Common Good

 Common Good is not well understood nowadays.  Here is an article written by Dr Lindsay Neil of Selkirk Community Council and published in the magazine of the Association of Scottish Community Councils (ASCC).   This article explains some important aspects of the Scottish Common Good Act enacted by King James IV in 1491 and still in force.   Common Good is unique to Scotland and is a valuable part of our heritage but its meaning became distorted after ‘’regionalisation’’ which meant the dissolving of the Burgh Councils in 1975.  Now have had 40 years of overgrown bureaucratic council control and this has undermined the ancient rights and powers of the old burghs. 

 Dr Lindsay Neil's article:

Common Good Ownership

Who owns the Common Good?

Common Good Funds (CGF), which are peculiar to Scotland only, are reminders of the days when Burghs were the centerpiece of Scotland ’s local administration. The monarch, in times past, used the mechanism of granting land and privileges to settlements, thereby creating Royal Burghs, in return for dues to the Royal Treasury. Landowners/nobles also created slightly different ‘Burghs of Barony’ with similar grants for a roughly similar purpose. These grants became the ‘Common Good’ of the Burgh. Trusts of various kinds exist for towns, villages etc, but are outwith the Common Good and the CG law does not apply to them.

CGFs  typically now consist of buildings, playing fields, parks, fishing rights etc. and other ‘fixed’ property in the ‘former’ Scottish Burghs and a quantity of ‘moveable assets’ such as ceremonial chains of office and pictures etc acquired out of Burgh funds or as gifts to the Burghs over the years. CGFs were used and controlled by councils for the benefit of the citizens of the burghs and only for them. Particularly since the  Local Government ( Scotland ) Act 1973, the identity of what actually comprises the Common Good of a ‘former’ Burgh has become progressively more difficult to determine owing to the passage of time, disposals of CG assets, the inheritance by Local Authorities (LAs) of inaccurate lists from the Burgh Councils and poor record keeping since 1973 by LAs. CGFs have legislation protecting them but it is not perfect.

The wording of the still extant Common Good Act of 1491 under King James IV enacted that the Common Good is ‘kepit to the commoune gude of the toun and to be spendit in commoune And necessare thingis of the burght be the avise of the consale of the toune for the tyme…’

        This makes a clear distinction between town inhabitants as beneficiaries and the relevant Burgh Councils tasked by the 1491 Act to administer the common good.

While in subsequent centuries, there was no dispute that legal title to the CG was deemed held by the Burgh Councils, this did not alter the fact that the beneficial ownership remained with the townspeople and still does to the present day.

        Nowadays, the ownership of the Common Good has given rise to much confusion in the minds of many, not least in the thinking of some members of the legal profession itself. An example of this is a recently published book on Common Good Law* which states baldly on page one, that the Common Good is ‘owned outright’ by the LA.  This misguided opening statement is wrong, has introduced unnecessary confusion and, at the very least, should be challenged and not relied upon. The word ‘outright’ is incorrect and the author should write and publish a correction of this assertion. His misunderstanding and that of others who now quote him, arises from a failure to appreciate the difference between the ‘vesting’ of a title giving legal ownership and the actual beneficial ownership. An analogy, although not exact, is that of offshore nominee trusts where the nominees are the legal owners, but the beneficiaries are UK residents.

        The ‘transfer of ownership’ of CGFs that occurred at the enactment of the Local Government (Scotland) Act 1973 – actually on May 16^th 1975 - involved the transfer of legal title only to the new District Councils and the beneficial ownership remained with the inhabitants of a ‘former’ Burgh. The LA was given powers under the act to administer the Common Good for the benefit of the Burgh and its inhabitants, and the Act gave powers to all elected local councillors to act as what constituted ‘trustees’ of all Common Good Funds within what eventually became a unitary authority area under a similar local government act of 1995. This ‘trusteeship’ carries a fiduciary duty which takes equal precedence in law over their other duties as LA councillors but few councillors are aware of this fact. Conflict of interest is inevitable.

        If the 1973 Act had had the intention of confiscating all CG assets and giving them to LAs, it would have said so; it didn’t, instead it went into detail as to how the assets should be administered by LAs without tampering with the question of ownership apart from transferring the titles by vesting.

