TSNS Foundation Corpus

Version 1.2.

The website version of the Foundation Corpus is the authoritative version and may be updated as further material is added or corrections are made.

Reader’s Note
The Foundation Corpus brings together the principal legal authorities, historical instruments and documentary evidence upon which the analysis of The Sovereign Nation of Shetland (TSNS) proceeds.

Its purpose is to identify the legal foundation of the authority presently exercised in Shetland and to place the relevant source materials before the reader.

The Corpus distinguishes between Authority — what an institutional legal source says; Instrument — what a historical document actually records or conveys; Evidence — what a public authority or other body has said or done when the basis of its authority has been questioned; and TSNS proposition — the conclusion or question which TSNS says follows from those materials.

The documents should therefore be read before the commentary upon them.

Note: some scanned documents bear the words “SIC Document”. This does not imply that the source is Shetland Islands Council; the wording was inserted automatically during the scanning process.

Definitions and abbreviations

Stair: The Laws of Scotland, Stair Memorial Encyclopaedia.
Green's: Green's Encyclopaedia of the Laws of Scotland.
McNeil: Common Law Aboriginal Title (1989). Professor Kent McNeil.
Feudal: ownership under the Crown.
Allodial (or Udal): ownership under God.

1. The Foundation: Title, Land and Sovereignty

These five documents form the central legal chain of the Foundation Corpus.

• 1.1Stair, Vol. 18, para. 42 — document

  Authority: “Thus in feudalism landownership and sovereignty coincided, so that the Crown's sovereignty over Scotland and its dominium eminens, its ultimate tenurial superiority, were the same thing, were identical concepts”.

  Note 4 adds: “We still have a relic of this in the rule that the Crown cannot dispone but only feu, for to dispone would, in the feudal scheme of things, be to alienate not only land but also sovereignty”.

  Significance: This identifies the Crown's sovereignty, in the relevant system of landholding, with its dominium eminens or ultimate superiority. The issue is therefore not ordinary private ownership of land, but the Crown's ultimate title or superiority.

• 1.2Stair, Vol. 18, para. 47 — document

  Authority: “The dominium eminens or ultimate superiority of the Crown is allodial, because not held of a higher lord, except of God”.

  Significance: The ultimate superiority identified with Crown sovereignty in 1.1 is itself described as allodial. Read together, 1.1 and 1.2 establish the legal concept which must be considered when examining the Crown's title to Shetland.

• 1.3The 1469 Pawning Instrument — document

  Instrument: This is the instrument by which Christian I of Denmark and Norway pledged his interest in Shetland to James III of Scotland as security for payment of the balance of his daughter's dowry. The transaction was a pledge or impignoration subject to redemption.

  TSNS proposition: The instrument must be examined for what it actually transferred. TSNS has found nothing in the instrument which conveys absolute or allodial ownership of Shetland to the Scottish Crown. If some later instrument or operation of law converted the Crown's interest under the pledge into the allodial dominium eminens described in 1.1 and 1.2, that instrument or rule of law should be identifiable. TSNS has not found it.

• 1.4Stair, Vol. 24, para. 302 — document

  Authority: “These two documents [the 1468 and 1469 pawning documents] form the basis of the Scottish Crown's right to Orkney and Shetland”.

  Significance: This identifies the pawning instruments themselves as the basis of the Scottish Crown's right. The nature and extent of the right created by those instruments are therefore fundamental.

• 1.5Green's, Vol. XV, para. 692 — document

  Authority: Speaking of the pawning documents: “This is the title by which the sovereignty stands in Great Britain”.

  Significance: Green's expressly connects the Crown's sovereignty with the title arising from the pawning transaction.

• 1.6Green's, Vol. XV, para. 702 — document

  Authority: “All lands in Orkney and Shetland remain udal, excepting such as have been feudalised by charter emanating directly from the Crown, or indirectly through earldom or bishopric title”.

  Significance: The starting position identified by Green's is therefore udal tenure, subject to demonstrated feudalisation. TSNS has not identified evidence establishing a general feudalisation of Shetland. Where feudalisation is asserted, the evidential question is what charter or title effected it.

Supporting legal and historical material

• 1.7The missing instrument of territorial transfer

  TSNS proposition: TSNS has found no treaty by which Norway or Denmark ceded Shetland to Scotland. This absence should be considered alongside the Treaty of Perth.

