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.