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script to enable a witness to speak correctly as to facts, is altogether different from the object and purpose Mr. Buchanan had in view, and hence the authorities referred to on the other side do not apply. Measurements, soundings, &c., are not occurrences or facts as to which a witness is to speak from recollection. Whether the witness saw strata or rocks of a particular character in the course of his survey, whether he found sea-weed or marine plants, &c., in different parts of the frith, these may be matters of fact as to which he is either to speak from recollection or from notes made at the time. But measurements, soundings, analyses of water, &c., are not matters of recollection at all. They are the witness's experiments, and if the witness has before him that which he depones to be the record of such experiments, it is not for the purpose of refreshing his recollection that he refers to the paper, but of enabling him to report to the Court the experiment made by the witness, and which the court and jury could not see made.
Again, if from a variety of soundings an average is to be struck and stated, such calculation is not the recollection of an occurrence, and in using materials for giving that calculation, the witness is not refreshing his memory, but he is reporting to the court and the jury that which he himself had previously done, instead of making the calculation on the spot. In fact the calculation was not made at all at the time of making his survey and taking his field notes. The rule that a copy of a document cannot be taken when the principal document exists, has no application to this case. There is no question as to the admissibility of documents ; there is no document sent to the jury ; there is a witness before the jury. He has before him a report or document entirely of his own creation, made for the sake of accuracy, and as the result of scientific inquiry. He has with him the original rough notes from which that report is prepared ; and why should he not refer to that which is in substance the same, and which for the sake of convenience and ready reference has been printed ? It is ridiculous to liken this to the tender of a printed copy of a charter instead of the charter itself. That would be a muniment wholly independent of the witness. The notes and report, on the other hand, were made by the witness for the sake of giving evidence. It is of the very nature of this kind of evidence that it must be so got up. The notes are not the evidence, like the charter ; they are ancillary to the testimony of the witness given by parole, which parole testimony is the matter, and the only matter put in evidence. The witness speaks partly by recollection and knowledge, abstracted from his notes and report, and partly from the aid of that report. He knows the truth of his statement, and he knows the accuracy of his report. He may have erred in his calculations when he made them on the field,—he may have erred when he checked them in his closet. But this is nothing more than an observation on his accuracy, which it is quite open to make to the jury, or in the motion for a new trial, but is wholly unavailing as matter of legal exception.
(2d exception.)—The Spey case1. has no bearing whatever upon the present
1 Post, p. 1017.
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discussion ; the question there was not as to the interpretation of the statutes, but as to the meaning of a term used to denote the boundary of certain fishings in a river by private grant. Assuming that the term “ ostium fluminis ” was rightly defined in that case, it merely denotes the termination of the river proper ; there is an expanse of water between the proper river and the sea ; i.e. between the ostium fluminis and the sea proper, which is also part of the forbidden territory. It may be true, as has been stated, that in the Don case1 this expanse of water has been denominated the continuation of the river ; but it does not on that account follow, that it is not distinguishable from the river proper. So far as that case went the question was just as open as before, what is and what is not the continuation of the river. The words used in the statute are, not “ in rivers,” but “ in aquis.” This is something different from the river proper, and the defenders are right in saying that it was fixed in the Don case1 to be something different from the sea proper. It is in waters where the sea ascends and draws itself back. Surely this does not mean the point of low water ebb. It means in waters where the sea is filling and ebbing. There must be river, and there must be sea. But if there be both in the valley or channel, and if the sea is ebbing and flowing within that valley, this is all that is required to characterize the prohibited ground. The statute is intended to describe the space both upwards and downwards, and if it be water where the sea ascends and descends—ebbs and fills—this is all that the act requires. The sea proper is excluded, because although it ebbs and flows upon the open coast, “ ascendit et se retrahit,” it does not ebb and flow “ in aquis.”
But, say the appellants, it is not only where the sea fills and ebbs, it is also “ ubi salmunculi,2 ” &c. Now, how can this apply to the point of the lowest ebbing of the tide ? It is where not only salmon fry, but the fry of all other fish, whether of the sea or of the fresh water, descend and ascend. The fry of salmon, in point of fact, never ascend. When the salmon come up to spawn, or when the fry come down, they regulate their motions in no degree by the point of the lowest ebb. On the other hand, do the fry of sea fish, which are equally protected by the statute, come up where they could not exist.