• 1.8Treaty of Perth, 1266 — document

  Instrument: The Treaty of Perth provides a comparison. The Hebrides had formed part of the Norwegian realm and were expressly ceded to Scotland by treaty. Orkney and Shetland were not.

  Significance: The Treaty demonstrates a recognised means by which territory could be transferred between the Norwegian and Scottish Crowns. One day the Hebrides were part of Norway, the next they were part of Scotland. No equivalent treaty transferring Shetland has been identified. The legal effect of the later pawning arrangements must therefore be determined from those arrangements themselves and any subsequent lawful transaction affecting the title.

• 1.9The Crown's position before Lerwick Sheriff Court, 2011 — document

  Evidence: In 2011 the jurisdiction of Lerwick Sheriff Court was challenged. Sheriff Graeme Napier's decision records the Crown's response. On the historical question of when Shetland became part of Scotland, the Crown submitted that the answer was the Act of the Scots Parliament of 20 February 1472 and referred the Sheriff to Brian Smith's article, “When did Orkney and Shetland become part of Scotland?” The Crown also relied upon custom, statutory provisions establishing Sheriff Court jurisdiction, longstanding exercise of Scottish jurisdiction, and international/state practice. Sheriff Napier rejected the jurisdictional challenge.

  Significance: The decision records the Crown's answer when its jurisdiction in Shetland was directly challenged. It does not, however, identify an instrument conveying the allodial title or dominium eminens described in 1.1 and 1.2. Evidence that jurisdiction has long been exercised is not, without more, identification of the title by which that jurisdiction was originally acquired.

• 1.10The 1469 Letter — document

  Instrument: A separate letter issued on the same date as the Shetland pawning instrument instructed the relevant lords in Orkney and Shetland concerning payment of skat to James III pending redemption.

  Significance: The letter should be read alongside, but not as part of, the pawning contract. TSNS considers the separate treatment relevant to determining the extent of the interest actually conveyed by the pawn. The letter was necessary because the pawning document itself did not concern the payment of skat by the other lords, apart from the king.

• 1.11The 1486 Letter — document

  Evidence: Correspondence fourteen years after the 1472 Act records James III responding to concerns from King Hans regarding the inhabitants, laws and language of the islands.

  Significance: TSNS considers this material relevant to determining how the parties themselves understood the Scottish Crown's position after the alleged annexation.

• 1.12Stair, Vol. 18, para. 47 — document

  Authority: “Ownership of land must be either allodial or feudal”.

  Significance: This provides the classification against which the character of Shetland landholding must be examined.

• 1.13Stair, Vol. 4, para. 1 — document

  Authority: “The authority of the court derives from the sovereign power”.

  Significance: This connects court jurisdiction to the anterior question of sovereign authority.

• 1.14Udal Law and the Land Register — document

  Authority: “The Crown has no assumed prior right to the foreshore under udal law.”

  Significance: This is a practical example of the consequences of udal tenure: Crown rights which may be presumed elsewhere cannot necessarily be presumed in Shetland.

• 1.15Stair, Vol. 24, para. 307 — document

  Authority: “No length of time can by itself convert tenure from udal to feudal”. “The mere fact that land has been transferred by written deeds and that sasine has been passed on it does not in itself suffice to change the tenure of the land and convert it from udal to feudal”. “There can be no proper feudal holding which does not flow from the Crown”.

  Significance: Passage of time and ordinary conveyancing practice do not themselves answer the question of conversion from udal to feudal tenure.

• 1.16The Crown Lands Act 1866 — document

  Authority: Section 7 applies to rights and interests “as then belonged to Her Majesty in right of the Crown”. Section 25 provides that the Act does not extend or increase the Crown's existing powers, authorities, rights or privileges over the foreshore.

  Significance: The Act therefore raises rather than answers the antecedent question in Shetland: what rights already belonged to the Crown?

• 1.17Additional authority on udal tenure — Sasines Manual §17.17

  Authority: “The nature of udal tenure is that it is allodial. A udal landowner holds an absolute title, free of any interest of the Crown or any intervening superior.”

