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UDAL LAW AND CONTESTED HISTORIES OF LAND TENURE AND LANDSCAPE IN AND and contested histories of land tenure and landscape in Orkney and Shetland

Michael Jones Department of Geography, Norwegian University of Science and Technology NO-7491 , [email protected]

Key words: contested histories, landscape and law, land tenure, Orkney and Shetland, udal law

After settlement by c. 800 AD, Orkney and Shetland were for nearly 700 years un- der Norse rule, followed after transfer of sovereignty in 1468–1469 by 540 years of rule by and then Britain. Vestiges of Norse law — known as udal law — have nonetheless survived to the present. The paper illustrates manifestations of law in the landscape of Orkney and Shetland. It examines how ideas of udal law have been maintained in modern legal texts and public perceptions. Udal law has continued to be invoked in public debates about a variety of issues up until the 21st century. A tentative exploration is made of how conceptions of udal law have been socially constructed. This is related to two contested strands in the historiogra- phy of Orkney and Shetland, one emphasizing Norse influence and the other Scots influence. Based on an analysis of legal, historical and topographical literature concerning Orkney and Shetland, this paper illustrates how different interpretations of the history of land-tenure and landscape change reflect domination, resistance and contestation between different classes and ethnicities in the construction of histories of the islands.

Introduction with Scotland they have been under the Brit- I revisit here my paper presented in 1996 ish Crown since 1603. The isles became at the Dublin meeting of the Permanent Con- subject to the British Parliament after the ference for the Study of the Rural Landscape union of the Scottish and English Parliaments (PECSRL) on the topic “Scots and Norse in in 1707. Since devolution in 1999 they are the landscape of Orkney and Shetland — also subject to the re-established Scottish visible landscape and mental landscape” Parliament. Despite 540 years of Scottish (Jones, 1996b). Orkney and Shetland are the and British rule, Norse cultural influences are of Scotland (Fig. 1). They were still found in the isles. I have a long-standing colonised by Norse Vikings AD c. 800. They interest in traces of Norse law in Orkney and were transferred to the Scottish Crown in Shetland, and how they relate to landscape. 1468 (Orkney) and 1469 (Shetland). Along Here, I summarise my previous work on this

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Fig. 1. The location of Orkney and Shetland between Scotland and

topic and provide a view of the way forward. Landscape, law and popular I am particularly interested in differing inter- perceptions pretations of history, and associated popular conceptions that underlie understandings of Landscape and law the role of law in the landscape of the isles. Legal geography can provide a theoretical The first section of the paper recapitu- framework for studies of the significance of lates in part my previous studies illustrating law — both formal law and customary law, manifestations of law in the landscape of as well as popular perceptions of law — for Orkney and Shetland, and showing the extent the ways in which people make use of their to which ideas of survivals of Norse law — geographical environment. My own work falls known in the Northern Isles as “udal law” — within a North European tradition of research have been maintained in modern legal texts on the relationship of landscape to law, land and popular perceptions. The second sec- regulation and local customary institutions, tion provides a tentative exploration of how undertaken by geographers, ethnologists, his- conceptions of udal law have been socially torians, and legal historians (Jones, 2005). constructed, and how this is related to the Olwig (1996; 2002) has demonstrated the contested Norse and Scots roles in the histo- close relationship between law and the medi- riography of Orkney and Shetland. eval notion of landscape in and northern Germany. Landscape referred here

106 UDAL LAW AND CONTESTED HISTORIES OF LAND TENURE AND LANDSCAPE IN ORKNEY AND SHETLAND to the conditions and character of a land, Norse landscape narrative and a Scots land- including its traditions and customs. The scape narrative. landscape referred also to the organisation The Norse narrative includes excavated of things in a land through “things” — legal foundations of Viking longhouses, Norse for- assemblies and courts called ting in Scandi- tresses and palaces, and the 12th-century St navian. The activities of these landscape poli- Magnus Cathedral in . At Tingwall, ties shaped the material forms of the land- in Shetland, is an islet named the Law Ting scape. As a region, a landscape was a district , reputed to be the open-air meeting- in which the land was shaped by the regional place of the medieval Shetland law court. customs and laws. This is an example of the manifestation of the Law may be directly manifested in the law in the landscape both materially and im- physical landscape through buildings such materially through the surviving place-name. as parliaments and law courts, through signs Landholdings showing continuity from Norse and decorations alluding to law, through times are still thought of as “udal” holdings boundary markers, and through field systems (Fig. 2). Jetties with houses built on the fore- and land-tenure patterns. Manifestations shore, although dating from the 18th centu- of law and legal power in the landscape of ry, are known as lodberries in , from Orkney and Shetland can be related to both a hlaðberg, meaning loading rocks

