The ancient estate of the Jarls lay scattered through every Island and

township of Orkney and Zetland, and consisted, 1st, of LANDS SET or

_leased_ to tenants on a three years’ tack, with a GERSOM or _fine_ at

each renewal, and an annual LANDSKYLLD, _landmail_ or _rent_, in

addition to the King’s Skatt, the Bishop’s Teind and other burdens,

local and general; 2nd, of the BORDLANDS or _Mensal farms_, with their

Böl and its enclosures, the occasional quarters of the Jarl in his

progresses of pastime or State Service, and on that account exempt from

Skatt, even when leased to husbandmen on the usual terms in other

respects; and, 3rd, of certain QUOYS and other lands added by Odallers

to their holdings, but not by odal-ræd, and therefore paying no Skatt,

but Landskylld and other burdens of tenant lands. The Earldom also

included CONQUEST or _acquired lands_, consisting, 1st, of lands added

by the later Earls by purchase or excambion; and, 2nd, of lands which

they had seized as _ultimi hæredes_, or confiscated for crime or

Skatfall. The tenants or tacksmen of the “auld” Earldom were a sort of

Rentallers with a prescriptive claim of renewal by law or custom, on

payment of the stated Gersom; but those of the Conquest lands were in

the far less favourable condition of removable tenants, with terms and

burdens at the landlord’s mercy. A small fee was expected by the Earl’s

bailiff, at each renewal or assedation, called for the Mainland

LAND-SETTER, and for the smaller islands EYSETTER-KAUP, and every tenant

was bound to _fure_ or ferry the Earl and his family, to bring peats to

his Castles of Birsay or Orphir, and perform other prædial services when

required. The payments were mostly made in kind, altering in form

according to the convenience, residence or non-residence of the

donatary, but weighed and measured by fixed and native standards. These

LANDS, MALES, GERSOMS and SERVICES, constituted the _jus comitatus_

which Earl William (1471) conveyed to the Crown of Scotland.

From the time of WILLIAM, by Romish consecration PRIMUS EPISCOPUS

ORCADUM (1136), the Bishops had a seat in the great Council of Freemen.

Whether this were at first their right as actual or presumed Odal-born

Freemen, a concession to their sacred office, or a priestly assumption,

their presence in the Thing was often salutary, sometimes to the Jarl,

sometimes to the Odaller, either as Councillors for the wisdom of the

serpent, or as peacemakers for the gentleness of the dove.

