The Al-odh-ial or Odh-al holding was the only tenure of land recognized in Scandinavian kingdoms. It was transmitted by Odin’s followers to their offspring, as the dearest of those free institutions which distinguished them from servile races, willing to hold their lands as the gift of a master; and in the end of the ninth century, was established in the Norwegian colonies of Orkney and Zetland as the rule and safeguard of all property, right and privilege enjoyed or claimed by king or subject. The Odal tenure, by simple primal occupancy, has been so long and generally superseded by the more complex Feudal theory of landed property, as the gift of the State or its chief, repaid by service or payment, conveyed by Charter and Saisine, subject to casualties and irritancies, and inherited by a single first-born heir by grace of the Superior, that perhaps it is most easy to realize the Odal idea as the absolute negation of every Feudal principle. The Odh-al-rædi or Right of Full Possession, was a tacit entail upon the Primal Occupant and his Heirs, of the Odalsjord won by his strong right hand, complete without a written title, subject to no service, payment or casualty, comprising every conceivable right of use, ownership and possession, and at his death, constituting in each of his children an equal, tacit title, inalienable while one Odal-born descendant should exist to claim the inheritance. The courtly Beneficium flowing from the Sovereign was the human invention of kingcraft; the Alodium in its grand simplicity was a direct gift to man from his Maker, by the true jus divinum. Such was the right of the Odaller; nor was that of the Odal-baarn a mere future contingency, but a present patent of nobility and privilege, not by writ or summons from a king, but by grace of God, and right of birth as a Friborinn and Thingman. He might take service as a Væringr, Hirdman or Husskarl, or till another’s land as Leigu-madr or Bolman—he might even sink into a Thræll, like Olaf Tryggveson, or rise like him to be a king, but his Odal-ræd was indelible. The throne was often filled or shared on the simple but admitted plea of descent from the founder of the kingdom, for the royal race was Odal-born to the Crown. The succession of the Orkneyar Jarl might be divided or disputed by many heirs; but though royal favour might aid, even royal power could not set aside one claimant Odal-born to the Jarldom; and after a life of roving, the Odal-born Væringr might seek rest by reclaiming from the stranger his Odalsjord in Norway, Iceland or Orkney, alienated in his boyhood or absence.
The present or contingent possession of land by Odal-ræd was thus the foundation of every right or franchise; and in the infancy of Odal society, no Law could be made or administered, no Tax imposed or levied, and no Power assumed or exercised by King or Jarl, without the sanction of the Althing or Council of Freemen, where King, Jarl, and Bishop, Odaller and Odal-born, were all and equally Thingmen.
The Althing was the simple prototype of a modern Parliament, but the assembly was primary, not representative; and the Estates met and voted together as in one Chamber. Whether assembled at stated times of Jol and Vor, or summoned by King or Jarl for special causes, by passing from hand to hand the Stefn-bod or Cross, the place of solemn meeting was the great Domring of Stenness, the Thing-stod in Magnus Kirk, or the Thingholm in Tingwall-vatn, under the Presidency of the Lawman of Orkney, or Foud of Zetland, the official Speakers of this Island Parliament. The Lawman was the judge appointed (in the early vigour of Odal independence) by the Thing, but afterwards by the King or Jarl, to keep the Book of the Laws, and to pronounce and ratify the Thing-Doms or Decreets by the Common Seal of Orkney, of which he was the custodier. The Foud was originally the Collector of the King’s Skatt and Mulcts, first appointed by King Sverrer on the confiscation of Zetland (1196); but his duties were afterwards assimilated, but subordinate, to those of the Lawman, and the salary of both was paid by an assessment called Thing-för-kaup. The Thing and Thing-stod were sacred both to Christian and Pagan, as a sanctuary where all forgot their feuds and met unarmed, with a security which weapons could neither win nor maintain elsewhere. Even the sentenced criminal was safe within its sacred Vebönd, and if he could win against his pursuers the race of life and death to the nearest Mör-steinn, Cross or Kirk, was presumed to have redeemed his life in sight of God and man. Much of the procedure was conducted by reference to the oath of the accused, and the Lawman’s oath, Saxter oath, Hirdman’s oath, &c., differed only in their degree of solemnity and number of compurgators. Besides the criminal penalties of death, forfeiture, or unlaw to the Crown, damages civil or criminal might be awarded, and accepted by the sufferers or their kin, with minute scrupulosity of compensation; and contempt of Court was visited by the additional infliction of a Dom-rof. In early times, the Althing enacted the laws which it