2. Argument

3. Advice

4. Proposals

1. Udal/odel law was introduced to Orkney and Shetland in about 872 by the original Norse settlers. It was the accepted Law of the Isles when they were conquered by Harald Harfagar in 872.
2. Between 1037-47 Orkney and Shetland Udal Law was codified by Magnus the Good. In 1274 Magnus Hakonsson the Law-Mender's new Code was accepted by the Gulathing (Bergen). Law was proposed by the monarch and ratified by the Ting in each district. The 1274 Legal Code held in Orkney and Shetland at the time of impignoration.
3. Under King Erik, Bishop Thomas Tulloch undertook in 1420 to abide by the Norse Lawbook. Following the 1424 Complaint against David Menzies, in 1425 Petition was made for the observance of the Laws of St Olaf (Clouston, S, (Ed) 1914 Records of the Earldom of Orkney, 18, 19) (REO). It was granted.
4. On 8 Sept 1468 Orkney was pawned by the Danish to the Scottish Crown. Impignoration was of ‘our lands of the islands of Orkney’. Whether this meant the Danish Crown estates or the whole archipelago is uncertain. There was no mention of the seas. In 1469 Shetland was included, to be held in pledge until redeemed by payment of the outstanding amount. The Right of Redemption was confirmed on 28 May 1469 (Kirkwall Charters, 3rd Spalding Club, 1952 pp 96-102). King Christian I then wrote letters to his subjects in Orkney and Shetland instructing payment of skat to the King of Scotland until Redemption was achieved.
5. 200 years previously, in 1266 by the Treaty of Perth, the Western Isles had been ceded to Scotland and transferred to Scots Law. No such arrangement was made or considered for Orkney and Shetland in 1468-9
6. On 17 Sept 1470 King James III & William Sinclair, Earl of Orkney, by excambion, exchanged Ravenscraig, Fife for Kirkwall Castle et toto jure ejus comitatus orchadie. Earl Sinclair was left with his 'conquest lands' in the North. Annexation of the Earldom of Orkney to the Scots Crown was set in hand on 17 Feb 1471 and confirmed by Act of Parliament on 20 May 1471 [Scots Acts 1471, c.4]. Whether this is or was ‘legal’ and within the spirit or word of the impignoration is debateable.
7. At the Treaty and Peace of Breda 1667 the Right of Redemption which was found to be unprescribed and imprescribable (Drever, 1933, p.323). In 1814 Norway regained its independence from Denmark by the Treaty of Kiel and the Crown returned to Norway. Subsequently Mackenzie in his 'The general grievances and oppressions of the Isles of Orkney and Shetland' (1836), p.1. questioned Redeemability.

that Redemption is still possible.

1. Whatever the constitutional situation, Norse Law continued to be observed and practiced in the Isles. In 1485, 16 years after impignoration, a Shetland Land Settlement was determined by the Court in Bergen. In the early 1500s the Scottish Privy Council required view of the Shetland Lawbook. In 1538 the Bergen Court confirmed a Shetland Court judgement under the Gulating Law of the Norwegian judicial & legislative assembly [REO 43].
2. The 1567 Scottish Parliament ruled that Orkney & Shetland should be subject to and enjoy their ‘own’ udal law rather than Scots Law. Orkney and Shetland were recognised as different by the Scots Parliament (APS iii 41). This seems to have been the last time the matter was considered by Parliament.
3. In 1575-7 the Orkney Lawbook was produced for the Scots Privy Council, its last recorded sighting. The Privy Council found on the case under Orkney Law. During 1602-4 the Shetland Court was applying the Magnus Code, even though the actual Law Books of both Orkney and Shetland appear to have been destroyed by Patrick Stuart, whilst an agent of the Scottish Crown (early XVIIC Mackenzie p.3, Dobie 1936 p.451). Were there copies? Where might those copies be now? Edinburgh, Bergen (for 1538 review), Copenhagen for Christian IV? Back to Norway after Treaty of Kiel, 1814?
4. That Orkney and Shetland continued to be considered different was confirmed in 1750-1759 by the Orkney udallers and heritors v Earl of Morton alais Earl of Galloway and others v Earl of Morton. This, the ‘Poundlar’ Case, was referred to Bergen for proof as the Bergen Court was cognisant of Orkney Law (Drever, WP 1933 Udal Law in Dunedein & Wark (Eds) Encyclopaedia of the Lawsof Scotland 15:para 713). During this case, in 1752, in Earl of Galloway v Earl of Morton, the question whether skat was an alternative to Parliament's General Land Tax (Orkney & Shetland paid both) was left undecided [Discuss with W.P.L.Thomson].
5. (Sir William) Dundas v Orkney & Shetland Heritors (1777) 5 Brown's Supp 609 rehabilitated udal principles and in 1779 Dundas v Officers of State established that the existing Right of Skat, paid to the Earl derived from Norwegian Crown.
6. The 1903-5 Smith v Lerwick Harbour Trustees 1903 5 F. 680 is authority for survival of udal law in land tenure ‘from hill to lowest ebb'. Lord KINNEAR found the Land Law of Shetland to be allodial not feudal. Private owners had dominium in the Roman Law sense.

