APPENDIX A 421 



exclusive right to salmon fisheries did not include the right of salmon 

 angling, the argument for this view being that salmon angling was 

 not inter regalia, but was a pertinent of the land, like the right of 

 trout fishing, so that any owner of a river bank could fish with rod 

 and line from his own land, and any number of the public could fish 

 in the same way in any public river. Many men believed they could 

 legally angle for salmon within the limits of tide reach at the mouths 

 of rivers. The question was one of great importance and was con- 

 sidered by a full bench of the Justiciary Court. 1 The decision 

 arrived at was that the Crown's exclusive right to salmon fishing 

 extended to every lawful means of catching salmon. 



A quite recent case in which the application of the Crown's right 

 was further tested had reference to fishings in Orkney, and in this 

 case 2 the Lord Ordinary (Johnston) decided that salmon fishings 

 were not inter regalia in Orkney ; that the established doctrine as 

 to the Crown's rights is a part of the feudal law of Scotland, while 

 in Orkney the Crown's rights had arisen through the ancient udal 

 tenure of Norway and passed into the hands of the Crown or to 

 udallers in Orkney without recourse to " feudal fiction." In 1468, 

 King James III. of Scotland married Margaret, daughter of King 

 Charles I. of Norway and received with her a dowry of 60,000 florins, 

 and in security of 50,000 thereof, not paid down, received in pledge, 

 the Orkney Islands. " This hypothecation " adds Lord Johnston, 

 never redeemed, is the source of the Crown rights in Orkney." 

 The Law Officers of the Crown accepted the decision of the Lord 

 Ordinary so that the udallers of Orkney and Shetland are, I suppose 

 for all time, established in their independent position as regards their 

 salmon or rather sea-trout fishings within the bounds of their udal 

 holdings. 



What, legally, it may be asked, is a salmon ? For answer we 

 may, without reference to common law, quote the definition as given 

 in the most recent statute dealing with the matter. 3 " Salmon shall 

 mean and include salmon, grilse, sea-trout, bull-trout, smolts, parr, and 

 other migratory fish of the salmon kind." In practice this definition 

 has been found not absolutely perfect. Large fish may be poached, 

 cut up, and distributed. If a man is caught with a part of a salmon 

 there is an element of difficulty in declaring he is in possession of a 

 salmon. Great numbers of fish caught in the open season are now 



1 1867. Anderson v. Anderson, 5 Irvine 499, 6 M. 117. 



2 The Lord Advocate v. Col. J. W. Balfour, 8th April, 1907. 



3 Salmon Fisheries (Scot.) Act 1862 [25 and 26 Viet. c. 97] Sec. II. 



