United Kingdom House of Lords Decisions

Lord Ordinary's Note.

His Lordship on this occasion issued the following Note:—

The Lord Ordinary conceived that he ought to pronounce a decision on the first defence pleaded for Mr. Gammell, that he had a right to salmon-fishings under his grant of the barony of Portlethen. That defence is altogether inconsistent with his other defences, that the Crown has no right whatever to the salmon-fishings in the sea, which are claimed in this action, and the Lord Ordinary was prepared to pronounce a decision on this defence; but both parties have desired that the consideration of that defence should be reserved until a judgment shall be pronounced on the other defences, which assert that the Crown has no right whatever to the salmon-fishings in question in the sea ex adverso of this barony. He has therefore reserved consideration of the first defence, and ordered cases on a question of very general importance.

The Defenders admit the right of the Crown to make grants of salmon-fishing in all estuaries; but they seem to make a boundary as to what is sea beyond the estuary, and, in that respect, maintain that the rights of the Crown are limited, and that they cease at the limits fixed by Act of Parliament for restraining the erection of stake-nets. The Lord Ordinary is desirous that the supposed limitation or restriction of the Crown's right should be fully stated and argued, as the case seems to turn on that point.

The Counsel for the Defenders have since stated to the Lord Ordinary that they wished the cases ordered to comprehend their first defence, instead of being confined to their five subsequent defences, so that two very different, indeed contradictory, pleas may be argued in the cases as well as in the other proceedings. The Lord Ordinary is, in general, much disposed to accede to such a proposal made by Counsel on either side; but he conceives it of very great importance in this case to keep distinct two sets of pleas, which, though stated as defences to one summons, are altogether inconsistent with each other. On the first defence, at whatever stage of the cause it may be discussed or determined, the Lord Ordinary would not have ordered cases with the view of preparing it for the decision of the Court. The general question, as to the right of the Crown, which is made the subject of five different defences, is of general importance, and it is most desirable that

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the decision which may be pronounced should apply to that question alone, branched out as it is into five defences.

Complaints have been often made in the House of Lords, that from decisions being pronounced which were applicable to different and opposite pleas, it was a matter of some difficulty to ascertain on what grounds the Court had decided the case, and, in consequence of that, remits to this Court have sometimes been thought necessary.

The Lord Ordinary does not think it material in what order decisions are pronounced on the defences, but he thinks it essential that the more general and important question should be considered without the admixture of any other matter.

The Case lodged on behalf of Her Majesty's Commissioners and the Lord Advocate (the present Respondents) was in substance as follows:—

Respondents' Case in the Court below.

The question does not relate to fishings generally in the sea, but solely to salmon-fishings around the coast of Scotland.

It must be regulated by the municipal law of Scotland, and cannot be affected by the peculiar laws and usages of other countries. The Defenders have opened a wide discussion by referring to numerous authorities on international law, which have very little bearing on the present case.

There are many doctrines of general law discussed in the Defender's Case which the Pursuers have no occasion to dispute.

All nations being equal, all seem to have an equal right to use the unappropriated parts of the ocean for navigation. But those parts of the sea which adjoin the land are appropriated as accessory to the coast that commands them. The doctrine laid down by Heineccius ^(a) is that now generally received by the best writers. He maintains that the ocean is incapable of appropriation, but that parts of the ocean and narrow seas may be appropriated, subject to the right of navigation.

The sea within cannon-shot of the shore, or a distance of three miles, is occupied by the occupation of the coast; and sea fisheries are subject to occupancy, and capable of exclusive possession ^(b).

Craig lays it down that the property of the sea belongs to those to whom the nearest continent belongs, and that the right of fishing in the adjoining sea belongs to the same parties to whom the property of the sea, so far as it can be appropriated, belongs ^(c).

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( a) 2 El. 277.

( b) Vattel, i. s. 287; Puff. iv. 4. vii. 8; Wildman's International Law, 70.

( c) Craig's Jus Feud. lib. i. dieg. 15. s. 13.

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The right of fishing in the sea is totally distinct from the right of maritime dominion. The English have never pretended to have a property in all the seas over which they have claimed maritime dominion by means of their fleets. But all those portions of the sea adjacent to and commanded by the coast, so far as capable of appropriation, are held to form a part of the national territory.

Vattel says:—“At present the whole space of the sea within cannon-shot of the coast is considered as making a part of the territory, and for that reason, a vessel taken under the cannon of a neutral fortress is not a good prize” ^(a).

It is contended by the Defender that these rights in the sea are national or public rights, which are vested in the Sovereign merely as trustee for the community. Here, however, it is necessary to make a distinction.

The Sovereign of this country is the supreme head of the nation, and as such, vested with the executive power of protecting the interests and vindicating the rights of the people against any outrage or invasion by foreign states. But the rights which belong to the Crown are of two different kinds: 1st, the jus publicum, which belongs to the Monarch in jurisdiction and sovereign right, and which may be held as a mere trust for behoof of the public; and 2ndly, the jus privatum, under which the Sovereign possesses the land and sea adjoining the coast as a patrimonial property, so far as it is capable of appropriation.

In the case of the Officers of State v. Smith ^(b), it was observed by the Lord Justice-Clerk, that “anterior to any grant which may be founded on, the right clearly is in the Crown as a right of property. If the proprietor claims the right of property in the shore, it can only be in respect of titles flowing from the Crown. This admits the right of property, in the first instance, to be in the Crown.” His Lordship farther observed:—“In such a matter I cannot agree to view the Crown's dominant right and title as the right of the trustee for the public. It is a right of property.”

