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OPPRESSIONS
OF THE
SIXTEENTH CENTURY
IN THE ISLANDS OF
ORKNEY AND ZETLAND:
FROM
ORIGINAL DOCUMENTS.
[Illustration]
PRINTED AT EDINBURGH:
MDCCCLIX.
THE MAITLAND CLUB.
JULY M.DCCC.LX.
THE MOST HONOURABLE
THE MARQUESS OF BREADALBANE, K.T.
=President.=
HIS GRACE THE DUKE OF ARGYLL.
DAVID BALFOUR, ESQ.
BERIAH BOTFIELD, ESQ., M.P.
HIS GRACE THE DUKE OF BUCCLEUCH AND QUEENSBERRY, K.G.
ANDREW BUCHANAN, ESQ.
THOMAS BUCHANAN, ESQ.
WALTER BUCHANAN, ESQ., M.P.
ALEXANDER CAMPBELL, ESQ.
10 HUMPHRY WALTER CAMPBELL, ESQ.
JAMES T. GIBSON CRAIG, ESQ.
DAVID DREGHORN, ESQ.
WILLIAM JAMES DUNCAN, ESQ.
THE LIBRARY OF THE UNIVERSITY OF EDINBURGH.
WILLIAM EUING, ESQ.
ALEXANDER S. FINLAY, ESQ., M.P.
THE REVEREND WILLIAM FLEMING, D.D.
JOHN GORDON, ESQ.
JAMES WYLLIE GUILD, ESQ.
20 HIS GRACE THE DUKE OF HAMILTON AND BRANDON.
WILLIAM HILL, ESQ.
HONOURABLE JAMES IVORY, LORD IVORY.
JOHN CLARK KENNEDY, ESQ.
GEORGE RITCHIE KINLOCH, ESQ.
JOHN GARDINER KINNEAR, ESQ. [_SECRETARY._]
THE REVEREND MATTHEW LEISHMAN, D.D.
THE REVEREND LAURENCE LOCKHART, D.D.
JAMES LUCAS, ESQ.
ALEXANDER BENNETT M’GRIGOR, ESQ.
30 JOHN WHITEFOORD MACKENZIE, ESQ.
SIR JOHN MAXWELL, BART.
JAMES PATRICK MUIRHEAD, ESQ.
SIR ANDREW ORR.
ALEXANDER OSWALD, ESQ.
JOHN MICMICHAN PAGAN, ESQ., M.D.
WILLIAM PATRICK, ESQ.
THE QUÆSTOR OF THE LIBRARY OF THE UNIVERSITY OF GLASGOW.
JOHN RICHARDSON, ESQ., LL.B.
40 JOSEPH ROBERTSON, ESQ.
WILLIAM ROBERTSON, ESQ.
ROBERT SAWERS, ESQ.
THE REVEREND HEW SCOTT.
JAMES Y. SIMPSON, ESQ., M.D.
WILLIAM SMITH, ESQ.
WILLIAM SMYTHE, ESQ.
MOSES STEVEN, ESQ.
WILLIAM STIRLING, ESQ., M.P.
50 JOHN STRANG, ESQ., LL.D.
ALEXANDER STRATHERN, ESQ.
ARCHIBALD CAMPBELL SWINTON, ESQ.
ADAM URQUHART, ESQ.
PRESENTED TO THE MEMBERS
OF THE
MAITLAND AND ABBOTSFORD CLUBS,
BY
DAVID BALFOUR
OF
BALFOUR AND TRENABIE.
------------------------------------------------------------------------
TABLE OF CONTENTS.
Page
PREFACE v
INTRODUCTION ix
ARTICLES AND INFORMATIONS BY THE INHABITANTS OF ORKNEY AND
ZETLAND, OF THE OPPRESSIONS COMMITTED BY LORD ROBERT STUART.
DECEMBER M.D.LXXV. 1
THE COMPLAYNTIS OF THE COMMOWNIS AND INHABITANTIS OF ZETLAND, AND
PROBATIOUNIS LED THAIRUPON. FEBRUARY M.D.LXXVI. 13
THE COMMISSION BY KING JAMES THE SIXTH TO THE CHANCELLOR AND
OTHERS, TO TRY LORD ROBERT STUART FOR OPPRESSION. M.D.LXXXVII. 93
A SUPPLICATION TO PARLIAMENT BY LAWRENCE BRUCE AND OTHERS, AGAINST
PATRICK EARL OF ORKNEY. M.D.XCII. 99
APPENDIX and GLOSSARY OF UNUSUAL WORDS 105
PREFACE.
THE following documents illustrative of the Oppressions of Orkney and
Zetland in the Sixteenth century, are now for the first time presented
to the public, and have been carefully transcribed from the original
MSS., or from contemporary and authentic copies.
I. _The First Articlis given in against Lord Robert Stuart of Orkney,
16th December 1575_, are printed from an official copy of the same
period, preserved among the very curious collection of Scottish State
Papers in the possession of the Right Honourable the Earl of Hopetown,
whose ancestor was Lord Advocate in the next reign, and I owe the
knowledge of its existence to the information and courtesy of Mr. Joseph
Robertson of the Register House.
II. _The Complaintis and Probatiounis of the Inhabitantis of Zetland,
against Laurence Bruce of Cultmalindy (February 1576)_, are printed from
the original MS., authenticated by the signature of the Royal
Commissioners, Mudy and Henderson. This curious State Paper was shown to
me about twenty years ago by a late Sheriff of Orkney, and I then made
two transcripts, one of which, with the original, I gave to him,
retaining the other, which, at one time, I feared might be the only
existing copy of so interesting a document. On his death the MS.
disappeared till 1856, when it was offered for sale to Mr. David Laing,
to whom the Antiquaries of Scotland owe so large a debt of gratitude,
and to whose kindness I also am indebted for the opportunity of
collating my transcript with the Original.
