Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SALMON FISHING.
Subject_3 Penalties quoad futura in the case of the Salmon Fishing of North Esk refused.

William, Lord Halkerton, and Others,
v.
James Scott of Brotherton

Date: 13 December 1769

Click here to view a pdf copy of this documet : PDF Copy

[Fac. Coll., V. 16; Dictionary, 14, 276.]

Coalston. I always doubted of the propriety of the judgments imposing penalties. The Court has been carried away by the idea of the enormity of the offence: it has imposed penalties from 600 merks to L.50 sterling. By parity of reason, it might have imposed a penalty of L.500 or of L.5000. Why inflict penalties on the future transgressors of the laws as to fishing and hunting—and not in every case where there is a judgment ad factum prœstandum?

Hailes. Of the same opinion. I think the Court is to determine causes when they come before them, instead of perplexing themselves with penalties inflicted before the transgression. If penalties are to be prepared in one case, why not in all? And then, by parity of reason, he who is found guilty of a bloodwit may be ordered not to break another man's head under the penalty of L.50. As far as the Court has gone we must go; but there seems no reason for going farther. It is said, “The penalty ought to be ascertained before-hand, because it is impossible to liquidate the damages.” This seems to imply that, because you cannot liquidate the damage after, you ought before the offence.

Kaimes. I am only for penalties where, unless they are imposed, damages must arise. That does not seem to be the present case.

Kennet. The vacancies in the cruive-dyke cannot be constantly filled up; so that there is an easy remedy by an application to the Sheriff.

Pitfour. I am very clear that this practice of inflicting penalties has been the constant practice ever since the year 1665. Those penalties have not been desultory, but regular, increased according to the gradual rise in the value of money. Here there are two different interests—that of the superior heritors and of the public. If the Saturday's slop is not observed, the superior heritors only suffer—and the extent of their damage may be known from the number of fish taken during that forbidden interval. But as to the damage to the public—if the cruives are shut altogether during the whole closetime, it is inestimable. The right of the public ought to be more strictly fenced than the right of individuals. Here is an attempt funditus to defeat the purpose of the law. Will you prevent peccadillos, and let capital crimes escape? The refusing to enact penalties will be like granting an indulgence for crimes to be committed, which has not been known in Scotland since the Reformation.

Auchinleck. Brotherton has shown his indocility in obeying the law. The filling up cruive-holes must be universally hurtful—making a brae-fishing instead of a cruive-fishing. The only question is as to the Court's power of inflicting penalties. If it has power, it is not rigorous to inflict them. I should doubt of the Court's power, were it not for practice. If the defender does not transgress voluntarily—he will suffer nothing by the imposing of penalties.

Monboddo. Penalties are unnecessary; for the pursuers have three several remedies:—First, They may apply to the Sheriff to stop any unlawful work. Second, They may apply to the Sheriff to demolish any unlawful work, if completed. Third, They may apply to this Court, on the head of contempt of authority.

Justice-Clerk. Upon the common principles of jurisdiction, a penalty cannot be imposed quoad fatura, where there is a remedy in course of law.

On the 13th December 1769, the Lords refused to inflict any penalties as to future transgressions, and refused the petition.

Act. H. Dundas. Alt. A. Lockhart.

Diss. Auchinleck, Pitfour, Stonefield.

Affirmed on appeal.