SALMON-FISHERY OF SCOTLAND. 75 



fine-spun brains those lawyers must have ! we cannot compre- 

 hend them. And truly nonsense is a mystery which is not 

 easily comprehended. We suppose the argument means some- 

 thing like this : if a man knocks another on the head, the 

 knockee will have no title to complain of the knocker, unless 

 he can show that the knock was given with an illegal weapon. 

 In the same way, if a man should steal, or appropriate to his 

 own use, a sheep on its way to another man's farm, to which 

 he himseK had no right (and when a man appropriates to him- 

 self what he has no right to, it looks very like stealing, or at 

 least is brother-german to theft), under pretence that though he 

 had no right to it, the parson might, if he chose, take it as his 

 tithe, or his Majesty might take it, if he pleased, for taxes. 

 Scotch law would tell the farmer, " the man, it is true, had no 

 right to the sheep, and you have suffered a loss by his taking 

 it ; but as the parson or the king might have taken it, they 

 only can pursue him for doing so, unless, indeed, you can show 

 that it was carried off in an illegal way ; for instance, in an 

 illegal sack, that is, a sack made of contraband stuff, for that 

 would give you a good title to pursue, which the loss you have 

 suffered, or the loss of your whole property, would not." Que 

 tout cela est beau, quoth the farmer ; Vive la Justice ! 



Every judge knows, or ought to know, that the only differ- 

 ence which there can be between an illegal engine and the usual 

 mode of fishing, quoad the upper heritors, as the lawyers say, 

 is that the one intercepts a greater number of the passing fish 

 than another. An illegal engine may intercept 150 salmon, 

 while a common net will only take 100. The difference is, 

 therefore, only in degree, and this degree of difference must 

 constitute the title to pursue, for the mere illegality of the 

 engine would, of itself, give no. title to pursue, since, if placed 

 on land, the upper heritors would have no title to object to 

 what did them no harm. Some reason in common sense should 

 have been given why the additional 50 salmon intercepted by 

 illegal machinery should constitute a title, while the same 

 number intercepted by the carcase of a poacher does not. We 

 conceive the one engine to be just as illegal, on the point in 

 question, as the other. The illegality of the engine alone, 