Fig. 2. Udal and crofting tenant holdings at Coppister, Yell, Shetland. The middle house, called the Auld Haa, belongs to a small udal holding that has never been part of a large estate. To the left is Lowerhouses and to the right Da Kitchen, former udal holdings that became tenanted crofts in 1882 when the land was bought by a Lerwick merchant. The holdings consist of intermixed parcels of land separated by stone walls and fences. Photo: Michael Jones, 28.05.1986

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(Wonders, 1995), facilitated by the Norse lögum skal landet byggja”, meaning “By law concept that a landholding extends to the the land shall be built”, taken from Njål’s ebb, or low-tide mark. A Norse literary revival Saga and found in medieval Scandinavian starting in the 19th century led to the use law codes (Jones, 1996b) (Fig. 3). of Norse symbolism in decorative elements The Scots narrative includes the ruins of of buildings, coat-of-arms and flags. Lerwick Renaissance palaces and castles. The ruins Town Hall, from 1883, has external decora- of Castle in Shetland and the ’s tions representing the Norse past and a spec- Place in Kirkwall, built at the turn of the 16th tacular series of stained-glass windows with and 17th centuries, remain as monuments motifs of Norwegian rulers. The Shetland to the rule and misrule of Patrick, Earl of coat of arms incorporates the motto “Med Orkney and Lord of Shetland, accused of manipulating Norse and for his own ends. The ruined Muness Castle on in Shetland similarly provides a reminder of Earl Patrick’s erstwhile ally Lawrence Bruce of Cultmalindie, also accused of misdeeds. Lairds’ and merchants’ houses built from the 17th century onwards, and the pattern of enclosures that transformed the landscape of Orkney in the 19th century, are memorials to the power of the incoming Scots who acquired estates in the islands. The “squared” fields that characterise parts of the Orkney landscape reflect the history of land reorganisation and agricultural improvement, involving enclosure and division of the commons, and replacing fragmented smallholdings (Fig. 4). The medieval Norse law in Orkney and Shetland is thought to derive from Gulating Law, i.e the law of the Gulating legal assembly. This was the regional “landscape law” for West Norway. Similar “landscape laws” were found in several regions of medieval Norway, Denmark and Sweden. This was a notion of landscape as a territorial unit together with its legal institutions and people. The laws included rules and rights concerning use of land and other resources and the inheritance of land and goods. They were written down in Fig. 3. Shetland’s coat of arms on a wel- the 12th and 13th centuries, and are thought coming sign at Lerwick Harbour. The arms to have been based on oral customary law use Norse imagery, including a legal motto with added elements of canon law introduced found in several medieval Scandinavian with the establishment of Christianity. The landscape laws. Translated this means “By main provisions of the Gulating Law were law the land shall be built”. Photo: Michael codified by the Norwegian king Magnus Jones 04.08.1972 Lawmender (lagabøte) in 1274 (Helle,

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Fig. 4. The squared landscape of , Orkney. The grid-iron pattern of fields was laid out in the mid-19th century by estate owner David Balfour, descended from Scots incomer landowners. Balfour instituted agricultural improvement that involved enclosure and recla- mation of land, which became farmed by tenants. Photo: Venke Åsheim Olsen 07.08.1972

