SALMON-FISHERY OF SCOTLAND. 163 



them, Swinton, calls trouts res nullius, which Lord Monboddo, 

 who, notwithstanding his notions abput tails, seems to have 

 been the best judge among them, flatly contradicts. Another, 

 the Lord Justice-Clerk, considers them cedere occupante, but he 

 stands alone in his opinion ; and a third, Eskgrove, dotibts 

 whether a man could be prevented from killing them in a 

 boat. It is quite clear, from the confusion of their ideas, in 

 which the most opposite doctrines are jumbled together, that 

 they could find no particular law which bore on the subject, or 

 which rendered a right to trouts different from any other 

 question of an heritable nature that might come before them, 

 and they ought, therefore, to have put it on the same footing, 

 and judged it by the same rules, as any other heritable right. 

 The whole case was clearly a simple question of servitude oi pre- 

 scription. We do not think that Sir James Colquhoun got any- 

 thing like fair play on the occasion, with his grant from the 

 Crown alionim piscium in his hand ; for while his opponent, 

 with, we may say, ho grant at all, was allowed to kill trouts 

 with nets. Lord Braxfield expressly declared that Sir James, 

 the Crown's grantee — the legal owner, in fact, of the subject — ■ 

 should Tiot be allowed to take them with a net appropriated to 

 the purpose. 



This right of trout-ahgliug is evidently a right which cannot 

 be exercised, which cannot even exist without injury to the 

 salmon-fishery ; and it requires a greater strength of reason 

 than we are possessed of, to conceive the legality of a right 

 which cannot be exercised without injury to superior rights. It 

 appears to us in the shape of a Ze^aZ right, as an anomaly, which 

 we can no more understand, than we can understand how a 

 right can be loth an herita;ble and a personal right at the same 

 time. It is a right, j?er se, of which there is not an example in 

 the whole catalogue of our rights — a right sui generis, a non- 

 descript, which has its fellow only in the bond of honest 

 Shylock, who might take his pound of flesh, if he could, with- 

 out a drop of blood — a right legally to do what one cannot do 

 legally ; a right, in short, founded in no KNOWN law, and con- 

 trary to all justice. Such is the mongrel, demi-heritable, demi- 