In the same case, Lord Cockburn remarked:—“I agree with those who hold the shore and its natural fruits to be the property of the Crown. Originally and radically, the property is the King's.”

All the authorities in the law of England lay down the same general principle ^(c).

The public rights belonging to the Crown are inalienable, while the private ones, being capable of yielding profit, may be retained or alienated to a subject.

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( a) Vattel, b. i. c. 23. s. 289.

( b) March 11, 1846; 8 N. S. 711.

( c) See Rex v. Smith, 2 Doug. 441; Richards, 1796, Ans. 603; Hull and Selby Railway, Exchequer of Pleas, 839; 5 M. & W. 327.

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Thus it is agreed on all hands, that whales and sturgeons are royal fish, and as such belong to the Queen, at least when they are caught within the precincts of the seas belonging to the Crown. Here then is an exception to the general rule of the common right of fishing in the sea contended for by the Defender; and it is carried so far that the property is held to be vested in the Crown in royal fish, by force of the prerogative, before they have been appropriated by their captors.

By our law, salmon is not regarded as a royal fish, like whales and sturgeons. It belongs to the captor, even although he has fished without a proper title. But Mr. Erskine explains, that although the salmon themselves are not inter regalia, but belong to those who catch them, “the fishing of salmon is a royal right” ^(a).

From an early period salmon-fishings have been regarded as of great national importance. This appears from the numerous Acts passed from time to time by the Scottish Parliament, as well as from other historical records. All our institutional writers acknowledge that salmon-fishings stand upon a different footing from that of what are called white-fishings. The right of the Crown to make grants of salmon-fishings in navigable rivers, or in the sea at their mouths, does not appear to be disputed by the Defender; and the right to make these grants proves that the Crown has, by common law, a right to salmon-fishing in the sea as well as in rivers.

It is not necessary for the Pursuers' argument to show that the right of the Crown extends to white-fishings in the sea, although Crown grants to such fishings, at least when followed by long possession, have been held by high authority to be effectual.

Salmon-fishings are in a very different situation. Not only are they more valuable, and probably for that very reason classed inter regalia, but they cannot be profitably carried on at a distance from the sea-coast—the salmon being generally caught in rivers, or in a part of the sea at mouths of rivers, or in the immediate vicinity of the seashore. For these reasons, salmon-fishings are, from their very nature, more easily appropriated or rendered susceptible of private property than white-fishings, in which much greater latitude has always been allowed.

Neither is it necessary for the Pursuers to trace the origin of the Crown's right to salmon-fishings to the Constitution of the Emperor Frederick, or any of the early authorities in the feudal law. In treating of the subjects which are inter regalia, that Constitution mentions, among other things, “ piscationum reditus.” The theory of the feudal law was to vest the whole fishings and other territorial rights in the kingdom in the feudal monarch.

Erskine says:—“All the subjects which were by the common law counted res publicæ are, since the introduction of feus, held to

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( a) Ersk. ii. 1.10.

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be inter regalia or in patrimonio principis, as rivers, free-ports, and highways” ^(a).

This applies also to the sea and the seashore, so far as they are capable of yielding profit.

In commenting upon the Constitution of the Emperor Frederick, Craig observes,—“Nam salmonum piscatio apud nos inter regalia numeratur, neque cuiquam hodie concessa videtur, nisi specialis ejus in concessione mentio fiat; antiquitus tamen sub nomine piscationis comprehendebatur etiam apud nos, quoties perpetua et ultra hominum memoriam possessio accesserat” ^(b). The same author, in treating of fishings, says:—“Bartolus duplex jus piscationis facit, unum quod a principe impetratur; quo quidem mihi innuere videtur, piscationem jus esse regale quod nisi a principe conferre non possit, nec in privatorum dominio esse; nam quæ antiquitus publica sive juris publici erant, hodie principi, qui Reip. personam repræsentat, ceu propria adjudicantur; alterum quod privati sibi ex diuturni temporis consuetudine cujus inchoatæ memoria non extat præscripserint. Nos etiam duplicem piscationem facimus, sed alio modo distinctam: unam salmonum alteram communium sive alborum (ut loqui solemus) piscium. Salmonum piscatio in feudi dispositione generali non venit, nisi exprimatur; neque sufficit generalis illa dispositio cum piscationibus, nam salmones non comprehendit et hæc est communis opinio, salmonum piscationum inter regalia numerari, quæ nisi expressa sit, non censetur concessa, nisi forte terræ in baroniam dentur” ^(c).

Stair draws the distinction between the vast ocean, which is common to all mankind for navigation and fishing, and the sea, where it is enclosed in bays or creeks, or within view of the shores, and where it may become proper for fishing. He says:—“The vast ocean is common to all mankind as to navigation and fishing, which are the only uses thereof, because it is not capable of bounds. But where the sea is enclosed in bays, creeks, or otherwise is capable of any bounds or meiths, as within the points of such lands, or within the view of such shores, there it may become proper, but with the reservation of passage for commerce as in the land: so fishing without these bounds is common to all, and within them also, except as to certain kinds of fish, such as herrings,” &c. ^(d).