that Parliament and Tings have at no time overthrown, replaced or revoked the Norse Law of Orkney and Shetland. Norse Law remains the legal framework of the Isles, however compromised, overlain or contradicted by the [illegal] intrusion of Scots, feudal Law.

Search should be made for copies of the Orkney and Shetland Lawbooks.

1. No sooner had the pawning been agreed than the ‘Scottishification’ of the Isles was accelerated. This had begun no later than 1379 when Earl Henry Sinclair was granted the Earldom of Orkney (Sysselman in Shetland?). The last known Orcadian legal document in Norse is dated 1426. The Orkney Lawman was using Scots in 1436. The last Shetland legal document known to be in Norse was dated 1607.
2. Within 16 months of Shetland’s pawn, on 17 Sept 1470 James III & Earl William Sinclair, by excambion, swapped Ravenscraig, Fife for Kirkwall Castle et toto jure ejus comitatus orchadie. The Earl kept his 'conquest lands' in the Isles. During the period 17 Feb 1471/72 the Earldom was annexed to the Scots Crown, this being confirmed by Act of Parliament on 20 May 1471 Scots Acts 1471, c.4. The Scottish Crown now had the Tax income, the Castle and the local government of Orkney and Shetland.
3. In 1611 the Lawbooks appeared to have been ignored by the Privy Council whilst dealing with Patrick Stewart for treason and making his own (‘foreign’?) laws as he went along. As a precaution, the Lawbooks appear already to have been destroyed by Stewart [Mackenzie p.3, Dobie 1936 p.451]. The Privy Council would have been aware that revision of Norse Law was under consideration in Copenhagen by Christian IV [see Peterkin, 1822]. Blocking the application of any of Christian IV's revisions in the Isles may have been a consideration. In the event the Privy Council proscribed 'foreign laws'. This was of questionable legality for Orkney and Shetland, where both Scots Law and Stewart’s inventions were ‘foreign’. The Privy Council Order was neither supported by Parliament nor ratified by the Tings. In this context the Privy Council Order could be interpreted as confirming, rather than proscribing Udal Law, whatever the ulterior motives of the members of the Privy Council and James VI & I might have been.
4. 4 years later, in 1615 the Scalloway Thing did support ‘the King's laws (against Patrick Stewart et al's? Donaldson, G Problems of Sovereignty. Miscellany II Stair Soc vol 35 Sellar, D (Ed) 1984, p.34.)’. To which king did this refer? Danish or Scots? Was this an intended ambiguity as Redemption remained a reality?
5. By a 12 Feb 1707 Crown Charter and an Act of Parliament in 1742, the Earldom of Orkney and Lordship of Shetland were made over to the Earl of Morton (Crawford, BE 1967-8 Earldom of Orkney & Lordship of Shetland: a reinterpretation of their pledging. XVII Saga-Book of theViking Society 1967-68). In 1766 the Estate was sold to the Dundas Family
6. Balfour in his 'Oppressions of the XVIth Century in the Islands of Orkney & Zetland', 1859 noted that Acts of Parliament had been repeatedly broached by Crown and courtier alike.
7. Lord LEE in Bruce v Smith (1890) 17R.1000 accepted that Shetland was different, except where subject to legislation and gradual adoption (apparently even through illegal or criminal imposition). He accepted as valid Sellar’s 'Legal imperialism' in which imposed custom (legal or illegal, fair or otherwise, right or wrong) is accepted as a source of law.
8. In Lord Advocate v University of Aberdeen and Budge 1963 S.C. 533 Lord PATRICK backed his namesake in holding that feudal Scots Law had 'replaced' Norse allodial Law. He directed that udal tenure, skat, skattold (commonty right) and some weights and measures were all that were left of Orkney & Shetland Law. Lord Patrick found that Norse Law had lapsed by 'gradual abandonment.' Like Czech Law was gradually abandoned in 1939. German Law was abandoned in the Russian Zone in 1945. Laws broken by superior force are still law until the people (Scots or UK Parliament + Ting approval) change them. In practice this was a blatant Court of Session attempt to suppress and replace inconvenient, Udal Law in Orkney & Shetland by Scots Law as practiced and understood in Edinburgh. Achetypal Legal imperialism.

