156 SALMON-FISHERY OF SCOTLAND. 



are common to mankind ; " but Stair was in error, for trout 

 and perch are not white fish, as cod, haddocks, &c. That sea 

 fishes, which are produced in an element which belongs to 

 none, should be considered as common to all, we can readily 

 understand ; but if the rivers were the property of the Crown, 

 all they contained, as was said before, must also have belonged 

 to the Crown. Perhaps Stair, not adverting to this principle, 

 was somewhat at a loss how to dispose of the trouts, and 

 accordingly, most un-Linna3us-like, threw them into the sea or 

 white fish res nullius squad, which random act our lawyers of 

 course consider as law, equal to an Act of Parliament. But 

 an expression even of Stair cannot defeat a principle. Stair, 

 however, made the amende honorable on the point in question, 

 by admitting that a right to trouts might be acquired by pre- 

 scription, which we scarcely think he would allow with regard 

 to haddocks, or anything that was truly res nullius ; but his 

 random expression has afforded a pretext, which is quite 

 enough to set all the mouths in the Parliament House a-bark- 

 ing. It is, at any rate, clear he did not consider trouts a 

 natural pertinent of lands. Every one of the grounds, then, 

 upon which the owners of lands rest their claim to trouts in 

 salmon rivers adjacent to their estates, it thus appears, is un- 

 tenable. They all, when investigated, slip from under their 

 feet, without leaving as much as is worth the tail of a trout 

 behind. Their claim has not, in fact, a foot to stand upon, 

 except on the point of prescription alone, which they leave 

 entirely out of their case. 



It is amusing to follow the logical train of their arguments 

 on the subject. For example all the lands and rivers belong 

 originally to the Crown, ergo the trouts in the rivers belong to 

 the Crown also. But trouts are not, like salmon, inter regalia; 

 ergo trouts do NOT belong to the Crown, But the Crown has 

 granted a right to the trouts by the words " piscationibus et 

 pertinentibus ;" ergo, trouts DO belong to the Crown. But 

 trouts are res nullius; ergo, trouts do NOT belong to the Crown. 

 But trouts are only res nullius when fished for from a boat ; 

 ergo, when the fisher stands on land they are NOT res nullius, 

 but a pertinent of land, or heritable property. But the same 



