The Poor Had No Lawyers: Who Owns Scotland (and How They Got It)

The Poor Had No Lawyers

Andy Wightman is an independent researcher and writer and one of Scotland’s leading authorities on landownership, land rights and land reform. Born in Dundee, he was educated at the University of Aberdeen and has worked as a stalker’s ghillie, environmental scientist, and an environmental campaigner before becoming self-employed in 1993. He has a particular interest in community land rights and local democracy and runs the www.whoownsscotland.org.uk website. He lives in Edinburgh.

The Poor Had No Lawyers

Who Owns Scotland

(And How They Got It)

Andy Wightman

This edition published in 2011 by

Birlinn Limited

West Newington House

10 Newington Road

Edinburgh

EH9 1QS

www.birlinn.co.uk

Copyright © Andy Wightman 2010

All rights reserved.

No part of this publication may be reproduced,

stored or transmitted in any form without the express

written permission of the publisher.

ISBN: 978 1 84158 960 2

eBook ISBN: 978 0 85790 076 0

The moral right of Andy Wightman to be identified

as the author of this work has been asserted by him in accordance

with the Copyright, Designs and Patents Act 1988

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

Typeset by Iolaire Typesetting, Newtonmore

Printed and bound by CPI, UK

To Isla

Contents

Figures, Tables and Plates

Acknowledgements

Foreword to the 2011 edition

1 Show the People That Our Old Nobility Is Not Noble

Why the land question still matters

2 Superiors and Vassals

A brief discourse on terminology

3 Robert the Bruce – A Murdering Medieval Warlord

The first land grab – feudal colonisation to 1500

4 To Spoil the Kirk of Christ of Her Patrimony

The second land grab – the lands of the Church

5 The Palladium of Our Land Proprietors

The third land grab – involving the lawyers

6 In Edinburgh They Hate Us

A short excursion into the Highlands

7 A State of Possession Already Subsisting Beyond the Memory of Man

The fourth land grab – the commonties

8 Mere Miserable Starved Caricatures of Their Former Greatness

The fifth land grab – the burgh commons

9 I Hereby Take Possession of This Island of Rockall

The sixth land grab – colonial adventures

10 Look Here, Boy, Steady On. Let’s Get This Thing Straight

Politics and the Landed Elite

11 Lord Derby, Lloyd George and John McEwen

A Tory, a Liberal and a Socialist try to find out who owns Scotland

12 Who Owns Scotland?

The facts

13 A Considerable Ridge of Very High and Lofty Hills

The Cuillin, MacLeod and a leaky castle

14 Simple Fraudulent Misrepresentation

Scotland’s Crown lands

15 From Lord Leverhulme to Lord Sewel

Community ownership of land

16 Those Who for Our Sake Went Down to the Dark River

The rise of the heritage landowner

17 Tartanry, Royalty and Balmorality

The rise of the hunting estate

18 I Want the Assurance That I Will Not Be Evicted

Farming and the agricultural tenant

19 A Highly Unsatisfactory Guddle

Crofting and the Scottish Parliament

20 Planting Forests Is a Sure Way to Grow Rich

Trees are political

21 I Will Not Allow House Prices to Get Out of Control

The new property-owning democracy

22 Three Score Men with Clubs and Staves

The struggle to protect common land

23 All Property of a Burgh

Scotland’s common good

24 Let for a Penny a Year

The strange case of the Edinburgh common good

25 Problems Rarely Arise with Land in Private Ownership

Land Reform in the twentieth century

26 Little More Than an Instrument for Extracting Money

Land tenure reform in Scotland

27 Bureaucratic Nit-picking and Fine Legal Arguments

The community right to buy

28 Undermining the Whole Fabric of Scottish Family Life

The law of succession

29 Their Unjust Concealing of Some Private Right

Secrecy in Scottish landownership

30 We Do Not Want to Punish the Landlord

Land values and land value taxation

31 A Public Park and Recreation Ground for the Public Behoof

Finding out more about community land rights

32 The Poor Still Have No Lawyers

The way forward for land reform

Notes

Bibliography and Further Reading

Appendix

Index

Figures, Tables and Plates

Figures

1    Parishes, baronies, earldoms and lordships in early fifteenth-century Scotland

2    Distribution of commonties

3a  Land Register coverage – titles

3b  Land Register coverage – area

4    Areas of land registered on the Land Register

5    Rural land owned by Scottish Ministers and public bodies under their direction, 2009

6    Map of the Cuillin

7    Distribution of sporting estates

8    Diagram showing the difference in price of an identical house across the UK

9    Rynacra Commonty, Perthshire