2001). Magnus ruled the Norwegian realm their own laws. Nonetheless the gradual im- at the time of its greatest extent, after position of Scots law and legal practice oc- and Greenland had submitted to the authority curred. The notorious Robert and Pat- of the Norwegian king in the early 1260s, rick Stewart, who ruled the islands as a fief and before the loss of the and Isle from 1565 to 1609, exploited the confusion of Man to the Scottish king in 1266 (Helle, between Norse and Scots law to suit their 1995). Orkney and Shetland remained own ends. In 1611, an Act of the Scottish part of the Norwegian realm until the mid- Privy Council proscribed “foreign laws” in 15th century; from the 1230s the Earls of Orkney and Shetland. Such aspects of the old Orkney were Scottish, recognising Norwegian laws that survived came to be regarded as suzerainty (Thomson, 2001). customs within a corpus of Scots law (Don- Scandinavian rule ended when the king aldson, 1978). of Denmark and Norway, Christian I, pawned the islands to the Scottish king James III in Udal law lieu of a dowry for Christian’s daughter Mar- The primary meaning of “udal” (also writ- grethe (Margaret). The treaties of 1468 and ten “”) is inherited land held by a form of 1469 provided implicitly for the continuation freehold tenure involving absolute ownership, in Orkney and Shetland of existing laws, and not subject to a superior. It derives from Old the in 1567 specifically Norse oðal, meaning ownership of inherited recognized that the islands were subject to family property in which certain rights belong

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to the kin. Spelt odel in modern Norwegian, features of udal law, some superseded and this form of landholding still exists in Norway, others surviving: securing the kin in a fixed order of succession (1) The things — the “Udallers’ Law prior rights to take over a farm holding above Court and Parliament” — with their lawbooks a certain size once it has been held in the had been gradually superseded until the last family for a specified length of time. Similar vestiges were abolished in 1748. rights in other Scandinavian and Germanic (2) Succession to property, both land and countries disappeared between the 16th and moveables, was by partition among all the 20th centuries (Jones, in press). children, with a brother’s part being worth The term “udal law” is used in two princi- two sisters’ parts, but this had been gradually pal ways. In the narrow sense, it refers to cer- superseded by the feudal practice of primo- tain survivals of the Norse land tenure system, geniture. Drever erroneously stated that the sometimes referred to as udal tenure. In the youngest son received the father’s dwelling- broad sense, it is used to refer to the whole house. system of Norse law that regulated Orkney (3) The period of prescription whereby and Shetland when they were transferred lands became udal was, according to Drever, to the Scottish Crown in 1468–1469. The 30 years, but this had been superseded by Norwegian legal historian Knut Robberstad the Scots law of prescription. (1983) showed that udal law in Orkney and (4) Udal tenure was allodial, i.e. Shetland can be traced to the Magnus Code did not emanate from the Crown and there of 1274 and the earlier provincial laws this was no feudal superior. A written title was codified. Norwegian laws were not supersed- not deemed necessary, although convenient. ed in Orkney and Shetland by Scots law until However, title had to derive from a lawful the early seventeenth century. Nevertheless, right; possession alone was not sufficient. certain aspects of the Norse laws survived in Even where udal land had been granted by the Northern Isles until the twentieth century. a feudal charter, as frequently happened in Although some claim that udal law can still the 17th century, this was not sufficient to be regarded as a separate system of law, the transform udal land into feudal land. Drever prevailing opinion among Scottish lawyers is also referred to claims that the foreshore that it represents survivals of customary land adjoining udal land belonged to the udaller tenure within the prevailing body of Scots rather than to the Crown. law (Robberstad, 1983; Sellar, 1987; Ryder, (5) Udal landowners paid an annual tax 1989; Smith, T., 1989; Jones, 1996b). of Norse origin, known as “scat” (Old Norse Udal law merited separate chapters in skattr = “tax”), which in origin was not a 20th-century encyclopaedias of Scots law. feudal duty, although over time tended to be Orkney solicitor W.P. Drever wrote a chapter conflated with -duties. on udal law for Green’s Ecyclopædia of Scots (6) In Shetland the commonly grazed Law in 1900. Noting its Norse origins, he pastures are called “scattalds”, which Drever stated that udal law was “foreign” in relation thought was the unit on which “scat” was to Scotland and coexisted with Scots feudal payable. law as survivals of what he termed “native (7) Regarding the Norse weights and law”. Udal landowners, or ‘udallers’, held measures peculiar to Orkney and Shetland, hereditary estates derived from “primitive Drever found the land measures, based on occupation”, and owed no vassalage, homage value rather than area, to be “vague” and or service to a superior, but had “a right of “confusing”, although perpetuated in descrip- absolute property”. Drever listed a number of tions of land titles. “Native” standards and in-