       

        Because the administration of Common Good Funds (CGF) prior to 1973 varied from place to place, that part of the 1973 Act relating to CGFs was intended to remove irregularities and introduce a measure of commonality throughout Scotland in their management. This it largely achieved, but gave rise to several problems which remain. They are:

        1) The 1973 Act was drafted in such a way that allowed different interpretations of it by individual LAs. The act and subsequent revisions specify that CGFs must be administered ‘having regard to the interests of the inhabitants’. Because this passage is legally imprecise, it allows a range of options to a LA in its observance. LAs can choose to override the expressed opinion of communities through their CCs over what should happen to their CGFs, and CCs are powerless to do anything about it.unless they embark on expensive legal action they can’t afford.

        2) In general, the often incomplete and inaccurate registers of ‘fixed’ and ‘moveable’ assets inherited by LAs from Burgh Councils, have not been investigated, corrected or kept up-to-date.

        3) Some LAs have assumed ownership of CG assets. Many CGF assets are no longer administered by the LAs as CGF property but are administered by different LA departments in the mistaken belief that they are ‘council property outright’ and due to the passage of time their association with, and ownership by the CGF has been largely forgotten.

        4) Under the Act, a community has virtually no control over the administration of its own CGF which it did have during the aegis of former Burgh Councils.

        5) Elected councilors, who are the ‘trustees’ of all CGFs, may reside elsewhere than where the CGF exists, are often unfamiliar with the extent of it and are largely unfamiliar with Common Good law. Little attempt is made by LAs to correct this.

6) Some LAs have chosen to convert the CGFs in their stewardship into charitable trusts. The effect of this is to render CGFs less subject to scrutiny by the beneficial owners, the accounts less available for public scrutiny, and puts the assets of the CGF in jeopardy although there are complex implications to selling trust assets which are still the subject of legal debate.

        Community Councils will recognise that the administration of CGFs is complex; their administration is an irksome and disproportionately onerous burden for an LA and it comprises a relatively small amount in terms of their overall budget. Investigations to assign ownership correctly, is both time consuming and costly, and LAs claim a ‘lack of resources’ to do this. It is nevertheless the duty of an LA to carry out the obligations conferred on it by the various acts and be punctilious in doing so. It should therefore be our collective aim as community councils to co-operate with and assist the LAs in achieving this, getting the registers in order, identifying what belongs to the Common Good and what does not, before time and usage makes it too difficult. It is much too important an issue for Community Councils, as the elected body in closest touch with local affairs, to ignore.

It may involve lengthy research of old Burgh/town council records, Sasines etc and speaking to locals who remember what might have been part of the CG. It is time well spent, very often fascinating and a sacrifice of time and effort worth making for your community. It took us 13 years to restore to the CG the fishing rights in Selkirk which the Crown took in 1911. We are currently claiming restoration of a park from the LA, chasing unpaid rents and doing a forensic inspection of the CG accounts. Our research still goes on and we will be claiming back more. Google Andy Wightman’s excellent paper ‘Common Good – A Quick Guide’  for an overview

 http://www.scottishcommons.org/commongood.htm 

 and write to John Swinney MSP ands tell him if you want more involvement in your Common Good. Do it now!

Without doubt, the most reliable guardian of any property is the owner, not the title holder.

You own your Common Good. Remember that.

Dr Lindsay Neil

Vice Chairman,

The Royal Burgh of Selkirk and District Community Council

Dr Neil’s article together with Andy Wightman’s Quick Guide to Common Good helps to put into context  controversy which still surrounds Langholm’s  Kilngreen, the most important part of the town’s Commonty  established by a Court of Session ruling in 1759. 

A future blog will describe how the Duke of Buccleuch nevertheless grabbed the Kilngreen when it did not belong to him, then generously ‘’donated’’ it to the people of Langholm in 1922, an example of the kind of legal theft covered by Andy Wightman’s book,   ‘’The Poor Had No Lawyers’’ !

