2. The three legal distinctions of Odal-rœd consisted ofRœdi,dispensatio rei œconomici;Eign,possessio; andSœmd,honor,decus—the “Royth, Ayning, and Saming,” so common in Orkneyan titles, and so puzzling to legal Antiquaries.
2. The three legal distinctions of Odal-rœd consisted ofRœdi,dispensatio rei œconomici;Eign,possessio; andSœmd,honor,decus—the “Royth, Ayning, and Saming,” so common in Orkneyan titles, and so puzzling to legal Antiquaries.
TheOdalsjordconsisted of theTunorTown-landwith itsBol(Head Bullor principal farm), enclosed by itsTun-gardr(hill dyke), which separated itsGarth(Infield) from itsSœtturorHagi(out pastureorhill). Every enclosure from the Sœttur became aQui(Quoy), which if encircled by an extension of theTun-gardr, became aTumale, or if again abandoned to pasture, became aToft. It is doubtful if these later additions, theQuoy,TumaleandToft, enjoyed at any time the same Odal immunities as the original possessions—theTun,BolandGarth; but there is not a doubt that the first Odaller occupied theTunand used theSœtturby the same Odal title, unwritten, unburdened, inalienable, and divisible equally among the Odal-born. In this division eachGarthorQuoymight become theHead Bullof a new Odal, with the same Odal-ræd, a share of the Infield, and a proportionate right to the commonHagiorSœttur, in which every intruder paid to theTunaHaga-leyfifor leave to pasture. The union of several towns constituted aHrepporTribe, with its local Court orHreppa-stefn, the members being bound together asHreppsmenorSkattbræder, sharing together the pasture of theMoarorSkatt-hald, and theToll-ber-Skattexacted from strangers; and a combination of suchHreppsorSkat-haldsformed aHeradorThing, which in time became aParish. But equal and independent as they were, each secondary Odal retained a Suffragan regard for the primal Odalsjord, which gave name to theTun,HrepporScat-hald, and the Odaller of theGarthorQuoyrespected and acknowledged in the Odaller of theBolorBu, theHofdingor Chief of theHreppandSkat-brethren, as naturally as the Tacksman and Bol-man felt their inferiority to both.
The Odaller owned no vassalage to King, Jarl, Lawman or Hofding, but with characteristic love of system, and deference to lawful authority, he yielded to each in his degree the obedience of a subject; not the personal devotion of the Celtic Clansman to his kindred Chief, but the federal subordination of a GothicFriborinnto the Executive Presence of those Laws to which he himself had consented as a Thingman. He owed neither rent, duty, nor service for his Odalsjord, but as a subject and Thingman he was liable to various assessments for the public service. Of these the earliest and most important was theSkattrorLand Tax, first imposed by Harald Harfagr as a tribute from all the Occupied Lands of his kingdom or colonies, towards the expenses of the State and revenue of the King.LedangrorLeangr, another Tax for public service and naval equipment, was paid in Shetland (where the people and customs have always been more purely Scandinavian), but not in Orkney. TheThing-för-kaup, the ancient fee of the Lawman for his duties at the Thing, and theVotn-tel, or fee of the Underfoud for telling the votes and summing up the evidence of the Vard-thing, were early assessments. But when or how the Odallers submitted to the imposition ofTeindsis doubtful—probably when St. Rognvald established a fitting hierarchy for his new Cathedral in the twelfth century. TheSkatt,Teynd,För-kaup,Votn-telandLeangar, were the only payments exigible from the Odaller, though they severally became the foundation of every subsequent exaction. The denominational proportion was permanent, but the amount and form of payment was altered or augmented according to local circumstances. Though nominally valued inMarks, Ures or Pennies, the taxes of Zetland were paid in Wadmal, Oil or Fish, the produce of its Skathalds, rocks and seas, and those of Orkney in Butter from its pasture, with augmentations or commutations of Malt from its advancing culture, all weighed and measured by native standards of Norwegian origin, and apportioned by authority of the Thing according to the ancient valuation of Hacon the Fourth (1263), which has strangely subsisted for nearly six centuries without suggesting or affording to Crown or Donatary an opportunity of oppressing the Islanders profitably.
