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DOCUMENTS PRESERVED AMONG THE RECORDS OF SHETLAND. 181 NOTIC ANCIENF EO T LEGAL DOCUMENTS (LAECCLESIASTICALD YAN ) PRESERVED AMONG THE PUBLIC EECORDS OF SHETLAND. BY GILBERT GOUDIE, F.S.A. SCOT. The deeds whic I hhav e honouth e o submi t ra selectio e ar t n from collectioe th f nativno e papers which have accumulate course th n f i deo centuries in the hands of the public functionaries in Shetland, and thes a which r y fa hav o s , e escaped destruction preservew e no e th ar n ,i d new Sheriff Court Building Lerwickn i s surprisins i t I . g tha mano s t y paper f intereso s t have come presene dowth o nt t time, considerine gth vicissitudes through which the local government of the islands has passed - since their annexatio o Scotlandnt e lonTh g. lineag f Scandinaviao e n Jarls, from Kognval e nintf Moero th d hn i i century s supersedewa , d a rac f y rulero eb f Scottiso s h blood, under whose swa e locayth l laws d institutionan e countryth f o s , guarantee y thb de Treaty wite th h Dano-Norwegian crown, were gradually subverted and assimilated to thos Scotlandf course o th f thesn o eI . e change e Greasth t Foud an d Lawman, the Under Fouds and Lawrightmen, and all other officials e n locachargi th f l o ecourt locad an s l records, disappeared. Justice, instead of being regulated by the Norwegian BOOK OF THE LAW, and later, by the native municipal code known as the " Country Acts," came to be administered in conformity with the Statute law of Scotland. The Courts of the Stewart-Depute and Sheriff Substitute came in place of the open air assembly of the Lawting and the parochial Courts of the Under Fouds e cour Th f appealo .t , formerlyr somfo ed timan , e aftee th r annexation, at Bergen in Norway, came to be the Court of Session at Edinburgh d lastlye loca th An e seaf lth . ,o tchie f Court, froe mth earliest ages at Tingwall and Scalloway, was transferred to Lerwick, the modern capital. During all these sweeping changes many papers have been preserved, and many more have been lost; for no suitable provision for their safety 182 . PEOCEEDINGS OF THE SOCIETY, APRIL 10, 1882. was ever made until quite e recentlyyeath r n I 187. I 3mad n a e examinatio f theso n e papers, then undeciphere d theian d r character unknown, and the list then prepared, though hurried and imperfect, shows a mass of miscellaneous matter of great interest, including a number of volumes of local records of more recent date than the greater portion of the detached papers. Two documents in the old Norse language, found on that; occasion, I afterwards submitted, with translations, to the Society; d thos undew an 1 eno r notic e selectear e d further beins a ,r fo g most part the oldest, and perhaps the most interesting, in the collection.2 These documents are fourteen in number, all on sheets of parchment. The earliest is dated in 1491, and the latest in 1588 ; except one deed, n ecclesiasticaa l presentatio y Earb n l Patrick Stewart, imperfectly decipherable e earlth yf o t year evidentle bu , f the daton so eth f eo f o y seventeenth century. Some are granted by ecclesiastics, but most by laymenpresentatione ar o tw ; o beneficest se resth t d almosan ; t exclu- sively represen tr otheo sale , of rs transactions affecting, land. They l exemplifal y peculiaritie e locath lf o s law d usages, an seeminsw no , g strange and unknown. And the time which their dates cover was a specially interesting one, when the transitional conflict between the old Scandinavia Scottishe th d nan languagen i , , institutionst a raced s an ,wa , stags it greatesf eo t intensit islandse th n yi . Whe deede nth s were first examined the crumpleda y n weri l eal , torn, and decayed state. They have now been laid out on cloth, pressed, and otherwise so renovated that their original appearance is to a gr^at extent restored. Their deciphering and transcription has been a somewhat laborious, but not very difficult task, accomplished, in spare hours, with the valued assistance of my friend Mr. Alfred W. Johnstone, with the exceptio f twono Latinn i , , which- wer eRegistee donth n ei r House.. Muc he deed f coursoth o f s si e forma t theretechnicald no . an l -do I . 1 Proceedings Societye th f o ,scq.t e vol 2 . 