10    Example of a Search Sheet

Tables

1a  Landownership in Scotland, 2010

1b  Urban/rural landownership in Scotland breakdown, 2010

1c  Four broad categories of rural landownership

2a  Concentration of private rural landownership in Scotland, 1872–2010

2b  Breakdown of private rural landownership in Scotland for 1970, 1995 and 2010

3    Breakdown of private rural landownership in Scotland, 1970–2010

4    Landownership by public bodies, 2010

5    Land owned by Scottish Natural Heritage

6    MoD land owned by the Secretary of State for Defence

7    The 100 largest landholdings in Scotland, 2010

8    The 50 largest offshore landholdings in Scotland, 2010

9    Community landownership in Scotland, 2010

10    Heritage landownership in Scotland, 2010

11    The extent of deer forests and hunting estates, 1883–2002

12    The percentage of farms that are tenanted, 1940–2008

13    The recipients of the 50 largest farming subsidies, 2000–2009

14    Timeline of land reform

15    Foreign and beneficial ownership of privately owned rural land in Scotland, 2010

16    Scottish land values and the Land Value Tax proposal

17    Council Tax v Land Value Tax

Plates

1    Moon deed

2    Common chest of Wittenburg of 1522 in Luther House, Wittenburg

3    Valuation Office (Scotland) map: 1/1250 OS sheet Perthshire LII.15 NE

4    Allan MacRae, Chairman of the Assynt Crofters’ Trust, celebrating the acquisition of the North Lochinver Estate by the Assynt Crofters’ Trust

5    Newspaper advertisement for the Cuillin

6    The First Raid on Alyth Hill

7    The Second Raid on Alyth Hill with Councillor Matt Crighton cutting the fence closely observed by the Alyth Constabulary

8    Rockall as unclaimed territory. Photographed from HMS Vidal, 17 September 1955, the day before its formal annexation

9    Affixing the plaque annexing Rockall to the Crown, on 18 September 1955 – from left to right, Lieutenant Commander Desmond P. D. Scott, Corporal A. A. Fraser and James Fisher

10    The author and Brandy, a Highland garron, in Glen Esk

11    Kinross Town Hall and library in a state of dereliction, 2006

12     Return of Owners of Lands and Heritages, Scotland, 1872–1873

13    Daily Mail front page, 24 January 2003

Acknowledgements

I am indebted to the many people who, over the past thirty years, have nurtured and sustained my interest in matters to do with land and its ownership. Perhaps, perversely, I should start by thanking some of the academic staff at the University of Aberdeen’s Forestry Department who, by denying that such a topic was of any relevance to the study of forestry, first got me curious about it in the early 1980s. At that time, I was fortunate also to meet and get to know some big thinkers whose application to the process of scientific enquiry was inspirational and I include among them Dr Adam Watson, Drennan Watson and the late Professor Sandy Mather, who sadly died in November 2006. Two other people I first met then have remained good friends and critical colleagues along the way, namely Graham Boyd and Robin Callander, and I thank them for their ongoing support and encouragement.

This book draws on the work of many people whom I hope I have acknowledged in the appropriate manner. In particular, I would like to thank Brian Wilson, Alan Blackshaw, Robin Callander, John MacAskill, Alastair McIntosh, Fiona Mackenzie, Allan Wilson and Jim Hunter for their assistance at various stages.

I am grateful to the staff of the Registers of Scotland and the National Archives of Scotland who have provided a wonderful service over the years. Chris Fleet, map curator at the National Library of Scotland, has also been most helpful. Anne Laird at the Registers of Scotland kindly provided the map in Figure 4. Many academics helped me by providing copies of papers I would otherwise have had to pay substantial amounts of money for (see below). Particular thanks to Anne Bivert at the Revue de l’Institut de Sociologie in Bruxelles who kindly sent me a copy of Ian Adams’ paper of 1973 – a hidden gem which I had been looking for for many years.

I am indebted to Fraser MacDonald, Walla Mollison, Dr Alexander Grant, Sheila Leckie, Shona Harper and John Paul Photography for their help in providing illustrations.

The ongoing project to document landownership in Scotland (www.whoownsscotland.org.uk) has been made possible by the generous donations of many people since 2003 and by the subscribers since October 2009. I thank all of them. Noel Darlow has done a magnificent job at looking after the technical side of the website and has worked tirelessly to make the whole project feasible. Many thanks, Noel.

