p. 2425
made by him while employed in his survey, he could only do so from authentic sources. It was not competent for him to refer, in regard to this matter, to an elaborate report prepared by him at the distance of months. He neither consulted, nor proposed to consult, his field-book, or even his original report. All that he looked at was a printed paper, of which the appellants neither knew nor were allowed to know any thing, but which they were told was a printed copy of the report. To sanction a reference to such a document by a witness when under examination is a latitude hitherto unknown in practice. There are many intermediate stages between the principal copy and the print, in all of which there is much likelihood of error ; a manuscript copy must, in the first place, be made from the principal, and a printed copy from the manuscript. It is impossible to tell how many errors there may have been in the manuscript, and how many additional errors in the print. There was not a vestige of evidence to show that either the manuscript or the print had been compared with the original or with each other. What apology was there for Mr. Buchanan reading from a document, which, as regards authenticity, was utterly worthless, more especially as it must be presumed that the best evidence, viz, the field-books and original notes, were within his reach? The very circumstance that the report contains a detail of many observations and many results in numbers, is one of the strongest reasons that can be urged for the strictest enforcement of all the rules as to authentication. It cannot be supposed that Mr. Buchanan could carry in his memory all those numerical results, and it was therefore impossible for him to check the accuracy of the copy. Blunders might pass unnoticed, and he might give in evidence with the utmost bona fides, on the strength of the printed report, results and observations totally at variance with the truth. It would be dangerous in the extreme to put testimony in jeopardy by such laxity of procedure. Even supposing the report had been duly authenticated, it cannot be regarded otherwise than a plan, a book, or a deed, and ought to have been produced eight days before the trial.1 In this way it might be made evidence, but it
Lord Gillies.—I cannot think that the case was so clear, for we took the opinions of the other judges after ordering cases. I cannot think it is right to say that the case was clear.
Dean of Faculty.—They may be reserved till the issue of the motion for a new trial ; but the practice has always been to give expenses to the gaining party where the exceptions in a bill are disallowed.
Lord Mackenzie.—I am not for laying it down as a rule abstractly, that in no circumstances should we allow expenses after advising a bill of exceptions ; but certain circumstances may arise in consequence of which we may take the reason of the thing into view, and I don't think here that we ought to give expenses, from the difficulty attending the case.
Lord Corehouse.—I am far from laying down any inflexible rule but it did appear to me that the law was clear, and that after an unanimous opinion of the whole judges sustaining the charge expenses should follow.
Lord President.—I rather concur with Lord Corehouse, that the expenses should be giver, as I was inclined to think that the matter was decided in the Tay case.
Lord Mackenzie.—I must say I am against giving expenses.
Lord Gillies.—So am I ; and as that is the case the point will require to be sent to the consulted judges.
1 Act of Sederunt, 29th Nov. 1825, s. 29.
p. 2426
would be both unwarrantable and inexpedient to allow a witness to give his testimony from what ought (if admissible at all) to have been treated as documentary evidence. It gives him an advantage which no witness whatever is entitled to claim. The ordinary rules of evidence afford the strongest analogy on this subject. There is no rule in practice better settled, than that secondary evidence will not be admitted, where the best may be obtained. And it is a familiar illustration of this rule, that the copy of a document can never be given in evidence, when the principal document is within reach, or at all events, never without a due authentication of the copy. Thus, if a party tendered in evidence a printed copy of a charter, without any verification of it, while the principal could have been obtained without difficulty, is it not a matter of trite law, that it would be instantly rejected ? A common case is that of a shorthand-writer's notes. To prove what occurred on a former occasion, one is not bound to produce his notes ; but the usual course is, to call the shorthand-writer, and ask him if he had made a transcript from the original. If the opposite counsel object to the transcript, the shorthand-writer must read from the original. The same may be said in regard to entries made in a ledger from a waste-book. Whatever a person sees, and commits to writing, either in his own or the handwriting of another, at the time when the transaction is fresh in his mind, may be used. But a witness cannot refer to a paper made subsequently to the time when the matter was under his consideration. The question is not, as put by the consulted judges, whether the copy is accurate or not accurate, but between a copy and the original. A witness who is compelled to apply to documents in order to aid his memory is as apt to be misled by errors in an unauthenticated copy, which may give a false colour to his whole testimony, as where the documents themselves are tendered as matters of direct evidence to the jury.