“Salmon-fishing is also inter regalia, and therefore passeth not ordinarily as pertinent, and ought to be expressed in the infeftment; yet in some cases salmon-fishing hath been found constituted without special expression, but only by the common clause, cum piscationibus, and long possession, June 29, 1593, Lesley v. Ayton, in which case it was found that salmon-fishing is only inter

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( a) Ersk. 2. 6. 17.

( b) Craig's Jus Feudale, b. 1. t. 16. s. 24.

( c) Craig's Jus Feudale, b. 2. t. 8. s. 7.

( d) Stair, 2. 1. 5.

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regalia, as it is a casualty fluminis publici, such as navigable rivers, wherein there is a common use of passage and transportation; see also March 26, 1628, Maxwell v. Portrack. It is more dubious what the meaning of the clause cum piscationibus simply, or of fishing in salt-water, can import, seeing there are common freedoms of every nation to fish in the sea or in brooks or rivers for common fishes, and therefore needs no special concession from the King or other superior; but the use thereof may be, first, that it may be the title or foundation of prescription of salmon-fishing, not only in fresh-water, but in the sea, at the water-mouth, where they are frequently taken; and also, that in other fishings, if a prescription run of interrupting and hindering others to fish whatsoever sort of fish, it will constitute a property thereof, which could not consist without this clause or the like, as a title; neither could it be comprehended as annexis or connexis of lands, or as a servitude being a distinct right, having so little respect to land” ^(a).

Erskine, after referring to the controversy with the Dutch, in which they asserted that the sea, from its nature, cannot be appropriated, proceeds to observe:—“The British have, on the other hand, maintained that however incapable the ocean may be of property, yet the seas which wash the coast of any state are subjects that may be as fitly appropriated to private uses as rivers, bays, creeks, &c., and that in fact our Sovereigns are lords or domini of the British seas which surround this island; in consequence of which only it is that treasures brought up from the bottom of those seas or wreck-goods found floating on their surface, belong to the Crown” ^(b). The same writer says:—“Salmon-fishing is also a jus regale, and therefore is not carried by a charter without an express clause. Yet by our uniform practice, the common clause cum piscationibus is a sufficient title for constituting a right to salmon-fishings by prescription, so that where the vassal has been in the uninterrupted possession of it for forty years, such possession, joined to the general clause, establishes a right to that ‘ regale’” ^(c).

Mr. Ross, in treating of the original charter, makes the following remarks ^(d):—“Common fishings in public rivers and the sea were preserved in a manner by nature to mankind in general; but the pleasure of killing deer, and the profit afforded by salmon, attracted the notice of princes, and were placed inter regalia. Salmon always was an article of great moment in Scotland, and therefore practice distinguished between them and the white fish. Salmon-fishings in the sea are not comprehended under the general word piscationibus. It behoved them to be specially granted. The rule in white-fishing was, that they belonged to the proprietor of the coast. If he had been in the immemorial use not only of fishing himself,

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( a) Stair, 2. 3. 69.

( b) Ersk. 2. 1. 6.

( c) Ersk. 2. 6. 15.

( d) 2 Ross's Lectures, 173.

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but of preventing others, then the general term piscationibus was held as a title sufficient to continue such possession.”

Mr. Bell, our latest institutional writer, in treating of salmon-fishing, says:—“The right to fish salmon otherwise than by angling within sea mark, or where the sea ebbs and flows, or in rivers, is inter regalia. This right is communicable by grant” ^(a). “The right of fishing for salmon otherwise than by rod in rivers or within sea-mark, where the sea ebbs and flows, belongs to the Crown, and is communicable to subjects only by grant. The right may be given either with the land or separately. The royal grant is, 1st, cum piscatione salmonum, which vests the right directly,. the extent depending on the limits expressed, and the constitution of the grant; or, 2nd, cum piscariis or cum piscationibus, which grounds a title for prescribing a right of salmon-fishing, provided the possession is by the exercise of fishing salmon by net and coble, not merely by rod and spear” ^(b).

It has sometimes been made a question whether the Crown can confer, or a subject acquire, a right to white-fishings in the sea.

In the Duke of Portland v. Gray ^(c), Lord Corehouse said:—“It is settled law that a right to fish oysters and muscles in the sea from the scalp or bed to which they are attached may be appropriated. There are many grants in Scotch charters of a right of fishing white or floating fish in the sea, the legality of which, though not expressly recognized, seems to have been taken for granted repeatedly in the proceedings of the Court. Lobsters hold an intermediate place between oysters and muscles on the one hand, and floating fish on the other.” The Crown charter in favour of the Defender, Mr. Gammell, contains an express grant of a right of white-fishings in the sea.

In Leslie v. Ayton ^(d), “salmon fishings were found to be inter regalia within the sea-mark, or where the sea ebbs and flows, or where salt-water comes, or where the fishing is with a coble or trail net, in all which cases it was found to require express disposition, otherwise than it passes under the clause cum piscationibus.” Again, in the case of Gairlies ^(e), “the Lords found that salmon-fishing was regale where the sea filled or salt-water came, or where the fishing was with a coble or a trail-net. But where the sea came not, or the fishing was not with a coble, they found that the clause cum piscatione in verbis dispositivis might comprehend it.

There are numerous reported cases, both of an ancient and modern date, where charters contain a general grant of lands cum piscationibus tam in mari quam aquis dulcibus; and this has been

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( a) Bell's Prin. 4th ed. s. 671. p. 259.