110 UDAL LAW AND CONTESTED HISTORIES OF LAND TENURE AND LANDSCAPE IN ORKNEY AND SHETLAND struments, such as weighing-beams or steel- Scotland by Edinburgh solicitor Jane Ryder yards of Norse origin known as “bismars” and in 1989. Udal landownership involved a “pundlars”, were replaced by imperial avoir- system of inheritance and kinship rights in dupois weights in 1826. which land was allodial rather than feudal, In the 1914 and 1933 editions of Green’s not emanating from the Crown as feudal su- encyclopaedia, Drever added a paragraph on perior. Title to udal property could be trans- the right of riparian owners to -fish- ferred without writ or conveyance if the legal ings, which Scotland’s supreme court, the right could be proven by witnesses. A writ- Court of Session, had found in 1907 did not ten deed or charter was not sufficient in itself belong to the Crown but to the adjacent land- to convert a udal to a feudal holding if the owner on the basis of udal law. Crown had never been feudal superior. Ryder In 1936, Edinburgh solicitor Wm. Jar- described succession through partible inheri- din Dobie wrote a chapter on udal law in tance as well as the rights of kin, the land the Stair Society’s Survey of the Sources being held “in trust for the family”. Partible and Literature of Scots Law. Like Drever, inheritance on intestacy was upheld in the he noted that a udal holding was allodial, Shetland sheriff court as late as 1893. She and the “udaller held of no man and owed further described scat as an incident of udal no service to any superior”. He paid “skat”, landownership. Scattalds were in origin the which in origin was “a tribute to the state or unit for which scat was paid and included not Crown, rather than a feu-duty”. The udal sys- only common grazings but also arable land tem involved “an entail on the family”, and and foreshore rights. Udal landowners owned a udaller who wished to sell his land had to the adjoining foreshore between high and low offer it first to his kinsmen. The kin had the spring tides. Udal holdings were frequently right to redeem land sold to a stranger with- described as extending from the highest out their consent. Dobie also referred to the stone of the hill to the lowest of the ebb. Ry- practice of “uppgestry”, whereby an owner der also described the historical weights and could make over his land to another in re- measures, including land measures. turn for upkeep for the remainder of his life. Between 1890 and 1990, the Court of Again, it was noted that writing was not es- Session judged five cases involving udal law. sential to transfer the title of udal holdings. In 1890, the case concerned a landowner’s Udal inheritance was divided among the chil- claim under udal law to one-third share of dren, with daughters’ shares being one-half pilot whales driven on to his shore, which those of sons, and the latter being entitled to was contested by the captors. Although such acquire their sisters’ portions by purchase if claims had been recognised in earlier court they wished. The eldest son (not the young- decisions, it was rejected in 1890 on the est, as stated by Drever) was entitled to the grounds that it was an unreasonable custom. mansion or manor-house and had first choice In 1903, a merchant’s claim to foreshore of lots available. Dobie referred to the chief adjoining his udal land in Lerwick was upheld, court, or law-, presided over by the law- allowing him build out on to the foreshore. In man, until replaced by Scottish sheriffs. He 1907, a landowner’s claim to salmon- referred also to local weights and measures. rights on the basis of udal law was upheld. While udal law had largely disappeared from In 1963, a claim was rejected that treasure the islands, udal tenure had survived in the trove found on udal land should be divided form of foreshore and fishing-rights. according the Magnus Code: one-third to Udal law was discussed in the Stair the finders, one-third to the landowner, and Memorial Encyclopaedia on The Laws of one-third to the Crown. Finally, in 1990,

