Oppressions of the Sixteenth Century in the Islands of Orkney and Zetland / From Original Documents

by Unknown

The attacks upon the rights and liberties of the Odaller required less delicacy, and were conducted with less decorum, for he stood defenceless in his isolation. All who might have made common cause with him had been bribed into complicity against him; the Danish King, by promises; the Earl, by grants and pensions; the Bishop, by present preferments and future hopes; and even Kirkwall was seduced from native interests by its erection into a Royal Scottish burgh (31st March 1486). The very name and traditions of the Odalsmadr secluded him from the sympathies of the Tacksmen or Tenants, a class more favoured by the higher powers because more profitably open to arbitrary exaction. To reduce both to the same level of easy oppression under form of law, was the first object of the Government; and the first duty which the Scottish King imposed upon its new subjects, the Earl and the Bishop, was the compilation of a Rentale, modified (with a difference) from the ancient Skatt Book, and embracing all the lands and burdens of Orkney and Zetland, with a studied confusion of Odaller and Tacksman, of Odal and Feudal, of Skatt and Land male, aggravating every payment that had ever been made under any circumstances, and adding every exaction, prestation, or service that could be suggested by feudal lawyer or canonist. But however justly the Odaller might complain of the new and heavy burthens of the Rentale, of its abrogation of his rank, its evasion of his claims, invasion of his rights, and imposition of degrading services, other secret and inherent agencies, as hostile and less suspected, were working the downfal of the Odal system. Like every human attempt to curb individual passions by social laws, it had seen and outlived its day of usefulness; but every creed is dear to those nurtured amid its influences, and a generation which remembers the fanaticism of Whig and Tory, and still pants with the contest of Protection and Free Trade, has no right to smile at the long struggle of feudal prejudice or the longevity of Odal dotage.

The simple rules and forms of Odal law might suffice to define and guard the rights of man as an individual, or even as a member of society in its primeval or patriarchal form, of a few families scattered far apart, with intervals of wild solitude, with the sea for their march, and the mountain for their landmark. But as the rights and obligations of the man and the family became complicated with those of the neighbour, the citizen, or the subject, society soon outgrew this simple code. Each new social element required some new modification; every change, as by an inherent principle, tended to concentrate in the State, or its Head, the rights and powers of the individual; the Odaller, whose free institutions have taught freedom to the world, was cherishing a system as fatal to liberty as that which he despised, and Feudalism in its vigour was scarcely more favourable to the growth of despotic power than Odal-ræd in its decay. In both the evil might have been checked, by opposing to the invasions of tyranny the resistance of a powerful aristocracy, of an influential middle class, or of the rival supremacy of the Church. But when the Impignoration let loose the conflict of legal systems upon Orkney, the Scandinavian Crown, by substituting primogeniture for Odal succession, had grown so strong as to absorb the powers and possessions of the Jarls, who had become the mere Lendermen or Tacksmen of the Royal revenues. The Church, which more than once nearly overmastered the Scandinavian Crown, was in Orkney its humble servus servorum—more disposed to court its favour by servile complicity, than to defy its wrath by an uncourtly defence of freedom. The collective influence of the Thing was no defence—its free councils and jurisdictions had been undermined by insidious innovation of forms or terms, or finally uprooted by masterful violence. Successive generations of Odal subdivision had so reduced the wealth and weight of the middle class of Peasant Nobles, that it was but a question of time when the heirs of the most influential Odaller should make an infinitesimal sub-partition of the last zowsworth of his Odalsjord, and sink into poverty, without means of independence or self-defence against oppression or encroachment. Unfortunately, the peculiarities of his rights long survived his power to defend them, complicating his relations to his new feudal masters, and adding to his difficulties, legal and illegal, that of instructing a foreign feudalist to plead his cause before a foreign judge, whose decisions, forms and language, were as strange to him as his laws, usages and terms, were barbarous and uncouth to them. Eloquence was the most popular accomplishment of the Odaller, and he was wont, as Thingman and Umbothsman, to discuss the law, and defend the rights of himself and others—but he was overwhelmed by legal principles which he did not know, in a language which he could not speak; and he soon found that the vague and customary claims, and unwritten tenure of his fathers, were no match for the defined rights and pretensions of the pettiest neighbour possessing by the litera scripta of a feudal title, still less of the powerful Feudatory claiming by Royal charters, and aided by the ingenuity of the professional lawyer, trained and practised in the logic of the schools. As if to insult the dearest prejudices of the Odaller, every feudal aggression was held forth as a boon of reform, every change as an amendment of his barbarous code, every abrogation of a cherished right as the removal of an antiquated abuse—while the promised improvement was but a delusion, and the new abuses were more burdensome than the old.