47 xii . p . 2 Is is proper to mention here that an important collection of Northern papers, including the earliest preserved Registers of the local Land Writs, is in Her Majesty's General Register House. DOCUMENTS PBESERVED AMON HECOKDE GTH SHETLANDF SO 3 .18 fore propos o print e t more thaf theo na vermn w full i fe y, witn a h abstrac e contentth f e remaindero t th f eace firso sf th o ht n placeI . , some of the more peculiar features which they exhibit and illustrate deserv specialle b o et y noticed. UDAE TH L . 1 SYSTEM. What is most observable in the deeds is the entire absence of the visual feudal clauses of Scotch conveyancing. The sale is direct and absolute from the grantor to the grantee. There is no feudal consent; onl n somyi e case nexe sconformitn d i thi th f tha kin s o tAn sf i o t. y wit principle hth Tidan e i tha w heritagla la t e must firs offeree e b t th o t d tidal-born befor t couli e alienatee db strangera o dt . Thersuggeso n s ei - tion of confirmation by a superior • no clauses of Tenendas and Reddendo in the feudal sense ; no recognition of vassalage in any form. The Udaller hel lans dhi d without conditio limitatior no feuday an n nli sense. This, as is well known, was the cardinal principle of the old form of land tenur n Orkneei e d fatherlanShetlandth an y n i s f Norwaya o d, d an ; the forcing upon the islanders of feudal charters, with their attendant e principath f o burdens e l on grievance s i , f whico s h theyo s hav d eha frequentl complaino yt . There is among the deeds one exception to their otherwise universally Udal character. This is a feudal charter by Lord Eoberfc Stewart, to his natura Willian so l m Stewart a smal f o , l parce f lano l Shetlann di d (No. XII., 1587) " to be holden of us and our airis in few," with a Reddendo of butter and wadmell yearly, and " dew service as use is." It was Lord Eober d o firsmosan wh tt t effectually stressed e Udallerth y b s forcing feudal charter d othesan r burdens upon the s d mwhil an wa • t ei s polichi o grant y t charter n thii s s form e probabilitth , s thai ye th t ground " giffin, granti thin disponitd i san t m instanchi y pars "b etwa of the Lordship of Zetland which, along with the Earldom of Orkney, he himself held unde redeemabla r e feudal grant fro e Crownmth . s lonha g t I bee questioa n n whether, unde e Udath r l system, actual 4 18 PROCEEDING SOCIETYE TH F SO , APRI , 1882L10 . s necessarwri wa ttitle a casth o land t es n yeI a befor. e Courth e t of Session (abou e e yealitigantth th t r f o 1640) se contendeon , d that " Udaill ryght is by succession and schownd-billis and other evidents," whil opponens hi e t alleged thaTidae th t l righ "onls successivwa te yb e possession without schownd-bill or anie other evident."1 Erskine affirms that originally righ hele s "naturay th b dwa t l possession d mighan ,e b t proved by witnesses." 2 Bell, founding upon Stair and other authorities, says that " the title to land was judicial; by an entry of the heir in presence of the Foude or Governor's court, a decree of that court being the title." 3 This latter view .would seee mth rathey e bornb b t o t reou present deeds. They show, at any rate, that if not absolutely necessary, forma t unusua lsixteentno e wris th n wa lti h century s observablei t I . , however, thae selleth t r neve rprecedin y referan o t s g wri e titler o t Th . sale invariably proceeds upon his reputed and acknowledged ownership merely. E SHUYNTH . 2 D BILL. This, as indicated under the last head, is the decree of the Court of the Great Foud regulating the rights of heirs in cases of succession to lande moveablr do e property describes a , Hibbert,Giffordy y db b d an 4 5 an f whico d a hspecime n (Olave Sinclai f Havera,o r head Fouds i ) e smalth f lo collectio4 1 . givef No northero n s a n n deeds printey b d Sheriff Maconochie and Lord Neaves. The deed No. VI. (1546) of those now submitted bears to have been executed in the presence of the same high functionary, Sinclair of Havera; and though perhaps not, strictly speaking, a Shuynd Bill, it is of that character, and deserves to ho referrefurthea s a o dt r illustratio judiciaa f o n l right establishe thin di s form peculiar to the Scandinavian north.