The Fight for Scotland Continues

(Part One) So the 13 claimants for the throne of Scotland came down to the four most likely candidates.

The An t-Adhbhar Mòr (Scottish Gaelic, "The Great Cause"), a group of 104 men plus King Edward I of England, would hear all the claimants and determine who should ascend to the throne. This was modeled on the centumviri (Latin "hundred men"), the court of 105 used in Roman Law to settle questions of succession to property. They included 24 of Edward's council.

One of the points that needed to be decided by the Great Cause was the primacy of primogeniture (of which there were different interpretations) or customary law. Primogeniture could be male-preference or any first-born child. "Customary law" would split the parent's possessions among the children. The four chief claimants, who hired lawyers to speak on their behalf, were as follows:

• John Balliol, Lord of Galloway
• Robert Bruce, 5th Lord of Annandale
• John Hastings, 1st Baron Hastings
• Floris V, Count of Holland

Floris V's great-great-grandmother was Ada, a daughter of Henry, Earl of Huntingdon, who was son of King David I of Scotland. Floris claimed that when William the Lion was king, William's brother David had abandoned his right to the throne of Scotland by accepting the title of Earl of Huntingdon. This would invalidate the claims of the three other men listed above, who were all descended from Earl David. The problem was he had no proof, and assured the investigators that there must be records of this in Scotland itself if they would only search. At the orders of Edward I of England, they did search, and found nothing after several months to support his claim. Floris abandoned his claim in summer of 1292.

John Hastings was also descended from Ada, daughter of David, Earl of Huntingdon. He was an Englishman with a distinguished pedigree who in 1290 was summoned to Parliament and made a peer as Lord Hastings. His genealogical claim wasn't strong, so he took a legal approach. He argued that Scotland was not a proper kingdom, since it was only recently that its rulers were crowned and anointed. Therefore, there was no need to hand an intact kingdom over to a single person, and customary law allowed it to be split up among the heirs. The Great Cause did not take much deliberation to reject this idea and dismiss Hastings' claim.

Robert Bruce was the closest in blood to the now-defunct dynasty that started with David I. His lawyers also claimed that Alexander III (whose death started this whole difficulty) had named Bruce as his heir at a time when there seemed to be no other option. It's also worth pointing out that Bruce (as well as Balliol) had jumped at the chance to make a claim as soon as news of Margaret's death was known. Bruce argued against Floris's claim that the kingdom could be split, declaring that Scotland was indivisible and primogeniture should apply. Unfortunately for that claim, John of Balliol was descended from a child (Margaret) of David of Huntingdon who was older than the child (Isobel) from whom Bruce was descended. King Edward ruled that primogeniture through eldest surviving child pertained, and Bruce was dismissed. (Note: Edward had already established that England would be inherited by his eldest, a daughter, if he had no sons; absolute primogeniture, which means the sex of the child doesn't matter, was on his mind.)

Edward's determination of Bruce's claim happened in November 1292. Then there was a "November Surprise": Floris re-asserted his claim, and Bruce showed up to offer his public support of Floris! Floris decided to argue that the documents that would support him must have been stolen and his case should be reconsidered. As for Bruce, he did a 180° turn on the indivisibility of the kingdom. It seemed that he and Floris had probably made a deal: if Floris won, Bruce would be given a chunk of Scotland. Floris' claim was thrown out again for lack of evidence.

You can probably guess who became the next King of Scotland, and we will definitely present that case tomorrow, but today I leave you with an interesting footnote that explains the illustration.

The illustration above is of Pluscarden Abbey, currently a Catholic Benedictine monastery near Elgin, Moray. It was founded by Alexander II for the now-defunct Valliscaulian Order, which was absorbed by the Cistercians in the 18th century. In The Hague, Netherlands, there is a "certified" copy of a document that claims exactly what Floris claimed, signed and dated 1291 by the Bishop of Moray. It was supposedly found at Pluscarden Abbey. It is, of course, considered a forgery by all (I assume; there may be descendants of Floris V who have other thoughts).

See you soon.

Gavelkind

Simply put, possession of land equalled power. The laws of primogeniture and ultimogeniture existed to keep estates together. There were places, however, in which these laws did not apply and entirely different practices took place.

Gavelkind was a system of partible inheritance; that is, estates were not kept together at the holder's death but distributed among the heirs—excuse me, among the male heirs. It was used in Kent, even after the Norman Invasion (through special arrangement), although the aforementioned other methods of inheritance applied elsewhere in England.

The holder of the land, if he were 15 years old or older, had authority to pass on part (or all) of his land and create his own mini-fiefdom. He could divide it any way he liked in his will. If he died intestate, however, other rules applied:

• His widow, if they had no children, got half the estate (the other half went to the crown); if she remarried, she lived with her new husband's estate and lost her deceased husband's land.
• In the case of existing children, the land was divided equally among the male heirs. If a son had died and left grandsons, they would divide their deceased father's share.