  Significance: This is a concise institutional statement of the allodial character of udal tenure. It strengthens the Corpus distinction between an individual udal proprietor’s absolute title and Crown or superior interests. It does not, by itself, determine the separate constitutional question of territorial sovereignty or establish who holds any unresolved allodial interest in land not shown to be privately owned.

Other institutional material

• 1.18The Shetland Report (1978) — document

  A constitutional study prepared for Shetland Islands Council by the Nevis Institute under Lord Kilbrandon. From the Chairman's preface: “Above all, the Report is not intended to, and does not, give advice or opinions on the desirability of any of the Models set up. That would be to usurp the responsibilities of the people of Shetland”.

• 1.19McNeil, p. 85 — document

  “The Crown must prove its present title just like anyone else.”

• 1.20McNeil, p. 139 — document

  “If the Crown grants land where it has neither title nor possession, the grant is simply void.”

• 1.21McNeil, p. 82, footnote 17 — document

  “At common law, if the king was not in possession, he could not grant land, but at best a right to acquire possession of it, assuming he had such a right, and then only expressly.” — Winchester's Case (1583).

• 1.22McNeil, p. 150, note 86 — document

  “Unless under another sovereign, a subject of the English Crown could not own land except of that Crown because, if he could, he would be sovereign of that land.”

2. Authorities Asked to Identify the Basis of Their Authority

This section records what happened when contemporary institutions exercising authority in Shetland were asked to identify the basis upon which they do so. An FOI response stating that information is “not held” does not, by itself, prove that the underlying authority does not exist. Nor does a refusal to answer establish absence of title. These responses are included for the narrower evidential purpose of recording whether the institutions approached were able or willing to identify the requested information.

2A. FOI / EIR requests

• 2.1UK Government Legal Department — document — Information not held.
• 2.2Scottish Government — document — Information not held.
• 2.3COPFS — response — Request refused.
• 2.4Crown Estate Scotland — original response — Information not held.
• 2.5DVLA — document — Information not held.
• 2.6Electoral Commission — response — Information not held.
• 2.7HMRC — response — Information not held.
• 2.8Lands Tribunal for Scotland — document — Information not held.
• 2.9OFGEM — document — Information not held.
• 2.10Registers of Scotland — document — Response did not identify the requested information.
• 2.11Scottish Courts and Tribunals Service — document — Information not held.
• 2.12Police Scotland — document — Declined/refused to provide the requested information.
• 2.13Scottish Police Authority — document — Information not held.
• 2.14Shetland Islands Council — document — Information not held.
• 2.15SSE — document — No response recorded.

  Significance: These responses are not presented as proof of the constitutional proposition advanced by TSNS. Their significance is cumulative and evidential: despite enquiries to numerous institutions which exercise, administer or depend upon governmental authority in Shetland, TSNS has not obtained from them documentary evidence identifying the acquisition of the Crown title described in Section 1.

2B. Formal claims and correspondence

• 2.16Scottish Government — TSNS allodial claim to Shetland — document
• 2.17Scottish Office — TSNS allodial claim to Shetland — document
• 2.18UK Government — TSNS allodial claim to Shetland — document

  Significance: In 2013 TSNS formally asserted an allodial claim to Shetland and the surrounding seabed in correspondence with UK and Scottish governmental authorities. These documents should be read for the claims actually made and the responses actually received. TSNS records that it has received no substantive documentary rebuttal identifying the Crown's allegedly superior title.

2C. Jurisdiction and enforcement in practice

This subsection records instances in which governmental authority has been expressly questioned in the course of actual or threatened enforcement. A decision not to prosecute, the desertion of proceedings, administrative closure of a case or cessation of enforcement does not by itself establish why that decision was made. The documents are included because they record what occurred after authority was challenged.

• 2.19Scottish Courts — Napier decision

  TSNS records its challenges to Scottish court jurisdiction in Shetland. The 2011 Napier decision should be read alongside this entry because it contains the fullest recorded judicial consideration presently within the Corpus.

• 2.20COPFS (Crown Office and Procurator Fiscal Service) — September 2024 — document

  COPFS decided to take no action in relation to reported traffic offences. The Procurator Fiscal stated: “I have considered the report and have decided to take no action in this case against you at this time.” No reason for that decision was given in the correspondence reproduced here.

