Restoring the Commons
Image: Black Law Commonty
The task at hand appears overwhelming. To restore the common ownership of the land & natural resources has been a goal of reformers down the ages but it has often met with limited success. Faced with legal frameworks devised and defended by elite interests, the citizen has had little hope of seeing meaningful restitution or recompense … which makes this week’s blog so sweet.
Tonight the representatives of Carluke Development Trust have been told that, after several years of investigation and tactical planning interspersed with long periods of waiting, a small parcel of ancient common land has been returned to the residents of their parish. It is a victory on an incredibly modest scale but it presents important lessons.
It was over a decade ago that I first noted from research that had been conducted by geographer, Ian Adams, what appeared to be an extant commonty (parish common) on the King’s Law north of Carluke in Lanarkshire. (1)
Image: Extract from Statistical Account of 1834-45 for Parish of Carluke
In 2005 I discovered a title to a neighbouring parcel of land (the dark blue in map below) which “a right of common grazing on the hill of commonty tinted yellow”. This was evidence that part of the “undivided common” referred to in the Statistical Account may still be common land although much reduced in extent (the yellow area is 33 acres compared to the 86 acres in the Statistical Account).
Image: Black Law Commonty (yellow)
What was even more interesting was that this parcel of land is in the middle of what was at the time the UK’s largest onshore wind-farm, Black Law, owned and operated by Scottish Power (see map below). They knew all about the land and, having concluded it was a common, decided not to install any wind turbines on it because they didn’t know who could competently sign the lease. Thus a combination of local ignorance of the existence of the commonty and unclear legal status meant that the good folk of Carluke missed out on a potentially lucrative source of revenue.
Image: Black Law Wind Farm showing how installations avoid the common.
In 2011, in collaboration with Carluke Development Trust, we began detailed research on the history of the land with a view to securing ownership for the community.(2) It was clear from the history of the site that it was a common. As far back as 1847, Thornmuir, the farm to the south, was being sold “bounded by that part of the common muir on the top of the King’s Law herein after described … and declaring that the said George Spence should have no right to that part of the common muir which is still undivided.”
For Scotland’s legal profession, however, my research was by itself inadequate since I am not a professional legal searcher. So a further sum of money had to be found to pay a “qualified” searcher who, knowing nothing of the law relating to commons, adopted the default legal view that there is no such thing as common land and that someone must own it. Two possible candidates were suggested from the 18th century (the same two that I had identified) and some effort went into working out who might be their successors. A deed was drawn up and submitted to the Keeper for her consideration. Then followed a long silence as her staff undertook the detailed research to validate the case we had argued. Eventually, last year, she agreed that no-one had a legitimate claim to own it but that the Queen’s and Lord Treasurer’s Remembrancer (a department of the Crown Office) would have to be informed. Since the Crown has a legal claim to any land that is “bona vacantia” (ownerless property), the Keeper wanted reassurance that the Crown did not wish to exercise its possible rights. (3)
Image: Black Law Commonty
At this point things became quite sensitive and complex. To convince the Keeper to register the title, we had to show that nobody had a legitimate claim of ownership. The Crown, however, wanted us to eliminate the possibility that any of the potential ancestors of the owners identified in the 17th and 18th century could legitimately make a claim before they (the Crown) would be able to consider whether they in turn wished to do so. Suddenly we were now being asked do the precise opposite of what we had spent two years convincing the Keeper of (that no-one owned it) to now showing that someone did own it (but they did not wish to claim it) which, in turn opened the possibility of the Crown claiming it and selling it! This bizarre scenario was eventually resolved in a manner which it is not prudent to publicise.
And so, last week, a title was granted by the Keeper to Carluke Development Trust. Which is, we think, a cause for some celebration.
It does, however, raise some urgent questions.
There are many more remnant commons across Scotland. One recent example I have been investigating concerns a 400 acre common in Perthshire that four landowners recently appropriated and split up among themselves without anyone in the parish knowing about it. It caused much resentment but nothing much can be done without spending considerable time and money (which nobody has) on a legal challenge. Another one in the Borders is on the verge of being grabbed by the owner of a large landed estate. Again, locals are nervous, unwilling to speak out in public and have limited funds to challenge. Many more such cases litter the Scottish countryside.
This is why, during the Carluke investigations, as a new Land Registration Bill was being debated in the Scottish Parliament, I argued that commons should be afforded legal protection by means, in the first instance, of a “protective order”. This would “freeze” any claims until a proper and impartial investigation could be carried out into the legal history of the land and avoid any land grabbing. Unfortunately, Fergus Ewing appeared to take exception to this idea and, like other proposals I made, he admitted having spent “spent zero minutes and zero seconds studying the issue”.
