the rights of man as an individual, or even as a member of society in
its primeval or patriarchal form, of a few families scattered far apart,
with intervals of wild solitude, with the sea for their march, and the
mountain for their landmark. But as the rights and obligations of the
man and the family became complicated with those of the neighbour, the
citizen, or the subject, society soon outgrew this simple code. Each new
social element required some new modification; every change, as by an
inherent principle, tended to concentrate in the State, or its Head, the
rights and powers of the individual; the Odaller, whose free
institutions have taught freedom to the world, was cherishing a system
as fatal to liberty as that which he despised, and Feudalism in its
vigour was scarcely more favourable to the growth of despotic power than
Odal-ræd in its decay. In both the evil might have been checked, by
opposing to the invasions of tyranny the resistance of a powerful
aristocracy, of an influential middle class, or of the rival supremacy
of the Church. But when the Impignoration let loose the conflict of
legal systems upon Orkney, the Scandinavian Crown, by substituting
primogeniture for Odal succession, had grown so strong as to absorb the
powers and possessions of the Jarls, who had become the mere Lendermen
or Tacksmen of the Royal revenues. The Church, which more than once
nearly overmastered the Scandinavian Crown, was in Orkney its humble
_servus servorum_—more disposed to court its favour by servile
complicity, than to defy its wrath by an uncourtly defence of freedom.
The collective influence of the Thing was no defence—its free councils
and jurisdictions had been undermined by insidious innovation of forms
or terms, or finally uprooted by masterful violence. Successive
generations of Odal subdivision had so reduced the wealth and weight of
the middle class of Peasant Nobles, that it was but a question of time
when the heirs of the most influential Odaller should make an
infinitesimal sub-partition of the last zowsworth of his Odalsjord, and
sink into poverty, without means of independence or self-defence against
oppression or encroachment. Unfortunately, the peculiarities of his
rights long survived his power to defend them, complicating his
relations to his new feudal masters, and adding to his difficulties,
legal and illegal, that of instructing a foreign feudalist to plead his
cause before a foreign judge, whose decisions, forms and language, were
as strange to him as his laws, usages and terms, were barbarous and
uncouth to them. Eloquence was the most popular accomplishment of the
Odaller, and he was wont, as Thingman and Umbothsman, to discuss the
law, and defend the rights of himself and others—but he was overwhelmed
by legal principles which he did not know, in a language which he could
not speak; and he soon found that the vague and customary claims, and
unwritten tenure of his fathers, were no match for the defined rights
and pretensions of the pettiest neighbour possessing by the _litera
scripta_ of a feudal title, still less of the powerful Feudatory
claiming by Royal charters, and aided by the ingenuity of the
professional lawyer, trained and practised in the logic of the schools.
As if to insult the dearest prejudices of the Odaller, every feudal
aggression was held forth as a boon of reform, every change as an
amendment of his barbarous code, every abrogation of a cherished right
as the removal of an antiquated abuse—while the promised improvement was
but a delusion, and the new abuses were more burdensome than the old.
Left to itself therefore, Odalism must have decayed by the natural
development of its germs of self-destruction; but the mere decline of
the abstract principle, or even the impoverishment of the Odaller, were
no object to the Scottish Government, except as tending to its own
enrichment at his cost. To make present and growing profit of the
defects of the Odal title—to drive the possessor into the refuge of a
feudal tenure, and to obviate the Redemption by Scoticizing every law or
custom derived from the mother country, were now the objects of Scottish
policy, and an able agent was found in Bishop William Tulloch, who (27th
August 1472) undertook to collect the Revenues of the Crown for a
Commission of 20 per cent., and a tacit connivance in his unquestioned
appropriation of all “unconsidered trifles,” and in his extra
extortions, “ony maner of way,” beyond his Tack duty of £366, 13s. 4d.