III. _The Commission to Sir John Maitland, the Chancellor, and Sir Lewis
Bellenden, Justeis Clerk, and to Sir Patrik Ballentyne 1587_, to
“enquire into the complaints against Lord Robert Stewart, lait Erle of
Orkney, and James Stewart of Græmsay, his natural son,” is printed from
the original MS., authenticated by the signature of Andro Elleis, Clerk
to the Privy Council. This Commission was previously published in the
Antiquarian Magazine, October 1848, by Mr. George Petrie, the most
diligent and useful of Orkneyan Antiquaries, but by his kind permission
is again presented to the public in a form more lasting and accessible.
IV. _The Supplication to the Parliament be the Gentilmen of Orkney and
Zetland (1592)_, is printed from a _Doubill_ of the same period among my
own papers, and is inserted, not so much for the sake of any information
derivable from the statements of these _Udack_ pretenders to Odal[1]
rights, as to illustrate the ignorance which so rapidly effaced all Odal
traditions even in Orkney, and to share with others my enjoyment of the
pleasant “Measure for Measure” exhibited in the complaints of Laurence
Bruce as a victim of oppression.
Footnote 1:
For etymological reasons, I prefer the terms ODAL and ODALLER to the
more usual but less correct forms of UDAL and UDALLER.
I have endeavoured to elucidate a subject so interesting to my
countrymen, but so inaccurately understood even by those best acquainted
with the general history of Scotland, by prefixing some introductory
notices, adding an explanatory and etymological Glossary of unusual
terms, and appending the Complaints of the Orkneyans against David de
Meinars (Menzies of Weem) 1427, from the _Orcades_ of Torfæus, and a
Sketch of the early Survey and Valuation, Rentals, Weights, and Measures
of the Islands.
I had intended to add a number of documents illustrative of Odal Law,
Succession and Pedigree; of Things, Oaths, and Umbothskap; of the
Conveyance, Assedation, Impignoration, and Redemption of Land; of the
Transition from Norse to Scottish law, language and thought; and of the
Oppressions and Assumptions of the Stewart Earls of Orkney. But the
growing mass of such materials, and the difficulty of rejection or
selection, where all seemed to me so interesting, have compelled me to
forego so large an addition to a volume already unduly extended.
BALFOUR, _31st December 1858_.
INTRODUCTION.
THE History of Orkney and Zetland is still to be written. There is no
part of the United Kingdom which possesses historical materials more
ample, or more early, and none so little known as these, the last
acquired of the British Isles. But where the sources of information are
so scattered and inaccessible, it is perhaps easier to estimate the
amount of attainable knowledge, than to fathom or fill up the depths of
inevitable ignorance, and I am far from pretending to supply this
desideratum. I still hope to see it in abler hands, when the same
research, learning and acumen, which have done so much to elucidate the
Celtic history of the North of Scotland, shall be applied to the
parallel subject of these not less interesting Islands. In my essay on a
theme so difficult both from its antiquity and its novelty, I shall
account it a sort of success, if my statements, omissions or mistakes,
shall tempt or provoke some more capable or more practised inquirer—more
earnest, and more honest in the search for truth, he cannot be.
What I now propose is, to give only such brief introductory notices as
may seem necessary to illustrate the ARTICLES, COMPLAINTS and other
documents, selected from the many Supplications, Petitions, Protests and
Memorials of the ill-used Islanders, not merely on account of the more
minute details which they contain of oppression and misrule, but for
their curious glimpses of social life in the far North, and the olden
time, and of the laws and customs of a day and district so near, and yet
so strange.
Placed on a salient point, dividing two oceans, flanking the two weakest
coasts of Britain, and confronting within a few hours’ sail, the mouths
of the Baltic and the Elbe—indented with fine harbours, easily made as
impregnable as any in Northern Europe, and never boomed like them by
half a-year of ice—with a soil of more than ordinary fertility, and a
sea-loving people, hardy, intelligent and enterprising—Orkney was well
adapted to become the vanguard of northern civilization and commerce.
The fostering liberality which has raised a Venice in the Baltic, might
easily have made of Orkney a garden or a granary, and of any one of its
score of harbours, the Valetta or Sebastapol of the Atlantic and German
Oceans. Perhaps with such a position and structure, soil and population,
it might even have become (under circumstances less repressive), the
powerful centre of an independent Hanseatic league, the check and
counterpoise of the usurped monarchy of the seas. But for nearly four
centuries, it has been mediatized into an overtaxed and overshadowed
dependency, and dragged in the rear of a political and commercial
system, in the advantages of which it has been grudgingly permitted to
share, but in whose reverses it has ever been made to suffer most
unequally; and the few who have cared to trace its history, have been
too much absorbed in the painful interest of its actual condition, to
indulge in speculations on what it might have been.
While these Islands were Scandinavian, if not independent, they had from
locality and circumstance some individual action, and a history; but
since they became an item of Scotland, and Scotland of the integer of
Britain, they have had no self-motion to record, but short episodes of
struggle, the spasms of a feverish nationality to be crushed as
rebellion against the dominant state. But their fate has been more hard
than that of most small nations, merged in another larger than
themselves. The ruling power had not only the usual interest in
profiting by union, repressing insubordination and veiling oppression,
but also (from its defective title) in suppressing its surreptitious
profits, lest others should estimate too well the value of Scotland’s
gain and Norway’s loss.
