UDAL LAW CHRONOLOGY
872 Udal/odel law introduced by original Norse settlers. Accepted as the Law of the Isles when they were conquered by Harald Harfagar in 872.
1037-47 Orkney and Shetland Udal Law Codified by Magnus the Good
1266 Treaty of Perth, Western Isles to transfer the western isles to Scots Law. No such arrangement for Orkney and Shetland in 1468-9
1274 Magnus Hakonsson the Law-mender's new Code accepted by Gulathing (Bergen). The 1274 Legal Code held in Orkney and Shetland at the time of impignoration
1379 Earl Henry Sinclair granted Earldom (Sysselman in Shetland?)
1415 King Erik of Norway/Denmark complained to Henry V of English infringement of Icelandic fishing rights off Iceland. Norse ownership extends out to the Marebekke - the edge of the Continental Shelf and where one can fish and catch seals. Henry V prohibited English fishing in Norse or Danish island waters (included Orkney & Shetland).
1420 Bishop Thomas Tulloch undertook for King Erik to abide by Norse Lawbook
1420's Early Scots restrictive measures. No fishing in 'Land-kenning' [sight of land]. Scots Law long aware of Fishing Rights of local population.
1424 Complaint against David Menzies.
1425 Petition for observance of the ‘Laws of St Oaf (Clouston, S, (Ed) 1914 Records of the Earldom of Orkney, 18, 19 )’ (REO)
1426 Last known Orcadian legal document in Norse.
1436 Orkney Lawman using Scots.
8 Sept 1468 Orkney pawned. Impignoration ‘our lands of the islands of Orkney’. Crown estates or whole archipelago? No mention of the seas
1468 &1469 Orkney, then Shetland impignorated, placed in pawn, pledged, mortgaged (SOED). Pawned objects are not to be changed. Held in pledge until redeemed by payment of outstanding amount.
28 May 1469 Right of Redemption (Kirkwall Charters, 3rd Spalding Club,1952 pp 96-102).
K Christian I letter to Orkney and Shetland instructing payment of skat to King of Scotland until Redemption.
17 Sept 1470 James III & Earl William Sinclair excambion, Ravenscraig, Fife exchanged for Kirkwall Castle et toto jure ejus comitatus orchadie. Earl left his 'conquest lands'.
17 Feb 1471/72 Earldom annexed to the Scots Crown.
1471 20 May & 8 Sept 1468 Scots Acts 1471, c.4.
1481 & 1527 English forbidden by English Government to winter in Iceland.
1485 Shetland Land Settlement by Court in Bergen, 1485, 16 years after impignoration.
Early 1500's Scottish Privy Council see the Shetland Lawbook.
1527 English forbidden by English Government to winter in Iceland.
1532 King Frederick to Henry VIII: English fishing in traditional Icelandic fishing grounds. Fishing in territorial seas (like wrack on the forshore) belonged to the island communities.
1538 Bergen Court confirmation of Shetland Court judgement under Gulathing Law of the Norwegian judicial & legislative assembly (O&S Lawbook had recently disappeared at the hand of Earl Patrick Stuart), REO 43.
1540 James V to Bremen Magistrates re 'nearer the land' fishing in Shetland, Orkney and north Scotland.
1567 Scottish Parliament ruled that Orkney & Shetland should be subject to and enjoy their ‘own’ norse law rather than Scots Law. Orkney and Shetland recognised as different by Scots Parliament (APS iii 41). Last time considered in Parliament?
1569 Digges,T 1569 Kings held the seas, in feudal manner, therefore Northern Seas remain Norwegian/Danish as not contained in 1468-9 impignoration.
1575-7 Orkney Lawbook produced for the Scots Privy Council. Then disappeared. Privy Council found on case under Orkney Law.
1594 Dutch agreement 'not (to fish) within sight of shore (land?), in loughs or between islands (allowing for poor visibility?). The Burra Haaf closed?
Law Books of Orkney and Shetland destroyed by Patrick Stuart, 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.
1600's Shetland Lawbook disappears
1602-4 Shetland Court applying Magnus Code.