administered, authorized and apportioned taxation, and virtually held the keys of peace and war, by granting or withholding the supplies; but having once compiled a Book of the Laws, it seems to have exercised its legislative functions but rarely, and, under the less solemn name of Lögthing or Lawting, to have restricted its consultations to matters of general administration, finance, police and judicature. Things of many other kinds and of inferior powers, summoned as occasion arose, were named from their objects, functions, or place of meeting, as the Leidar-Thing, Höf-Thing, or Huss-Thing, or sometimes styled Stefnar or Citations, as the Hirdman-Stefn or Council of Warriors. Each Herad, Hrepp, Skathald or Parish, regulated its local administration and assessments by a Herad-Stefn, Hreppa-mot or Vard-thing, assembled on its Ward Hill or round its Mör-steinn, where the Under-foud presided as the ruler’s representative, and the Lögrettman watched the interests of the Commons, and guarded and applied the Standards of weight and measure. A Schynd or inquest of Thingmen, sanctioned every Erffd or division of Odal heritage by its Skind-Bref or Schynd-bill, and in later times, confirmed every alienation of land-right by a similar document. Every three or four years the Vard-thing, headed by its Under-foud, “rode the Hagra,” or perambulated the march of the common, and exacted from all intruders on the Hagi or Skathald a rent of Hagleyffi, or a subsidiary Toldber-Skatt, for the benefit of the Heradsmen, Hreppsmen or Skat-brethren. Every seventh year the accumulated offences of the district were visited by a Thing of Skulding or Grand-reff for correction of abuses, where every offence had its appropriate Skuld or Fine. But no sentence affecting life or limb could be pronounced, except by the Althing or Lawthing, and every decision was founded on the principles of the venerated Lög-Bok. This Book of the Laws was probably a selection from the early Norse codes of the Gula-Thing and Frosta-Thing, and the later enactments of Sverrer, Magnus Lagabæter, and Haken the Fifth, with such additions and modifications as the circumstances of the Islands required, together with a record of former Dooms and Decreets. It was guarded by the Islanders with superstitious reverence, and the final abstraction of their Law Book and their Common Seal was perhaps the most unpopular accusation against Earl Patrick. His perversion of justice under its pretended sanction, and the irreparable loss occasioned by its disappearance, gave to the Scottish Crown an excuse for abrogating the Laws of Orkney, which, after being acknowledged by frequent Acts of Parliament, were finally abolished by an Order of the Privy Council in 1612. The Things, though formally abolished by Cromwell and the submissive Convention, still continued at times to haunt their ancient Dom-rings, but their power and spirit had vanished with the laws which gave them life. The Thing was a mere Jury of Inquest, their Lawman a Sheriff, their Underfoud a Baillie; and strange to say, what may be called the last ghost of a Thing was (1691) called into a vampire existence, to give with its expiring breath the shadow of a sanction to the fraudulent Weights and Measures, against which its Odal fathers had protested.
When Harold Harfagr (895) gave the conquered Jarldom of Orkney to Rognvald of Mære, the father of Rollo of Normandy, waiving his royal rights of Skatt and Lydskyld, he ostensibly reserved to his successors, the Kings of Norway, little more than a nominal sovereignty. But the royal rights and prerogatives, though dormant, were not the less real. The same King Harold exacted from the Islands a heavy Mulct for the death of his wayward son. King Erik Bloody-axe, and his wicked wife and sons, seized both lands and Skatts as their own (939). One King Olaf forced Christian Baptism on Sigurd Jarl and his men (995), and another compelled Thorfinn, the most powerful of the Orkney Jarls, to acknowledge himself as his Liegeman (1025). King Olaf Kyrre granted to his new city of Bergen the Monopoly of the trade with Zetland (1072). King Magnus Barefoot imprisoned the Jarls, and at his will resumed and restored the Jarldom (1098). King Sverrer punished Harald Jarl for rebellion by the Forfeiture of Zetland, and the Islanders by conditional Confiscation of the Odal of all rebels (1196). King Hacon IV. asked no leave of Magnus Jarl or his Odallers when he Valued and Taxed their Urislands (1263). Hacon V. appropriated the Revenue during the Jarl’s minority (1309), and Hacon VI. during disputed succession (1370); and every royal Sea-king, who ravaged the coasts of Britain or Ireland, mustered his fleet in the Orkneys, and received or enforced the Military Service of the Jarls. Thus from time to time had the Kings exacted in Orkney every royalty exigible in Norway, but at such long intervals, that we are apt to regard each rare assertion as a usurpation or new conquest, and to forget that Harald’s heirs were the Odal-born lords of Orkney, entitled to all royal rights whensoever they had will or strength to enforce them.
