can be no
difficulty in accounting for the falling-off of the Salmon
Fishery in such rivers as the Thames, the Clyde, &c.
Everywhere, more or less, these causes now exist ; though
they must more especially, be found in operation, in those
rivers which run through the seat of improvement, and of
trade and manufactures. Accordingly, we find that the
river fisheries have been injured exactly as improvement
has advanced, and trade and manufactures have increased.

53

And the proprietors of such fisheries, throughout the coun-
try, may expect, that as the district is improved, the pro-
duce of their fisheries will diminish.

In connection with this part of the subject, and as a
striking illustration of what has been said, the case of the
Cocket, a small river in England, may be noticed. The
produce of the Salmon-fisheries in the Cocket, was at
one time very considerable. But, all at once, it was found
that the fish had deserted the river. This at first excited
some surprize ; but it was soon discovered that the change
was occasioned by the operations and ingredients used at
one single tin manufactory in the upper part of the river.
The water had in consequence become impregnated with
deleterious matter ; and hence, although a coarse species
of trout still frequented the river, not a Salmon would
enter it. *

It is clear, therefore, that, any diminution in the pro-
duce in particular rivers, may be accounted for from causes
very different from a decrease in the number of the fish. If
the Thames, the Cocket, &c. were restored to their former
state of purity, the Salmon would again frequent them.
But so long as they continue in their present state of pol-
lution, Salmon will not enter, unless compelled by disease,
or some such cause. The fish naturally seek more salubri-
ous waters, and, according as these become insalubrious,
they will desert them.

If, indeed, it could be shewn, that, in rivers not affected
by any noxious change, there has been an unequivocal fal-

* This is stated on the authority of a highly respectable and
intelligent fisher, who visited the Cocket almost immediately
after the change took place.

54

Jing off in the produce, such a fact might be urged with
some degree of plausibility against a further extension of
the fishery. But this cannot be done ; and in the only in-
stance where it has been attempted, viz. in the Tay, the
attempt, as has already bee n seen, was attended with sig-
nal failure. There was positive evidence adduced, not
only that the produce of the upper fisheries had not been
lessened, but that the salmon caught below were sea fish ; —
fish not seeking the fresh water at all, and the capture of
which, therefore, could in no degree affect the produce q*
the upper fisheries.

There is, therefore, a want of all argument in support
of the theory that the species is in danger by the success
or extension of the fisherv.

But there is another consideration, which must satisfy
every unprejudiced mind, that the idea of an ultimate
total extinction of the Salmon species, is visionary and ab-
surd.

It has been ascertained, by a very simple process, that
the roe of an ordinary Salmon contains from 1700 to 2000
ova. But even supposing, that the number of fish
brought into life from each spawner was much smaller,
how few spawning fish would be sufficient for the production
of all that man could consume ! The average produce of
the Tay fisheries is supposed to be about 30,000. Sup-
pose, however, that, by permitting the use of stake-nets, the
produce of the river and frith, and adjacent coast, were to
be increased to ten times the number, or 300,000, how small
is the proportion of breeding fish necessary for rearing this
number, when compared with the number of fish which
actually spawn in the Tay and its tributary streams !

It is the same in other rivers. The young fish which must

55

be produced by the spawners, in each considerable river, are
far beyond the power of calculation. Indeed, every season
we have evidence of it, in the countless myriads of smolts
which, in all our rivers, are to be found pursuing their
course to the sea.

Looking in this way to the altogether unlimited extent
of propagation, it is absurd to suppose that even the most suc-
cessful fishery, could affect the existence of the species. By a
proper regulation of the close time, let every obstacle only be
removed, whereby the breeders are prevented from reach-
ing the spawning ground ; let the spawn be kept undisturb-
ed after the process of depositation ; and, -finally, let the
fry be protected in their descent to their natural element,
the ocean; — and during the fishing season, when there will
thus be neither spawn, nor fry, nor breeders, to be affected,
the most extensive and powerful modes of fishing may be
freely indulged in, without the most distant danger to the
species. Indeed, under a properly regulated system of this
description, there will be infinitely less danger of the Sal-
mon becoming extinct, than under that now in operation ;
because, for every full grown fish that would then be
caught, millions would be saved, which are at present des-
troyed, almost in embryo.

Why, then, it is asked, should there be any prohibition of
the stake-net mode of fishing ? Nay, since no valid objec-
tion can be urged against it, why should not its operation
be at once extended in the freest manner, and the protec-
ting arm of the law be stretched out in its favour, so as to
place it, at the very least, upon a footing of fair and equal
competition with those other modes, which at present en-
joy all the exclusive privileges of a monopoly ? Is it in

56

the salmon-fishery alone that the spirit of improvement is
to be repressed, — because, forsooth, of certain antiquated
and absurd enactments in the Statute-book ? Or is there
any one good reason which can be assigned, why a vast
public benefit should not be secured, where the means are so
obvious, and the opportunity so naturally presents itself?

The public advantage which would be derived from an
extension of the salmon-fishery, by the legalizing of stake-
nets, needs scarcely be pointed out.

(1.) In the first place, it would break down, in favour
of the public, that unjust monopoly ^ which has already too
long subsisted in favour of a single class of proprietors. It
would give to every heritor along the coast, that natural
use and enjoyment of his property, from which he ought
never to have been excluded. It would open the general
market of the country to a wide and extensive competition.
And by securing an inexhaustible supply, it would, at a
moderate and comparatively steady price, place within the
reach of all classes of the population, as an ordinary article
of rich and wholesome food, what is at present to be found
only as a luxury at the tables of the opulent.

