94 SALMON-FISHERY OF SCOTLAND. 



where the tide ebbs and flows," was, in fact, a general 

 prohibition, since nowhere else could they be erected. Now 

 the operation of the tide cannot be expressed in the Latin 

 language, except by the word mare : fluxis et refluxis MARTS. 

 The words, " In aquis ubi ascendit mare et se retraliit" there- 

 fore, clearly mean in waters, generally, where the tide ebbs and 

 flows ;* and this is placed beyond doubt by the words which 

 follow viz. where the fry of any fish of the sea, or of fresh 

 water, or of any kind of Jfish, can be destroyed. We believe 

 that this obvious error of translating literally the word mare 

 into sea instead of tide, tended greatly to mislead the Court in 

 their construction of the statutes. In the literal sense of the 

 word, the sea flows into very few of the Scotch rivers indeed 

 into none which fall into friths, as most of them do, where it 

 is not the sea, but their own fresh or brackish water, that is 

 driven back into them by the reflux of the tide ; so that, in 

 fact, the statutes, on their interpretation of them, would apply 

 only to the few rivers which fall into the sea direct. 



When the Kintore case was in the House of Lords, the 

 Lord Chancellor, in alluding to this statute, upon which he 

 laid great weight, as the model statute, remarked that the 

 words " ascendunt et descendunt " appeared to him to denote 

 the ascent and descent of the fry of salmon in rivers ; and this 

 seems to have been one of his lordship's reasons for affirming 

 the judgment in that miserably mismanaged case, which has 

 laid the foundation of interminable litigation all over Scotland. 

 If his lordship had studied the nature of salmon, he would 

 have known that the fry never ascend a river as fry ; it would 

 be contrary to their instincts. "As soon," says a salmon- 

 fisher, " would a feather go against the wind as salmon-fry 

 ascend a river." Descend they must, on their migration to the 



* In Scotland the words where the sea ebbs and flows, and where the tide 

 ebbs and flows, are deemed synonymous. The expression, " In waters where 

 the tide ebbs and flows," was in fact the most general and comprehensive the 

 Legislature could use ; for it included, with the conciseness peculiar to the 

 Scotch Acts, in one word all descriptions of water whether fresh, salt, or 

 mixed in short, every part where the prohibited engines could be placed ; 

 and it would be absurd to suppose, that even if one Legislature erred, so many 

 successive Parliaments would have used the same mode of expression, if it was 

 not deemed the best suited to convey their intentions. 



