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2. Of Fisheries.
The fisheries that have attracted most attention, as being ofmost importance, are those of salmon and herrings, and latterly,of whales.
That industry may have its proper excitement to augment inquantity, or to improve in quality, those subjects which it is ca-pable of augmenting or improving, an exclusive right of proper-ty, in the subject to which it is applied, is indispensable. Asense of common interest in protecting such exclusive appropria-tion is evolved,—in regard to domestic animals, so soon as thechase is left off for pasturage,—and in regard to soil, so soon asrecourse is had to its cultivation. Fisheries in general, beingunsusceptible of such augmentation or melioration, the grounds<rf their exclusive appropriation are not so obvious; and here,therefore, the law, instead of following and giving sanction to anatural sense of right, as in most other instances, constitutes theright itself, entirely by its own enactments.
No individual ever dreamed of exclusively appropriating theopen sea, with its products, or even an arm of the sea, whichremains, therefore, in common, for common use. And a river,of such size as to afford salmon-fishing to any considerable ex-tent, is an object of too great magnitude, (particularly as itwidens into a firth), to be conceived by the imagination as anaccessory or appendage to the landed estates it may pass through;or, however the river may be appropriated, on being construed asan appendage to conterminous lands, still the fish of the river area common property to its proprietors. There is a necessity of re-gulation, in river, as well as in sea fishing, that the common usemay be employed without mutual obstruction, or deterioration ofthe common subject.
Salmon-Fishing.
It is the peculiar instinct of the salmon tribe, of migratingfrom salt water to fresh, to deposit their spawn, and from thefresh again to the salt, for the sake of food; circumstances whichplace them under the command of man.
It is much in the power of those situated at the mouths of ri-vers, to intercept the fish in their passage upwards, so as to de-prive those situated above of their share of the benefit, as well asto prevent the multiplication of the fish, in keeping them fromthe shallows where they spawn; whilst those upon the superiorparts of the river, and smaller brooks running into it, mightgreatly thin the breed, by destroying the fish come up for thepurpose of spawning. The regulation of a common property,where the irregular exercise of the use might be so mutually ob-structive, as well as destructive of the subject, has been anxious-ly provided for by many acts of the Scots Parliament.
There are many enactments for preventing salmon from being