Left to itself therefore, Odalism must have decayed by the natural development of its germs of self-destruction; but the mere decline of the abstract principle, or even the impoverishment of the Odaller, were no object to the Scottish Government, except as tending to its own enrichment at his cost. To make present and growing profit of the defects of the Odal title—to drive the possessor into the refuge of a feudal tenure, and to obviate the Redemption by Scoticizing every law or custom derived from the mother country, were now the objects of Scottish policy, and an able agent was found in Bishop William Tulloch, who (27th August 1472) undertook to collect the Revenues of the Crown for a Commission of 20 per cent., and a tacit connivance in his unquestioned appropriation of all “unconsidered trifles,” and in his extra extortions, “ony maner of way,” beyond his Tack duty of £366, 13s. 4d. Deeply embued with feudal prejudices, Tulloch affected to see no legal principle in a code of customs so anti-feudal. Heritage, without Superior or Vassal, Payment or Service, Charter or Sasine, or any of the essentials of a valid feudal title, was to him a mere traditionary usurpation, subversive of lawful order and authority. The Odaller was a mere squatter, with, at best, a possessory title, liable to arbitrary exaction limited only by his capacity to pay, and with prescriptive custom as his only claim to differ from the annual Tenant or triennial Tacksman. To obliterate all such distinctions, the lands of the Odaller and Tenant were registered in one indiscriminate Rental, with a studied confusion of rights Odal paying Skatt—and rights extra-Odal paying land-male. The Thing-För-Kaup of the Odaller, and Gersomr of the Tenant, were claimed as the nominal equivalent of the feudal Forcop and Grassum—Skatt, Wattel, Leidangr, and every Odal tax without a feudal synonyme, were exacted as a rent—every feudal claim or casualty without an Odal name or equivalent custom, was imposed and extended to its full feudal limits—while every Odal customary right of pasture, fishing, or sea-beach, was limited, taxed or punished as a feudal purpresture. The whole district was indiscriminately subjected to the prædial and personal services formerly due by Tenants only, and new burdens of Hawkhens, Balliatus, and Chettry, were laid on all by the arbitrary authority of the Bishop, whose powers of excommunication, infamy, and penal forfeiture, were infinitely enlarged by the rigour of canonical rules and prohibitions, quite new in a Scandinavian diocese. Neither could the unfortunate Orkneyan escape from this grinding tyranny by any appeal. His oppressor ruled the Bishopric as Bishop, and the Earldom as Tacksman, with regal powers—the Thing was divested of all criminal jurisdiction—the Lawman was the stipendiary servant of the Government—the Kirks were filled with Scottish Priests, the creatures of the Bishop, as rapacious and pitiless as himself—the Odallers, collectively or individually, were too poor to purchase, and too powerless to command forbearance, favour, or justice—and what Donatary was ever able to resist the combined temptations of plunder, helplessness, and opportunity?

The Tack of Bishop Tulloch lasted for seven years, followed by six of similarly irresponsible Episcopal rule under Bishop Andrew, the presentee of John of Denmark and probably a Scandinavian. The appointment of Henry Lord Sinclair as Tacksman of the Crown-lands in Orkney (1485) and the recognition of Sir David Sinclair as the Danish representative and Fowd of Zetland (1491), gave hope of better times. After the tyranny of strangers, the Orkneyans were prepared to rejoice in the return of kindred rulers, and Sir David was the son and Lord Henry the grandson of their last Earl William. With the tastes and accomplishments, and some of the vices of their time, the Sinclairs were popular in the Islands, and favourites in the Courts of Denmark and Scotland. They were in the main, just, humane, and generous, they exposed unsparingly the rapacity and frauds of their Episcopal predecessors, relaxed their intolerable imposts upon some of the districts, redressed much individual injustice, and liberally relieved the impoverished population. It was probably by their influence that an Act of the Scottish Parliament (1503) to annul all foreign laws within the realm, was so altered as to spare the native laws of Orkney and Zetland. But the sapping process of Scoticizing every Orkneyan institution, the interchange of names and things, Odal and Feudal, without real equivalence, went on unchecked if not encouraged by the Sinclairs. A comparison of their successive Rentals shows little change in the names, nature, or amount of Odal payments, beyond the occasional remission of some overcharge, or the record of some new escheat; but there was a large increase of the total burdens of the country, chiefly at the cost of the Tenant population. Their rule of half a century was distinguished by no formal abolition of unjust innovations, no restoration of Odal liberties and immunities; but by the ceaseless, silent change of language, forms, and manners, traced perhaps in a clause or word of some feudal parchment or mouldering Thing-doom.