It would be difficult to trace each successive change in the condition of the Odallers, to tell how their Odals, impignorated to Torf-Einar Jarl for their share of the Mulct for the slaughter of Halfdan Halœg (930), were redeemed from Sigurd Jarl by their voluntary service in his Irish wars (1014); or how, by the gift of a mark for each ploughland to Jarl Rognvald’s stately Magnus-Kirk, they purchased an immunity from confiscation (1130), which they forfeited by rebellion against King Sverrer (1196). But Odal law and Odal influence declined more rapidly and continuously with every succeeding race of Scottish Jarls, as each Athol, Angus, Strathern and Sinclair, came attended by clansmen and dependants, the ready tools of the fraud or violence of their chief; as Scottish Bishops followed to the prey, lawyers rather than divines, willing to instruct brute force with clerkly subtilty, and skilled in the devil’s logic to warp even the Divine law into oppression. Even the Lawman, once guardian of the common liberties, and still expounder of the Book of the Laws, was generally some Scottish settler, some Cragy, Hall or Irving, owners of Odal land, but not by Odal-ræd—who, ignorant of Odal law, misinterpreted its principles, and misapplied its terms according to Scottish ideas, and introduced written deeds and Scottish forms, in feudal distrust of an undocumented title. Under such combined influences of ignorance and interest, every generation saw some principle modified, some right invaded. Thus each distribution of Odal heritage came to need the sanction of aShyndorDoom of Erffdfromthe Thing and Underfoud, equivalent to a Scottish service, and instead of an equal share, the eldest son claimed the Head Bu, and each daughter was restricted to half a son’s portion. The rights once inalienable from the Odal-born, became the subject of Impignoration, of Forfeiture, of Donation to the Church, and of Alienation on the ground or legal fiction that the Odaller was too poor to retain, or the Odal-born to redeem them. The legal term of Redemption was gradually shortened, and its conditions made more stringent, till finally a modification of the Shynd-bill in presence of the Thing was alone necessary to legalize the purchase, sale, and transference, of almost every Odal right, to evade the claims of the Odal-born, and to give to the Scottish purchaser the un-odal security of a written title in his own language—a combined form of Disposition and Sasine.
Six centuries of Odal sub-division had minutely intermingled the lands, rights, and privileges of every Townland. At each succession the Odalsjord was shared among the Odal-born, male and female—the Jarl claimed for himself or for the Crown all lands forfeited and unredeemed, and seized asultimus hæresevery inheritance lapsed or unclaimed—the Bishop asserted the Church’s rights to the gifts of the pious, a share of the forfeits of the guilty, the teinds of all, and thecorbanperpetuity of every indulgence once permitted to a Churchman—and Scottish settlers claimed Odal lands and Odal rights by descent, affinity, or purchase. Thus the Odalsjords and their vague and customary pertinents were mixed in alternate patches, ridges or furrows, not only with other Odals, but with the claims of Jarl, Bishop or settler, as undefined, but more arbitrarily expansive. Even before the Odallers’ final change of masters, two centuries of such foreign and native influence had prepared the way for such a revolution, by modifying his privileges, altering his customs, and effacing much even of his own memory of their origin and traditions. But his spirit was still unbroken, he was still a Thingman, his order was still that of the Gofugar and Gœdingar of the Sagas, theproceres communitatis, whosewealth and influence pointed them out as the mark of the oppressor. Their Odal lands, pertinents and immunities, were still the field whence lawless power could reap a golden harvest, and more than a century of Scottish oppression was still required to level the Peasant Noble of Orkney with the Tacksman or Husbandman of the Earldom or Bishopric.
The only class which remains to be noticed as interested in the change of sovereignty, is theUnfree—that large body possessing personal freedom (for slavery had gone out with the Vikings) but no political rights as Thingmen—the Tenants of the King, Jarl, Bishop or larger Odallers. These were eitherBolmen,tenants at will, orLeigu-men,by tack or assedation, paying to the proprietor aLandskylld,land mail or rent, andEysetterandLandsetter-kaup, or its Scottish equivalent ofgrassum, on each renewal of their tack—with all the other burdens of Skatt, teind, &c., sometimes besides, sometimes included in their land mail of money, grain, butter or live-stock, and certain prædial and personal services of mills, peats, furing or ferrying, &c., mostly of Scottish origin, and exigible according to the caprice or wants of their master.
Such were the condition and powers of Thing and Thingmen—such the land rights of King, Jarl, Bishop and Odaller, at the date of the Impignoration; and when Christian (28th May 1469) addressed a letter to the Communities of Orkney and Zetland, desiring them to pay obedience and Skatt to the King of Scots till redeemed by the King of Norway, he no doubt intended, and his subjects hoped, that it was but a temporary transfer of the sovereignty of the Islands, to return to his Crown unblemished and unchanged, like his often pawned metropolis. But the Scottish Government entertained very different views of the nature and duration of its rights and powers; and from the first, no resource of law or chicane was left untried to fortify and perpetuate its defective and redeemable title. By a series of transactions (from 17th September 1470 to 16th May 1471), the Crown in exchange of certain lands in Fife, and a pension of 40 merks, acquired from Earl William an irredeemable title to theEarldom estate, andjus Comitatus Orchadie—an Act of Parliament annexed to the Crown the “Erledome of Orknay and Lordship of Schetland, nocht to be gevin away in time to cum to na persain or persainis, excep alenarily to ane of the kingis sonnis of lauchful bed” (20th February 1471), and the Archbishop of St. Andrews was despatched to Rome, to invoke the solemn benediction of Pope Innocent VIII. on the Impignoration and subsequent transactions, as the seal of Heaven’s sanction upon the completed Revolution.
It is a strange ingratitude in Britain to abjure the Jurisdiction of the Pope; while so many of her original titles rest solely on his authority—improved perhaps by force, as in Wales—by fraud, as in Orkney—or by a happy combination of both, as in Ireland.
