by Wm. Jardine Dobey, S.S.C.
Udal Law came to Orkney and Shetland with the Norse emigrants who began to colonise the islands in the seventh or eighth century and whose influx continued till far on in the ninth. In 872, by the battle of Hafurs Fjord, Harald Haarfagr became master of Norway, and shortly afterwards he subdued the settlers in the islands and incorporated their territory in Greater Scandinavia. A Norwegian earldom was created about 880, and under Earl Thorfinn (1035-1064), at the high water mark of Norse penetration, nine Scottish earldoms on the mainland were held in subjection along with the Sudreys (Hebrides) and Man. Following the affair at Largs, Norway ceded the Hebrides to Scotland by the Treaty of Perth in 1266, for a payment down of 4000 marks and an annual payment of 100 marks in perpetuity. This had no immediate effect on the northern islands, but a century earlier, in 1139, a significant event had occurred there in the passing of the earldom to holders of Scottish descent.
The annuity for the Hebrides—the 'Annual of Norway'— having fallen much in arrear, protracted negotiations led up to an arrangement for the marriage of Margaret, daughter of Christian I of Denmark, Sweden and Norway, to James III of Scotland. By the contract of marriage of 8th September 1468 the annual of Norway and all arrears were discharged, and Christian undertook payment of a dowry of 60,000 florins of the Rhine, of which 10,000 were to be seetled before the bride's departure, and for the balance Orkney was given in pledge—sub firma hypotheca et pignore— to the Scottish Crown till redeemed by payment of the amount outstanding.. Among other provisions in the contract was an optional right to the Queen in the event—which did not happen—of her surviving her husband, to a payment of 120,000 florins, for 50,000 of which the retrocession of Orkney was to be accepted as a discharge. (It has been stated that the Norse laws were reserved in the islands at the time of the impignoration. That may follow from the transfer being mercy in security. But the contract of marriage, which incorporates the pledge, appears to contain the express pronouncement on the point.) As Christian could produce only 2000 florins towards the initial payment of the dowry, Shetland was on 20th May 1469 pledged in similar terms for the balance of 8000 florins. It has been many times stated that the right to redeem the islands was subsequently discharged. But that appears to be erroneow. The matter was frequently discussed in the two hundred years that followed the pledge, and the restitution of the islands is said to have been called for as recently as the middle of the eighteenth century. On the above title of impignoration the Scottish right to Orkney and Shetland is founded, though the subsequent centuries of undisturbed Scotush occupancy and administration may by now have created a title of Scottish sovereignty not only de facto but de jure.
Soon after the pledge, in 1470. William Sinclair, the last of the Orkney earls, excambed the landed estates of the earldom for subjects on the mainland, and the former were, on 17th February 1471, annexed to the Crown with a condition against alienation, 'except alenarily to ane of ye kingis sonis of lauchfull bed'. This transaction dealt with the lands of the earldom, and could affect neither the sovereignty of the islands nor the laws to which they were subject. The restriction on alienation of the estates was soon departed from, and they were 'granted, revoked, annexed, re-granted, confiscated and re-annexed with wearisome monotony of torturing change. Five times have they been formally annexed to the Crown by Act of Parliament, and fourteen times committed in defiance of such Acts . . . to one needy and rapacious courtier after another'. Into the resulting morass of conveyancing we cannot enter here.