But when the adoption of primogeniture in the thirteenth century gave to the Norwegian throne a stability and consistency unknown to Odal succession, the royal claims became more exacting and more definite, as the Jarls and other Thingmen became, by Odal division and contest, less able to resist them. Harald Madadson’s adherence to an unsuccessful faction was punished as rebellion; and the long intervals of anarchy, the disputed successions which followed the deaths of Erlend IV. (1158), and of each last male of the successive lines of Athol, Angus or Stratherne, Jarls of Orkney, and the reference by the claimants and the Islanders to royal arbitration, afforded to the Crown irresistible opportunities of asserting and realizing its claims to possess by Royal and hereditary right—1st, The actual Sovereignty of the Islands, the Ownership of the Jarldom and consequent prerogative to grant or to withhold investiture of any of the claimants; 2nd, A Jurisdiction exclusive in some cases, and cumulative and appellative in all others; 3rd, The Skatt of all occupied Odal lands, with confiscation in case of Skattfal or non-payment; and 4th, The Bota-Mali or Mulcts for homicide, and other finable crimes, and the O-bota-mali or Forfeitures for crimes not expiable by fine. Commissions during the King’s pleasure were granted to the Earl, the Bishop, or some other officer specially appointed as Governor, Custos, Foud or Lieutenant, to govern the Islands and collect or farm the revenue; but under an express acknowledgment that such temporary and fiduciary powers and rights, however ample, were given without prejudice to the King’s prerogative to bestow, resume or reserve, all or any of them at his pleasure. It is probable that some lands and Skats were always thus reserved and intrusted to several hands; but on what grounds, or to what extent, it is useless to inquire, since the Impignoration included every royal right in Orkney and Zetland—viz., Sovereignty and Jurisdiction, Lands and Skats, Fines and Forfeits, and conveyed them UNDER REDEMPTION to the Crown of Scotland.
The Jarl held not only the largest Odal lands in his Jarldom, but the sovereign power in a secondary and delegated degree. None of these rights, however, descended to him by the Odal-ræd, which constituted the immemorial title of his subjects. The Odal of his fathers lay in the Norwegian Jarldom of Mære. Rognvald became Jarl of Orkney (895), only by the gift of King Harald Harfagr; and his successors owed their lands and dignities to similar royal grants, and their powers to the sanction of the Althing. But though only the Lydskylldr or Liegeman of the King, the Orkneyar Jarl was not only exempted from the customary Lydskylld of Norwegian Lendermen; but in consideration of exposure to piracy, was permitted to retain the royal Skatt paid by the Odallers for the exigencies of the Jarldom, and there was little to remind him of his own subjection, unless when face to face with the King, nor of the Odallers’ independence, except their rare refusal to join him in a Viking-för. When at home he passed, like the kings of Norway, from one Bordland, Böl or Guestquarter to another, receiving most of his revenues in kind for the ordinary necessities of his household, and defraying his wasteful hospitalities at the cost of his Saxon or Celtic neighbours impartially. With the Skatt of the Odallers, and the Landskylld of his tenants, he kept up a fleet of restless rovers, ever ready for a provident Haust-Viking on the coasts of England, Scotland, or Ireland, for their Jol-feasts and winter cheer, or a thrifty Vörviking, when their exuberant carouses threatened a short supply of beeves and ale. At his death, his Jarldom and its rights were divided, compromised or contested by his heirs, till but one or two remained to enjoy the impoverished inheritance. Nine generations of this Northman race of Rognvald had ruled the Jarldom by a sort of prescriptive Odal-ræd, sometimes extending their authority over half of Scotland and Ireland—sometimes struggling for their insular domains—but in the twelfth century, the growing power of the Scoto-Celtic Crown had shorn them of their southern conquests of Moray, Ross, Inverness, Man, and the