From the death of Lord Sinclair at Flodden, his widow, Dame Margaret Hepburn, held the Crown lands in Orkney and Zetland at a rent of £433, 6s. 8d., by successive Tacks for nearly 30 years without interruption, but not without disturbance. The Odallers knew too well the evils of alien rule; but a female ruler was a new indignity, and even in the second year of her widowhood (1515) they had elected as their leader and virtual Governor, James Sinclair the possessor (though illegitimate) of most of the wealth of his family, and the inheritor (as a born and bred Orkneyan) of all its popularity. On the plea of a general devastation by the English fleet in Orkney and Zetland, they withheld Lady Margaret’s Rents for three years (1523–5), forced her son Lord William to surrender her castle of Kirkwall and escape into Caithness (1528), and on his return next year with an army of Scots, defeated and took him prisoner at Summerdale (7th June 1529), slew his ally, John Earl of Caithness, with every man of his followers, beheaded Nicol Hall the Lawman, and took forcible possession of the Islands. The Scottish invasion, sanctioned as it was by the King’s Letters of Four Forms, cannot fairly be attributed to the private ambition of Earl John or his allies. On the other hand, it is equally improbable that Sinclair, the brother-in-law of the Queen Dowager of Scotland, would have risked his Court interest by heading an open rebellion against the King, or that the spirited and sagacious James V. would have pardoned wilful and violent rebels, or rewarded their leader with legitimation, lands and knighthood. The subject is beset with difficulties, but the most probable conclusion is, that the Orkneyans were deemed excusable in resisting to death a combination of circumstances so formidable to their independence, as the King’s reported purpose of giving a Feudal Lord to Odal Orkney, followed by the alliance of the Donatrix with Earl John, the zealous feudalizer of his own Earldom. James having asserted his dignity by renewing Lady Sinclair’s rights and by signing the dreaded but ineffective Feu Charter to his illegitimate brother, James Earl of Moray (1530–1), gave but one more feudal Grant, and that was to Sir James Sinclair (1535). This Grant containing every feudal right, and the first infraction of Odal succession by a clause of single primogeniture, was perhaps the purchase of the independence of the Odal leader—begged and accepted with a selfish inconsistency, mournfully explained by his madness and suicide within a year. But the King’s sagacity had found the pear not ripe—Odalism was sick, but not dead—the project was deferred, and no open attempt was renewed to feudalize the Islands for another generation.

The visit of James V. (August 1540), was the only presence of a King in Orkney since Hacon IV. came there to die (1263); for the dying Maid of Norway was brought to its shores (1290), only to find a hasty but more permanent rest in its Cathedral. Bishop Maxwell entertained the Royal Guest, not in the ancient Palace which had sheltered the death-bed of his Northman ancestor, but in the more modern Episcopal residence within the City of Kirkwall, to which he had lately renewed its Burghal Charter (8th February 1536), and where he is said to have held a Thing in the very ancient tenement still dignified as the Parliament Close. He was not hindered by the courtesies of the Bishop from seeing and correcting his negligence or avarice, in leaving so many kirks and benefices vacant, to the obvious increase of his own emoluments; and though there was now no Sir James Sinclair to instruct or mislead him as to the wants or wishes of Orkney, the shrewd King of the Commons saw and heard for himself the value of the Islands—the danger of leaving them to irresponsible and subaltern oppression—the undue profits of the Donataries and the loss to his Crown and Revenue. At a time when the gross Rental of his metropolitan County of Fife was only £1348, 10s., a province yielding to the Donatary a Rental of £1382, 10s.—to the Bishop £1251, 2s. 6d., and probably not less to the Odal Proprietors—was a jewel of his Crown not to be lightly given or thrown away. All Grants or Tacks of the Revenues and jurisdictions of Orkney and Zetland were forthwith revoked, and the Islands re-annexed to the Crown jure coronæ, to be henceforth inalienable except by Act of Parliament (10th December 1540)—an exception and safeguard of Orkneyan liberties, as specious as the former restriction to the legitimate Blood-Royal, and as little regarded. Lady Sinclair’s powers were thus rescinded, and in spite of her protest (10th September 1541), were committed at a fairer Tack Duty of £2000 to the unfortunate Oliver Sinclair, as one who could be trusted both by the King and the Islanders (20th April 1541). James probably designed to carry out this policy of annexation by such temporary Commissions to Lieutenants and Collectors responsible to himself. There were many Odal grievances which he could not know, and much hard injustice which he could not cure; but the public administration of Orkney would probably have been much amended, had he lived to give effect to his judicious plans of reform.

