Land inheritance in Scotland

I'll be writing a book soon for Unlock the Past (www.unlockthepast.com.au) on Scottish land records, but thought I'd do a quick post on the fundamentally big differences between Scottish land and property inheritance and the situation around the rest of the British Isles.

When Scots died in the past, their assets comprised of moveable and immoveable goods - things pinned down and things not pinned down - or the house, as an example, on one hand, and its contents on the other. Coats of arms were also classed as 'heritable' property (and just to clarify, there is ABSOLUTELY no such thing as a 'family coat of arms' - use someone else's coat of arms, even if he or she has your surname, and you're breaking Scots Law). Houses and land fell into the 'immoveable' or 'heritable' goods category, and prior to 1868 could not be directly bequeathed in a will, unlike the rest of the British Isles, thanks to Scots Law dealing with the matter in a different way to English Law. (There were exceptions, such as 'trust dispositions' from the 19th century on, but let's not muddy the water just yet!)

If you couldn't leave land in a will then, it had to be disposed of in a separate manner. Until 1964 primogeniture operated in Scotland, the right of the eldest son to inherit land and property, and his dad's coats of arms etc. In the past, the way that the formal inheritance of land worked involved the heir having to prove that he (and sometimes she) was the legitimate heir of the deceased, but how you did that depended on who your 'feudal superior' was. We had a very long, complicated and brilliantly fascinating land system based on feudalism until 2004, which basically ensured that there was a long chain of people looking after land through a web of supervision all the way back up to God.

Here's the definition of feudalism in a nutshell - God was a busy chap, so let the monarch look after Scotland for him - except he was too busy off shooting wild boar and grouse. To keep the house in order he in turn carved Scotland up into vast tracts of land known as 'feus', and let a few earls and nobles look after them on his behalf. In return they paid him a tribute for the privilege, which was known as a 'feu duty' - this initially comprised of them volunteering some of their tenants to go off and get hacked to death on the king's behalf when he lost his temper with an enemy or two. Later everyone realised paying a sum of money would be a lot more civilised and would save on the body count - the king could also now just buy boar and grouse with the proceeds, so turned his attention to shooting deer and pheasants (not to be confused with 'peasants') instead. The nobles were also fairly busy, so they in turn kept on carving up their territories into smaller portions, with those looking after the land on their behalf giving them a feu duty also, which the nobles would pass part of back to the king. The land was in turn divided again and again until it became impossible to carve up further (unless you are my eldest son, who in 2000 apparently became the laird of one square foot of the Isle of Islay!). As long as the feu duties kept passing up the chain, everyone was happy. Feudalism was not the only way that land was managed in Scotland, but was almost universally the main method until finally abolished in 2004.

Lots of land was 'feued' directly from the Crown - in which case the Crown was the feudal superior (i.e. the person above you in the chain). Other lands were feued from one of a series of middle men beneath the king, as described above, who were known as 'subject superiors' or 'intermediate lawful superiors'. So how you formally inherited land - who you had to prove your entitlement to inherit to - depended very much on whether your superior was the Crown or a subject superior.

The first thing to note though is that when someone died, the heir actually immediately became what was legally known as an apparent heir, and had certain rights from the start. He or she could actually take possession of the property immediately, and assume various responsibilities (for debts etc). The problem was an apparent heir could not pass on the property himself unless he completed the process of inheritance.

That's where the type of superior comes in. If it was one of the middlemen, the subject superiors, all you had to do was to obtain a document from him that showed that he (it was mainly a he!) recognised that you were the lawful heir. This document was known as a precept of clare constat which basically started its wording along the following lines:

"___ having, &c, the said precept of seisin, commonly called a precept of clare constat, made and granted by an honourable genetleman A of___ , in favour of the said B of ____ , as heir to the said umquhile D of ____ , his father, of all haill the lands, annual rent, and others under written, of the date, tenor and contents after written".  [Followed by the description of the property etc]

There is no register of such documents unfortunately, as they are scattered all over the place in estate papers, dusty cellars, solicitors offices and probably in a few compost heaps - assuming they've survived at all. However, anytime land was transferred, whether by purchase or by inheritance, it had to be entered into the Registers of Sasines which can be consulted either in Edinburgh or at a local county archive (depending on the type of register - again, let's not go there for now!). So usually if land was inherited after a precept of clare constant was issued, you'll find it mentioned in the sasine record. Here's an example of a sasine abridgement that does that:

MARION McKECHNIE, spouse of Hugh Paton, Grocer, Largs, as heir to John McKECHNIE, Grocer and Manufacturer there, her father, Seised, in the half of a Dwelling House with Byre and Yard at the back thereof on the north side of the Street of LARGS, and of a Barn extending to about 10 Feet in length adjoining, par. Largs; on Pr. Cl. Con. by Gen. Sir Thomas Makdougall Brisbane of Makerstoun and Brisbane, Sept. 21. 1849 P. R. 353.249.

