'A litigation impossible not to regret' - who owns Dunstaffnage Castle?

Picture credit: David Swift

Dunstaffnage Castle is the one amongst the trees across the bay just past Connell as you approach Oban from the north, pictured above.

It was built in the mid 13th century by one of the MacDougall Lords of Lorn, either Duncan (died 1237 x 48) or his son Ewen (died 1275). The MacDougalls prospered by backing the right horse in the struggle between the kings of Scotland and Norway for control of the western seaboard which culminated with Norway’s cession of the Western Isles after the Battle of Largs in 1263. But then they crashed and burnt early in the following century by backing the wrong horse in the Wars of Independence: Robert Bruce himself was present at a siege of Dunstaffnage following which the MacDougall chief of the day, Alexander, fled with his son John into exile in England. 

Photo of an interpretation board showing the castle in the 13th century. The outer enclosure and ditch no longer exist. Picture credit: Tanya

But the MacDougalls made a comeback when John’s grandson, another John nicknamed Gallda, Gaelic for ‘foreigner’ in reference to his long sojourn in England, managed to ingratiate himself sufficiently with Bruce’s son, King David II (1329-71), to secure the hand in marriage of the king’s niece and obtain a new grant of Dunstaffnage Castle with its surrounding Lordship of Lorn (broadly all the land from Loch Awe to Loch Leven). No new MacDougall dynasty was to emerge, however, for John Gallda died in 1370s leaving only an illegitimate son so the castle and Lorn passed to a branch of the Stewarts through their marriage to one of his legitimate daughters.

In 1463, history repeated itself when the third Stewart lord of Lorn, John Mourach (‘Leper John’), found himself with the dilemma of having only an illegitimate son, Dugald. That meant his property would pass to his brother, Walter, but the family of the husbands of his legitimate daughters, the Campbells, were casting covetous eyes: they did a deal with Walter whereby they would assist him in securing John’s inheritance in exchange for Walter granting them large parts of Lorn on favourable terms. The story goes that, his wife being dead, John Mourach decided to marry his son Dugald’s mother. That would retrospectively legitimate him meaning that he could inherit his father’s property. The wedding took place at Dunstaffnage but in the middle of the proceedings an assassin stabbed John: had the ceremony been completed before he breathed his last meaning that Dugald could inherit his father’s estates? Was the assassin in the pay of the Campbells? Whatever the truth of this story, the fact is that there followed several years of military, political and legal manoeuvring before matters were settled as follows: Dugald Stewart obtained the northern third of Lorn, from Loch Creran to Loch Leven, where he became the progenitor of Clan Stewart of Appin; the chief of the Campbells, the 1st Earl of Argyll, obtained the rest including Dunstaffnage Castle and the title Lord of Lorn; and Walter Stewart was bought off with other lands elsewhere which had belonged to John Mourach and were due to have been inherited by his daughters.

Plan of Dunstaffnage Castle from McGibbon and Ross's 'The Castellated and Domestic Architecture of Scotland Volume I

In the 17th century, Dunstaffnage Castle saw action during the Civil War (Montrose and the Covenanters et al) and then was at the centre of the 9th Earl of Argyll’s feud with the MacLeans of Duart on neighbouring Mull as the former attempted to foreclose on the latter’s estates for debt. Then it was burnt by government troops in 1685 in revenge for the Earl’s failed attempt to oppose the accession of King James VII but in the following century, with the Campbells restored to favour, the castle was repaired and garrisoned for the Government during the Jacobite rebellions. It briefly held Flora MacDonald as a prisoner in 1746 but by the end of the 18th century, when more peaceable times had descended, it was simply the residence of the Campbell of Dunstaffnage family. As hereditary ‘Captains’ (keepers) of the castle for the Earls (after 1701, Dukes) of Argyll, they lived in the gatehouse tower until that was accidentally destroyed by fire in 1810. They moved to another house nearby and the castle was abandoned.

Dunstaffnage Castle in the second half of the 18th century before gatehouse tower was destroyed by fire. Picture credit: National Galleries of Scotland

At the beginning of the 20th century, the 9th Duke of Argyll became interested in restoring the castle. With the assistance of donations from, amongst other people, Andrew Carnegie and the King (who was the Duke’s brother in law, he being married to Queen Victoria’s daughter Princess Louise), the gatehouse destroyed in the 1810 fire was rebuilt in 1903-04. This was done in complete amity and co-operation with the 19th Captain of Dunstaffnage but when the 20th Captain succeeded his father in 1908, he formed the plan of a more comprehensive restoration of the castle (along the lines of Duart or Eilean Donan Castles perhaps?) and living there again. That provoked a falling out with the Duke over which of them actually owned the castle and, in 1909, the Duke put this question to the legal test by bringing an action in the Court of Session against the Captain for declarator (Scottish legal word for a declaration) that he (the Duke) was the owner.

