S.O.U.L. ......Shetland & Orkney Udal Law group.

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This is Brian Smith's reply in The Shetland Times 27th June, together with the responses on 4th July:

Those udal documents
I AM HAPPY to help Richard
Anderson locate documents he
wishes to read (
Shetland Times ,
20th June).
1. The treaty between Magnus
IV and Alexander III of Scotland
concerning the Western Isles, in
Latin, dated 2nd July 1266, is
printed in full in
Diplomatarium
Norvegicum
, vol.8, no.9. It is
easily accessible on the website
http://www.dokpro.uio.no/di pl _
norv/diplom_field_eng.html. To
the best of my knowledge there
is no complete translation of the
document into English, but there is
a handy conspectus of it in Gordon
Donaldson ed.
Scottish Historical
Documents
, Glasgow 1974, pp.34-6.
2. The Latin text of the mortgage
of Orkney by Christian of Denmark
to James III, dated 8th September
1468, with English translation, is
in John Mooney ed.,
Charters and
Other Records of the Royal Burgh
of Kirkwall
, Aberdeen 1952, pp.86-
109.
3. The Latin text of the copy
of the mortgage of Shetland by
Christian to James, dated 28th May
1469, is in
Norges Gamle Love , 2nd
series, vol.2, no.116. There is an
English translation in
Shetland
Documents 1195
-1579 , Lerwick
1999, no.25.
4. The complete text of Magnus
Lagab°ter's "Landlaw " is in
Norges Gamle Love , 1st series, vol.
2, pp.1-178. There is no translation
into English, but there is a useful
version in modern Norwegian
by Absalon Taranger (
Magnus
Lagab°ters Landslov
, Kristiania
1915).
5.I am not entirely clear what
Anderson means when he says
he wants to see "copies and
translations of ...[t]he reception
of that udal law in Iceland,
Faroe, Shetland and Orkney ".
As far as Orkney and Shetland
are concerned, early documents
are available in such works as J.
Storer Clouston ed.,
Records of
the Earldom of Orkney
,Edinburgh
1914; Alfred W.Johnston and Amy
Johnston eds.,
Orkney and Shetland
Records
, vol.1, London 1907-13;
and John H.Ballantyne and Brian
Smith eds.,
Shetland Documents
1195-1579,
Lerwick 1999 , and
Shetland Documents 1580-1611,
Lerwick 1994 . The old Faroese
law is best sampled in J.H.W.
Poulsen and Ulf Zachariasen eds.,
Sey. abrŠvi., Tˇrshavn 1971,
which contains English translations.
On Iceland I am far less expert,
but an introductory guide is Jˇn
Jˇhannesson,
A History of the
Old Icelandic Commonwealth
,
Manitoba 1974. There are good
articles on the development of
udal law in all these places, and
others, in the great
Kulturhistorisk
Leksikon for Nordisk Middelalder
,
vol.12, Copenhagen 1980, cols.
493-503.
6. To the best of my knowledge
the key Shetland udal law decisions
are: Sinclair v. Hawick 1624;
Dundas against Heritors of Orkney
1777; Dundas against Heritors of
Orkney and Shetland 1777; Dundas
against Arthur Nicolson and others
1778; Dundas against Officers of
State and others 1779; R.H.Bruce
v. A.Grierson 1823; Spence v. Earl
of Zetland and others 1839; Bruce
v. Smith and others 1890; Smith v.
Trustees of Port and Harbour of
Lerwick 1903; Lord Advocate v.
Balfour 1907; Lord Advocate v.
University of Aberdeen and Budge
1963; Shetland Salmon Farmers v.
Crown Estate 1990.
Anderson can now commence
his research into udal law. I know
for a fact that he will find every
one of these items in the Shetland
Archives: in printed books, on
microfilm (Taranger), in facsimile
form, or (in the first case) via the
internet. There is no need for him to
go to Norway to consult them!
However, I cannot point him
towards the missing lawbook of
Shetland, last referred to in 1602.
If Anderson has indeed located a
copy of it that is headline news,
and will be of the greatest interest
to scholars in Scandinavia and
Scotland. I look forward to learning
about its whereabouts in his next
contribution.
Brian Smith
53 Kalliness,
Weisdale.