Thank you, Jean Urquhart and Gerry Hassan, for inviting me to Changin Scotland in Ullapool in November 2009 to give a talk on the land question which was the inspiration for setting all these thoughts down on paper. I am indebted to Hugh Andrew from Birlinn who was at the same event and who agreed to publish this book. All the staff were unfailingly helpful for which I’m most grateful. I am particularly grateful to my editor, Patricia Marshall, and to Andrew Simmons who both worked tirelessly during the production process. A special mention should be made of James Hutcheson who not only designed this book but designed my 1996 edition of Who Owns Scotland and John McEwen’s original Who Owns Scotland way back in 1977!

Uncharacteristically, perhaps, I would like to put on record one source of information that has been singularly unhelpful to me and that is the academic community. I don’t mean individuals, many of whom have been most supportive and have assisted me in subverting some, but not all, of the difficulties I have encountered. I mean the world of academic publishing. Over the course of writing this book, I wanted to get hold of over one hundred academic publications. These are all available on various websites but typically cost £20 each. If, on the other hand, you are employed by an academic institution, they are free. I don’t understand why the fruits of academic research, much of which is paid for by government funds, should not be available for free to the public. Indeed, that is surely the point of academic research. How is the public to understand more about climate change, for example, if they have to pay £20 to read an original academic paper? Of course I could have taken out membership of a university library but I would have had to join about six different universities across Scotland to obtain what I needed.

One particular case stands out and that is the UK Data Archive run by the University of Essex. This is a repository for a wide range of social and economic data. On their website, they urge academics to share their data, explaining that:

Publicly funded research data are produced in the public interest and their value lies in their use and re-use. When data are managed well they can be shared and re-used for scientific and educational purposes. Researchers, funding agencies and the public benefit from data sharing.¹

When I tried to register, however, I was told that since I was not employed by an academic institution, I would have to pay £450 to register and £50 for each data set I required. Not surprisingly, I declined the offer.

This book could have contained a good deal more research if data collected with public funds were made available to the citizens who pay for them with their taxes.

Finally I would like to thank Cathy and Isla who have put up with me over a rather intensive period of writing.

Foreword to the 2011 Edition

On 5 May 2011, the Scottish National Party won an unprecedented victory in the Scottish Parliamentary election. This historic win could lead to a resolution of many of the issues discussed in this book. That remains to be seen. However, with an overall majority in the Parliament, the Scottish Government can now look forward to a five-year term of office with the freedom to undertake quite radical reform of Scotland’s land and property regime if it chooses to do so.

The First Minister, Alex Salmond, has already indicated that he wishes to see the administration of the Crown property rights that comprise the Crown Estate in Scotland brought under the control of the Scottish Parliament. The SNP manifesto also contains commitments to review the Land Reform (Scotland) Act 2003 and to re-establish the Scottish Land Fund. Many of the topics discussed in this book, such as succession law, land registration, common good land and land value taxation could all now be tackled and deliver lasting public and private benefits – if the political will exists.

The issues explored in this book are of long standing and remain to be resolved. Since the book was first published in October 2010, however, some of the detailed discussion surrounding these issues has moved on. To keep up with developments in the various debates, please go to www.andywightman.com/poor, where you will find quarterly updates. Many of the references can also be found there.

It is also worth saying something about the cover photograph, which is an allegory for the argument presented in this book. The image is of Ardoch farmhouse in Glen Gairn, Aberdeenshire.* Ardoch was a clachan of some 14 houses with a shop and a school. It was also the home of my wife’s great-great-great grandfather’s brother, Father Lachlan McIntosh, the parish priest in Glen Gairn for 64 years until his death in 1845, aged 93. The reason that this Highland community was abandoned is directly attributable to the fact that Aberdeenshire was excluded from the provisions of the 1886 Crofting Act and therefore the residents of Ardoch were never more than a year away from eviction. The reason that the last remaining house lies empty today on a large privately owned estate is eloquent testimony to our continuing failure to challenge landed power.

Andy Wightman

Edinburgh

May 2011

* Further images of Ardoch Farmhouse can be seen at:

www.jamesdyasdavidson.com

1

Show the People That Our Old Nobility Is Not Noble

Why the land question still matters

This book is inspired by a talk I gave at the Changin Scotland conference at The Ceilidh Place in Ullapool organised by Gerry Hassan and Jean Urquhart in November 2009. I had last been at this event in 2003 when I organised a ‘walk and talk’ event which took people into the Inverpolly National Nature Reserve where, for several hours in beautiful weather, we discussed everything from deer management, the Moine thrust and carnivorous plants to absentee landlords, capital tax exemptions and land reform.