That the veneer of Scots Law and practice in Orkney & Shetland is the product of Legal Imperialism, where Law is imposed and applied as is convenient or advantageous to the powerful. Now that Imperialism and Feudalism are past, the abolition of the Feudal basis of Scots Law enables the burden and encrustation of Norse Law by illegal Scots’ practice to be removed. ‘Descottified’.

QUESTION: exactly what did the Danish Crown pawn to the Scots’ Crown for Redemption by payment at a later date?

1. When on 8 Sept 1468 Orkney was pawned, the impignoration was of ‘our lands of the islands of Orkney’. Was this the Crown estate or whole archipelago? There was no mention of the seas. Shetland followed Orkney into pawn in 1469. ‘Impignorated’ is to be placed in pawn, pledged, mortgaged (SOED). Pawned objects are not to be changed, but held in pledge until redeemed by payment of the outstanding amount.
2. The Right of Redemption was confirmed on 28 May 1469 (Kirkwall Charters, 3rd Spalding Club,1952 pp 96-102). King Christian I then wrote letters of instruction to Orkney and Shetland instructing payment of skat to King of Scotland until Redemption.

• The Danish Crown Estates and the annual tax (skat) paid to the Sovereign for the upkeep of the state were to be paid, until Redemption, to the Scottish Crown.
• Apart from skat, there was no mention of the other udal duties of life and time for the Defence of the Realm until Redemption.
• Local Government and the keeping of the peace remained the responsibility of the Earl as the Monarch’s representative. Whilst William Sinclair retained the other property he held in the Isles, Kirkwall Castle and the office of Earl, the Earldom were transferred to the Scottish Crown at the earliest opportunity [20 May 1471 Scots Acts 1471, c.4.].
• Thereby the Scots King obtained both the Revenue and the government of the Isles. But the Crown’s property was limited to Kirkwall Castle in an allodial system. There was no mention of the sea, the continental shelf or of the Fishing and Sealing Grounds, which under Norse Law belonged to the Udallers and the local communities.
• 240 years later, government, income and honour were dissociated. Gathering income by other means, the Crown passed the Earldom to the Earl of Morton [12 Feb 1707 Crown Charter and Act of Parliament 1742: Crawford, BE 1967-8 Earldom of Orkney & Lordship of Shetland: a reinterpretation of their pledging. XVII Saga-Book of theViking Society 1967-68]. The associated estates were subsequently sold on as a commercial transaction to the Dundas Family in 1766.
• This leaves the British Crown with the Government of Orkney and Shetland until Redemption or some mutually agreed alternative arrangement is made.