Deeply embued with feudal prejudices, Tulloch affected to see no legal
principle in a code of customs so anti-feudal. Heritage, without
Superior or Vassal, Payment or Service, Charter or Sasine, or any of the
essentials of a valid feudal title, was to him a mere traditionary
usurpation, subversive of lawful order and authority. The Odaller was a
mere squatter, with, at best, a possessory title, liable to arbitrary
exaction limited only by his capacity to pay, and with prescriptive
custom as his only claim to differ from the annual Tenant or triennial
Tacksman. To obliterate all such distinctions, the lands of the Odaller
and Tenant were registered in one indiscriminate Rental, with a studied
confusion of rights Odal paying Skatt—and rights extra-Odal paying
land-male. The Thing-För-Kaup of the Odaller, and Gersomr of the Tenant,
were claimed as the nominal equivalent of the feudal Forcop and
Grassum—Skatt, Wattel, Leidangr, and every Odal tax without a feudal
synonyme, were exacted as a rent—every feudal claim or casualty without
an Odal name or equivalent custom, was imposed and extended to its full
feudal limits—while every Odal customary right of pasture, fishing, or
sea-beach, was limited, taxed or punished as a feudal purpresture. The
whole district was indiscriminately subjected to the prædial and
personal services formerly due by Tenants only, and new burdens of
Hawkhens, Balliatus, and Chettry, were laid on all by the arbitrary
authority of the Bishop, whose powers of excommunication, infamy, and
penal forfeiture, were infinitely enlarged by the rigour of canonical
rules and prohibitions, quite new in a Scandinavian diocese. Neither
could the unfortunate Orkneyan escape from this grinding tyranny by any
appeal. His oppressor ruled the Bishopric as Bishop, and the Earldom as
Tacksman, with regal powers—the Thing was divested of all criminal
jurisdiction—the Lawman was the stipendiary servant of the
Government—the Kirks were filled with Scottish Priests, the creatures of
the Bishop, as rapacious and pitiless as himself—the Odallers,
collectively or individually, were too poor to purchase, and too
powerless to command forbearance, favour, or justice—and what Donatary
was ever able to resist the combined temptations of plunder,
helplessness, and opportunity?
The Tack of Bishop Tulloch lasted for seven years, followed by six of
similarly irresponsible Episcopal rule under Bishop Andrew, the
presentee of John of Denmark and probably a Scandinavian. The
appointment of Henry Lord Sinclair as Tacksman of the Crown-lands in
Orkney (1485) and the recognition of Sir David Sinclair as the Danish
representative and Fowd of Zetland (1491), gave hope of better times.
After the tyranny of strangers, the Orkneyans were prepared to rejoice
in the return of kindred rulers, and Sir David was the son and Lord
Henry the grandson of their last Earl William. With the tastes and
accomplishments, and some of the vices of their time, the Sinclairs were
popular in the Islands, and favourites in the Courts of Denmark and
Scotland. They were in the main, just, humane, and generous, they
exposed unsparingly the rapacity and frauds of their Episcopal
predecessors, relaxed their intolerable imposts upon some of the
districts, redressed much individual injustice, and liberally relieved
the impoverished population. It was probably by their influence that an
Act of the Scottish Parliament (1503) to annul all foreign laws within
the realm, was so altered as to spare the native laws of Orkney and
Zetland. But the sapping process of Scoticizing every Orkneyan
institution, the interchange of names and things, Odal and Feudal,
without real equivalence, went on unchecked if not encouraged by the
Sinclairs. A comparison of their successive Rentals shows little change
in the names, nature, or amount of Odal payments, beyond the occasional
remission of some overcharge, or the record of some new escheat; but
there was a large increase of the total burdens of the country, chiefly
at the cost of the Tenant population. Their rule of half a century was
distinguished by no formal abolition of unjust innovations, no
restoration of Odal liberties and immunities; but by the ceaseless,
silent change of language, forms, and manners, traced perhaps in a
clause or word of some feudal parchment or mouldering Thing-doom.
