The Poor Had No Lawyers

Who Owns Scotland (and How They Got It)

Andy Wightman

• Publisher: Birlinn
• Year: 2021
• eBook ISBN: 9780857900760
• Topic: History
• Subtopic: British History
• Index: History

In this updated edition of his "utterly magnificent" social history, the Scottish parliamentarian examines the privatization of Scotland's common land ( Sunday Herald, UK).
As an author, activist, and politician, Andy Wightman has made a career of fighting for Scottish land reform. In this provocative and influential book, Wightman offers a revealing analysis of how and why landowners got their hands on the millions of acres that were once held in common. He also tells the untold story of how the Scottish legal and political establishment appropriated land through legal fixes.
Throughout, Wightman poses some provocative questions: Have attempts to redistribute power made any difference? What are the implications of the debt-fueled housing bubble, the Smith Commission, and the new Scottish Government's proposals on land reform? Can we get our common good land back?
For all those with an interest in urban and rural land in Scotland, this edition of The Poor Had No Lawyers, updated with new statistics, provides a fascinating analysis of one the most important political questions in Scotland.

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 f...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Figures, Tables and Plates
• Acknowledgements
• Foreword to the 2011 edition
• 1. Show the People That Our Old Nobility Is Not Noble
• 2. Superiors and Vassals
• 3. Robert the Bruce – A Murdering Medieval Warlord
• 4. To Spoil the Kirk of Christ of Her Patrimony
• 5. The Palladium of Our Land Proprietors
• 6. In Edinburgh They Hate Us
• 7. A State of Possession Already Subsisting Beyond the Memory of Man
• 8. Mere Miserable Starved Caricatures of Their Former Greatness
• 9. I Hereby Take Possession of This Island of Rockall
• 10. Look Here, Boy, Steady On. Let’s Get This Thing Straight
• 11. Lord Derby, Lloyd George and John McEwen
• 12. Who Owns Scotland?
• 13. A Considerable Ridge of Very High and Lofty Hills
• 14. Simple Fraudulent Misrepresentation
• 15. From Lord Leverhulme to Lord Sewel
• 16. Those Who for Our Sake Went Down to the Dark River
• 17. Tartanry, Royalty and Balmorality
• 18. I Want the Assurance That I Will Not Be Evicted
• 19. A Highly Unsatisfactory Guddle
• 20. Planting Forests Is a Sure Way to Grow Rich
• 21. I Will Not Allow House Prices to Get Out of Control
• 22. Three Score Men with Clubs and Staves
• 23. All Property of a Burgh
• 24. Let for a Penny a Year
• 25. Problems Rarely Arise with Land in Private Ownership
• 26. Little More Than an Instrument for Extracting Money
• 27. Bureaucratic Nit-picking and Fine Legal Arguments
• 28. Undermining the Whole Fabric of Scottish Family Life
• 29. Their Unjust Concealing of Some Private Right
• 30. We Do Not Want to Punish the Landlord
• 31. A Public Park and Recreation Ground for the Public Behoof
• 32. The Poor Still Have No Lawyers
• Notes
• Bibliography and Further Reading
• Appendix
• Index
• Plates