QUESTION: who owns what under Norse Law?

1. On the land the udal landholder holds his or her property direct from God. The Crown has no part of it. The foreshore to spring low ebb belongs to the littoral udaller, with local custom of access. Ownership extends thence to a depth that allowed nets to be set.
2. Beyond this the sea belongs to the coastal community, out to the marebekke, where the water became deep [the edge of the Continental Shelf] and also where that Community could fish and seal. The ‘sea’ was taken to mean the sea itself, its contents and its bed, as an extension of the foreshore. Just as in Faeroe and Iceland today. An individual could possess a particular fishing or sealing ground by public ‘billet’. But in practice, under Norse Law, the Orkney and Shetland Fishing communities own the sea to the Medial Line with Faeroe and the mid point of the Norwegian Trench.
3. In 1468 Orkney and Shetland were the same as Faeroe and Iceland. What has happened in the interval?

1. In 1415 King Erik of Norway/Denmark complained to Henry V of English infringement of Icelandic fishing rights off Iceland. Henry V accepted Norse legal practice and prohibiting English fishing in Norse or Danish island waters (included Orkney & Shetland). Later, in both 1481 & 1527 English fishermen were forbidden by the English Government to winter in Iceland. In 1532, King Frederick raised fishing concerns with Henry VIII Tudor. The English were once again fishing within traditional Icelandic fishing grounds, in the territorial seas which (like wrack on the foreshore) under Norse Udal Law belonged to the adjacent island communities.
2. Early Scots fishing policy paralleled Norse practice. Restrictive measures were taken to exclude fishing by others than the Local community within 'Land-kenning' [sight of land, probably from Old Norse]. In 1540 James V raised with the Bremen Magistrates German 'nearer the land' fishing in Shetland, Orkney and northern Scotland. In 1594 the Dutch agreed 'not (to fish) within sight of shore, in loughs or between islands’. This closed the Burra Haaf in clear weather
3. 14 mile Fishing Limits were agreed in 1604 and 1619 following negotiations between Scots and English representatives, the Dutch Estates General and Charles I's Fishing Association. (Fulton 84, 192, 223. APS v pp 234ff). In 1610 ‘Land kenning’ was defined as land seen from main tops (Fulton p.154). In 1618 Denmark complained to the Scots Privy Council over incursions into Faeroe Fishing Ground. The Scots replied that they had been forced out of Orkney and Shetland waters by Dutch encroachment. The Scots accepted that the law of nations reserves fishing to the adjacent territorial population and Scots were forbidden to fish within sight of ‘Fara’.
4. Infringements of similar Orkney and Shetland possessory Fishing Rights led in the same year, 1618, to a formal complaint to the King ‘as head of the nation’ and to whom was paid skat for national defence. [Foreign] Fishing was taking place 'within His Majesty's seas in Scotland (even though, technically the Seas were not His Majesty’s property in Orkney & Shetland, rather those of his local subjects. The seas were here considered to be part of the realm to which they were pawned)’. On 14 May 1618 James VI & I instructed Sir Dudley Carleton that by 'ancient custom, no stranger to fish within kenning of the land'. Following this the 14 mile limit was re-adopted in 1619. Welwood reported that later, in 1622, the Dutch agreed to keep 80 miles off shore.
