of the Fishery Board for Scotland. 



69 



grant unless contained therein expressly or constructively — in other 

 words, it is a separatum tenementum. 



The first of these steps is a fictio juris; the second and third are 

 customary developments in the course of the maturing of the law. 

 When they were fully accepted I cannot say. And why the last of 

 them was accepted, authorities differ. But from the series of statutes 

 of the Scots Parliament referred to, e.g., in Earl of Kintore v. Forbes, 

 1826, 4 S. 641, it is clear that salmon fishing was at a very early date, 

 even so - early as William the Lion, regarded in Scotland as of excep- 

 tional value ; and though these statutes are concerned with the 

 regulation and protection of, and not the property in, salmon fishings, 

 I think that it must be accepted that the law as affecting the property 

 in salmon fishings was during the same period maturing. When the 

 right of salmon fishing definitely received the attribute of a separate 

 tenement I cannot tell. I can only say that by 1606 the law had so 

 completely matured that Craig, who published his "Jus Feudale" in 

 that year, wrote (I. 16, 24): " Salmonum piscatio apud nos inter 

 regalia numeratur, neque cuiquam hodie concessa videtur, nisi specialis 

 ejus in concessione mentio fiat." The use of the word "hodie" is 

 noticeable. But from titles which have come under my notice, I 

 cannot but think that the law had reached that point a considerable 

 time before Craig wrote. 



Now in Orkney we have the same thing in miniature, with this 

 difference, that we know that Orkney had a system of law which 

 preceded the advent of the feudal system, and know what that system 

 of law was, which is more than can be said of Scotland. In Orkney we 

 have every stage of the growth of the law, bub more recent in date, and 

 even so not yet complete and matured. We have the Orcadian land 

 law, which preceded the feudal, not indeed in viridi observaniia, but 

 still maintaining itself against the encroachment of the feudal. We 

 have, in fact, the history of Scotland repeated, but not completed. The 

 feudal system in matter of title is only in course of supplanting the 

 Orcadian land law. It applies to many estates and parts of estates, but 

 it does not apply universally over the islands. 



Accordingly, the questions which I have to solve are these : — 



What is the law of Orkney in the matter of salmon fishing, 

 irrespective of feudal considerations ? 



How has that law been affected by the connection of the islands with 

 Scotland ? 



Has the gradual feudalisation of titles drawn with it as an incident 

 the Scots law of salmon fishing? 



It is, however, I think, necessary, before attempting to dispose of 

 these particular questions, to consider first the history of Orkney as it 

 bears upon them. 



The history of Orkney, as it affects the relation of the Crown to the 

 islands of Orkney, and the position of the Crown as the fountain of 

 feudal right, is rendered obscure by the many changes and transactions 

 which have taken place between 1468 and the present day. Orkney 

 was, prior to 1468, part of the kingdom of Norway. But the law of 

 Norway was not feudal. The lands of the islands were not held on 

 feudal, but on udal tenure. Title did not emanate from the Crown, 

 and there was no room for the fiction that the Crown was the original 

 proprietor of all land subject to its dominion. The scat was of the 

 nature of a land tax, and not of a reddendo. Besides the Crown, which 

 possibly had some lands in property, as well as rights to scat and other 

 'dues, there were three sets of proprietors, the earl, the bishop, and the 

 udallers. Both earl and bishop had lands as well as rights to dues out 