(2d exception.)—The direction is objectionable in respect it lays down that stake nets are forbidden in estuaries, and at the same time defines or attempts to define the forbidden locality as consisting in the prevalence of fresh water, although neither the term nor definition used are to be found in any of the enactments on the subject. The question is not within what locality is there the presence, the prevalence, or the absence of fresh water ; but the question is, what. is meant by the term aquæ, as distinguished from the term mare, i.e. what is the aqua within which the sea ascendit et se retrahit. The meaning of the term has been established, by a totally different criterion from that given by the learned judge, by our standard institutional writers.1 But not only so ; in the Don case1, the Lord Chancellor, in reviewing the salmon fishing statutes, comes to the following conclusion :—“ Taking the latter acts in connexion with the earlier acts, and the whole subject together, construing one with the other, I think I am justified in recommending to your Lordships to come to the conclusion that the whole body of the acts, taken together, refer not to the sea coast, but to rivers and to continuations of rivers. And therefore I should recommend to your Lordships to confirm the judgment of the Court, as far as relates to the construction of those acts of parliament.”
1 Post, p. 1017.
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That the term aquæ denominates the river can therefore no longer be disputed. But it also includes the continuation of the river ; and what is the continuation of the river, as distinguished from the river, but that part of the river which continues to flow after the sea has receded from it. This definition corresponds precisely with the term ostium fluminis, which, in the Spey case (as stated by Lord Kames),1 this House judged to comprehend the space betwixt the lowest ebb and the highest flood mark. Even if the learned judge, in using the term estuary, meant to indicate the ostium fluminis, his definition was clearly at variance with the legal one. A river ceases to be a river or the continuation or a river when it ceases to descend to the level of the sea. [Lord Chancellor.—At low or high water ?] At low water.
But again, there is a further criterion by which to determine the forbidden territory. The statute says also “ ubi salmunculi,” &c.2 The avowed object of the prohibition was to protect the fry. This demonstrates how anxiously the attention of the legislature had been directed to this subject. They had observed, that the cruives and yairs set in rivers were very injurious to the salmon fry in their descent to the sea. This was the great evil complained of. But farther, the other facts connected with the natural history of salmon could not have escaped their observation. At first the fry keep the shallow water about the sides of the river ; but as their strength increases they are seen on the middle of the river descending with the stream. The first flood or fresh which occurs at this period hurries them to that part of the river affected by the tide which is protected by the statutes, where for a time they remain in the tide-way, ascending and descending with the flux and reflux of the tide, till, having gained additional strength, they at once sink down into the bed or channel of the sea or firth, and go off to the ocean. They do not swim about the shallow parts of the firth, but proceed at once to the ocean from the place where the river joins the sea at low ebb. Their natural instinct seems to lead them to select the deep water at that point, because they are more secure from interruption or disturbance, occasioned by the ripple arising from the constant flux and reflux of the tide. Experience and observation would shew to the early Scottish legislators that yairs or other stationary engines could not obstruct the descent of the fry below the line of low ebb tide.
Looking to the declared object as well as to the express provisions of the statute,—to the habits of the salmon as well as to the leading features connected with the flux and reflux of the tide,—that no line can be pointed out, the boundaries of which quadrate so nearly with the enactment, as that contended for by the appellants. Below the line of low ebb tide the sea never recedes. It never withdraws itself. It constantly occupies and holds possession of that space. Above that point the contending influence of the river becomes apparent. There is a periodical balance between the force of
1 Post, P. 1017 2 Ante, p. 978.
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the ascending tide and that of the descending fresh water stream, which maintains the river in a state of comparative quietude, certainly favourable to the motion of the fry, “ ascendendo et descendendo ubique.” Within that locality it may be said that the fishings are in aquis ubi ascendit mare et se retrahit ; and it may be said, with equal truth and accuracy, that they are situated ubi salmunculi vel smolti ascendunt et descendunt ; and where such fry and smolts, when they approach the sides, would be interrupted in their course and destroyed.
