§ (5.30.) As amended (by the Standing Committee), considered.
In page 2, line 11. by leaving out from the first word 'the' to the word 'of,' in line 12, and inserting the word 'Act' instead thereof."—(The Lord Advocate.)
Another Amendment proposed—
In page 2, line 14, to leave out the words 'by not or.' "—(The Lord Advocate.)
§ Question proposed, "That the words proposed to be left out stand part of the Bill."
§ MR. THOMAS SHAW (Hawick Burghs)
said he was sorry the right, hon. Gentleman the Lord Advocate had gone back from the decision of the Grand Committee, and that he had not made any explanation with regard to the Amendment he now proposed. The situation with regard to the Bill was that this was a Bill for the further protection of freshwater fish, and extending the close time for trout. And the opportunity had been taken in Grand Committee to remove some of the exceptions in favour of the landlords of Scotland. In 1845 and 1861, certain legislation was introduced to prevent poaching practices, but an exception was made in favour of the landlords, who under those Acts were enabled to do that which if done by anyone else would have been held to be poaching. The Lord Advocate had gone back on the decision of the Grand Committee, which said it was poaching to net trout, by introducing this Amendment "except where the landlords net trout." He did not approve 1602 of that exception. He quite appreciated the case of landlords who netted trout for the purpose of restocking their waters, or for the purpose of breeding, or for scientific purposes, and he would suggest that this proviso should be inserted—Provided, that it shall still be legal and permissible for such proprietors and others aforesaid to fish for trout by net in such waters, broads, or lochs, for scientific purposes, or for breeding, or restocking purposes.No landlord would object to his being prevented from netting trout for commercial purposes, if they looked at these streams and lochs for sporting purposes. He could understand a landlord being permitted, to do as he pleased if the whole loch belonged to him, but it would be an intolerable thing, after they had protected the lochs and waters of Scotland, to allow the landlord of a certain portion of the shores; of the loch to net for commercial purposes. He did not think any self-respecting landlord, or any lover of sport, would do it. He objected to the two words "by netting" being deleted, but suggested that the proviso he had sketched out should be inserted, it was difficult to explain what a sense of wrong would be felt in the highlands of Scotland if this was allowed to go on, and the landlords were permitted to take the sporting rights of others.
§ THE LORD ADVOCATE (MR. A. GRAHAM MURRAY,) Buteshire
said that if the decision of the Grand Committee had been one which he could assume was in thorough accord with the views of the majority he should not have gone back upon it, but it was a decision carried only by a majority of one, owing to the proceedings being protracted to about three o'clock. Therefore, he did not think he was wrong in taking the view of the House upon the matter. The hon. Member had put his case a little forcibly, but there was something also to be said on the other side. He congratulated the hon. Member who, he was glad to see, had all the zeal of a convert, because when this Bill was in the hands of a private Member, before the Government took it up, the principal opposition was from the hon. Gentleman, who was not so anxious that there should be a close time for trout. The Bill as introduced was not to alter the rights of fishing at all. It simply 1603 said there shall be a close time for trout, and further that there shall be a prohibition against the destruction of fish by dynamite. Then the hon. Member in his new-born zeal looked into the Statute Book and discovered the Acts of 1345 and 1860, which were passed to stop poaching, and had been surprised to find they were not directed against the landlords. They were not directed against the landlords, for the simple reason that in his own water a man cannot poach. Those Acts were directed against people who had no right to take trout at all. In Scotland there were no rights in the public for trout fishing, any more than there were in salmon fishing. The trout fishing in Scotland was an incident of the land over which the water flowed, and the owner of the land had the right to take the trout therein. The law went so far as to say that, although one might take a stand over the water on a public bridge, one could not throw a fly, a worm, or a hook into the water, because it did not flow over public land. So far as this Bill was concerned—so far as he knew—there never was any abuse by the landlord; but his hon. friend opposite said in Grand Committee, "Let us take away this exception in favour of the landlords," and he (Mr. Graham Murray) had so far supported him as to say that he was sure landlords would not wish to fish by illegal methods such, as cross lines and "otter" fishing, and, therefore, he was perfectly willing to allow the Amendment, but he must reserve to the landlord the right to take trout by netting. And why not? Why should not a farmer take trout from his own water by net for his dinner? So far as his inquiries had gone, there had been no abuse of taking trout by net with one exception. He believed that in some of the northern lochs in Orkney and Shetland there had been more netting than was desirable, at the instance of the small proprietors. The honest truth was that he did not think any abuse had ever been alleged against landlords, and even if there had been, he did not see how they could help it; because after all the landlords only took their own fish, although in law no one had any right in fish until he had caught it. He thought the House would do wisely in not accepting the burning zeal of the hon. Gentleman opposite, but to go back to the soberer 1604 methods of fishing which had come down without a break from the time of the Apostles.
