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A ‘kindly tenant’ is a now-defunct oddity in Scots law history, one that I was referred to by a family friend with an interest in the topic. In this regard, ‘kindly’ is an archaic word of Scottish origin, referring to someone or something being natural or native within a setting, or ‘in kind’ with the natural order of something. A ‘kindly tenant’ thus denotes someone who enjoys special privileges of land tenure, on a quasi-hereditary basis, attributed to ancestral custom based originally on kinship and the passing of tenancy from one generation to the next.

The Kindly Tenants of Lochmaben were those who held their lands on a tenure, which was “not feudal and yet not truly allodial… [but amounted] to full proprietorship” (see Royal Four Towns Fishing Association v Assessor for Dumfriesshire 1956). Along with this proprietorship was an inalienable right to salmon fishing in a stretch of the River Annan. It’s worth noting that all of these rights were disposable by the tenants.

The kindly tenants held this peculiar right from time immemorial, with the practice certainly being acknowledged as well established by the 18th Century (see Kindly Tenants of Lochmaben v Viscount of Stormont 1726). It could even date back as far as the 14th Century, with the original kindly tenancies apparently being granted by Robert the Bruce – although any direct relation between these original kinsmen and more contemporary kindly tenants is perhaps tenuous, if not entirely apocryphal.

The late Professor Robert Rennie, wrote of the kindly tenants: “There did exist certain odd forms of tenure which were either stated to be leases or at least resembled them… This species of tenure was restricted to an area of land known as the Four Towns of Lochmaben. The only documentation was an entry in the rental book of the King’s Steward.” This customary leasing persisted until feudal tenure ship was finally entirely abolished in Scotland with the Abolition of Feudal Tenure etc (Scotland) Act 2000. Following this, the kindly tenants, who in a feudal sense were ‘vassals’,  assumed full ownership of the land they’d long possessed. The act makes specific mention of the Kindly Tenants of Lochmaben, with §64 declaring “the interest of a kindly tenant shall forthwith become the ownership of the land”, and expressly provides for the continuance of the right to salmon fishing!

A potential difficulty for students trying to understand common law lies in identifying how and when something ‘common’ becomes law, and neither Scots nor English legal authoritative texts provide straightforward assistance. According to Halsbury’s Laws of England, a custom “is a particular rule which has existed either actually or presumptively from time immemorial and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm”. This is a slightly vague description, although perhaps ultimately necessary. According to Gloag and Henderson: The Law of Scotland: “It is not possible to formulate exact rules as to the cases where a custom will be recognised as part of the common law.”

For those interested, the English explicit requirement that the custom is from “time immemorial” and mention of inconsistency with other law marks a potentially significant distinction between the adoption of customs between Scots and English law. It’s perhaps also indicative of a deeper trend in jurisdictional development. I am, however, neither qualified nor do I have sufficient word count, to discuss this in any meaningful way!

For further reading, the late John Taylor Cameron, Lord Coulsfield’s article, Custom as A Source of Law in Scotland, provides an interesting account of some differences between the Scottish and English legal systems as regards custom. For a brief insight, he notes: “It was largely by accident that the arbitrary date 1189 was set down as the limit of  ‘time whereof the memory of man runneth not to the contrary.’ However, a custom whose long-continued observance as of right is demonstrated will be presumed to date back to 1189 unless it’s shown that that is impossible and, in practice, it’ll often be sufficient merely to show observance of the custom over a long period of time.”

If there’s any point you can take away from this historical legal peculiarity, it’s that common law can be fickle – but once it’s established, it tends to stick around! Today, it might be hard to imagine a custom such as the kindly tenants forming any substantive basis in law, and yet this highly localised novel proprietorship persisted for centuries, even past the apparent point of redundancy.