Feas of Clestrain \ James I \ James II \ James III \ James IV \ James V \ James VI \ Pundlar Process
A Long Running Legal Dispute
In August 1743, the Earl of Morton formally dissolved the general meeting of the Orkney heritors, thus hindering their actions. When they petitioned that the Earl should approve other meetings, Andrew Ross (Stewart-Depute) declared the proposal "unbecoming, impertinent and injurious to the honour and integrity of the Court". After further protests and petitions, he issued a warrant on 7th June 1744 to the officers of the Stewart Court to take into custody Thomas Traill of Westove and incarcerate him in the Tolbooth at Kirkwall for six days.
At further meetings of the Stewart Court in 1744 and 1745, Andrew Ross sued James Fea of Clestrain and other lairds for unpaid superior duties. This was tried by John Riddoch, the Sheriff-Substitute and Morton supporter. James Fea tried to delay the judgement for eighteen months. William Balfour of Trenaby denied the competency of the Court and claimed that the Earl's officials could not act both as pursuers and judges.
Mr James Mackenzie was appointed agent for the pursuers. He was a great grandson of Bishop Mackenzie, one of the last prelates of Orkney and the younger brother of Murdoch Mackenzie, the nautical surveyor who produced a map of Orkney in 1750. James Mackenzie was a writer born in Kirkwall and moving to Edinburgh where he practised as a solicitor before the Supreme Courts. He is believed to have pursued the case with great zeal. Around the close of the case, he moved to London.
The proceedings in the case were "extremely learned and voluminous". Few of the Orkney lairds could actually understand all the arguments but were attracted by Mackenzie's conclusion that the rent, skat and duties paid to the Earl of Morton should be reduced by at least a third.
It was maintained that:
It was, of course, denied that skat was in the nature of a land tax. "The Lords gave no judgement on the general point; but sustaining the general defence of prescription, they assoilzied the defender from the conclusions of the declarator with respect to skat duties." (1st July 1752) However, note that in later litigation it was admitted accepted by Lord Dundas that skat was the Danish land tax.
There was a whole series of legal argument: the skat process, the pundlar process and processes in relation to the Superiority of the whole islands. There was litigation in the Courts of the Exchequer and the Court of Session on the accounting for feu duties, etc.
These eventually proved unsuccessful, coming to a conclusion in 1759 with the Court finding against the Orkney heritors. The case does not appear to have been reported. It is assumed that outcome of the litigation and acceptance of the weights was due to "usage, beyond the years of prescription".
To make matters worse, the Orkney heritors were ordered to bear the expenses of the Earl of Morton. These were complained of bitterly as he never appeared with fewer than six counsel. They amounted to between £600 and £700, exclusive of agent's fee and expenses of extract, two items which would double the cost.
These were considered excessive and it is stated in a manuscript note by Counsel, that the Lords cut off £100 and modified the agent's fee to £100. [Session Papers 1759].