5. Thereafter English treaty policy was to attempt to ensure the Freedom of the Seas. Northern practice continued to consider them closed and the property of the adjacent maritime population. Campbell v Hall (1774) I Cowp 204, 20 State Tr 239 demonstrated that the Crown's property prerogatives had not been extended by law to Shetland. Dundas v Orkney & Shetland Heritors (1777) 5 Brown's Supp 609 re-established udal principles and the Lord Advocate v Balfour, 1907 confirmed udal/norse ownership of fishing.
6. Despite this the 1961 Crown Estates Act 1961 ignored Orkney & Shetland peculiarities and interest. Commissioners rather than Crown itself were to run Crown property which taken to include the Foreshore and the Sea Bed, even though this was not so in Orkney and Shetland. An anomaly is that this ownership was to be the 'same as before'. Technically Orkney and Shetland continued to own their own seas, sea bed and all therein or under is, so long as they can fish or seal the waters or they are on the adjacent Continental Shelf.
7. The 1964 Territorial Waters Order in Council & the 1987 Act 'assumed' Crown ownership of the seabed though McCLUCKEY rejected it. In their ignorance and despite the ‘same as before’ of the 1961 Act, the Union parliament at Westminster assumed and continued to assume that Scots Law applies to Shetland waters. The Continental Shelf Act 1964 went on to vest the Crown with the Continental Shelf's natural resources. That this robbed Orkney and Shetland of their legal, historical and vital resources was ignored. The fact that, geologically, there was accessible oil in Isles’ waters north-west of Orkney and Shetland was subject to public ridicule by the local MP. In the event Crown monopoly was assumed (of 45% of the UK’s total area.) and local Tory concerns over-ruled. This rape and betrayal of the Isles’ vital long-term oil, fishing, sea farming and mineral interests has since been forgotten. An indication of what should be, what still are Orkney and Shetland’s Rights can be gauged by reference to Faeroe.
8. Under the 1987 Territorial Sea Bill, the Crown passed its interest to the disposal of Parliament. Orkney and Shetland’s waters were not the Crown’s to give. Parliament can & should pass it back to the rightful owners, who owned the sea before 1486. This could have been tested in SLT 166 Shetland Salmon Fishing Association & The Port & Harbour of Lerwick v Crown Estates Commissioners, 1991. It wasn’t. The case should have gone to the Lords, at least to be debated there. It did not. In the event udal ownership of the sea, Fishings and the sea bed was not raised. Why not? The Crown now charges by default, like the Irskine Bridge Toll for which there was no legal basis. A further example of failure of local Parliamentary representation. But the present situation enables Parliament to right the wrongs of 1964 and return Orkney and Shetland waters and their seabed to the rightful owners – the people of Orkney and Shetland.