( b) Bell's Prin. 4th ed. s. 1112. p. 409.

( c) Nov. 15, 1832; 11 S. & D. 14.

( d) June 29, 1593; Mor. 14249.

( e) July 30, 1605; Mor. 14249.

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held to give right to salmon-fishings, at least where the title has been fortified by possession of forty years ^(a). There are also many examples of express grants of salmon-fishings in the sea in Crown charters, clearly showing that, according to the usage and understanding of the country, such fishings are inter regalia, and can only be claimed by a subject under a title flowing from the Sovereign.

In the case of Kelly v. Ramsay ^(b), a question was raised whether a clause cum piscationibus, in a Crown charter, conferred an exclusive privilege of oyster-fishing in the sea; and from the report it will be seen that the Court expressed a clear opinion upon the question now under discussion. It proceeds thus: — Salmon fishing is the only species of fishing in the sea which is universally allowed to be capable of a grant from the Sovereign. White-fishings in the sea are said to be common to all the subjects. The same view was taken by Lord Chancellor Eldon in the Earl of Kintore v. Forbes ^(c). There a complaint was made by the Earl of Kintore and other proprietors against the use of stake-nets by Mr. Forbes and others, who held grants of salmon-fishings from the Crown ex adverso of their estates, which were situated for several miles along the sea-shore northward of Aberdeen. It was decided that the Pursuers of that action had no title to challenge the use of stake-nets on the proper shore of the sea by parties holding grants from the Crown. Lord Eldon observed:—“It is said that the proprietors of these fisheries on the sea-coast have no right, by the terms of their grant, to fish in this manner; that they are entitled only to fish with what is called a net and coble; and that, having taken upon themselves to fish in a different mode, the proprietors of the fisheries in the river Don have a right to complain of it, and on that ground to sustain this suit. My Lords, I apprehend that is quite a mistake. These persons became proprietors of fisheries on the coast originally by grant from the Crown; and if their grants are so limited that in point of law (upon which I do not wish at present to pronounce any opinion) they are not entitled to fish in the manner described, namely, by the use of stake-nets, that is a question between them and the Crown; the Crown may have a right to complain that the exercise of the right conveyed by the Crown has, in that instance, been exceeded; and possibly, under such circumstances, the Crown might, by its public officer, institute some proceeding against them; upon which, however, I wish carefully to abstain from expressing any opinion; but the proprietors of the fisheries on the Don have nothing to do with that.”

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( a) See Campbell, Feb. 16, 1610; Mor. 14250.

( b) Nov. 22, 1776; 5 Brown's Sup.445.

( c) May 31, 1826; 4 S. & D. 641; affirmed, 3 W. & S. 267.

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In the case of the Earl of Fife v. Magistrates of Banff ^(a), the town of Banff held a charter from James VI., containing a grant of salmon-fishings in the sea, extending along the coast about a distance of two miles. They granted a conveyance to the Earl of Fife of certain salmon-fishings in the sea, including those called Middle Shot, under a restriction that he should not fish within a space of 200 feet from the mouth of the river Dovern. The Earl of Fife had exercised the salmon-fishings in the sea, in the eastern bay between Banff and M'Duff, but had never fished in the western bay between Banff and the Burn of Boyndie. A dispute arose between the Town and the Earl as to the extent of his right; and the case is important as showing that the town of Banff had under their royal charters a grant of the salmon-fishings, not only in the river Dovern, but also in the sea, ex adverso of the whole liberties of the burgh, originally extending to about two miles along the coast, while the Earl of Fife had also under his title certain salmon-fishings in the sea, at some distance from the point where the Dovern falls into the ocean.

The Defender has no general title to fishings, either in the sea or elsewhere. His right is limited by his charter to “the white-fishings on the sea adjacent to the said lands.”

The Pursuers have put into process printed abstracts from the Records of Retours to Chancery, and Crown charters, containing specimens of numerous grants of salmon-fishings in the sea or salt-water on the coast of Aberdeen, Banff, Ross-shire, and other maritime counties in Scotland, both before and since the Union.

By the first section of the 7 & 8 Vict. c. 95. it is enacted, that if any person, not having a legal right or permission from the proprietor of the salmon-fishery, shall, from and after the passing of this Act, wilfully take fish from, or attempt to take, or aid or assist in taking, fishing for, or attempting to take in or from any river, stream, lake, water, estuary, frith, sea-loch, creek, bay, or shore of the sea, or in or upon any part of the sea, within one mile of low-water mark in Scotland, any salmon, grilse, sea-trout, whitling, or other fish of the salmon kind, such person shall forfeit and pay a sum not less than 10 s. and not exceeding 5 l. for each and every such offences, and shall, if the Sheriff or Justices shall think proper, over and above forfeit each and every fish so taken, and each and every boat, boat-tackle, net, or other engine used in taking, fishing for, or attempting to take fish as aforesaid; and it shall be lawful for any person employed in the execution of this Act to seize and detain all fish so taken, and all boats, tackle, nets and other engines so used, and to give information thereof to the Sheriff or any Justice of the Peace, and such Sheriff or Justice may give such orders concerning the immediate disposal of the same as may be necessary.

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( a) Nov. 27, 1829; 8 Sh. 137.

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This Statute demonstrates that salmon-fishings in the sea belong exclusively to those proprietors who have a legal right to them, and that there is no foundation for the theory that the right of fishing for salmon in the sea is a privilege belonging to, and which may be exercised by all British subjects without distinction.

