The legal land ownership limbo of 'in hereditas jacens'

In a previous post on this blog (see http://chrispatonsblog.blogspot.co.uk/2012/02/land-inheritance-in-scotland.html) I discussed how prior to 1868 land and property was inherited in Scotland through a very separate process to that of moveable estate (the records for which are on ScotlandsPeople). This involved processes such as the Services of Heirs or the granting of a precept of clare constat, depending on who the feudal superior was in the arrangement. So whilst these processes were going on to confirm the right of the apparent heir to inherit, who actually owned the land or had responsibility for it?

The short answer is that from the moment of the previous holder's death until the moment when the apparent heir's identity is formally recognised by his or her superior, the ownership of the land went into a legal limbo, known in Latin as in hereditas jacens. The apparent heir had a year and a day to decide first of all whether he or she wished to inherit the property - after all, if it was saddled with debts, what would be the point?! This period of time was known as the tempus deliberandi or annus deliberandi - the time or year of decision.

If the apparent heir now wished to proceed, there were a couple of options available. The first was to just push on quickly and complete the inheritance process, by going through the Services of Heirs procedure (if the land was held of the Crown), or obtaining the precept of clare constat (if held of a subject superior, or middle man on the feudal chain).

However, an alternative was to take up partial possession of it with some protection against creditors, before the inheritance process was even commenced or completed. To do so, the apparent heir could take up what was known as entry cum beneficio inventarii - entry with the benefit of an inventory.

Within the first year after the predecessor’s death an inventory of the estate’s value could be drawn up and recorded by the local sheriff-clerk within the sheriff court books, which allowed the apparent heir to restrict the value of any debts owed by the estate to that stated in the inventory. After the annus deliberandi expired, the inventory could also be subsequently recorded in the Books of Council and Session (the Register of Deeds) within the next forty days.

Having taken up informal possession, the apparent heir was still an apparent heir, as the title had yet to be completed. As such, he or she could not sell off parts of the land or property, and only had limited rights to its assets. Nevertheless, for some, that was enough, and it would only be many years later when they did decide that they wanted to carve off parts of their estate that they perhaps decided then to complete the inheritance process.

So what's the bottom line? In some cases, this means that you may find that an heir is not recorded in the Services of Heirs indexes, or indeed in the sasines registers, until many, many years later after first gaining entry - and in some cases, not at all, if they left it too late and went off to meet their maker before their time was supposed to be up.

For more on the various methods of land holding, inheritance and other related topics, don't forget my book Discover Scottish Land Records (2nd edition), which might help. Details on how to buy the book from various worldwide outlets is available at http://britishgenes.blogspot.co.uk/p/my-books.html.


I hope it helps!

Chris

A visit to the Scottish Parliament

On Thursday 4th December my wife Claire and I had the pleasure to visit the Scottish Parliament at Holyrood, Edinburgh, with our local SNP branch (www.facebook.com/snplargs). We left Largs at 8.15am, and after picking  up some members at nearby Skelmorlie, made our way east, with lots of good cheer. This was to be my fourth visit to the Parliament, but the first visit by which I would get a better understanding of how our democracy itself works in Scotland. (I had previously visited briefly with an Australian cousin a few years back, whilst in 2014 I spent two days helping with an exhibition in the Members Lobby for the Scottish Council of Archives, which included an evening reception where I had had a chance to talk to the Culture Secretary Fiona Hyslop on issues relating to the archive sector).

We arrived at 11.00am, and after a security check and receiving our passes we were then greeted by our local MSP, Kenneth Gibson, who led us to the main chamber. We did not have a lot of time in here as Parliament was due to start from 11.20, but Kenny gave us a quick overview of the working week at Holyrood, and explained the work of our MSPs, the process by which parliamentary legislation was drawn up and enacted, and more. We were given a copy of the day's Business Bulletin, which is drawn up each day to outline the questions to be asked of ministers, and the various debates and committee meetings in the building, and obviously took a few photos! After a quick look at one of the committee rooms, where Kenny discussed how much of the real work of the parliament was carried out, we then bid him a temporary farewell as we made our way to the visitors gallery, and he to the chamber.