Since they were severed, more than three centuries ago, from the kindred
rule of Norway, their history has been a continuous tale of wrong and
oppression, of unscrupulous rapacity and unheeded complaint. RECEPI, NON
RAPUI, might have been the characteristic motto, as that shadowy
distinction between the merits of the thief and the receiver has been
the plea, of every government under which they have since been ruled or
misruled. Regarded as aliens, of no value beyond the revenue or plunder
which could be extorted from them, they have been 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, and without either protection or redress, to one needy and
rapacious courtier after another. Each Donatary or Tacksman, aware of
his precarious opportunity, took for granted all previous exactions, and
sought farther profit in some mine of advantage hitherto unwrought, till
the growing burden of extortion wrung from the Islanders a cry of
oppression too loud to be smothered, and then the government sometimes
disavowed or removed the indiscreet official, who could not conduct his
pillage with decorum. But in general it was blind to all such profitable
enormities, and deaf to all complaints, unless the complainer could give
interest to his case by charges of treason, of embezzlement of royal
revenues, or above all, of coquetting with the dangerous claims of
Norway. In such a case the oppressor became perhaps a victim, and was
forfeited, imprisoned or beheaded, not for oppressing the subject, but
for alarming the Crown. But every change was to the Islanders only a
change of tyrant, and their complaints served only to warn the new
Donatary of the rocks and shoals on which his predecessor had made
shipwreck of the thriving trade of robbery. The Crown might do justice
on the oppressor, but it invariably appropriated his plunder, and
adopted his profitable exactions, as prescribed rights, and precedents
for farther claims. LAURENCE BRUCE was removed—but his false Weights and
Measures still prevail. LORD ROBERT STEWART was imprisoned—but the
Doubled Teind was not reduced, nor the Escheited Land restored—both
still form part of the Estate of the Crown and its Donatary—and the
culprit was reponed, with higher powers, to wreak vengeance on his
accusers. EARL PATRICK was beheaded—but his feudal casualties and
illegal exactions and decreets were still enforced for the benefit of
future Donataries. The BISHOPRIC LANDS have been (in the language of the
New World) _annexed_ by the Crown, and sold to plant the parks of
London—but their chartered obligation to uphold all ecclesiastical
buildings has been transferred to the other landowners. The fictitious
Debt and Mortgage to WILLIAM EARL OF MORTON were cancelled—only to
enhance his powers, profits and peculations, by the sanction of a
surreptitious Act of the British Parliament. Other Scottish counties
were relieved of the “AULD EXTENT” when the new Cess was imposed; Orkney
and Zetland still pay both—to the Crown the British LAND TAX—to its
Donatary the SKAT of Norway.
The very enormity of such anomalies makes it hard to believe them
possible in a place and time so near our own, and harder still to
persuade the nineteenth century, in its self-complacent admiration of
the just and enlightened rule of Britain, that much of the evil still
exists uncorrected and unredressed in this the twenty-third year of
Queen Victoria.
On 8th September 1468, Christian I. of Denmark, Sweden and Norway, by
the CONTRACT OF MARRIAGE between his only daughter Margaret and James
III. of Scotland (after discharging the Annual of Norway, a tribute due
by Scotland for Man and the Hebrides), engaged to pay a dowry of 60,000
florins—viz. 10,000 before the young Queen’s departure, and for the
balance of 50,000, to pledge the islands of Orkney, to be held by the
Crown of Scotland until he or his successors, kings of Norway, should
redeem them by payment of that sum. In return, Christian stipulated for
certain jointure lands and terce to the Queen, if left a widow, or at
her option a payment of 120,000 florins, for 50,000 of which the
restitution of Orkney should be counted as a discharge. Only 2000 of the
presently promised 10,000 florins being paid, Zetland was also
impignorated for the balance of 8000 florins under the same conditions
(20th May 1469), and both groupes were thus mortgaged _sub firma
hypotheca et pignore_ for 58,000 FLORINS OF THE RHINE of 100 pence each,
or about £24,166, 13s. 4d. sterling.
Such was the important transaction on which Britain founds her
possession of these Islands, or, as they were generally styled, THE
COUNTRIES OF ORKNEY AND ZETLAND; and while some have found or fancied in
its terms, unusual safeguards for the laws and liberties of the
Islanders, others have distorted its plain meaning to impugn the right
of redemption, or, with even less honesty, have feigned, forged, or
uttered the forgery of a subsequent irredeemable Cession. But it was
neither less nor more than an IMPIGNORATION, such as Denmark’s
necessities had often forced her to make of States or dependencies which
she could not mean to cede in permanency, such as Funen, Sleswig, and
(more than once) the City and Castle of Copenhagen. A transaction so
usual required no such extraordinary clauses or safeguards. In its very
nature it implied only such a redeemable substitution of ownership as
was consistent with the unchanged integrity of the pledge, so that when
redeemed, it should return unaltered to its original owner. Even while
creating a new and temporary right for Scotland, it did not extinguish
the reversionary claims or present interest of Norway; for we find that
power making valid grants of kirk-lands (1490–1500), its officer, the
Lawman of Bergen, pronouncing valid decrees affecting Zetland (1485),
and the Scottish Parliament expressly recognising the ancient native
laws in the islands (1567) a century after the Impignoration. Most
Scottish historians, from Ferrerius and Buchanan downwards, assert as a
point of national honour the extinction of this Right of Redemption,
either by renunciation or prescription; but the first plea is disproved
by documentary evidence of two centuries of Danish demands and Scottish
evasions; and so late as 1668 (two centuries after the date of the
impignoration, and not two centuries from our own) the Plenipotentiaries
of Europe assembled at Breda, attested that the Right of Redemption was
unprescribed and imprescribable. Whether this Right be still vested in
Denmark, or transferred to Sweden with the Norwegian Crown, are
questions of the Law of Nations decided for the present by British
preponderance of metal—until perhaps some power, recognised by the grace
of Palmerston and Treaty of London as the future heir of Denmark, may
revive the claim with arms as cogent as his pleas and his inducements.