§ MR. BLACK (Banffshire)
said that the right hon. and learned Gentleman had given a pretty broad explanation with regard to the law of fishing in Scotland, but he could not agree with him that there was no right in the public to fish the waters and lochs. If the law had been altered, it had been altered by Judge-made law, which, by common consent, was bad law. The right hon. Gentleman had delivered a panegyric on landlords, and seemed to think that they could do no wrong. He appeared to think that directly a man got a piece of land he threw off all the foibles and frailties of mankind, and donned the wings of an angel. But before the right hon. and learned Gentleman sat down he had to admit that some landlords in Orkney and Shetland had abused this practice of netting for trout. The right hon. Gentleman forgot that trout was migratory in its habits.
§ MR. BLACK
It was universally known that it migrated for spawning purposes. It was well known that it swam up and down the streams and lochs for miles when it wanted to spawn, and, that being so, where did the argument come in that a man could do what he liked in his own loch? When he netted trout he netted his neighbour's trout, because the trout had gone up the loch to spawn. The hon. Member for the Border Burghs had instanced a case of a loch which was owned by several proprietors. He himself knew a loch owned by three, two of whom let the angling rights, and if the third proprietor netted the trout he netted the trout of the other proprietors. This applied to streams even more strongly than to lochs, because if a man netted his portion of a stream which was owned by scores of proprietors who owned the banks, he would eventually clear the stream, because trout gravitated to those parts where they found their food, and if the trout were removed from one part of a 1605 stream others would resort to that part for food. He thought the owners should only have the right to legitimate sport.
§ SIR HERBERT MAXWELL (Wigtonshire)
supported the Amendment. There was no reason why landlords should be restrained from netting trout, a practice which they had not abused. He urged the House to take a commonsense view of the question.
§ (6.0.) SIR ROBERT REID (Dumfries Burghs)
said the point was as to whether or not proprietors were to be at liberty to fish for trout by net. It was not disputed that that was a practice in which no decent or sports-manlike landlord would indulge, except for scientific or breeding purposes. If the Bill permitted such a thing to be done, there were certain to be some people who would abuse the privilege. The provision would, in fact, reserve to these people a right to do something they ought not to do. If all landlords fished for trout with a net there would soon be no fishing at all. But because other landlords were sportsmen and observed fair play in regard to their; neighbours, the one person guilty of unsportsmanlike conduct would be enabled to make a profit at the expense of the others. There was no common sense in permitting that; it was not protecting the rights of property in the least, but simply enabling unsportsmanlike persons to do that which was universally condemned, and by so doing to injure the good sportsmen. The question had really nothing whatever to do with the rights of property. The proposal of the hon. Member for the Border Burghs was that, as a compromise, fishing for trout by net should not be absolutely forbidden, but that it should be prohibited except for scientific, I breeding, or restocking purposes. No sportsmanlike landlord could desire to do more than that, and he hoped the Lord Advocate would not object to the limitation.
§ * MR. CATHCART WASON (Orkney and Shetland)
hoped that during the coming recess the Lord Advocate would pay a visit to the Shetlands, because he would then realise that, although the 1606 present Bill did not affect those parts to the extent it should do, a great destruction of fish went on there, and a Bill to deal with it effectually might be subsequently introduced. As to the present measure, it was to the interests of the landlord himself that it should remain in the form approved by the Grand Committee. There were a great number of ways in which the law laid down limits within which men should exercise their rights over their own property, so that this Bill was not exceptional in that respect. As to the reasons which had been urged for the excision of the words "by net or," no one would object to an Amendment which would enable a man to net a carp in his own pond for dinner, or one to meet the case of the landlord who desired to destroy a mischievous pike. He agreed with the hon. Member for the Border Burghs that the Amendment would create a wide-spread feeling of distrust, and give the impression that the House was abusing its position, and endeavouring to create privileges for the landlord class which had not existed hitherto. He trusted the Lord Advocate would not press his Amendment.
§ MR. RENSHAW (Renfrewshire)
understood that the existing state of matters had obtained for a very long period in Scotland.
§ MR. THOMAS SHAW
pointed out that, under the Bill, there was a new and special provision for trout having a close time. In view of that, the whole of Scotland would practically become a preserve; therefore the occasion was most opportune for this Amendment.
§ MR. RENSHAW
said the clause inserted by the hon. Member dealt with a different question altogether, and a question which the Bill, as originally introduced, did not touch at all. No evidence had been adduced to show that the practice in question existed to any extent, and the House were asked to deal with it on the mere hypothesis that a certain state of matters might exist. It was a strong order to ask the House, on such grounds, to take away a privilege which the landlord enjoyed, and a right to which he was entitled in respect of his own property. All the lochs and 1607 ponds in which trout existed were not subject to joint proprietorships; there were a vast number, some of which were stocked naturally and others artificially, in which a single proprietor had the sole right of fishing, Was the House prepared to say that in such a case the proprietor was not to have the right under any circumstances to net fish in his loch?
§ MR. RENSHAW
said that that might be so, but trout had a certain commercial value, and there was growing up in many parts of Scotland the practice of placing trout in ponds solely on account of their commercial value. By a proprietor being prevented, under any circumstances, netting those fish, a stop would be put to that which might otherwise develop into a valuable industry.
§ MR. A. GRAHAM MURRAY
said that if it would meet the wishes of his hon. friends on both sides of the House, he would move the addition of the words "except in ponds or lochs exclusively belonging to such person."