The Scottish Crown had now a Redeemable title to the Sovereignty of the Islands with the Skatts, Fines, Forfeits, and Jurisdictions of the Kings of Norway under Wadset, for a principal of £24,166, 13s. 4d., and subject of course to a Count and Reckoning for its intromissions, which would show how soon and how often that sum has been paid—principal and interest—by the Revenue drawn from the Islanders. It had also acquired an Absolute and Irredeemable Property in the lands, males, and services of the Earldom; but to the lands of the Bishop or Odallers it had no other pretentions than those included or implied in the rights of Sovereignty. To extend over these free domains the claims of Superiority or Property, to confound the titles Redeemable and Irredeemable, and to frustrate the power of Redemption by effacing all distinctive laws, customs and tenures, required time, patience and adroitness in invading rights and evading claims; and the gradual substitution of feudal for odal law, and the degradation of the Scandinavian Countries of Orkney and Zetland to a Scottish County and Lordship, was the stealthy process of the next century and a half.
The absorption of the Bishopric and Kirklands (commenced without a shadow of title, and in the infancy of public opinion) has been so slow, silent and serpentine, that their final assimilation as British property is an act of the present reign.The first advance bore the harmless form of a courteous recognition of the Bishop’s rights by his new Sovereign, in a charter of Regality (10th October 1490). The assumption of a concurrent sanction of the Norwegian presentee of the Kirklands (1491–2), was followed by the sole presentation (under Papal Sanction) of a Commendator and Successor to the Bishop (8th April 1498), and shortly afterward by the defiant appointment of an Archdean of Zetland, with a protest against “the temerity and presumption” of the Danish Presentee (8th January 1501–2), and in the civil feuds which long shook the Norwegian throne the Scottish Patronage of the See of Orkney was thenceforth undisputed. The right to dispose of the Church rents during a vacancy (2nd March 1559), and to confirm the Feu Charters of Church lands (1560), flowed naturally from the Charter of Regality; the Act of Annexation (29th July 1587) seemed a necessary precaution against the rapid spoliation of the Church; and the Excambion of Earldom and Bishopric (4th October 1614), was too obviously beneficial to both to look like usurpation. During the convulsions of Church and State in the seventeenth Century, the Bishopric was repeatedly applied to secular uses; but the final act of appropriation was that which established Presbytery (22nd July 1689); the Church lands were vested in the Scottish Exchequer, and ultimately transferred to the British Board of Woods and Forests, by whom, in Imperial contempt of all nationalities, Scandinavian or Scottish, the Orkney Bishopric has been sold (1854–56), and the price expended in the adornment and luxury of London.
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 Odalsmadrsecluded 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 aRentale, modified (with a difference) from the ancientSkatt 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; theOdaller, 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 humbleservus 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 languagewhich 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 thelitera scriptaof 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 prescriptivecustom 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), gavehope 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 theinheritor (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 Crownjure 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 andCollectors 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 thelibere 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).
In the same eventful year (12th May 1567) Queen Mary sought to grace her last fatal nuptials, solemnized by Bishop Adam, with a wedding gift to James Earl of Bothwell, of the Islands and Dukedom of Orkney—a shortlived dignity of a month, forgotten in the immortal infamy of his older title. On his flight from Carberry, he plunged like an angry meteor from another sphere across his Northern Dukedom, leaving there, as elsewhere, no traces but of evil. Baffled in Orkney by the opposition of Balfour, his semi-piratical exactions in Zetland afforded the precedent for the future annual burden of Ox-money, and he continued his flight to Norway, chased like a hunted wolf by Bishop Adam, who, in the new-born zeal of his pursuit of his fallen friend, was wrecked upon the rock still named from his ship The Unicorn—the monument of his first and last visit to his Northern Diocese—but the two Bothwells, Earl and Bishop, have involved local history in a strange Comedy of Errors.
In the meantime, Lord Robert’s feu of Orkney (though not expressly revoked) was presumed to have fallen by its own inherent nullity, and he would probably never have resumed the attempt to make it effectual, but for an opportunity of making it doubly profitable. Bishop Adam was a Lord of Session, and had left the spiritual duties of his See to the superintendent, Mr. James Annan, while he contented himself with receiving its temporalities. By a mutually convenient exchange of these temporalities for those of the Abbey of Holyrood (30th September 1568), the Feuar of the Earldom of Orkney became also Commendator of the Bishopric, with the combined powers of both, strengthened by the countenance of his brother the Regent. To “stress the Odallers” was henceforth the unchanging object of Lord Robert, by aggravating their burdens in Weights and Measures of his own standard, increasing their liabilities to Crown and Kirk in a Coinage of his own valuation, multiplying the civil and criminal grounds of escheit and fine by Enactments of his own, and finally, litigating the very title of the impoverished Odal before Courts and Judges of his own appointment.