The earliest authorities testify as usual to the undainty

acquisitiveness of the Clergy, making profit alike of the weakness and

the wealth, the crimes and the penitence of all around them. Augmenting

and prospering by Gifts—such as those of the Odaller of Airland to the

Crosskirk of Stenness, of David of Rendall to St. Ninian, or of

Guidbrand of Quendal to the Vicar of Evie, for “a mass ilk Friday;” by

Confiscations—as of Baddi’s Lands for bloodshed in the Kirkyard; by

perpetuation of all liferent Donations; by pretended Excambion,

retaining their own land and seizing the promised equivalent; by

withholding their own Skatts and embezzling others, and by the

numberless oppressions of lawless strength against weak neighbours, the

Bishops advanced in wealth and power. In the quaint language of Bishop

Graham, “the old Bishopric of Orkney became a greate thing, and lay

_sparsim_ throughout the haill parochines of Orkney and Zetland. Besyde

his lands, he hade the teyndis of achtene kirks; his lands grew daily as

adulteries and incests increased in the countrey,” till they were

“estimat at the third part of the COUNTREYIS of old.” How or when the

Bishops were permitted to Tithe the lands and labour of the Islands is

uncertain; probably the building of Magnus Kirk, the Primus Episcopus,

and this impost were connected and coincident (1136); but its rigorous

exaction and arbitrary increase were probably too recent for popular

patience, when (in 1222) Bishop Adam was burned to death for doubling

the customary payment. Certain Skatts were probably granted among the

earliest provisions for religious uses, but the indiscriminate

appropriation of those of Church-lands and others probably commenced

when the Scottish Bishop, Thomas Tulloch, combined the powers and

opportunities of Bishop, Governor and Collector of Royal Revenues,

during the non-investiture of Earl William (1422–34). With possessions

so extensive, a jurisdiction over their own lands almost unlimited, and

an influence dreaded by all in this world, as all-prevailing in that

which is to come, the Bishop could cope with the waning power of the

Jarl as easily as other Prelates of the Scandinavian Church could defy

the Crown. Safe in his Palace of KIRKWALL or his stately Castle of

NOLTLAND (his _Land of Leisure_, his Episcopal _Buen Retiro_ or _Sans

Souci_), he was within his own domain as powerful for good or evil as

the Crown or its Donatary, but Orkney never tasted the full bitterness

of oppression, till the powers of both were united in such hands as

those of Bishop Thomas, or his kinsman and successor William Tulloch,

who filled the See at the date of the Impignoration, and was rewarded

for his supple usefulness by a favourable Tack of the Earldom and Royal

revenues. It was fatal to the interests and independence of Orkney,

that, at such a crisis of transition, the power to interpret and fix the

existing and future rights of parties should have been intrusted to such

an arbiter. His ambition as a Courtier, his interest as a Churchman, his

partiality as a Scotchman, and his education as a Canonist and feudal

lawyer, all united to bias his decision of the questions at stake

between the Scottish Crown and its Scandinavian subjects—between Feudal

principles and what were to him the barbarous anomalies of Odalism.

Able, subtle and plausible, he was equally conversant with every

stronghold of Feudal or Canon law, and every weak point in the Odal

system. Scotland could not have found a minister more skilful or less

scrupulous in turning its new acquisitions to advantage. If he somewhat

aggrandized his benefice at the cost of the Crown’s Estate intrusted to

him, he largely enriched both at the expense of the Odaller, on whom he

accumulated new burdens, teinds, services and escheats, with such

ingenuity, that his successors in oppression could hardly “better the

instruction” by one original idea of extortion—one impost which could

not be traced to some suggestive innovation of Bishop William.

The ODALLERS and ODAL-BORN were the COMMONS of Orkney and Zetland—the

ROITHISMEN and ROITHISMEN’S SONS—the GÖFUGAR and GÆDINGAR, who

constituted the numerical strength of the Althing. There is no class in

Europe exactly analogous to this—the ODALS-MADR, BONDI or

_Peasant-Noble_ of Orkney and of Norway—but perhaps the Hindustani

scholar might trace some curious parallels in the Tenures and treatment

of the landowners of Upper India. He was a Peasant, for he tilled his

own land, and claimed no distinction among his free neighbours; but he

was also Noble, for there was no hereditary order superior to his own—as

an ODALS-MADR with RŒDI, EIGN and SŒMD—_Master of his Household, his

Goods and his Honour_.[2] The King might wed the Odaller’s daughter or

match his own daughter to the Odal-born without disparagement, for he

himself was but the Odal-born of a larger Odal. The Jarl might be deemed

less free and therefore less noble, for he owed something to the grace

of a human superior. The Bondi in his Odal was _sui juris_, and in the

one-chambered Parliament of the Althing, had a vote and voice as

potential as King or Jarl, who often, when consulting the humour or will

of the Odallers, were bearded and thwarted by the independence of some

Thorkel Fostri, Magnus Havardson, or Sigurd of Westness. The King might

enforce the military service of the Jarl—the Odallers owned none to

either of them. Nothing short of actual invasion entitled the Jarl to

call them to arms by the Ward-fire, and with all their passion for the

sport of war, many a right and immunity they won or redeemed, as the

price of their consent to some foreign Viking-för.

Footnote 2:

The three legal distinctions of Odal-rœd consisted of RŒDI,

_dispensatio rei œconomici_; EIGN, _possessio_; and SŒMD, _honor_,

_decus_—the “Royth, Ayning, and Saming,” so common in Orkneyan titles,

and so puzzling to legal Antiquaries.