 

Campaign for Borders Rail

A campaign to support

http://www.scotsman.com/news/transport/call-to-extend-borders-rail-link-to-hawick-1-3053542

http://www.campaignforbordersrail.org/

This is a campaign that people  in Dumfries and Galloway, especially Annandale and Eskdale should  actively  support. The aspiration is for full restoration of the Waverley line to Carlisle envisioning a project carried out in stages to include

''....Reconstruction of the railway from Longtown (near Carlisle) through Newcastleton to Riccarton and Kielder, for timber and military traffic, removing substantial numbers of lorries from public roads serving the Kielder, Wauchope, Newcastleton and Kershope forests......'' 

This is the vision that was absent from the massive afforestation  in the post war years. With a lack of joined-up thinking planners were in love with the internal combustion engine, seeing roads, cars, heavy goods vehicles through rose-tinted glasses.  Railways were abolished in favour of road transportation leading  to todays insanity in which every day we see dozens of  40 tonne  lorries trundle through the streets of our towns, (eg on the A7 Selkirk and Langholm).  Probably all of this load could be carried on one train. 

Transport Scotland says of trunk roads, ''Due to their strategic importance it is general practice that trunk roads should be kept free from obstruction to permit the efficient movement of goods and vehicles...''   There is nothing ''efficient'' about this!

Most of the goods and many of the people seeking to travel between Edinburgh and Carlisle could do so by train if the line was reconstructed.

What I'm saying  above also reflects what I previously said in my earlier blog  ''The Story of The Mercat Cross''.

Quote

from Mercat Cross blog:  
''September 2021 will be the 400^th anniversary of the founding of the Burgh of Barony of Langholm.  Before that we should be taking steps to regenerate our High Street. This must involve taking steps against heavy freight traffic which dominates the street undermining our civic wellbeing.   The intimidating heavy lorries should be re-directed to motorway or rail, and speed limits in the High Street should be reduced to 20mph. Pavements must be widened with priority  given to pedestrians. Footfall, the great dream of the shopkeepers, is done on foot, not in a car.  Making the urban environment more pedestrian-friendly will mean  giving more space over to people to walk about. It is pedestrians that go to shops and cafes, not cars. The plethora of ugly road signs disfiguring the townscape should be removed and car parking restricted not just for the sake of the ‘traffic flow’, but to enhance the experience of people on foot or cycle.    All successful towns have an attractive central open public place where it is possible  walk or sit in peace and where people can chat without the roar of traffic. We need in the middle of the town a relaxing place where it’s possible to meet and where community events can take place. A Heritage Trail is pointless without taking action to save our townscape heritage and ''place-making''  places worth being in.  If we want to become a  ‘’heritage town’’ attractive to visitors  we could alter the vehicular access in and out of Parliament Square and create a large area of the Market Place where the Mercat cross and Malcolm Statue could be relocated to their original site.''
Unquote.

The Story of Langholm Mercat Cross

This article was written in 2011. It was intended to be a double page feature in the Eskdale and Liddesdale Advertiser. However the editor refused to print it because the story describes the sequence of events and criticises some of those involved.  Apparently council officials, councillors, members of the local establishment cannot be criticised. If I had known it would never be published I would have included  more of the research findings and gone into more details  instead of reducing it to its bare bones. 

In 1996-98 an area in the heart of Langholm’s Old Town, (Parliament Square and Jouker’s Close), was converted into a car park.   The project involved demolition of several buildings, and construction of a new road through the Library Gardens. This entailed restoring and moving the Sir Pulteney Malcolm statue and the Telford Arch in the Library Gardens.   The ancient Mercat Cross was not moved or restored, but its appearance was altered because its old stone plinth was buried under soil and turf.

Apparently nobody noticed the alteration despite the fact that this spoiled the architectural proportions of the Cross and debased its historical and social significance. The reduced height of the Cross and absence of its plinth has made the ‘interpretation’ of the Cross  more difficult.  Moreover, the underground plinth and lower section of the shaft became subject to erosion by groundwater.  Previously rainwater ran off the top of the plinth as intended by the mason who built the Cross hundreds of years ago. 

To explain the history and significance of the Cross in Langholm’s heritage research of the ancient  and recent history of Langholm and its Cross has been necessary. It has included  investigations under Freedom of Information legislation to find out exactly how it came to be so badly treated in 1996-98.  