As Feuar of the Earldom, and Commendator of the Bishopric, he exercised all the powers of an arbitrary landlord, by raising the rents to the limits of the tenants’ endurance, with aggravations and breaches of the triennial contract, feelingly detailed in the Complayntis. He oppressed Churchmen and others into a compulsory surrender of their lands and rights—suppressed the burghal liberties of Kirkwall and burned its archives—aggravated the evils of Odal subdivision, by extending the Sister’s part to a share even of the Head-Bu—abolished the little Odal mills still traceable on every burn orVatn, and astricted all to his own mills, with new Scottish burdens. Claiming the whole Commonties, fisheries and sea-beach, he punished all use of them by native or Stranger as a trespass—laid heavy Tolls and Customs on the numerous fleet of Dutch fishermen and the Norwegian traders whose traffic to and from the Islands interfered with his own monopoly, and found other illicit profits in the sale of remissions for crimes, permissions for single combat, and Licenses for exclusive traffic—in secret encouragement and partnership with pirates, and in prohibiting assistance to wrecks as an infringement of his pretended droits of Admiralty. But a richer, if not a wider field for his cupidity, was offered in the iniquitous grant of superiority over thelibere tenentes, and the power of subjecting the Odallers to all the lucrative claims and casualties of feudal tenure. Every exaction of former Rentals was enforced, every parish tax became a household or poll tax on each parishioner, every occasional or special payment (such as Bothwell’s forced contributions of sheep and oxen) was made an annual burden, every service ever claimed from a tenant, and many new forms of Scottish serfage, were laid upon the Odaller without appeal—for by the forfeiture of Balfour the Sheriff, and gift of his escheit, Lord Robert was again Sheriff and Foud, with power to call and pack the Lawthings with creatures of his own, and to use or pervert the Law-book according to his will or interest. By such pretended decrees, many Odallers were, like Rendall of Gairsey, evicted without a chance of justice; some were escheited for murder,theft, witchcraft, suicide, or “moving of a march-stane,” others by the slower process of burdens or debts accumulated till the arrear warranted Comprysing by him as creditor, or Escheit as Superior—new enactments, new offences, new courts and new fines, enriched the Sheriff and pillaged the Suitors. Not content with multiplying the forms of exaction, with retrospective enforcement of half a century of arrears, and compulsory second payment to himself of sums already accounted for to the Royal Comptroller, he aggravated every burden by adding a fourth to each standard of measure and weight, replaced the inconvenient vigilance of the Law-rightmen by Weighers of his own choice, and cried up or down the tariff and the coinage according to his interest as buyer or as seller. To guard against appeal or complaint, he enacted the penalty of death or escheit for crossing Firth or ferry without his passport; and against any outbreak of native despair, he was provided with a body of outlaws and broken men, living at free quarters upon the plundered natives, and knowing no law except the will of their present paymaster. Sea and land, Tack and teind, Court and gibbet, Mint and Tron, Firth and Ferry, all were in the hands of the Donatary. To such a power, supported by the public warrant of the Royal Charter and the secret evidence of the Rentall, the Odaller had nothing to oppose except the moral weight of ancient tradition, and a physical force which had lost more by its divided poverty than it had gained by increased numbers—and now the very Law-book and Thing of his Odal fathers were made to doom away his liberties and his lands, in a strange tongue, at the bidding of the Donatary.
For some years Lord Robert superintended the fleecing of the Islands from the ancient Episcopal Palace of Kirkwall or from his lodge at Dynrostness; but as a local habitation for his full-grown greatness, he created at Birsa, the seat of the old Orkneyan Jarls, a large baronial domain by special extirpation of the Odallers, and there, by the forced labours of the natives, “without meat, drink or wages,” he built a palace after the manner of Falkland, and inscribed it:
“DOMINUS ROBERTUS STEWARTUS FILIUS JACOBI QUINTI REX SCOTORUM HOC OPUS INSTRUXIT.”
“DOMINUS ROBERTUS STEWARTUS FILIUS JACOBI QUINTI REX SCOTORUM HOC OPUS INSTRUXIT.”
“DOMINUS ROBERTUS STEWARTUS FILIUS JACOBI QUINTI REX SCOTORUM HOC OPUS INSTRUXIT.”
His vanity was mimicked at a humble distance by his brother and villanous instrument, Cultmalindy, in his Zetland Castle of Muness, with a doggrel motto of equal self-complacency—
“List ye to knaw this building wha began—Laurence the Bruce he was that worthy man,Quha ernestlie his ayres and afspring prayisTo help and not to hurt this wark alwayis.”
“List ye to knaw this building wha began—Laurence the Bruce he was that worthy man,Quha ernestlie his ayres and afspring prayisTo help and not to hurt this wark alwayis.”
“List ye to knaw this building wha began—Laurence the Bruce he was that worthy man,Quha ernestlie his ayres and afspring prayisTo help and not to hurt this wark alwayis.”
“List ye to knaw this building wha began—
Laurence the Bruce he was that worthy man,
Quha ernestlie his ayres and afspring prayis
To help and not to hurt this wark alwayis.”
The ambition which is the infirmity of the noble, sometimes gives boldness to the weak. To exchange the dependent and precarious Possession of the Islands for Sovereignty, and restore in his own family the ancient Jarldom, protected but not controlled by a nominal dependence on a weak and distant Suzerain, was a prospect which might almost have tempted a wiser, and excused a better man; and in 1572, Lord Robert had made some progress in treason. The chances of success warranted the risk. He was in possession of the field—besides a considerable force of soldiers, he was sure of the support of a crowd of followers and adventurers, dependent for their all on his favour and success, and might even win the Islanders themselves to a war with Scotland, by a pledge to restore those native laws and liberties, to the abrogation of which they traced every grievance. On the other hand, the Scottish King was an infant of five years old; the Government precarious; the nation weakened and distracted by civil feuds; the only power that could be sent against him, some one of the northern nobles, all of dubious loyalty; and only one generation had passed since Orkney had defied and defeated the whole available force of Scotland. Denmark was as willing to countenance as Scotland was weak to oppose his designs; and Lord Robert had every reason to hope that the revolution would be effected by pens and treaties, not by swords and battles, if his secret could be kept within his circle of stormy seas, prohibited firths and guarded ferries.
