88 SALMON-FISHERY OF SCOTLAND. 



ing, in direct opposition to the statutes. We assert that the 

 Court have altered the meaning of the statutes have done 

 what none but the Legislature has a right to do have sub- 

 stituted a law of their own in the room of the law of the 

 statutes, which even the affirmation of the Court of Appeal 

 cannot convert into law, since nothing can legally do so save an 

 Act of Parliament. All the decisions, therefore, which have 

 taken place upon this supposed law this perversion of the 

 statutes must be deemed illegal, unless it be admitted that 

 the Court of Session possess legally the power, which it un- 

 questionably often assumes, of 'making law that is, of declaring 

 its own sentiments to be law ; and good enough law too, per- 

 haps, it may be said, for the country that could so long sub- 

 mit to it, without petitioning the Legislature for reform of 

 such abuses. 



The ground upon which the Court has declared that the 

 prohibition of fixed engines in the statutes was intended to 

 apply only to rivers, is their construction of the word "Waters," 

 which, after fourteen years of deliberation, as we said, it has 

 asserted, means fresh waters or rivers an assertion which 

 is directly contradicted by every expression in the statutes 

 themselves. The only mention of rivers or fresh waters in the 

 statutes, is where cruives are expressly allowed there, though 

 prohibited in all other parts. It is quite clear that the word 

 " Waters " was used either in its general sense, as applying to 

 all waters, or in its more confined sense, as denoting rivers, a 

 sense in which it is often used in the technical language in 

 the titles to Scotch estates. If the expression was deemed 

 ambiguous, instead of looking for explanation in the classics, 

 we think the better way would have been to look for it in the 

 statutes themselves. The first, or model statute (Eobert I.), 

 from which all the subsequent statutes seem to have been 

 framed, says, " In Aquis ubi ascendit mare et se retrahit, et ubi 

 salmunculi, vel smelti, sui frice alterius generis piscium maris vel 

 aquae dulcis" &c. That is, in waters where the fry of sea 

 fishes, or of fresh-water fishes, or of any kind of fish, are to be 

 found. Now, does the Court of Session suppose that the fry of 

 SEA fishes, or of all fishes, are only to be found in fresh-water 