The Defender refers to various English cases, and also to Blackstone and Chitty, for the purpose of showing that, “in navigable rivers, and in the sea, the right of fishing is common to the lieges, without restriction.” These authorities, however, plainly prove too much, because they imply that in England no Crown grant to salmon-fishings will be effectual even in navigable rivers,—a position which the Defender admits is quite untenable in Scotland, as he does not contest the right of the Crown to make such grants in navigable rivers in this country.

According to all the best authorities, the right of fishing for salmon is, by the law of Scotland, a jus regale, and belongs only to the Crown or its grantees; and this holds both in salt-water and in fresh, in rivers and on the sea-coast. It is well known that this fish is unfitted to remain for a length of time either in fresh water or in salt, and that it passes alternately from the one to the other. It ascends to the sources of rivers, and enters the smallest stream, in order to deposit its spawn, and to get rid of the animalculæ which infest it, if it remains too long in the sea; but if it be detained in the fresh water, the body wastes away, and the animal becomes unfit for food, and perishes of disease.

In addition to the preceding Case, the Respondents lodged the following pleas in law:—

I. The right of salmon-fishings in the sea around the coast of Scotland belongs exclusively to the Crown, and forms part of its hereditary revenues.

II. The right of salmon-fishings in the sea around the coast of Scotland being inter regalia, the Crown alone is entitled to grant a right to such fishings by charters or otherwise; and without a grant from the Crown, no person can lawfully exercise such right.

III. The Defender, Mr. Gammell, by pleading under his alleged title of barony, and by having acted or attempted to act thereon, and to grant the alleged lease of the fishings in question, is barred from challenging the right of the Crown to such fishings; and in any view, his pleas on this head are inconsistent with, and exclusive of, the pleas maintained against the title of the Pursuers.

IV. The Defender has no right or title to salmon-fishings in the sea opposite the estate of Portlethen, or in any part of the sea-coast adjoining thereto, either under his pretended title of barony or otherwise.

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V. In the circumstances of this case, the pleas maintained by the Defenders are groundless and untenable; and the Pursuers are entitled to decree, in terms of the conclusions of the Summons.

The Case lodged on behalf of the Appellants in the Court below was substantially as follows:—

Appellants' Case in the Court below.

By the law of nature the sea is inter res communes, and all mankind have a common right to the enjoyment and use of it. This is the doctrine of the Roman law, as delivered in the Pandects ^(a): —“Et quidem naturali jure omnium communia sunt illa: aër, aqua profluens, et mare; et per hoc litora maris.” “Item, Nemo igitur ad litus maris accedere prohibetur piscandi causâ dum tamen villis, et ædificiis, et monumentis abstineatur; quia non juris gentium, sicut et mare, idque et Divus Pius piscatoribus Formianis et Capenatis rescripsit.”

“Mare commune omnium est, et litora, sicut aër. Et est sæpissime rescriptum, non posse quem piscari prohiberi” ^(b).

Maritime nations have from the earliest periods appropriated parts of the ocean along their coasts, and subjected them to the general laws and regulations of the state; but no right of property was ever maintained.

In the great dispute which arose in the time of Charles I., between England and Holland, as to the dominion of the narrow seas, Selden, in his treatise, entitled “ Mare Clausum,” written in answer to the work of Grotius, called “ Mare Liberum,” maintains the doctrine that a nation may appropriate the sea, and may vindicate its right to the dominion thereof, in the same manner as it may appropriate a newly-discovered island.

Vattel and other great writers of the same period likewise maintained the doctrine of national appropriation.

The whole doctrine to which the observations now made apply is summed up by Craig, in the following passage:—“Juris autem humani res rursus subdividuntur, ut quædam sunt publicæ res, quædam universales, quædam nullius, quædam privatæ, sive singulorum. De his singulis dicendum. Publicæ, quæ vel omnium hominum vel gentium communes sunt, ut aër, mare, litus, flumen, viæ, itinera publica. Quod ad aërem pertinet, is ita omnium communis est, ut nemo ab ejus usu prohiberi possit, neque enim alteri vendi potest, denique omnino in commercio non est. Quod ad mare attinet, licet adhuc ita omnium commune sit, ut in eo navigari possit, proprietas tamen ejus ad eos pertinere hodie creditur, ad quos proximus continens; adeo ut mare Gallicum id dicatur, quod litus Galliæ alluit, aut ei propius est quam ulli alii continenti.

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( a) Corpus Juris, lib. 1. tit, 8. s, 4.

( b) Lib. 13, ff Tit,

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Sic Anglicum, Scoticum, et Hibernicum, quod propius Angliæ, Scotiæ, et Hiberniæ est. Ita ut reges inter se quasi maria omnia diviserint, et quasi ex mutua partitione alterius id mare censeatur, quod alteri propinquius et commodius est; in quo si delictum aliquod commissum fuerit, ejus sit jurisdictio qui proximum continentem possideat; isque suum illud mare vocat.” Craig then proceeds:—“Piscationes vero, quae in proximo mari fiunt, procul dubio eorum sunt qui proximum continentem possident. Itaque non sine summa injuria nostra Belgæ circa nostras insulas piscantur” ^(a).