Hebrides. Erlend IV., the last heir male of his line, shared the Jarldom with St. Rognvald (the first instance of succession through a female—the founder of Kirkwall and its stately kirk, in honour of his maternal uncle Magnus Jarl, the Saint and Martyr), and on their closely consecutive deaths (1154–8), the sole succession devolved upon Harald II., son of the Countess Margaret of Orkney and the Scottish Earl Madad of Athol. Harald Madadson was the founder of the shortest but most disastrous of Orkneyan dynasties. By his opposition to the Birkbeinar revolution, which made Sverrer Sovereign of Norway, Harald Jarl forfeited Zetland (1196), never to be again formally or permanently united to Orkney; and after two wars of mutual barbarity and reprisals, he was compelled to do homage to William the Lion for all Cathnes to the Oikel (1198). His son John of Athol, by his share in the death of Bishop Adam of Cathnes, forfeited the southern portion of that province, the new county of Sutherland (1222); and on his murder, for his Scottish disregard of the Odal claims of his Orkneyan relatives (1231), his son-in-law Magnus II., son of Gilbert Earl of Angus, was acknowledged Jarl of Orkney by Hacon IV. of Norway, and of Cathnes by Alexander II. of Scotland. Five generations of this race of Angus ruled Orkney and Cathnes during a century of unwonted peace, arising from this double vassalage, the minorities and civil wars which weakened both Norway and Scotland, and the treaties of matrimony and commerce which united them. This calm was scarcely disturbed by the last Northman Viking-storm, which swept over the Islands to expire at Largs in the equinoctial gales of 1263, but which is memorable to Orkney for the Survey of its Urislands, and the Deathbed of Hacon, the last of the Sea-Kings. Magnus Jarl III. had little difficulty in making his peace with his royal namesake of Norway, for his lukewarm support of an invasion so violent, and his grandson John II. married a daughter of King Erik of Norway. The prudence of Robert the Bruce, Hacon V., and the young Magnus Jarl V., hastened by mutual compensation and a new treaty (1312) to restore peace, when Scottish pirates seized and held to ransom Sir Berner Pess, the Norwegian Governor of the Islands during the Earl’s nonage, and Orkney had retaliated by a similar outrage upon Patrick of Mowat, a Scot—perhaps the first introduction of two names now common in the Islands. During this period of comparatively peaceful intercourse, many other Scottish names and fashions found entrance, and many distinctive Scandinavian features disappeared in Orkney, though still prevalent in Zetland, which was less exposed to Scottish influences. The male line of Angus Jarls failed in Magnus V., and their curtailed Jarldom passed by a female heir to the Scottish Earls of Stratherne, and from them to their representatives, Alexander de Arth, who inherited and resigned the Earldom of Cathnes to Robert II. (1375–6), and Henry Lord Sinclair, whose homage as Earl of Orkney was, after an interval of disputed succession, accepted by Hacon VI. (2nd August 1379), but on conditions which left to him little beyond the lands of his fathers. Even their title, the only hereditary title permitted in Norway to a subject not of the Blood Royal, was declared to be subject to the Royal option of investiture. The Earl was to govern the Islands and enjoy their revenues, but only under Norse laws, and during the King’s pleasure; to keep in pay soldiers for the King’s service, but to make no war, build no place of strength, make no contract with the Bishop, nor sell nor impignorate any of his rights without the King’s consent; and finally, to answer for his administration to the King’s Court at Bergen. But the civil broils which preceded the Union of Calmar, and were continued through the restless reign of Eric the Pomeranian, freed Earl Henry from royal interference, and he ruled the Islands regally in his Castle of Kirkwall, which he built without waiting for the King’s consent, and with such strength and skill, that the witch-haunted mind of the 17th century believed that only the devil himself could have been its engineer and architect. His powers and rights were