It has been shrewdly said, that Scotland possessed “the wisest laws in Christendom, and the worst administered;” for the best intentions or the sagest acts of King and Parliament might be frustrated by some flaw of policy, expediency, or Court favour. Under the weak regency of Arran, some claim to the Islands was urged by the Queen Dowager, who appointed as her Lieutenant-Governor, first a Frenchman named Bonot, and afterwards the Scottish Earl of Huntly. The struggle of the Queen, Regent, and Cardinal Beaton, for the power to misrule Scotland, was mimicked on a narrower field by the contests and law-suits between Bonot, Huntly and Sinclair, for the possession of Orkney, and with similar results. Government was in abeyance or abandoned to the local authorities, if the term can be applied where nothing reigned except disorder. Respites and pardons for murder and violence are for nearly twenty years almost the sole records of the Islands. Even the regular collection of the inevitable Rents and revenues of the Crown was so completely interrupted, that the appointment of Mr. William Mudy as the Queen’s Chamberlain (10th December 1561) was met as a usurpation, which nearly cost his life at the hands of a mob of Churchmen and others, who had been fattening on the arrears and disorder accumulated on the land for a fearful reckoning under the harsh rule and evil days which were approaching.

The learned Bishop, Robert Reid, though he founded a school in his Cathedral city, and made other attempts to tame his wild Diocese, was driven to seek safer and easier duties elsewhere as a diplomatist and a senator of the College of Justice. Adam Bothwell, his successor as Bishop and as Judge, is only known to have once visited his See, from a Feu Charter of Westray and Noltland Castle to his brother-in-law, Gilbert Balfour (30th June 1560), remarkable as the first feudal Grant since that to Sir James Sinclair, and the first of a series of Feus of Kirklands, all containing the same insidious infraction of the equal subdivision of Odal inheritance, in favour of a single eldest heir-male.

The wise policy of James V. to respect the native laws and liberties of Orkney had been swept away by time; and the conflicting influences and interests of the Reformation had surrounded his daughter with Counsellors who thought only of turning to most profit the difficulties of their Queen and country. Moray, as chief of the Reforming party, had secured the lion’s share of the spoils of the Crown and Church for himself and his brother-in-law Argyle, and their influence obtained for his bastard brother, Lord Robert Stewart, a Feu Charter of the Islands of Orkney and Zetland (26th May 1565), a gift exactly suited to his character and capacity, as a sphere of safe and indefinite peculation, unexposed to political dangers. This memorable grant was the first express sanction of Tulloch’s policy of identifying the libere tenentes, as the Odallers were styled, with the serf-like Rentaller of the Scottish Crown, and was essentially as illegal as unjust—illegal, because neither sanctioned by Parliament nor bestowed on a lawful Prince, and unjust, because it disposed not only of the ancient Earldom, Skatts, and actual property of the Crown, but of the Feudal Superiority, Lands, and Services of the Odallers, which could be neither conveyed by Norway, acquired by Scotland, nor bestowed upon a subject.

But their fate was still suspended for a little by accident or the fluctuations of Court interest. The rise of Darnley was the fall of Moray, and the cupidity of some new courtier searched out the inherent flaw in Lord Robert’s title. His Government and Sheriffship were conferred upon Gilbert Balfour of Westray, now Master of the Queen’s Household (3rd January 1565–6), but subject to the native laws which were again solemnly recognized by Parliament (6th December 1567), and Lord Robert was partially consoled for his loss of Orkney by a grant of the rich temporalities of the Abbey of Holyrood (16th April 1567).