TROUT FISHING IN SCOTLAND. (Hansard, 8 August 1902)

§ THE EARL OF WEMYSS
rose "To call attention to the present state of the law as regards the rights of property of trout fishing in Scotland." He said: My Lords, four words of Norman-French that were spoken at the Table half an hour ago have wholly changed my position with regard to my notice, which, as your Lordships will observe, refers not to the present law, but to the law with regard to proprietary rights which existed before the assent of the Crown was given just now, in those Norman-French words, le Roy le result, to the Freshwater Fish (Scotland) Bill. Still, I think it is desirable that I should say a word or two with reference to this kind of legislation. To describe how, when, or with what machinery a proprietor of fishing shall catch his fish may be a trivial matter in. itself, but it affects the oldest of proprietary rights in Scotland. Here we have a Government coming forward and telling the proprietors of trout fishing in Scotland, "You shall not exercise your rights as you have hitherto done, but in the way we think right and proper." The Freshwater Fish (Scotland) Bill was brought in for a wholly different purpose —namely, to establish a close time in trout fishing; and the Clause laying down how proprietors are to catch their fish was imported into it after it had been introduced. It is only right that your Lordships should know what were the proprietary rights in Scotland half an hour ago. I think my noble friend the Secretary for Scotland was under the impression that there were exceptions to the law, and he mentioned the case of the river Spey. I have always understood that exceptions proved the rule, and that it was no argument that because there was an exception you should alter the rule. But—on the strength, possibly, of 1093 this supposed exception—my noble friend has altered the rule. What was the law on this subject half an hour ago in Sootland? I have here the opinion of the best legal authority in Edinburgh that I could consult, and he says— The right of fishing for trout in a private stream or loch belongs exclusively to the riparian proprietor. In the case of an inland loch such proprietor has the exclusive right of fishing in the whole loch, but if the land surrounding an inland loch be owned by different proprietors, each proprietor may fish in any part of the loch. All freshwater rivers and lochs are private as regards the rights of fishing. I wired to know if the Spey was any exception, and this is the answer I receive:!— The question of the proprietary right of trout fishing in the river Spey was the subject of a case in the Court of Session decided in 1894. In that case the question was raised whether the doctrine established in reference to private rivers and lochs was or was not applicable to the river Spey above the point where the tide ebbs and flows, the suggestion being that it was inapplicable because the Spoy is a public navigable river. It was, however, held that a right in the public of being at or on the non-tidal portion of a river for the purpose of navigation does not entitle them to fish for trout thereon, and. further, that such a right of fishing cannot be acquired by prescription. That is the great peculiarity of the proprietary rights of fishing in Scotland. The public can acquire no right, and the proprietor does not lose his right by failing to exercise it. The right of fishing may be allowed to be dormant in Scotland for any number of years, but it can be revived. The River Megget passes through my property. That river, with all its tributary streams, had been for many years freely fished by the public, but I thought it well to preserve one of the streams for a little amusement at home. I did so, with the result that one member of the public insisted on fishing. He was taken into Court, and the Court declared that the public had absolutely no right whatever. Thus, the argument of the noble Marquess the Secretary of State for Foreign Affairs the other night, that the Bill took away rights from the people, and that it would be advisable, therefore, to leave proprietors untouched, is absolutely worthless. I have always thought that one of the main duties of the Government was the protection of proprietary rights, 1094 whether it be the right of the costermonger in his barrow or of the Peer in his property. But we live in times when different views are held, and we see a Conservative Government—which, by the way, appears to be inclined to conserve little or nothing—agreeing to a Clause which seriously impairs the rights of proprietors in fishing for trout in their private streams. On the Second Reading of the Bill, my noble friend the Earl of Galloway moved an Amendment with the object of preserving to a great extent the existing rights of proprietors. We went to a division on that Amendment, which was negatived by a majority of four, but, if you deduct from the Government majority all who hold office in the Administration in some form or other, you find that, instead of being in a majority, the Government are in a minority of twelve. That, I think, shows the feeling of your Lordships with reference to the measure which has just received the Royal Assent, and I now give notice that I intend during the October sittings in Parliament to introduce a Bill to do away with that portion of the Freshwater Fish (Scotland) Act which interferes with proprietary rights.

§ LORD BALFOUR OF BURLEIGH
My Lords, with regard to the concluding observation of the noble Earl, I am afraid that if he attempts to amend the Act which has just passed by another Bill in the same session, he will find that that is contrary to the practice of Parliament.

§ THE EARL OF WEMYSS
Then in that case, if I am alive, I will bring forward my Bill next year.

§ LORD BALFOUR OF BURLEIGH
The main contention of the noble Earl is that one of the Clauses of the Act just passed is a great infringement of the rights of property. I hope he will not think that I am chopping logic with him when I say that, as a matter of fact, there is no real proprietary right in the trout itself. The proprietary right exists in the right to capture the trout. What gives the right is that the proprietor of the bank of the stream or loch is the only person who can get into a position from which he can catch the trout. I venture to say that the noble Earl will 1095 look through the Act which has received the. Royal Assent tonight without finding a single sentence which, changes the right of capture from one person to another. What is interfered with is the method by which the fish may be captured.

§ THE EARL OF WEMYSS
My noble friend entirely misunderstood my argument. I did not say that any right of capture was transferred from one person to another. I said that certain rights of proprietors were limited; that there was an interference with proprietary rights.

§ LORD BALFOUR OF BURLEIGH
I accept the noble Earl's correction. It is true that we have limited the methods by which the owner of the proprietary right can exercise it, and the whole point between us is whether that was or was not a reasonable limitation. I under stand from the noble Earl that he thinks this is the first invasion of a right of this kind that Parliament has ever entered upon. If that is his case, the noble Earl is entirely mistaken. In this, there is no violent departure from precedent. Salmon—

§ THE EARL OF WEMYSS
Salmon is dealt with on totally different principles. I confined myself absolutely to trout fishing

§ LORD BALFOUR OF BURLEIGH
I listened with patience to the speech of the noble Earl, and I hope he will do me the fairness and justice of listening with equal courtesy to what I have to say in reply. I know the difference between salmon and trout. One is a more migratory fish than the other; but trout is also in part migratory, and the same right of fishing exists for both. There have long been restrictions as to the methods of capturing salmon. There are other precedents. The noble Earl is the owner of an estate on which game abounds. It is true that we do not by statute limit the methods by which he may kill his grouse or his partridges, but we do limit the time of year when they may be killed, which is to that extent an interference with proprietary right. But I have a more direct precedent than that. Twenty-three 1096 or twenty-four years ago the State, in the public interest, interfered as to the, method in which a rabbit might be killed, and said that no steel traps should be placed in open runs. If we say that the destruction of trout by dynamite is contrary to the canons of fair fishing, it is entirely within the rights of Parliament, and in the public interest, to lay down rules and regulations, and to deal with a matter of that kind. I do not in the least regret the part I have taken in passing this Bill, I believe it will be a very useful Bill. and that in a short time there will be no controversy about it, because it will be proved to be in the interests of legitimate sport, and of the greater number, and not an invasion of due proprietary lights.

§ THE EARL OF WEMYSS
I shall certainly persevere with my Bill next session. For the present, I congratulate my noble friend on being a legislator well up to date.