Again, in the statute 1488, c. 13.,2 the expression “ salt ” is used in contrast to the “ fresche watteris.” The salt water cannot mean the river, it clearly means something different from both the river and the sea proper. In which of the statutes is it set forth, that the confluence of the river and the salt water at the low ebb is the boundary of the prohibited territory towards the sea ? Had an inflexible rule been fixed, such as that contended for on the other side, the matter ought not to have been settled by a jury trial at all. Besides, the point fixed on by the appellants is one to be disclosed by the ingenuity of modern science, not known or capable of being acted on in a comparatively rude age, when the statutes on this subject were passed ; and it would lead to results of a most startling description, as applicable to various
1 Post, p. 1017. 2 Ante, p. 979.
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rivers,—results for which no reason either in law or sound policy can be assigned.
The general position contended for by the appellants, was expressly and solemnly overruled in the Tay case.1 It was so completely overruled, that the Court, finding that there was no exclusive test, were obliged as a jury to enter into consideration of the whole circumstances of the case, and to fix the boundaries as to that frith, within which the stake-nets were illegal. That case has been regarded ever since in Scotland as a leading case on this subject. The same rule was followed in the case of the Clyde in 18131—of the South Esk1—of the Beauly1— and the Dornoch1— in 1817 and 1818,—and then followed the Don1 case, in which it was held that stake-nets were not illegal in the sea proper, as contrasted with rivers, friths, or estuaries, or continuations of rivers. The whole train of decisions, therefore, has conclusively fixed that stake-nets, although legal in the sea, are unlawful in rivers or estuaries ; and whether any particular place is to be held as forming part of a river or frith, estuary, or continuation of a river, on the one hand,—or part of the sea proper on the other,—is a question depending on a variety of circumstances connected with the locality, which question is fitted for the determination of a jury. It has been ruled over and over again, that there is no fixed and absolute criterion which in law determines whether the place be a prohibited place or not, and it has been specially determined that the meeting of the salt and fresh waters at low ebb is not a criterion which is adapted for determining the legality or illegality of the position of stake-nets.
The presiding judge properly and legally directed the jury to take into view the whole circumstances proved in evidence. His Lordship treated it throughout as a question of circumstances. He did not state that the absence or presence of fresh water, although a circumstance of material importance, was to form the rule, or to exclude from consideration other material circumstances. The direction throughout was abundantly clear and explicit, and in no respect whatever calculated to mislead. It was the duty of the judge to give the jury some direction to guide them in their finding, whether the places in question were within the estuary of the Conon or not. The consideration of the quality of the water, whether salt or fresh, its existence in certain quantities, more or less,—was but an ingredient in the investigation, and had only been so put to the jury. No difficulty had been raised by the jury. It did not appear that the judge was asked by the court to give any explanation of the sense in which he had used the expression, in order to solve any doubt which the consulted judges had as to the sense in which the words were used, or as to the jury rightly apprehending the import and meaning of the words, coupled with the whole charge, but rather with the view of satisfying their own minds by the authoritative declaration of the judge as to the actual res gestae on the trial.
(2d branch.)—Had the learned judge directed the jury in the terms suggested by the appellant, it is clear from what is above stated, that his
1 Post, p. 1017.
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direction would have been directly at variance with the established law of Scotland.
LORD CHANCELLOR.—My Lords, this case seems to be one of very considerable importance, both as to the question upon the evidence, and upon the merits.
As to the point of evidence, this case lays down a rule which will have the effect of securing a uniform practice, in the course of proceeding in the courts of Scotland, similar to that which prevails in the courts in this country. The results of this case however do not depend upon this rule.