The talk was called ‘The Poor had no Lawyers’ and was an attempt to synthesise much of the work I have been doing over the past ten years. The title of that talk and this book is taken from an essay by Cosmo Innes (1798–1874), who was Professor of Universal History and Greek and Roman Antiquities (a Chair that was later named Constitutional Law and History) at the University of Edinburgh from 1846 until his death – of which more later. In particular, I wanted to place contemporary concerns about land in their proper historical context since it had been evident to me for some time that, despite a high-profile debate on land issues in Scotland, there remained a dearth of historical perspective, an understandable but distorted focus on the Highlands and Islands and a worrying lack of understanding of how the law operates.

Over the past decade or so, I have met and spoken to many people from all parts of Scotland about issues to do with land. It is clear that land and its ownership in villages, towns and rural areas across Scotland remains a pressing issue of concern. A frequent topic of interest is often a very small piece of land that the community has an interest in and which people assert is common land. The origins of such beliefs are to be found in the history of Scotland’s villages, estates, parishes, burghs and land law and they became the focus for my work on common good and commons in general. Some of the elements of this story deserve to be made better known and this book is a modest attempt at doing so.

The institution of landownership in Scotland evolved gradually and it evolved under the political control of landowners and their agents in the legal establishment. This was the key to its survival and to the development of the current pattern of ownership. The role of the law has historically been to serve the interest of those in power and, in Ullapool and elsewhere, it is evident that there is a hunger for greater understanding and depth to contemporary debates on land in Scotland. It was with this in mind that I felt the time was right to expose some of this to wider public scrutiny.

This book follows a number of previous ones on the topic. Callander’s A Pattern of Landownership in Scotland was (and remains) the most scholarly account of how the pattern of landownership in Scotland emerged. My Who Owns Scotland in 1996 attempted to analyse the current pattern of landownership in Scotland. And Callander’s How Scotland Is Owned was an analysis of the system of land tenure underpinning property rights in Scotland. The Poor Had No Lawyers revisits Callander’s classic from 1986 but goes further in focussing on the legal and political mechanisms that enabled vast areas of Scotland to be appropriated by private interests. This, in turn, leads into an analysis of who owns Scotland today and an exploration of some of the key developments in land policy over the past twenty years. The book finishes with a chapter outlining proposals for reforms to Scottish land law.

My thesis is not entirely new. Much of this story has been told before. But what I want to convey is how the theft of Scotland’s commons has robbed us not only of extensive communal interests in land but of a sense of connection with place which is leading to all sorts of social and economic problems. In recent years, one of my colleagues in these matters, Alastair McIntosh, has been working assiduously on this question to show that soil and soul are vital ingredients in recovering a sense of identity and belonging. Likewise, we will benefit greatly from remembering that the struggle over land is a universal one that knows no geographic boundaries. We are all creatures who require shelter and nourishment and that comes from having a place to call home. Equally, whilst for good historical reasons land issues have become associated with the Highlands and Islands almost to the exclusion of the rest of the country, the historic struggle for land rights took place across the whole country. The womenfolk in Eyemouth defending their ancient rights, the tenant farmers in East Lothian evicted because they voted for the wrong party and the community activist in Easterhouse fighting for better housing are all part of the land reform struggle – a struggle to reform, to change, the legal and economic framework that today still constrains too many people from realising their potential.

I should stress one thing. This book is about how landed power emerged and how the legal establishment connived in this process. Consequently, it says less about how such power was exercised and thus, for example, there is little discussion about the Highland Clearances or other such events where such power was deployed. Devastating though such episodes were, they were merely a reflection of the central question posed here – who owns Scotland and how did they get it? In 1909, Tom Johnston, later to become Secretary of State for Scotland and one of Scotland’s finest historians, wrote:

Show the people that our Old Nobility is not noble, that its lands are stolen lands – stolen either by force or fraud; show people that the title-deeds are rapine, murder, massacre, cheating, or Court harlotry; dissolve the halo of divinity that surrounds the hereditary title; let the people clearly understand that our present House of Lords is composed largely of descendants of successful pirates and rogues; do these things and you shatter the Romance that keeps the nation numb and spellbound while privilege picks its pocket.¹

Johnston’s observation from 1909 got pulses racing at the time and inspired generations of land reformers. Despite this heady rhetoric, however, I was, for some years, sceptical of such claims. In an attempt to avoid being painted as just another populist land reformer, I eschewed such language. Always conscious of its power and authority, however (Johnston remains a distinguished historian), I made efforts to understand the legitimacy of such claims better and the extent to which they were true. My conclusions are that such claims are by and large true. Fraud and murder were widespread. The first Duke of Buccleuch, for example, was the illegitimate offspring of court harlotry and the Cawdor Campbells’ origins are with the kidnap and forced marriage of a twelve-year-old girl. Land indeed was stolen and centuries of legal trickery ensured that it stayed that way.