Craig is talking here of national, not of private rights,—not of those individuals who may possess the feudal right of the adjacent soil, but of nations. This is clear from the sentence which immediately follows, where he distinguishes and particularizes the Gallic or French sea as being nearer to France than any other country. “Sic Anglicum, Scoticum, et Hibernicum, quod propius Angliæ, Scotiæ, et Hiberniæ est.”

The right of fishing in the adjoining sea is given by Craig to those who possess the nearest continent; that is, to the same parties to whom the property of the sea, so far as it can be appropriated, has been attributed.

These rights are nominally vested in the Crown, because the Crown protects the property of the nation. The Crown possesses the land in sovereignty, and so also it possesses the British seas.

The doctrine of Erskine is precisely the same:—“If our kings have that right of sovereignty in the narrow seas which is affirmed by all our writers, and, consequently, in the shore as an accessory of the sea, it must differ much in its effects from private property, which may be disposed or sold at the owner's pleasure; for the King holds both the sea and its shores as a trustee for the public. Both, therefore, are to be ranked in the same class with several other subjects which by the Roman law were public, but are by our feudal plan deemed regalia, or rights belonging to the Crown” ^(b).

The claim of the Crown in the present case is based upon the assumed principle, that the public, and the Defenders as forming part of the public, have no right to fish for salmon in the sea, and that all such fishings in the sea belong exclusively to the Crown or its grantees.

The Pursuers ^(c) rely on the feudal law, as vesting in the Monarch certain regalia, unknown to the civilians, and among these, the right of fisheries; in particular the Respondents cite the Constitution of the Emperor Frederick, given in the Lex Feudorum,

_________________ Footnote _________________

( a) Craig, lib. 1. dieg. 15. s. 13.

( b) Ersk. book ii. tit. 1. s. 6.

( c) i.e. the Respondents.

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defining and enumerating the regalia. That Constitution is given at length by Craig ^(a), who investigates and comments upon each separate head. The words are “ piscationum reditus et salinarum.”

The most approved commentators on the Books of the Feus, explain that the reditus are not exacted in virtue of the Sovereign's right to fishings, but in recognition of his authority.

Reygerus, in his Thesaurus ^(b), treating of “Reditus vel vectigal piscationum,” says:—“In quibus tamen piscationibus attendi consuetudinem dicit Alvaro, et licet flumina publica sunt communia, tamen protectiones et jurisdictiones eorum spectant ad Principem.”

In commenting upon that portion of the Books of the Feus wherein regalia are treated of, Vulteius ^(c) says:—“Annotavit hoc loco Cujacius usurpatione tantum defendi posse fiscum, qui sibi vindicavit piscarias contra jus gentium. Hinc feudi dominum non posse subditis prohibere piscationes tradunt Jacobinus et alii, quod magis commune asserit Menochius (Consil. 298, No. 20-1) sed egregie declarat Sixt. 2, de Regal. 18.” The passage of Menochius here cited is in these terms:—

“Ea autem quæ juris naturalis vel gentium sunt, Princeps tollere non potest. Non licere uni ex commitibus, prohibere alios comites et convassalos piscari quovis in loco ipsius comitatus tum quia singuli censentur domini ex quo non dominium feudi sed jurisdictionis exercitium tantummodo fuit divisum, et ideo par in parem non habet imperium tum etiam quia princeps et feudi dominus non potest subditis (quod majus est), prohibere piscationes quæ: juris naturæ et gentium censentur,” and Vulteius, p. 71, thus expresses himself:—“Et sicut viarum publicarum usus communis est, ita etiam fluminum publicorum usus jure gentium manet communis, atque adeo etiam jus piscandi et navigandi et similia, nisi forte imperator id prohibuisset per doctrinum Bartolini, quam sententiam pluribus probat Rauchbertus—aut uni jus piscationis vendidisset aut ex certa scientia concessisset, tametsi hæc limitatio videatur satis esse dura, usui et juri gentium repugnans, et legibus ac constitutionibus Imperatcrum contraria, ut scribit Peregrinus.” So likewise the learned Peregrinus:—“Notandum est, quod maria Principum sunt, respectu jurisdictionis, et protectionis, usus verum eorum est publicus, proprietas autem est in nullius bonis” ^(d). Peregrinus adds:—“Quibus expresse cavetur usum viæ publicæ et fluminis publici, publicum esse jure gentium, ac ideo interdici non posse, liberumque esse uni cuique, per publica flumina navigare, et omnibus jus piscandi, commune esse in flumenibus publicis et portibus,

_________________ Footnote _________________

( a) Craig, lib. 1. dieg. 16. s. 8.

( b) Voce Regalia, p. 418. s. 25.

( c) Lib. 1. p. 75. s. 18. Piscationum reditus.

( d) De jure et privilegii fisci, lib. 1. s. 17. p. 3.

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quo circa principum prohibitiones adversum licentiam hanc communem, jure, et usu gentium universali probatam et deinde per leges principum confirmatam, non videntur juris auctoritate subnixa, sed de facto, et contra jura, idcirco temperandæ ex causa veluti ut prohibere possint, non solventibus vectigal indictum vel ex aliqua alia honesta causa” ^(a).

The general right of the subjects of a state to fish in the sea in the exercise of that freedom which cannot be abridged for the advantage of any particular individual, is declared by Pothier, in words not less sound in principle than universal in their application:—“ La mer étant du nombre des choses communes, dont la propriété n'appartient à personne et dont l'usage est permis à tout le monde, il a toujours été, et il est encore permis à tout le monde d'y pêcher” ^(b).