In 1567 the Scottish Parliament enacted that the islands should enjoy their own laws, and should not be subject to the common law of Scotland. But in 1617 an Act of the Privy Council of Scotland was passed which professed to discharge the 'foreign laws' within Orkney and Shetland. Long before this, however, there had been a steady infiltration of Scottish ideas and Scottish customs. The nationality of the earls had been a potent factor in that direction, as had also the increasing recruitment of priats and bishops from the Scouish Church. In 1471 the bishopric of Orkney and Shetland had been transferred by papal bull from Trondheim to St. Andrews. In 1535 had come the first charter in feudal form, and in 1541 came the appointment of the first sheriff—though he still administered for a time the peculiar law of the islands. To these may be added the farming out of the Crown estata to a series of Scottish donataries who were as little familiar with the legal system of the islands as they were likely to respect it if in conflict with their own interests. Against these repeated assaults by Scottish and feudal influences the udallers of the older system had fought a losing and a hopeless battle. Two later references in the Scots Acts may be noted. In 1633 the udallers, who had 'thir many ages conforme to the Denish law possesst thair land for payment of skatt and teind', had so far forgotten their proud boast to hold in their own right, and subject to no superior, as to crave that none should be interposed between them and the Crown, but that they should remain direct vassals of the Crown until His Majesty conformed 'their richts to the lawes of this kingdome'. In 1690 it was enacted that vassals of kirklands in Orkney and Zetland, with valuations not exceeding L20 Scots, should 'bruike by the udall right without necessitie of renovatione of their rights and infeftments'.
To the modern jurist udal law connotes the form of allodial land-holding introduced by the Norsemen. But in the fuller acceptance of the term, and for our present purpose, it embraces the whole legal system which obtained in the islands for nearly a millennium before the formal introduction of Scots Law three centuries ago. And the Norsemen of the Viking Age, whose laws and customs form the older system, were not entirely the skin-clad barbarians of popular fancy. Their oral laws were in existence before the conquests of Harald Haarfagr, and by the reign of Magnus the Good (1035-1047) they had become a written code. That the law off the islands was in fact based on the law of the parent country of Norway is proved by available records. But how far there was complete identity is uncertain. In 1538 a decree in Shetland, which was confirmed in Bergen, is given 'according to the Gulathing law'. And the late Professor Absalon Taranger of Oslo has suggested that the Gulathing law in force in Orkney and Shetland in the later Middle Ages and after was Magnus Lagaboter's Landslov of 1274. This was promulgated for the four old law-districts (Gulathing, Frostathing, Borgarthing and Eidsivjathing), and Gulathings edition was used in the Norwegian colonies in the west.
The law as applied in the islands was contained in a 'law-book' —a term used by northern writers to describe any written code of laws—and the law-book, which apparently contained not merely laws but decisions, is referred to in several decrees of the local courts and 'lawmen'. This law-book was lost or destroyed under Patrick, Earl of Orkney, in the early part of the seventeenth century. Local tradition is that it was burnt.
Without the law-book it is impossible to reconstruct with any confidence the law of the islands, to say how far it conformed in detail to the parent law of Norway, or if it followed the progress of legislation there. The basis of any enquiry must be the records that have come down to us. And these are naturally concerned mainly with land-ownership and transfer, which touch only a fraction of the subject. Even in this limited area and with the helpful analogy of the old Norse codes, deductions must be tentative, and large gaps can be filled by only the barest conjectures. Uncertainty is introduced also by the suspected taint of Scottish influence in anything dated after the pledge—and that covers most of the records available. But with these warnings something of a general nature can be indicated.
The distinctive feature of an udal holding was its allodial nature. The udaller held of no man and owed no service to any superior. The skat he paid was in its origin a tribute to the state or Crown, rather than a feu-duty. But if he was untrammeled by any feudal restrictions, he was far from unhampered in dealing with his holding. For the udal system involved something like an entail on the family, and the udaller who intended to sell his land was expected to offer it first to his kinsmen. Any udal land sold to strangers was subject to redemption by the vendor's relations, whose consent was sometimes taken to sales in order to cut out the right to redeem. The 'roith' or right of redemption might also be acquired separately from the heirs after the principal sale. The almost constant reference to the vendor's great need (mystar) and urgent necessity points to a conveyancing device to preclude the kinsmen's rights. But this phrase and the consent of the heirs, though strangely consistent with the udal system, may in fact be Scottish intrusions.
By the curious practice of upgestry a person's whole lands and estate could be made over to another in consideration of the latter maintaining the former 'in met and claiths' for the rest of his life.