Why have the implications of this not been more widely understood? It is only on close textual analysis of the best history books that anything of the magnitude of the theft is clear. Mainstream history tends to pay more attention to the narrative of history and the pace and flow of events. In this book, I have tried to show that the power behind this history is what the German writer Marianne Gronemeyer referred to as ‘elegant power’ which is characterised as unrecognizable, concealed and inconspicuous.²

Tom Johnston argued that:

a democracy ignorant of the past is not qualified either to analyse the present or to shape the future; and so, in the interests of the high Priests of Politics and the Lordly Money-Changers of Society, great care has been taken to offer us stories of useless pageantry, chronicles of the birth and death of Kings, annals of Court intrigue and international war, while withheld from us were the real facts and narrative of moment, the loss of our ancient freedom, the rape of our common lands and the shameless and dastardly methods by which a few selected stocks snatched the patrimony of the people.³

In Who Owns Scotland, I told the apocryphal tale of a Scottish miner walking home one evening with a brace of pheasants in his pockets. He unexpectedly meets the landowner who informs him that this is his land and he had better hand over the pheasants.

‘Your land, eh?’ asks the miner.

‘Yes,’ replies the laird, ‘and my pheasants.’

‘And who did you get this land from?’

‘Well, I inherited it from my father.’

‘And who did he get it from?’ the miner insists.

‘His father of course. The land has been in my family for over 400 years,’ the laird splutters.

‘OK, so how did your family come to own this land 400 years ago?’ the miner asks.

‘Well . . . well . . . they fought for it!’

‘Fine,’ replies the miner. ‘Take your jacket off and I’ll fight you for it now.’⁴

What this neatly illustrates is the extent to which land rights which appear legitimate and almost sacred today are, in fact, the product of a long and none-too-wholesome history. Whilst we’ve moved on a bit since then, the fact is that landowners today are the beneficiaries of the nefarious deeds of their ancestors, thanks to the legitimacy afforded by a land law system that their ancestors themselves constructed. The Poor Had No Lawyers aims to challenge this state of affairs by taking a position (pro land reform) but basing it on an analysis that is more soundly based in factual analysis than polemical rhetoric.

In the introductory chapters of the book, I argue that there were five main land grabs in Scotland – namely, feudalisation, the appropriation of Church property, legal reforms in the seventeenth century, the division of the commonties and the nepotistic alienation of the common good wealth of the burghs of Scotland.⁵ This history is brought to a conclusion by a look at the landed elite. The second part of the book is concerned with who owns Scotland in 2010 and represents a follow-up to my 1996 work of that name. Chapters 13 onward provide an analysis of various aspects of the land issue including, importantly, the land reforms of the past ten years.

If everyone was living happily, there would be no land problem. But they are not – young people can’t afford houses, tenant farmers are being harassed, communities are losing common land and Scotland is still a country where a tiny few hold sway over vast swathes of country. In the space available, this book can do no more than dip into these complex areas and highlight some of the issues involved. There is no coverage at all of the question of public access, for example. In particular, my treatment of Scotland’s history focuses purely on those areas of most relevance to the topic but I point to sources where a fuller account can be gleaned. Throughout the book I have also included a few additional tales of related matters from a non domino titles to who owns Balmoral. The Latin a non domino translates as ‘from someone who is not the owner’ and the concept is covered in detail in Chapter 22 (see pp. 206–207).

In effect, this book ranges over many of the areas of work I have been involved in over the years. I hope it stimulates you to want to know more and to engage in some of the important land rights issues in Scotland. For too long the law has been the preserve of lawyers and for too long they have served the interests of the well-to-do at the expense of the poor. Of course today there are many excellent solicitors doing very fine work in areas of public interest law and on behalf of the less well-off. The Govan Law Centre and the Environmental Law Centre, both of which have contributed outstanding service to the public, deserve special mention. Contrast these with some of the Edinburgh law firms and ask yourself who in the legal profession is going to help redress the imbalance of power implicit in Scotland’s land tenure system. Who will challenge the stealthy encroachment of landed power and who will stand up for the community’s land rights?

