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The Northern Reaches - Udal Law

by Charles Tait

Here is an extract from a book written by my dad about Orkney. It may be of interest to anyone who likes the Northern Reaches setting, since it is an old Norse idea. I think it would be cool to figure this method of land-ownership into Vestland or Soderfjord, or maybe Ostland at a push. It probably works best in Soderfjord.

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Udal Law, from ON odal - land held in allodial tenure, is the ancient Norse system of inheritance and law which the Viking settlers brought to Orkney. No trace remains of the previous legal system, which no doubt derived from the distant past with influences from previous incomers, but there is evidence that the Norse took over control of an existing pattern of settlement. About 1280 King Magnus Lagabote (the Lawmender) supervised a revising and codification of the old laws, which of course applied to Orkney as part of Norway.

Udal Law is totally different to Scots Law. Udallers have absolute ownership of their land, with no superior, gained by holding the land over a number of generations, normally originally by settlement. This land was held in unwritten freehold, with no obligation except a duty to pay tax or skat to the king. The eldest son inherited the father's house, while the rest of the property was shared among siblings, daughters inheriting half as much as sons. Over the years this led to an extreme fragmentation of land ownership and, despite reform, left Orkney wide open to exploitation.

The fact that no written documents were required to substantiate possession greatly confused the Scots. The lack of Title Deeds was much used by Scottish "landlords" and their lawyers, as one of the means of grabbing lands from the real owners. Considerable amounts of hill land are still held in this ancient manner, which can cause problems for public bodies at times.

There was a policy on the part of the Scottish Crown to acquire the Udal rights to land, because although the Scottish Parliament had "abolished" Norse Law in 1611, this could not be retrospective. Indeed in view of the pawned nature of the islands any Scottish Act over the Norse Law even now may be in doubt. Steadily Scots "landowners" acquired "ownership" of Udal lands by often dubious means, until the Udallers were very much reduced. Ironically this was eventually to lead to the downfall of the incoming laird class themselves.

The fundamental difficulty with Scotland was that the King was nominally the owner of all of the land, which was held by landlords with the Crown as superior, and with services and payments to be made, as well as a written title, whereas the Udal system was virtually the direct opposite. This remains incomprehensible to Edinburgh lawyers, well versed in Feudal Law but not in Udal Law.

Udal Law still exists today, most apparent in the ownership of the coastline. Whereas in the rest of Britain ownership of land extends only to the High Water mark, in Orkney and Shetland this extends to the lowest Spring ebb, plus variously as far as a stone can be thrown, or a horse can be waded, or a salmon net can be thrown. This has enormous implications to building work, inshore fisheries and piers. Also anything arriving fortuitously on the shore is technically the property of the landowner. Naturally the lairds used Udal Law to control their lucrative Kelp-making trade.

Since the foreshore belongs to the adjacent landowner and is not Common Land, there is no absolute right of access to the inter-tidal zone in Orkney (or Shetland). However traditionally no one objects to folk going along the shore. If in doubt it is polite to ask.

Another anomaly is the Mute Swan. About 1910 a Kirkwall lawyer was determined to prove that Udal Law still had force, and accompanied by his friend, the Procurator Fiscal, went out to Harray Loch and shot a swan. The case went to the High Court and the Crown lost. Everywhere else in UK the Crown owned the swans - in Orkney they were, and still are, the property of the people. Nowadays we do not shoot swans, but the principles of the old Norse Udal Law still stand.

In the mid-1970s when the Occidental Oil Company was building its pipeline to Flotta, it negotiated with the Crown Estate for rights to cross the foreshore at the end of the 4th Barrier at Cara without realising that the Crown has no authority over the intertidal zone in Orkney. The Company had apparently even paid the Crown Commissioners for a privilege that they had no authority to dispense when the landowner realised that his rights had been infringed. Thus state ignorance of Udal law continues to this day.

The Crown had to admit the supremacy of Udal Law in this respect and refund their charges in favour of the actual landowner. Thus there has been little change in the attitude of Edinburgh lawyers in the last 600 years - they still treaty the Udal Law with contempt - hopefully at their continued peril!

Orcadians still like to think that the classless society of today derives from the Udal tradition, where every man is equal, but also every man has an equal duty to society. Today's Orcadian may be a mixture of Norse, Scots and others, but he or she is nevertheless still independent by nature.

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All of the above text is of course copyright 1997 Charles Tait (my dad). Please feel free to use it but don't print it out and sell it (as if you could... ;-). Anyway, I'll be happy to (try to) field any questions on this. I hope some of you find it interesting.