What an early Scots document from Orkney can tell us about society in the earldom just before the pledging of the islands to Scotland.

By Prof Barbara Crawford, Honorary Professor, Institute for Northern Studies; Member of the Norwegian Academy; Honorary Reader in History at the University of St Andrews


On 20th January 1438 (or 1439 according to our computation of the year starting on 1st January) the lawman of Orkney called Henry Randall, along with two baillies, issued an ‘attestation’ regarding 12 pennylands in Tollop (Toab), East Mainland of Orkney.This attestation records that the three of them were witnesses to a previous occasion when two men, John of Irvine and Will Bernardson, swore ‘on the hirdman stein’ before the earl of Orkney that they had witnessed a meeting in the vestry of St.Magnus kirk (i.e. the cathedral)called by Thomas Sinclair before John of Kirkness, then the lawman of Orkney, when the foresaid John was reported to have said that he had been forced against his will to sell the charters of the said land of Tollop to Thomas (i.e. that he had been pressured to sell the land).

This was apparently a false report of the situation and the rest of the charter is concerned with proving that John of Kirkness had not been under pressure to sell, and all the parties concerned then underwent the ceremony of ‘handselling’ the land so as to prove publicly that there had been no undue pressure exerted over the sale of the land to Thomas, and that John of his own free will had sold the land.

This is the record of a complicated legal process which is not straightforward or easy for us to understand nearly 600 years down the line. But there are some interesting features to emerge from it telling us about the nature of Orcadian society and elements of the legal situation in the islands in the final  decades of Norwegian rule, and during the time of the last Sinclair earl. It is therefore a precious remnant of the pre-Scottish age of which very few documents have survived.

Prime among its significance is the fact that it is written entirely in Scots, without any evidence in the language used that this was a new situation or that the Scots language was unfamiliar and not fully understood.

Secondly there is a reference to a meeting held before the earl of Orkney (it is not said when that meeting had taken place) of a court called HIRDMANSTEIN (the court of the hirdmen). This is the equivalent of a Norwegian court known as hirdstefna, the ‘hird’s court’, and this is the ONLY reference to such a court in Orkney in the Norse period, which itself is of some significance (for historians anyway!).

Finally there is the very interesting linguistic evidence of the multiple use of the term ‘handsel’ for the ceremony of agreeing to the sale of a piece of land.

I will now look at these three elements to try and show how we interpret the information included in this remarkable document.

Regarding the use of the Scots language in an Orkney document, the 1438 attestation is not the first to survive: that dates from a few years earlier, and is the gift of part of a tenement in the Burgh of Kirkwall (June 6 1433) by Duncan of Law to Donald Clerk. But the 1438 document is an official Court Attestation issued by the native Lawman of Orkney and two baillies ‘couched in the now triumphant language of Scotland’ and (as Hugh Marwick says in his study of Orkney ‘Norn’) the pledging of the islands to Scotland in 1468 ‘merely accelerated a process that had been going on for almost a century previously’.[1]  He pinpoints the change in language used as coinciding particularly with the appointment of Bishop Thomas Tulloch in 1420, who, as a Scottish bishop, would employ notaries who used his own language.[2] The rule of the Sinclair earls (1379-1470) must also have significantly contributed to the scotticisation of the islands’ culture.[3] The position of Thomas Sinclair, a member of the earldom family, was central to the events recorded in the 1438 attestation, he having called John of Kirkness to the meeting at which he offered to return the land of Tollop/Toab to John if he would repay Thomas the gold which had been paid for the land. Thomas is said there to be the son of former Davy Sinclair and he can be identified with the Thomas Sinclair who is recorded as being ‘Warden’ of Orkney in 1435,[4] a hirdman ‘of high position’.[5] This title of ‘Warden’ suggests that he was a royal hirdman, although he was also close to the young heir to the earldom, William Sinclair, as he is named first in the list of ‘friends and kinsmen’ who were included as sureties in William’s 1434 earldom grant.[6]

Reading the 1438 attestation one is struck by how ‘pure’ the Scots language is; there is no indication of a local Orcadian dialect or of any Norse customary language, except for the name of the court and one legal term. The name of the court is ‘Hirdmanstein’, that is the court of the ‘hirdmen’ who were the retinue of warriors accompanying kings or earls in the Nordic countries. The second element is derived from the ON word stefna/stemna meaning ‘a court meeting’ and the Norwegian term is usually ‘hirdstevne’, the ‘hird’s court’ but in this Orkney document it is called the ‘the hirdman’s court’ (‘hirdmanstevne’, hirdmanstein). This court must have been in existence for as long as the earls had their military following (‘hird’), which according to Norwegian evidence would have been from the early 11th century. It is certain that great earls like Thorfinn the Mighty, who ruled the islands in the first half of the 11th century, would have had their own following, but there is no reference to any court of the hirdmen  in the Orkney saga. This 1438 reference is the first documentary evidence that we have of such a court. And we have to note that the document itself is not recording the events at such a court, but is referring to a previous occasion when John of Irvine and Will Bernardson ‘swore on the hirdmanstein’ before the earl of Orkney that they had witnessed Thomas Sinclair accusing John of Kirkness of having spread abroad a false rumour that he had been forced to sell the land of Tollope/Toab.

