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

The anti-Jacobite legislation

 

There are a lot of misunderstandings about what exactly was banned by legislation passed in the wake of the Jacobite rebellions.

Tartan, speaking Gaelic, gathering in groups of more than five, are all mentioned as examples but in fact none of these things was banned. One also reads that legislation deprived clan chiefs of their legal powers over their clansmen and even that English law was imposed in Scotland but neither of these things is true either.

In the first part of this post designed to bust some myths, I’m going to list the various acts of parliament that were passed following the rebellions with a quick precis of their main provisions. That’s inevitably going to be a wee bit dry but more interesting should be the FAQs following that which you can scroll straight to if you want.

(Note that, in this post, I’m not going to list the legislation or answer questions about the forfeiture of prominent Jacobites’ estates. I may write a future post about that.)

1715 - 1 Geo. I c.54 – “the Clan Act”

Note first of all the way acts of parliament were referred to in the 18th century. They didn’t have short titles (like ‘The Scotland Act 1998’ or ‘The Human Rights Act 1998’) as they do now but instead were referred by number, specifically, the chapter of the regnal year in which they were passed. Thus ‘1 Geo. I c.54’ means it was the 54th act passed in the first year of the reign of King George I. Some old Acts were retrospectively given short titles: this one’s is The Highlands Services Act 1715 but it’s more commonly – and just as misleadingly (for reasons we’ll come to) – referred to as ‘the Clan Act’.

Anyway, this act made it a criminal offence to be in possession of weapons in the Highlands (defined as Argyll, Perthshire, Angus and everywhere north of that: the highland parts of Dumbarton and Stirlingshire also being included) after 1 November 1716. The punishment was a fine between £5 and £40 on first offence; £10-£80 on second offence; and on third and subsequent offences, double the previous fine with seven years’ transportation to the colonies if it wasn’t paid.

It’s important to understand that, despite this act’s unofficial short title (the Clan Act), it applied to everybody in the Highlands, not just to clans or those who’d been out in the 1715 rebellion. There were some exceptions, however, including peers of the realm (who could keep as many arms as they wanted) and commoners whose income was at least £400 Scots/£33:6s:8d Sterling (who could keep two firelocks, two pairs of pistols and two swords).

People in the Highlands who had remained loyal during rebellion were to be paid for any arms they surrendered to the government.

Separately, some landowners held their estates on condition of rendering services to their feudal superiors known as personal attendance, hosting, hunting, watching and warding. This isn’t the place to go into what exactly that meant in practice (which was probably equally obscure at the time). Suffice it to say that the standard for the 1715 rebellion had been raised by its leader, the Earl of Mar, under the guise of a hunting party so the government thought it prudent to abolish these conditions. Henceforth, the vassals would pay their superiors an annual sum of money in lieu, to be fixed by the Court of Session failing mutual agreement. The abolition of these services applied to the whole of Scotland, not just the Highlands, and thus the Act’s official short title, the Highlands Services Act 1715, is a complete misnomer.

1724 - 11 Geo. I c.26

In the 1720s, the Highlands were found to be still awash with weapons so a new approach was taken with this Act of 1724 (which has never had a short title, official or otherwise).

Entire clans (or alternatively the inhabitants of specified areas) were to be summoned to surrender their arms, without payment, on a certain date at a certain place. Anyone so summoned found still in possession of weapons after the due date would suffer the much severer penalty on first offence of being pressed into the army for service overseas. Like the 1715 act, this only applied in the Highlands and the same people who were excluded from that act were excluded from being summoned under the 1724 act which was also subject to a “sunset clause” that it would cease to have effect after seven years.

1746 - 19 Geo. II c.39 – “the Proscription Act” (or “Act of Proscription”) or “the Dress Act”

This act doesn’t have an official short title but it’s often referred to as “the Proscription Act” (or “Act of Proscription”) or “the Dress Act”.

By the time of the 1745-46 Jacobite rebellion, the 1724 disarming Act had expired due its sunset clause so, in the aftermath of that rebellion, the Proscription Act revived it for seven years from 1 August 1746. (This was continued for another seven years by 26 Geo. II c.29.) There were some minor variations from the 1724 Act including that people convicted for non-compliance with a summons to disarm were given the option to pay a fine of £15 within a month to avoid being pressed into the army for service overseas; if the fine was paid in time, it was seven years transportation to the colonies for a second offence with no option to avoid this by payment of another fine.

