Udal Law in Orkney and Shetland

Each major claim carries one of three labels. established means supported by primary records, official bodies or several independent reliable sources. shared means the core fact is sound but sources disagree on details, dates or interpretation. traditional means widely repeated but not traceable to a primary or independent source.

The pledges of 1468–69 and the leading court cases are well documented, and the Registers of Scotland publish guidance on how udal titles are registered today. How much of udal law survives is a matter of legal debate: the courts have tended to recognise only specific survivals, while some scholars argue for a wider view. No copy of the Norse lawbook used in the islands survives.

A Norse inheritance

established Norse settlers brought their own law and landholding to Orkney and Shetland. The islands kept close ties with Norway, and the Norwegian Crown held political authority there until 1468–69. Orkney followed a local version of the Magnus Code, a Norwegian lawbook of the 13th century, though no copy survives. Udal law's defining feature is absolute ownership of land, which was not granted by the Crown or held in return for service, as it was under the feudal system of mainland Scotland.

Pledged to Scotland

established In 1468 Christian I, King of Denmark and Norway, pledged Orkney as security for the dowry of his daughter Margaret on her marriage to James III of Scotland. In 1469 he pledged Shetland for the rest, which he could not pay in cash. These two pledges are the basis of the Scottish Crown's right to the islands.

A mixed law

established Scots law gradually took over. The last known Orcadian legal document in Norse dates from 1426, and by 1436 legal documents were being written in Scots. By the late 16th century the island courts applied a mixture of udal and Scots law and procedure, and the local Magnus Code seems to have disappeared in the early 17th century.

The Act of 1611

shared In 1611 the Privy Council abolished the "foreign laws" of Orkney and Shetland. Some have read this as the end of udal law. The lawyer Jane Ryder argues that this was not its practical effect and may not have been intended: it may have been aimed at the oppressive rule of Earl Patrick Stewart, or at blocking new law from Bergen or Copenhagen. Udal law has never been formally abolished.

The courts and the foreshore

established Disputes over the foreshore, the shore between high and low tide, have kept udal law alive in the courts. In Smith v Lerwick Harbour Trustees (1903) the Crown claimed the foreshore as feudal superior, but the court accepted that a udal title carried the foreshore with it. In Lord Advocate v Balfour (1907) Lord Johnston held that nothing since 1468 amounted to general acceptance of the feudal system in Orkney, and that the Crown was not the source of all land rights there. In the St Ninian's Isle Treasure case of 1962–1963, however, the judges treated the Crown's right to treasure as the same as on the mainland, and Lord Patrick doubted that much of udal law survived beyond udal tenure of land, scat (the tax paid on udal land) and a few other matters.

Udal law today

established Scots law generally applies in Orkney and Shetland, but parts of udal law remain, especially on land and the foreshore. Registers of Scotland guidance states that a udal title adjoining the coast is presumed to include the foreshore, that the Crown has no prior right to it, and that the title extends to "the lowest ebb", which may lie below the usual low-water mark used elsewhere. Historic foreshore rights included whales, seals, wreck and bait; today foreshore ownership can matter for harbours, fish farms and renewable energy cables.

• No copy of the Norse lawbook used in Orkney survives.
• The last known legal document in Norse in Orkney dates from 1426.
• Orkney and Shetland came to Scotland as security for an unpaid dowry.
• Udal land was owned outright, not held from the Crown.
• Udal law has never been formally abolished.
• A udal title to the foreshore can extend to "the lowest ebb".
• Historic foreshore rights included stranded whales and seals.
• The St Ninian's Isle Treasure case went against udal arguments.

• Do not say Orkney and Shetland were sold to Scotland; they were pledged.
• Do not say udal law was abolished in 1611; that is disputed.
• Do not say udal law still governs all law in the islands; Scots law generally applies.
• Do not say udal arguments always succeed against the Crown; the courts have often taken a narrow view.