This phrase brings up a problem of interpretation: it sounds as if John and Will had sworn an oath on a stone, called the ‘hirdman stone’(hirdmanstein) which might indeed have been the case, as such stones could be referred to in legal documents regarding the swearing of oaths.[7] But it seems certain that in fact the word is referring to the name of the court, as this is the name of such a court in use later on. But exactly which hirdman court is being referred to? This was an issue which exercised some of Orkney’s older historians, as to whether it was a court of the earl’s hirdmen or of the royal hirdmen, but it is an issue which I will not go into any detail about here.[8] It is not impossible that the Scots scribe who was writing the document was confused as to whether the word is referring to a stone, if he was not familiar with the institution of hirdmen’s courts.

We know a great deal about the royal hird (ON hirð) from the 13th century regulations for the organization of the royal hird in a document called Hirðskraa and it is very likely that this organization was replicated in Orkney for the military retinue (hirð) of the earls. The earls themselves were important members of the royal hird and would follow the arrangements for the role of the members of the royal hird in their own earldom with their own military following.  However it seems doubtful whether the earls’ hird would have continued to be such an important element in the earldom after the murder of the last Norse earl in 1230 when Scots families inherited the earldom. For lack of evidence (this is after the Orkney saga has come to an end) we just do not know to what extent the Angus and Sinclair earls continued the Old Norse custom of having military retinues. It is certainly doubtful that they resided permanently in the islands. It seems likely that the earl’s network of followers may have been overtaken by royal hirdmen who owed their loyalty to the king of Norway, and whose role as administrators was enhanced in the vacuum caused by the demise of the Old Norse earldom. There is some good historical evidence for individuals of Scots origin being royal hirdmen in Orkney in the 15th century.

So is the ‘hirdmanstein’ referred to in a Scots document of 1438-9 a court for the royal hirdmen, or for the earl’s hirdmen? On the face of it it would appear to have been an earldom court, because it is said specifically that the oaths were sworn ‘before our lord the earl of Orkney’ which rather suggests that it was a court of the earl’s hirdmen. But that conclusion is not clear-cut and it is quite possible that it was in fact, or in theory, a court of the royal hirdmen. The distinction between royal and earldom hirdmen may not have been quite so certain as we think. Confusion, or indeed blending, of Norse and Scots custom and practice was undoubtedly happening in the early 15th century, as it had for some time previously (see Hugh Marwick’s comment quoted above). The islands were still part of the Norwegian kingdom in 1438-9 so that Norse law and custom prevailed in theory, but Scottish influence was definitely on the increase in practice.

This dichotomy is very apparent when we look at the frequent use of the term ‘Handsel’ in the document, which according to DOST (Dictionary of the Older Scottish Tongue) is the earliest recorded example of its use in Scotland. It is used in the 1438 document several times with reference to the sale of the land of Toab in St. Andrews parish (see Appendix). It is agreed that it derives from two Norse words hand-selja (to transfer any right by shaking hands, or to make a bargain). It has come directly from Norwegian legal terminology and is transferred into Scots customary usage in Orkney at this time in the mid-15th century when the islands were still part of the Norwegian kingdom. We assume that it was in use in Orkney because of the dominance of Norwegian legal structures, and must then have passed into general Scots usage as ‘handsel’, which came to have a wider sense of giving a gift at an inauguration or special event, like New Year, and particularly on an occasion like moving house. It may be that the transmission is not so simple as this suggests, and the circumstances of this word coming into Scots usage, and its particular meaning needs further investigation.