1604, 1619 14 mile limit agreed by Scots, English, Dutch Estates General and Charles I's Fishing Association. (Fulton 84, 192, 223. APS v pp 234ff)
No English notion of fishings before accession of James VI & I (Fulton TW, Sovereignty of the Seas. 1911 p.75)
1607 Last Shetland legal document in Norse.
1610 ‘Land kenning’ land seen from main tops (Fulton p.154)
1611 Lawbooks being ignored. Privy Council dealing with Patrick Stewart for treason and making his own (‘foreign’?) laws. Blocking Christian IV's revisions? Privy Council ruling. Proscribed 'foreign laws'. Of questionable legality for Orkney and Shetland. For Orkney and Shetland, Scots Law was foreign. The Privy Council order could be taken 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. Earl Patrick Stewart under arrest for inventing his own laws as he went along. Revision of Norse Law know to be under consideration in Copenhagen by Christian IV. See Peterkin, 1822.
1615 Scalloway Thing supports 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. Which king? Danish or Scots? Intended ambiguity as Redemption understood.
1618 Danish complaints to Scots Privy Council for Faeroe Fishing Ground intrusions. Scots reply that they had been forced out of Orkney and Shetland waters by Dutch encroachment. Scots forbidden to fish within sight of ‘Fara’. Scots reply accepts that the law of nations reserves fishing to the adjacent territorial population.
1618 Orkney and Shetland possessory Fishing Rights in 1618 complaint to King as head of nation to whom they paid skat for national defence, fishing 'within His Majesty's seas in Scotland (Seas not His Majesty’s in Orkney & Shetland). Until redeemed and again Norse seas?
14 May 1618 James VI & I to Sir Dudley Carleton 'ancient custom, no stranger to (be allowed to) fish within kenning of the land'.
English treaties thereafter to ensure the Freedom of the Seas, Northern practice to consider them closed and the property of the adjacent population.
1622 Welwood (1622) Dutch agree to keep 80 miles off shore.
1635 Selden 'Mare Clausum' Charles I considered proprietorial Lord of the Sea. But Charles King of England and Scotland. His Scots Parliament accepted that Orkney & Shetland’s Legal framework was, is different.
1667 Breda: Treaty and Peace of Breda 1667 Right of Redemption determined that redemption was unprescribed and imprescribable (Drever, 1933, p.323).
December 1669 Act of Annexation of Orkney and Shetland. Charles II brings the islands under his direct dependence with 'no lord or superior betwixt'. In effect declares them a Crown Dependency 'for all tyme comeing'.
12 Feb 1707 Crown Charter and Act of Parliament 1742: Earldom of Orkney and Lordship of Shetland to 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)
1750-1759 Orkney udallers and heritors v Earl of Morton alais Earl of Galloway and others v Earl of Morton, the ‘Poundlar’ Case referred to Bergen for proof as cognisant of Orkney Law (Drever, WP 1933 Udal Law in Dunedein & Wark (Eds) Encyclopaedia of the Lawsof Scotland 15:para 713).
1752 Earl of Galloway v Earl of Morton, scat left undecided as alternative to Parliament's General land Tax (O&S paid both) Disc WPLThomson
1766 Estate sold to Dundas Family
1774 Campbell v Hall (1774) I Cowp 204, 20 State Tr 239 Crown's property prerogatives had not been extended by law to Shetland.
1777 Sir William Dundas v Orkney & Shetland Heritors (1777) 5 Brown's Supp 609 rehabilitated udal principles.
1779 Dundas v Officers of State. Right of Skat to earl derived from Norwegian Crown
1814 Treaty of Kiel, sovereignty of Orkney and Shetland back from Denmark to Norway
1829 Chitty 1829 'Law of the Prerogatives of the Crown'. ‘Sovereignty is ownership through jurisdiction’ – to the blinkered feudal eye. Short thrift for this in the USA and States’ constitutions.
1822 Peterkin 1822 'Notes on Orkney & Zetland’, see p.132-133 for comment on 1611 Privy Council ruling.
1832 Beaton v Gaudie (1832) 10 S. 286 Land could be feudalised by the acceptance of a charter from the King, but the King must first own the land on which he gives the charter - which precludes much of Orkney and all of Shetland.