A word of warning. Much of what follows is expressed in what some might regard as rather legalistic language. I make no apology for this. For good or ill, the law surrounding land has been developed over centuries and is now quite technical. But to understand landownership in Scotland and to be able to engage with matters of who owns what rights where demands a certain level of familiarity with the law. I have provided a brief introduction to some of the concepts in Chapter 2 but a growing appreciation will only come through engagement with the issue, by locating title deeds and examining them and by reading legal decisions and textbooks. It is worth remembering that, particularly over local land issues, it is quite possible to become just as well informed if not more so than many so-called legal experts. Your strengths lie in understanding the law enough, having a detailed knowledge of a particular case and being motivated. Having said this, I should point out that I am not legally qualified. What follows are my best efforts at coming to grips with an area of law that has remained, like many other areas, the preserve of legal textbooks and journals. In particular, I apologise in advance to any of my legal friends for any arguments that fall short of the standards to which they are accustomed.

Related to this, I have found myself adopting rather more of an attitude in certain parts of this book – perhaps rather more than I had originally intended to. If this is so, it is for a good reason. As I wrote it, I became more, not less, aggrieved with the situation of which I complain – namely, the way in which the law and economy around land have been structured to benefit the haves at the expense of the have-nots. You may not agree with much of what you read. That is a good thing. Above all, I want to see a more informed level of debate about such matters and look forward to engaging with those who take a different view.

2

Superiors and Vassals

A brief discourse on terminology

It might appear rather academic to begin with a discussion of concepts and terms. If so, feel free to skip this chapter. However, an understanding of concepts and terms is vital to any proper analysis of land since terms such as ‘feudal’ have been used in a variety of ways, not all of which are accurate. This book is partly about the history of land tenure in Scotland and this can only be understood if we are clear about a number of legal concepts including land, tenure, ownership and land reform.¹

The concept of owning land in legal terms is somewhat misleading since it is (or should be) obvious that someone cannot own land in the same way that they own a bicycle. They can lose the bicycle or take it on holiday with them but you can’t do that with land. A bicycle can be replaced by buying another one (land can’t). Many different types of bicycle can be made by many different people (land is not made – it’s a gift of nature).

Ownership of land really means the possession of a bundle of rights over land including rights to occupy, to use, to cut peats, to cross or to fish. These rights include the important right to transfer these same rights to others. Land tenure is the legal system which defines the nature of this bundle of rights, how they relate to one another and how they are conveyed and recorded. Landownership, by contrast, is all about how the rights defined by the tenure system are possessed, what is the pattern of these rights (both now and historically) and the nature and character of those who hold these rights.

It is useful to clarify what is meant by ‘land’ and what by ‘property’. Land is essentially any part of the surface area of Scotland out to the territorial limits and includes lochs, streets, the land under buildings and the hills, fields and forests in the countryside. It also includes the land under the surface and above the surface. In Scots law land is owned a coelo usque ad centrum, ‘from the sky to the centre (of the earth)’. Property, on the other hand, is a term used most often to refer to the sum total of land and what is built upon it. Often, for example, we think of a house as property and a field as land. The law, however, makes no distinction – inaedificandi solo, cedit solo, meaning that anything which is built on the land is part of the land. In this book, I tend to use the terms interchangeably although when I come to discuss topics such as land value taxation, land is taken to exclude all improvements such as buildings or roads.

The final broad terms to be understood are those of ‘heritable’ and ‘moveable’. Heritable property is land and all that is fixed to it and associated with it, such as rights to fish. It is often referred to in historical texts as heritage. Heritors were the landed proprietors in a parish and were responsible for the upkeep of the parish school and church. Moveable property is just about everything else and, as the word suggests, is essentially anything capable of being moved.

Until 28 November 2004, Scotland’s land tenure system was feudal and thus some clarification of relevant feudal terms would be useful. Widespread confusion surrounds the topic of feudal tenure and what it means.

Feudal tenure starts from the proposition that the Crown has an ultimate ownership of all land. In feudal terms, it is called the Paramount Superior. In the early days of feudalism, the crown granted feu charters (often referred to simply as charters). These were documents that defined the precise rights and privileges being granted by the Crown (in those days mainly baronial rights to exercise justice, to receive the profits of justice in terms of fines and to administer the land including the mills, dams etc) and the feudal obligations owed to the Crown (to provide knight’s service and feudal payments).

The granting of land under the feudal system is called ‘feuing’. The party making the grant is the ‘superior’ and the person in receipt is the ‘feuar’. The land itself is often referred to as the ‘feu’ (this being the unique bundle of rights and obligations contained in the feu charter or ‘deed’).