With respect to the principle which has been discussed in reference to the main question, it is one of very considerable importance, and the property in these salmon-fisheries is of very considerable magnitude. I cannot but think that a great deal of difficulty has arisen from the introduction of terms very difficult of definition, nowhere to be found in the statute. Arguments are used, and discussions take place, upon the meaning of the word “estuary,” and even upon what is the meaning of the word “ river ; ” and neither of these words is to be found in the statutes. The matter of law involved is neither more nor less than the construction to be put upon the statutes ; and to that extent the party had a right to have the opinion of the learned judge. Whether the particular water in question in the particular suit does or not come within the definition, (if any definition can be found,) is matter very properly within the province of the jury.
The first question will be, whether your Lordships can, by any reasonable rule of construction, drawn from the statutes themselves, at once ascertain whether the learned judge has accurately explained to the jury the definition to be fairly inferred from the provisions of these statutes. If your Lordships find that has not been the case, however desirable it may be to lay down the rule, it is not the province of your Lordships to do so, and it may not be safe to attempt it. The point is, whether the rule laid down is the proper rule, within the meaning of the act.
If there had been no decisions of your Lordships House, and it had been a new question, and merely turned upon the observations of the learned judge, compared with what appears to have been the objects of the statutes, your Lordships might not feel it necessary to postpone the further consideration of this matter. But, my Lords, that is far from being the fact : much litigation has taken place ; and your Lordships House has proceeded to adjudication upon cases similar to the present ; and, in any course your Lordships may think fit to take, it is undoubtedly most important to ascertain the course adopted by this House when the former cases were brought before it.
In order to proceed accurately in the examination of what has been done upon this subject, I should propose to adjourn the further consideration of this case to a future day.
Further consideration adjourned.
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LORD CHANCELLOR.—My Lords, this appeal is from a judgment of the Court of Session disallowing a bill of exceptions. The whole case, therefore, must be found within the bill of exceptions ; and the question is, whether the direction of the learned judge to the jury was right in law.
The issue was : “ Whether the defender, or his predecessors in office, has or have wrongfully fished for salmon in the Frith of Cromarty, opposite to the lands and estate of Cromarty and others, during the years 1824, 1825, 1826, 1827, and 1828, or during any part thereof, by means of stake-nets, bag-nets, yairs, or other engines, placed in situations prohibited by statute.”
These latter words comprehend the whole question ; viz., what are the situations prohibited by statute ? If it was the duty of, the House to lay down a rule upon this subject, and to prescribe the principles upon which this question ought to be tried, it would be necessary to consider carefully, not only the words of the statute, but the various decisions which have taken place. That, however, is not, at this stage of the cause, the duty of this House, nor would it be proper to do so. All that this House has to consider is, whether the rule, as laid down to the jury by the learned judge, was correct.
That learned judge, after mentioning that estuaries were spaces intermediate between the strictly proper river and the strictly proper sea, and that they were partly fresh and partly salt, stated that the structures in question were unlawful in those estuaries, and then proceeded thus : “ The thing to be looked to is the fact of the absence or of the prevalence of the fresh water, though strongly impregnated by salt. Now, where this fresh water prevails, though in the estuary, these structures are illegal.”
The learned judge, when the case came before the court upon the bill of exceptions, stated, that by the word “ prevails,” he meant “ predominates ; ” but the question is, not what he intended, but what the terms used were calculated to impress upon the jury. The word “ prevalence ” is put in opposition to “ absence ; ” if it meant “predominates,” why were the words added, “ though strongly impregnated by salt ? ” In speaking of the predominance of one thing over another, the presence of the minor is assumed ; but absence and predominance are not properly put in contradistinction. Predominance, therefore, if necessary to the proposition, should have been distinctly expressed in terms.
That the jury understood the term to mean presence I have no doubt, for such is the natural construction of the sentence ; and the respondents, in their printed case,1 (signed by three most learned persons,) insist that such is the true constrution of the sentence. After quoting the sentence, inter alia, they say, “ In doing justice to the meaning of these sentences, it is plain, from the context, that the word prevalence must mean presence, which is one of the most. common and most appropriate significations of the word, as opposed to the expression absence ; and the meaning of the whole is just this, that in estuaries, where these structures are unlawful, there is always some portion of fresh water.”
1 See page 26 of printed Appeal Case for respondents.
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