The ODALSJORD consisted of the TUN or _Town-land_ with its BOL (_Head

Bull_ or principal farm), enclosed by its TUN-GARDR (_hill dyke_), which

separated its GARTH (_Infield_) from its SŒTTUR or HAGI (_out pasture_

or _hill_). Every enclosure from the Sœttur became a QUI (_Quoy_), which

if encircled by an extension of the _Tun-gardr_, became a _Tumale_, or

if again abandoned to pasture, became a _Toft_. It is doubtful if these

later additions, the _Quoy_, _Tumale_ and _Toft_, enjoyed at any time

the same Odal immunities as the original possessions—the _Tun_, _Bol_

and _Garth_; but there is not a doubt that the first Odaller occupied

the _Tun_ and used the _Sœttur_ by the same Odal title, unwritten,

unburdened, inalienable, and divisible equally among the Odal-born. In

this division each _Garth_ or _Quoy_ might become the _Head Bull_ of a

new Odal, with the same Odal-ræd, a share of the Infield, and a

proportionate right to the common _Hagi_ or _Sœttur_, in which every

intruder paid to the _Tun_ a HAGA-LEYFI for leave to pasture. The union

of several towns constituted a HREPP or _Tribe_, with its local Court or

HREPPA-STEFN, the members being bound together as HREPPSMEN or

SKATTBRÆDER, sharing together the pasture of the MOAR or SKATT-HALD, and

the TOLL-BER-SKATT exacted from strangers; and a combination of such

_Hrepps_ or _Skat-halds_ formed a HERAD or THING, which in time became a

PARISH. But equal and independent as they were, each secondary Odal

retained a Suffragan regard for the primal Odalsjord, which gave name to

the _Tun_, _Hrepp_ or _Scat-hald_, and the Odaller of the _Garth_ or

_Quoy_ respected and acknowledged in the Odaller of the _Bol_ or _Bu_,

the HOFDING or Chief of the HREPP and SKAT-BRETHREN, as naturally as the

Tacksman and Bol-man felt their inferiority to both.

The Odaller owned no vassalage to King, Jarl, Lawman or Hofding, but

with characteristic love of system, and deference to lawful authority,

he yielded to each in his degree the obedience of a subject; not the

personal devotion of the Celtic Clansman to his kindred Chief, but the

federal subordination of a Gothic FRIBORINN to the Executive Presence of

those Laws to which he himself had consented as a Thingman. He owed

neither rent, duty, nor service for his Odalsjord, but as a subject and

Thingman he was liable to various assessments for the public service. Of

these the earliest and most important was the SKATTR or _Land Tax_,

first imposed by Harald Harfagr as a tribute from all the Occupied Lands

of his kingdom or colonies, towards the expenses of the State and

revenue of the King. LEDANGR or LEANGR, another Tax for public service

and naval equipment, was paid in Shetland (where the people and customs

have always been more purely Scandinavian), but not in Orkney. The

THING-FÖR-KAUP, the ancient fee of the Lawman for his duties at the

Thing, and the VOTN-TEL, or fee of the Underfoud for telling the votes

and summing up the evidence of the Vard-thing, were early assessments.

But when or how the Odallers submitted to the imposition of TEINDS is

doubtful—probably when St. Rognvald established a fitting hierarchy for

his new Cathedral in the twelfth century. The SKATT, TEYND, FÖR-KAUP,

VOTN-TEL and LEANGAR, were the only payments exigible from the Odaller,

though they severally became the foundation of every subsequent

exaction. The denominational proportion was permanent, but the amount

and form of payment was altered or augmented according to local

circumstances. Though nominally valued in Marks, Ures or Pennies, the

taxes of Zetland were paid in Wadmal, Oil or Fish, the produce of its

Skathalds, rocks and seas, and those of Orkney in Butter from its

pasture, with augmentations or commutations of Malt from its advancing

culture, all weighed and measured by native standards of Norwegian

origin, and apportioned by authority of the Thing according to the

ancient valuation of Hacon the Fourth (1263), which has strangely

subsisted for nearly six centuries without suggesting or affording to

Crown or Donatary an opportunity of oppressing the Islanders profitably.

It would be difficult to trace each successive change in the condition

of the Odallers, to tell how their Odals, impignorated to Torf-Einar

Jarl for their share of the Mulct for the slaughter of Halfdan Halœg

(930), were redeemed from Sigurd Jarl by their voluntary service in his

Irish wars (1014); or how, by the gift of a mark for each ploughland to

Jarl Rognvald’s stately Magnus-Kirk, they purchased an immunity from

confiscation (1130), which they forfeited by rebellion against King

Sverrer (1196). But Odal law and Odal influence declined more rapidly

and continuously with every succeeding race of Scottish Jarls, as each

Athol, Angus, Strathern and Sinclair, came attended by clansmen and

dependants, the ready tools of the fraud or violence of their chief; as

Scottish Bishops followed to the prey, lawyers rather than divines,

willing to instruct brute force with clerkly subtilty, and skilled in

the devil’s logic to warp even the Divine law into oppression. Even the

Lawman, once guardian of the common liberties, and still expounder of

the Book of the Laws, was generally some Scottish settler, some Cragy,

Hall or Irving, owners of Odal land, but not by Odal-ræd—who, ignorant

of Odal law, misinterpreted its principles, and misapplied its terms

according to Scottish ideas, and introduced written deeds and Scottish

forms, in feudal distrust of an undocumented title. Under such combined

influences of ignorance and interest, every generation saw some

principle modified, some right invaded. Thus each distribution of Odal

heritage came to need the sanction of a SHYND or DOOM OF ERFFD from the

Thing and Underfoud, equivalent to a Scottish service, and instead of an

equal share, the eldest son claimed the Head Bu, and each daughter was

restricted to half a son’s portion. The rights once inalienable from the

Odal-born, became the subject of Impignoration, of Forfeiture, of

Donation to the Church, and of Alienation on the ground or legal fiction

that the Odaller was too poor to retain, or the Odal-born to redeem

them. The legal term of Redemption was gradually shortened, and its

conditions made more stringent, till finally a modification of the

Shynd-bill in presence of the Thing was alone necessary to legalize the

purchase, sale, and transference, of almost every Odal right, to evade

the claims of the Odal-born, and to give to the Scottish purchaser the

un-odal security of a written title in his own language—a combined form

of Disposition and Sasine.