tacitly continued to his son Earl Henry II., whose little Court of Orkney was the most elegant and refined in Europe, and adorned with the official services of many proud Scottish nobles. To his enlightened guardianship was committed the early education of the most accomplished prince of his time—James I. of Scotland, the Zerbino of Ariosto; and half a century before Columbus commenced his baffling search for a patron among the sovereigns of Europe, the Venetian navigator Zenoni had been commissioned by Earl Henry to retrace the footsteps of the early Scandinavian discoverers of the Western World. On the death of Henry II., the Foudrie of Zetland was conferred upon John Sinclair his brother (1418); and during the nonage of his son, the Government of Orkney was committed (1422), first to the Bishop Thomas Tulloch, then to the Chief of the Scottish Clan Menzies, and again to the Bishop, till (on 10th August 1434) William Sinclair was formally invested with the title, and intrusted with the Government, subject to the same hard limitations as his grandfather. William, the last Jarl of Orkney, was the most liberal patron of Scottish literature and art in his day. He was busied in the endeavour to consolidate his power and increase his estates by purchase and excambion, when the Impignoration opened to him a shorter and safer way to gratify at once his ambition, his affection, and his hatred; and with the same worldly wisdom which led him (1455) to prefer the possession of Caithness to his claims on Nithsdale, he accepted (1471), with the full consent of the King of Denmark, the lands and pension offered by James III. as an ample equivalent for all that remained to him of the ancient Jarldom of Orkney—viz., his title and his lands, inherited or acquired.
The ancient estate of the Jarls lay scattered through every Island and township of Orkney and Zetland, and consisted, 1st, of Lands set or leased to tenants on a three years’ tack, with a Gersom or fine at each renewal, and an annual Landskylld, landmail or rent, in addition to the King’s Skatt, the Bishop’s Teind and other burdens, local and general; 2nd, of the Bordlands or Mensal farms, with their Böl and its enclosures, the occasional quarters of the Jarl in his progresses of pastime or State Service, and on that account exempt from Skatt, even when leased to husbandmen on the usual terms in other respects; and, 3rd, of certain Quoys and other lands added by Odallers to their holdings, but not by odal-ræd, and therefore paying no Skatt, but Landskylld and other burdens of tenant lands. The Earldom also included Conquest or acquired lands, consisting, 1st, of lands added by the later Earls by purchase or excambion; and, 2nd, of lands which they had seized as ultimi hæredes, or confiscated for crime or Skatfall. The tenants or tacksmen of the “auld” Earldom were a sort of Rentallers with a prescriptive claim of renewal by law or custom, on payment of the stated Gersom; but those of the Conquest lands were in the far less favourable condition of removable tenants, with terms and burdens at the landlord’s mercy. A small fee was expected by the Earl’s bailiff, at each renewal or assedation, called for the Mainland Land-setter, and for the smaller islands Eysetter-kaup, and every tenant was bound to fure or ferry the Earl and his family, to bring peats to his Castles of Birsay or Orphir, and perform other prædial services when required. The payments were mostly made in kind, altering in form according to the convenience, residence or non-residence of the donatary, but weighed and measured by fixed and native standards. These LANDS, MALES, GERSOMS and SERVICES, constituted the jus comitatus which Earl William (1471) conveyed to the Crown of Scotland.
From the time of William, by Romish consecration Primus Episcopus Orcadum (1136), the Bishops had a seat in the great Council of Freemen. Whether this were at first their right as actual or presumed Odal-born Freemen, a concession to their sacred office, or a priestly assumption, their presence in the Thing was often salutary, sometimes to the Jarl, sometimes to the Odaller, either as Councillors for the wisdom of the serpent, or as peacemakers for the gentleness of the dove.
