of the Fishery Board for Scotland. 



71 



acquire them, from James, Bishop of Orkney. This Act was followed 

 by 1612, cap. 16, Th. IV. 482, which appointed a commission to 

 transact with the bishop. This appointment apparently resulted in a 

 disentanglement, by way of excambion or otherwise, of the earldom and 

 the bishopric. For in Peterkin's Rentals, App. p. 31, there is found a 

 charter of mortification, of date October 4th, 1614, giving, mortifying, 

 and confirming to the bishop certain definite property. I believe that 

 if the defender's titles require to be examined, the definitions in this 

 writ are of importance ; but at present it is only necessary to note that 

 one set of lands, in the parishes of Holme, Orphir, Stromness, South 

 Sandwrek, North Sandwrek, Schapinsay, Walls and Hoy, are conveyed 

 without reference to fishings, while another set of lands, in the parish 

 of St. Olav, are conveyed cum piscariis salmonum aliorumque piscium. 

 Then follows a tenendas and a blench reddendo. 



Now this transaction does not appear to me to indicate a vesting in 

 the Crown of the whole lands of Orkney, even nomine superioritatis, 

 but only what was formerly in Earl William Sinclair, afterwards in the 

 Crown, afterwards in Earls Robert and Patrick Stewart, and finally in 

 the Arnots, with what change in detail may have been made by 

 arrangement with the bishop. But it does indicate that the Crown 

 assumed to deal feudally, not only with what came into its hands 

 patrimonially, but in such a transaction as that with the bishop, and 

 in doing so applied the feudal conveyancing of Scotland to Orkney 

 estates, and even dealt with salmon fishings as they would have been 

 dealt with in Scotland. 



There are only three other episodes which need be mentioned. 



First, the wadset of the earldom and all that it carried to the Earl of 

 Morton in 1643, confirmed 1644, cap. 246, Th. VI., Part I. 228, and 

 renewed to Viscount Grandison, a trustee for the Morton family, by 

 1662, cap. 46, Th. VII. 398, by both of which Acts, the one during the 

 Commonwealth, the other after the Restoration, the Earldom was 

 dissolved from the Crown. 



Second, the reduction of the Grandison-Morton title, at the instance 

 of the King's Advocate, in 1669, M. 7857, and the confirmation by 

 Parliament of the reduction, 1669, cap. 19, Th. VII. 566. 



Third, the rehabilitation of the Morton Grant by charter of 12th 

 February 1707, accompanied by the Acts 1707, cap. 9 and 46, Th. XI. 

 429 and 471, dissolving the earldom from the Crown, and ratifying 

 the charter. The Morton rights passed to the Zetland family in 1766, 

 with whom they remain. 



I believe that I should add that at the abolition of Episcopacy, any- 

 thing that remained of the bishopric and its lands devolved on the 

 Crown, and that certain of these lands have since been given out to be 

 held in feu of the Crown, but I cannot lay my hands on authority for 

 this statement. 



Returning now to the three questions which I think require to be 

 considered. 



In the first place, by the udal law, or law of Orkney, as it stood in 

 1 468, and as it stands now, except so far as innovated upon, the Crown 

 was not presumed by any fictio juris to have been the original proprietor 

 of the whole territory of the islands. Therefore, even if salmon fishing 

 is to be regarded as a separate tenement by udal law, of which there is 

 not the slightest suggestion, there is no room for the presumption that 

 the property in salmon fishings belongs to the Crown unless specially or 

 constructively granted out. The reasoning regarding foreshores on 

 which the judgment of the Court rests in Smith v. Lerwick Harbour 

 Trs., 1903, 5 F. 680, applies with equal force to the present question. 



F 