1438-9 Attestation by Henry Randall, Lawman of Orkney and others regarding the sale of the 12 pennyland of Tollop (Toab)( NRS, RH6/301, RH4/35/388/34). Printed in OSR.No.27

Til al and syndri lele folk in Cryste to quhais knawlagis thir present letteris sal to cum, Henry Randell, lawman of Orkney, Johne Haraldson, balye off Kirkwaw, and Jamis off Lask, greting in God ay lestand. Sen medefull and meritabill thing is to bere witnesse to the suthfastnes, and namly in the cassis quahar the hyding off suthfastness ma genner scathe, schame or prejudice till an innocent man, fra theyne it is that we, the forsaid, testifeis sekyir witnesses and for the schawing of suthfastnes til yowr universite makes kende that we the forsaide, bystude, saw and onherde[9] and for witnessis wes tane quhen that John off Erwyne and Will Bernardson swore on the hirdman stein[10] before owr lorde, the erle of Orknay, and the gentiless off the cuntre, that thai bystude, saw and onherde and for witnesses wes tane, quhen that Thomas Sinclere, the soun of quhilum Dauy Syncler, callit in the vestre in Sant Mawnus kirk, Johne of Kirknes, than lawman off Orkney, befor syndre gude men off the cuntre, and saide to the forsaide Johne of Kirknes, that it wes demit in the cuntre that he, the fornemmit Johne,saide that agayne his will he had selit the charteris off the xii penny-lande of Tollop to the forsaide Thomas; quharfor the forsaide Thomas peroffrit to the said Johne his charter and the saide lande agayne, giff he the saide Johne walde giff to hyme, the forsaide Thomas, the golde that he the saide Thomas giff for the charteris of hyme the said Johne. And than the fornemmit Johne answerd and said playnly that it wes nocht agayne his will, and to the mare sikkernesse of the saide lande to the saide Thomas, the saide Johne hanselde the saide Thomas off the fornemmit land for the forsaide golde that the fornemmyt Thomas craff, ande syne the saide Thomas hanselde Wat Fresell off the saide lande and the saide Johne confermit it thare and hanselde the saide Wat of the fornemmit land fra hyme the saide [Johne and his] ayris to the forsaide Thomas and Wat, bath as ane and ane as bath, and al thare ayris foreuer mare, with al fredomis and profytis, as the saide charter of [the saide land beris]. And thar atowre[11] the saide Johne grantit hym fullely payt and content for the forsaide lande be the fornemmit Thomas, the first and the last and al that betweyne. In witnesse of the quhilk thing, we the forsaide has set owre sele to thir present letteris at Kirkwaw the xx day of the moneth of Januar, the yere of owre Lorde, mcccc xxxviii yere.[12]


OSR = Orkney and Shetland Records, vol.1, eds. A.W. and A. Johnston (Viking Society for Northern Research) (London, 1907-13)

REO = Records of the Earldom of Orkney 1299-1614, ed. J.Storer Clouston, SHS, second series vol. 7 (Edinburgh, 1914)

An Icelandic-English Dictionary. 2nd edition compiled by R. Cleasby, G. Vigfusson and Sir W.A. Craigie, Oxford at the Clarendon Press, 1957

Barbara E. Crawford, The Northern Earldoms Orkney and Shetland from AD 870-1470 (Edinburgh, John Donald, an imprint of Birlinn, 2013)


[1] Hugh Marwick, The Orkney Norn (Oxford, 1929), p.xxii

[2] Crawford, Northern Earldoms, pp. 63, 350; Barbara E. Crawford, ‘The Bishopric of Orkney within the Archdiocese of Trondheim, 1152/3-1472’. NOAJ, 4 (2009), p.61-2

[3] Crawford, Northern Earldoms,chap.8; Crawford, ‘The Northern Half of the Northern Earldoms’ Lordship: A Comparison of Orkney and Shetland’ in Steinar Imsen, ed. REX INSULARUM. The King of Norway and His Skattlands as a Political System c.1360-c.1450. (Bergen, Fagbokforlaget, 2014,143-57), pp.155-9

[4] REO, no. CCIX, p.330. ‘Warden’ is an apparent translation of  latin custos  according to Clouston, ‘Goodmen and Hirdmen’, iii, p.14

[5] Ibid: and Clouston, History of Orkney, p. 242. See above on Thomas Sinclair

[6] REO, no. XX, p.49: Crawford, Northern Earldoms, pp.351, 354

[7] This is indeed how the word was understood by Sir David Wilson in 1851 in The Archaeology and Prehistoric Annals of Scotland, p.95. But the use of Norse legal terms was not known to him

[8] I discuss this problem in a contribution written for a festschrift for Doreen Waugh which is not yet published

[9] Anherd= consented or adhered to (Concise Scots Dictionary)

[10]  It is rather odd that the phrase specifically says that the oaths were sworn ‘on the hirdman stein’ (and not ‘at the hirdman stein’) implying that it was thought there was an actual ‘stone’ involved. Was this due to a misunderstanding on the part of the Scottish scribe?

[11] ‘besides, over and above’ sub ‘atour’ (Concise Scots Dictionary)

[12] This is 1438 according to the medieval dating system whereby the new year started on 5th March. According to the revised calendar start of a new year in January it would be 1439