This is the document upon which rests the whole legal authority of the United Kingdom, Scotland and even the European Union in Shetland. As such it demands close inspection. It is the document relied upon by the Crown at the court hearing on 16 August 2011 as proof that Shetland is part of Scotland. The hearing was called specifically to consider the question of jurisdiction. The jurisdiction, or authority, of the court is the foundation stone of the power exerted by any foreign state in Shetland.
The document was published in The New Orkney Antiquarian Journal, after being presented as a talk in both Shetland and Orkney. The Shetland talk was in response to a long campaign in The Shetland Independent Newsletter, which posed the question 'When did Shetland become part of Scotland?'.
There could not be a better person than Brian Smith to provide an answer to the question. He is the Shetland archivist, has written widely on matters of Shetland history and has access to all the appropriate documentation. Unfortunately, even he is unable to come up with a definitive answer, subtitling his paper as he does with the words 'A contribution to the debate.' Smith is not a legal authority and is on record as saying he is not interested in the legal issues surrounding this question.
As court evidence the document is worthless. It is merely an opinion, printed in a non-legal publication, expressed by a non-legal expert, which does not even claim to give authoritative proof.
I do not think that Smith ever intended that his article should be relied upon in the way it has (although, when asked, he did not appear to be concerned). The Crown, placed in the position of having to provide an answer, and in the absence of one of their own, simply clutched at the only existing straw.
The question had never been tested in the courts until the 2011 hearing, so that hearing was of crucial legal importance. Although the hearing was only in a Sheriff Court, the fact that the decision was appealed and went through the two-stage appeal process before noted Appeal Court judges Lords Wheatley, Eassie, Carloway and Bonomy, clearly shows the stance of the Scottish judiciary and defines the Crown's exact position in Scots law.
In this document Smith gives his opinion. It is heavily referenced, as is typical of his work, but he provides no proof and little evidence for his idea that Shetland became part of Scotland in 1472. He omits, or gives only cursory reference to important documents that do not fit his theory. However, perhaps inadvertently, he does provide strong evidence that it could not have happened in that year. My contention is that it never happened and never could have happened because of the position the Crown found itself in. There seems to have been a concerted effort to conceal the evidence, but a trail of intrigue, deception and conspiracy has been left in the historical record.
NOTES: numbers below refer to red numbers in the document.
1. It will be noted that the document does not pretend to be an authority. It is 'a contribution to the debate' and recognises that there is (or was) an ongoing debate about this question. At the time it was written the matter had not been tested in the courts and the reader will note that there is nothing contained in it that attempts a legal explanation of the accepted status quo. The careful reader will find Smith's usual wealth of references, but little in the way of evidence and nothing in the way of proof to back his conclusion that Shetland became part of Scotland on 20 February 1472. He does, however, inadvertently show evidence and proof that it could not have happened on that date, while omitting, or giving only cursory examination to documents that damage his theory.
2. It was a sustained campaign in the Shetland Independent Newsletter that 'encouraged' Smith to state the date at which he believed Shetland became part of Scotland. I was the editor of that free magazine. Contrary to Smith's assumption, I have no yearning for Shetland to return to Scandinavia. When the illegal regime is removed I would like to see Shetland returned to its people, to whom it rightly belongs.
3. Orkney and Shetland have been connected with Scandinavia for well over a thousand years. What happened before the written record is irrelevant in solving a legal issue.
4. As conquest is one of the recognised means by which territories are accepted in international law to have changed hands, and since this is the first such recorded event, it is a good starting point to establish the legal position.
5. No matter how many foreign people there are in a country, they do not change its nationality.
6. While historians may speculate all they might about what was in the minds of the parties, the hard evidence is in the documents. The documents are the only source to consider from a legal point of view.
7. Not only was it not the concern of the Norwegian Council, it was not the concern of the Scottish parliament either. The pawning agreement was between two individuals who happened to be crowned heads. It involved the personal property of one, which he pawned to the other. This was not a matter of state and for that reason is not reported in the parliamentary records of either country.
8. This is what historians are so good at - vying with each other to get a new slant that will boost their reputation. Actual proof would be so inconvenient - opinion is so much more flexible. Smith engages in pure speculation, which is worthless from a legal perspective.
9. Smith is correct in saying the pawning document is very clear, but his interpretation is not. Authorities such as Green's Encyclopaedia of the Laws of Scotland and The Stair Encyclopaedia of the Laws of Scotland agree that the document forms the basis for the relationship between Shetland and the United Kingdom. It is essential to get a correct understanding untainted by personal bias.
