Book Review – The Poor Had No Lawyers

THE POOR HAVE NO LAWYERS – Who Owns Scotland (And How They Got It)

This is a weighty tome which is well worth wading through. In fact when I picked up the book and started to read it, it never occurred to me that I would be seething with a sense of injustice and rage, at the inequalities that exist in Scotland, in relationship to landownership.

This is an amazing testament to one man’s dogged determination to get to the bottom of the extent of the inequality that exists in our country, due to the pattern of landownership. It is also a great history book telling us how we came to be in this situation. Andy Wightman left no stone unturned in getting to the root of this issue, despite many difficulties and at the end of the book, he generously shares with the reader, how to do research in this area.

However, back to the beginning. The first part of the book deals with what Andy calls the six ‘land grabs’ which make for interesting reading. He tells us that he wanted to set the present day concerns in an historical perspective because they help to inform the pattern of landownership we still see today. This concern has been of great interest to him for many years and one which is fed by the many concerns that ordinary people relate to him, regarding landownership. Ownership of land developed in this country under those people who owned it, with the help of the legal establishment. In reading this book I can now understand Andy’s passion for challenging what continues to happen, as it seems nothing much has changed, for the ordinary folk of this country.

The first land grab relates to what he calls the ‘feudal colonisation to 1500’. David I (1124-1153), who was a Norman, introduced feudalism to Scotland. Previously native aristocracy had held the land but now the monarch took it upon himself to grant privileges over the land, to the new foreign lords in exchange for money and military dues to the crown. This system of granting feudal charters allowed power to be centralised even though the land had not been first confiscated by the crown,as it had in England, arguably making the land grab ultra vires.

It has to be understood that in this feudal system, the beneficiaries did not in fact ‘own’ the land. It was in fact an obligation between superior (the king) and vassal (nobility). These obligations could take many forms including troops, services and probably best known, the feu duty, i.e. an annual sum of money.

This did not happen overnight and some parts of Scotland rebelled for a time, but eventually large swathes of Scotland were governed under this system by the 1500s. However Andy makes it clear that while it started out as a system of governance, it eventually became a ‘system of land tenure and ownership’. An extremely important point as the book moves through the centuries to the present day.

The second land grab was of church lands which took place between 1520 and 1620. The church in 1500 was ‘the wealthiest landowner in Scotland’. Additionally, it was mercenary and corrupt. The Stewart king, James IV increased his income by exploiting church lands and by church appointments of members sympathetic to the crown. James V carried on with this practice, additionally through taxation and, amongst other things, by appointing illegitimate royals to senior appointments within the church. Meanwhile the nobility was extremely unhappy about the joint power and wealth of the church and crown. Allied to this was the move against the church by the Reformation movement for the same reasons. However, John Knox had a very different idea of how the church’s wealth should be used. While he wanted to set up a church which would help the most vulnerable in what was a very unjust society, the nobility had very different motives. Unfortunately by the time that the Reformation movement had matured, most of the church’s wealth had already been plundered.

The third land grab involved the legal profession. The nobility continued to be in conflict with the crown throughout the 1600s, as they both vied for power. Enter the legal profession to arbitrate over disputes about land. Andy states that it was these three powers interacting in this way that ‘cemented the institution of landownership and landed power in Scotland’.

The nobility, having acquired land illegally, now sought to legitimise it by making laws to enshrine their rights. Additionally there were fears among the nobility about the fact that the monarchy was looking to bring the church under its control, which could result in them losing the land that they had grabbed from the church. As a result of this power struggle two laws were passed which the author considers might well be the most important laws to be made in Scotland, in relation to land. They were the Registration Act and Prescription Act, both enshrined in 1617. The former required that a register be established (which still exists today). The latter was required in order to legitimise the ownership of the lands which were stolen. It was the nobility that framed and then passed the laws, without any debate.

