104 SCOTCH SALMON AND SCOTCH LAW. 



aries in the kingdom. The Tay alone enjoys this happy 

 exemption, which was gained by it being proved that 

 yairs and similar engines are prohibited by the ancient 

 statutes, "in waters where the tide ebbs and flows." 

 It took fourteen years to determine whether " waters " 

 meant waters in general, or only rivers ! " The Judges," 

 Mr Mackenzie informs us, " quoted old songs, and the 

 counsel cited the classics, to show the intention of the 

 Scotch legislators in framing their fishing-statutes, 

 until at length, by their united efforts, they made non- 

 sense of the statutes, and then most unjustly laid the 

 blame, not upon themselves and their absurd construc- 

 tions, but upon the defunct legislators." The grand 

 debate was regarding these words, in the first statute 

 of Eobert L, from which all subsequent statutes appear 

 to have been framed. Yairs and all fixed engines are pro- 

 hibited " in aquis ubi ascendit mare et se retrahit, et ubi 

 salmunculi, vel smolti, vel fria alterius generis piscium, 

 mar is vel aquce dulcis, ascendant et descendunt ;" that is, 

 in waters where the fry of any kind of fish is to be 

 found. It certainly appears incomprehensible how the 

 Court of Session should have held that this refers only 

 to rivers, where yairs never are found, because they can 

 only be set where the tide ebbs and flows ; and that 

 waters mean rivers, where, assuredly, the fry of sea 

 fish cannot be found. The Lord Chancellor, in the 

 Kintore case, remarked that the words " ascendunt et 

 descendunt " appeared to denote the ascent and descent 

 of the fry of salmon in rivers. But it so happens that 

 salmon-fry never ascend a river. As soon would a 

 feather go against the wind as salmon-fry ascend a 

 river j instinct hurries them down to the sea whenever 

 they reach the stage at which they are termed " sal- 

 munculi vel smolti:" and that the ancient Scottish sta- 

 tutes intended to prohibit fixed engines in the sea is 

 proved by the statute 1488, which ordains " That all 

 yairs and fish-dams that are in salt water, where the 

 sea ebbs and flows, be utterly destroyed, as well those 