(2.) Nor would the resulting benefit be confined to this.
The quality of the Salmon caught, would be as much im-
proved, as its quantity would be increased. The Salmon of
the ocean, is well known to be infinitely superior to the Sal-
mon, which is taken in the fresh- water. From the moment
it seeks the rivers, it loses its strength, diminishes even in
weight, and gradually sickens, and becomes emaciated and
diseased. The firmness and richness of the sea-fish is by
this time gone ; and the Salmon now grows comparatively
soft and insipid, — at certain seasons absolutely unwhole-
some.

I

57

(3.) Besides, even in a national point of view, the exten-
sion of the salmon fishery is an object of no small import-
ance. The general prosperity of the country is mainly de-
pendent on the prosperity of all the various classes of
individuals composing its population. Here, then, is a
vast additional source of private revenue opened up
An extensive line of coast, which yields no return what-
ever, holds out a promise of riches at present incapable
of calculation. Nor is it the mere proprietors of the
coast, and those directly employed at the fishery, who will
be benefited. Employment, and, of course,~a correspondent
remuneration in the shape of wages, will spread on all
sides. A new impetus to exertion will be given, in districts
where, at present, all is inactivity and silence. Villages will
rise up along the shores, still further to disseminate the
progress of amelioration. And what, in a maritime State
such as this, may perhaps, to the eye of the statesman, ap-
pear still more important, the new mode of fishing will add
both to the resources and strength of the country, by rear-
ing a race of hardy and indefatigable seamen, and giving
employment to a very great additional tonnage of shipping,
which would otherwise never have existed.

After what has been said, it is presumed no one can en-
tertain a doubt, that there is much to be amended and al-
tered in the existing laws, on the subject of the salmon
fishery of Scotland. That the present regulations as to the
close and fishing seasons, must be totally new-modelled,
seems, indeed, a point disputed by none. But the im-
portant change to be effected, is a repeal of those absurd
and impolitic enactments of a rude age, which hang
like a dead weight on the spirit of improvement, and pro-

58

hibit a mode of fishing which, but for their baneful ope-
ration, would, long ere this, have been universally adopt-
ed. The stake-net fishings must now be legalised; and the
treasures of the ocean, which have been shut up for ages,
must be freely exposed to the enterprise and public spirit
of the coast proprietors, who have quite as sound a claim
to the protection of the Legislature, as the upper heritors of
any petty stream in the whole kingdom.

But how is this important change to be effected, and
what must be done to secure an object so highly beneficial,
in the surest and most speedy manner ? An act of the Le-
gislature, of course, must be obtained. But a matter of
such national moment must not be left in private hands,
however respectable or talented.

There is, indeed, a recent instance of the inexpediency of
leaving a matter of such general concernment in the hands of
individuals. The upper heritors of the Tay introduced a
private bill into Parliament last session, for prolonging the
close season. But it turned out, that the private interests
of some of the heritors and their tenants, interfered, and
the body could not agree on any general period. What
was for the general benefit did not suit the interest of this
or that individual, and, in consequence, they could not
come to a right understanding. It so happened, also, that
the lower heritors appeared in Parliament, and prayed to
be heard in fixing the period. This had never been
contemplated by the upper heritors, as a measure at
all probable. And the result was, that the bill had to
be withdrawn. It is reported, however, that the upper
heritors have since come to a proper understanding among
themselves. They have made an amicable compromise in
regard to their individual interests and wishes, and are now
prepared to introduce the bill a second time. But, is it

59

expedient, — is it even decorous, — to permit tkis private
legislation in such a matter ? The public interest is involv-
ed, and ought not to be sacrificed by a mode of legislation
which is never resorted to, but for the advancement of pri-
vate interests. In so far as regards the duration of the
close time, there is an admitted, — an undeniable necessity,
for a revisal of the laws. And did not the exclusive inte-
rests of the upper heritors interfere, there would be no ob-
jections made to a general alteration of the antiquated Scots
statutes, by which the fishery is at present regulated.

The subject, however, as a whole, is one which possesses
more than sufficient interest to command the attention and
services of his Majesty's government:— And the liberal policy
which characterises the acts of the present administration,
in every thing connected with the commercial prosperity of
the nation, proves that an appeal, properly supported by
facts, would, in that high quarter j not be neglected. Let
those, therefore, interested in the result, boldly step for-
ward ; — and, firm and united amongst themselves, let them
respectfully, but earnestly, impress upon His Majesty's
Government, — upon Parliament, — upon the Boards of
Trade, — the justice and expediency of an alteration of the
laws. If such an alteration cannot be obtained at once,
at least INQUIRY may be granted. Let such inquiry, then,
by all means be urged. With such a case as may be made
out for the stake-net fishings, it is impossible that inquiry
can be refused ; and, if once granted, it is equally impos-
sible to fail in ultimate success.

INQUIRY will put down the clamour, detect the false-
hoods, and expose all the selfish and interested views of
the monopolists in the rivers. It will dissipate every charge
that has been brought as to the injurious tendency and

60

operation of the stake-nets. It will establish, that the
change asked is not only due, as an act of private justice
to the proprietors of estates along the coasts ; but is deeply
interwoven with some of the best interests of the public,
and eminently calculated to advance the prosperity, increase
the riche$, and promote the general industry and wealth of
the nation.

THE END.

8

§

I

CO

w

s

CO

C -P

o o

•H O

^w

w S

j^ J»J

O <D

University of Toronto
Library

DO NOT

REMOVE

THE

CARD

FROM

THIS

POCKET

Acme Library Card Pocket
LOWE-MARTIN CO. LIMITED