Gavelkind existed in Ireland and Wales, and this may explain the name. Traditional Irish law divided the father's land among all the sons. Best guess is that it is from the Old Irish phrase Gavail-kinne, "family settlement." In Wales this was called cyfran, an ancient tradition passed down orally until Hywel Dda, a king who ruled most of Wales by the time of his death around 950, codified the legal system. Cyfran stated that all sons would inherit equally, even those who were illegitimate. This was great for the heirs, but bad for the land. It diluted wealth and power, which some might consider good and democratic, but it also increased competition among siblings whose estate was a fraction of the one on which they grew up. In 1535, the Laws in Wales Acts replaced gavelkind with primogeniture. Actions replacing gavelkind are referred to as "disgavelling."

I said I'd discuss Knight-service as well, but it deserves its own entry, so...next time?

Copyhold

Recent posts discussed practices of inheritance such as primogeniture and ultimogeniture. There was also, evolving from the feudal system, a practice that could pre-determine how real estate was passed from one person to another independent of genealogy.

Copyhold was a form of land ownership that lasted into modern times in England. Its name is simply derived from giving the landholder a copy of the land title, rather than the original deed. The legal owner was called the copyholder (even though the copy was physically held by his tenant).

Copyhold existed until the Law of Property Act of 1925, even though feudalism had disappeared by the early 1500s. As in feudalism, the tenant in a copyhold had responsibilities. These varied and could include maintenance of the land, service to the lord, or rent paid in money or goods. The tenant could have rights to natural resources such as gathering wood, or hunting on the land, and could be granted a certain number of animals allowed to graze on the common areas.

Copyhold could be passed on in two ways (of course the tenant could simply give the copy back to the lord and move away). The tenant could include the tenancy in a will, but the lord could recall the copyhold if he felt the inheritor could not fulfill the responsibilities involved. The holder, however, had opportunities to ask to "sell" it to another by arranging with the lord to return it and have it granted to another of the original holder's choosing.

There was also "Copyhold for lives." In this arrangement, the copyhold was actually granted with more than one person attached to the deed. A primary tenant would have the expected rights and duties, and upon his death it would automatically be passed on to the next in line. This created ahead of time a queue for how the land would be passed along. It was possible to change names in the succession by paying a fine to the lord, but this method made it more difficult for the original tenant to change his mind about his successor.

There were a few different systems to the west, in Ireland and Wales. Tomorrow I'll talk about gavelkind and knight-service, and then we'll move on.

Inheritance by the Youngest

We are accustomed to linking inheritance with a preference for the eldest, even without strict primogeniture involved. In New York State in 2021, if one dies intestate, their possessions are distributed equally among all members of the immediate family. Someone in the family, however, needs to be designated as executor, and the law offers the job to the siblings according to age.

There have been situations in the past, however, when the youngest member of the family had preference. The technical term is ultimogeniture, and was also known as junior right or postremogeniture.

The Bible notes that Isaac, Jacob, and David were youngest sons, as was Joseph with his coat of many colors. Hesiod's Theogony describes both Cronus and Zeus as the youngest of their respective families. There is nothing in Hebrew or Greek law that suggests ultimogeniture was practiced, but they saw some significance in being the youngest.

More recently, in Medieval England, ancient English boroughs sometimes practiced ultimogeniture. It was found in rural areas with Saxon citizens as opposed to Norman French-oriented areas where primogeniture was practiced.

No legal writing exists that explains the benefit of ultimogeniture, but we can conjecture, and that leads me to the picture I've included here. The Amish practice ultimogeniture. As each son reaches an age where he wants to start his own family and farm, the question arises of what he should do. His father, however, is still hale enough to farm, and is not going to turn his own farm over to one of his children. Arrangements are made to find land for the son. Elder sons might even go work for someone else or take on another trade. By the time the youngest son is ready to have a family and farm, the father is likely now old enough to retire and turn the farm over. (Handled properly, this can also avoid estate taxes.)

That might explain some of the historical reasoning for ultimogeniture: the simple fact that the father maintains the estate for as long as he can, the elder sons cannot wait around for him to die, and so they go off to find their own careers, and ultimately the youngest is still around when the father is ready to retire. In my own family history, a house that was owned from 1837 until the 1960s was taken over by the youngest person in each succeeding generation once the father died; the widow stayed in the home while the youngest son raised his own family there.

Ultimogeniture—which was all about transferring property from one generation to the next—did not preclude partible inheritance, the dividing of the land (making sure that elder sons got something as well). Partible inheritance was not welcome in the feudal system, where the lord wanted to maintain control over an intact estate. There was a practice, however, that allowed transfer of land rights that was not quite feudal and was not based on genealogy. Next time, I'll explain copyhold.