From the death of Lord Sinclair at Flodden, his widow, Dame Margaret
Hepburn, held the Crown lands in Orkney and Zetland at a rent of £433,
6s. 8d., by successive Tacks for nearly 30 years without interruption,
but not without disturbance. The Odallers knew too well the evils of
alien rule; but a female ruler was a new indignity, and even in the
second year of her widowhood (1515) they had elected as their leader and
virtual Governor, James Sinclair the possessor (though illegitimate) of
most of the wealth of his family, and the inheritor (as a born and bred
Orkneyan) of all its popularity. On the plea of a general devastation by
the English fleet in Orkney and Zetland, they withheld Lady Margaret’s
Rents for three years (1523–5), forced her son Lord William to surrender
her castle of Kirkwall and escape into Caithness (1528), and on his
return next year with an army of Scots, defeated and took him prisoner
at Summerdale (7th June 1529), slew his ally, John Earl of Caithness,
with every man of his followers, beheaded Nicol Hall the Lawman, and
took forcible possession of the Islands. The Scottish invasion,
sanctioned as it was by the King’s Letters of Four Forms, cannot fairly
be attributed to the private ambition of Earl John or his allies. On the
other hand, it is equally improbable that Sinclair, the brother-in-law
of the Queen Dowager of Scotland, would have risked his Court interest
by heading an open rebellion against the King, or that the spirited and
sagacious James V. would have pardoned wilful and violent rebels, or
rewarded their leader with legitimation, lands and knighthood. The
subject is beset with difficulties, but the most probable conclusion is,
that the Orkneyans were deemed excusable in resisting to death a
combination of circumstances so formidable to their independence, as the
King’s reported purpose of giving a Feudal Lord to Odal Orkney, followed
by the alliance of the Donatrix with Earl John, the zealous feudalizer
of his own Earldom. James having asserted his dignity by renewing Lady
Sinclair’s rights and by signing the dreaded but ineffective Feu Charter
to his illegitimate brother, James Earl of Moray (1530–1), gave but one
more feudal Grant, and that was to Sir James Sinclair (1535). This Grant
containing every feudal right, and the first infraction of Odal
succession by a clause of single primogeniture, was perhaps the purchase
of the independence of the Odal leader—begged and accepted with a
selfish inconsistency, mournfully explained by his madness and suicide
within a year. But the King’s sagacity had found the pear not
ripe—Odalism was sick, but not dead—the project was deferred, and no
open attempt was renewed to feudalize the Islands for another
generation.
The visit of James V. (August 1540), was the only presence of a King in
Orkney since Hacon IV. came there to die (1263); for the dying Maid of
Norway was brought to its shores (1290), only to find a hasty but more
permanent rest in its Cathedral. Bishop Maxwell entertained the Royal
Guest, not in the ancient Palace which had sheltered the death-bed of
his Northman ancestor, but in the more modern Episcopal residence within
the City of Kirkwall, to which he had lately renewed its Burghal Charter
(8th February 1536), and where he is said to have held a Thing in the
very ancient tenement still dignified as the Parliament Close. He was
not hindered by the courtesies of the Bishop from seeing and correcting
his negligence or avarice, in leaving so many kirks and benefices
vacant, to the obvious increase of his own emoluments; and though there
was now no Sir James Sinclair to instruct or mislead him as to the wants
or wishes of Orkney, the shrewd King of the Commons saw and heard for
himself the value of the Islands—the danger of leaving them to
irresponsible and subaltern oppression—the undue profits of the
Donataries and the loss to his Crown and Revenue. At a time when the
gross Rental of his metropolitan County of Fife was only £1348, 10s., a
province yielding to the Donatary a Rental of £1382, 10s.—to the Bishop
£1251, 2s. 6d., and probably not less to the Odal Proprietors—was a
jewel of his Crown not to be lightly given or thrown away. All Grants or
Tacks of the Revenues and jurisdictions of Orkney and Zetland were
forthwith revoked, and the Islands re-annexed to the Crown _jure
coronæ_, to be henceforth inalienable except by Act of Parliament (10th
December 1540)—an exception and safeguard of Orkneyan liberties, as
specious as the former restriction to the legitimate Blood-Royal, and as
little regarded. Lady Sinclair’s powers were thus rescinded, and in
spite of her protest (10th September 1541), were committed at a fairer
Tack Duty of £2000 to the unfortunate Oliver Sinclair, as one who could
be trusted both by the King and the Islanders (20th April 1541). James
probably designed to carry out this policy of annexation by such
temporary Commissions to Lieutenants and Collectors responsible to
himself. There were many Odal grievances which he could not know, and
much hard injustice which he could not cure; but the public
administration of Orkney would probably have been much amended, had he
lived to give effect to his judicious plans of reform.
