Part 3

The ancient estate of the Jarls lay scattered through every Island and 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.