The feudal systemUntil the Abolition of Feudal Tenure (Scotland) Act
2000 came in to force in 2004, land in Scotland was held through the feudal system.
All land theoretically belonged to the Crown, and the Crown passed ownership to
its immediate vassals ('subject superiors' or 'Crown tenants'), who in turn could
pass on ownership to their vassals. In origin it was a system designed for a military
society, with the vassals owing military support to their superior in return for
land granted. Of course, the military aspect was long ago replaced by a monetary
payment but otherwise the outward appearance of the structure remained in many
ways unchanged until 2004.
Retours (services of heirs)Whenever a vassal
died, his heir had to prove his right to inherit. In the case of a subject superior,
a jury of local landowners was assembled to hear evidence and to decide whether
a particular individual was the rightful heir. Their findings were written up
as a return or retour to the Royal Chancery. If this was satisfactory, the Chancery
would recognise the individual as the proper heir ('serve him as heir') and matters
would then be put in hand to give him full title to his lands. All returns for
property held by subject superiors are called special retours because they explicitly
describe the property concerned. They are recorded in the records of the Chancery.
In dealing with their own vassals, however, subject superiors commonly operated
a simpler system. They merely satisfied themselves of a person's right to inherit
(they would probably know the heir personally) and then issued a precept of clare
constat, ordering their officials to grant the heir his title. While these precepts
turn up in many collections of family papers in the National Archives of Scotland
(NAS) and in other archives, there is no central register of them. Sometimes,
however, vassals had to prove to a subject superior that they had a right to inherit
a particular property, perhaps because the superior did not know them, or because
for some reason he was refusing to grant title. In these circumstances, vassals
could use the Chancery system as a form of legal process, to obtain a jury's opinion
on their claim. If the jury's verdict was favourable, the vassal could use it
to obtain the superior's consent, or to force his hand. Such returns are called
general retours because they do not go into any detail about the lands concerned.
These retours are recorded in the records of the Chancery (NAS ref. C22 and C28).
Understanding a retour
The records of retours are in Latin until 1847,
save for a period between 1652 and 1659, when they are in English. They are written
in a neat, chancery handwriting. Their structure and content are very stereotyped,
however, and the styles and translations given in Peter Gouldesborough's 'A Formulary
of Old Scots Legal Documents' (Stair Society, Edinburgh, 1985) will allow most
readers to work out what a particular retour is saying. In general, a retour begins
with the date of the inquest, and then provides the names of the jury, the name
of the deceased, the lands concerned (if it is a special retour), and the name
of the person identified as the legitimate heir.
Finding retours for counties
and burghs before 1700
The earliest Chancery record of retours starts in 1530.
To search them, there are three published volumes containing printed abridgements
(concise summaries) of all retours for the years 1530 to 1699, the 'Inquisitionum
ad Capellam Regis Retornatarum Abbreviatio' (Edinburgh, 1811-16). The third volume
includes an index, arranged by county, of persons and places and this will lead
you to relevant abridgements. The abridgements in turn will give you the references
for the original retours in the Chancery records in the NAS (NAS ref. C22). In
practice, a printed abridgement often provides all the information that most searchers
need. These abridgements are in Latin but it is normally very formulaic, and a
Latin dictionary and a little perseverance will see most people through them.
The abridgements and their index are described in the NAS publication 'Tracing
Your Scottish Ancestors' (Mercat Press, 3rd ed. 2003). Many of the larger
Scottish and other reference libraries will have a set of these abridgements.
The Scottish Genealogy Society has published a CD rom of the abridgements.
Finding retours for counties and burghs from 1700
From 1700 to date, there
are printed 'Indexes to the Services of Heirs in Scotland'. These are arranged
in sections covering ten years at a time until 1859, when they become yearly.
You simply look up the name of the heir and this index will give you the heir's
designation, details of the ancestor, sometimes the ancestor's death date, the
type of heir, the names of the lands involved if the retour is 'special', and
the retour date. This date of recording will allow you to find the original record;
if before 15 November 1847 the NAS reference has the prefix C22, and if after
that date, the prefix is C28. This printed index often provides all the information
that most searchers need. The records and their indexes are described in 'Tracing
Your Scottish Ancestors'. These volumes are printed rather than published
but they can sometimes be found in larger Scottish and other reference libraries.
Records of inquests
The records in C22 and C28 held by the NAS are
the records of the Chancery based in Edinburgh, and show the conclusion of the
retour/services of heir process. The juries who made inquest and then sent the
retour to Chancery kept their own records. The value of these inquest records
is that they can sometimes give considerably more details about a claimant's family
than is entered in the final retour. Equally, the surviving inquests will show
which claims were rejected. The records of inquests should be in the following
places:
- Before 1821: For properties outside royal burghs, try the records
of the sheriff court for the appropriate county. These will be in the NAS.
- Before
1821: For properties inside royal burghs, try the appropriate burgh court book.
Some of these records are in the NAS, many others are in local archives
- Between
1821 and 1847: The registered retour will state either that the heir was served
before the sheriff of a county or a burgh court (see above), or that the heir
was served before the sheriff depute of Edinburgh 'on commission'. In the last
case, the inquest should be in series C27 in the NAS.
- From 1847 onwards:
The inquest papers should be in series C29 in the NAS.
Shortcomings
of the retour processUnlike sasines, there was no time limit for recording
a retour and the document that you are seeking may not be registered for many
years after the date that you might expect. Similarly, it was often perfectly
possible for individuals to take up their inheritance without immediately troubling
to obtain a retour. They might get it only much later, for example, if their possession
was threatened or if they had to produce a full set of titles before they could
sell the property on to a third party.
Inheriting land by means of trust
disposition and settlement
The trust disposition was a form of testamentary
deed that allowed an individual to ensure the transfer of landed property to his
chosen heirs. In essence, a deed was drawn up transferring ownership of the land
concerned to a group of named trustees. Certain powers were reserved to the granter,
however, and this in effect meant that he or she retained complete power over
the property. Such a deed was normally recorded only after the death of the granter,
and this registration frequently included a settlement of the succession to the
granter's moveable property. Collectively, the document was known as a trust disposition
and settlement or 'TD&S'. It could be registered in a number of places. Most
likely, if it were the settlement of a major landowner it would be recorded in
the register of deeds of the Court of Session. For most other individuals, such
a disposition could be in the register of deeds either of the local sheriff court,
the local commissary court (up to 1809) or even the register of deeds maintained
by the local royal burgh. Further information on deeds and where to find them
can be found in the NAS guide to deeds.
Inheriting land after 1868
From 1868 it was legal for individuals
to pass on their heritable property (land, buildings) by way of a conventional
will. From that time on, the rather elaborate services of heirs procedure fell
gradually into disuse ('desuetude') and its formal abolition began in 1964. Nowadays
only a trickle of properties are passed on in this way. National Archives
of Scotland
Crown Copyright 2005 |
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