Being a Thursday, the regular session of questions to ministers commenced at 11.40, where various Scottish Government ministers were asked to comment on a variety of questions, ranging from questions on the uptake of grants from the Centenary Memorials Restoration Fund and what discussions had been had with First Group over the closure of a bus depot at Parkhead, to whether the forthcoming Lobbying Bill was fit for purpose, and what measures were being put into place for the protection of a growing elderly population in Scotland for the winter. It was a business like meeting without controversy. The real event, however, was First Minister's Questions, at 12pm. We watched for half an hour as Nicola Sturgeon managed to deal effectively with a range of issues asked by Kezia Dugdale, the leader of the Scottish branch of the Labour Party, and Ruth Davidson, the Tory equivalent. Whilst a huge shadow hung over the proceedings, in that the night before the UK's parliament in England had voted to bomb Syria (against the wishes of the majority of the people in Scotland), this was not dwelt on too much at this session.

With the session over we then caught up with Kenny again and made our way around the building to see various areas, including the main lobby area, the back room areas where the parties are based (they each have different floors), and areas such as the Scottish Parliament Information Centre (SPICE). It was slightly surreal to see folk like Annabel Goldie and other MSPs walking past, it is an extraordinarily open and democratic building. In fact, one of the things that Kenny mentioned was that it is very much a people's parliament, so much so that anybody in Scotland can book the function areas - after all, we paid for it! We then relocated to the member's restaurant, and had an enjoyable lunch, where we discussed much of what we had experienced with Kenny as our MSP.

As if to emphasise how open everything is, we were stunned when the First Minister walked into the restaurant with a small party to have a lunch meeting on the table next to ours. It was surreal, in that we were the only two parties dining, and so we did what any self-respecting parties would do in such circumstances - we bagged her! Specifically, we politely asked if she wouldn't mind us grabbing a quick photo opportunity with our group and with one of our local councillors, and she wonderfully obliged.

With lunch over, we had a final opportunity to have a look around, at which point Kenny had to leave us to get on with some work, but this gave us a chance to see the exhibition area in the main entrance foyer, recounting the history of Scotland's parliaments going back to the 13th century. It was an exceptional day, and although the rain was torrential by the time we had finished, our spirits were not dampened. A raffle on the bus back saw Claire win a bottle of mulled wine, but our friend Dougie failed to win the whisky (which may have upset the balance of the space-time continuum, because he usually does!).

A great day, great company, and a great democratic institution to be proud of!

(With thanks to Davina McTiernan, Kenneth Gibson MSP, and the First Minister) 

Chris

Vive la France

Liberté  egalité  fraternité

Vive la France

Dunadd, ancient capital of Dalriada

Over the weekend I managed to make a visit at long last to Dunadd (Dùn Ad), the ancient Iron Age hill fort near Kilmartin in Argyll which was once the capital of the historic kingdom of Dalriada (Dál Riata). This long forgotten kingdom by many once straddled the Irish Sea and encompassed County Antrim in the north of Ireland, and Argyll and Lochaber in the west of Scotland. It was the Gaelic clans of this region who were said to have given Scotland its name - the word 'Scot' coming from Scoti, the Latin name used by the Romans to denote the Gaelic inhabitants of Ireland.

Traditionally it is said that the Irish settlers colonised the west of Scotland via three sons of Erc - Fergus Mór, Loarn and Óengus. Fergus Mór is one I am certainly well familiar with, as it was he who died off the coast of Antrim whilst trying to reach a well on a rock said to cure leprosy. That rock became known as Carraig Fheargais - Carrickfergus - my home town in Antrim. The three sons of Erc were said to have brought Christianity and Gaelic with them, but this traditional view is one that is currently being challenged by some archaeologists who believe that there is no evidence of an invasion as such, but rather a people long resident on both sides who were linked by the Irish Sea rather than divided by it. For more on the importance of Dalriada and Dunadd visit https://en.wikipedia.org/wiki/D%C3%A1l_Riata.

The images below show the various sites on the hill fort, which can be climbed, including the ancient well, some of the defensive ramparts, and the stone on which the coronation of the ancient Scottish kings occurred, including the small footprint basin into which the rulers placed their foot during the ceremony. If you fancy a visit, see www.historic-scotland.gov.uk/propertyresults/propertydetail.htm?PropID=PL_174 for further details.

Frack off to fracking...

I wrote my first letter to our local newspaper this week, the Largs and Millport Weekly News, following a public meeting that I attended at the Yes Largs shop on Sunday about the issue of fracking. This is the letter which was published today:

"Dear Sir,

"On Saturday 31st January I attended the public meeting at the Yes Largs shop on the subject of fracking (hydraulic fracturing), at which a film entitled 'Fracking in the UK' was shown, followed by a general discussion. The film was a real eye opener in showing how the practice has been employed in parts of Australia (such as Queensland) and the United States, as well as flagging up current plans to start using the process soon across a significant portion of the north of Somerset, not far from where I used to live in Bristol.