 

The Mercat cross between 1967 and 1998

A public consultation was held for the car park project. The Scottish Civic Trust commented on the plans on view.  They objected to ‘’ the ‘Telford Arch’ and Mercat Cross being re-sited on grass. They need a solid pavement base or at least a gravel bed to fit their proper context.’’    John and Robert Hyslop’s book Langholm As It Was (1912) describes how the cross originally stood on the ‘’cobble-paved’’ surface of the Market Place.   This validates the Civic Trust  recommendation for a solid pavement for the Cross ‘’to fit its proper context’’.   The council planners seemed to agree by saying ‘’all of the concerns of the Scottish Civic Trust are valid and their advice regarding the detailed finishes of the scheme is welcome. Due account will be taken of contract method statement’’.

However whilst they DID provide cobbles at the Telford Arch they failed to do so for the Cross.  The concept of a ‘’solid base’’ for the Cross was ignored.  The entire plinth, plus part of the shaft was buried making nonsense of the Civic Trust concept. 

The planners were inconsistent and careless when they submerged   the Cross making its pillar  stick  up out of grass in 1998.  For over 13 years now the Cross has been in need of proper restoration for reasons of historical authenticity and to save it from further deterioration. 

Throughout 5 years of campaigning, and explaining the facts about what happened, officials continued to claim that the Cross’s repair and restoration is not their responsibility.  It became necessary to seek supporters in a campaign for restoration.  

John Hyslop had been the Honorary President of the Eskdale and Liddesdale Archaeological Society whose present-day constitution claims to ‘’protect and preserve the local heritage.’’  It is   disappointing that the Archaeological Society failed to do so.

The Burgh and the role of the Cross

the plinth buried in 1998

In every Scottish burgh the Mercat Cross had an important function and role.   The Burgh of Barony of Langholm was created by King James VI on 19^th September 1621 by his grant of a charter to Lord Nithsdale.  The Baron was granted various rights including: to have a public hall, erect a Market Cross, hold two free fairs with a right to the tolls, choose bailiffs and burgesses.  The erection of the Cross was necessary for any commercial transactions to take place in the new Burgh.  Before a fair or market could be held, a proclamation had to be made from the Cross.  The precise date when the Cross was erected is unknown and it might even have existed before 1621, (as suggested by Derek Bryce in his book ‘’Symbolism of the Celtic Cross’’ 1989).   In any case   the success of the ‘enterprise’ of the Burgh of Barony launched in 1621 is reflected in the fact that within a century the number of annual fairs had increased from two to at least six.  Without proclamations made from the podium of the Mercat Cross no such enterprise or economic development in Langholm would have taken place.

Many other burghs lament the loss of their ancient crosses.    Here in Langholm is the original, old Cross with a fascinating history.  According to the Hyslops it disappeared mysteriously around 1840 when the Malcolm Statue was erected in its place, but was discovered twenty five years later, buried under the Market Place.  It was then moved to the chief magistrate’s home, Greenbank.  After another 100 years, it was moved to the Library Gardens in 1967.  It is undoubtedly the oldest piece of built heritage in the town.   The Cross was a powerful symbol of the Burgh’s rights and privileges.  Architecturally it formed a focus and podium from which the Town Criers stood and made public announcements.  Significantly, when the Crier ‘’proclaimed the Langholm Fair’’ he stood on the Cross’ podium.  This is how the ‘Simmer’ Fair became intertwined with the Common 
Riding, whose annual celebration has a profound meaning for the townspeople.

Langholm Burgh of Barony and the Cross 

In 1996 the planners described the Mercat Cross as a ‘’remnant of the town cross’ but this was wrong. The original, ancient Cross was virtually intact as proved by the old photograph (daguerreotype) dating from circa 1840 (picture No 1424 at Langholm Archive website) All photographs, drawings or images in existence show that the Cross looked exactly thesame as it did in the Market Place in 1840.   There is no evidence that the Cross stood on a set of concentric steps as speculated at one point by the Hyslops and claimed in a recent tourist booklet.  It is most likely that the Cross has never changed in appearance except when buried.   Referring to it as ‘’a remnant’’ only seems to have enabled the project managers to treat the Cross carelessly.

