78 



from drawing nets over the weirs ; and it was proved that the people 

 could not catch them by a fixed engine. We interfered with nobody; 

 we caught fish for the benefit of man. The judge, in the King v. 

 O'Neil, said, that he could not conceive how it was possible to be an 

 indictable offence to catch fish in the only mode in which they could be 

 caught to supply the market.' Evidence, page 451. 



But the old legal maxim of sic utere tuo ut alienum non loedas comes 

 here into force. May the use of certain powers be advantaged and 

 increased to the great damage of others ? On this head the Lord 

 Advocate of Scotland quotes the learned work of Mr. Bell ; that ' the 

 common interest which results from the migratory habits of the fish, 

 gives to each heritor on a river, having a grant of salmon fishing, a 

 title to challenge all unlawful modes of fishing.' Evidence, page 522. 



Again, where the exercise of powers in a 'several' fishery are 

 greatly enhanced by the use of new methods, it might be expected that 

 the law would afford means to restrict injury to ' common of piscary ;' 

 whereas the new Act established the assumed powers, repealed the 

 laws forbidding them, and created a title to further encroachments, 

 leaving the public to dispute questions where doubts might arise. 



Mr. Alcock proceeds : ' The case of the Duke of Devonshire v. 

 Smyth, as I have said, was decided upon the construction of 10 Charles 

 I., c. 14 ; and after the decision in that case, there was considerable 

 notoriety attached to the subject by those trials at Waterford there 

 having been two abortive trials ; and I believe there was a co-opera- 

 tion between the Upper proprietors and the cot-men ; for all the upper 

 proprietors seek to assert their rights under what 1 would only call a pre- 

 tence of asserting the rights cf the cot-men, but to my mind, with a 

 view of stocking their preserves in the upper river, and removing the 

 fixed engines, so as to allow as many fish as possible to get up into the 

 upper preserves, in order that every time they throw out a fly they 

 may catch fish, or set those fisheries, which are valuable fisheries, to 

 English gentlemen, in the summer.' Page 455. 



Without venturing to judge the motives which have actuated either 

 the proprietors above or below, in this question, (whether the rents of 

 fishing shall be received through Scotch* tenants of novel and fixed 

 machinery, or English visitors^ armed only with a rod and line,) it 



* The Aet ' legalized the use of Scotch weirs.' A letter from the Board of 

 Public Works, dated 24th March, 1843, (Appendix, page 37,) states The 

 Board are influenced in making this suggestion (that the Crown Solicitor be 

 directed to lodge informations) by another reason, viz. : that as the 5 & 6 

 Victoria, by legalizing the use of Scotch weirs, has in the opinion of cot-men 

 much injured their interests, any step taken publicly to prevent the illegal use 

 of those machines, would have a good effect on the poor and ignorant fishermen, 

 who are acting under the influence of long-existing prejudices.' 



Most of the new machinery was set up in Ireland by natives of Scotland. At 

 all times we would invite both English and Scottish men to our land, as well 

 as to our waters, especially in the present, when their enterprise and example 

 would prove of the greatest value ; but their tenure of both should be on a legal 

 footing. 



t Tom Purdie, Sir Walter Scott's shepherd, who had been an old black- 

 fisher,' or night-spearer of salmon, was one day sent to attend upon Mr. 

 Richardson, a London gentleman, while he tried for a fish near Melrose bridge. 

 As they walked thither, Tom boasted grandly of the size of the fish he had 

 himself caught there, evidently giving the stranger no credit for much skill in 