10. By 'unhelpful' Smith means not agreeing with his viewpoint.
11. Donaldson's reasoning here is flawed. Although he correctly states at p.18 that the subject of the pawning, 'the king's lands', could not include the lands of the earldom, he fails (in common with all other commentators) to consider the position of lands in private ownership, which fell into the same category. Ultimate lordship belonged to those owners and the king could not pawn them. In their use of the phrases 'earldom of Orkney' and lordship of Shetland', he and nearly all other commentators make the assumption that they mean the whole of the islands. They mean exactly what they say: those parts of Orkney administered by the earl on behalf of the king and those parts of Shetland under the direct lordship of the king. The unqualified terms 'Orkney' and 'Shetland' would describe the whole of the islands. His assumption that legislation from Scotland could apply in Shetland is only sound if Shetland was part of Scotland. He applies the logic in reverse by assuming that if the legislation was applied, Shetland must have been part of Scotland. It is inconceivable for most to think that the Crown could have been perpetrating a deception - the logic must be adjusted to fit the facts.
12. Alternatively, it could be that those who argue that the whole of Shetland was the subject of the pawning, are reading into the document a meaning that does not exist.
13. Desperately trying to justify his position, Smith concentrates on grammatical semantics while ignoring the core issue. Under Norse law all land was owned outright (allodially), not under the king as in the English and Scottish feudal system. The king could not pawn something he did not own. The pawning document concerned exactly what it says, 'the king's lands' - his own personal property, which comprised about 10% in Shetland's case. The remaining 90% remained in the ownership and under the lordship of other landowners.
14. Smith claims 'the right to collect taxes, to administer the law, and to extract fines from miscreants' forms part of the pawning document, but it does not. Christian did write a separate letter to his subjects instructing them to be obedient to James and to pay their scat to him until the pawn was redeemed, but this did not form part of the pawning agreement. The existence of the letter reinforces the fact that only 'the king's lands' were the subject of the agreement - the letter was necessary for James to get the income from the remainder of population.
15. The transfer of the earldom could only make James III earl under King Christian. (Donaldson Stair Miscellany Two, 1984, p.22.)
16. The 1472 annexation concerned only (in Shetland's case) the lordship of Shetland, not the whole of the islands. It did not affect the constitutional position of Shetland, as Donaldson says: "This ....... had no direct bearing on either sovereignty or the international status of the islands". (Donaldson, Stair Miscellany Two, 1984, p. 22).
17. James had nothing to lease. He held 'the king's lands' or lordship (roughly 10% of Shetland) in trust until they were redeemed. This was the first of a succession of what would be fraudulent acts if executed by anyone but the Crown.
18. The fact that the old systems were kept is good evidence that Shetland was not then part of Scotland.
19. Significantly, James did not impose the Scottish system - he would not dare, as Smith himself explains on his p.55.
20. Speculation about non-existent documents makes no contribution towards answering the question posed in the title of this document and is mere padding to muddy the water.
21. As I have said, there was no need for Christian to consult with anyone before pawning the king's lands, any more than he would have needed to consult about any other of his personal property.
22. It was nothing to do with the Danish or Norwegian councils. Christian had been pretty canny, but pawning his personal property was not an act of state.
23. The fact that the Scots were holding on to not only the king's lands (which they were holding in trust), but the rest of Shetland as well (on which they had no claim whatsoever); is what the Danish and Norwegian councils should have been (and probably were) concerned about.
24. The 1486 letter seriously damages the case for 1472 being the date at which Shetland became part of Scotland. I deal with this document in detail in chapter 17. My analysis is completely at variance with Smith's somewhat creative interpretation and draws a compelling conclusion that Shetland could not have been part of Scotland at this time.
25. With the words 'subjects of the isles of Orkney and Shetland were to be taken from their birthplace and James's subjects brought over', James admits that the people of Shetland were not his subjects.
26. Specifically, he says he has not changed the language or laws of Norway - why would he feel so bound, if Shetland was part of his realm?
27. The purpose of the embassy was to 'bring to completion the pacts made between John's father and himself'. There is no evidence that any such embassy was ever sent.
28. The references are only curious if viewed from the fixed-mind standpoint that Shetland is part of Scotland. Once that is put aside, they make perfect sense. Hans had a valid claim and James knew it.