1836 Mackenzie 1836 'The general grievances and oppressions of the Isles of Orkney and Shetland' (1836), p.1. Redeemed?
1859 Balfour, 1859 'Oppressions of the XVIth Century in the Islands of Orkney & Zetland' 1859. Acts of Parliament repeatedly broached by Crown and courtier alike.
1875 Hale Essay on the Rights of the Crown in the Sea Shore. 2nd Ed, Loveland, 1875 Definitive title of the King of England to aqua maris cooperta. This makes all in England tenants of the King whilst the English sea belongs to the English king. But does not hold in Orkney & Shetland.
1890 Lord LEE in Bruce v Smith (1890) 17R.1000 Shetland different, except by legislation and gradual adoption (through criminal activity?). 'Legal imperialism' (Sellar), imposed custom (legal or illegal, fair or otherwise, right or wrong) as a source of law.
1903-5 Smith v Lerwick Harbour Trustees 1903 5 F. 680 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, dominium in Roman Law sense. Crown the sovereign but not the universal landlord.
1904 Drever, WP ‘Udal Law on the Foreshore’ 1904 J.R. 89
1907 JOHNSON, Lord in Lord Advocate v Balfour 1907 S.C. 1360 establishes udal/norse ownership of fishing.Crown had no right to salmon fisheries prior to 1468, therefore none now. Found salmon subject to Udal not feudal law. Even though Balfour also held feudal land! Feudal System of Scotland was, is not the (legal) system of Orkney. Lord Johnston found that 'nothing has occurred since 1468 which amounts to a general acceptance in Orkney of the Scots Feudal System, and still less of its customary incidents'. 1907 SC 1360 at 1368. 15 SLT 7 at 11. OH
1907-13 Johnston AW & A 1907-13 Orkney & Shetland Records no.57
1913 Isaacs, J in Williams v Attorney-General for New South Wales (1913) 16 C.L.R. 404 found that colonization extended feudal ownership to the colony. Orkney & Shetland not colonies and already had a long established legal and constitutional position. If colonies, all colonies allowed self-determination.
1920 Johnson 1920 'Odal Law in Orkney & Shetland' in Old Lore Miscellany of Orkney, Shetland, etc (1920) Vol VII p47 Udal Laws codified.
Lord Dunedin on ‘prerogative in Attorney-General v De Kayser's Royal Hotel Ltd (1920) A.C.508 p.526. See Dicey, 1959.
1929 Brogger, AW 1929 Ancient Emigrants, OUP quoted by Dobie 1931 p.122 Orkney & Shetland redemption improbable.
1933 Drever 1933 'Udal Law' in Wark [Dunedin et al] 'Encyclopedia of Scots Law' 3rd Ed 1933, p.321
b LARSON, LM 1935 Laurence M Larson, Earliest Norwegian Laws, being the Gulathing Law and the Frostathing Law, 1935.
1936 Dobie 1936 The sources and literature of Scots Law. The Stair Society, 1936. s.37 ‘Udal Law’ at p.447. Also ‘Allodial Law’.
1945 Truman Doctrine on Continental Self. US adopt the Norse Law principle of ownership out to the Marebekke, the edge of udal ownership where the water becomes fathomless. Norse Law ownership also extended to where one could Fish or catch seals. Today, Orkney and Shetland’s waters extend to the Median Line with Faeroe and the Norwegian Trench. The Orkney and Shetland Shelf was not Harold WILSON’s to give to the Norwegians.
1951 Lerwick Harbour Trust v Moar 1951 SLT (Sh Ct) 46. No udal rights passed to Feudal tenure.
1954 Dickinson 1954 ‘Odal rights and feudal wrong' in Simpson, Ed '1950 Viking Congress' 1954 p.142. See p.146 for 1538 Bergen Court confirmation of Shetland Court judgement under Gulting Law (O&S Lawbook had recently disappeared at the hand of Earl Patrick Stuart).
1955 Rockall annexed by Admiralty to the Crown. The Crown then had allodial right to Rockall. Incorporated in Inverness County as part of the Western Isles and therefore subject to Scots Feudal Law under the 1266 Perth Treaty.