Symbolical delivery, which formed so essential a feature of land transfer in many early systems before the introduction of feudalism, apparently disappeared in Norway from the time of Magnus Lagaboter. This is consistent with the records in the islands which (except in the case of late writs in feudal form) do not suggest any formality of this kind as necessary to a conveyance of land.
Although the records disclose a mass of documentary evidence relative to land, it seems clear that writing was not essential to the transfer or title of udal holdings. Agreements between seller and purchaser were concluded by handshake, though the transaction might be recorded in a written document or evidenced by a certificate or decree of the lawman. As Scottish influence spread in the islands the use of written evidents would naturally increase. But nowhere does it appear that writing was ever a necessity. The earlier deeds (fifteenth century) contain a simple record of the transaction effected, the lands to be held from the granter for ever. But as time passed and southern influence grew the use of Scottish phrases and words of style gradually increased. Execution was usually by the seal of a 'worthy man' procured by the granter, who had as a rule no seal of his own.
An udal inheritance was divided amongst all the children, who took equally between them, the daughters' shares being one-half of those of the sons, and the latter being entitled to acquire their sisters' portions by purchase if they so wished. The eldest son was entitled to the mansion or manor-house, or had in any case the first choice of the lots available. The heirs presumably took as a matter of right, and not mercy in default of a will. In decrees of 1558 and 1570 there are indications of a widow's liferent right, the existence of which seems to be confirmed by a wife's consent being taken to a sale in 1520.
From the stringent rules of udal succession was excluded the 'tent penny and ferd' which figures in so many of the records.
This was the tenth of inherited lands and moveables, and the fourth of self-acquired lands, which the udaller could bequeath as he wished. This definition suggests that the restrictions on testation applied to moveables as well as to land.
Under the old Norse customs the arvel or inheritance feast was held not sooner than the seventh day after the death, and this explains the significance of the 'right seventh day' mentioned, in records dealing with succession, as the time at which the inheritance was divided. It also accounts for the title of the 'shynd bill', in which the rights of the heirs were recorded.'
The records give us no information from which the old criminal law in the islands could be reconstructed, and the references in Pitcairn's Criminal Trials to affairs in Orkney and Shetland are comparatively late in date and do not justify any inference on the subject. But we may fairly assume that the criminal, like the civil, law would be based on Norwegian sources, and the last recorded mention of the law-book is a reference to the inspection of its chapters in a case of murder or manslaughter.
Considerable discussion has taken place regarding the various officials who functioned while Orkney and Shetland were subject to Norwegian influence, and reference on this point may be made to the undernoted authorities. It must suffice here to mention only the law-thing and the lawman. In Norway the thing was an assembly which might have legislative as well as Judicial functions, and the lawman was, in prinutive days, one versed in the law and custom of the country before the coda were written. In the islands the law-thing was, prior to the appointment of the Scottish sheriffs, the chief court, which was apparently held annually, and the lawman was its president and legal assessor. In addition, the lawman acted independently, or along with a jury or assize, and he issued testimonials or certificates as official records of transactions and proceedings. Before the pledge to Scotland the decrees of the local courts in the islands were subject to review in Norway, and as late as 15384 the King's Court in Bergen confirmed a doom of the Shetland lawting. Arbitration was frequently resorted to for the settlement of disputes.
For details of the local weights and measures reference should be made to the relevant portions in the general authorities (5-X3, supra), to Appendix XXI of Peterkin's Rentals (20), p. 117, and to the undernoted.
For the most part the older system of law has disappeared from the islands, but udal tenure has remained to take its place in the law of Scotland, and, with its scanty survivance, in the midst of the prevailing feudalism, we have its incidents in forahore and fishing rights..
In the absence of the law-book Udal Law as it affected Orkney and Shetland must be gathered from (a) its Norwegian origins, (b) later Scottish writers, and (c) the records of deeds and decrees. The sagas do not assist directly, but occasionally illustrate points of Udal Law and custom.