"I was truly horrified by a lot of what was shown, including the inherent risks and the problems caused that have been denied at an official level in Queensland, for example, where dangerous levels of gas are leaking to the surface from wells, and with the contamination of water supplies. The water used to 'flush out' the gas is packed with chemicals to aid the reduction of friction, many of which are toxic to human health, as was clearly shown through many case studies, and much of which will leak into our underground natural water supply. The disposal or treatment of this frack water afterwards is yet another problem, as is the amount of water that will be required for the process in the first place, which is equivalent to the content held within three Olympic sized swimming pools per each frack line run off from a central well (of which there will be many in any area where the process goes ahead). Additional issues included the scarring of the landscape where fracking has occurred, for example through the large evaporation pits used to dispose of some of the water, the degradation of house prices in areas where fracking occurs, the increase in seismic activity (which caused problems near Blackpool not too long ago), and the increased emissions from the ground of naturally occurring gases such as the carcinogenic gas radon.

"The Scottish Government is to be commended in this last week for creating a moratorium on the whole process in Scotland, and it is a tragedy that the UK Government was not able to do the same. But this is quite simply a dirty process that we do not need. Scotland is the envy of the world in its efforts to create a self-sustaining energy industry based on our renewable resources, an aspiration that puts us well and truly on a course for the moral high ground in energy terms. Fracking will not provide a cheaper fuel source for us, it will simply be another asset to be stripped in the short term by energy firms for their shareholders' convenience, and one that will leave a dirty time bomb for posterity. Our government at Holyrood has both a voice and a leadership role, and having made an important first step in confronting the process with a moratorium, it should go much further by announcing that we simply just do not need this dangerous practice in the first place, and will not support it.

"With kind regards, Chris Paton, (Largs)"


Any government that goes ahead with this practice does not do it my name. There's a bit more about what fracking involves in the following film:

 

The Poor Had No Lawyers - Who Owns Scotland?

For almost fifteen years now I have been using Scottish land records for genealogical purposes, particularly so over the last decade. In almost every Scottish guide on family history resources, there is usually a basic description of record types such as sasines, which detail every land transaction in the country from the early 17th century, and retours (aka Services of Heirs), which prove the right of an apparent heir to inherit property once the deceased has left this mortal coil. A couple of years ago I produced my own genealogical guide entitled Discover Scottish Land Records, which tried to take a more depth look at how some of these processes worked, and to explain a bit more about the system of Scottish feudalism and the law that derived from it. The purpose, again, was for genealogical research.

Just now I am reading a remarkable book by Andy Wightman, entitled The Poor Had No Lawyers - Who Owns Scotland (And How They Got It). I have the new edition, published by Birlinn Ltd in 2013 (the original was produced in 2011), and the main reason I purchased it is the fact that land reform is fast becoming a political hot potato in Scotland. In a country of just over 5 million folk, half of the privately held land mass of Scotland is owned by just 432 people, a situation that has been virtually unchanged for centuries. In November 2004, Scottish feudalism was finally abolished, marking the end of a system that endured through most of Scotland since the 12th century. There is still a lot on the reform agenda to be addressed, and fast growing concensus appearing on what those changes should be on the one side by those who think the issue of land reform is unfinished business (which includes the Scottish Government), with an equally vociferous opposition from the landowners who still own vast estates across the country, and who want nothing but the status quo to endure. Whilst I took up the book to obtain more of a political education on the subject, in actual fact, this book is one that every Scottish based genealogist should also get stuck into.

Andy Wightman has long campaigned on the need for reform, but before laying out the political case for its need, he spends quite a bit of time looking at the historic background to the acquisition of land in the country. He kicks off with brilliant contempt for so-called Scottish independence heroes such as Robert the Bruce, calling him "a medieval warlord", who was "murderous, duplicitous, conniving and wholly devoid of any higher principles than his own advancement". From this point onwards, you know that he has no problem challenging the views of the establishment! But crucially, he then goes on to discuss how Scottish land was consolidated into the hands of a few landowners across the centuries in what he describes as a series of thefts.

