8 THE SEA-TROUT 



smaller size, inhabit the lesser rivers and streamlets in common with the 

 yellow trout, from which they are almost indistinguishable in size, and 

 it seems anomalous that to fish for the one a Crown charter should be 

 necessary, while the right of fishing for the other is an accessory of the 

 soil. If the whole race of salmonidce, including bull trout, herlings, 

 etc., are to be considered as inter regalia, the best practical test of royal 

 property would be the migratory habits of the fish." 



It will be observed that this legal authority, even so recently as 

 1892, found himself faced with the difficulty of accounting in a rational 

 manner for the inclusion of " sea-trout and bull trout " and " herlings, 

 etc.," by impHcation along with salmon in the Crown's right of salmon 

 fishing. He seems to have doubted whether the imphcation could 

 really be justified, notwithstanding the migratory test, and he clearly 

 considered that " natural history and the common interpretation " did 

 not warrant the inclusion of the fishes he somewhat tentatively named 

 within the term " salmon," although " recent salmon legislation " so 

 included them. 



His hesitation was commendable, because even yet the Crown's rights 

 at common law, in Scotland, so far as the inclusion of the sea-trout is 

 concerned, do not seem to have been definitely established by a decision 

 of the Courts. In a case which was decided by Lord Johnston, one of 

 the judges of the Court of Session, in 1907,' the question at issue was 

 whether salmon fishings in Orkney were inter regalia, and it was held 

 that they were not. But the question was incidentally mooted whether 

 sea-trout are "salmon" according to the common law of Scotland. Lord 

 Johnston devoted some part of his judgment to the point (which, 

 however, for the purposes of the case it was unnecessary to decide), and 

 said that, according to his own impression, a right of salmon fishing did 

 embrace the right of sea-trout fi.shing. But at the same time he 

 remarked that it was not ronrlusivo nn the point that the whole migra- 



1. Lord Advocate V. Balfour, .Inly 20, 1907. Session Cases, 190", ii. 1,%0. 