The Prescription Act was profound in its effect. It effectively gave ownership to anyone who had possessed land for forty years. The author is very clear about how this law was used to the advantage of those who made it. It was not made to deal with conflicting evidence about ownership, rather it was ‘the means whereby the powerful were able to call on the law to secure the advantage they sought to gain by having stolen the Church lands’. It was about securing ownership, in law, for those who had not gained land lawfully in the first place!

The amazing thing is that this very law was central in 2000 when the MacLeods of Dunvegan attempted to sell the Cuillin of Skye. Andy makes the point more than once in the book that it is illegal to be involved in theft and reset of moveable property, yet the Prescription Act protects those who do exactly that, with heritable property. In order for anyone to do this though they needed the Registration Act in order to gain title to the land, through the register, which was set up at the same time. These guys really knew how to work the system.

The issue of primogeniture, i.e. landed property being passed on through the first born male, is also dealt with here. This was to ensure that the great estates were not weakened by the division of property, by it always passing to only one child, irrespective of the impact on other offspring. This allowed power to remain concentrated in Scotland until 1964 when the law abolished primogeniture but it still allowed for the possibility of the eldest son to inherit all of the estate. In many large estates this has meant that nothing has changed and has allowed the concentration of ownership to remain relatively unchanged. The process of entail has also helped large estates to remain intact. This means that the incumbent was restricted in what he could do with the estate, to ensure that it was passed on relatively intact. Just as importantly, large estates were further protected as they could not be seized or forfeited.

Adam smith was vociferous in his condemnation of both primogeniture and entail, stating ‘They are founded on the most absurd of all suppositions, the suppositions that every successive generation of men have not an equal right to the earth, and to all that it possesses;….’.

Entails were only abolished, with feudal tenure, in 2004.

Before looking at how yet more land ended up in the hands of those who already had plenty, we are then invited to consider what was happening in the Highlands. It was not until the 15th century that the system of feudalism was more widely introduced to that part of Scotland.

Clan society began to be broken down as the monarchy sowed seeds of division amongst them in order to bring the clans under the crown and to introduce feudalism. By 1597, James VI passed an act instigating feudal tenure and requiring that anyone who owned land had to show a feudal charter in order to prove their ownership. If they did not comply, their lands were forfeited. The chiefs who signed the charter were required to send their sons to the lowlands to be educated. This along with the fact that English had to be taught in the local schools was ostensibly about civilising the population but mostly about breaking down the culture.

In the 1800s due to the land being mismanaged in the Highlands, large areas became available for sale and this resulted in an even greater concentration of land in the hands of the few.

Meanwhile the peasantry had no security of tenure until the Crofters’ Holdings Act of 1886. This law also covered fair rents and the right of crofters to benefit from any improvements they made to the property. Unfortunately, although this was a huge improvement, the law did not cover the whole of Scotland, large tracts predominantly in the east coast being missed from the legislation.

The fourth land grab was the commonties. This was communal land held in the name of communities. It was not just commons but in some cases large tracts of land. Commonties according to the author, ‘..were legally the undivided common property of neighbouring landowners over which extensive rights of common use persisted’.

By the seventeenth century a lot of the commonties had already disappeared, again the rich had used their power and influence to ‘..encroach on the ancient rights of the weak’. Landowners yet again, through their land agents used a variety of tactics to mount an attack to gain as much of the commonties as they could.

The commons had remained relatively untouched until the late seventeenth century but they then became the subject of the fifth land grab.

Royal burghs were established by a crown charter and barony burghs by a barony charter. These charters bestowed rights on these areas, so for example, it was only royal burghs that could be involved in exporting and importing foreign goods. Other charters were granted but these were two of the most important. Any surplus revenue from the operation of these burghs was paid into what was called the Common Good Fund. A law was enacted in 1491 which was called The Common Good Act which has never been rescinded. It stated that this fund was for the good of the burgh and the records kept would be inspected by the Great Chamberlain.

