For those researching Scottish land ownership, there may be quite a learning curve in understanding the processes at play in Scotland in comparison to those found elsewhere within Britain. Whilst some records from north of the border are online, such as the Scottish Landowner Records 1872-73 collection at TheGenealogist, and valuation rolls from 1855-1925 on ScotlandsPeople, the actual concept of historic ‘ownership’ in Scotland is one that is not quite as straightforward as it may seem.

Following the Norman Conquest of 1066, feudalism was imposed on England and Wales. Through this the monarch could divide the country into parcels to loyal ‘vassals’ to act as local overseers on his behalf, in return for a tribute, originally as military service. These vassals could in turn further carve up their lands into smaller holdings, to be granted to their own vassals, who would pay a tribute to them in turn.

This process of subdivision was known as ‘subinfeudation’, and lay behind the English manorial system which saw many landholders exist as ‘lords of the manor’. Under this feudal system, nobody truly owned their portion of land, they merely held it in trust by charter or deed, although they could pass their holdings on heritably after death. However, almost as soon as it was imposed in England, the system began to erode, with land soon being made freehold rather than copyhold. By the 16th century, feudalism was largely abolished south of the border.

By contrast, feudalism was never imposed in Scotland through conquest, but via dynastic marriages between Scottish and Norman nobles. The concept was first brought to bear in the Lowlands in the 12th century, during the reign of David I, and gradually worked its way into the Highlands over the course of the ensuing centuries, with the independent kingdom known as the Lordship of the Isles to the west finally coming under the control of the Crown by such arrangements in the 16th century. With the Scottish monarch residing at the top of a feudal chain of landholding, feudalism in Scotland grew into something of an art form, keeping many a legal mind happy for centuries, rather than becoming obsolete as in England. In fact, so entrenched did it become in Scots Law that it did not disappear until the Abolition of Feudal Tenure (Scotland) Act 2000 was enacted in 2004.

If a Scottish vassal wished to acquire a portion of land (known as a ‘feu’), he or she would have to pay a sum and negotiate an agreement with the landholder holding superiority over it, which would be recorded in a ‘charter’ (deed). This would note what rights the superior retained over the land, which rights the vassal in turn expected to have in terms of its use, and what ‘feu duty’ payment would be due to the superior for the privilege.

As in England, one form of this was military service (known as ‘ward holding’), but this practice ended shortly after the Jacobite uprising of 1745-46. By the 18th and 19th centuries the most common alternative form of payment was financial, replacing a system of ‘payment in kind’ (known as ‘feu ferme’) using agricultural produce. Vassals now regularly paid sums of money to their superiors on an annual or bi-annual basis, in return for which they would gain the right to build on their plots, or develop them as they saw fit, with the agreed consent of their superiors. These buildings would be owned outright by the vassals, but not the land, which continued to be held from the superiors on chartered terms.

Once the details for such an arrangement were agreed by charter, a superior would grant instructions to have the relevant transaction recorded in a ‘Register of Sasines’. The word ‘sasine’ originally referred to a ceremonial practice by which an incoming vassal would be handed a clod of earth and a stone by the superior to symbolise the formal act of conveyance.

An unsuccessful attempt was made in the late 16th century to create a paper register (known as the Secretary’s Register) that could more regularly keep track of such arrangements across the country, but this was poorly kept. It was not until 1617 that a proper system of registration was established, and it is these Registers of Sasines as they are known that we rely on today to research land transactions.

Before 1868 there were essentially three types of registers: ‘particular registers’ for each county, in which individuals could register a transaction within that county alone; a ‘general register’, in which you could register land acquired in more than one county (and also within the three Lothian counties); and the ‘burgh registers’, for the forerunners of our modern towns, which were created as settlements with some freedoms from the burdens of the feudal system to encourage trade. In 1868 the system was reorganised into a single General Register, arranged in county-based divisions.

The majority of registers are now held at the National Records of Scotland, with digitised searchable abridgements for the particular and general registers available from 1780-1868, and handwritten minute books for earlier volumes. A useful guide is available at nrscotland.gov.uk/research/research-guides/research-guides-a-z/sasines .

As well as negotiating access to an original plot of land from a feudal superior, there were other ways that land could be obtained. It was possible to sell your holding to another person, but in legal terms this was not quite as simple as just taking some money from the purchaser and handing over the keys! The legal process in fact involved the land being theoretically returned to the superior through a process called ‘resignation’, which was then in turn conveyed anew to the new vassal with a revised charter granted (called a ‘Charter of Confirmation’).

While the new vassal would pay a sum of money to the seller for any building or development on the land, he would also have to become subject to the authority of the superior, and pay him or her a regular feu duty, in place of the seller. In addition to conveying property in this way, it was also possible to exchange portions of land between two parties as an alternative, without any monetary payment. This process was known as ‘excambion’. In all cases, the final record noting the process involved was the sasine registration.

One of the most common means for land and property to change hands was through inheritance, and this is one area in particular where Scotland also differs markedly to the rest of the United Kingdom. In Scotland, land could not be left in a will until 1868, unlike in England, where such an action was permitted from 1540 by the Statute of Wills. There were therefore two inheritance processes in Scotland prior to this point – one for ‘moveable’ estate (cash, furniture, household possessions etc), and the other for ‘heritable’ estate (land and property). To find records for moveable estate, you simply need to visit ScotlandsPeople, where the documents granted by the courts to confirm inheritance (known as confirmation in Scotland, not probate) are to be found up to 1925, with more recent holdings available at the NRS.

A system of primogeniture existed in Scotland, which meant that upon a person’s death, his or her eldest son was the first person entitled to inherit the heritable estate as the ‘apparent heir’. Eldest sons are quite often not mentioned in the ScotlandsPeople records as a consequence, because they were not entitled to a share of the deceased’s moveable assets (although there were some minor exceptions with what were called ‘heirship moveables’). To become fully invested as the new holder of the heritable property, however, the apparent heir would have to confirm that he or she was indeed the rightful heir. To do so in order to become a direct vassal of the Crown, the candidate would have to go before a jury as part of a process called the Services of Heirs, so that the Scottish Chancery could be informed of the decision.

Alternatively, to become the vassal of a person who was already a vassal of the Crown, ie a middle man on the feudal chain known as a ‘subject superior’, the vassal would simply have to obtain a document called a ‘precept of clare constant’. As with any land purchased, exchanged or gifted, the final part of the inheritance process was to have the transaction recorded in the relevant Register of Sasines.

It is worth noting that many apparent heirs often took years to complete their titles through these processes, taking up possession on a more informal basis in the interim, with limited rights. Again, the NRS has a useful guide on this available at www.nrscotland.gov.uk/research/research-guides/research-guides-a-z/inheriting-land-and-buildings .

The legal language involved with Scottish land research can be jargonistic, but once you get to grips with it the process becomes considerably easier to understand. Do persevere with it, however, for who knows, you may well discover that your ancestor once held that castle you always dreamed of!