72 



Appendices to Twenty-sixth Annual Report 



Hence if this Summons had commenced with a general declarator, as 

 did Gammell's, that all the salmon fishings in the rivers and round the 

 coasts of Orkney, so far as not granted out, belong to the Crown jure 

 coronce, and form part of its hereditary revenues, it must have failed. 



But the present action is limited to the fishings in the Kirbister burn 

 in the parish of Orphir. and these particular fishings are said to belong 

 to the Crown jure coronce, and to be put of its hereditary revenues. 

 The conception of jus coronce involves, I think, general and not special 

 considerations, and when the general proposition cannot be maintained, 

 it is difficult at first sight to conceive of any good ground for the 

 particular. But the position is not, I imagine, so simple as it looks. 



In the second place, how has the Orcadian law in the matter of 

 salmon fishings been affected by the connection of the islands with 

 Scotland ? I have examined the history of that connection with per- 

 haps too great minuteness, and I think that the examination shows that 

 the Crown derived its rights in Orkney in a definite and historic 

 manner, which precludes the idea or fiction that the Crown is the 

 fountain of all land rights and the paramount superior, that it has dealt 

 with the earldom and the bishopric in feudal form, and that, as the 

 earldom and the bishopric comprised not merely customary duties from 

 lands, but the property of certain lands, these have been held for a very 

 long period on feudal tenure, and under titles which sometimes make 

 mention of fishings. 



It may be added that for tbe convenience of transmission, and 

 probably at first with a view to greater security of title, certain lands 

 and estates in Orkney, which pertained neither to earldom nor to 

 bishopric, have been feudalised in matter of title by their udal owners. 

 Although it is necessary carefully to distinguish between proper 

 feudalisation by acceptance of a Crown grant, which involves at least 

 the fiction of a prior vesting in the Crown to admit of the re-grant, and 

 the mere use of feudal forms when there has been no real interposition 

 of the Crown (Beatton v. Gaudie, 1832, 10 S. 286 ; Rendall v. Robertson, 

 1836, 15 S. 265). 



The results of the enquiry sufficiently demonstrate that nothing has 

 occurred since 1468 which amounts to a general acceptance in Orkney 

 of the Scots feudal system, and still less of its customary incidents. 



But, in the third place, has the gradual feudalisation of estates in the 

 matter of title, whether this has occurred through the medium of earldom 

 or bishopric, or in particular instances of private udal properties, drawn 

 with it as an incident the Scots law of salmon fishing ? It certainly 

 cannot be maintained that the partial adoption of the feudal system in 

 matter of tenure has so affected the whole of the Orkneys as to bring 

 those parts which have not yet been feudalised under the Scots law of 

 salmon fishing rights. Can it, then, apply to all estates now held on 

 feudal tenture, while it does not apply to those still held as udal ? 

 Looking to the origin of the Scots law of salmon fishing, there is some- 

 thing anomalous in the idea that it could apply runrig over the islands, 

 according as the title to lands has or has not been feudalised. And I do 

 not think that this is a necessary consequence of such feudalisation as 

 has taken place in Orkney. I think that the tenure may be adopted 

 without the adoption of an incident of Scots feudal law, not essential to 

 the tenure and peculiar to the particular feudal system of Scotland. It 

 must, I think, be admitted that the feudal system was first adopted in 

 Scotland, and that the particular law of salmon fishings was afterwards 

 engrafted on it, and necessarily so, for it is peculiar to Scotland. I do 

 not find it difficult in the circumstances to reach the conclusion that the 

 Scots feudal system has been adopted sparsim in Orkney, in matter of 