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the Shetland Salmon Farmers’ Association ed by local solicitors, mostly regarded udal contested Crown ownership of the seabed law as having eroded over time and existing under udal law but lost the case. Thus udal as a few survivals within the framework of tenure was upheld in two of these cases, but Scots law, principally private ownership of rejected in three cases, once on the grounds the foreshore and salmon-fishing rights. Their that it was an unreasonable custom and training was in Scots law, but some were twice (in the treasure and seabed cases) willing to defend udal law if they thought it that they concerned the Crown’s sovereign could be legally upheld (as in the unsuccess- rights (Ryder, 1989; Smith, T., 1989; Jones, ful seabed case). Estate owners and - 1996a; 1996b). ers mentioned especially economic aspects Udal law differed from Scots law in several connected to foreshore and salmon-fishing ways. Allodial tenure contrasted with feudal rights. Finally, I found a few small landown- tenure, which prevailed legally in Scotland ers — the “last udallers” — who told of the until it was formally abolished in 2000, with practice of partible inheritance and rights of effect from 2004. Partible inheritance and kin in living memory. This is the essence of rights of kin differed from Scots law, where udal law, although the poorest documented primogeniture prevailed for intestate succes- in modern times. This might be regarded as sion until 1964. Norse weights and measures vestiges of family customary land rights, or were effectively done away with in 1826. it might be interpreted as revealing ethnic Scat payments in Orkney and Shetland were memories (Jones, 1996a). finally extinguished in 2004. The foreshore In another study, I showed how udal and salmon-fishings in mainland Scotland law became a focus of attention in the 19th belong to the Crown estate except where and early 20th centuries as part of a Norse alienated. Especially after the reform of Scot- cultural renaissance. Local historians em- tish land tenure since devolution in 1999, phasised and often romanticised the Norse little remains legally to distinguish udal law period in their works, frequently contrasting from Scots law. Foreshore and salmon-fishing it with the perceived oppressions of Scottish rights remain, but their practice is subject to rule. The Udal League, founded in 1886, other legislation such as planning laws and campaigned for home rule, land-tenure re- fishing regulations (Jones, 1996a; in press). form and the conversion of farm tenants to owner-occupiers. Udal law was an early topic Popular perceptions of udal law of interest for the Viking Club, founded in On the basis of some 70 qualitative in- London in 1892, becoming in 1912 the Vi- terviews, undertaken mostly in 1986, I in- king Society for Northern Research. Similarly, vestigated modern perceptions of udal law. I udal law was a theme taken up by the First found that the meanings and functions attrib- Viking Congress held in Lerwick in 1950. uted to udal law varied among different social During the second half of the 20th century, groups. Townspeople in Orkney and Shetland udal law was invoked in public debates on generally had anecdotal knowledge of udal matters of concern for Orcadians and Shet- law. Some mentioned disputes over building landers. In the 1960s, the concern was local on the foreshore. Some saw it in a somewhat government reform. In the 1970s, when con- romantic light as part of local history or con- stitutional reform for Scotland was debated, tributing to their identity — sometimes as the Shetland and Orkney Movements were part of the Viking heritage used to promote established to agitate for local autonomy and tourism — but for most it had little practical referred to udal law as part of the islands’ significance. The legal profession, represent- distinctiveness. In the 1980s, udal law was