Six centuries of Odal sub-division had minutely intermingled the lands,

rights, and privileges of every Townland. At each succession the

Odalsjord was shared among the Odal-born, male and female—the Jarl

claimed for himself or for the Crown all lands forfeited and unredeemed,

and seized as _ultimus hæres_ every inheritance lapsed or unclaimed—the

Bishop asserted the Church’s rights to the gifts of the pious, a share

of the forfeits of the guilty, the teinds of all, and the _corban_

perpetuity of every indulgence once permitted to a Churchman—and

Scottish settlers claimed Odal lands and Odal rights by descent,

affinity, or purchase. Thus the Odalsjords and their vague and customary

pertinents were mixed in alternate patches, ridges or furrows, not only

with other Odals, but with the claims of Jarl, Bishop or settler, as

undefined, but more arbitrarily expansive. Even before the Odallers’

final change of masters, two centuries of such foreign and native

influence had prepared the way for such a revolution, by modifying his

privileges, altering his customs, and effacing much even of his own

memory of their origin and traditions. But his spirit was still

unbroken, he was still a Thingman, his order was still that of the

Gofugar and Gœdingar of the Sagas, the _proceres communitatis_, whose

wealth and influence pointed them out as the mark of the oppressor.

Their Odal lands, pertinents and immunities, were still the field whence

lawless power could reap a golden harvest, and more than a century of

Scottish oppression was still required to level the Peasant Noble of

Orkney with the Tacksman or Husbandman of the Earldom or Bishopric.

The only class which remains to be noticed as interested in the change

of sovereignty, is the _Unfree_—that large body possessing personal

freedom (for slavery had gone out with the Vikings) but no political

rights as Thingmen—the Tenants of the King, Jarl, Bishop or larger

Odallers. These were either BOLMEN, _tenants at will_, or LEIGU-MEN, _by

tack or assedation_, paying to the proprietor a LANDSKYLLD, _land mail

or rent_, and EYSETTER and LANDSETTER-KAUP, or its Scottish equivalent

of _grassum_, on each renewal of their tack—with all the other burdens

of Skatt, teind, &c., sometimes besides, sometimes included in their

land mail of money, grain, butter or live-stock, and certain prædial and

personal services of mills, peats, furing or ferrying, &c., mostly of

Scottish origin, and exigible according to the caprice or wants of their

master.

Such were the condition and powers of Thing and Thingmen—such the land

rights of King, Jarl, Bishop and Odaller, at the date of the

Impignoration; and when Christian (28th May 1469) addressed a letter to

the Communities of Orkney and Zetland, desiring them to pay obedience

and Skatt to the King of Scots till redeemed by the King of Norway, he

no doubt intended, and his subjects hoped, that it was but a temporary

transfer of the sovereignty of the Islands, to return to his Crown

unblemished and unchanged, like his often pawned metropolis. But the

Scottish Government entertained very different views of the nature and

duration of its rights and powers; and from the first, no resource of

law or chicane was left untried to fortify and perpetuate its defective

and redeemable title. By a series of transactions (from 17th September

1470 to 16th May 1471), the Crown in exchange of certain lands in Fife,

and a pension of 40 merks, acquired from Earl William an irredeemable

title to the Earldom estate, and _jus Comitatus Orchadie_—an Act of

Parliament annexed to the Crown the “Erledome of Orknay and Lordship of

Schetland, nocht to be gevin away in time to cum to na persain or

persainis, excep alenarily to ane of the kingis sonnis of lauchful bed”

(20th February 1471), and the Archbishop of St. Andrews was despatched

to Rome, to invoke the solemn benediction of Pope Innocent VIII. on the

Impignoration and subsequent transactions, as the seal of Heaven’s

sanction upon the completed Revolution.

It is a strange ingratitude in Britain to abjure the Jurisdiction of the

Pope; while so many of her original titles rest solely on his

authority—improved perhaps by force, as in Wales—by fraud, as in

Orkney—or by a happy combination of both, as in Ireland.