But after all his precautions, one postern of his jealous fortress was open, unguarded, and not commanded by himself. The larger Feudatories of the Kirklands, Balfour of Munquhany, Bellenden and Mudy, owed him no allegiance, and resented restrictions and encroachments from which they suffered as well as the Odallers. It was probably by their influence that the Articles of Indictment against the public enemy were enabled to reach the ear of Morton the Regent. Heavy as was this catalogue of oppressions, and those detailed in the Complaints of Sinclair of Aith and other Zetlanders, they would probably have failed to rouse the attention of the Scottish Government, had not Lord Robert’s dangerous and treasonable practices with Denmark awakened the Regent’s cupidity by the hopes of a profitable composition, or still more lucrative confiscation of his grant and plunder. But the criminal was now summoned to answer for his crimes, and warded in the Castle of Edinburgh, while by Royal proclamation (31st January 1575–6), the ferries and Firth were freed from his illegal restrictions; and during that year, a flood of complaints and evidence from natives and Strangers poured in against him. A Commission was issued (9th November 1576) to Mudy, the former Chamberlain of Orkney, and Henderson, one of the King’s Pursuivants, to examine witnesses on the spot as to his oppressions; and having finished this portion of their examination during the month of February 1576–7, they were further commissioned (24th April 1577) to inquire into the charges of high treason, and it was only under a heavy Bailbond of £10,000 by Lord Lyndsay, that Lord Robert was (5th August) removed from the Castle of Edinburgh to a less strait prison in Linlithgow Palace. It is easier to guess than to trace the secret influences by which he escaped from such overwhelming evidence of treason and crime. Morton, his enemy, was tottering to his fall—his friends Argyle and Lyndsay, were rising into power and favour. On 30th January 1578–9, he was allowed to revisit Orkney to prepare his defence, under heavy bail to return for trial on 30th September, but no trial ensued; he probably compounded for his head with his estate—his bailbondwas cancelled by a Royal Warrant, and the whole parade of Commissions and probations ended in a temporary suspension of his powers in Orkney, without restitution or redress to the aggrieved Odallers, who were again abandoned to the ordinary misrule of the local collectors.
In the meantime, the Crown had given every encouragement to Scottish settlers in Orkney by large and liberal feus of Kirklands and Earldom (without any scrupulous reservation of Odal rights which might be involved in the grants), on a Reddendo of the accumulated burdens “according to the Rentale,” but often at a commutation temptingly illusory. On the disgrace of Lord Robert, it seems to have been designed to lure the Odallers, by similar terms, to accept of feudal confirmation of their rights; for such a charter was granted to William Sinclair of the (5th March 1578–9), for the expressed purpose, “dare inhabitantibus intra dictas patrias de Orkney et Shetland, bonam occasionem et exemplum cognoscere et accipere suas securitates de nobis in simili modo.” But either the Odallers were jealous of such security—the Court unwilling to spoil so promising a field of plunder—or Lord Robert had already exhausted it by his exactions, suits and escheits; for few or none of the Odal lands were at this time feued according to the Rentale.
On 18th January 1581, we find Lord Robert engaged in the congenial work of safely insulting a fallen foe, and paying court to a rising favourite, by assisting to convey the ex-Regent to his prison at Dumbarton—and on 28th October 1581 he had his reward in a new confirmation of his former grant of Orkney and Zetland erected into an Earldom, with all those additional powers of Justiciary, Admiralty, &c., which he had been formerly charged with usurping without a warrant, and (9th June 1585) another confirmation of the transaction with Bishop Adam. Armed with these despotic powers, he returned to Orkney to practise the lesson of his late escape, by finding some safer mode of possessing himself of the Odal lands than the casualties and escheits of a feudal Superior. In the quaint language of Bishop Graham, “Erle Robert obteynit afeu of Orkney and Shetland, and yairupone intendit to stres the Udillaris and augment a rental on these thair landis. He ceasit fra it and found out ane uthir way to doe his turne. He was abbot of Halyroodhouse, and Adame Bothwell then Bischope of Orknay. They made ane excambione, and Erle Robert in these dayis was Bischopein omnibus, and set his Rentale of teynds upon these Vdillandis above the availe, yea triple above the availe.” As Justiciar he had instituted courts of Perambulation to examine all titles in the Islands, and reduce all which seemed feudally defective, including many Odal lands and undocumented accessories, such as Quoys, Commons, &c., the use of which he punished as encroachment on the rights of Crown or Mitre, united in himself. As Bishopin commendam, he was titular of all teynds, untrammelled by any fixed standard of collection, commutation or proportion, and thus he menaced the harassed Odallers on all sides, till they gave up the contest in despair. He set or feued the vacant lands to his own dependents—but cultivation ceased, and the lessened produce warned him that it was not his interest to pauperize or depopulate the Islands, and he retraced his steps. Perhaps the change was but the completion of his scheme for driving the Odallers into feudalism, and giving the sanction of a new bargain to his multiplied and aggravated exactions. The Perambulations being no longer useful, were abolished as illegal, and he made a merit of renouncing the lands and pertinents of every Odaller who should accept, in confirmation of his right, a feudal grant, paying therefor all the accumulated burdens of Skatt, teind, &c., according to the Rentale. So effectually had Earl Robertstressedthem, that most of them accepted such feudal investitures, and the few who adhered to their Odal tenure, had henceforth neither rights to defend, strength to resist, nor wealth to tempt cupidity.