The old Norse laws down to 1387 are published in Norges Gamle Love, and, after 1387, in the second series, still in progress. A selection of those laws which affected Orkney and Shetland is given in the Appendix (p. 459, infra). No complete English translation of the old Norse laws has been published. Larson (iii, XX) has translated the older Gulathing and the older Frostathing laws, and various extracts—mostly from the older Gulathing law—are given in The Viking Age (iii, 6) and in Seebohm's Tribal Customs (iii, 8). Other commentaries in English (e.g. iii, 2, 4, 9 and 19 (3)) are in the most general terms. The works by Taranger and Brandt (2) and (3) are historical surveys of Norwegian law. The article in English by the former (in iii, 10) is instructive but is very limited in its survey. Norwegian records in Diplimatarium Norvegicum have been largely drawn upon in both the Scottish collections 0. & S.R. (12) and R.E.0 (13).
Only brief references to Udal Law are given by the Scottish institutional writers (4), except Bankton, who relies on the Grievances (6). Gifford's Zetland (5) and the Grievances (6) are original contributions, and refer to no earlier general authorities. Gifford was Steward and Justiciar-Depute under the Earl of Morton, then in right of the earldom of Orkney and lordship of Zetland. Certain of his statements have been rejected by later writers. The Grievances (6) were written in reference to the 'Pundlar process' about weights and measures, but contain some general information on Udal Law and a comparison on certain points with the laws of Norway. Hibbert (7) has little original to offer, but collects the information available when he wrote uX X 822. The Introduction to Balfour's Oppressions (8)—a spirited description of the islanders' misfortunes—is on broad lines an accurate enough representation of their case, but is special pleadinz rather than legal history. His authorities are not mentioned. Goudie's Antiquities (9) is a valuable contribution by a reliable antiquarian. Some of the documents he quotes appear in no other collection. Drever's article (10)—a comprehensive statement by a recognised authority—has been transported verbatim (after the writer's death) from the previous edition of the Encyclopaedia. Though seemingly later in date the article in fact precedes the two principal collections of records. It should be read as subject to Johnston's commentary (X X) and to the introductions to the records (X2) and (X3).
It must be emphasised that the authority of Scottish writers— and particularly the earlier writers—on Udal Law must depend in every case on confirmation by the records. An accurate statement on the subject can only be got after an exhaustive study of the evidence in deeds and decrees, and a careful scrutiny and comparison with the Norse codes whence the law came.
Of the records 0. X S.R (XX) and R.E.0 (13) are comprehensive collections containing a mass of information—mainly deeds and decrees and incorporating much given in earlier publications. The extent to which they supersede (X4), (X5) and {r6) can be gathered from the notes to the latter. The Craven collection (X7) is mainly of the seventeenth century, but there are earlier items, some of which have not apparently been published. Acts and Statutes of the Lawting, 1602-1614 (18), 160X-I614 (X8), are probably too late to afford accurate evidence of Udal Law, as Scottish influence was by then a strong factor in the islands. Peterkin's Notes (X9) are mainly of interest for the appendix of documents, though the more important of these are now in (iX) and (X3). The Court-book extracts (X60X-X604) are too late to be of real value. Peterkin's Rentals (oo) contain a mass of detail regarding lands in the islands, not cx faeic instructive on udal principles, but indispensable for reference if such particulars are required. A long appendix of miscellaneous documents contains little rdevant to our subject, with the exception of the first two items—now in (r3)—and No. XXI on Weights and Measures.
After the destruction of the law-book various regulations for the islands were made by the sheriff and local assemblies. These enactments, which began in the early seventeenth century under Earl Patrick, were made in obvious and intentional imitation of the local legislature under the older system. They became known as the 'Country Acts', and cannot be regarded as having any direct bearing on Udal Law.
(X) LITERATURE
(Notes.—Most writers on the islands mention Udal Law, usually in condensed statements from earlier sources. The following are selected as amongst the most useful contributions to the subject. For an extensive bibliography on the islands generally see James W. Cursiter's List of Books and Pamphlets on Orkney and Shetland, Kirkwall, 1894)