We need some answers ...
WITH the recent public interest in
udal law it is now important to take
the issue a step further and have it
debated in the council chamber.
In a few months the EU will be
making a number of decisions about
fishing which will have a lasting
effect not only upon the fishermen
but upon the future prosperity of
these islands as a whole.
It is said that the ancient laws
of these islands -udal law -could
have a bearing on the outcome of
those negotiations and therefore
upon the future prosperity of these
islands. A significant proportion of
the population of the islands signed
the udal law "flyer " in
The Shetland
Times
and many more have since
joined the Shetland and Orkney
Udal Law group SOUL.
Essentially, they are looking for
the answers to two main questions:
a)How valid is the decision
taken by Scotland in 1965 to ignore
the primacy of udal law which the
courts of Scotland had consistently
acknowledged for hundreds of
years?
b)If that decision can be
challenged internationally and the
primacy of udal law restored, what
is the udal law of fishing and the
seabed and what effect is that likely
to have on the EU negotiations?
Clearly, from previous experience,
the answer to these questions cannot
be sought internally, or indeed from
Edinburgh, but the answers to these
questions could nevertheless be
relatively easily obtained from a
number of sources by a determined
council.
The matter is urgent and we
expect that the councillors of the
new SIC will not permit themselves
to go into recess for six weeks
without having discussed and
arrived at a decision upon this
issue vital to Shetland, which they
will then report democratically to
the significant proportion of their
constituents who have called for
this matter to be looked into.
Alastair Inkster
SOUL chairman
South Burland,
Trondra.

Last chance to argue case
WITHIN the next few months the
EU is going to make a number of
decisions that, for the foreseeable
future, are likely to have a major
effect not only upon the fishermen
themselves but upon the prosperity
of Shetland as a whole.
There are those who say that this
is something that the community
is just going to have to bear in the
same way that the steelmen did in
Wales but there are others who say
that Shetland is entitled to special
consideration based upon its ancient
(udal)laws. It is clear, however, that
if Shetland is to make out a case for
its fishing rights under udal law then
it must also do so within the next few
months and before the EU reaches
its critical decisions (it will not be
possible to do so afterwards).
In that respect, I am absolutely
horrified to learn from the chairman
of SOUL (Alastair Inkster,
Shetland
Times,
27th June),that the SIC is
going to go into its summer recess
without debating this subject at all.
It can scarcely be disputed
that, in a matter so critical to the
future of Shetland, not only the
Fishermens' representative bodies
but also the council are under a
duty to leave no stone unturned in
fully investigating the matter and
reporting it to their constituents. It
is puzzling that there is no sign of
this being done and one has to ask
what is going on here?
Udal law is not an easy subject
to deal with. As a law professor
recently pointed out, in the absence
of a properly indexed "sourcebook "
of udal law, opinions may be
issued which have been issued in
ignorance or in error. Brian Smith
is therefore to be congratulated on
his contribution (
Shetland Times ,
27th June)and it is heartening
to learn that he feels every one
of the necessary documents
is to be found in the Shetland
Archives in the form of printed
books, microfilm, facsimile or
via the internet (why, then, has a
public exhibition of these documents
not already been mounted
particularly as such an exhibition
would as Deborah Lamb mentions,
be "wonderful "?).In fact, however,
Smith's contribution raises as many
problems as it solves -and this
perhaps goes some way towards
explaining some of the difficulties
that modern cases on udal law have
run into. The principal udal law text,
Smith tells us, exists in modern
Norwegian but not in English and
the lawbooks - containing examples
of the application of that law in the
Shetlands -are missing, said to
have been deliberately destroyed to
prevent udal cases being made out.
It should, of course, if the inclination
was there, be possible to have the
udal text translated into English and
to reconstitute the lawbooks from
original Norwegian sources but,
as Jeremy Godwin points out, that
cannot be done in a week.
We do, however, have enough to
be going on with and my suggestion
that a bit of effort is now put into it.
Because the opportunity will not be
repeated, Shetland as a whole cannot
afford to let slip by this opportunity
to argue its case for fishing rights
under udal law.
Richard N.M.Anderson
The Sea Chest,
East Voe,
Scalloway.