But the very profits of such rapacity at once prompted and justified the resumption of a Grant so valuable and so abused. The Crown’s revenue from the Orkneys had risen progressively within a century, from Lord Sinclair’s Tackduty of £366, to Oliver Sinclair’s of £2000, which also continued to be Lord Robert’s Feu-duty; but the Crown was too poor to give away such an appanage without a larger share of the profits, and James VI. on his majority, resolved to add to his revenue by resuming the Islands, and to his popularity by affecting to commiserate their misrule. By three Acts of Revocation, Annexation, and Dissolution (29th July 1587), he annexed the Bishopric to the Crown, resumed the Earldom, and re-granted it at a Duty of £4000 to his Chancellor Maitland and Justice-Clerk Bellenden, whom (16th December) he commissioned to inquire into the oppressions of “Lord Robert Stewart, lait Erle of Orknay.”
The result of their inquiry is not recorded, and it was probably dropped when it had served its purpose of cloaking the transfer of a lucrative grant from one courtier to another. There was probably as little sincerity of motive in the renunciation of it by the new Donataries, whose character forbids us to believe that they were sufferers from an honest system of fair dealing with the natives. Probably their two years’ experiment proved, that such a complex machinery of extortion could only be kept in working order by the master hand of Lord Robert, and to him, at a diminished duty of £2075, it was again committed by a new charter (1st April 1589), renewed to him and his heir (11th March, 1591–2), and ratified by Parliament, to Patrick, Master of Orkney (5th June) when Earl Robert had passed to his account—a master in the art of extortion under colour of law.
In a quarter of a century he had raised his revenue from the Crown estate from £6366, 10s. to £9016, and that of the Bishopric from £4381, 2s. 6d. to £9000, at conversions which doubled the total burden of Orkney, besides what he could extract from the scatholds, rocks, and seas of Zetland, and a large income from customs, tolls, wrecks, fines, grassums, and other sources, which could not safely or conveniently be entered in the rental. But this enormous increase of revenue bespoke no improvement of the wealth or resources of the Islands. Their whole legal burden at the Impignoration had been under £600,and the large balance of produce was the lawful property of the Odallers or tenants. This increase of rental, therefore, was but the stealthy transfer of this balance from the subject to the ruler, even to the point of confiscation, with a minimum of bare subsistence to the Ryot cultivator—skatts, males and duties, were aggravated in weight, measure and value, till the land could no longer produce enough to pay them, and exorbitant conversions were charged for each deficiency, till the accumulated debt gave pretext for seizure and eviction. The modern improver of the waste finds in every furrow the traces of an earlier tillage and the homes of a dense population; and contemporary rentals testify, that even while the Donatary was exulting in such universal appropriation, whole Districts, once tilled and enclosed, had been again abandoned to the rush, the heather, or the sand flood, overwhelmed by his new and intolerable burdens.
If any thing could have made more bitter the Orkneyan’s sense of oppression, it must have been the baseness of the oppressor. Unlike his brother Moray, whose public aims were lofty, and whose private life was decorous, Earl Robert crawled and wriggled through desperate mazes of legal difficulty, and through political storms which swept away contemporaries more daring or less cowardly—his highest aim to steal estates for his bastards, his boldest achievement tostressan Odaller. Both Earls were reputed sons of James V., but Moray’s mother was the dark proud lady of Lochleven—the dam of Lord Robert, after his birth, found a fitting mate in the Guidman of Cultmalindy, and in their son, Lawrence Bruce, we find the worthy brother and accomplice of Earl Robert, and with poetical justice, the victim of his successor. The structure of his fortunes, reared by the Earl—wrong upon wrong, iniquity upon iniquity—out of the ruins of hundreds, in twenty years of cool, cautious, calculating system, was overthrown as speedily by the spendthrift folly of a son worthy of such a father, the heir of all his vices, with superadded contrasts of his own—crafty but headstrong—mean but vain—rapacious but extravagant—luxurious but cruel to ferocity—an unjust judge, an imperious ruler, and a traitorous subject—afaithless husband and a heartless parent; but relieving the darkness of his father’s memory by the deeper detestation of his own.