112 UDAL LAW AND CONTESTED HISTORIES OF LAND TENURE AND LANDSCAPE IN ORKNEY AND SHETLAND invoked by opponents to such diverse issues fluenced by legal, topographical and histori- as uranium mining, Sites of Special Scientific cal literature as well as fiction. This literature Interest, and Crown estate seabed rentals for can be said to have contributed to the “social salmon-farming (Jones, 1996b). construction” of udal law through the mean- More recently, I have examined demands ings and values conferred on it in descrip- that arose during the Scottish Parliamenta- tions. Ideas about udal law have been part ry elections in 2003 for local control of the of the social construction of the Viking past sea and seabed, important for fishing and in the Victorian era (Wawn, 2000) and the offshore oil, and for local autonomy and the related social construction of the Norse past recognition of udal law as Shetland’s “native in Shetland (Renwanz, 1980; Cohen, 1983) Norse law”. The Shetland and Orkney Udal and Orkney (Seibert, 2008). Law group (SOUL) set up a website with The earliest literature on Orkney and links to legal decisions in favour of aborigi- Shetland is in the Icelandic sagas from the nal land titles in Australia and , and early 13th century. The claimed that udal law was an “indigenous tells the history of the Norse earls of Orkney legal system”. I concluded that it was doubt- from the islands’ capture by the Norwegian ful whether indigenous status for Orcadians king in the 9th century to the and Shetlanders could be sustained (Jones, forfeiture of Shetland with its “scats and dues” 2010). In a further study, I have discussed to the Norwegian king Sverre at the end of the in relation to the idea of the “right to land- 12th century. It mentions the calling of the scape” the territorial dimension of human things, but otherwise law is little discussed. rights as a basis for analysing claims made At one meeting of the thing, Earl Rognvald for udal law. I argued that contested rights to allowed landowners to repurchase their land and sea resources are frequently bound previously confiscated “odal possessions”, up with contested interpretations of history. which enabled him to finance the building of My conclusion was that, although land own- . The saga is as much ership and rights shape landscape to a sig- fiction as historical documentation. First nificant degree, the right to landscape as a published in Copenhagen in Latin translation shared resource extends beyond legal ques- in 1780, it did not appear in English until tions of property ownership and legal rights 1873 (Anderson, 1981). Like the English of resource use (Jones, 2011) . translations of the other sagas, it strongly influenced the Victorian imagination of the Social construction of the past Viking period. and contested interpretations of Not counting references in court records history and Acts of Parliament, one of the earliest legal texts to mention Norse law in the North- The social construction of udal law ern Isles was Thomas Craig’s De Unione Reg- Extensive evidence of the practice of udal norum Britanniæ Tractatus, written in 1605 law during the Norse and early Scottish pe- although not published before 1909. Craig, riods to 1611 is found in collections of his- one of the most influential legal writers of his torical documents from Orkney and Shetland, time, was one of the Scottish commissioners mostly not published until the 20th century who drafted Articles for the proposed politi- (Clouston, 1914; Donaldson, 1954; Bal- cal union of Scotland and . His tract lantyne and Smith, 1994; 1999). However, provided the only detailed argument for union ideas of the significance of udal law as part of from the Scottish side. He gave the example Orkney and Shetland identity are strongly in- of Norwegian law in Orkney as an argument

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that a union was possible even if the laws Orkney and Shetland. He was a legal agent differed. for one of the Orkney lairds involved in a 26- The earliest topographical description of year long legal dispute known as the Pundlar Orkney and Shetland to refer to Norwegian Process, in which the Earl was accused of law was by Robert Monteith in 1633, pub- manipulating the old weights and measures lished by the Geographer Royal of Scotland, to increase the dues payable to the Earldom. Robert Sibbald, in 1711. Monteith was re- Mackenzie produced a historical account sponsible for the misapprehension that the supporting the claims of the lairds. He argued youngest was to have the dwelling-house on that the weights and measures should revert the division of inheritance, repeated by later to their original values under Norwegian rule, writers. An Orkney money-lender and land- and that scat should be abolished since the owner, he had come into conflict with Earl landowners also paid Scottish land tax. In Patrick, who plundered his estates. He may 1759, however, the Court of Session found in have described the udallers’ “immemorial favour of the Earl. possession” of their lands in justification of Among those arguing against Mackenzie the restoration of his rights. was Andrew McDouall (later Lord Bankton) In 1681, James Dalrymple (later Viscount in his Institute of the Laws of Scotland. On of Stair) published his Institutions of the Law udal law he argued that the lack of written of Scotland. Two short paragraphs described titles was antiquated, that udal rights were “udal rights” as “peculiar customs of the isles an ancient feudal form of possession, and of Orkney and Zetland” (Stair, 1826–1827, that scat was not a land tax but a feudal due. II, 222, IV, 683). Statements by Monteith He claimed that the rights of kin and partible and Dalrymple that written titles were not inheritance were in disuse, or if still prac- necessary were repeated in other early topo- tised were so inconvenient that udal rights graphical accounts (Wallace, 1693; Martin, should be discontinued (McDouall, 1751, 1703; Brand, 1883). 542–545). A much fuller account of udal law is found These examples from the 17th and 18th in Thomas Gifford’s Historical Description of centuries show that interpretations of udal the Shetland Islands in 1733, published in law varied according to personal circum- 1786. He was a landowner and the Earl’s stances, political views, and position in the chamberlain, responsible for collecting dues landowning hierarchy. Despite differences, a and rents as well as scat, and hence had picture was built up of the Norse heritage of an interest in making a thorough historical the isles in which udal law became an es- reconstruction of these as well as ways of tablished part. Interpretations as well as mis- transmitting property. He claimed that the interpretations of history were passed down udallers had been oppressed by the Fowd, from one writer to another and became wide- the Norwegian governor who had collected ly accepted as “historical facts”. The number the scat historically. He also criticised the op- of accounts referring to udal law multiplied pressions of the Stewart earls. Nonetheless, in the 19th and 20th centuries. A detailed he regretted the replacement of the simple analysis of these is a task for later (although Norse system of transmitting land by Scots I have provided a brief account (Jones, in as it impoverished the udallers press b)). They have helped sustain up until while making money for lawyers. the 21st century debates over the relevance In 1750, James Mackenzie, a Kirkwall of the Norse historical past for the present lawyer, published anonymously The General despite 540 years of Scottish dominating in- Grievances and Oppressions of the Isles of fluence.

