SALMON-FISHBEY OF SCOTLAND. 161 



has no rigHt to trout-lisliing, any more than it has to fowling or 

 huntiog. The clause aliorum piscium is unmeaning. It could give 

 no right which would not have attended properly although not ex- 

 pressed." 



Monboddo — 



" I cannot understand a grant aliorum piscium to mean nothing. 

 In burns there may be a right to trouts as part and pertinent ; not so 

 in rivers ; there must be a grant." * 



Braxfield — 



" Fishings may be separated from lands, then the Crown will have 

 a right to all fishings ; t but if the Crown feus out cum piscationibus, 

 and with parts and pertinents, this will carry inferior fishings."| A 

 grant aliorum, piscium may be effectual by prescription.! Sir James 



ihe res nullius, aai to the question, who is it that ia to "renownce" this res 

 nullius ? or how acquire a right to it ? It seems to us all a tissue of absurdity. 

 A pretty precedent, truly, for regulating all future cases on the subject. He 

 considers the clause aliwmn piscium unmeaning, as it could give nothing to the 

 lands but what they already possessed— that is, as pertinent, which was " cedere 

 occiipcmte," and to which the owner of the land had " NO right, when swimming 

 in the water ! ! ! " 



* In other words, that the trouts in the burns or streams vpon a property 

 belong to the owner of the property ; but that in rivers adjacent to the property 

 he must have a grant — ^consequently they are not a natural pertinent of the 

 lands, any more than they are res nullius or cedere occupants. This judge and 

 Lord Henderland appear to be the only consistent men, as we noticed before, 

 among them. They admit directly the right of the Crown, which the Justice- 

 Clerk, as we have just seen, as directly denies. Which of their opinions are we 

 to consider law f 



-I* Has the Crown a right to fishings before they are separated from lauds '! 

 We thought ioth the one and the other belonged originally to the Crown, and 

 that it could convey them together or separately : it is not easy to understand 

 what his Lordship means, or to make sense of his speech. 



J If, as he says, the Crown has not a right to fishings till after they are sepa- 

 rated from lands (from which they are separated by nature), how could the 

 Crown grant a right to them wiOi the lands by the words piscationibus and parts 

 and pertinents ? He, however, admits the right of the Crown, which the 

 Justice-Clerk denied, and thus virtually rejects the res nullius and cedere occu- 

 pante doctrine. 



§ Why should not a grant from the Crown aliorum piscium be as efiectual, 

 vrithout prescription, as a grant cum piscationiius, the one being an express grant, 

 the other, as we have said, mere words of style ! Stair, and the other writers 

 on the law, as before noticed, say that piscationibus can only give a man a right 

 to fish in the streams on his own ground, but this judge makes no distinction, 

 whether he meant aijy or not. 



L 