It has been shrewdly said, that Scotland possessed “the wisest laws in
Christendom, and the worst administered;” for the best intentions or the
sagest acts of King and Parliament might be frustrated by some flaw of
policy, expediency, or Court favour. Under the weak regency of Arran,
some claim to the Islands was urged by the Queen Dowager, who appointed
as her Lieutenant-Governor, first a Frenchman named Bonot, and
afterwards the Scottish Earl of Huntly. The struggle of the Queen,
Regent, and Cardinal Beaton, for the power to misrule Scotland, was
mimicked on a narrower field by the contests and law-suits between
Bonot, Huntly and Sinclair, for the possession of Orkney, and with
similar results. Government was in abeyance or abandoned to the local
authorities, if the term can be applied where nothing reigned except
disorder. Respites and pardons for murder and violence are for nearly
twenty years almost the sole records of the Islands. Even the regular
collection of the inevitable Rents and revenues of the Crown was so
completely interrupted, that the appointment of Mr. William Mudy as the
Queen’s Chamberlain (10th December 1561) was met as a usurpation, which
nearly cost his life at the hands of a mob of Churchmen and others, who
had been fattening on the arrears and disorder accumulated on the land
for a fearful reckoning under the harsh rule and evil days which were
approaching.
The learned Bishop, Robert Reid, though he founded a school in his
Cathedral city, and made other attempts to tame his wild Diocese, was
driven to seek safer and easier duties elsewhere as a diplomatist and a
senator of the College of Justice. Adam Bothwell, his successor as
Bishop and as Judge, is only known to have once visited his See, from a
Feu Charter of Westray and Noltland Castle to his brother-in-law,
Gilbert Balfour (30th June 1560), remarkable as the first feudal Grant
since that to Sir James Sinclair, and the first of a series of Feus of
Kirklands, all containing the same insidious infraction of the equal
subdivision of Odal inheritance, in favour of a single eldest heir-male.
The wise policy of James V. to respect the native laws and liberties of
Orkney had been swept away by time; and the conflicting influences and
interests of the Reformation had surrounded his daughter with
Counsellors who thought only of turning to most profit the difficulties
of their Queen and country. Moray, as chief of the Reforming party, had
secured the lion’s share of the spoils of the Crown and Church for
himself and his brother-in-law Argyle, and their influence obtained for
his bastard brother, Lord Robert Stewart, a Feu Charter of the Islands
of Orkney and Zetland (26th May 1565), a gift exactly suited to his
character and capacity, as a sphere of safe and indefinite peculation,
unexposed to political dangers. This memorable grant was the first
express sanction of Tulloch’s policy of identifying the _libere
tenentes_, as the Odallers were styled, with the serf-like Rentaller of
the Scottish Crown, and was essentially as illegal as unjust—illegal,
because neither sanctioned by Parliament nor bestowed on a lawful
Prince, and unjust, because it disposed not only of the ancient Earldom,
Skatts, and actual property of the Crown, but of the Feudal Superiority,
Lands, and Services of the Odallers, which could be neither conveyed by
Norway, acquired by Scotland, nor bestowed upon a subject.
But their fate was still suspended for a little by accident or the
fluctuations of Court interest. The rise of Darnley was the fall of
Moray, and the cupidity of some new courtier searched out the inherent
flaw in Lord Robert’s title. His Government and Sheriffship were
conferred upon Gilbert Balfour of Westray, now Master of the Queen’s
Household (3rd January 1565–6), but subject to the native laws which
were again solemnly recognized by Parliament (6th December 1567), and
Lord Robert was partially consoled for his loss of Orkney by a grant of
the rich temporalities of the Abbey of Holyrood (16th April 1567).
In the same eventful year (12th May 1567) Queen Mary sought to grace her
last fatal nuptials, solemnized by Bishop Adam, with a wedding gift to
James Earl of Bothwell, of the Islands and Dukedom of Orkney—a
shortlived dignity of a month, forgotten in the immortal infamy of his
older title. On his flight from Carberry, he plunged like an angry
meteor from another sphere across his Northern Dukedom, leaving there,
as elsewhere, no traces but of evil. Baffled in Orkney by the opposition
of Balfour, his semi-piratical exactions in Zetland afforded the
precedent for the future annual burden of Ox-money, and he continued his
flight to Norway, chased like a hunted wolf by Bishop Adam, who, in the
new-born zeal of his pursuit of his fallen friend, was wrecked upon the
rock still named from his ship The Unicorn—the monument of his first and
last visit to his Northern Diocese—but the two Bothwells, Earl and
Bishop, have involved local history in a strange Comedy of Errors.
