Udal Law
Udal Law (ON odal, land held in allodial tenure), is the ancient Norse system of inheritance and law which the Viking settlers brought wherever they settled. No trace remains of the previous legal system, which no doubt derived from the distant past with influences from earlier incomers, such as the Picts, but in Orkney it seems that that the Norse took total control of an existing pattern of settlement and then modified it.
About 1037 King Magnus The Good supervised the codification of the old laws, which of course applied to Orkney and Shetland as part of Norway. Later, in about 1274, King Magnus Lagabote (the Lawmender) was to go even further in revising and amending the law to suit the much changed times.
In essence Udal Law is totally different to Scots Law as appled to property. Udallers have absolute ownership of their land, with no superior, gained by holding the land over a number of generations, normally originally by settlement. This land was held in (unwritten) freehold, with no obligation except a duty to pay tax or skat to the king. The eldest son inherited the father's main residence, while the rest of the property was shared among siblings, daughters inheriting half as much as sons. Over the years this led to an extreme fragmentation of land ownership and, despite reform, left Orkney wide open to exploitation.
In particular the fact that no written documents were required to substantiate possession greatly confused the Scots. The lack of Title Deeds was much used by Scottish "landlords" and their lawyers, as one of the means of grabbing lands from the real owners. Considerable amounts of hill land are still held in this ancient manner, which can cause problems for public bodies at times.
There was a policy on the part of the Scottish Crown to acquire the Udal rights to land, because although the Scottish Parliament had "abolished" Norse Law in 1611, this could not be retrospective. Indeed in view of the pawned nature of the islands any Scottish Act over the Norse Law even now may be in doubt. Steadily Scots "landowners" acquired "ownership" of Udal lands by often dubious means, until the Udallers were very much reduced. Ironically this was eventually to lead to the downfall of the incoming laird class themselves.
The fundamental difficulty with Scotland was that the King was nominally the owner of all of the land, which was held by landlords with the Crown as superior, and with services and payments to be made, as well as a written title, whereas the Udal system was virtually the direct opposite. This remains incomprehensible to Edinburgh lawyers, well versed in Feudal Law but not in Udal Law. After the Impignoration the Udallers could no longer appeal to the King of Norway, and were thus exposed to abuse by the incoming Scots. However, now that the Scottish Parliament has abolished Feudal Law, interest has revived in the older laws.
Udal Law still exists today, most apparent in the ownership of the coastline. Whereas in the rest of Britain ownership of land extends only to the High Water mark, in Orkney and Shetland this extends to the lowest Spring ebb, plus variously as far as a stone can be thrown, or a horse can be waded, or a salmon net can be thrown.
This has enormous implications to building work, inshore fisheries and piers. Also anything arriving fortuitously on the shore is technically the property of the landowner. Naturally the lairds used Udal Law to control their lucrative Kelp-making trade.
Since the foreshore belongs to the adjacent landowner and is not Common Land, there is no absolute right of access to the inter-tidal zone in Orkney (or Shetland). However traditionally no one objects to folk going along the shore. If in doubt it is polite to ask. Norse ownership of the sea and seabed is claimed by some to have extended out to the Marebekke - the edge of the Continental Shelf - ownership of fishing, sealing and whaling rights were and remain important. However this is a hotly debated issue which is denied by many.
Although in 1468 Orkney and in 1469 Shetland were impignorated (mortgaged) to Scotland, and annexed in 1472, there have been many confirmations of the recognition of "Norse Laws" including by the Scottish Parliament in 1567. Further, in 1667, the Treaty and Peace of Breda confirmed the right of redemption was unprescribed and thus unprescribable.
Various cases during the 19th and 20th centuries confirmed the primacy of Udal Law in certain instances, while others did not. Whereas ownership of the foreshore seems to be accepted, the position regarding the sea and seabed is undecided. In all cases to date the Scottish High Court has ruled that the Crown owns these assets, but it is hard to see how the Crown morally can rule in favour of itself in such a case.
When the owner of the Queens Hotel in Lerwick argued that he owned the foreshore, this was upheld in 1903, when Lerwick Harbour Trustees claimed that they held the land under a Crown grant. A similar case in 1953 was won by the Trustees on the basis that the property was feudal, a status which applies to some Shetland property.
One interesting anomaly is the Mute Swan. About 1910 a Kirkwall lawyer was determined to prove that Udal Law still had force, and accompanied by his friend, the Procurator Fiscal, went out to Harray Loch and shot a swan. The case went to the High Court and the Crown lost. Everywhere else in UK the Crown owned the Swans - in Orkney they were, and still are, the property of the people as the Norwegian Crown never claimed such ownership. Nowadays we do not shoot swans, but the principles of the old Norse Udal Law still stand.
Udal Law was invoked in a 1965 attempt to keep the St Ninian's Isle Treasure in Shetland when the Crown claimed it as treasure trove. Not unnaturally the Crown's courts found in favour of itself, and now the Pictish silver languishes in Edinburgh, while visitors to Shetland can only see pale imitations.
In the mid-1970s when the Occidental Oil Company was building its pipeline to Flotta, it negotiated with the Crown Estate for rights to cross the foreshore at the end of the 4th Churchill Barrier at Cara without realising that the Crown has no authority over the intertidal zone in Orkney. The Company had apparently even paid the Crown Commissioners for a privilege that they had no authority to dispense when the landowner realised that his rights had been infringed. Thus state ignorance of Udal law continues to this day. The Crown had to admit the supremacy of Udal Law in this respect and refund their charges in favour of the actual landowner.
In 1990 the Court of Session ruled against Shetland Salmon Farmers Association and Lerwick Harbour Trust in their claim that the Crown could not own the seabed around the Northern Isles. The blatant farce of the Crown ruling for itself was of course ignored by politicians at the time. Lerwick Harbour Trust in this case argued for Udal Law, a change of position from 1903 and 1953.
More recently Udal Law again was invoked in Kirkwall by the owners of the foreshore below Shore Street when the Council decided to build a road along the foreshore. A similar situation occurred more recently with the construction of an access road and breakwater for the new Kirkwall marina, also by the Council. In both cases the local authority was forced to negotiate with the (udal) owners of the foreshore. While this may have held up the works, it also confirmed that Udal Law is alive and well, at least in the case of the foreshore.
Thus there has been little change in the attitude of Edinburgh lawyers in the last 600 years - they still treat the Udal Law with contempt - hopefully at their continued peril! The current debate about Udal Law has been fired by the attempt of the Crown estate to charge very large sums of "rent" for a new fibre optic cable which was to link Orkney and Shetland with Iceland and Scotland. The main result is that the cable now bypasses our islands. Along with local concerns about the control of fishing and fish farming, it seems that the Crown is going to have a hard time until a constitutional settlement of Orkney and Shetland's status is finally achieved - after well over 500 years of impignoration.
Orcadians and Shetlanders like to think that the classless society of today derives from the Udal tradition, where every man is equal, but also every man has an equal duty to society. We may be a mixture of Norse, Scots and others, but we are nevertheless independent by nature whateverway.