The important thing to understand is that this act created a relationship between a ‘superior’ (the grantor) and a ‘vassal’ (the individual possessing the charter). The vassal held his title conditionally and any breaching of its terms could lead to forfeiture. As the concept of actual ownership of land rather than simply the administration of justice took over and charters began to convey property rights, this relationship persisted. The charter contained terms laid down by the superior that had to be observed by the vassal. When ‘subinfeudation’ became possible and vassals could also in turn feu land, they too drafted charters with feudal terms in them and obligations (including the payment of feu duty and restrictions or obligation on use). Vassals then also became superiors but remained a vassal of their own superior. Thus developed the feudal pyramid whereby rights in land were shared among many levels and any holder of a feu or feu charter was free to use their land as they saw fit, subject only to the laws of the land and to the terms of their charter.

Conceptually, think of it like the armed forces. The Queen is the paramount superior, the Prime Minister is her vassal. He in turn is the superior to the Chief of the General Staff who in turn is the feudal superior of the Chiefs of the individual forces and so on down the chain of command. At each level, there is an interest below (the vassal) and an interest above (the immediate superior). Obligations flow each way. The ‘owner’ in conventional terms is the person at the end of the chain who has ‘title’ (written evidence of ownership) and, in our analogy, is the soldier. Below the owner, there can, of course, be tenants who have the right to occupy and use land for a defined period only and usually for defined purposes set out in their ‘lease’.²

Typically in a rural situation, land and property would be owned by individuals who were the vassals of the original owners of the long-established estate that originally sold the land – land they now own. This was frequently the case in villages that were developed by large landed estates and where small plots of land had been sold as former parts of a larger property.

In towns and cities, the feudal superior was typically the descendant of the individual or organisation that originally owned and (frequently) developed the land. Thus, in Edinburgh, the original owners, such as the Heriot’s Trust and Fettes Trust, of the New Town were, until recently, the feudal superiors. Elsewhere it was common to find corporate bodies, such as insurance companies, owning portfolios of superiorities. This was done as part of their investment strategy in the days when the payment of feu duties still represented a significant source of income to feudal superiors. Feuing was an important mechanism for the development of Scotland’s villages, towns and cities in the days before planning laws and it allowed for the orderly development of houses and streets by imposing conditions on feuars, such as the obligation to maintain part of the street and not to use the land for tanneries, candle making, heckling houses or other such undesirable urban activities.

Land is transferred either by being inherited or by ‘conveyance’ which is the process of transferring title from one party to another. This usually takes the form of a ‘disposition’ whereby land is ‘disponed’ from one party to another. The disposition can be a feudal disposition, which creates a feudal relationship as defined above, or it can be an ordinary disposition. Whereas a feudal grant will create a new superior/vassal relationship, an ordinary conveyance or disposition merely substitutes a new owner for the former one. The relationships stay the same and nothing new is created – only the people involved change.

This system of tenure remained the method by which the vast majority of land was held in Scotland until its eventual abolition on 28 November 2004 under the Abolition of Feudal Tenure etc. (Scotland) Act 2000. Earlier reforms included the Land Tenure Reform (Scotland) Act 1974 which allowed vassals to redeem the feu duty payable to the superior. Contrary to popular belief, however, it did not abolish feudalism and vassals remained obliged to abide by the terms of their title in all other respects.

There continue to be important reforms to Scotland’s system of land tenure in areas such as leasehold, succession, common good and land registration. These developments, together with new legislation such as the community right to buy, make it ever more important for the citizen to be well informed about how Scotland is owned. Remember that, although landowners own Scotland, they don’t own the system of land law that underpins it – that belongs to all of us and it’s high time it was better understood.

3

Robert the Bruce – A Murdering Medieval Warlord

The first land grab – feudal colonisation to 1500

After the ice retreated, groupings of peoples spread across Scotland and settled by the coast and on fertile land occupying territory which was governed by no central authority. Each tribe regulated its own affairs and, where conflict arose, combined together to assert their power. Scotland developed into a tribal society with a variety of ethnic groups, including the Gaels and the Picts, which eventually coalesced into a recognisable Scottish kingdom by the twelfth century. In the north were the Norse, in the west the Scots from Ireland, on the east some Saxon colonists and in Galloway the Picts. In the south of Scotland too were peasant proprietors, descendants of the Roman soldiers who, having retired from the army were given 4 acres of land in freehold. Feudalism was an unknown concept.

Many centuries later, the Berlin Conference of 1884–85 formalised colonial rule in Africa and its outcome, the General Act of the Berlin Conference, laid the ground rules for the conquest of that continent. The Principle of Effectivity established that European powers could only hold colonies if they possessed them. This required an active process of settlement, treaties and legal authority to be established in the lands held.

