What
do Landed Property, Clare Constat and Sasine have to do
with the title of Chief?
We’ve
been approached by some members who have expressed an interest
in learning more about the alleged transfer or sale of
the Chief’s title in the 1700’s and whether
this was done by Clare Constat and Sasine.
The
Dunardry lands were subject to Clare Constat,
meaning the lands were inheritable property
for which something had to be given before the lands could
be transferred. In 1797, the lands were
sold and payment was made by sasine, making the transaction
a legal transfer of the landed property. To
further help you understand that the title was not sold,
here is an excerpt from Patrick Thompson’s “A
Myth Vanquished”.
The
Sequence of Sales of Dunardry lands
“Lachlan
MacTavish finally had to sell the Lands of Dunardry at
public auction due to financial difficulties; the sale
went to Major-General John Campbell of Babreck on the
2nd of January, 1786. Then Major-General Campbell sold
the lands to Neill Malcolm of Poltalloch, and Sasine
recorded was 10 Aug. 1792. The General then sold the
land in April 1797, to Simon Mactavish of Garthbeg and
Montreal, - on disposition of Duncan (sic Dugald) MacTavish,
W.S., for his father Lachlan MacTavish on Nov. 18, 1798,
for which Lachlan had paid £400 (re: letter dated
24th Aug., 1796 by Neil Malcolm of Poltallach to his
solicators) to Poltallach. This disposition of funds
from Lachlan MacTavish of Dunardry to Nilel Malcolm of
Poltallach, was an arrangement for the right of repurchase
of Dunardry, and that such right was held by Lachlan
MacTavish of Dunardry, or his heirs. Simon paid a fee
( £400 ) to Dugald MacTavish of Dunardry to
release the disposition (of repurchase), thus the agreement
(arranged with Poltallach) to repurchase the lands was
the only thing disponed. Dugald MacTavish of Dunardry,
WS. Thus Dugald gave up all claims to the Lands of Dunardry.
It is obvious that nothing else was disponed to Simon
McTavish, not the territorial title Dunardry, and certainly
not the Chiefship of Clan MacTavish, as such is a function
controlled within the jurisdiction of the Court of the
Lord Lyon.”
The title
of Chief is not landed property and
was not sold or transferred. To use a
modern day example, if Queen Elizabeth were to sell Buckingham
Palace, she would retain the title of Queen, although
the property would have been sold.
We,
Dunardry and the Board of Directors, invite you to read
the following definitions of Clare Constat and Sasine,
which have been taken directly from the Scottish Archives’ glossary
found at: http://www.scan.org.uk/index.html
Clare
constat: name of a precept (an order), in which a
superior acknowledges that it ‘clearly appears’ that
someone is heir to landed property held
of the superior, and which orders the giving of sasine.
Sasine: either the symbolic act of giving legal possession of a
piece of heritable property, or the instrument by which
such an act was proved to have happened. The origin
of the term is the same as that for the word ‘seize’ – meaning
to take possession of (in Scottish documents it is generally
rendered ‘seis’). Hence, for example
in an abridgement of sasine, someone who became the owner
of a property (by succession, gift, purchase
or whatever) is recorded as being ‘seised’ of
that property
The
Court of the Lord Lyon is the ultimate authority in recognizing
and matriculating Chiefs based upon rigorously examined
historical evidence. Even if it were possible to
sell the Chief’s title, it would have had to have
been recorded in the Lyon’s Court.
Again
we turn to ‘A Myth Vanquished’ to further explain.
“Simon
MacTavish of Garthbeg, while owning lands of Dunardry,
never matriculated for the undifferenced
arms of MacTavish, which, even if he had wanted the Chiefship, was not obtainable
as he held a cadet matriculation, issued under Letters
Patent, as McTavish of Garthbeg, not MacTavish of
Dunardry. Further since there appears no abdication
(and no nomination of Simon McTavish as Chief to Lord
Lyon: see footnote 7.), and since there is no recordation
of this at the Court of the Lord Lyon, Simon could not
have obtained the Chiefship. Simon was not the next heir ‘in
line of succession’ to the Chiefship, and such
a claim to the Chiefship would, therefore, be unlawful
(6b). The heir, Lachlan’s eldest son, was Dugald
MacTavish of Dunardry, Writer to the Signet. Therefore,
Simon could never have assumed the Chiefship, or even
be presumed to have been Chief, without first having
approached the Court of Lord Lyon to formalize such a
transfer of leadership within the clan. Further, Simon
did not matriculate for the Undifferenced Arms of MacTavish,
which would have shown he was, without question, Chief. It
appears this could not have been done as no new
matriculation for Simon appears at Lyon Court. The
Chiefship therefore must have still belonged to
Dugald MacTavish, WS.
Lord
Lyon Sir Malcolm Innes of Edingight, as a Judge of the
Realm of Scotland, was knowledgeable of the difference
between disponing land, as opposed to abdication of a
Chiefship, and all that was implied. With some certainty
we can conclude (an assumption) that Sir Malcolm
had referenced the writing of his father, Lord Lyon Sir
Thomas Innes of Learney, and certain other legal writs,
on just such as this, as he matriculated Chief Dugald
MacTavish of Dunardry, the heir, in 1997, ending two
hundred years of a dormant Chiefship. Had proof
of a disponed Chiefship been produced, by anyone, and
presented to Lord Lyon, things might have been different. As
such, Dugald MacTavish of Dunardry, and his heirs, is
declared the Chiefly line of Clan MacTavish.”
The
complete article is available at: http://mysite.verizon.net/resrz8zf/clanmactavishseannachie/id18.html
What
do Landed Property, Clare Constat and Sasine have to do
with the title of Chief?
Nothing. The
Dunardry lands were sold. The Chiefship was
not.
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