Every writer of Scottish history has recorded this Impignoration, Wadset
or Mortgage, as the basis of Britain’s right to the Orkney and Zetland
Islands, and some have narrated the attendant circumstances with more or
less honesty of investigation; but few have interrupted the flow of
their narrative to trace the political causes or social consequences of
that revolution, and still fewer to define the several rights and
interests of those affected by it as parties, subjects, governors, or
governed.
It is not difficult to perceive Scotland’s objects in seeking, not only
to be freed from the constant _casus belli_ of a degrading tribute,
disputed payments, and increasing arrears, but to acquire without cost a
valuable addition of territory long coveted, and to convert a cause of
weakness into a source of strength, by turning dangerous enemies into
disarmed and profitable subjects. All these objects were attained. There
was thenceforth peace between her and Scandinavia. After a few
struggles, the Islanders subsided in angry submission to the fraud and
rapacity of their new rulers; and to a nation impoverished like Scotland
by wars and misgovernment, Orkney proved in time a rich acquisition, if
we may estimate the wealth of the victim by the annual plunder of 3000
head of cattle, 5000 bolls of grain, 6280 stones of butter, and 700
gallons of oil, extorted for centuries in kind or in value from Orkney
alone, in addition to its proportion of the ordinary taxation of the
kingdom, and exclusive of the burdens of Zetland. But of this booty,
little was allowed by the unscrupulous collectors to reach the National
Exchequer, and the gain of the Scottish Crown bore no proportion to its
guilty greed.
The interest of the Danish Crown in this transaction is not so obvious.
It had long been an ordinary resource of its exhausted Treasury to
pledge or sell its States or dependencies, but always for a valuable
equivalent. But in this case, Christian surrendered a large and
undoubted claim, and ceded two valuable provinces for no consideration
except the personal contingency of the Queen’s jointure, frustrated by
her early death (1486). Perhaps, as Count of Oldenburg, even when
exalted to the throne of three kingdoms, he had still a German
gratification in embellishing his family tree with another royal
marriage. Perhaps, as a Dane, he was not unwilling to tear a gem from
the rival, though now united Crown of Norway. If so, he had his
reward—promises without fulfilment—alliance, which never ripened into
aid or subsidy, were all that he obtained for abandoning these kindred
colonies to the will of their ancient enemies, and four centuries of
continuous disaster, defection and decline, have shown if Denmark did
well or wisely in casting off subjects so bound by blood, habit, and
history to love whom she loved, and hate whom she hated.
William Sinclair, the last of the Orkneyar Jarls, had many objects to
gain in the transfer of the sovereignty of the Islands. More refined,
and less ignorant than the contemporary herd of nobles, who suspected
his studies of subjects unearthly and unholy, he could appreciate, even
with some pride, the cloudy romance of his ancestral Sagas; but a
foreigner by descent, if not by birth, he had few sympathies with the
Islanders. His efforts to extend and consolidate his power and estates
had offended the King, estranged the Odallers, and embroiled him with
the Bishop and the Lawman—his family partialities had awakened bitter
feud between him and his eldest son—and as the vassal and high dignitary
of two kings, ruling a province of the one, dangerously near the coast
of the other, he might easily become an object of suspicion or umbrage
to either or both. Indeed, clouds had already arisen between the
Scottish Earl and his Norwegian Suzerain, and the substantial splendour
of the dignities, titles, lands, and pensions of his Scottish
connection, outshone the shadowy jurisdictions and waning revenues of
his ancient Jarldom. With such and so many motives, he can hardly be
blamed for favouring or even suggesting a change which (when consummated
by the subsequent excambion) would release him from a position so
irksome and unsafe, enhance his Scottish influence, and aggrandize a
favourite son, by disinheriting an unloved heir of his Odal birthright.
William Tulloch, the Bishop of Orkney, was a Norwegian prelate, but a
Scottish priest; and if he had any doubts of transferring the spiritual
allegiance of his diocese from Drontheim to St. Andrews, they were
speedily relieved by his appointment as Confessor to the Queen, and
removed by a favourable Tack of the newly acquired demesne of the
Scottish Crown. Indeed the change was almost essential to his safety,
for his frauds and rapacity had provoked the Earl to seize and imprison
him; and he owed his liberty only to the express solicitation of the
Kings of Denmark and Scotland—with both of whom he had the address to
make a merit of his sufferings as a martyrdom for his devotion to their
incompatible interests. The warm commendations of Christian were so ably
seconded by the bishop’s services to James, that the Queen’s confessor
became successively Lord Privy Seal, Ambassador to England, and Bishop
of Moray.
But to the unfortunate subjects of this bargain of kings and princes,
the change was an evil unmixed, irremediable, and scarcely alleviated by
the hope of its temporary nature. Every interest was threatened, and
every feeling wounded, in such betrayal by their natural rulers into the
hands of hereditary enemies—exasperated by five centuries of mutual feud
and outrage—despised as an inferior race for easy defeats and long
subjugation—and hated still more as masters, foreign in blood, language,
customs, and laws. When Scotland writhes under her subjection to her
“auld enemies of England,” and complains of the jealous removal or
destruction of every historical record or monument of independence,
Orkney in its turn may smile to trace, in every mortification of its
first oppressor, a retributary transcript of its own.
