The simple rules and forms of Odal law might suffice to define and guard

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.

Oppressions of the Sixteenth Century in the Islands of Orkney and Zetland From Original Documents · 第 3 / 14 段