§ MR. BRYCE (Aberdeen, S.)
was sure they had all heard with great satisfaction the compromise suggested by the Lord Advocate. On taking a broad view of the situation he believed it would be found that even the landlord would gain more by treating his fishing waters in a liberal way, and not using the net, than by any other way. There was no part of the world in which the people took so much enjoyment in the lochs as in Scotland, and one of the best things they could do by legislation would be to enlist the sentiment of the people in favour of a further development of free rod fishing, which he believed would be a great protection against poaching. That, however, was another question. The arrangement just proposed would, he thought, be for the benefit both of the landlord and everybody else.
§ Amendment, by leave, withdrawn.
Another Amendment made—
In page 2, line 14, after the word 'net,' by inserting the words 'except in ponds or lochs exclusively belonging to such persons.' "—(The Lord Advocate.)
Another Amendment made—
In lines 17 and 18, by leaving out, the words 'or other freshwater fish.' "—(The Lord Advocate.)
§ MR. BLACK
admitted that the Amendment he desired to move depended upon the issue raised at an earlier period of the debate, viz., of whether or not the trout was a migratory fish. For hundreds of years it had been recognised by a Scottish statute that the trout was a migratory fish in the period of spawning, because in the 17th Century an Act was passed regulating fishing in Loch Leven, in which it was stated that in the rivers or streams falling into Loch Leven fishing should be prohibited during a certain period for the purpose of preserving the Loch Leven trout when they went up for spawning. If that was the fact, the Amendment he was about to move was a necessary consequence of the present Bill and the Amendment which had already been accepted. He appealed to the Lord Advocate to accept this Amendment and allow this restriction to be passed.
In page 2, line 18, after the word 'same,' to insert the words 'and such proprietors and others shall further be subject to the said penal and other provisions if they affix in the bed of any river or stream, or at the entrance or exit thereof to or from any loch or pond, any dyke, hake, cruive net, or other artificial engine or appliance for the purpose of capturing or impounding or otherwise impeding the free passage of trout or other freshwater fish.' "—(Mr. Black.)
§ Question proposed, "That those words be there inserted."
§ SIR HERBERT MAXWELL
said there was a growing industry in the culture of other kinds of trout, notably those from America. There were certain very fine species of trout which could be reared in this country which came from America, and many preferred them to the native species, but they had one disagreeable quality of getting away, and the only way to keep them was to put them in enclosed ponds. If the Lord Advocate accepted this Amendment he would put 1609 an end to this practice. As he had said, I he saw no reason why landlords should be restrained from netting trout, and the practice had not been abused.
§ SIR MARK STEWART (Kirkcud brightshire)
said he had tried various kinds of American trout, and without exception the majority of them had disappeared. They went down to the deeper water, which was the natural instinct of every fish. He did not think anything would be gained by the insertion of this proposal. He hoped the hon. Member would not press this Amendment.
§ (6.30.) MR. SETON-KARR
said he knew something of the habits of fish, and he could state that great harm would be done if proprietors were prevented when the fish were spawning from allowing them to breed. The proposal I should only apply to waters running into a loch, but it was so framed as to prevent a proprietor from placing a grating where the trout went out. There was no harm; in trout being allowed to go up a small stream, but the case was different if they were allowed to come down. Once they went down, they went right to the sea. He hoped the Amendment would not be accepted.
§ MR. RENSHAW
said it seemed to him, if this Amendment was to be accepted, it ought not to be in connection with the clause now under consideration, but an earlier clause which dealt with the close time for trout. For his part he should be sorry to see introduced into the Bill any words of the sort proposed by the hon. Member for Banffshire. On his own property there was a pond which had two streams running into it—one alongside a footpath and the other through a wood. The stream alongside the footpath was the one the trout always tried to get up to spawn, but they never had an opportunity of spawning there. If they went up the other stream they were perfectly safe, because they were not disturbed by any person. He thought, therefore, in the interest of the trout itself, in the neighbourhood of large towns, it would be most unfortunate if the House were to agree to the Amendment.
§ MR. THOMAS SHAW
said he thought his hon. friend's Amendment was covered 1610 by the earlier part of the Bill. In the circumstances, he suggested that the Amendment should not be pressed to a division, which would probably be very adverse to him.
§ * MR. EUGENE WASON (Clackmannan and Kinross)
said he represented probably the best trout fishing in the world. He concurred with what had been said as to the commercial value of trout fishing; but it was rod fishing, and not net fishing, which gave it its value. He hoped his hon. friend would withdraw the Amendment.
§ Amendment, by leave, withdrawn.
Another Amendment made—
In page 2, line 19, by leaving out the words 'these Acts,' and inserting the words 'the said Act' instead thereof."—(The Lord Advocate.)
Another Amendment made—
In page 2, line 21, by inserting, after the word 'repealed,' the words 'Provided that it shall still he legal and permissible for such proprietors and others to fish for trout by net in such rivers, waters, or lochs where such fishing is prosecuted for scientific breeding or re-stocking purposes.' "—(Mr. Thomas Shaw.)