Earl Patrick succeeded to a fair inheritance, however heavily the malison of a plundered people might lie upon his father’s soul. Within the bounds of Orkney and Zetland the King was a name and not a power. As Justiciar and Admiral, Donatary of the Crown Duties, Skatts, Males, and Grassums, Tolls and Customs, Feuar of the Earldom, and Commendator of the Bishopric, the Earl was master of all by land or sea. To an income of about £56,000 (equal to the Royal Pension which nearly provoked a war between James of Scotland and the stingy vixen of England), he added the jointure of a wealthy bride, the widow of Sir Lewis Bellenden, his father’s enemy; but all was not sufficient for his expenditure. His new palace in Kirkwall, and Castle at Scalloway, were reared by the same cheap oppression as his father’s residences of Birsa and Dunrossness; but the lavish maintenance of four such establishments, his life of riot, his retinue, body guard and trumpeters, and other affectations of Sovereign state—his petty suits and petty wars, with damages and loss in both, and his desperate struggles to support or redeem his credit at the Scottish Court, plunged him into debts and difficulties inextricable unless he could find another fortune where his father had found it. There was not much to glean after the sweeping harvest of Earl Robert; but if necessity could invent few new forms of exaction, it could augment the old. His favourite adviser Harry Colville, the titular Parson of Orphir, had been hunted by wild justice to a savage death on the Noup of Nesting (1596), but the obsequious ingenuity of Dishington, the Sheriff and Commissary, might suggest new bargains of convenient dubiety, or discover some flaw or overlooked advantage in bygone transactions. Higher land males and grassums were demanded from tenants and tacksmen—Teinds were arbitrarily raised, or so collected, that all were glad to compound or redeem at his own terms—Burdens already commuted and paid under the general name of Feu-duties, were reimposed and superadded to the amount of composition—Ownersof Odal lands had incurred non-entry or purpresture—the native Odaller, in unwitting ignorance of casualties whose very names were new to him—Scottish purchasers, like Lawrence Bruce and his co-Supplicants, in blind trust of the Odal immunities which he had assisted to annul. The Earl threatened both with fines or confiscation; and if we smile to find Lawrence Bruce, in the disguise of an Odaller, pleading for Odal rights, in total ignorance of Odal terms or traditions, and complaining of falsehood, meanness, and tyranny so like his own, we can neither wonder nor regret that such a representation did not avert the fate which he deprecated. By a stringent exercise of his powers under the new ratification by Parliament (5th June 1592), the Earl brought into his mercy the Odallers, real and pretended; but fearing the consequences to himself of excessive depopulation, he consented to suspend the dreaded casualties, and renew the tenures by a mutual recognition as Superior and Vassal.The Uthell Buik of Orkney(16th March 1601–2) records every Odal land as “feuit to the Udallers paying their Scatts and Dewties according to the Rentale, with dew service usit and wount”—and how profitable these new bargains were to the Earl’s revenue, is shown by the important “Rentale pro Rege et Episcopo,” compiled about this time by Dishington.
By the subserviency of the Sheriff and his subordinate staff of Things (no longer composed of Odallers, but of Servants and Tenants), and by the abuse or perversion of the Law Book, the Justiciar had no difficulty in multiplying enactments, penalties and convictions for the most trivial causes or impossible crimes. If evidence was insufficient, and bodily torture had failed, confession was extorted by the agonies of the victim’s dearest objects of affection, and the judicial murder was consummated by gibbet, fire or water, on Thieves holm, or before the window of the Earl’s hall. Confiscation for his benefit was the object and consequence of every such conviction, and the Law Book when it had served, and could no longer serve his purpose, disappeared for ever. His droits and jurisdiction as Admiral were made equally profitable by means equally nefarious.As Patron he appropriated all vacant benefices, or sold them to his dependents, and as Lord Paramount, he claimed the sole disposal of the commons, harbours, ferries and fisheries, even in the ocean, and every other right not feudally secured.
But by his assumption of a more than kingly prerogative of arbitrary and general Taxation, to the extent of 20,000 marks in 1594, and £40,000 in 1595–6, and by the addition of a third to every Standard of weight and measure, and consequently to every Teind and Duty, he touched the interests, and roused the active opposition of a class less patient and more powerful than the Odaller, whom he had learned to coerce or crush at pleasure—the larger Feuars of the Kirk lands, the old opponents of his father. Confident in their Island strongholds and in their Crown Charters, titulars of their own Teinds, with independent jurisdictions and other rights as well defined as his own, and less precarious, they opposed his usurpations, defied his power, retorted his injuries, and even protected his victims. One after another he had long waged against them a desultory war of law and violence. For the siege and capture of Noltland Castle, and imprisonment of the Laird of Monquhannie (1592), the Court of Session had punished him with escheit and heavy damages; and in defiance of his edicts against suing in any Court beyond the bounds of Orkney and Zetland, Mudy of Breckness, Bellenden of Evie, the Goodman of Eday, and even his own brothers, had carried to the Supreme Court similar complaints with similar results; and the Earl could only vent his rage upon the servants who had convoyed their masters beyond reach of his jurisdiction.
He had, however, influence to obtain another renewal of his grant (1st March 1601), with powers and rights even more extensive, and in spite of unanswerable evidence, Court favour had quashed at least one alarming Bill of Indictment against him (1606). But even the unjust Judges of Scotland were at last wearied by the continual coming of Complainers of every kind, nation and degree, and at this crisis of his fate, he provoked another powerful enemy to join in the combined attack which ended in his ruin.