Christian indeed made a form of consulting his Orkney subjects, through
their Lawman, before he cast them off, but the Lawman was soon
afterwards, if not then, the bought pensioner of Scotland, and his
opinion, even if conscientious, could no more express the mind of Orkney
than the dictum of the Speaker could bind the judgment of Britain and
her Parliament. It is true that there was in the Islands an anti-patriot
or Alien faction, consisting of the Earl, the Bishop, and their Scottish
dependants, who viewed the change as in every respect favourable to
their own interests, but especially as offering in Scotland a nearer and
more friendly centre of law and Court of Appeal than that of Bergen. But
to the Islanders in general, there was nothing in the Revolution more
galling to their pride, or more dangerous to their interests, than the
imminent conflict of Feudalism with their dearly cherished Odal laws. As
the last command of their native King, they paid their Skatt to Scotland
without remonstrance, almost without a murmur; but the coming shadow of
the first feudal grant which menaced the freedom of their Odal soil,
roused the long-suffering Odallers into rebellion, and the exterminating
victory of Summerdale gave Scottish Kings a lesson for another
generation.
To illustrate this conflict of legal systems in connection with the
documents now printed for the first time, I propose briefly to sketch
the TENURE, RIGHTS, and BURDENS OF LAND in Orkney and Zetland prior to
the Impignoration, and the alterations and encroachments made by
Scottish rulers and Scottish lawyers in the sixteenth century.
In the primitive form of Scandinavian society, without trade,
manufacture, or commerce, _land_ was the only wealth, its _ownership_
the sole foundation of power, privilege, or dignity. As no man could win
or hold possession without the strong arm to defend it, every landowner
was a warrior, every warrior a husbandman. King Sigurd Syr tended his
own hay harvest, and Sweyn of Gairsay and Thorkell Fostri swept the
coasts of Britain or Ireland, while the crop which they and their rovers
had sown grew ready for their reaping. The landed interest was
all-powerful, for all were classed according to their interest in land,
as _Free_ or _Un-free_. The _Freemen_ were the landowners, and as such,
members of the Althing or Council of Freemen, including all the
governing powers of the State, the King, Jarl, Bishop, Odallers, and
Odal-baarn. The _Un-free_ were those who, possessing no land, had no
political rights, including not only Slaves, the captives of war or
relics of the conquered Pechts, but Tenants and Dependents, personally
free. But as the interests of all were more or less affected by the
Impignoration and subsequent changes, the extent of the revolution may
be best estimated by a successive consideration of the nature of
ODH-AL-RÆD, of the system of THINGS and STEFNS, and of the condition,
rights and powers of the KING, JARL, and ODALLERS—freeborn Thingmen; of
the BISHOP, a Thingman by custom or courtesy; and finally, of the
UNFREE, Tenants and others, subjects not members of the Thing.
The Al-odh-ial or Odh-al holding was the only tenure of land recognized
in Scandinavian kingdoms. It was transmitted by Odin’s followers to
their offspring, as the dearest of those free institutions which
distinguished them from servile races, willing to hold their lands as
the gift of a master; and in the end of the ninth century, was
established in the Norwegian colonies of Orkney and Zetland as the rule
and safeguard of all property, right and privilege enjoyed or claimed by
king or subject. The Odal tenure, by simple _primal occupancy_, has been
so long and generally superseded by the more complex Feudal theory of
landed property, as the gift of the State or its chief, repaid by
service or payment, conveyed by Charter and Saisine, subject to
casualties and irritancies, and inherited by a single first-born heir by
grace of the Superior, that perhaps it is most easy to realize the Odal
idea as the absolute negation of every Feudal principle. The ODH-AL-RÆDI
or Right of Full Possession, was a tacit entail upon the Primal Occupant
and his Heirs, of the ODALSJORD won by his strong right hand, complete
without a written title, subject to no service, payment or casualty,
comprising every conceivable right of use, ownership and possession, and
at his death, constituting in each of his children an equal, tacit
title, inalienable while one Odal-born descendant should exist to claim
the inheritance. The courtly _Beneficium_ flowing from the Sovereign was
the human invention of kingcraft; the _Alodium_ in its grand simplicity
was a direct gift to man from his Maker, by the true _jus divinum_. Such
was the right of the Odaller; nor was that of the ODAL-BAARN a mere
future contingency, but a present patent of nobility and privilege, not
by writ or summons from a king, but by grace of God, and right of birth
as a FRIBORINN and THINGMAN. He might take service as a Væringr, Hirdman
or Husskarl, or till another’s land as Leigu-madr or Bolman—he might
even sink into a Thræll, like Olaf Tryggveson, or rise like him to be a
king, but his Odal-ræd was indelible. The throne was often filled or
shared on the simple but admitted plea of descent from the founder of
the kingdom, for the royal race was Odal-born to the Crown. The
succession of the Orkneyar Jarl might be divided or disputed by many
heirs; but though royal favour might aid, even royal power could not set
aside one claimant Odal-born to the Jarldom; and after a life of roving,
the Odal-born Væringr might seek rest by reclaiming from the stranger
his Odalsjord in Norway, Iceland or Orkney, alienated in his boyhood or
absence.