This was typical of the Scottish Government’s approach to the Bill which appeared to be solely focussed on the need and wishes of the legal profession, property professionals and the Keeper. Even a modest proposal that the 1695 Act that allows commons to be divided be repealed (being an act passed by the landed class to appropriate common land) was rejected by Ministers on the grounds that “The Act allows an area of commonty to be divided among the owners either (1) where holding the land as Commonty no longer suits the parties or (2) to allow enclosure and cultivation of the land. In modern common ownership, a similar end may be achieved by an action of division or sale. It is not desirable to remove this right from the owners of Commonty”.
This was stunning. A government in 21st century Scotland was defending a law devised in the 17th century to steal land.
We were aware, of course, that in claiming the Black Law commonty, we were deploying exactly the same methods as the landed class. The difference, of course, was that we were doing so to pursue the goal of restitution rather than personal enrichment. Which is why, in addition to overcoming the complexities of making much a claim, providing a means to register protective orders, and repeal the 1695 act, we also need a land restitution act to recover land that was once held in common.
Finally, this tale emphasises the fact that community ownership of land is not, as some would argue, a novel or new notion. It is a very old one in Scotland’s parishes and burghs. It it just that the landed class, their lawyer friends and successive Parliaments of property owners have conspired (through Acts such as the 1695 one which is apparently of such great importance today) to rob us of our collective inheritance.
Which is why this 33 acre piece of moorland high in the Lanarkshire moorland may represent a small but significant turning point.
*****
PS We also submitted an application to register a title in the loan running up to the commonty (a loan is a public way that is itself common land). The Keeper rejected this claim on a legal technicality. Here is a photograph looking down the loan from the common.
NOTES
(1) This is the same commonty referred to in Chapter 22 of The Poor Had No Lawyers. Ian Adams’ research on Scottish commonties (Directory of Former Scottish Commonties) was published by Scottish Record Society in 1971.
(2) I would like to share this report with you but like many others I have written, it belongs to my client, Carluke Development Trust and it contains details of our secret methods.
(3) Bona vacantia is one of a number of Crown property rights that are devolved to Scottish Ministers.
Time to bring the thieves to justice, not just of the commons, but of all the tenants improvements down the ages.
How very heartening to see a positive result against all the establishment obfuscation and elitist thievery. A way has to be found to beat the SNP into shape and to take a positive view of reform.
Beautifully done, but what a long hard road to have to take. It underlines the need for a much more all-encompassing change as well as the turgidity of the Scottish establishment, in which, unfortunately, one has to include the SNP.
A momentous piece of work Andy. Well done!
Great work Andy
Bloody well done! Keep on keeping on.
Slainte
A small but highly significant victory. Hopefully, this may ease the path of further such cases being brought to a just outcome….
The notion implicit in this blog that commonties were once the property of all residents of the parish until “stolen” from them by landowners by an Act of Parliament in 1695 is factually not correct.
Commonties used to be owned jointly by neighbouring landowners (who may or may not have been all the landowners in the parish but were typically a group of about half a dozen or fewer people). The 1695 Act simply provided a statutory mechanism whereby any one of the landowners sharing it could apply for the commonty to be divided such that each would thereafter have the exclusive right to a discrete part in place of a joint right to the whole. The 1695 Act was thus about rearranging rights amongst the elite group of landowners rather than anything being “stolen” from anyone.
Andy talks about restoring the common ownership of the land being a goal of reformers. Apart from the quibble that there never has been common ownership outside of the landed elite so there’s nothing to “restore” to a wider public, there must be a huge number of farms in Scotland, particularly hill farms (I’d hazard the guess of a majority of them), which include parts of divided commonties. What are these farmers going to think about land reformers coming along and taking chunks of their land away to “restore” to common ownership?
It’s also important to understand that Carluke Development Trust’s appropriation of this rare example of undivided commonty does not represent any recognition by the authorities that CDT has some sort of historical claim of entitlement on behalf of the parishioners.
It’s simply that Registers of Scotland have agreed on a “first come, first served” basis (i.e. anybody else could have done it) to register a provisional title in CDT’s name because nobody else seems to want to claim the commonty. This is done on the back of what’s known as an “a non domino Disposition” (a deed of conveyance granted by someone who is not the owner of the thing conveyed, in this case one Thomas Sneddon.) I do agree with Andy that there are illogicalities and inconsistencies inherent in this process. Anyway, the title granted is defeasible in the event of the true owner claiming it before CDT have physically possessed the commonty for ten years. Do they have business plan for the commonty to achieve this?
