Rebel, rebel - single and liferent escheat and being put to the horn

I like quirky old bits of feudal law which were once terribly important – and often fearfully draconian – but have long since been abolished. A case in point is the law of escheat whereby people who’d fallen foul of the law in various situations forfeited their property. There were two types of escheat – single and liferent – but first we need to talk about being denounced a rebel and put to the horn.

Denunciation as rebel and putting to the horn

Until the middle of the 18^th century, when a creditor had obtained a decree (court order) for payment of a debt and wanted to recover the money from his debtor, he obtained from the Court of Session an order called (for reasons which will soon become apparent) letters of horning. These were given to a messenger-at-arms (bailiff) who went to the debtor’s home to charge him to pay the debt within 15 days. If the debtor didn’t pay in time, the messenger then went to the market cross of the head burgh of the county the debtor lived in, shouted “Oyess” town-crier style three times, read out the letters of horning and then blew a horn three times (hence letters of horning). If the debtor wasn’t in Scotland, the ceremony was performed at the market cross of Edinburgh and repeated at the pier and shore of Leith (pictured) but wherever it took place the result was that the debtor had been denounced a rebel and outlawed or, in the jargon, put to the horn. The theory was that the letters of horning were an order by the king to the debtor to pay the debt and that his failure to do so constituted disobedience of the king’s commands and was therefore an act of rebellion. The fact that the debtor may not have paid the debt because he couldn’t rather than because he simply refused was beside the point.

A person could also be denounced a rebel and put to the horn if he failed to appear for trial for a crime. This followed an order called a sentence of fugitation issued by the Court of Justiciary and was called denunciation in criminal cases in contrast to the denunciation in civil cases (non-payment of a debt following letters of horning) just described. The logic was the same – the summons to court was an order from the king, disobedience of which was an act of rebellion.

Single escheat

Upon being denounced and put to the horn (whether in a civil or criminal case), amongst various other legal consequences and incapacities (for example, inability to pursue or defend a court case), the rebel’s single escheat fell. What that meant was that all his moveable property (money, chattels and also debts due to him) became the property of the king. Any moveables the rebel subsequently acquired also passed to the king. In a denunciation in a civil case, the king made over to the creditor so much of the debtor’s moveables as would satisfy the debt and then usually sold anything left over. (Transfers of property falling in any circumstances into the hands of the crown were called gifts, and the transferees donatories, even when, as was frequently the case, the transaction was, in fact, a sale by the crown.)

Relaxation

A denounced rebel could be relaxed, that is to say have his status as rebel terminated. In a civil case, that was achieved by the creditor consenting (which he obviously wouldn’t do until he’d been paid in full) or in a criminal case by the rebel surrendering himself to justice. Relaxation didn’t mean the rebel got his forfeited property back from the Crown, though – it just meant anything he acquired thereafter didn’t have to be handed over. And it might be important in connection with the second form of escheat – liferent escheat – which we’ll turn to presently after a final observation on single escheat (forfeiture of moveable property to the Crown) which is that it also fell when you were convicted of a capital offence or certain (not all) non-capital offences. (Conviction for treason inferred total forfeiture to the Crown of your heritable property as well.)

Liferent escheat

If a rebel continued at the horn unrelaxed (note the jargon again) for a year and a day after his denunciation, whether in a civil or a criminal case, then his liferent escheat fell. What that meant was that the feudal superior of his immoveable property (land and buildings - heritable property, or heritage, as we call it in Scotland) could take possession of it for the rest of the rebel’s life (or until he was relaxed, if sooner). In other words, the tenants of the property had to pay their rent to the superior instead of the rebel. But when the rebel died, even if he’d never been relaxed, his heir could resume possession from the superior.

Macrae v Hyndman – Holmains Estate

Liferent escheat didn’t prevent the rebel dealing with the title to the estate provided it didn’t adversely affect the superior’s enjoyment of it during his (the rebel’s) lifetime. This was decided in a case in 1836 called Macrae v Hyndman. In 1790, James Macrae of Holmains, in Dumfries-shire, killed Sir George Ramsay of Banff in a duel. He fled to France where he duly ignored his summons to stand trial for murder and thus he was denounced and put to the horn. A year and a day after, his liferent escheat fell and possession of Holmains was taken up by its feudal superior. Meanwhile, soon after he’d arrived in France, Macrae made a conveyance of the estate to trustees for behoof of himself and his family (that couldn’t, and indeed wasn’t intended to, defeat the superior’s liferent enjoyment of Holmains). In 1807, still in France, he directed these trustees to convey the estate on an entail to his son, another James, and his descendants whom failing his daughter, Mrs Hyndman, and her descendants although obviously none of these people would be able to take possession of Holmains from the superior until James, senior, died. That happened in 1820, still abroad and unrelaxed, and James, junior, took possession back from the superior. In 1831, Macrae, junior, tried to break the entail. We’re not told why but it’s likely he had no children to leave Holmains to and wanted to sell it. His argument was that, as his father had been a rebel and an outlaw and the estate escheated to the superior at the time, his attempt to entail it was null and void. James, junior’s, sister, Mrs Hyndman, as the next heir to Holmains under the entail after his death naturally opposed this attempt to break it. It was a moot point in Scottish law and deemed to be of sufficient importance to convene a bench of all thirteen judges of the Court of Session. They decided nine to four that James Macrae, senior, did have the power to entail the estate while he was still a rebel at the horn. The logic was, essentially, that being an outlaw did not legally incapacitate you so severely as to prevent you dealing with your heritable property in a way that didn't affect the superior’s liferent escheat (which ended with the rebel’s death so who succeeded to the property thereafter was a matter of no moment to the superior).

Abolition

On the narrative they’d been found by experience to be “highly rigorous and liable to be abused”, single and liferent escheat were abolished in civil cases by the Tenures Abolition Act 1747 (s.11). They weren’t formally abolished in criminal cases until the Criminal Justice (Scotland) Act 1949 (s.15) although had been obsolete in practice for some time before that. Despite the abolition of both forms of escheat in civil cases, letters of horning survived, albeit attended with less draconian consequences. In the middle of the 19^th century, more streamlined processes for recovery of debt were introduced and their use withered away although they were not finally abolished until the Debtors (Scotland) Act 1987 (s.89)

photo credit dreamstime.com