The same view of the subject is taken by Craig in his gloss upon this part of the Emperor's Constitution:—De piscationibus et eorum reditibus, quomodo inter Regalia connumerari possint, inter gravissimos auctores controvertitur cum jus piscandi tam in mari quam in fluminibus sit publicum, et a jure gentium introductum. Nos non tam hujus quæstionis solutionem, quam quid apud nos in usu servetur requirentes, per piscationum reditus, non quascunque piscium commoditates, sed tantummodo salmonum, qui in fluminibus capiuntur, intelligendas putamus” ^(c). The exception stated by Craig as to salmon-fishings in rivers will be afterwards considered, but the text lays down the law broadly and clearly, that the right of fishing in the sea is a right belonging to the public, and given them by the law of nations,—that is, by the law of nature.

Craig negatives the idea that any duty or custom could be levied by the monarch upon fishings in the sea of any kind whatsoever.

The right of the Crown, therefore, cannot stand upon principles of general law. Nor can it be supported upon that text in the constitution of the Emperor Frederick, founded upon by the Pursuers, as the origin of the feudal right claimed.

It is not only useful, but necessary, to ascertain whether such a claim is permitted or known in England.

The regiam majestatem, copied as it was from the regiam potestatem of Glanville, proves that the royal authority in both countries was founded upon similar principles, and must have been liable to the same restrictions.

Mr. Chitty, treating of the regal prerogative, lays it down that the King possesses sovereign power in all seas adjoining his dominions. This prerogative power is vested in the King, as the protector of his people and guardian of their rights. It is subservient,

_________________ Footnote _________________

( a) De jure et privilegii fisci, lib. 1. s. 22.

( b) Traité de Propriété, 40.

( c) Craig, lib. 1. dieg. 16. s. 38.

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however, to those jura communia which nature and the principles of the constitution reserve for His Majesty's subjects. It can neither prevent them from trading nor fishing ^(a). The same writer further affirms:— “By implication of law, the property in the soil under these public waters is also in the King. But in this, as in most other instances, the prerogative does not counteract or interfere with the natural right of the public to fish in the sea, in arms of the sea, and in creeks and navigable rivers, and to take fish found on the shore between high and low water mark. This is one of the jura publica or communia, which never was vested exclusively in the crown, and of course, is not to be considered as a regal franchise” ^(b). Again, he says:—“ In the sea the right of fishing is common to the lieges without restriction” ^(b).

The right of the public to fish in the sea is clearly stated:—“But notwithstanding the King's prerogative in seas and navigable rivers, yet it hath been always held, that a subject may fish in the sea; for this being a matter of common right, and the means of livelihood, and for the good of the commonwealth, cannot be restrained by grant or prescription” ^(c).

In Warren v. Mathews ^(d), per Curiam, every subject of common right may fish with lawful nets, &c., in a navigable river as well as in the sea, and the King's grant cannot bar them thereof; but the Crown only has a right to royal fish, and that the King only may grant.

In Carter v. Murcot ^(e), it was maintained that “Every subject of common right may fish with lawful nets, and in a navigable river as well as in the sea, and the King's right cannot bar them thereof.” The subject has a right to fish in all navigable rivers, as he has to fish in the sea. In a case of a river that flows and reflows, and is an arm of the sea, the right of fishing is primâ facie common to all.

In Ward v. Cresswell ^(f), Chief Justice Willis said:—We are clearly of opinion that the prescription is void, because the right claimed, as annexed to certain tenements, is a general right for all the subjects of the kingdom.”

The Defenders will now proceed to show that the invasion of the public right has been, according to the authorities, confined to the salmon-fishings in rivers, and has not been extended to those in the sea.

Neither Stair nor Erskine afford the slightest support to the present claim. Their dicta are entirely confined to salmon-fishings in rivers, and their general doctrines are opposed to any interference

_________________ Footnote _________________

( a) Chitty on the Prerogative of the Crown, 173.

( b) Chitty, 142.

( c) 5 Bacon's Abridg. 498, “Prerogative.”

( d) 6 Mod. 73.

( e) 4 Burrows' Rep. 2163.

( f) Willis' Reports, 265.

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with the right of the public to fish in the sea for salmon or any other species of fish found therein.

Such is the doctrine of the institutional writers upon the law of Scotland. The Defenders, in a case of this importance, must be permitted to quote the doctrine taught by the late Baron Hume in his Lectures upon Scots' Law ^(a), which is perfectly consistent not only with the principles above stated, but also with those more learned constitutional lawyers who have treated more largely of monarchical prerogative. Treating of that branch of the regalia, which, by the Roman law, comprehended res publicæ, he taught “That the King by no means holds these things in absolute property; on the contrary he holds them as trustee and guardian only. In this view he holds them not as an individual, but as supreme magistrate, and he does so, that by the awe of his name, they may be the better protected for public use.”

