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Appendices to Twenty -sixth Annual Report 



land. In the present case the Crown seeks to extend the doctrine merely 

 to the rivers of Orkney, for though a particular river is selected, the 

 case is admittedly a test case. But T think that I am justified in saying 

 that the case is practically a supplement of GammeWs, because there it 

 was demonstrated that there can be no distinction maintained in prin- 

 ciple between the rivers and sea shores of Scotland in the matter of 

 salmon fishings. If, therefore, the Crown can extend the doctrine to 

 the rivers of Orkney, it must, pari ratione, extend to the seashore also. 



It aids, I think, in forming a judgment in this case to consider the 

 reasoning, historical and otherwise, on which the judgment in GammeWs 

 case proceeds. 



The established doctrine as to the Crown's rights in salmon fishings 

 is part of the feudal law of Scotland. Neither the feudal law in general 

 nor the law of salmon fishings in particular came to us as a systematic 

 code. The Court in GammeWs case, 13 D. at page 863, refer to a date 

 " when the law was more completely matured," which necessarily implies 

 that the law had been developed or matured gradually. And the diffi- 

 culty of tracing the steps and dates of this development or maturing 

 forms one of the difficulties of applying the common law of Scotland to 

 Orkney. One thing is certain, that the general feudal system and law 

 were applied to Scotland before the special and incidental branch of it 

 which dealt with salmon fishings was developed. It is also certain that 

 the application of the feudal law, even to Scotland, was a gradual pro- 

 cess — that it held sway in the Lowlands long before it was fully recog- 

 nised in the Highlands— that the exchange of the broadsword for the 

 sheepskin as the title to land was not completely effected even on the 

 mainland of Scotland, except by a gradual process, and within historic, 

 and, personally I believe, within comparatively recent times. And if 

 the development and application of the Scottish feudal system was gradual, 

 the " maturing " of the law of salmon fishings was so also. 



Further, while the feudal system was introduced into most European 

 countries about the same time as into Scotland, nowhere except in Scot- 

 land has there been this peculiar incident of rights in salmon fishings 

 engrafted on it. It is not essential to the feudal law, but a peculiarity 

 of the Scottish feudal law. 



The steps in the development of the law seem to have been these. 

 Traces of the introduction of the feudal system are to be found 

 apparently before the Norman conquest of England. At any rate by 

 the time of Bruce and the English wars, or the end of the thirteenth 

 century, it was the law of that part of Scotland which had come under 

 the domain of anything like systematic law ; and the great feature of 

 the system, " that it invested the sovereign with the character of 

 original and supreme proprietor of all land subject to his dominion" 

 (Menzies, 1st edition, p. 490), was necessarily adopted with it. On that 

 fiction the whole feudal land law of Scotland rests, and has been 

 developed, even to the days of modern statutory conveyancing. 



Next in course of development of the feudal land law came the 

 principle that " no right in lands which is by our feudal customs 

 appropriated to the sovereign, and therefore goes by the name of regale, 

 is presumed to be conveyed by the charter unless it is expressed" 

 (Eiskine, II. 6, 13). These "are truly parts and pertinents of lands, 

 and as such would naturally go to the vassal by his charter, if they had 

 not been by our feudal customs appropriated to the sovereign, and so 

 understood to be excepted from the grant " (Erskine, II. 6, 13). 



And, lastly, the right of salmon fishing is one of those heritable 

 rights which, though naturally a pertinent, our feudal customs have 

 recognised as appropriated to the Crown, and not to pass by Crown 



