68 SALMON-FISHERY OF SCOTLAND. 



suppose the whole fishings of a river, the Spey, for instance, for 

 which the Duke of Gordon receives ^1 1,000 a-year of rent, 

 had been granted to his Grace's predecessors for great public 

 services, which we suppose was the fact, and had been possessed 

 by his family for time immemorial, and that the Crown should 

 say, There are ten furlongs, or ten yards of land, near the mouth 

 of the river, to which (fishing being distinct from lands) no 

 right of fishing has been attached ; we will grant a right of 

 fishing to the owner of these ten furlongs, or ten yards, which 

 will enable him to intercept the whole of the fish as they enter 

 the river, and thus deprive the Duke of his property ; would 

 his Lordship, notwithstanding the length of possession, sustain 

 the measure, and deprive his Grace of his property ? Would 

 he deem it compatible with either law or justice to do so ? 

 This very case, thus put, we maintain to be, ALONE, sufficient to 



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



that doctrine, instead of being LAW, is founded directly, and 

 pointedly, though not intentionally by his Lordship, on the prin- 

 ciple of KOBBEKY and spoliation, and must, therefore, be as incom- 

 patible with SOUND law, as it is in the teeth of JUSTICE and of 

 common sense. 



And this brings us back to the great principle of protection, 

 which we can never lose sight of, That after a subject, be it 

 what it may, has become the vested right of an individual, it is 

 ultra vires of the Crown to injure it ; and, therefore, as we said 

 before, just as much so to injure a salmon-fishing estate as a 

 land estate. The principle is quite clear, and nothing can 

 overset a clear principle, without which there would be no 

 security to property. People may quibble and sophisticate, 



* Corehouse ought, we believe, to fill this blank. The judge in the Court of 

 Appeal alluded to is Lord Brougham, who advised the judgment of the House 

 of Lords in M'Kenzie (the author) v. Houston, August 13, 1831 (reported in 5 

 Wilson and Shaw, 422), and whose able opinion is well worthy of perusal, though 

 it fails to meet the logic of the text ; because it ignores the fact of the certain 

 ascent of the salmon to the river, if not intercepted by engines like Houston's. 

 The technical ground on which M'Kenzie lost his cause was, that he had averred 

 no right of property in the fishing at the spot where Houston fished ; the strength 

 of the argument for him lay in the somewhat neglected fact, that the salmon 

 caught at that spot were all on their way up to him. ED. 



