Under the terms of the Impignoration, itself probably illegal because King Christian I seems to have acted unilaterally without consulting the Norwegian Rigsraada [state council] [Mooney n.d.], the administration of Orkney passed to Scotland while sovereignty remained with Norway until such time as the pledge was redeemed. No time-limit was set and the redemptory sum was fixed at 50,000 florins of the Rhine - a paltry £24,166, 13s. 4d. according to David Balfour [Edinburgh, 1860]. During Scottish administration, governance of Orkney was to conform to existing Norse custom and law. This was codified in the Norse Lawbook which was “corrupted, and ultimately (it is said) burnt.” [Drever n.d. See further Mackenzie p.36] This destruction, together with that of the Norse Rent Rolls, was the culmination of sustained attack by successive despots on the rights of udallers the better to mulct maximum profit from territory regarded by its ‘guardians’ as their personal fiefdom. Their aim to eradicate udal law nearly succeeded, but not quite.
is such as the owners have in All-hood, acknowledging none
but God alone for it. Latin writers call this Alodium, or Alodum;
the French and English Alod or Aleud, the Germans and Scandinavians
Aoidal, Audal, Othel or Odal; and the Orknay [sic]
men and Shetlanders, Authel, Uthel or Udal: A compound of the Tuetonick
[sic] Ode, signifying propriety or possession,
and of Ole or Ale, which in the same language signifies ancient.
(Eccardus ad leges salicas, in voce Authumnia.) And thus by
an Udal or Aleud, an Odal or Alod, is meant an ancient inheritance,
patrimony or possession.
The owners of these lands of inheritance were by the Germans called Othel-men, and by the Anglo-Saxons Edel-men. In Norway they are called Odal-men, and in these islands [i.e. Orkney and Shetland] Authal-men, Uthel-men, or Udal-men; a name (says Eccard in loc. citat) equivollent to noblemen. [Mackenzie 1750 - and so say all of us! The somewhat erratic Italicis are as in the 1836 edition.]
Odal law is not just a historical oddity; it continues to hold supremacy over Scots law in Orkney and Shetland. In 1567 an Act of the Parliament of Scotland was passed allowing the Norse laws of Orkney and Shetland to prevail over the Scottish common law which was, after all, no more than was agreed at the time of the Impignoration. This remains the position which Scottish Courts are occasionally forced to acknowledge. Two 20th century cases exemplify the sublime and ridiculous extremes of what odd bedfellows udal and feudal rights make.
One major difference from Scots law is the udal right to ownership of the shore which extends not just to the shore-line above high water but includes the lowest point of the ebb, [the LAT or Lowest Astronomical Tide] and possibly beyond to a hazily defined point, sometimes referred to as the marebakke, where the foreshore becomes steep and beyond a man's depth, or the distance a man could cast a net from the ebb-line. It is common for udal titles to extend “from the lowest of the ebb to the highest of the hill” and therefore to include the foreshore within the grant.” [Scottish Law Commission 2001] This was important as it ensured a right of access to load boats, by wading human porterage or by horses, from any shore without a jetty. It also became of considerable significance in laying pipelines and cables which was brought home to the Occidental Oil Company and the Crown Commissioners in an important case in the mid-1970s when Occidental was constructing 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 and therefore no legal right to try and extort payment for its use. “Accordingly, where a udal title includes the foreshore, the Crown has no proprietary rights in the foreshore... The Crown still has an interest in the foreshore, but only as protector of the public rights.” [Scottish Law Commission 2001] When the landowner successfully asserted his udal rights, the Crown had to relinquish its ‘royalties’ and refund their charges to the udaller.
At the other extreme was a case that came to court around 1910 over the Mute Swan. The Crown asserts ownership of all mute swans purely on the basis of having passed a law to that effect, the preposterous 1482 Act of Swans, but this was challenged by a Kirkwall lawyer who, accompanied by his friend, the Procurator Fiscal, went to the Loch of Harray and shot an unfortunate swan. The case went to the High Court and the Crown lost because, in Orkney, swans are the property of the people. As for the swans, they remain mute.