However the venality of burgh magistrates allowed for these funds to be passed from the coffers of the burghs into the hands of the wealthy landowners over time. By 1835 many commons had disappeared although many did continue to be held, and even occasionally commoners would go to law in order to hold onto them. The author tells a great story of how the Old Course at St Andrews was sold by the bankrupt town council to a rabbit farmer. The local people rose up as they were furious that they were being denied the right to play golf on common land. There were riots and twenty years of going to law by the commoners before they won the battle to retain their rights! There are many examples like this throughout the book which help to bring it alive. It is difficult to do justice to this book in a short review, but I am keen to stress that there is a lot of interesting reading here. Andy brings many of the factual aspects to life with interesting examples of what these land grabs meant for ordinary people.

The final land grab and the largest, was that of the United Kingdom as a colonial power. While this was at its heyday in Victorian times, the author tells of how in 1955, due to its strategic importance at the height of the Cold War, British powers decided to colonise Rockall. The story of what happened subsequently makes for interesting reading. The ownership of Rockall is still the cause of international dispute to this day. The powers that be attempted to annexe Rockall, the same tactic they used in the colonisation of many countries to impose control and to add land area to their developing empire.

The author then deals with the fact that ordinary people over the centuries were disadvantaged by the fact that the landowners who were their oppressors, were often also the people who made the law and from what can be seen, almost always to the advantage of the landowner. Furthermore, in Scotland, feudal power continued into the 1900s, one of the few countries in Europe where this was still the case.

This was largely due to the fact that from the start of the 18th century, the nobles made the law, held the land and could finance armies. The poor had no chance of success in rebelling against the strength of this power. Today, landownership is still concentrated in the hands of a small number of individuals, wielding a disproportionate amount of power over what happens on that land.

From here, Andy begins to look at who actually owns Scotland and he explains extensively the difficulty of trying to get at this information. The Land Registration Act (Scotland) was enacted in 1979 and was intended to improve on how the register of land was previously held. However, even now only about 60% of titles are shown in the register but these are mostly residential properties in towns and cities and therefore are still far from adequate in giving us a true picture of the pattern of landownership. The author takes us from the 1870s onwards, showing in depth the difficulties there have been in trying to ascertain who owns what. As he says, ‘..this question is a little tricky’.

However he then goes on to provide the detail of what he has been able to unearth and it makes for fascinating reading. The story of what happened when MacLeod of Dunvegan tried to sell the Cuillen (which was mentioned previously) is then given a chapter to itself.

We are provided with some history again, this time to do with crown lands and are given useful examples of what has, and is still, happening in relation to Scotland’s land. Andy explains how our ‘marine land’, public land and part of Scotland’s crown lands, yet instead of being administered by our government ministers, they are administered by unelected Crown Estate commissioners, in London.

There are then chapters on community buy-outs, the rise of hunting estates, farming and the agricultural tenant, crofting and Scottish forestry. These are all dealt with in some depth and demonstrate how comprehensive this work is.

The author also has much to say about house ownership as a tax efficient form of investment and how that has impacted on houses, not as homes, but as a way of making money. He notes how the housing bubble impacted on ‘key workers’ and those on an average wage and wonders about the fact that home ownership has always been sold as ‘..unquestioning good for society and the economy’. He points out that this boom in home ownership has in fact boosted land values and has resulted in those who do not own their own homes paying more in taxes. He has much more to say about home ownership and the impact on those people who cannot afford to own their homes, and on the wider society.

He then provides us with more information about commonties and Common Good Funds through specific examples. Again these make for a good story, as does his chapter on the secrecy that still prevails in Scottish landownership.

The last chapter sets out Andy’s ideas for land reform. Like the author, I would love to think that there are people throughout Scotland who are now reading this book, and like me, becoming agitated at the gross level of inequality that persists in our society. It is not just the banking and financial sector which is in gross need of overhaul, we need to be looking at how land is held and managed in Scotland and agitating our political representatives to do better for us in this regard.

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