“ 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. ”

“ After a few struggles, the Islanders subsided in angry submission to the fraud and rapacity of their new rulers; and to a nation impoverished like Scotland by wars and misgovernment, Orkney proved in time a rich acquisition, if we may estimate the wealth of the victim by the annual plunder of 3000 head of cattle, 5000 bolls of grain, 6280 stones of butter, and 700 gallons of oil, extorted for centuries in kind or in value from Orkney alone, in addition to its proportion of the ordinary taxation of the kingdom, and exclusive of the burdens of Zetland. ”

“ 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. ”

“ It is true that there was in the Islands an anti-patriot or Alien faction, consisting of the Earl, the Bishop, and their Scottish dependants, who viewed the change as in every respect favourable to their own interests, but especially as offering in Scotland a nearer and more friendly centre of law and Court of Appeal than that of Bergen. But to the Islanders in general, there was nothing in the Revolution more galling to their pride, or more dangerous to their interests, than the imminent conflict of Feudalism with their dearly cherished Odal laws. ”

“ To illustrate this conflict of legal systems in connection with the documents now printed for the first time, I propose briefly to sketch the TENURE, RIGHTS, and BURDENS OF LAND in Orkney and Zetland prior to the Impignoration, and the alterations and encroachments made by Scottish rulers and Scottish lawyers in the sixteenth century.
In the primitive form of Scandinavian society, without trade, manufacture, or commerce, land was the only wealth, its ownership the sole foundation of power, privilege, or dignity. ”

“ 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. ”

“ The modern improver of the waste finds in every furrow the traces of an earlier tillage and the homes of a dense population; and contemporary rentals testify, that even while the Donatary was exulting in such universal appropriation, whole Districts, once tilled and enclosed, had been again abandoned to the rush, the heather, or the sand flood, overwhelmed by his new and intolerable burdens.
If any thing could have made more bitter the Orkneyan’s sense of oppression, it must have been the baseness of the oppressor. ”

“ The Un-free were those who, possessing no land, had no political rights, including not only Slaves, the captives of war or relics of the conquered Pechts, but Tenants and Dependents, personally free. But as the interests of all were more or less affected by the Impignoration and subsequent changes, the extent of the revolution may be best estimated by a successive consideration of the nature of Odh-al-ræd, of the system of Things and Stefns, and of the condition, rights and powers of the King, Jarl, and Odallers—freeborn Thingmen; of the Bishop, a Thingman by custom or courtesy ”

“ 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. ”

“ 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. ”

“ On the other hand, the Scottish King was an infant of five years old; the Government precarious; the nation weakened and distracted by civil feuds; the only power that could be sent against him, some one of the northern nobles, all of dubious loyalty; and only one generation had passed since Orkney had defied and defeated the whole available force of Scotland. Denmark was as willing to countenance as Scotland was weak to oppose his designs ”

“ 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. ”

“ Every interest was threatened, and every feeling wounded, in such betrayal by their natural rulers into the hands of hereditary enemies—exasperated by five centuries of mutual feud and outrage—despised as an inferior race for easy defeats and long subjugation—and hated still more as masters, foreign in blood, language, customs, and laws. ”

“ Earl Patrick succeeded to a fair inheritance, however heavily the malison of a plundered people might lie upon his father’s soul. Within the bounds of Orkney and Zetland the King was a name and not a power. As Justiciar and Admiral, Donatary of the Crown Duties, Skatts, Males, and Grassums, Tolls and Customs, Feuar of the Earldom, and Commendator of the Bishopric, the Earl was master of all by land or sea. ”

“ As no man could win or hold possession without the strong arm to defend it, every landowner was a warrior, every warrior a husbandman. King Sigurd Syr tended his own hay harvest, and Sweyn of Gairsay and Thorkell Fostri swept the coasts of Britain or Ireland, while the crop which they and their rovers had sown grew ready for their reaping. ”

“ 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. ”

“ From the confusion of terms of value, weight, and size,—of Mark and Merk—of Peningr and Penny—of Urisland and Uriscop—of Marklands in Zetland of 4, 8, and 12 pennies per mark—and of Pennylands in Orkney of 3, 4, 51⁄8, and 8 merks to the penny—so many difficulties beset this subject, that I rejoice that I am not required to attempt their solution; for the denominations of land-value still exist as fixed by Hacon’s Survey, practically undisputed by subjects or rulers—neither the ground of oppression nor the cause of complaint. ”

“ 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 xxxixOdaller, 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. ”

“ The relative share of the Odaller and Tenant in these new parish burdens is not expressed, but both must have looked back with regret to the worst of their ancient rulers, and watched with dismay the rising tide of Scottish oppression which was slowly but inevitably sapping their rights and overwhelming their liberties.
Of the taxes, rents, and assessments of the Rental, only a very small part was payable in money, and every coinage seems to have been current, though at an exchange often and arbitrarily fluctuating. ”