The Scottish Crown had now a Redeemable title to the Sovereignty of the

Islands with the Skatts, Fines, Forfeits, and Jurisdictions of the Kings

of Norway under Wadset, for a principal of £24,166, 13s. 4d., and

subject of course to a Count and Reckoning for its intromissions, which

would show how soon and how often that sum has been paid—principal and

interest—by the Revenue drawn from the Islanders. It had also acquired

an Absolute and Irredeemable Property in the lands, males, and services

of the Earldom; but to the lands of the Bishop or Odallers it had no

other pretentions than those included or implied in the rights of

Sovereignty. To extend over these free domains the claims of Superiority

or Property, to confound the titles Redeemable and Irredeemable, and to

frustrate the power of Redemption by effacing all distinctive laws,

customs and tenures, required time, patience and adroitness in invading

rights and evading claims; and the gradual substitution of feudal for

odal law, and the degradation of the Scandinavian Countries of Orkney

and Zetland to a Scottish County and Lordship, was the stealthy process

of the next century and a half.

The absorption of the Bishopric and Kirklands (commenced without a

shadow of title, and in the infancy of public opinion) has been so slow,

silent and serpentine, that their final assimilation as British property

is an act of the present reign. The first advance bore the harmless form

of a courteous recognition of the Bishop’s rights by his new Sovereign,

in a charter of Regality (10th October 1490). The assumption of a

concurrent sanction of the Norwegian presentee of the Kirklands

(1491–2), was followed by the sole presentation (under Papal Sanction)

of a Commendator and Successor to the Bishop (8th April 1498), and

shortly afterward by the defiant appointment of an Archdean of Zetland,

with a protest against “the temerity and presumption” of the Danish

Presentee (8th January 1501–2), and in the civil feuds which long shook

the Norwegian throne the Scottish Patronage of the See of Orkney was

thenceforth undisputed. The right to dispose of the Church rents during

a vacancy (2nd March 1559), and to confirm the Feu Charters of Church

lands (1560), flowed naturally from the Charter of Regality; the Act of

Annexation (29th July 1587) seemed a necessary precaution against the

rapid spoliation of the Church; and the Excambion of Earldom and

Bishopric (4th October 1614), was too obviously beneficial to both to

look like usurpation. During the convulsions of Church and State in the

seventeenth Century, the Bishopric was repeatedly applied to secular

uses; but the final act of appropriation was that which established

Presbytery (22nd July 1689); the Church lands were vested in the

Scottish Exchequer, and ultimately transferred to the British Board of

Woods and Forests, by whom, in Imperial contempt of all nationalities,

Scandinavian or Scottish, the Orkney Bishopric has been sold (1854–56),

and the price expended in the adornment and luxury of London.

The attacks upon the rights and liberties of the Odaller required less

delicacy, and were conducted with less decorum, for he stood defenceless

in his isolation. All who might have made common cause with him had been

bribed into complicity against him; the Danish King, by promises; the

Earl, by grants and pensions; the Bishop, by present preferments and

future hopes; and even Kirkwall was seduced from native interests by its

erection into a Royal Scottish burgh (31st March 1486). The very name

and traditions of the Odalsmadr secluded him from the sympathies of the

Tacksmen or Tenants, a class more favoured by the higher powers because

more profitably open to arbitrary exaction. To reduce both to the same

level of easy oppression under form of law, was the first object of the

Government; and the first duty which the Scottish King imposed upon its

new subjects, the Earl and the Bishop, was the compilation of a RENTALE,

modified (with a difference) from the ancient SKATT BOOK, and embracing

all the lands and burdens of Orkney and Zetland, with a studied

confusion of Odaller and Tacksman, of Odal and Feudal, of Skatt and Land

male, aggravating every payment that had ever been made under any

circumstances, and adding every exaction, prestation, or service that

could be suggested by feudal lawyer or canonist. But however justly the

Odaller might complain of the new and heavy burthens of the Rentale, of

its abrogation of his rank, its evasion of his claims, invasion of his

rights, and imposition of degrading services, other secret and inherent

agencies, as hostile and less suspected, were working the downfal of the

Odal system. Like every human attempt to curb individual passions by

social laws, it had seen and outlived its day of usefulness; but every

creed is dear to those nurtured amid its influences, and a generation

which remembers the fanaticism of Whig and Tory, and still pants with

the contest of Protection and Free Trade, has no right to smile at the

long struggle of feudal prejudice or the longevity of Odal dotage.

Oppressions of the Sixteenth Century in the Islands of Orkney and Zetland From Original Documents · 第 2 / 14 段