without the consent of all interested, to lessen its quantity, deteriorate its quality, or, in short, do any act, calculated to abridge the use and enjoyment of others.

It

But it was further said, that as all other fish found in the sea may be taken in any quantity, and at any place, there can be no good reason why the same thing should not, to a certain extent at least, be done in the case of salmon. appears to us, however, that there are the very best reasons imaginable why this should not be done, and ought not to be permitted. For, in the first place, no one has a property in sea-fishings, and sea-fish are res nullius, whereas salmonfishings are private property, and salmon belong to the holders of that property. Secondly, Sea-fish, from their natural mode of generation and element, are produced in unlimited abundance, and no amount of destruction, however great, seems to make any sensible difference in the supply; whereas salmon, on the other hand, are produced in limited abundance, and over-destruction will in time exterminate the breed. Thirdly, The salmon naturally, and, we might add, necessarily belong to the rivers. They are spawned in them: they return to the rivers again to spawn: each river has its own kind, and where there are tributary streams, its own varieties of that kind: and every salmon caught in the sea or in the estuaries, is caught while in its progress to its native stream. Fourthly, Every fish taken by the lower heritors, beyond their natural and proper share; that is, beyond the amount of captures which they could make by employing the same means as the upper heritors, is so much taken from the upper heritors: and, on the same principle that one extra is caught, a hundred, or a hundred thousand may be taken, and the river fisheries utterly annihilated. Lastly, If it be said, that the method of fishing employed by the upper heritors, however well it may be adapted to their situation, is not equally suited to the position of the lower heritors, we answer, that, supposing this to be true, the relative values of these fisheries was originally determined upon this principle; and, if the river fisheries were more productive, they were purchased by their present owners, or their authors and predecessors, at a higher price, just as the fishings in the estu

aries, being less productive, were purchased at a lower, and, in fact, nominal price.

4. Rights of Parties.-A right of salmon-fishing is not originally a feudal right, though it be feudally transmitted or conveyed, because the salmon being a royal fish, the right in question can only be conferred by a special grant of the Crown. Hence even the clause "cum piscationibus" in royal charters, is not held to convey a right of salmon-fishing, which can only be constituted in the way we have mentioned. This we understand to be settled law; and if we are correct in thinking so, it follows from the constitution of this right, that it never can be regarded as a part and pertinent of lands, and that, not being included in the clause cum piscationibus, it can neither be created nor fortified by prescription; inasmuch as no length of possession, without some title, is sufficient, in this country, to found a prescriptive title to heritage of any kind. The royal grant, therefore, is at once the origin and measure of the right; nor can it either be established or abrogated, increased or diminished, acquired or lost, by the positive or negative prescription. It is an unum quid, which, once created, is permanent, immutable, et omni evictione majus. The rights of parties, accordingly, would seem to be capable, in all cases, of being easily and definitively adjusted. For, as these were created by specific grants, they must also be measurable or determinable in conformity to the terms of those grants, subject only to such limitations as the public policy of the state has found it expedient to impose; and hence the only question that can ever properly arise, or be legally and justly entertained, is a question of construction or interpretation alone. Equity has here nothing to do; and wherever it is admitted, in the adjudication of disputes connected with this subject, it must lead to injustice. There are certain existing rights. This is the point from which both parties must set out. What is the precise nature and extent of these rights; or if they, in any degree, clash, how far are they to be reconciled? This is the point to be determined. And how is it, how ought it, to be determined? Why, according to the terms of the grants legally construed and interpreted. Adhere to this plain and obvious principle, and no serious difficulty can ever arise in settling the rights of

parties: deviate from it, and there is scarcely a limit to the absurdities and contradictions into which you will inevitably fall.