Earl Patrick had enjoyed the temporalities of the Bishopric for many years undisturbed, but the appointment of James Law to the long vacant See (28th February 1605–6), alarmed him for his possession, and he hastened to secure it by new contracts with the Bishop, sanctioned by the King as a temporary arrangement till he should redeem the Bishopric by a rental of £3000 in England (17th November 1606). The Earl had never shown much regard to an obligation, and now overwhelmed with debts, and pressed by Creditors, he was unable, if willing, to fulfil his contract. By unpunctuality, evasion, and insolent refusals, he drove the Bishop to throw his great talents and commanding influence into the common cause of his many enemies, and Law’s rank and character necessarily placed him at their head. Even the Anglo-Scottish Court of James VI. could not resist the Bishop’s just claims, well supported charges, and representations of treason, misrule and inhuman oppression, and on 27th December 1608, Earl Patrick was summoned to Edinburgh, to compear on 2nd March “to answer to the Complaintis of the puir distressed people of Orknay.” It is possible that Bishop Law was sincere in his sympathy for the Earl’s victims; but his Rental of 1614 is as grasping as the worst of its predecessors, and his own day of unlimited power was marked by no redress or relaxation of the bonds of iniquity.
Earl Patrick’s subsequent fate, his long imprisonment, his base repudiation of the son who had risked and lost life and all to serve and save him, and his trials and execution for treason as a subject, not for tyranny as a ruler, have been too amply illustrated elsewhere to need notice here. The consequent forfeiture of the Earldom and annexation of all the lands and rights in the Islands—the excambion and redistribution of Orkney and Zetland into Earldom, Bishopric and Lordship, and the final abrogation of the native laws—might give interest to this Sketch, but would extend beyond its limits of time or subject. The demands of Denmark, and evasions of Scotland, relative to the redemption and restitution of the Islands, would also be a curious and cognate inquiry,which, with many others of this unexhausted theme, must be left for a future time and another hand. Each subsequent century has had its characteristic type of oppressors, wrongs and victims, feudal, fiscal or judicial. By no course of action, resistance or submission, could the Islanders escape from legalized extortion. They gave Montrose 2000 men and £40,000, and the Commonwealth exacted 300 Horse and £60,000 (1650). Again, they raised another Regiment and Contribution for Charles II. (1651); and he rewarded their loyalty and their sufferings by a further exaction of £182,000, in 1662, and then surrendered the Islands to the tender mercies of the Earl of Morton, the worst King Stork of all the Donataries.
Could Britain prove the abandonment of one exaction, the redress of one oppression, the restitution of one item of official plunder, she might treat the complaints of Orkney and Zetland as bygone and antiquated grievances. But she still enforces every exaction of Tulloch or the Stewarts by a Standard even higher and heavier than theirs—still imposes the double burden of British Cess and Norwegian Skatt with aggravations unknown in Norway—still extorts the last farthing of her claims, just or unjust, and pays her debts by a bankrupt’s composition, compelling a discharge in full—and still appropriates the usurped Church property of Orkney to secular and English uses, transferring its burdens to the other Heritors, and claiming for its last relics the inapplicable immunities of English Crown prerogative, first applied by the democratic Government of Cromwell. The Islands are still robbed of their native Laws, Things, and Jurisdictions, and subjected to foreign codes and courts—while Zetland has of late been mocked with a fractional voice in the British Parliament at the expense of the already nominal representation of Orkney. While Britain parades her maternal care and lavish liberality even to her distant dependencies, Orkney has been neglected by every public officer except the Tax-gatherer. Unaided by one penny of that public money which has enriched other Counties more fortunate or more favoured, Orkney has been left to struggle alone against itsmany difficulties, fiscal and physical. Twice has its right to the income of its own State Property been officially recognized; once by a Lease from George III., in trust for its public improvements (27th July 1775), and again by a Treasury Warrant for the same purpose, from George IV. (3rd March 1825)—but the first was diverted to the sole use of the Lessee; and the second was evaded by a shuffle of Government Offices, and repudiated on the lawyerly quibble that the British Commissioners of Woods and Forests are not bound by the obligations of the Scottish Exchequer. Instead of due protection in return for the taxation and duty of subjects, a County which contributed 5000 seamen to the British Navy, was denied one Gunboat to guard its own shores and harbours from the repeated insolence of privateers.
Conscious that Orkney was but a pawn which might some day be redeemed by the rightful owner, Scotland, like a temporary tenant, scourged the precarious holding with unfair cropping and stinted outlay; and Britain, her assignee, discovering its capacity to produce and to endure, has followed the same profitable precedent of chronic hard usage. Unthrifty greed has loaded the Land with unjust burdens and undue taxation, has impoverished the Owners with unexpected claims and vexatious lawsuits, has often forced back the cultivated acres into wilderness and driven the cultivator to strive in freer lands for leave to live. But no misrule has yet exhausted the fertility of the soil, or crushed the energy, or worn out the patience of a people still struggling against an evil destiny, but still amenable as ever even to the semblance of lawful authority. Even though Scotland may have reduced Orkney to “the skeleton of a departed country,” Britain has still found profit in gnawing the bones.