1959 Dicey 'An introduction to the study of the Law of the Constitution' 10th Ed. 1959 p.424 defines 'Prerogative' as residual, discretionary authority left in the hands of the Crown at any given time' (ie. when no one thinks, or thinks of something better). This is the sense in and quoted by Lord Dunedin in Attorney-General v De Kayser's Royal Hotel Ltd (1920) A.C.508 p.526.
1961 Crown Estates Act 1961-Commissioners rather than Crown itself. Property includes Foreshore and sea bed. But 'same as before'. Ignored Orkney & Shetland peculiarities and interest.
1963 Lord Advocate v University of Aberdeen and Budge 1963 S.C. 533 The 1274 King Magnus Hakonsson legal code held in Orkney and Shetland at impignoration. As did existing law in the Cape, Ceylon and Quebec, when they were annexed. Not just pawned for later redemption. Their laws were not changed. St Ninian's treasure buried for the benefit of either that or later owners. Same as Norwegians burying their treasure in 1940. Still theirs in 1945. Yet Lord PATRICK found that the Crown's right in this case, in Shetland, resided in 'sovereignty'. The same sovereignty in Quebec, etc, did not change their laws. PATRICK backed his namesake in holding that feudal Scots Law had 'replaced' Norse allodial Law. He directed that only udal tenure, skat, skattald (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. It was a clear Court of Session attempt to suppress and replace Udal Law in Orkney & Shetland by Scots Law. Legal imperialism again. Lord HUNTER,1963 S.C.533 p.540 defined Udal 'survivals'. This could be taken to the European Court with the precedent of restoration of Jewish and other rights and property previously subject to Nazi confiscation. Just because law has been broken does not mean it has or should be overthrown. At the same time Udal is to Scots Law what Scots is to English Law and English to EuroLaw.
1964 The 1964 Territorial Waters Order in Council & the 1987 Act 'assumed' Crown ownership of the seabed. McCLUSCKEY rejected this. All had assumed Scots Law applied to Shetland waters. Took PATRICK as read?
1964 The Continental Shelf Act 1964 vests Crown with the Continental Shelf's natural resources. Was the Orkney & Shetland situation raised by the responsible MP? In the event Crown monopoly assumed (of 45% of the UK’s total area.)
1968 Diplock in Post Office v Estuary Radio Ltd (1968) 2 Q.B. 740, allowed that the Crown can extend its sovereignty to takeout Pop Radio stations, in England. Does extending sovereignty automatically extend the Crown's right of property? Diplock finding under English Feudal Law, not under Norse Law where the shoreholders hold the sea to the edge of the Continental Shelf or where they could fish and hunt seals.
1969 Crawford 1969 'The pawning of Orkney & Shetland' 1969 Scottish Historical Review 35:48
1971 Town & Country Planning Act 1971, the legal basis of Fish Farming control. Classifies them as 'agriculture'. Common Law Rights of the Crown as 'owner of the foreshore and sea bed'. Orkney and Shetland situation not raised in Parliament.
1972 Island of Rockall Act of Parliament incorporated Rockall as part of Scotland under Scots Law. Therefore its was established as under Feudal Law and owned ultimately, allodially by the Queen, together with its 200 mile coastal zones and continental shelf.
Nicolson (1972) 'Shetland' p.72 reports the right to set salmon nets by ancient useage (beyond the ebb?).
1973 Smith, T 1973 'The law relating to the treasure' in Smith,Thomas & Wilson St Ninian's Isle and its Treasure, 1973, p.157 discusses Gulthing Law - example of district laws and their differences in Norse times.
Protection of Wrecks Act, 1973 (c33), s 3 foreshore as part of seabed
1974 Halsbury supports the Crown's prerogative right of property of the sea and seabed in Halsbury's Laws of England (4th Ed, 1974) Vol VIII para.1418. Yet this is without quoted authority and for ENGLAND. English Law does not hold in Scotland, let alone Orkney and Shetland.