5. State of the Law. This branch of the subject would require a volume for its discussion, and we can only afford room for a few sentences. All persons who are in the least degree conversant with the subject, and who have paid attention to that frightful mass of litigation which has been accumulated since the introduction of stake-nets, are of opinion that the Tay case was upon the whole rightly decided. The principle, indeed, was not carried to its utmost length, and, on the outskirts of the question, the Court vexed themselves with a variety of needless details; but the decision, upon the whole, met the substantial justice of the case; and it was unquestionably right and fitting that, in a question of such magnitude and importance, the Court should proceed with caution. Here, then, we had a foundation wisely, prudently, and, as we thought, firmly laid; here a precedent was established, which we hoped would, mutatis mutandis, have ruled the decision of all similar questions that might hereafter arise. But our natural, and, we trust, not unreasonable expectations have been sorely disappointed; for, ever since 1812, the Court have been gradually retracing their steps; and, owing to the contradictory decisions which have latterly been pronounced, matters have now come to such a pass, that there is no species of property in the country so insecure as property in salmon-fishings, none which it is less desirable to possess, or which is become more ruinous to defend, The main cause of all this fatal perplexity and mystification is, the interpretation which has been put upon a clause in the regulating statute of This clause provides, that certain things shall not "ubi mare ascendit ac descendit," which has been rendered "where the sea ebbs and flows;" and this version of course naturally gave rise to the question, What is to be considered "sea?"-a question which has led to a world of wrangling and discussion, to expensive reports by engineers, and to a new series of litigations and contentions. Now, without entering at all into these matters, which it would be impossible to discuss fully in half a dozen articles, we have only to remark, that the above interpretation is at utter variance with the idiom of the Latin language, that the word "mare" in the above

Robert I.

be done

VOL. III. NO. XIII.

C

ocean.

passage means not the "sea" but the "TIDE," and, consequently, that the words ought to be rendered, "where the tide ebbs and flows;" thus including the estuaries as well as the Nor is it a little singular that, in the subsequent statutes relative to the salmon-fishery, which all proceed upon and refer to that of Robert I., this (the only true) interpretation is either directly given, or necessarily implied and essential in or der to render their provisions consistent and intelligible. By what singular fatality the double error has been committed, of transgressing the inviolable idiom of the Latin language, and re sisting the right interpretation obtruded on the notice of all in the subsequent statutes, we do not know, and shall not at tempt to conjecture. One thing is certain, that the consequences have been no matter of joke to many unfortunate litigants, who had Latin enough to discover the error, but not logic enough to convince those who adopted and acted upon the erroneous interpretation.

6. Close Time.-The proprietors of salmon-fishings have been greatly indebted to Mr Kennedy and Mr Home Drummond, for their exertions to put down poaching and prevent the destruction of breeding fish. The system of river police now established is excellent; and although it is somewhat expensive, yet, if the fishery were in other respects well regulated, the cost of it would be defrayed without a murmur. But of all the blunders which have been committed on this subject, where blun. dering is the rule, and sense or judgment the exception, one of the greatest undoubtedly is the appointment of the same close time for all the rivers in Scotland. It would not have been one whit more absurd and preposterous to fix by law the same harvest-time for all Scotland, and to ordain that, in the late as well as in the early districts, people should begin to reap on a given day, and leave off on a given day. There are early and late rivers, as well as early and late districts; and in some, the salmon are only just beginning to ascend when the fishery has terminated in others. Hence, in the early rivers the best of the fishery is lost, while in those that are very late-and there are many in this situation-it is utterly annihilated. In the Tay, for example, the period when the fish are at their prime is from the end of January to the middle of March; but according to the

new close time, not a salmon can be caught till the middle of the latter month. In the course of the succeeding months the fish gradually fall off, and by the end of August and beginning of September, they are no longer marketable; but, according to the new regulation respecting close time, they may continue to be caught until the middle of October, when they are as foul as foul can be, and fitted rather to serve as poison than as food. Similar absurdities will result from applying the close time to almost any other river; for there are probably not above two or three rivers in the kingdom to the circumstances of which it is exactly adapted, because the proper period for the fishery is different in each, and each, therefore, should have a close time of its own. Were this the case, as it ought to be, the market would be supplied with fresh and vigorous salmon all the year round, and the public would be as much a gainer as the proprietors of the river fisheries.

ESSAYS ON THE ORIGIN AND NATURAL HISTORY OF DOMESTIC ANIMALS. BY JAMES WILSON, Esq. F.R. S. E., M.W.S. &c.

ESSAY VI. '

ON THE ORIGIN AND NATURAL HISTORY OF THE DOMESTIC HOG.

E

(Continued from Vol. II. p. 882.)

We now resume our history of the domestic Hog. It is greatly doubted by many competent judges, whether swine form a profitable stock, at least when fed on food which re quires to be raised for the purpose. The results deduced from calculations entered into to show the probable returns for a given quantity of grain, roots, or other vegetable produce, are, however, so discordant as to avail but little in the formation of a settled or conclusive opinion. In connexion with distilleries, dairies, breweries, and other large establishments, they are of much higher and more assured importance, and return, in proportion to the offal they consume, a great quantity of meat. Their chief advantage as live stock probably consists in their being nourished by what would otherwise either prove nearly