This was also the act that prohibited men and boys (except for soldiers or officers in the army or militias) from wearing the ‘Highland garb’ (kilts etc. – I’ll go into more detail about what that meant exactly below) after 1 August 1747. (By 20 Geo. II, c.51, that date was extended to 1 August 1748 for everyone except landowners. Then, by 21 Geo. II, c.34, it was extended for non-landowners again to 25 December 1748 for the plaid and philibeg (little kilt) and 1 August 1749 for the everything else.) The penalty was six months imprisonment on first offence and seven years transportation to the colonies on second. The dress provisions applied in the whole of Scotland, not just the Highlands.

1747 - 20 Geo. II. c.43 – The Heritable Jurisdictions (Scotland) Act

In the 18th century, the courts of justice in Scotland consisted of a sheriff court (presided over by a judge called a sheriff) for each county which had jurisdiction over civil and criminal cases. Appeals from the sheriff court in civil cases lay to the Court of Session in Edinburgh and in criminal cases to the Court of Justiciary, also in Edinburgh and headed by the Justice General. However, this relatively straightforward system was spotted with “holes” in which private individuals held sheriffships heritably (in other words, the job passed from father to son), usually over their own estates and the people living on it. And the Campbell chief, the Duke of Argyll, was even the hereditary Justice General of Argyll. Alongside these courts, many (not all) landowners had the right to hold courts, civil and criminal, over the inhabitants of their estates. These were of two types: regality courts (which had greater powers) and baron courts (which had less powers but were more common: indeed this was the type of court the ordinary average person in the 18th century is most likely to have been involved with in his lifetime).

By the Heritable Jurisdictions (Scotland) Act 1746, all these heritable jurisdictions (courts) were abolished from 25 March 1748 except for baron courts. These continued but with their jurisdiction in criminal cases reduced to petty crimes with a maximum sentence of three hours in the stocks or a £1.00 fine (or a month in prison if not paid). In civil cases, their jurisdiction was reduced to claims below £2.00 (about £300 in today’s money). Baron courts also served to make regulations for good neighbourhood and this function survived as well until baron courts died out at the end of the 18th century. (They were not formally abolished until as late as 2004 and some people occasionally still held them for ceremonial purposes.)            

1747 - 20 Geo. II. c.50 – The Tenures Abolition Act 

All land in Scotland was owned under the feudal system and there were three sub-species of feudal tenure: (1) feu-farm (in which the vassal was obliged to pay his superior an annual rent called “feuduty” in money and/or agricultural produce: an estate held by feu-farm tenure was called a “feu” and the vassal a “feuar”); (2) blench-holding (in which the vassal was obliged to pay his superior something entirely nominal like a penny a year if asked or some whimsy like a snowball at midsummer); and (3) ward-holding. This last one was the original form of feudal tenure and the vassals were originally supposed to render a military service to their superior such as a mounted knight. By the 18th century, however, that had been obsolete for centuries and most ward vassals held their land subject to the meaningless stereotyped phrase “for services use and wont”. In fact, the only practical difference between ward-holding and the other tenures was that ward vassals had to pay their superiors certain additional payments when they married (called “marriage”) and if a minor succeeded to the estate (called “ward”) which feuars and blench vassals didn’t have to pay.

The Tenures Abolition Act abolished ward-holding. When the superior of a ward fief was the Crown, it was converted into a blench-holding for a penny a year if asked (which it never was). And when the superior was someone else, a ward fief was converted into a feu for an annual feuduty fixed at a level to compensate the superior for the loss of the vassal’s ward and marriage.

FAQs

1.            Was tartan banned?

Yes and no.

The only mention of tartan in the Proscription Act is when it says that it’s not allowed for “great coats or upper coats” (whatever they were – I don’t know!) So on the face of it, tartan was still allowed on all other garments except that most of the garments you’d expect to find tartan on – kilts, plaid and trews – were themselves banned, no matter what material or pattern they were in. But there was nothing to prevent tartan on anything that wasn’t great coats or upper coats or kilts, plaids or trews or anything else that was part of “the Highland garb”. Remember as well that these prohibitions only applied to men – there was nothing to prevent to women wearing tartan on any garment they liked.

