TSNS Evidence Library

"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".Simply put, sovereignty and landownership are the same thing.
Note 4 on the same page: "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".

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

This is the document upon which Shetland is founded according to the Laws of Scotland. By its nature it does not give allodial ownership to the Scottish Crown. It is an impignoration, a pledge. All James III got, and all the Crown has ever had, was 'the king's lands' of Shetland (about 10% of the whole) held in trust until the Danes came up with the money to redeem them. 14 attempts at redemption were made, each one brushed off by the Scots for various reasons.

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

"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". We can find no evidence of feudalisation in Shetland, in which case all lands would remain udal.

Section 7: "From and immediately after the Thirty-first Day of December One thousand eight hundred and sixty-six all such Parts and Rights and Interests as then belong to Her Majesty in right of the Crown"
Section 25: "Nothing in this Act contained shall extend or increase or be construed to extend or increase the Powers or Authorities, Rights or Privileges, of the Crown over the Foreshore, or any Part thereof, but as between the Crown and all other Persons such Powers and Rights shall continue as the same existed before the passing of this Act".
We have to ask what the "Powers or Authorities, Rights or Privileges, of the Crown over the Foreshore, or any Part thereof" in Shetland before 1866?.

THIS DOCUMENT AND THE FIVE ABOVE IT DEFINE THE CROWN'S RIGHT IN SHETLAND. THEY DESERVE CAREFUL SCRUTINY.

BELOW IS SUPPORTING DOCUMENTATION:

In 2011, the Crown, for the first and only time, set out its position regarding Shetland. Its submission to the Sheriff Court in Lerwick relied on a magazine article by Shetland archivist Brian Smith as the foundation for asserting Scottish jurisdiction, with all its subsequent arguments presupposing that conclusion rather than evidencing lawful title:
1) Jurisdiction challenge stated:
“he [the accused] argued that the Sheriff Court at Lerwick had no competence or jurisdiction to deal with
the matter as the offences were alleged to have occurred in Shetland which is not subject to the jurisdiction
of the Scottish courts (including the Sheriff Court) not being and never having been incorporated into
Shetland.”
2) Sheriff frames status as a historical question and fixes a date:
“if the question of when did Shetland become part of Scotland? is one to be determined from a historical
perspective then the answer to the question when did Shetland become part of Scotland? is on 20 February
1472”
3) Crown’s support explicitly tied to Brian Smith article:
“In support he [Procurator Fiscal Duncan Mackenzie] referred me to the article entitled “When did Orkney
and Shetland Become part of Scotland?” by Brian Smith in New Orkney Antiquarian Journal Vol. 5”
4) Sheriff declines detailed historical examination:
“I do not propose to discuss these in detail. Such detail is of more interest to historians than to a 21st
century jurist.”
5) The Shetland Report quoted, but key preface point omitted:
Observation: the decision quotes heavily from The Shetland Report but does not mention 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”.
6) Burden of proof question sidestepped:
Observation: the Sheriff records the contention that, once jurisdiction was challenged, it was for the Crown
(or the Court) to ‘prove’ jurisdiction, criticising reliance on American sources but not refuting the principle
on Scots-law authority; the issue is treated as unresolved and bypassed through institutional/pragmatic
reasoning.
7) Treaty of Breda referenced, but significance understated:
Observation: while noting the clause “leaving open in all time a Danish claim to the Northern Isles”, the
decision does not engage with the treaty’s significance in ending Scottish monarchic attempts to assert right
to Shetland and in confirming the continuing force of the pawning arrangements.
8) ‘500 years ago’ dismissal, without engaging Stair/Green position on pawning document:
Observation: the concluding reasoning dismisses “the actions of kings and queens 500 years ago” while not
engaging with the proposition in The Laws of Scotland (Stair) that the 1468–69 pawning/impignoration
document is the founding title by which sovereignty in Shetland is said to stand.

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

"The authority of the court derives from the sovereign power".

"The Crown has no assumed prior right to the foreshore under udal law".

From 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".

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

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

“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.”

“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.”

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Refused to answer

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Insubstantial reply relying on Scottish legislation.

Refused to reply.

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TSNS claim to the whole of Shetland and surrounding seabed addressed to the Scottish government.

TSNS claim to the whole of Shetland and surrounding seabed addressed to the UK Scottish Office.

TSNS claim to the whole of Shetland and surrounding seabed addressed to the UK government.

"I have considered the report and have decided to take no action in this case against you at this time".

"In the event that you are unable to show proof of authority in Shetland, our members will reasonably expect full recompense for the VAT and other taxes they have paid in the past". We have seen no proof.

"... if the DVLA receive any notification of such a breach then we will have no option but to take the necessary actions to enforce the law". When they were notified, nothing more was heard. It seems there was another option.