The present or contingent possession of land by Odal-ræd was thus the
foundation of every right or franchise; and in the infancy of Odal
society, no Law could be made or administered, no Tax imposed or levied,
and no Power assumed or exercised by King or Jarl, without the sanction
of the ALTHING or _Council of Freemen_, where King, Jarl, and Bishop,
Odaller and Odal-born, were all and equally THINGMEN.
The ALTHING was the simple prototype of a modern Parliament, but the
assembly was primary, not representative; and the Estates met and voted
together as in one Chamber. Whether assembled at stated times of Jol and
Vor, or summoned by King or Jarl for special causes, by passing from
hand to hand the Stefn-bod or Cross, the place of solemn meeting was the
great Domring of Stenness, the Thing-stod in Magnus Kirk, or the
Thingholm in Tingwall-vatn, under the Presidency of the LAWMAN OF
ORKNEY, or FOUD OF ZETLAND, the official Speakers of this Island
Parliament. The LAWMAN was the judge appointed (in the early vigour of
Odal independence) by the Thing, but afterwards by the King or Jarl, to
keep the BOOK OF THE LAWS, and to pronounce and ratify the Thing-Doms or
Decreets by the COMMON SEAL OF ORKNEY, of which he was the custodier.
The FOUD was originally the Collector of the King’s Skatt and Mulcts,
first appointed by King Sverrer on the confiscation of Zetland (1196);
but his duties were afterwards assimilated, but subordinate, to those of
the Lawman, and the salary of both was paid by an assessment called
Thing-för-kaup. The Thing and Thing-stod were sacred both to Christian
and Pagan, as a sanctuary where all forgot their feuds and met unarmed,
with a security which weapons could neither win nor maintain elsewhere.
Even the sentenced criminal was safe within its sacred Vebönd, and if he
could win against his pursuers the race of life and death to the nearest
Mör-steinn, Cross or Kirk, was presumed to have redeemed his life in
sight of God and man. Much of the procedure was conducted by reference
to the oath of the accused, and the Lawman’s oath, Saxter oath,
Hirdman’s oath, &c., differed only in their degree of solemnity and
number of compurgators. Besides the criminal penalties of death,
forfeiture, or unlaw to the Crown, damages civil or criminal might be
awarded, and accepted by the sufferers or their kin, with minute
scrupulosity of compensation; and contempt of Court was visited by the
additional infliction of a DOM-ROF. In early times, the Althing enacted
the laws which it administered, authorized and apportioned taxation, and
virtually held the keys of peace and war, by granting or withholding the
supplies; but having once compiled a BOOK OF THE LAWS, it seems to have
exercised its legislative functions but rarely, and, under the less
solemn name of LÖGTHING or LAWTING, to have restricted its consultations
to matters of general administration, finance, police and judicature.
THINGS of many other kinds and of inferior powers, summoned as occasion
arose, were named from their objects, functions, or place of meeting, as
the Leidar-Thing, Höf-Thing, or Huss-Thing, or sometimes styled
_Stefnar_ or _Citations_, as the Hirdman-Stefn or _Council of Warriors_.
Each Herad, Hrepp, Skathald or Parish, regulated its local
administration and assessments by a Herad-Stefn, Hreppa-mot or
Vard-thing, assembled on its Ward Hill or round its Mör-steinn, where
the Under-foud presided as the ruler’s representative, and the
Lögrettman watched the interests of the Commons, and guarded and applied
the Standards of weight and measure. A SCHYND or inquest of Thingmen,
sanctioned every Erffd or division of Odal heritage by its Skind-Bref or
Schynd-bill, and in later times, confirmed every alienation of
land-right by a similar document. Every three or four years the
Vard-thing, headed by its Under-foud, “rode the Hagra,” or perambulated
the march of the common, and exacted from all intruders on the Hagi or
Skathald a rent of Hagleyffi, or a subsidiary Toldber-Skatt, for the
benefit of the Heradsmen, Hreppsmen or Skat-brethren. Every seventh year
the accumulated offences of the district were visited by a Thing of
SKULDING or GRAND-REFF for correction of abuses, where every offence had
its appropriate SKULD or _Fine_. But no sentence affecting life or limb
could be pronounced, except by the Althing or Lawthing, and every
decision was founded on the principles of the venerated LÖG-BOK. This
BOOK OF THE LAWS was probably a selection from the early Norse codes of
the Gula-Thing and Frosta-Thing, and the later enactments of Sverrer,
Magnus Lagabæter, and Haken the Fifth, with such additions and
modifications as the circumstances of the Islands required, together
with a record of former Dooms and Decreets. It was guarded by the
Islanders with superstitious reverence, and the final abstraction of
their LAW BOOK and their COMMON SEAL was perhaps the most unpopular
accusation against Earl Patrick. His perversion of justice under its
pretended sanction, and the irreparable loss occasioned by its
disappearance, gave to the Scottish Crown an excuse for abrogating the
LAWS OF ORKNEY, which, after being acknowledged by frequent Acts of
Parliament, were finally abolished by an Order of the Privy Council in
1612. The Things, though formally abolished by Cromwell and the
submissive Convention, still continued at times to haunt their ancient
Dom-rings, but their power and spirit had vanished with the laws which
gave them life. The Thing was a mere Jury of Inquest, their Lawman a
Sheriff, their Underfoud a Baillie; and strange to say, what may be
called the last ghost of a Thing was (1691) called into a vampire
existence, to give with its expiring breath the shadow of a sanction to
the fraudulent Weights and Measures, against which its Odal fathers had
protested.
When Harold Harfagr (895) gave the conquered Jarldom of Orkney to
Rognvald of Mære, the father of Rollo of Normandy, waiving his royal
rights of Skatt and Lydskyld, he ostensibly reserved to his successors,
the KINGS OF NORWAY, little more than a nominal sovereignty. But the
royal rights and prerogatives, though dormant, were not the less real.