Linklater is an ancient Orkney township testimony of whose age is to be found in the need to add Upper, Nether and West Linklater to the main township either to accommodate an expanding population or in recognition of the udal subdivision of the original property among heritors. It appears to have belonged to Linklaters until the middle of the 17th century when “Alexander of that Ilk sold his lands to Rob. Richan from 1662 to 1667.” [Clouston 1914] Half a century before the proprietorship of Linklater passed to Richan, there were other Linklaters of some standing either unconnected with Linklater township or who had moved away and prospered, e.g. Thomas Linkletter of Wattle who died in 1611 was a substantial farmer; he employed four male and three female farm-servants, he owned 10 horses, 4 oxen, 16 cattle, 20 sheep and 10 pigs and he had a large acreage under crop. [Thomson, 1995]. Wattle is in Birsay, a little under 4 miles north of Linklater and just to the north of the northern end of the Loch of Boardhouse. Another Linkletter, Andro, of Harray, was sworn in as a juryman in November 1612 in Petersone contra Dicksone; and in January 1613 in Rendall contra Sandie Henrie Linkletter of Goirsnes was sworn in. Both returned guilty verdicts in cases of assault. [Barclay 1962] Only men of substance would have been jurors. For more on the name in general see Linklater Name.
George Richan was described as “of Linklater” in Poll Tax records from the 1690s and again, in 1718, in a document allocating pews and seats in the recently rebuilt Stromness church. Richans were evidently people of substance who continued to prosper, by fair means or foul, e.g. kelp and smuggling, well into the 19th century until the inevitable bankruptcy. I wonder if Esther Richan regretted winning an argument with a ‘gentleman’ diner as to who could consume the most expensive breakfast? when Esther Richan took the laurels by eating a sandwich containing a fifty pound note. Clearly, Linklaters were no match for them! proof of which may be found set in stone within St Magnus' Kirk where there are at least two memorial stones for the Richan family, the earlier of which [shown above left] records the death of John Richen Merchant Bvrges of Kirkwal on 6o Febr 1679 without reference to Linklater, whereas the slightly later stone [at right] records the death of Robert Richen of Linclater Merchant and Bvrges of Kirkwal 1 Decr 1679 - although the year is in some doubt as the carving is very worn. I have yet to find evidence of any sort of memorial to any of my immediate forebears, who would thus appear not to have been blessed with enough spare cash to memorialize their dead in any permanent form. There are several stones recording Linklaters in St Peter's Kirk, Skaill [HY 234 198] but I do not know what, if any, immediate relationship they bore to my ancestors. I have not looked in other Orkney boneyards.
Nether Benzieclett was one of the oldest domestic properties in Orkney and at one time occupied by Linklaters. [Research: when they ceased to occupy.] It was still inhabited at the turn of the 20th century but not by Linklaters. [Research: when it became unoccupied.] Nether Benzieclett is less than 1½ miles from Linklater [Research: was it ever a part of the township.] as is another, very old property, now called Housegarth, which is claimed to have been continuously occupied by Linklaters “for nearly a millennium.” [Thomson 1981] [See Nether Benzieclett for more.]
Surnames appear in Orkney from the 14th and 15th c. and were universal by the 17th c. The earliest surnames were place-names, all of which are Norse. There are no Norse taxation rolls [rentals] for Orkney. The earliest rentals date from the end of the 15th century by which time Orkney was under Scottish administration. Those adopting surnames tended to take ‘Scottish’ names, Sinclair being a particular favourite even though originally Norman French. Old Norse names were rarely if ever adopted. Thus anyone called Linklater is likely to have been resident during, if not before, the Viking colonization and unlikely to have arrived after the Impignoration. [Research: when did the surname Linklater first appear outside Orkney? on Fairisle? and Shetland?] Linklater is one of several surnames unique to Orkney. [See Linklater Name for more.]
Writing of Scotland in general, Alexander Fenton said Relatively few areas have an indigenous population historically linked with that area for more than a century and a half to two centuries. Being somewhat inaccessible islands must have helped make Orkney one of those few. The last of my immediate ancestors was born and raised at Aith, 2½ miles from Linklater. The balance of probability favours his descent from individuals inhabiting Orkney no later than the Norse settlement. This means that over the course of say one thousand years my ancestors moved not only slower than a glacier but far, far slower than a snail. At the 1995 World Snail Racing Championships at Longhan, a garden snail named Archie covered a 13 inch course in 2 minutes. An average garden snail motors along at 0.03 m.p.h. Taking a millennium to cover 2½ is extreme dawdling, a hundred thousand times more dawdly than a gastropod - just the turn of speed you would expect from a rock in the heather.
© 2018 Duncan Linklater Custos Rotulorum.