of the Fishery Board for Scotland. 



71 



This Act does not expressly deal with cruives held under infeftment, 

 but it ratines Acts which do deal with such cruives ; and further on in 

 it Sheriffs and others are instructed to be diligent and vigilant in time 

 coming in putting the said Acts and laws therein contained in full and 

 due execution. 



The first Act referred to, 11 Act 1 James I., does not contain the 

 provision regarding the mid-stream, but such a provision is found in the 

 73rd Act of Parliament, 10 James III., which is referred to as ratifying 

 the former Act. 



In 1707 an Act anent cruives was read a first time, but not enacted. 



The Act I. William cap. 33 (1696) only deals with cruives incidentally. 1696, c. 35, 

 It proceeded on the narrative that the great advantage from salmon fishing x - 76 - 

 was being ' prejudged ' by the killing of black fish in forbidden times, and 

 by destroying the fry and smolts of salmon with creels and mill dams and 

 other engines, and accordingly His Majesty ratified, confirmed, and approved 

 ' the haill former laws and Actes of Parliament made anent the killing of 

 ' salmon, kipper, and black fish in forbidden times, and the killing and 

 ' destroying of the fry and smolts of salmon.' After making provision 

 against the illegal killing of fish, the Act proceeds : — ' And in respect that 

 ' the salmon fishing within this kingdom is much prejudged by the height 

 ' of mill dams that are carried through the rivers where salmon are taken, 

 1 His Majesty . . . ordains a constant slop in the mid-stream of each mill 

 ' dam dyke, and if the dyke be settled in several grains of the river, that 

 ' there be a slop in each grain (except in such rivers where cruves are 

 1 settled), and that the said slop be as big as conveniently can be allowed, 

 1 providing always that the said slop prejudge not the going of the mills 

 ' situate upon any such rivers.' 



It may be matter of doubt whether the description of the statutes rati- 

 fied is wide enough to embrace the Acts relating to cruives, but they 

 probably are included, as the Acts relating to cruives have been enacted 

 with the view of preventing the destruction of fry. The provision as to 

 the exception of the slop in mill dams or rivers where there are cruives 

 leads to the necessary inference that the legislature regarded the mid- 

 streams as in desuetude. 



All the foregoing statutes have been referred to and founded on in 

 many cases, and in some so late as the middle of this century (e.g., Kintore 

 v. Forbes, 31st May 1826, 4 S. 641 • Home v. Mackenzie 1838, 16 S. 

 1286 ; and in House of Lords 1839, Maclean's Reports 977 ; and Suther- 

 land v. Ross 1844, 6 S. 425). With the exception of Charles II.'s statute, 

 none of them can be said to have been entirely in desuetude at the passing 

 of the Salmon Fisheries (Scotland) Act, 1862. They are, indeed, referred 

 to generally in the 1828 Salmon Act, and in that Act the 1477 Act is 

 specially referred to, and the provisions in it in regard to the keeping of 

 the laws anent ' Saturdaie's slop,' suffering cruives not to stand in forbidden 

 time, and requiring that the heck of each cruive should be three inches 

 wide, are quoted, and the penalties provided by the 1477 Act are 

 augmented. The provision as to the mid-stream, however, is not embraced 

 in the quotation. 



By the Salmon Fisheries (Scotland) Act, 1862, power was given (section 

 6) to the Commissioners appointed under the Act 'to make general 

 'regulations' with respect to ' the construction and use of cruives.' This 

 power, however, is subject to the important qualification ' that such 

 1 regulations shall not interfere with any rights held, at the time of the 

 ' passing of this Act, under royal grant or charter, or possessed for time im- 

 4 memorial.' As there are no cruives which are not held under royal 

 grant or through immemorial possession, it would at first sight appear 

 that, if this qualification received a literal interpretation, no regulations 