• 2.21COPFS — June 2026

  A complaint before Lerwick Sheriff Court was deserted pro loco et tempore. COPFS subsequently confirmed: “I have decided to take no further action in this case.” The documentary chronology should be read as recording the jurisdiction/title issue raised by the defence, the motion made when the case called, the desertion of the complaint, and the subsequent decision to take no further action. No inference as to COPFS's reason for deserting the prosecution is necessary to the Corpus.

• 2.22HMRC — document

  Correspondence concerning demands for VAT and income tax in which HMRC's authority in Shetland has been expressly challenged. HMRC stated that UK legislation applies because: “The UK consists of Great Britain, Northern Ireland and the waters within 12 miles of their coastlines. This includes the Shetlands”. The correspondence should be examined to determine whether HMRC separately identified the legal title or constitutional mechanism by which Shetland became part of the territory to which the legislation applies.

• 2.23Pensions Regulator — document

  Authority and statutory basis were challenged. No substantive answer to that question was provided in the correspondence reproduced here and the case was subsequently closed administratively. No inference is made here concerning the regulator's reason for closure.

• 2.24DVLA — document

  Correspondence records threatened enforcement following notification of an alleged breach. TSNS records that no subsequent enforcement action was received. The Corpus records the documentary sequence without attributing an unproved reason for the absence of further action.

3. Other Documentary Material

The following documents form part of the wider TSNS evidence library but are not part of the core title argument in Sections 1 and 2.

• 3.1Shetland Input/Output 2003 — document — Showing Shetland's net contribution to the UK Exchequer of £64 million in that year (page 37) and £10 million in 1996.
• 3.2Shetland Input/Output 2010 — document — Showing Shetland's net contribution to the UK Exchequer of £76.1 million (page 43).
• 3.3Shetland Input/Output 2017 — document — Figures calculated on a different basis; the existing TSNS analysis compares them with the 2010 methodology.
• 3.4Leading Edge — document
• 3.5The Green Warriors of Norway — document
• 3.6European Food Safety Authority — document
• 3.7EU consultation (BPA) — document

4. Competing Interpretations

A Foundation Corpus should expose its proposition to the strongest arguments against it. The following pages therefore examine competing interpretations rather than treating disagreement as something external to the Corpus.

• 4.1RBS v. Stuart Hill — RBS v. Stuart Hill
• 4.2The proposition that the 1469 pawning instrument concerned the whole of Shetland — The proposition that the 1469 pawning instrument concerned the whole of Shetland
• 4.3The proposition that the passage of time has settled the constitutional position — The proposition that the passage of time has settled the constitutional position
• 4.4Gordon Donaldson — Problems of Sovereignty and Law in Orkney and Shetland — Problems of Sovereignty and Law in Orkney and Shetland

5. Status of the Corpus

• 5.1Evidential: primary documents and quoted authorities should wherever possible be allowed to speak for themselves.
• 5.2Transparent: statements made by a source should be distinguished from conclusions drawn by TSNS.
• 5.3Testable: the central proposition is capable of being challenged by evidence. In particular, the apparent absence of a Crown allodial title would be answered by production of a legally effective instrument or rule of law demonstrating how that title was acquired.
• 5.4Correctable: if a quotation, transcription, attribution or description of a document is shown to be inaccurate, it should be corrected.
• 5.5Stable: the foundational documents themselves do not change merely because interpretations of them differ.
• 5.6Authoritative version: the website version of the Foundation Corpus is the authoritative and current version. This paper/Word edition is provided for convenience and should be checked against the website for subsequent additions or corrections.

6. The Question Arising from the Corpus

The Foundation Corpus does not require the reader to begin by accepting a political or constitutional conclusion. It asks the reader to follow the documentary sequence:

Stair identifies Crown sovereignty with its dominium eminens.

Stair describes that dominium eminens as allodial.

Stair identifies the pawning instruments as the basis of the Scottish Crown's right to Orkney and Shetland.

Green's describes that title as the title upon which sovereignty stands.

The 1469 instrument was a redeemable pledge.

If such an instrument or rule exists, it should be capable of identification and examination. If it cannot be identified, the consequences of that absence require legal examination.

That is the question to which the Foundation Corpus is directed.

E. & O. E.