[Pr. Cl. Con = precept of clare constat]

NB: Other documents would be involved possibly also, with Godforsaken names such as writs of clare constat and charters of confirmation, but the bottom line is you'll find evidence for them in the sasine registers, not in some dedicated central register for heirs.

If the Crown was the superior, however, it was a different kettle of fish. You instead had to do something a little different, and go through a process called the Services of Heirs to prove you were the legitimate heir. This was a jury of local landowners who would take a decision as to whether you were who you said you were. If they agreed, they 'retoured' their decision to the Chancery, and you were recognised as the lawful heir and could take full and formal possession, no longer as just an 'apparent heir'. The Services of Heirs are therefore also known as the retours (Scots word for 'returns'), and these judgements are today held at the National Records of Scotland (there are exceptions, such as areas known as regalities not having to retour their findings, and some local courts forgetting to send the records through etc etc - but you get the song now, "let's not go there for now"!). There were two types of retour - general retour and special retour, basically dependant on whether the heir was about to be made infeft into land left by his ancestor, or simply needing to be recognised as an heir (e.g. to inherit a heritable benefit not involving his predecessor's land, such as a heritable bond, or if simply needing proof to convince a subject superior that he or she was who they claimed to be, in order to receive a precept of clare constat).

(It's also worth noting that the retours were also used to record the appointment of tutors for minors - via 'brieves of tutory' - when they succeeded an ancestor but were too young to take full possession of an estate - but that's another story for another day!)

On the whole the retours or services of heirs were indexed in the 19th century, with records from 1530-1699 indexed between 1811 and 1815, and records from 1700-1859 indexed in 1860. After this they were indexed annually. The indexes from 1530-1859, as with the later indexes, are available for consultation at the NRS, though it's worth mentioning they aren't quite complete - in the annual index for 1906 there are in fact five pages added which contain details of missed entries for material from 1700-1859. The indexes from 1530-1699 and 1700-1859 are also available on CD now from the Scottish Genealogy Society (www.scotsgenealogy.com).

An index entry for a retours / services judgement would typically be as follows:

Paton – Marion: Wife of H. Paton, Grocer in Largs, to her father, John McKechnie, Weaver there – Heir General – 6th October 1849 (Recorded 1849, Oct. 12)

The eagle-eyed among you will notice this is actually the same piece of land being described above with the precept of clare constant. Some people actually went through both just to be super-sure, getting a court to back up the position as well as the local superior.

There was actually a third method by which an heir could secure his or her position. The following quote comes from A Dictionary of the Law of Scotland from 1815 (available on Google Books at http://tinyurl.com/6q2eolv), and describes the third process that could be undergone by the apparent heir:

"...he may give a trust bond to a confidential friend, who, having charged him to enter, may adjudge, and in that way acquire a title by an adjudication, which will enable him, without representing the ancestor, to try the effect of any right the ancestors may have given; and having cleared the estate of any claims, the adjudger may transfer to the heir the whole right under the adjudication."

So there you have it, a ready reckoner to the simplicity of Scottish land inheritance...! (You'll notice I quickly left the last bit!) It's actually a lot more complicated than all of that, with different types of heirs, such as heirs portioners, heirs of tailzie, and more, but this is the basic backdrop guiding it all. Thankfully from 1868 onwards you could just chuck it all in a will and deal with it that way - but there was a certain elegance to the old system!

I'll be dealing with Scottish land records and inheritance in my forthcoming Scotland 1750-1850: Beyond the OPRs course taught through Pharos Teaching and Tutoring Ltd from May 16th - see www.pharostutors.com/details.php?coursenumber=302. Prior to that though I will be teaching a more introductory course entitled Scottish Research Online from March 8th - see www.pharostutors.com/details.php?coursenumber=102. Both courses cost £45.99 and last 5 weeks.

Hopefully see a few of you there!

UPDATE: The book is now available from www.gould.com.au/Discover-Scottish-Land-Records-p/utp0283.htm - from sasines to skat, and retours to tailzies, it's all in there! :)

Chris