Never part of Scotland
THE LETTER from Alec Henry in
last week 's
Shetland Times illustrates
how badly Shetlanders are educated
about their history. Shetland never
became "part of Scotland ",but was
only ever pawned.
Part of the conditions of pawning
were indeed that the existing laws
and customs must be upheld
until such time as the pawn was
redeemed. The dowry was not
Shetland, but 60,000 florins. King
Christian was unable to pay the
last 8000 and pawned Shetland to
Scotland for that amount. No act of
parliament has ever incorporated
Shetland into Scotland. Shetland
has been held in trust by James
III, his heirs and successors until
1707 and subsequently by the UK
Crown.
As for Shetland being an
irrelevance, it was obviously
important to both parties since
Denmark made several attempts to
redeem the pawning, even raising a
special tax to do so; while Scotland,
illegally, refused to accept the
money.
Mr Henry is correct in saying that
udal law was never part of Scottish
law. However, it never "vanished
with the crossover "as he states. It
has been there since Norse times,
has never gone away and carries
precedence over Scots law.
If Shetlanders were simply to
assert their udal law rights, the
Crown would be forced to prove
the legality of their position,
which they cannot do. They have
relied instead on an Anglicised
and Scottified education system to
misinform Shetlanders and make
them believe they have to follow
the official line. The strategy has
worked well - Mr Henry is not
alone in his assumptions.
Somewhere in all the tangled
web of documentation, truths, half
truths and worse, there are loose
threads that only need to be pulled
for the whole thing to unravel like
a Shetland gansie. SOUL (Shetland
&Orkney Udal Law group)is
dedicated to finding those loose
ends to benefit Shetland.
Shetlanders are far more
powerful than they realise. London,
Edinburgh and Oslo all know
it, but Shetland has been kept in
ignorance.
Shetland has a proud history
-it's time it was properly taught in
our schools.
Stuart Hill
Webmaster for Shetland &
Orkney Udal Law group (SOUL)
Cunningsburgh.
P.S. The Scottish Law
Commission had a team of highly-
paid lawyers trying to prove that
udal law was no longer applicable.
They were unable to do so, have
now turned their attention elsewhere
and the Scottish Law Commission
now supports udal law!

Blatantly obvious
I KNOW as little about history
as I do about law, but surely it
is blatantly obvious that when
Shetland became part of Scotland,
it then automatically fell under
the jurisdiction of Scottish law;
Denmark was hardly going to say
"here is your dowry, but (by the
way)our laws must still apply ".
Shetland was most likely an
irrelevance both to the donor and to
the recipient, and udal law probably
continued partly by default, and
partly because the natives were
unaware that they belonged to a new
nation. Udal law was never part of
Scottish law, and logically vanished
with the crossover. Sorry udalars!
Alec Henry
Baillister, Gott.

A worrying ignorance
WRITING in The Shetland Times
of 27th June Alec Henry really had
no need to tell us that he knows
little about history. That becomes
"blatantly obvious "from reading
his letter. It is one thing to know
little about history in general but
to be so ignorant of one 's own past
is a bit worrying. How can anyone
know who they are as an individual
with no knowledge of their own past
and the history that has shaped their
homeland? Without the past there is
no present.
Mr Henry supposes that when
the dowry agreement was signed
Shetland automatically fell under
the jurisdiction of Scottish law but
now wrong he is. The Norwegian
legal system remained in force after
1469 till 1611 when Scots law was
formally introduced. It should be
noted that the change came about
as a direct result of tampering with
the old laws, perpetrated by, among
others, the uncle and cousin of King
James VI.
Far from being "an irrelevance "
in the dowry negotiations, Orkney
and Shetland created quite a tug
of war, with Denmark unwilling
to give them up and Scotland
thirsting to get hold of them. In an
Act of Parliament in 1669 Scotland
described the islands as
"So great
a jewell of their Croun ".
It is quite insulting to the
intelligence of 15th century
Shetlanders to suggest that they
were "unaware that they belonged
to a new nation ". Their society was
more than adequately organised and
I have no doubt in my own mind
that King Christian 's instructions
to his subjects would have been
read aloud from the
thingbrekka,
along with any other decrees of
the next sitting of parliament in
Tingwall, following the dowry
arrangements.
Perhaps it is time the education
department brought in lessons
on local history since the current
system seems to be woefully
inadequate, even non-existent on
the home front.
I would also answer a question
from Murdo McKay in
The
Shetland Times
of 6th June where
he asks whether the seas around
Shetland were included in the
dowry. They were not. Nor could
the King include the foreshore
and ebb since they were not his
to give except where they formed
part of his personal property. The
rest belonged to the individual
udallers, the freeborn islanders
whose holding was under God and
nobody else, king or otherwise.
Mr McKay says that Shetland
was given away in the dowry and
calls it a "misplaced gift "but it
should be remembered that the
dowry was for 60,000 florins of the
Rhine and was never intended to
include the islands which were only
placed in pawn when the cash was
not available. Attempts to redeem
the pledge fell on deaf Scottish ears
for around 300 years.
Neil M.Anderson

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S.O.U.L. is a non-profit, non-political voluntary organisation working on behalf of the people of Shetland and Orkney. This website is intended to stimulate open discussion and will inevitably change as we find out more. is appreciated.