29. Without the supposed document in question, all this is a matter of speculation - valueless as evidence.
30. A legal solution cannot be found in rumour and hearsay. Later events indicate that the document did not in fact exist. Had it done so the Danish kings would not have continued to insist that sovereignty had not been relinquished: "In later attempts by the Danish kings to redeem what they had pledged, it was more than once claimed that sovereignty had not been renounced, and this claim was not, apparently, disputed by the Scots. When Frederick II raised the question of the redemption of the islands in 1560, he said that the Scots must be aware that the dominium of the islands pertained to him." (Donaldson, Problems of Sovereignty and Law in Orkney and Shetland, Stair Miscellany Two, p. 18). Thus, in 1560 there can be no claim that Shetland was part of Scotland.
31. It is difficult to imagine that Hans was anything but serious in his intent to take every opportunity to assert his rights.
32. Hans legitimately regarded Shetland as his dominion and continued to treat it accordingly.
33. Smith says: "The thing that Hans didn't do, however, was offer money to the Scots to get back the islands. - Neither did his successors". A few pages on, he contradicts this statement on his page 56. When describing the delegation of 1585 he says "they had the redemption money with them".
34. Smith gives no evidence for his assertion that King Christian received the letter.
35. The statement 'Christian did not take the opportunity to redeem the islands' is contradicted by Smith's own information. See his footnote 41. According to this, Christian continued to press his 'demands for redemption and acknowledgement of the archbishop'. The Scots used their usual tactic of delay and prevarication to avoid the issue. (My emphasis).
36. The phrase 'pledged to Scotland' once again reveals that Shetland was not part of the realm - 42 years after Smith's proposed date. He provides evidence that contradicts his own theory.
37. I do not find Goudie more cautious than Crawford, as Smith claims. The passage referred to reads 'They [natives of Shetland] still looked to Norway as the mother country. They continued for some time to advocate causes, not to the courts of law in Scotland, but to courts they were more familiar with in Norway; and the native system of law and justice, of udal succession and udal tenure of land, survived in some measure, through determined efforts at repression, for at least a couple of hundred years later." (My parenthesis).
38. In his books Shetland Documents 1195-1579 and Shetland Documents 1580-1611, Smith notes at least 16 documents showing transactions in Norway regarding land in Shetland.
39. In the absence of evidence showing that Shetland is part of Scotland, it is natural for Shetlanders, who regarded themselves as Norwegian, to go to a Norwegian Court.
40. By discrediting one source, Smith attempts to cast doubt on the rest - a classic disinformation tactic.
41. Smith offers no evidence for this sweeping claim.
42. It is more significant that the Shetland merchants were regarded as being Norwegian, and therefore not subject to tax, until that time.
43. Shetlanders had little choice about being interested in their motherland. They were being bullied into submission by incoming Scottish dignitaries and officials. The heirs of landowners who were sovereign in the most complete sense were being reduced to the position of serfs.
44. Interestingly, Smith does not claim that Scotland had sovereignty over Shetland. His statement 'The king of Scotland was in charge of Shetland' would not prevent Christian exercising his legitimate sovereignty to appoint his own lawman.
45. I can find no mention of Neils Thomasson on p.196 of Shetland Documents 1195-1579 as stated at footnote 54.
46. If, as Smith argues, Shetland had become part of Scotland in 1472, why would the Scots not dare to challenge a Danish claim? Clearly, the Scots Crown did not think any such thing.
47. Proof positive that the Scots felt insecure in their possession of Shetland at 1564. All they could do was to be devious and prevaricate. Nothing changes, even today.
48. They had little option since Parliament was not a party to the original agreement and James III had given an undertaking to preserve the language and laws of Norway. As Donaldson points out, 'This, however, was only an 'article', with a comment, and there is no conclusive evidence that it was the foundation for an act or had any statutory authority.' (Donaldson, Stair Miscellany Two, 1984, p.26).
49. By even mentioning this delegation, Smith undermines his theory that Shetland had become part of Scotland in 1472. Such a large delegation, with two great ships and 120 people could hardly have come without prior warning and, as Smith says: "They had the redemption money with them". The Scots managed to evade the issue as always, but both they and King Frederik, whose delegation it was, were clearly aware that the Scottish position was untenable.