The same King Harold exacted from the Islands a heavy Mulct for the
death of his wayward son. King Erik Bloody-axe, and his wicked wife and
sons, seized both lands and Skatts as their own (939). One King Olaf
forced Christian Baptism on Sigurd Jarl and his men (995), and another
compelled Thorfinn, the most powerful of the Orkney Jarls, to
acknowledge himself as his Liegeman (1025). King Olaf Kyrre granted to
his new city of Bergen the Monopoly of the trade with Zetland (1072).
King Magnus Barefoot imprisoned the Jarls, and at his will resumed and
restored the Jarldom (1098). King Sverrer punished Harald Jarl for
rebellion by the Forfeiture of Zetland, and the Islanders by conditional
Confiscation of the Odal of all rebels (1196). King Hacon IV. asked no
leave of Magnus Jarl or his Odallers when he Valued and Taxed their
Urislands (1263). Hacon V. appropriated the Revenue during the Jarl’s
minority (1309), and Hacon VI. during disputed succession (1370); and
every royal Sea-king, who ravaged the coasts of Britain or Ireland,
mustered his fleet in the Orkneys, and received or enforced the Military
Service of the Jarls. Thus from time to time had the Kings exacted in
Orkney every royalty exigible in Norway, but at such long intervals,
that we are apt to regard each rare assertion as a usurpation or new
conquest, and to forget that Harald’s heirs were the Odal-born lords of
Orkney, entitled to all royal rights whensoever they had will or
strength to enforce them.
But when the adoption of primogeniture in the thirteenth century gave to
the Norwegian throne a stability and consistency unknown to Odal
succession, the royal claims became more exacting and more definite, as
the Jarls and other Thingmen became, by Odal division and contest, less
able to resist them. Harald Madadson’s adherence to an unsuccessful
faction was punished as rebellion; and the long intervals of anarchy,
the disputed successions which followed the deaths of Erlend IV. (1158),
and of each last male of the successive lines of Athol, Angus or
Stratherne, Jarls of Orkney, and the reference by the claimants and the
Islanders to royal arbitration, afforded to the Crown irresistible
opportunities of asserting and realizing its claims to possess by Royal
and hereditary right—1st, The actual Sovereignty of the Islands, the
Ownership of the Jarldom and consequent prerogative to grant or to
withhold investiture of any of the claimants; 2nd, A Jurisdiction
exclusive in some cases, and cumulative and appellative in all others;
3rd, The Skatt of all occupied Odal lands, with confiscation in case of
Skattfal or non-payment; and 4th, The Bota-Mali or Mulcts for homicide,
and other finable crimes, and the O-bota-mali or Forfeitures for crimes
not expiable by fine. Commissions during the King’s pleasure were
granted to the Earl, the Bishop, or some other officer specially
appointed as Governor, Custos, Foud or Lieutenant, to govern the Islands
and collect or farm the revenue; but under an express acknowledgment
that such temporary and _fiduciary_ powers and rights, however ample,
were given without prejudice to the King’s prerogative to bestow, resume
or reserve, all or any of them at his pleasure. It is probable that some
lands and Skats were always thus reserved and intrusted to several
hands; but on what grounds, or to what extent, it is useless to inquire,
since the Impignoration included every royal right in Orkney and
Zetland—viz., SOVEREIGNTY and JURISDICTION, LANDS and SKATS, FINES and
FORFEITS, and conveyed them UNDER REDEMPTION to the Crown of Scotland.
The JARL held not only the largest Odal lands in his Jarldom, but the
sovereign power in a secondary and delegated degree. None of these
rights, however, descended to him by the Odal-ræd, which constituted the
immemorial title of his subjects. The Odal of his fathers lay in the
Norwegian Jarldom of Mære. Rognvald became Jarl of Orkney (895), only by
the gift of King Harald Harfagr; and his successors owed their lands and
dignities to similar royal grants, and their powers to the sanction of
the Althing. But though only the Lydskylldr or Liegeman of the King, the
Orkneyar Jarl was not only exempted from the customary Lydskylld of
Norwegian Lendermen; but in consideration of exposure to piracy, was
permitted to retain the royal Skatt paid by the Odallers for the
exigencies of the Jarldom, and there was little to remind him of his own
subjection, unless when face to face with the King, nor of the Odallers’
independence, except their rare refusal to join him in a Viking-för.
When at home he passed, like the kings of Norway, from one Bordland, Böl
or _Guestquarter_ to another, receiving most of his revenues in kind for
the ordinary necessities of his household, and defraying his wasteful
hospitalities at the cost of his Saxon or Celtic neighbours impartially.