In shape and form this Cross might be regarded as ‘crude’ if compared to some of the elaborately-designed Crosses in larger towns. However by the late 18th Ce

ntury many towns had their Crosses demolished under ‘street improvements’.   Luckily, owing to the uniquely peculiar circumstances of our Cross’s mysterious burial and resurrection, as described by the Hyslops, it has survived and should be cherished.  Regretting their loss of heritage many towns erected replicas or inauthentic versions.     Langholm’s  original authentic Cross deserves far greater respect from conservationists and townspeople. 

Social conditions in Eskdale in 1621

To understand this Cross, and the new Burgh’s cultural and historical context, it has to be appreciated that even after the Union of the Crowns, Eskdale was still undergoing ‘’pacification’’.  In founding a Burgh of Barony the King was colluding with the feudal barons  to  suppress once and for all the old reiving  families and end any remaining traces of a pre-feudal  communal society.  In the early 1600s border ‘names’ such as the Armstrongs were being summarily executed or deported.

A Cross built here could never be conventionally ‘beautiful’.  Instead it has an aesthetic reflecting the conditions in which the new Burgh emerged.  The simple, crude, Cross was in tune with Eskdale’s rough, turbulent history.  The new Burgh was small and poor.  The Cross reflects the Scottish virtue of ‘’makin’ muckle o’ sma’ means’’.   Consisting only of a plinth and pillar carved in local sandstone, surmounted by an oval granite boulder roughly engraved with a Celtic cross  it is precisely this ‘crudeness’ and absence of pretentions we should admire.  Whether sculpted and erected in the early 1600s or even earlier, this Cross exhibits an honest, defiant quality recognisable in the living tradition of the Common Riding. 

the plinth eroded by rainwater

Winning the Argument-
 

Eventually after years of denial from local councillors I presented my Freedom of Information research together with the full history of the Cross to Historic Scotland in Edinburgh and the Conservation Officer in Dumfries.  These authorities then had no alternative but to agree that the mistakes of 1998 must be rectified.   Their decision was that the minimal repairs to the Cross proposed by the community council (only grouting at top and bottom-no raising of the plinth) was inadequate.  It must be restored to its pre-1998 appearance and ‘’shall include a scheme to raise the plinth to be set as originally intended and to protect the plinth from ground moisture’’.  This decision was vital because otherwise the Cross would have been left submerged possibly forever. 

The specialist conservationist, (Graciella Ainsworth Conservation) has provided a detailed specification for ‘’raising the cross’’ which has been approved by Historic Scotland and the Conservation Officer in February 2011.

Whatever councillors or officials might say, the Mercat Cross should be classified as a Common Good, like the Kilngreen and Town Hall.  This story shows how the Burgh of Langholm was virtually founded on the Cross.  Its restoration costs should be financed together with the Town Hall. 

 
    The Mercat Cross at Greenbank ( Langholm As it Was 1912) 
Mercat Cross standing in Market Place 
(Daguerrotype) c1840

A Vision 

September 2021 will be the 400^th anniversary of the founding of the Burgh of Barony of Langholm.  Before that we should be taking steps to regenerate our High Street. This must involve taking steps against heavy freight traffic which dominates the street undermining our civic wellbeing.   The intimidating heavy lorries should be re-directed to motorway or rail, and speed limits in the High Street should be reduced to 20mph. Pavements must be widened with priority  given to pedestrians. Footfall, the great dream of the shopkeepers, is done on foot, not in a car.  Making the urban environment  more pedestrian-friendly will mean  giving more space over to people to walk about. It is pedestrians that go to shops and cafes, not cars.

The plethora of ugly road signs disfiguring the townscape should be removed and car parking restricted not just for the sake of the ‘traffic flow’, but to enhance the experience of people on foot or cycle.    All successful towns have an attractive central open public place where it is possible  walk or sit in peace and where people can chat without the roar of traffic. We need in the middle of the town a relaxing place where it’s possible to meet and where community events can take place.

A Heritage Trail is pointless without taking action to save our townscape heritage and ''place-making''  places worth being in.  If we want to become a  ‘’heritage town’’ attractive to visitors  we could alter the vehicular access in and out of Parliament Square and create a large area of the Market Place where the Mercat cross and Malcolm Statue could be relocated to their original site.