XI 



so. The former, in his treatise on the Law of Scotland, relating 

 to Rights of Fishing, says (pp. 70,71), "The Act 9 Geo. II. 

 " c. 33. sec. 4, imposes a close time for lobster fishing from 1st June 

 " to 1st September. An infringement of the regulation subjects 

 " the offender to a penalty not exceeding 51. for each offence ;" 

 and Mr. Paterson, in his " Fishery Laws of the United King- 

 dom/' says in a note (p. 167), " There seems to be a close season 

 " for lobsters from 1st June to 1st September, 9 Geo. II. 

 " c. 33. sec. 4." 



.But even assuming that the statutory close time applicable to 

 Scotch lobsters might be abrogated by a long course of contrary 

 usage, there is scarcely adequate proof in the evidence laid 

 before us that there has been a sufficient course of such contrary 

 usage. It is true that the great majority of witnesses examined 

 had never observed, had never even heard of, the statute; and 

 the contrary usage of fishing all the year round, instead of observ- 

 ing the close time seemed almost universal. But, on the other 

 hand, there was clear evidence of the Act having been observed 

 and enforced. Joseph Johnson, fish-merchant, Montrose, " recol- 

 " lects 30 } r ears ago that the Act 9 Geo. II. c. 33. sec. 4, providing 

 ■" a close season, was strictly enforced. Has heard men say it 

 *' was close season and you could get no lobsters." John Robert- 

 son, fish-merchant, Portree, "is aware of 9 Geo. II. c. 33. sec. 4, 

 "" instituting a close season for lobsters. Most of the fishermen 

 " are aware of it. It was once enforced or threatened to be 

 " enforced in the Lews." Captain Swinburne, of Eilean Shona, 

 states that " while engaged in lobster fishing, he himself always 

 ** observed the close time . . . provided by the Act." There is, 

 therefore, evidence that within the memory of living men the Act 

 has been observed and enforced ; and in the face of this, it can 

 scarcely be maintained -that there has been sufficient contrary 

 usage to abrogate it. 



But, if it is doubtful whether the Act belongs to the class of 

 Acts which may be abrogated by a long course of contrary usage, 

 and if, even assuming it to belong to that class, there is good 

 evidence that there has not been a sufficient course of such con- 

 trary usage, it naturally follows that, before our recommendation 

 of a gauge alone for lobsters could be given effect to, with a power 

 to the Secretary of State to institute, after inquiry, local close 

 seasons, it would be expedient to repeal section 4 of 9 Geo. II., 

 c. 33. ; as otherwise persons might possibly, for the sake of 

 recovering the penalty, turn informers against those fishing during 

 the close time prescribed in the Act, especially after attention 

 has been prominently directed to it during the course of the 

 present inquiry. 



The evidence, then, which we had the advantage of receiving General results 

 in Scotland, pointed decisively, 1st, to the fixing of a gauge of evidence, 

 both for crabs and lobsters ; and, 2nd, to the institution of a close 

 season for lobsters, embracing the summer months. It pointed 

 also, though less distinctly, to the institution of some ck-se 