50. This, the single most crucial document, is the one that has to be dismissed if the official line is to be upheld and Smith does his best to do so. What happened at Breda was of the most fundamental importance to the people of Shetland. It negated two hundred years of patient deception by the Crown. Apart from superficial comment about it being 'unprescribed and imprescribable' Smith simply ignores it. Despite what he says, it certainly was 'unprescribed and imprescribable'.
51. Another Brian Smith red herring. By concentrating on the inconsequential, he avoids considering the actual significance of this crucial document. In front of the plenipotentiaries of Europe, Charles II's delegation committed the Crown to acknowledging that the 1469 pawning document still stood in its full force and could not be abrogated. This turned the clock back 200 years, meaning the Crown could claim no more than holding 'the king's lands' in trust. It meant that all disponements had been invalid and that any acts of the Crown as acts of sovereignty in relation to Shetland were now negated.
52. Yet another Brian Smith red herring used to divert attention from the significance of the document. The 1669 Act of Annexation has profound implications for Shetland and is discussed in full at chapter 11. Although his statement is undoubtedly historically correct, it is much more likely that Charles II used the shipwreck as an excuse to punish Lord Morton. It was not legal grounds as were stated in the 1669 annexation. Two years previously the Treaty of Breda had tied Charles II's hands when he had acknowledged the pawning document as still standing in its full force, thereby agreeing that he only held 'the king's lands' in trust. It is for this reason that he declares in the 1669 annexation that the disponement of Shetland to the earl of Morton (and all previous disponements) had been illegal - he had disponed something that was not his to dispone. The 1669 Act of Annexation is a very extensive piece of legislation, in contrast to the usual cursory two or three lines of most acts. Despite this, it is almost totally ignored by most commentators, including Smith. Of course, if parliament was not party to the original pawning document, it can have no real relevance to Shetland. It does however give a clear and comprehensive idea of Charles II's reaction when faced with the effects of the Treaty of Breda.
53. Although I am flattered that Smith should take any notice of my work, he gives no analysis or reason for labelling mine a 'crackpot' theory. I have presented a case that the courts are unable to rebut.
54. Pretext is the right word - it was an excuse.
55. Smith is quite right - pointless speculation.
56. Norway was not about to stir any muddy water, especially when the international seabed boundary was about to be changed to give it a large chunk of Shetland's oil-bearing continental shelf. Generous recompense to prevent any awkward recurrence of old claims.
57. 57. The 500th centenary - maybe he means the 500th anniversary. After 50,000 years the whole question is reasonably likely to have been forgotten and even The Word of Brian will be buried in the mists of time.
58. And why should historians (or anyone else for that matter) 'accept inevitability as a legitimate means of interpreting history'? There was, and is, no provable basis for the power exerted by the UK and Scottish 'authorities' in Shetland.
59. They were more likely yearning for a logical answer rather than settling for blind obedience.
60. Donaldson puts his finger on the nub of the question. When exactly did Shetland become part of Scotland? Nobody has an answer.
61. The British government is hardly likely to admit that Shetland is not part of Scotland and will use any means to avoid confronting the issue, as the quoted example shows.
62. "On three occasions when Scotland offered Orkney and Shetland". Smith only mentions two (see his page 51).
63. Neither does it sound like a person in possession of the full facts. Is Smith suggesting this one anonymous Shetlander was part of a burgeoning Submit to Scotland Movement?
64. With an air of authority, but with not a shred of proof and no logical argument, Smith gives his 'contribution to the debate'.
Three further documents from Smith's own work disprove his contention that Shetland became part of Scotland in 1472. The first is a letter written on 26 March 1584 by King James himself asking King Frederik of Denmark a favour regarding lands in Shetland. It is inconceivable that James would undermine his own authority in such a way if he considered himself sovereign of those lands. The second and third are letters written by King Henry and Queen Mary to Eric Rosenkranz, keeper of the castle of Bergen. The first of these, on 19 September 1566 urges him to intervene in a dispute regarding land on the island of Papay. The whole tone of this letter and that of another on the same day to John Splid, proprietor of Papa are extraordinary in their recognition of rights outside the control of the Scottish Crown. They completely demolish any idea that Shetland was part of Scotland at that date, let alone 94 years earlier in 1472 as proposed by Smith.
Smith's magazine article, When Did Orkney and Shetland Become Part of Scotland?, demonstrably devoid of proof and full of spin, disinformation, errors and speculation, is the sole document the Crown relies on for proof that Shetland is part of Scotland.