There was the theft of common land by the Crown, which used feudalism to structure its management through royal prerogative (from 1503 James IV catalysed the process with an extensive programme to feu out Crown held lands). There was the theft of land from the Church before the Reformation, with many illegitimate offspring installed into corrupt bishoprics by the so called great and the good, from whom Church land passed into the hands of their 'noble' families. There was the support of the Lords of the Congregation at the Reformation of 1560 itself, not just for religious reasons, but to help finish off the job of securing the remaining Church lands - a process that actually caused problems for the new Kirk, as the assets it needed to finance its new programmes of education and discipline were squandered by the nation's nobles. There was then the subsequent successful effort of the nobility to formally legalise their possession of property seized from Church lands through the Registration Act and Proscription Act of 1617, with 'proscription' allowing ownership to be recognised for land that had been held for at least forty years. The book therefore explains the background to why devices such as the Registers of Sasines were actually created, and later why tailzies and other forms of documents that we use for family history research came into existence. Further land grabs are also recorded, such as those of the commonties and burgh commons.

There are great examples of how records developed across time also, including the development of Edinburgh New Town from 1766, and how feudal charters evolved as a consequence of its feuing plan. In older charters, burdens (conditions imposed by feudal superiors on vassals as to what they could do with land) were not detailed in the documents, but this caused problems with Edinburgh. Those who took the initial feus for the New Town agreed to design their buildings according to a plan, but the plans and conditions were not included in the charters - instead, the agreement was via contract law. When those original owners sold on their buildings, the new owners were not bound by the same contract, and as the charters did not list any obligations on what should be done with the properties in terms of their development, the new owners could do what they liked with their holdings. The addition of burdens in the charters from this point soon put paid to that. And so on.

The book obviously then goes into depth on the political consequences, and the author's beliefs on what still needs to be addressed, which you may or may not agree with. But if you like a little bit of politics, and at the same time have an interest  in the records of Scotland used for genealogical research, Andy Wightman's book ticks many boxes, and is thoroughly recommended! It is available from Amazon at www.amazon.co.uk/Poor-Had-No-Lawyers-Scotland/dp/178027114X/.

Chris

Imprisoned twice because of his wife...

I'm at work on my next Unlock the Past genealogy guide (www.unlockthepast.com.au), which is provisionally entitled Down and Out in Scotland, but I thought I'd share the following records that I found within the Weavers Incorporation of Perth records. They are from over three hundred years ago, and I am using them as an example to describe the courts of the trade incorporations that used to rule the trades in the burghs.

Patrick Smith was a Perth based handloom weaver who was married to a woman named Janet Mackie, and I have established that the couple had at least two daughters, Anna, born 13 DEC 1693, and Christian, born 3 APR 1696. History does not recall how madly in love with each other the couple may have been beyond this, but it certainly does recall how much trouble Patrick kept getting into with his trade's master court because of his wife.

Here goes - transcription from the original Scots for each entry, followed by an up to date translation:

Pth the 10 Octr 1705

Whilk Day the Generall meiting of the weavers of perth convened all in ane voice Unlaus and ffeynes Patrick Smith in five pounds and ordaines him to goe to prisone until payt because his wife abeused the prtt deicon yrunto he is liable conforme to act of the court

Perth the 10 October 1705 

On which day the general meeting of the weavers of Perth convened, who all in one voice penalise and fine Patrick Smith five pounds, and ordain him to go to prison until payment because his wife abused the present deacon, for which he is liable, as per an act of the court 

Perth 19 February 1709

The Deacon Compleanes to the master court upon Patrick Smyth weaver bycause Jannet Mackie his spouse Intruded herself in the Deacons company and without any ground of offence Did harrass and abuse him in a publick company In respect whereof the traid unlaues and fynes the said Patrick Smyth in ffive pounds Scots conforme to Ane former Act of the traid made anent Ane freemans wife intruding herself in the Deacons company and abusing him And In respect the said Patrick Compeared and owned & Laid it was butt out of splean of the deacon agt him and his wife and ordaines him to be secured in presone till payt of the same

Perth 19th February 1709 

The Deacon complains to the Master Court about Patrick Smyth weaver, because Jannet Mackie his spouse intruded herself in the Deacon's company and without any ground of offence did harrass and abuse him in a public company, in respect whereof the trade penalises and fines the said Patrick Smyth five pounds Scots, as per a former act of the trade made concerning a freeman's wife intruding herself in the Deacons company and abusing him, and in respect of which the said Patrick appeared as a witness and acknowledged it & suggested it was but out of splean of the deacon against him and his wife, and they ordered that he be secured in prison until payment of the same.


There are no further mentions of the couple, but oh to be a fly on the wall in the house of Patrick Smith and Janet Mackie in the early 1700s!

Chris