The King, however, cannot make any grant which will apply farther than the shore, and so he cannot make any grant which will apply to the fishes of the sea. Upon this principle, the Court reduced a feu, granted by the Magistrates of Edinburgh, over part of the sands of Leith, in the case of the Magistrates of Edinburgh v. Tod and Stoddart, 3rd July 1793, N.R. Where, however, the King has given a grant of sea-fishing, it will be effectual to the granter, if it has been followed by long and immemorial possession. —This is Stair's opinion. The public, by permitting such grants to have so long effect, are presumed to have waived any right of challenge. Hence the numerous grants of oyster-fishing, lobster-fishing, salmon-fishing, at the mouths of rivers, which are enjoyed by different persons, and which rest on no other ground than that of a royal grant followed by a very long and undisturbed possession. As to fish in a public river, the contiguous heritors, as such, have not the exclusive right of fishing for them; but this right is equally enjoyed by all the lieges indiscriminately. As to small fishes, such as trouts and the like, all the lieges are entitled to resort to, and take them from any public river, in any fashion or way which they incline, but the same cannot be said to any material extent at least with regard to salmon-fishing. This forms one of the regalia, and this fish cannot be taken in a particular way, at least but by those who possess a royal grant for the purpose. This fish, however, is not accounted a royal fish, in any proper sense of the word, for every heritor is entitled to angle for it ex adverso of his own property. It is the particular wholesale way of fishing by net and coble, or by curracks or cruives, or standing nets, which is the subject of the royal grant. In a public river, any person whatever is entitled to angle for, or take by rod or spear, such quantities of salmon as he may be able to catch. It

_________________ Footnote _________________

( a) Notes of Hume's Lectures.

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is, therefore, only to the profitable way of fishing by net and coble, or by cruives (this can only be understood of a river) that any royal grant is requisite.

The Defenders will now offer a few remarks upon the authorities referred to by the Pursuers.

The institutional writers are quoted and relied upon in support of the claim made in the summons. The Defenders have already referred to these passages, and it is unnecessary to add further argument. The doctrine laid down and the statements made are relied upon by the Defenders in support of their argument.

A passage is quoted from the Lectures of Mr. Ross, to prove the right of the Crown to the salmon-fishings of the sea. But he is not an authority upon questions of general law.

The next authority quoted on the other side is that of the late Professor Bell, who, in his Principles, gives a different version of the law to that of Baron Hume. Professor Bell refers to the case of Ramsay, November 22, 1766 ^(a), which is reported by Tait. The question was one as to a right of oyster-fishing in the Frith of Forth, and it does not appear that salmon were ever mentioned through the whole of the discussion. In reporting the case, however, the reporter introduces it with a dictum of his own, in these words:—ldquo;Salmon-fishing is the only species of fishing in the sea which is universally allowed to be capable of a grant from the sovereign.”

It appears from the opinions of the Bench in this case, as reported by Hailes ^(b), that much doubt was thrown upon the power of the Crown to make any grant of fishings in alto mare, and there is no pretence for saying that the other point was ever spoken to.

The Pursuers rely upon the cases Leslie v. Ayrtoun, June 20, 1593; and Gairlies v. Torhouse, July 13, 1605 ^(c).

Both these cases have reference to fishings in rivers or waters where “salt-water comes;” and the judgment appears to be that, in such cases, the right of salmon-fishing required express disposition, otherwise it passed under the clause cum piscationibus.

Mackenzie, May 20, 1830, was also quoted. Here interim interdict was granted against a party fishing by any other mode than the ordinary one of net and coble. This also was a case as to fishing in a river, and is not applicable.

The Pursuers quote the note of Lord Corehouse, in the case of the Duke of Portland v. Gray ^(d). This was a question as to the right of lobster-fishing along the coast of Ayrshire, ex adverso of

_________________ Footnote _________________

( a) 5 Brown, Supplement, 445.

( b) Vol. ii. 722.

( c) Morrison, 14249.

( d) Nov. 15, 1832; 11 S. & D. 14.

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his Grace's estate; he was in possession of a barony, with the right of fishing salmon et aliorum piscium. His Grace averred exclusive right to the lobster-fishing.

The general question as to the right of the Crown was not determined, and was considered one of difficulty, both by the Lord Ordinary and the Court.

The next case referred to is that of the Earl of Kintore v. Forbes, where the Lord Justice Clerk delivered the following opinion:— Such, then, being the state of the authorities in regard to these statutory enactments, in none of which is there to be found any indication of their being held to apply to the proper coasts of the ocean, and as it is manifest that no decision has been pronounced tending to establish the illegality of stake-nets, when used not in rivers, or estuaries, or water mouths, but on the shores of the sea itself, it appears to me that the action at the Pursuer's instance cannot be maintained, although I reserve my opinion as to nets placed so as to intercept the entrance of salmon into the river according to the principle of the ancient case mentioned by Balfour ( The Queen v. Lady Innes, April 12, 1559), but which is totally independent of the legality or illegality of the nets themselves.

The Defenders are not bound to say what may be the effect of a grant of salmon-fishings followed by exclusive possession for forty years, or from time immemorial.

The statute 7th and 8th Victoria, referred to by the Pursuers, confers no right.

In the second place, your Lordships cannot grant the interdict demanded without interfering with the rights of the Defenders as British subjects, and preventing and depriving them of the exercise of rights and privileges which are common to the public, and for which, as they are now challenged, the public have a right to demand your protection.

Lord Ordinary's Judgment.

Upon considering these cases, the Lord Ordinary on the 15th of January 1850, decerned and declared in terms of the first conclusion of the summons of declarator.

On the 2nd February 1850 a reclaiming note was presented to the Second Division against the Interlocutor of the Lord Ordinary; and afterwards their Lordships of the Second Division suggested that the Respondents should put in specific pleas in law; and they also gave liberty to the Appellants to give in additional pleas in law if they thought fit.

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