The 1695 Act was the third in a series of Acts of the 17th century to provide a legal means of dividing commonties (previous acts were in 1608 and 1647). The legitimacy of the Act is predicated on the notion that commonties were legally the common property of the heritors in the parish. That notion has no legal basis and had to be invented in order for these Acts to be so framed. John Rankine (an authority on the law of landownership) admitted as such when he wrote that “all history shows that the tendency is [the very opposite] for the powerful to encroach on the ancient rights of the weak.” Which is why Rankin, in diligently examining the origins of the commonty, concluded that “..it may safely be stated that in most, if not in all of the conveyances of commonty to be found in ancient charters or spelt out of them by immemorial possession, there is to be found not a new grant, but the recognition of a state of possession already subsisting beyond the memory of man.”
These parish commons were ancient commons and it was only legal interpretation of the feudal framework that allowed them to be regarded as the joint property of the landowners in the parish. I choose to use the word “stolen” because that accurately reflects the political, social and economic impact this act of appropriation represented.
If, of course, you accept the legitimacy of the claims of joint ownership made by the landed class in the 17th century then you are entitled to conclude that there was no theft involved. However, that places you in the same category as arguing that Britain’s appropriation of quarter of the globe was legal because the General Act of the Berlin Conference of 1885 said so.
I don’t have a copy of Rankine to refer to for its context but that quotation (“it may safely be stated”) is hardly authority for your assertion that there is no legal basis for the notion that commonties were the common property of the heritors of the parish.
Here are two authorities for a legal basis that undivided commonties belonged to the heritors (landowners) sharing it (who were not necessarily all the heritors of the parish the commonty was situated in):-
1. Green’s Encyclopaedia of the Law of Scotland, Vol III, (1896), page 142 (http://archive.org/stream/greensencyclopae03chis#page/142/mode/1up) “In historical times it [i.e. commonty] appears as common property in moorland or outfield land, held by persons owning neighbouring lands in severalty, as accessory to the lands so held.”
2. Quotations from the judgements in the case of Macandrew v Crerar (1929 SLT 540, can’t link to it), for example Lord Ormidale: “commonties were tracts of land belonging in property to more than one heritor, the extent of whose properties therein was not defined.” And Lord Anderson: “The text-writers distinguish the three cognate rights of common property, common interest, and commonty (Bell’s Prin., sections 1071—97; Bell’s Dict., sub vocibus : Rankine, Land-Ownership (4th ed.), pp. 585-609). These authorities and the others to which we were referred at the debate seem to establish that a commonty is a piece of ground belonging to one or more proprietors which is merely an accessory—an accessory both as regards title ( “ cum , communio ,” “with commonty,” etc.) and user— to a neighbouring estate or estates held in severalty.”
I’m prepared to accept the possibility it might have been different before the introduction of the feudal system in the 12th century – although does anyone really know what property law in Scotland looked like back then? But anyway, the fact that commonties belonged to neighbouring landowners was an established fact for at least the 400-500 years of the feudal era until the commonty legislation of the 17th century.
With reference to your last paragraph and the Berlin Conference, you’re muddling up what is “legal” with what is “right” (or “just” or “fair” call it what you will). There are lots of things which are “right” but illegal and lots of things which are unjust but perfectly legal. I’m not talking here about whether it was “right” that commonties belonged to a small group of landowners as opposed to a wider sector of the population, I’m talking about the facts of how it was, rightly or wrongly. (Same applies to the scramble for Africa.)
The fact that a state of affairs may have existed in the 12th century is not a good enough reason to introduce it in the 21st. You have to make the case for the change in the present day context, not just pretend the intervening state of facts doesn’t exist because you don’t happen to approve of it.
I am not arguing that lawyers claimed anything other than what they did. It is no surprise to find legal comments of the type you cite from 1896 and 1929. That had been established legal fact for 300 years. There is no legal basis prior to 17th century. The Crown’s specific demesne and the large tracts granted to church all acknowledged extensive commons with phrases like “with all commons, commonties, common woods and common grazings”. The fact that the legal mind in 17th century interpreted these as conveying definite rights arose as a matter of precaution to ensure that a landowner’s tenants had continued access to the commons that may be outside their personal estate. The fact that lawyers interpreted things this way is no surprise given who was paying them. To any dispassionate observer of the historical facts and circumstances this was “enclosure” and thus theft of the commons.
Let me make sure I’m understanding what you are contending. You are saying that it used to be the case that commonties belonged to the whole residents of the parish until – when? late 16th century? – there was some sort of reinterpretation of the law (not, apparently, legislation) which abruptly altered that position such that, henceforth, commonties now belonged to just the heritors of the parish. That reinterpretation was a necessary precursor to Phase 2 of the theft from the residents which was the legislation, beginning in 1608 and culminating in 1695, allowing these heritors to divide the commons amongst themselves.
Is that a fair statement of what you’re claiming?
If it is, can you quote any authority for it?
It is entirely unlikely to find any “authorities” to prove ownership of commons by the people, since the entire legal establishment existing in the 17th century worked only for the lairds, and were appointed by them.
And you could probably add the 18 th and 19th centuries to that as well.