Letters / Innate sovereignty
Brian makes a point that proves my argument and I thank him for pointing it out. My senile brain works rather slowly these days. The very fact that James VI could identify the parts of Shetland he claimed to own makes it clear that he didn’t own the whole of Shetland. If Brian thinks that, by making a claim, James VI had any legitimate right, maybe he should tell the Crown, because they don’t know.
I have long since found it useless to argue history in a court of law. Since the courts are where the State exercises its power, it is there that the arguments have to be made. History changes all the time, but lawyers always have to look for a solid foundation. We need to look at the Scottish law that lies like an ill-fitting garment over Shetland and actually proves that Shetland is not part of Scotland.
Respected authorities on Scots law tell us some interesting facts that apply today:
- the Crown’s sovereignty over Scotland and its allodial ownership of the land are the same thing, identical concepts.
- The pawning document is the basis for the relationship between the UK and Shetland.
- Land ownership can only be either feudal (owned under the Crown) or allodial (owned outright under God), the same as udal.
- No length of time by itself can convert allodial land to feudal.
At the time of the pawning, Shetland was owned by The Lords of Norway, of which the king was one. The pawning document refers to ‘the king’s lands’ for the very good reason that the king could only pawn his personal property. He could not pawn something owned by somebody else. Subsequent historical documents refer to ‘the Lordship of Shetland’, which, by implication can only mean the king’s lordship, not the whole of Shetland. This was apparently well understood by James VI as Brian points out. As far as I am aware (but I could be wrong), the pawning was not recorded in either the Norwegian or the Scottish parliament. As a private contract between the two men, there would be no need.
At the pawning, all James III got was ‘the king’s lands’ (about 10 per cent of Shetland according to Brian) held in trust until the Danes came up with the money to redeem them.
However, he and his successors embarked on a series of transactions, farming out and taking back Shetland as if they owned it and using acts of parliament to justify their actions. I can find not means by which Shetland could come under any act of parliament, but those actions, if continued, would be regarded as ‘acts of sovereignty’ and would have resulted in Shetland becoming part of Scotland by default in international law. Enough years of patient deception would have won the day.
James VI reigned between 1603 and 1625 and was untroubled by the 1669 Treaty of Breda, which re-established the pawning document in its full force, as is recognised by today’s Scots law books. It broke the presumption of ownership by the Crown and nothing has restored it since.
The Lords of Norway were sovereign in the most complete sense. They owned their land outright, they elected their king from among their number, they had their own parliament (the Ting) and they made their own laws. Those are the rights that have been passed down to the present day legitimate owners of land in Shetland.
However, it seems there are two kinds of owner in Shetland; those that got it from a monarch who did not have it to give – the king’s lands; and those who inherited from the other Lords of Norway. It seems that the ‘lairds’ are all sitting on dodgy titles. No monarch has ever had the ownership necessary to grant feudal titles. No organisation, from the UK and Scottish governments downwards can show proof that the Crown owns Shetland, or that Shetland is part of Scotland.
As the current Scottish law books state, sovereignty in Scotland is the same as ownership of the land. For Shetland to be part of the UK realm, it would be necessary for the Crown to own it. As in the case of the Hebrides and the Isle of Man, a treaty would be required, transferring ownership from Denmark (or Norway). I’m not aware of one, but maybe Brian has one tucked away in the archives?
The current Scottish law books say that the pawning document is the basis of the relationship between the UK and Shetland. Current law, not history or wishful thinking must be the foundation for any argument on autonomy, but don’t expect the UK or Scotland to roll over and relinquish their ill gotten power.
By the Scottish definition, Shetland’s existing legitimate owners have innate sovereignty. That is the legal reality. Anyone asking the UK or Scotland for ‘more autonomy’ betrays the people of Shetland.
Back to the archive young bean.
Stuart Hill
Ocraquoy