The earliest authorities testify as usual to the undainty acquisitiveness of the Clergy, making profit alike of the weakness and the wealth, the crimes and the penitence of all around them. Augmenting and prospering by Gifts—such as those of the Odaller of Airland to the Crosskirk of Stenness, of David of Rendall to St. Ninian, or of Guidbrand of Quendal to the Vicar of Evie, for “a mass ilk Friday;” by Confiscations—as of Baddi’s Lands for bloodshed in the Kirkyard; by perpetuation of all liferent Donations; by pretended Excambion, retaining their own land and seizing the promised equivalent; by withholding their own Skatts and embezzling others, and by the numberless oppressions of lawless strength against weak neighbours, the Bishops advanced in wealth and power. In the quaint language of Bishop Graham, “the old Bishopric of Orkney became a greate thing, and lay sparsim throughout the haill parochines of Orkney and Zetland. Besyde his lands, he hade the teyndis of achtene kirks; his lands grew daily as adulteries and incests increased in the countrey,” till they were “estimat at the third part of the Countreyis of old.” How or when the Bishops were permitted to Tithe the lands and labour of the Islands is uncertain; probably the building of Magnus Kirk, the Primus Episcopus, and this impost were connected and coincident (1136); but its rigorous exaction and arbitrary increase were probably too recent for popular patience, when (in 1222) Bishop Adam was burned to death for doubling the customary payment. Certain Skatts were probably granted among the earliest provisions for religious uses, but the indiscriminate appropriation of those of Church-lands and others probably commenced when the Scottish Bishop, Thomas Tulloch, combined the powers and opportunities of Bishop, Governor and Collector of Royal Revenues, during the non-investiture of Earl William (1422–34). With possessions so extensive, a jurisdiction over their own lands almost unlimited, and an influence dreaded by all in this world, as all-prevailing in that which is to come, the Bishop could cope with the waning power of the Jarl as easily as other Prelates of the Scandinavian Church could defy the Crown. Safe in his Palace of Kirkwall or his stately Castle of Noltland (his Land of Leisure, his Episcopal Buen Retiro or Sans Souci), he was within his own domain as powerful for good or evil as the Crown or its Donatary, but Orkney never tasted the full bitterness of oppression, till the powers of both were united in such hands as those of Bishop Thomas, or his kinsman and successor William Tulloch, who filled the See at the date of the Impignoration, and was rewarded for his supple usefulness by a favourable Tack of the Earldom and Royal revenues. It was fatal to the interests and independence of Orkney, that, at such a crisis of transition, the power to interpret and fix the existing and future rights of parties should have been intrusted to such an arbiter. His ambition as a Courtier, his interest as a Churchman, his partiality as a Scotchman, and his education as a Canonist and feudal lawyer, all united to bias his decision of the questions at stake between the Scottish Crown and its Scandinavian subjects—between Feudal principles and what were to him the barbarous anomalies of Odalism. Able, subtle and plausible, he was equally conversant with every stronghold of Feudal or Canon law, and every weak point in the Odal system. Scotland could not have found a minister more skilful or less scrupulous in turning its new acquisitions to advantage. If he somewhat aggrandized his benefice at the cost of the Crown’s Estate intrusted to him, he largely enriched both at the expense of the Odaller, on whom he accumulated new burdens, teinds, services and escheats, with such ingenuity, that his successors in oppression could hardly “better the instruction” by one original idea of extortion—one impost which could not be traced to some suggestive innovation of Bishop William.
The Odallers and Odal-born were the Commons of Orkney and Zetland—the Roithismen and Roithismen’s sons—the Göfugar and Gædingar, who constituted the numerical strength of the Althing. There is no class in Europe exactly analogous to this—the Odals-madr, Bondi or Peasant-Noble of Orkney and of Norway—but perhaps the Hindustani scholar might trace some curious parallels in the Tenures and treatment of the landowners of Upper India. He was a Peasant, for he tilled his own land, and claimed no distinction among his free neighbours; but he was also Noble, for there was no hereditary order superior to his own—as an Odals-madr with Rœdi, Eign and Sœmd—Master of his Household, his Goods and his Honour.[[2]] The King might wed the Odaller’s daughter or match his own daughter to the Odal-born without disparagement, for he himself was but the Odal-born of a larger Odal. The Jarl might be deemed less free and therefore less noble, for he owed something to the grace of a human superior. The Bondi in his Odal was sui juris, and in the one-chambered Parliament of the Althing, had a vote and voice as potential as King or Jarl, who often, when consulting the humour or will of the Odallers, were bearded and thwarted by the independence of some Thorkel Fostri, Magnus Havardson, or Sigurd of Westness. The King might enforce the military service of the Jarl—the Odallers owned none to either of them. Nothing short of actual invasion entitled the Jarl to call them to arms by the Ward-fire, and with all their passion for the sport of war, many a right and immunity they won or redeemed, as the price of their consent to some foreign Viking-för.