SOME CONCLUSIONS ABOUT ORKNEY (2)

Under the terms of the Impignoration, itself probably illegal because King Christian I seems to have acted unilaterally without consulting the Norwegian Rigsraada [state council] [Mooney n.d.], the administration of Orkney passed to Scotland while sovereignty remained with Norway until such time as the pledge was redeemed. No time-limit was set and the redemptory sum was fixed at 50,000 florins of the Rhine - a paltry £24,166, 13s. 4d. according to David Balfour [Edinburgh, 1860]. During Scottish administration, governance of Orkney was to conform to existing Norse custom and law. This was codified in the Norse Lawbook which was “corrupted, and ultimately (it is said) burnt.” [Drever n.d. See further Mackenzie p.36] This destruction, together with that of the Norse Rent Rolls, was the culmination of sustained attack by successive despots on the rights of udallers the better to mulct maximum profit from territory regarded by its ‘guardians’ as their personal fiefdom. Their aim to eradicate udal law nearly succeeded, but not quite.

Udal-land is such as the owners have in All-hood, acknowledging none but God alone for it. Latin writers call this Alodium, or Alodum; the French and English Alod or Aleud, the Germans and Scandinavians Aoidal, Audal, Othel or Odal; and the Orknay [sic] men and Shetlanders, Authel, Uthel or Udal: A compound of the Tuetonick [sic] Ode, signifying propriety or possession, and of Ole or Ale, which in the same language signifies ancient. (Eccardus ad leges salicas, in voce Authumnia.) And thus by an Udal or Aleud, an Odal or Alod, is meant an ancient inheritance, patrimony or possession.
The owners of these lands of inheritance were by the Germans called Othel-men, and by the Anglo-Saxons Edel-men. In Norway they are called Odal-men, and in these islands [i.e. Orkney and Shetland] Authal-men, Uthel-men, or Udal-men; a name (says Eccard in loc. citat) equivollent to noblemen. [Mackenzie 1750 - and so say all of us! The somewhat erratic Italicis are as in the 1836 edition.]

Odal law is not just a historical oddity; it continues to hold supremacy over Scots law in Orkney and Shetland. In 1567 an Act of the Parliament of Scotland was passed allowing the Norse laws of Orkney and Shetland to prevail over the Scottish common law which was, after all, no more than was agreed at the time of the Impignoration. This remains the position which Scottish Courts are occasionally forced to acknowledge. Two 20th century cases exemplify the sublime and ridiculous extremes of what odd bedfellows udal and feudal rights make.

One major difference from Scots law is the udal right to ownership of the shore which extends not just to the shore-line above high water but includes the lowest point of the ebb, [the LAT or Lowest Astronomical Tide] and possibly beyond to a hazily defined point, sometimes referred to as the marebakke, where the foreshore becomes steep and beyond a man's depth, or the distance a man could cast a net from the ebb-line. It is common for udal titles to extend “from the lowest of the ebb to the highest of the hill” and therefore to include the foreshore within the grant.” [Scottish Law Commission 2001] This was important as it ensured a right of access to load boats, by wading human porterage or by horses, from any shore without a jetty. It also became of considerable significance in laying pipelines and cables which was brought home to the Occidental Oil Company and the Crown Commissioners in an important case in the mid-1970s when Occidental was constructing its pipeline to Flotta. It negotiated with the Crown Estate for rights to cross the foreshore at the end of the 4th Barrier at Cara without realising that the Crown has no authority over the intertidal zone in Orkney and therefore no legal right to try and extort payment for its use. “Accordingly, where a udal title includes the foreshore, the Crown has no proprietary rights in the foreshore... The Crown still has an interest in the foreshore, but only as protector of the public rights.” [Scottish Law Commission 2001] When the landowner successfully asserted his udal rights, the Crown had to relinquish its ‘royalties’ and refund their charges to the udaller.

At the other extreme was a case that came to court around 1910 over the Mute Swan. The Crown asserts ownership of all mute swans purely on the basis of having passed a law to that effect, the preposterous 1482 Act of Swans, but this was challenged by a Kirkwall lawyer who, accompanied by his friend, the Procurator Fiscal, went to the Loch of Harray and shot an unfortunate swan. The case went to the High Court and the Crown lost because, in Orkney, swans are the property of the people. As for the swans, they remain mute.