2.            Were bagpipes banned?

Yes.

None of the legislation mentions bagpipes but I understand possession of them was prosecuted for their being a weapon (because clan regiments were supposed to march behind a piper) contrary to the 1715 Clan Act and/or the 1746 Proscription Act. (I’ve never seen a contemporary account of a prosecution of being in possession of bagpipes: if anyone has, do let me know.)

3.            Was speaking Gaelic banned?

No.

It’s true that children used to be beaten for speaking Gaelic at (English medium) school but there was nothing preventing them (or adults) speaking Gaelic out of school. An Act of the Scottish Privy Council in 1616 (which is long before any Jacobite rebellions, of course) is often mentioned in this context because it contains the words:-

That the vulgar Inglish toing be universallie plantit and the Irische language [i.e. Gaelic] which is one of the cheif and principall causis of the continewance of barbaritie and incivilitie amangis the inhabitantis of the Ilis and heylandis may be abolisheit and removit

However, this is just a narration of the king’s underlying policy objective. The actual operative enacting clauses of the Act only require the establishment of a school in every parish and say nothing about “banning” Gaelic.

4.            Was teaching Gaelic banned?

No.

It’s also true, of course, that most state sponsored education in the Gaelic speaking areas was English medium but there has never been any legislation – not even the 1616 Act of Privy Council mentioned above or the much quoted Education (Scotland) Act 1872 – which prevented Gaelic education or specifically mandated that education be English medium. And there was some Gaelic education, for example, the SSPCK in the mid-18th century and the Gaelic Schools Society in the mid 19th.

5.            Were gatherings banned?

No.

This proceeds from a misunderstanding of a provision in the disarming sections of the 1724 Act and 1746 Proscription Act to the effect that, if five or more people assembled for the purpose of obstructing the disarming process, the authorities could call on the army to assist them. But there was nothing to prevent innocent social gatherings etc.

6.            Did clan chiefs lose their powers over their clansmen?

No.

The idea that the chiefs had their powers abruptly abrogated by statute stems from misunderstandings about the Clan, Heritable Jurisdictions and Tenures Abolitions Acts.

Some (not all) clan chiefs may have had heritable jurisdictions which were abolished in 1748. More will have had baron courts where were continued (albeit curtailed) but clan chiefs’ power to settle disputes amongst their clansmen didn’t really depend on these technicalities – it depended on the personal relationship between a chief and his clansmen and that wasn’t something that could simply be abolished by the stroke of the legislator’s pen.

Similarly, some (even fewer than had heritable jurisdictions) chiefs may have had one or two (seldom more than that) feudal vassals owing them services abolished by the Clan Act and/or which were ward-holdings abolished by the Tenures Abolition Act. But the people who formed a clan chief’s regiment in the 1745 weren’t his feudal vassals, they were his clansmen. His power to call them out as a fighting force also depended on that personal relationship which couldn’t simply be legislated away. The “clan system” – which had already been in decline since the late 17th century – simply withered away in the last quarter of the 18th because it became an irrelevance in the changed socio-economic circumstances of the onset of the Industrial and Agricultural Revolutions, not because it was legislated out of existence.

7.            Was English law imposed in Scotland?

No.

I think this canard derives from a misunderstanding about the Heritable Jurisdictions Act. I think people think that, because henceforth all judges would be appointed by the Crown, the King, because he lived in London, would appoint English people as judges who would apply English law in Scottish courts. Or something like that. But not true - Scottish law countiuned to apply in all Scottish courts.

You can read the original text of the various acts of parliament at the following links:-

1715 - 1 Geo. I c.54 – “Clan Act” - here - scroll to page 306 

1724 - 11 Geo. I c.26 - here

1746 - 19 Geo. II c.39 – “Proscription Act”/“Dress Act” - here

1747 - 20 Geo. II. c.43 – Heritable Jurisdictions (Scotland) Act - here

1747 - 20 Geo. II. c.50 – Tenures Abolition Act - here