“ The Foud was originally the Collector of the King’s Skatt and Mulcts, first appointed by King Sverrer on the confiscation of Zetland (1196) ; but his duties were afterwards assimilated, but subordinate, to those of the Lawman, and the salary of both was paid by an assessment called Thing-för-kaup. The Thing and Thing-stod were sacred both to Christian and Pagan, as a sanctuary where all forgot their feuds and met unarmed, with a security which weapons could neither win nor maintain elsewhere. ”

“ It is not difficult to perceive Scotland’s objects in seeking, not only to be freed from the constant casus belli of a degrading tribute, disputed payments, and increasing arrears, but to acquire without cost a valuable addition of territory long coveted, and to convert a cause of weakness into a source of strength, by turning dangerous enemies into disarmed and profitable subjects. ”

“ Thus each distribution of Odal heritage came to need the sanction of a Shynd or Doom of Erffd from xxxivthe 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. ”

“ Each Donatary or Tacksman, aware of his precarious opportunity, took for granted all previous exactions, and sought farther profit in some mine of advantage hitherto unwrought, till the growing burden of extortion wrung from the Islanders a cry of oppression too loud to be smothered, and then the government sometimes disavowed or removed the indiscreet official, who could not conduct his pillage with decorum. ”

“ Unthrifty greed has loaded the Land with unjust burdens and undue taxation, has impoverished the Owners with unexpected claims and vexatious lawsuits, has often forced back the cultivated acres into wilderness and driven the cultivator to strive in freer lands for leave to live. ”

“ If to this aggravation of the Rental we add his revenue from Tolls, Customs, Droits, Escheat and triennial Grassums, and consider the forced labour, the diminished area of cultivation, and the doubled penal conversions for every deficiency of these impossible quantities, we may estimate the income of Earl Robert and the misery of the Islanders; though the Rentale pro Rege et Episcopo (1592–1600) , which exhibits the numerical increase of exaction, is silent as to his aggravation of the Weights and Measures. ”

“ But no misrule has yet exhausted the fertility of the soil, or crushed the energy, or worn out the patience of a people still struggling against an evil destiny, but still amenable as ever even to the semblance of lawful authority. ”

“ The very enormity of such anomalies makes it hard to believe them possible in a place and time so near our own, and harder still to persuade the nineteenth century, in its self-complacent admiration of the just and enlightened rule of Britain, that much of the evil still exists uncorrected and unredressed in this the twenty-third year of Queen Victoria. ”

“ The ordour of punissing of swyne ruting be the law of the cuntrie is this; Quhen ony man compleins upon hes nichtbor for ruting up of his corne or his medo with the swyne, the assyiss, after the probatioune and tryale tane of the scayth that is done to the complenar, decernis him in amendis, outher of corne or gerss, according to gude conscience, sa far as the scayth is provin; and giff it be the Kingis land that is ruted, the unlaw of the law that fallis to the sheriff is thre merkis Zetland payment, viz.—ane dolor; and gif it pertain to the kirk or outhale men, the Kingis unlaw is the less. ”

“ In making of ane law and statute, that no man shall come out of the country of Orkney and Zetland to complain upon any wrang or oppression done in judgement, or without, under the pains of escheating of the haill lands, life, and goods, whilk shall be pruven. ”

“ But when the adoption of primogeniture in the thirteenth century gave to the Norwegian throne a stability and consistency unknown to Odal succession, the royal claims became more exacting and more definite, as the Jarls and other Thingmen became, by Odal division and contest, less able to resist them. ”

“ In the first, Thair is ane dewitie, callit Leanger, quhilk the Comownis of Zetland payis zeirlie, followand thair wadmell, quhilk extendis to four Dence quhytis, or ane calff skin, with everie xxiiij cutteill of wadmell. Bot the Laird, sen his entress, hes compellit thame to pay to him, throw the haill cuntrie, for everie Dence quhyt, quhilk is thre halfpennies Scottis, ane babie, or ellis ane calff skin, quhilk is four tymes alsmikle as they war in use to pay befoir his entress: Quhilk thing, be ressoun of the uniuersalitie and pretendit perpetuitie, is ane intollerable oppressioun. ”

“ In inbringing of Hieland men and broken men in the country of Orkney, whilks were auld enemies and oppressors of the people of before, and causing them to sorn, oppress, and spuilzie the country, specially the Isle of Gramsay, and be stopping of countrymen to pursue them and put them af the land, alleging they were his own men and fealls, as will be pruven by the countrymen, whilk cannot be denied. ”