160 SALMON-FISHERY OP SCOTLAND. 



Swintou — 



" Fishing is res nullius : the right of fishing is properly by grant." * 



Monboddo — 



" I know nothing in this country which is res nullius, excepting 

 the air," &c. t 



Justice-Clerk — 



" Sahnon-fishings require grants ; trout-fishings go with the lands 

 as part and pertiaent. It has been said that trouts are res nullius. 

 In one sense they may be said cedere occupante; for, though I have 

 a right to lands, it does not follow that I have a right to trouts 

 swimming in the river, but I have a right to kill them. % This right 

 may be renounced, or it may be acquired by others. § The Crown 



nor that they are res rmllius, or a common law right, which does not require 

 possession ; on the contrary, he requires the possession, which is directly against 

 the res nullius doctrine. 



* This honest man calls the trouts, if by the general word " fishing " trouts 

 are meant, res nullius; yet, with the same breath, adds, that the right to them 

 is properly by grant, as if what was res nullius, as observed by Mr Erskine, could 

 be the subject of a grant. 



+ This judge flatly denies that trouts are res nullius; in other words, that trout- 

 fishing is a common law right, which every man may exercise, which is founded, 

 and can only be founded on the res nullius principle ; and it is not likely that if 

 there was such law, this judge, and Lord Henderland, who admits the right of 

 the Crown, could have been ignorant of it. The denial of Lord Monboddo, 

 therefore, shows that it was not generally considered as the law. 



i We have rare inconsistency here. His Lordship first says, that trouts are 

 a pertinent of lands — and if they are a pertinent of lands, they are an heritable 

 subject ; yet in the same sentence he says, that the owner of lands has KO 

 right to this pertinent, swimming in the water, but he may take and kill them, 

 thus couvertiug the pertinent into a personal right. If he meant merely that 

 the owner of the land might kill the trouts, like others, he should not have 

 called them a pertinent of the land, which shows great confusion of ideas. If, 

 again, they are cedere occupante, and not res nullius, who is the ceding owner, 

 unless it be the Crown f And if they ai'e cedere occupante, how can they be a 

 pertinent of the lands ? Can anything be more ridiculous than all this ? 



§ If the trouts, as he said before, are a pertinent of the lands, and at the 

 same time cedere occupante, not belonging to the owner of the lands, which is a 

 contradiction in terms, who is it that might renounce this cedere occupante sub- 

 ject? Is it the owner of the lands, who, he says, has no right to them except 

 as cedere occupante 1 He tells us the Crown has no right to them, and if they 

 were res nullius, a right could not be " acquired " to them, any more than to 

 cods or haddocks. To whom, then, do they belong ? for he says, as already re- 

 marked, if I have a right to the lands, it does not follow that I have a right to 

 the trouts (though a pertinent of the lands) swimming in the river ? Do they 

 then belong to nobody — this pertinent of land ? but this would bring us back to 