In the meantime, Lord Robert’s feu of Orkney (though not expressly
revoked) was presumed to have fallen by its own inherent nullity, and he
would probably never have resumed the attempt to make it effectual, but
for an opportunity of making it doubly profitable. Bishop Adam was a
Lord of Session, and had left the spiritual duties of his See to the
superintendent, Mr. James Annan, while he contented himself with
receiving its temporalities. By a mutually convenient exchange of these
temporalities for those of the Abbey of Holyrood (30th September 1568),
the Feuar of the Earldom of Orkney became also Commendator of the
Bishopric, with the combined powers of both, strengthened by the
countenance of his brother the Regent. To “stress the Odallers” was
henceforth the unchanging object of Lord Robert, by aggravating their
burdens in Weights and Measures of his own standard, increasing their
liabilities to Crown and Kirk in a Coinage of his own valuation,
multiplying the civil and criminal grounds of escheit and fine by
Enactments of his own, and finally, litigating the very title of the
impoverished Odal before Courts and Judges of his own appointment.
As Feuar of the Earldom, and Commendator of the Bishopric, he exercised
all the powers of an arbitrary landlord, by raising the rents to the
limits of the tenants’ endurance, with aggravations and breaches of the
triennial contract, feelingly detailed in the Complayntis. He oppressed
Churchmen and others into a compulsory surrender of their lands and
rights—suppressed the burghal liberties of Kirkwall and burned its
archives—aggravated the evils of Odal subdivision, by extending the
Sister’s part to a share even of the Head-Bu—abolished the little Odal
mills still traceable on every burn or VATN, and astricted all to his
own mills, with new Scottish burdens. Claiming the whole Commonties,
fisheries and sea-beach, he punished all use of them by native or
Stranger as a trespass—laid heavy Tolls and Customs on the numerous
fleet of Dutch fishermen and the Norwegian traders whose traffic to and
from the Islands interfered with his own monopoly, and found other
illicit profits in the sale of remissions for crimes, permissions for
single combat, and Licenses for exclusive traffic—in secret
encouragement and partnership with pirates, and in prohibiting
assistance to wrecks as an infringement of his pretended droits of
Admiralty. But a richer, if not a wider field for his cupidity, was
offered in the iniquitous grant of superiority over the _libere
tenentes_, and the power of subjecting the Odallers to all the lucrative
claims and casualties of feudal tenure. Every exaction of former Rentals
was enforced, every parish tax became a household or poll tax on each
parishioner, every occasional or special payment (such as Bothwell’s
forced contributions of sheep and oxen) was made an annual burden, every
service ever claimed from a tenant, and many new forms of Scottish
serfage, were laid upon the Odaller without appeal—for by the forfeiture
of Balfour the Sheriff, and gift of his escheit, Lord Robert was again
Sheriff and Foud, with power to call and pack the Lawthings with
creatures of his own, and to use or pervert the Law-book according to
his will or interest. By such pretended decrees, many Odallers were,
like Rendall of Gairsey, evicted without a chance of justice; some were
escheited for murder, theft, witchcraft, suicide, or “moving of a
march-stane,” others by the slower process of burdens or debts
accumulated till the arrear warranted Comprysing by him as creditor, or
Escheit as Superior—new enactments, new offences, new courts and new
fines, enriched the Sheriff and pillaged the Suitors. Not content with
multiplying the forms of exaction, with retrospective enforcement of
half a century of arrears, and compulsory second payment to himself of
sums already accounted for to the Royal Comptroller, he aggravated every
burden by adding a fourth to each standard of measure and weight,
replaced the inconvenient vigilance of the Law-rightmen by Weighers of
his own choice, and cried up or down the tariff and the coinage
according to his interest as buyer or as seller. To guard against appeal
or complaint, he enacted the penalty of death or escheit for crossing
Firth or ferry without his passport; and against any outbreak of native
despair, he was provided with a body of outlaws and broken men, living
at free quarters upon the plundered natives, and knowing no law except
the will of their present paymaster. Sea and land, Tack and teind, Court
and gibbet, Mint and Tron, Firth and Ferry, all were in the hands of the
Donatary. To such a power, supported by the public warrant of the Royal
Charter and the secret evidence of the Rentall, the Odaller had nothing
to oppose except the moral weight of ancient tradition, and a physical
force which had lost more by its divided poverty than it had gained by
increased numbers—and now the very Law-book and Thing of his Odal
fathers were made to doom away his liberties and his lands, in a strange
tongue, at the bidding of the Donatary.