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Contested historiography ers as a treacherous exploitation in their own In 2004, the relevance of udal law was interest of Scots feudal or Norse udal laws the subject of a public debate in Kirkwall according to expediency (Smith, B., 1999). on whether udal law was living history or “Udallers” have been variously described as modern fantasy. The first view contended that Norse smallholders struggling against the udal law was part of Orkney and Shetland power of expanding Scottish estate-owners identity and hence a continuing part of or as large medieval landowners with ten- modern life. The opponents argued that it ants whose estates were eventually acquired was a remnant of a system of private law through marriage or purchase by incoming concerning land inheritance, and not relevant Scots. Fragmentation of udal (allodial) es- for ordinary people in the street. The jury tates has been explained by the introduction (including a solicitor, local historian, librarian of feudal conveyancing without recognizing and ex-councillor) voted seven to five against the rights of kin or as the result of partible the motion that udal law was still relevant, inheritance under Norse udal law (Shaw, whereas the audience voted by 43 votes to 1980). The claim to a share of pilot whales 11 that it continued to be relevant (Jones, driven onshore has been presented as an an- 2011; in press). The status of udal rights cient udal right of landowners or as an unjust is linked to differing interpretations of the custom introduced by Scottish estate-owners islands’ history. In detail this requires further in the eighteenth century (Smith, B., 2003a). research, but a tentative sketch can be given Udal law has been presented as a separate (Jones, 2011). system of law eroded by the political ascen- Øien (2005) identifies two main dancy of Scotland and the “legal imperialism” strands in the historiography of Orkney and of encroaching Scots law or as accepted local Shetland, one emphasizing Norse influence customary rights within the prevailing system and the other Scots influence. One debate has of Scots law (Sellar, 1987; Jones, 1996b). In been between the ‘war school’, who maintain the most recent debates, it has been evoked that Viking settlement was accompanied by as a basis for claims to local control over mar- genocide of the pre-existing population, and itime and seabed resources or dismissed as ‘the peace school’, who emphasize continuity vestigial land rights unrelated to the regional with assimilation of the former Pictish inhab- and offshore economy. itants (Bäcklund, 2001; Smith, B., 2001; 2003b; Fellows-Jensen, 2005). Another Conclusion debate has concerned whether the medieval Landscape and law are intimately bound system of administration and taxation was up with one another in multiple ways. The solely of Norse origin or showed Celtic-Pictish example of udal law in Orkney and Shetland influences (Øien, 2005). On the transfer of shows that ideas of landscape are not only sovereignty to Scotland, some maintain that based on the landscape’s physical appearance there still exists a residual Norwegian or Dan- but are supported by stories and histories told ish right of redemption of the mortgage by about it. When one system of law replaces which sovereignty was transferred in 1468– another, vestiges of the old system may 1469, while others argue that sovereignty endure over many centuries and contribute has been permanently transferred to Scotland to feelings of cultural identity. Interpretations by acquiescence (Donaldson, 1984). The of the history of land tenure and landscape Stewart earls’ administration of 1565–1609 change reflect domination, resistance and has been regarded in some quarters as the contestation between different classes and worst example of Scottish misrule and in oth- ethnicities in the construction of histories

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