Who Should Inherit?

Primogeniture is actually a "generic" term for different systems of inheritance. The desire by human beings to create a system that determines where a deceased person's possessions goes produced a few options.

The commonly held understanding is that it means the first-born male heir—or eldest male descendant living—inherits. This was called agnatic or patrilineal primogeniture.  One variation on this—agnatic seniority—was used by the later Ottoman Empire, in which the eldest male sibling of the deceased ruler had the right to take over. The Ottomans and the Kievan Rus followed this, where succession passed through the siblings first and then back to the eldest son of the deceased.

What about females in the line of succession? Absolute primogeniture (also called equal or lineal) recognizes the eldest child regardless of sex, and did not exist until 1980, when Sweden amended its Act of Succession. Several monarchies (Netherlands, Norway, Belgium, Denmark, Luxembourg) have since changed their laws to allow inheritance from the eldest child, no matter their sex.

Queens Mary and Elizabeth from England's history existed because there were no male heirs; had there been any, those women would not have been chosen. This is now referred to as "male-preference" primogeniture. England changed to absolute primogeniture in 2013, a change that was simultaneously adopted in all related Commonwealth countries.

Matrilineal primogeniture exists, though it is rare. The Balobedu nation of South Africa are ruled by the Rain Queen, and succession passes to eldest daughter; males were completely excluded until 2021, when the late queen's son became the Rain King.

Male-centered primogeniture most likely arose from the need early on for a leader to be a military leader and to fight other tribes while females raised children. Also, a law that created a clear line of succession would help to prevent sibling arguments that could end in civil war. Younger sons went into military service or the Church. Also, the Bible offered the example of Isaac's son Esau being owed the birthright as elder over Jacob (and foolishly selling it to his younger sibling). In the Middle Ages, possession of land was a crucial part of the feudal system. Keeping large tracts of land intact was beneficial to the person at the top, and primogeniture (and entail, keeping the land together) was efficient.

Salic law, laid down in 500 and the basis of Frankish law, forbade women from inheriting, but also allowed partible inheritance, which meant estates could be divided to keep everyone happy. By Salic law, Edward III, as the eldest son of Isabella, the sister of King Charles IV of France, should have inherited the throne of France upon Charles' death in 1328. Nobles and prelates of France decided that inheritance through the mother was no longer appropriate, and denied Edward his right to the throne, providing the catalyst for the Hundred Years War. Semi-Salic law allowed women to inherit in the absence of any males. Quasi-Salic law refers to allowing inheritance—in the absence of appropriate males—not by a woman, but through her to her son.

Curiously, there was also something called ultimogeniture, or junior right, which is a tradition that allows inheritance by the youngest. Why would that be? I'll explain next time.

The Kingdom of Jerusalem

The Latin Kingdom of Jerusalem (sometimes called the Frankish Kingdom of Jerusalem) was a Western European creation established after the First Crusade (1099 CE) and lasting for about two centuries.

Its first king was Godfrey of Bouillon, and the title passed through different European dynasties, including that of the Hohenstaufens from 1228 until 1268 and the death of young Conradin, the Duke of Swabia.

Conradin inherited the title when he was two years old, though Pope Alexander IV felt he was too young to assume the role. At his death, he had no heirs, having spent his "productive" years in war and getting beheaded at the age of 16.

Conradin's death raised the question of legitimate inheritance of the title. The most appropriate link went back to the descendants of his great-great-grandmother, Isabella I of Jerusalem (1172 - 1205). There were enough descendants that disagreements arose, however. Hugh of Brienne was the technical heir due to the laws of primogeniture. Hugh III of Cyprus, however, had actually been managing the kingdom as regent for Conradin and made a sensible claim that he was the appropriate next King of Jerusalem. A third candidate, Maria of Antioch, said that she was the closest blood relation to Conradin (as his grandmother's first cousin) and had the right to the title. She received nominal support from the Knights Templar (unusual choice, but there is speculation that the Knights wanted her to be a weak ruler so they could manage more of the territory), but everyone else rejected her claim; she moved to Europe and "sold" her claim to none other than Charles of Anjou, the man who beheaded Conradin!

Hugh of Brienne and Hugh of Cyprus were cousins, and had been raised together, but their competing goals to be named King of Jerusalem damaged their relationship. The High Court of Jerusalem noted that their relationship to Conradin had been genealogically identical; the decision was to choose the elder of the two, and that was Hugh of Cyprus, who was about five years older (born about 1235). The Kingdom of Jerusalem was now in the hands of the Lusignan dynasty, who managed it until its final dissolution in 1291 with the fall of its capital, Acre, to the Mamluks.

While writing this post, I have discovered that in 1,111 posts since May of 2012, I have never mentioned "primogeniture" before or explained it. I will correct that omission on the morrow.