This process was little different from that which established the central authority of the Scottish state over the land of Scotland and which, over the course of many centuries, developed into the concept of landed power and authority with which this book is concerned. Just as in 1889, when Queen Victoria granted a charter to Cecil Rhodes’ British South Africa Company to administer the territory from the Limpopo to Lake Tanganyika, so the monarchs of Scotland drafted and granted feudal charters to the nobility in Scotland to administer large territories across the country.

Prior to the reign of David I (1124–1153), land tenure in Scotland was based on older Celtic and Nordic traditions. David I changed all that with the systematic introduction of feudalism (although his father, Malcolm III had begun the process of replacing thanes with earls, lords and barons). Landed power begins and ends with sovereignty – the supreme or ultimate power or authority over a territory. Sovereignty is vested in the Crown which is represented by the monarch. Securing the Crown thus confers absolute power and David used this power to impose the alien feudal tenure system on Scotland.

There was no possibility of establishing a centralised, bureaucratic administration; no ruler had enough money to pay and supervise local officials. Therefore, local administration and justice, which is the essential work of any government, had to be left to the leading men in each district, that is, the lords.¹

Where did feudalism come from? To begin with, the term is not particularly useful since, as historians have argued, the classic feudal pyramid did not truly exist anywhere.² In Scotland the process was even messier since the essence of feudalism (the authority of the Crown over territory) sat alongside pre-feudal institutions. This was inevitable since feudalism was imported by foreigners from Flanders, Normandy and England. David I’s reforms of administration are credited with revolutionising the governance of Scotland. He erected Scotland’s first burghs at Roxburgh and Berwick, founded monasteries, established sheriffdoms and, of course, granted feudal charters to the French knights who supported him and any native earls and lords prepared to accept the homage and fealty due to the monarch. Royal forests – hunting reserves where no one could hunt without the monarch’s permission – were established together with baronial forests allocated to barons.³

As Mackintosh observes:

One marked characteristic of feudalism was the multiplication of hereditary offices. In Scotland this rose to excess. Hereditary officers of state, constables, marshals and so forth; hereditary sheriffs, baillies and stewards; hereditary keepers of castles, forests, parks and the like; hereditary functionaries on every hand.

The feudal nobles aped the royal state, and encircled themselves with a host of officers and vassals. They had their own sheriffs, chamberlains, constables and so on. In fact, they were a sort of little despots [sic] within their own territories.⁴

These developments were not only based on Anglo-Norman structures, they were populated by immigrants from the Anglo-Norman world. The burghs were run by an immigrant merchant class and the new class of landowner was almost entirely foreign. Feudalisation was thus, in essence, a form of colonisation. Land which had been owned by native aristocracy under pre-feudal arrangements was now held by a charter written in Latin which granted extensive privileges over the territory in return for money and military dues to the Crown. The beneficiaries were the new foreign nobility including Robert de Brus, Roger de Quincy, Robert de Balliol, Robert de Comines (or Comyn), Roger de Berkeley, Henry de Brechin, de Umphravill, de Morvills and de Sulis. They also included some of the native chiefs who calculated that it was in their best interests to secure a charter but who, at the same time, often continued with pre-feudal institutions of administration over their land.⁵

The whole process was, therefore, not unlike the British colonisation of Australia with its concepts of terra nullius – ‘land belonging to no one’ – a concept now discredited as a result of the Mabo decision (for which, see Chapter 9). The first land grab in Scotland was thus a process of colonisation by foreign forces aided and abetted by a process of internal colonisation whereby the native nobility was co-opted into the feudal system. It was the process of feudalisation that marked the beginning of the evolution of landownership as we know it today. The granting of feudal charters was a process of enforcing central authority and, just as the British colonialists co-opted indigenous tribal chiefs, so too did the early Scottish monarchs co-opt Scotland’s indigenous aristocracy.

It is important to remember in this context that feudalism was imposed on Scotland. In contrast to England where William the Conqueror was careful to confiscate property legally before he began to grant it all away, no act was ever passed in Scotland that confiscated property to the Crown. As a result, one historian has argued that all Crown grants were therefore really ultra vires.⁶ This can be illustrated by reference to what, in early feudal charters, is called the Quaequidem clause, the clause setting out the history of the property and how the rights came to be in the hands of the granter. Cosmo Innes argues that ‘[t]his clause is, however, too often wanting in our old charters’, and where it existed, it often simply referred to the lands having been formerly held by ‘our enemy’.

I have observed some charters in Bruce’s time, where the lands given by the King had formerly been in the possession of a Balliol or a Comyn, and that was sufficient account of their coming into the King’s hands. You will find, I think, that the greatest number of the charters of King Robert I proceed on forfeiture.⁷

Feudal grants did not of course grant rights to the land as such but were contractual bargains