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This is Brian Smith's reply in The Shetland Times 27th June, together with the responses on 4th July:
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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 Scottish Historical Documents , Glasgow 1974, pp.34-6. 2.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 Lagabøter'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 Lagabøters 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. abrævi., Tórshavn 1971, which contains English translations. On Iceland I am far less expert, but an introductory guide is Jón Jóhannesson, 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.
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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.
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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!
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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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