1974 Wharam, A The Seashore. J Planning & Environmental Kaw 1974:705
1974 Windeyer 1974 The Seabed in Law (1974) 6F.L.R.1 p.9 suggests that imperium begat dominium but this still leaves British Crown ownership unjustified in Orkney & Shetland waters, to the edge of the Continental Shelf. EuroControl of Orkney & Shetland waters technically illegal as they were given by the UK Parliament when not available for gift, having the same status as Faeroe. The UK Government and Parliament Seabed presumed Orkney and Shetland and their waters were feudal.
1976 Gardiner, DL 1976 'Legal storm clouds over Rockall' 197 S.L.T. (News) 257-262 and 276, 288
1977 Dowrick. Submarine Areas around Great Britain. Public Law 1977:10.
1978 DONALDSON, Gordon, ‘Norse and Scottish Law in Shetland; the Background’, in Nevis Institute, The Shetland Report; a Constitutional Study, 1978.
1978 Gibson, J The ownership of the Sea Bed under British Territorial Waters. International Relations 6 (1978) 474.
1978 Gibson, G On the Kingdom of the Shore. Lloyds Marine and Commercial Law Quarterly 1978:616
1978 SMITH, David, ‘Udal law’, in Nevis Institute, The Shetland Report; a Constitutional Study, 1978.
1979 DUNPARK, Lord in Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1976 S.C. 161 (Outer House) and 1979 S.C. 156 (Inner House) held that the right of the Crown to the seabed was a right of property under English and Scots Law. There was no thought of or attempt to established the Crown’s right to and ownership of the seabed until Lord DUNPARK’s finding. But English and Scots Law have no legal place in Orkney and Shetland, any more than in the Cape, Ceylon and Quebec.
1981 Marston 1981 'The Marginal Seabed'
1983 ROBBERSTAD, K 1983 Knut Robberstad, ‘Udal Law’, in Donald J.Withrington (ed.), Shetland and the Outside World, 1469-1969, University of Aberdeen/Oxford University Press, 1983.
1987 Under the 1987 Territorial Sea Bill including (c49) s 1(1)(a). the Crown passed its interest to the disposal of Parliament. Parliament can and should pass it back to the rightful owners who owned the sea before 1468. Were the Orkney and Shetland seas the Crown’s? The Act contains no agreement of Parliament and people on ownership of seabed within the 12mile UK zone. Therefore cannot be democratically agreed.
1988 Howarth, William, BA, LLM UC of Wales, Aberystwyth 1988 Jur Rev 1988 1:91-116 A Norse Saga: the Salmon, the Crown Estate and the Udal Law
1988 RYDER, Jane ‘Udal Law; an Introduction’, Northern Studies, Vol.25, 1988.
Churchill R & Lowe AV 1988, The Law of the Sea.2nd Ed pp65-68
1989 SMITH, T ‘Udal Law’, The Laws of Scotland; Stair Memorial Encyclopaedia, 1989.
1990 Shetland Salmon Farmers v Crown Estate (1990 SCL R 483).
1991 Marston, G 1991 CLJ 1991 50:384-486 The Crown's seabed estate - a valuable prerogative. The basis of the ownership of the sea and its bed, about Orkney and Shetland beyond Spring Low Ebb to the Continental Edge, has yet to be determined. Shetland Salmon Farmers Association & Lerwick Port Authority admitted in argument that udal title (and Udal Law itself?) did not apply beyond Spring Low Water. But did Norway pawn more than the Isles themselves? Is the sea Norwegian or Danish? What are the effects of the Law of the Sea Conferences and subsequent agreements? Even if udal law does not apply, where does the Crown get its title?
1991 Shetland Salmon Fishing Association & The Port & Harbour of Lerwick v Crown Estates Commissioners, 1991 SLT 166 should have gone to the Lords. Why, at least was it not debated there? Further failure of representation.
1996 JONES, Michael R H ‘Perceptions of Udal Law in Orkney and Shetland’, in Doreen Waugh and Brain Smith (eds.), Shetland’s Northern Links, Scottish Society for Northern Studies, 1996.
1997 Rockall given away by the Blair Government without Parliamentary debate. First act of UK dismemberment.
1997 CUSINE, DJ ‘Udal Law’, Northern Studies, Vol.32, 1997.
Tait, Charles Orkney Guide Book: Udal Law.