Legally, nothing has happened which should deny Orkney and Shetland the full benefit of their natural resources under Norse Law. In strict legal terms the situation is similar to that in Faeroe. The difference is that Orkney and Shetland have passively allowed their seas, Fishing and Seabed rights to be appropriated without legal justification, Parliamentary sanction or Parliamentary opposition.

The juridical basis of the Crown’s claim to the ownership of the seabed remains unclear. Does it lie in the Crown’s right of property as feudal superior, or does it vest in an attribute of sovereignty unrelated to feudalism? Given that, as discussed earlier, it has been judicially accepted that the Crown was never the feudal superior of Orkney and Shetland, the answer to the question must be of considerable importance there, as it would be impossible to argue consistently that the Crown should enjoy in the Northern Isles these patrimonial rights which arise out of its position in Scotland as feudal superior. Stair Memorial Encyclopedia - Aspects of Udal Law - 316, The seabed.

2.7. OWNERSHIP OF THE SEABED IN ORKNEY AND SHETLAND WATERS UNDER NORSE/UDAL LAW.

1. A prime example of stealing by stealth is the questionable judicial basis on which the Crown presumes its seabed rights. The Crown’s right to the seabed in Orkney and Shetland waters is unclear. It is feudal in Scotland and England. But no such Crown feudal Rights exist in Orkney and Shetland. The Crown cannot therefore rely on feudal rights. Norse seabed ownership extends out to the Marebekke, effectively the edge of the Continental Shelf. Fishing rights are likewise territorial and extend local ownership as far as one can fish in one’s adjacent waters [this takes Orkney and Shetland’s waters, like Faeroe’s, to the Median Line].
2. The reality of the Orkney and Shetland situation was ignored by the Crown, the UK Government, Parliament and local MP when 1100 years of ownership, recognition and practice were abrogated by the 1964 Continental Shelf Act and associated Privy Council Territorial Waters Order, 1964. Orkney and Shetland’s vital maritime resources were stolen without thought or Parliamentary objection. However Acts of Parliament can be revoked. This act was not ratified by the Tings, a key part of any change in Norse and Udal Law. It remains technically invalid and ‘illegal’ in Orkney and Shetland, out to the Faeroe Median Line and to the middle of the Norwegian Trench. At Law it is not locally applicable.
3. The 1973 Protection of Wrecks Act (c33), s 3 was compatible with Norse Law in that it treated the foreshore in Norse fashion as part of seabed. Harold Wilson’s gift of Orkney and Shetland Continental shelf to Norway, east of the Anglo-Norwegian Median Line [giving >30% of Orkney and Shetland’s Continental shelf to Norway] had no legal basis, except that Orkney and Shetland did not object. We need now to do just that. Error committed does not mean that error cannot or should not be reversed and set to right.
4. The 1987 Territorial Sea Act contains no agreement of Parliament and people [through the Tings] on ownership of seabed within the 12 mile UK zone. The Crown’s claims to Seabed Rights have not been a democratically agreed in Orkney and Shetland. Sovereignty does not provide property in Orkney and Shetland. Property in Norse Law covers the adjacent Continental Shelf and that part of the ocean which can be fished or sealed by the udallers (or community) adjacent to it.

The Crown’s usurpation of Orkney and Shetland’s seabed property can, at best, be only as a trustee. It was only possible due to lack of Parliamentary opposition. If a trustee, what obligations and duties does the Crown owe the Isles? For one, it is likely that the equivalent of 60,000 Florins of the Rhine have long since been extracted from the Orkney and Shetland Communities leaving Redemption a formality if Norway should apply and the Tings and people of Orkney and Shetland should so wish.

1. The abolition of Feudal Law in Scotland and the previous directions of the Scottish Parliament afford an opportunity to review the Orkney and Shetland situation. Though at present an apparently prosperous part of the United Kingdom, that prosperity is not based on the natural resources available to the Isles.
2. If the Isles’ communities are to survive in the long-term, that survival must be based on the return of their local natural resources.
3. In Norse Law ‘local’ includes the local Continental Shelf and the local Seas and all that therin and thereunder is, so far out as one can fish and seal in them. Current Fishing technology in the isles means that ‘local’ seas abutt on Faeroe, Norway and Scotland. Scotland is for the moment feudal. The Crown right of all property under Feudal Law in Scotland is accepted. But Faeroe, Norway, Orkney and Shetland are Norse. Udal, not feudal. Under Udal Law the Orkney and Shetland communities own the sea and all that therein and thereunder is to the Median lines with Scotland and between the edges of the Fareoe, Orkney/Shetland and Norwegian Continental .
4. All other territories annexed to the Scots Crown and British Empire, except Orkney and Shetland, have been afforded the Right of Self-Determination. That Right is available and long over-due.
5. For Orkney and Shetland there are three options.

1. The traditional: do nothing and allow the resources on which our children should rightly be able to be depend, to be exploited by and for others.
2. Norway applies for Redemption and the balance on account. This would allow the restoration of Norse Law, determined by the Norwegian Crown on the advice of a Norwegian Parliament containing Orkney and Shetland members and ratified by Orkney and Shetland Tings.
3. Remain part of the United Kingdom, but with the Scots Parliament restoring Orkney and Shetland’s Rights and Law, as they have previously directed. Whether the Scots Government is prepared to re-negotiate EuroFishing Policy to establish a Faeroe-style Fishing zone around Orkney and Shetland remains to be seen. The UK Government’s attitude to a restoration of Orkney and Shetland Maritime Rights needs to be determined. Likewise the form Orkney and Shetland Law and government would take following the Scots and UK Governments’ proposed accession to the European Empire will need to be defined.

1. PROPOSALS:

1. That the three options, above, be presented to the Orkney and Shetland Communities, to be determined by local vote.
2. That all three options have their advantages and disadvantages. Work should now proceed to establish the best option for the Isles and then back it in a local Referendum.