With the Skatt of the Odallers, and the Landskylld of his tenants, he
kept up a fleet of restless rovers, ever ready for a provident
Haust-Viking on the coasts of England, Scotland, or Ireland, for their
Jol-feasts and winter cheer, or a thrifty Vörviking, when their
exuberant carouses threatened a short supply of beeves and ale. At his
death, his Jarldom and its rights were divided, compromised or contested
by his heirs, till but one or two remained to enjoy the impoverished
inheritance. Nine generations of this Northman race of Rognvald had
ruled the Jarldom by a sort of prescriptive Odal-ræd, sometimes
extending their authority over half of Scotland and Ireland—sometimes
struggling for their insular domains—but in the twelfth century, the
growing power of the Scoto-Celtic Crown had shorn them of their southern
conquests of Moray, Ross, Inverness, Man, and the Hebrides. Erlend IV.,
the last heir male of his line, shared the Jarldom with St. Rognvald
(the first instance of succession through a female—the founder of
Kirkwall and its stately kirk, in honour of his maternal uncle Magnus
Jarl, the Saint and Martyr), and on their closely consecutive deaths
(1154–8), the sole succession devolved upon HARALD II., son of the
Countess Margaret of Orkney and the Scottish Earl Madad of Athol. Harald
Madadson was the founder of the shortest but most disastrous of Orkneyan
dynasties. By his opposition to the Birkbeinar revolution, which made
Sverrer Sovereign of Norway, Harald Jarl forfeited Zetland (1196), never
to be again formally or permanently united to Orkney; and after two wars
of mutual barbarity and reprisals, he was compelled to do homage to
William the Lion for all Cathnes to the Oikel (1198). His son JOHN OF
ATHOL, by his share in the death of Bishop Adam of Cathnes, forfeited
the southern portion of that province, the new county of Sutherland
(1222); and on his murder, for his Scottish disregard of the Odal claims
of his Orkneyan relatives (1231), his son-in-law MAGNUS II., son of
Gilbert Earl of Angus, was acknowledged Jarl of Orkney by Hacon IV. of
Norway, and of Cathnes by Alexander II. of Scotland. Five generations of
this race of ANGUS ruled Orkney and Cathnes during a century of unwonted
peace, arising from this double vassalage, the minorities and civil wars
which weakened both Norway and Scotland, and the treaties of matrimony
and commerce which united them. This calm was scarcely disturbed by the
last Northman Viking-storm, which swept over the Islands to expire at
Largs in the equinoctial gales of 1263, but which is memorable to Orkney
for the Survey of its Urislands, and the Deathbed of Hacon, the last of
the Sea-Kings. MAGNUS JARL III. had little difficulty in making his
peace with his royal namesake of Norway, for his lukewarm support of an
invasion so violent, and his grandson JOHN II. married a daughter of
King Erik of Norway. The prudence of Robert the Bruce, Hacon V., and the
young MAGNUS JARL V., hastened by mutual compensation and a new treaty
(1312) to restore peace, when Scottish pirates seized and held to ransom
Sir Berner Pess, the Norwegian Governor of the Islands during the Earl’s
nonage, and Orkney had retaliated by a similar outrage upon Patrick of
Mowat, a Scot—perhaps the first introduction of two names now common in
the Islands. During this period of comparatively peaceful intercourse,
many other Scottish names and fashions found entrance, and many
distinctive Scandinavian features disappeared in Orkney, though still
prevalent in Zetland, which was less exposed to Scottish influences. The
male line of ANGUS JARLS failed in MAGNUS V., and their curtailed
Jarldom passed by a female heir to the Scottish EARLS OF STRATHERNE, and
from them to their representatives, ALEXANDER DE ARTH, who inherited and
resigned the Earldom of Cathnes to Robert II. (1375–6), and HENRY LORD
SINCLAIR, whose homage as EARL OF ORKNEY was, after an interval of
disputed succession, accepted by Hacon VI. (2nd August 1379), but on
conditions which left to him little beyond the lands of his fathers.
Even their title, the only hereditary title permitted in Norway to a
subject not of the Blood Royal, was declared to be subject to the Royal
option of investiture. The Earl was to govern the Islands and enjoy
their revenues, but only under Norse laws, and during the King’s
pleasure; to keep in pay soldiers for the King’s service, but to make no
war, build no place of strength, make no contract with the Bishop, nor
sell nor impignorate any of his rights without the King’s consent; and
finally, to answer for his administration to the King’s Court at Bergen.
But the civil broils which preceded the Union of Calmar, and were
continued through the restless reign of Eric the Pomeranian, freed Earl
Henry from royal interference, and he ruled the Islands regally in his
Castle of Kirkwall, which he built without waiting for the King’s
consent, and with such strength and skill, that the witch-haunted mind
of the 17th century believed that only the devil himself could have been
its engineer and architect. His powers and rights were tacitly continued
to his son EARL HENRY II., whose little Court of Orkney was the most
elegant and refined in Europe, and adorned with the official services of
many proud Scottish nobles. To his enlightened guardianship was
committed the early education of the most accomplished prince of his
time—James I. of Scotland, the Zerbino of Ariosto; and half a century
before Columbus commenced his baffling search for a patron among the
sovereigns of Europe, the Venetian navigator Zenoni had been
commissioned by Earl Henry to retrace the footsteps of the early
Scandinavian discoverers of the Western World. On the death of Henry
II., the Foudrie of Zetland was conferred upon John Sinclair his brother
(1418); and during the nonage of his son, the Government of Orkney was
committed (1422), first to the Bishop Thomas Tulloch, then to the Chief
of the Scottish Clan Menzies, and again to the Bishop, till (on 10th
August 1434) William Sinclair was formally invested with the title, and
intrusted with the Government, subject to the same hard limitations as
his grandfather. WILLIAM, the last JARL OF ORKNEY, was the most liberal
patron of Scottish literature and art in his day. He was busied in the
endeavour to consolidate his power and increase his estates by purchase
and excambion, when the Impignoration opened to him a shorter and safer
way to gratify at once his ambition, his affection, and his hatred; and
with the same worldly wisdom which led him (1455) to prefer the
possession of Caithness to his claims on Nithsdale, he accepted (1471),
with the full consent of the King of Denmark, the lands and pension
offered by James III. as an ample equivalent for all that remained to
him of the ancient Jarldom of Orkney—viz., his title and his lands,
inherited or acquired.