SECTION VI. 



KIVEKS, FEITHP, ETC. 



Le premier devoir d'un juge est d'etre juste avant d'etre formaliste. C'est un 

 grand abus dans la jurisprudence que Ton premie pour loi les reveries et les erreurs 

 d'hommes sans aveu qui donnent leurs sentimens pour des lois. 



MONTESQUIEU. 



IF the plain natural common-sense construction had been 

 put upon the statutes, it would, as we have seen, have put an 

 end at once to all stake-net questions, in all parts, and saved 

 much trouble, as well as great destruction of individual pro- 

 perty, and immense expense to the country in litigation ; but 

 it having been declared that the general word waters meant 

 rivers or fresh waters where the prohibited engines could 

 not be erected, and that salt water that ebbs and flows means 

 exactly the reverse it ought at least, in mercy to litigants, to 

 have been told to the country what was understood to be rivers, 

 and to what precise parts the statutes, in the construction given 

 them, do apply. But we suspect this to be no easy matter : if 

 we set out in error, every step subsequently taken has only 

 involved proceedings deeper and deeper in absurdity. If it 

 took fourteen years to discover that the word waters meant 

 .fresh-water rivers, which a single serious perusal of the sta- 

 tutes would have at once refuted, the sixteen years that have 

 followed have not determined either what are to be considered 

 as rivers, or where they are to terminate points which con- 

 tinue still as much involved in darkness as ever and which 

 are subjects of constant and endless litigation and expense to 

 all concerned in the fishery. 



By the usage of Scotland, even at this day, and such assur- 