Much reliance seemed to be placed by the respondent on the statute of James IV., 1448, c. 13.1 The particular sorts of apparatus mentioned in that statute of themselves sufficiently indicate the local situations referred to. It is on all hands admitted as the very essence of a cruive-fishing, that there be a mound or dike stretched across the river from side to side, and it follows of course that such fisheries must be peculiar to rivers properly so called. The same thing is equally true of what are called fisch dammys. A dam is a mole or bank to confine water. A fish dam is therefore a mound erected across the stream for the purpose of intercepting and catching the fish, by means of some apparatus of the nature of a cruive inserted into it. But such an erection, it is obvious, could be made only in rivers by cutting the stream across from bank to bank. When, therefore, by this statute it was ordained that all cruives and fish-dams should be destroyed, “ that ar within salt watyrs, quhar the sey ebbis and flowis,” the epithet “ salt ” must have been introduced merely for the purpose of contradistinguishing those fisheries from the “ cruivs in fresch waterys ; ” that is, in the higher parts of rivers where the tide does not reach, to which a different class of regulations were to be applicable. In this view the lower portion of a river, ubi ascendit mare et se retrahit, may, without any violence or impropriety, be denominated the salt part of a river ; for with every return of the tide, its own proper fresh water is not merely re-stagnated, but is also strongly impregnated with the salt water of the ocean, which then flows into it. That “ the salt waters ” of this statute do not mean the salt waters of the sea itself, is abundantly obvious from the structure of the remaining clause, “ quhar the sey ebbis and flowis.” It is impossible, indeed, to read the whole clause, without being satisfied that these words are used in contradistinction to each other. They cannot be read as implying the same thing, without involving an absurdity. To say that cruives and fish dams are prohibited in the sea where the sea ebbs and flows, is ludicrous ; for it is the characteristic of all sea, that it is always in a state of ebb or flow. It is clear, therefore, that the term “ salt waters ” was employed to denote something different from the sea ; and it is equally clear that this prohibition cannot extend below the line of low ebb-tide ; because the engines here denounced cannot, from the very nature of their construction, be erected below it.
The Tay case2 proceeds on specialties. One important specialty is, that it went entirely upon the terms of the statute 1581, c. 15, which, in
1 Ante, p. 979. 2 Post, p. 1017.
p. 2429
appointing conservators for the protection of the fishings, fixed the limits within which this protection was to extend. Another important specialty was the fact of the bar of the river being below the Drumly Sands ; whereas, in the present case, there is no bar or alluvial deposit below the town of Dingwall. The non-existence of yairs in the Tay was also strongly relied on. The extent therefore to which fishing by yairs has been carried in the Frith of Cromarty, while it demonstrates the general understanding in favour of their legality in these localities, serves to distinguish it from the case of the Tay in one of its most important features. The last but not the least important of these specialties is rested on the title deeds of the several proprietors. If the Court had not been satisfied as to the position of “ the natural bar of the river,” and if there had not been before them any evidence of the existence of a special office of conservator for the protection of the salmon of the river, and if in other respects the case had been presented as a perfectly pure and abstract case of legal construction on the statutes themselves, who can take it upon him to say what would have been the decision of the Court in the Tay case ? None of the other decisions referred to in the slightest degree interfere with the interpretation of the prohibited locality above contended for. But, apart from this, the respondents have examined the whole of the cases with the utmost minuteness, and they affirm, without fear of contradiction, that throughout these multifarious processes, beginning with the Tay and proceeding onwards to the South-Esk, the Don, the Beauly, the Dornoch, and the Nith, 1 there is not a finding in any interlocutor, or even the opinion of a single judge, which sanctions the notion now promulgated as law for the first time, that the absence or prevalence of fresh water is the thing to be looked at in determining what waters fall under the statutory prohibitions. In not one of them was it laid down that this was the test to be adopted.
But again, the arguments of the respondents, as well as the proceedings on the bench in considering the bill of exceptions, show distinctly that it will admit of a doubt whether the expressions used by the learned judge import presence or prevalence of fresh water. If this be so, the direction given was not a fitting direction for a jury. From its obscurity it was calculated to mislead them. What was stated had been so misapprehended, that reference was actually made to the learned judge for an explanation of his meaning. But the jury had got no such explanation ; and who can tell what construction they had put upon the expressions ?
(2d branch.)—If the interpretation of the statutes above contended for be the true one, it follows of course that the learned judge should have directed the jury that the prohibitions of the statute could not extend lower than the confluence of the river with the sea at low ebb tide.
Respondents.—(lst exception.) The objection to Mr. Buchanan's examination clearly rests upon an attempt to confound the different objects and purposes for which a witness may refer to a manuscript. Reference to manu-
1 Post, p. 1017.
[1927lab]
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