In support of his claim to ownership, the Duke produced a great mass of historical documents. These included a Crown Charter of the Lordship of Lorn cum castris et fortalicis (with its castles and fortalices) to the 1st Earl of Argyll in 1470, shortly after the deal was done with the Stewarts of Lorn. Another Crown Charter to the 4th Earl in 1540 specifically mentioned Dunstaffnage Castle as the principal messuage (residence) of the Lordship of Lorn. But nobody disputed that the Earls of Argyll had owned the castle at some point, the issue was whether they had at any time granted that ownership to the Captain’s ancestors. In this regard, the Duke produced a Charter by the 2nd Earl of Argyll to the Captain’s ancestor Alexander Campbell Ciar (left handed) in 1502 granting him the land around the castle later known as Dunstaffnage Estate on condition that he acted as the Earl’s keeper of the castle. That charter was in Latin but a renewal of it in 1667 was in English and it’s worth quoting in full the clause of it which set out the obligations owed by the Captain to the Earl as feudal superior:-

the said Archibald Campbell [the Captain in 1667] and his [successors] keeping in sure custodie and without hurt to us our aires and successors [i.e. the Earls of Argyll] holding the said Castell of Dunstaffneis and ever keeping and holding therein six able and decent men with armour and arms sufficient for war, and keeping of the said Castell and ane sufficient portar and watch, at least extending to 8 persons in tyme of peace. And if warr shall happin to fall out in those parts wherthrow the cuntrie shall hapin to be wasted we and our aires shall be holden on our own propper charges to be at the half of the expense to be necessarilie bestowed for the keeping and sure detaining of the said Castell over and above the saides eight personnes to be keeped therein be the said Archibald Campbell and his [successors] on ther own charges as said is. Moreover the said Archibald and his aires above [written] shall be obleist to make our said Castell patent & open to us and our foresaids at all tymes when they are requyred thereto. As also shall furnish to us and our aires and successors foresaid yearlie peats or aldin for chambers, kitchine, bakehouse and brewhouse, and for the hall also, also oft and sua oft as we or our aires shall hapin to be ther. And sicklyk the said Archibald Campbell and his aires foresaids shall be astricted bund and obliged to sufficientlie uphold and maintaine the haill house and buildings of our said Castell of Dunstaffneis in the samen conditione eyrie way as the said Archibald Campbell does presentlie, or shall hereafter happin to enter to or receave the samen, the fewars and tennents of our said lands in Lorne who were formerlie in use of doing service to our said Castle of Dounstaffneis being alwayes astricted thereto in tyme coming for cartage of all materialls necessarie for the upholding and repairing of the samen according to use and woint. As also the tenants of the foresaids lands of Pennychastell, Penny-achinie, Gannivan, Penginaphour, Garrowpengine, Kilmoir and Dongarvach [these are the lands around the castle conveyed by the Earl to the Captain and his heirs later known as Dunstaffnage Estate] doeing also service at the said Castell of Dounstaffneis als oft as wee or our foresaids shall happen to be ther and as they shall be requyred thereto with the rest of the fewars and tennents of our other lands in Lorne astricted as said is conforme to use and wont. And in lyk manner the said Archibald Campbell and his aires foresaids payand to us our aires male and successors above [written] threttie bolls meal and twa bolls bear yeirlie.

It also emerged from a still later charter that, when services of a military nature due by feudal vassals to their superiors were abolished in the wake of the 1715 Jacobite Rising, the obligation on the Captains to man the castle with six “able and decent men with armour and arms sufficient for war” plus a porter and a watchman was replaced with an annual payment to the Duke of Argyll of £20:17s Scots (£1.74 Sterling) in lieu. The obligation to open the castle to the dukes when they called and provide fuel etc. remained, though, and the import of all this, the Duke contended, was that it was clear that, while the lands of Pennychastell et al around the castle, now known as Dunstaffnage Estate, had been granted to Alexander Campbell Ciar and his heirs as Captains as their property, ownership of the castle itself had been retained by the Earls, later Dukes, of Argyll. And that the Captains’ only role in relation to it was as keepers or custodians on their behalf to keep it in repair, manned and defended as well as generally ready for the Earls/Dukes to stay in whenever they were passing.

Dunstaffnage Castle in the mid 18th century. The chimney of the gatehouse tower is on the right while the smoke is comng from the chimney of another house built along the inside of the north west wall in 1725. Picture credit: British Museum

The Captain’s response to the Duke's case was that, as fascinating as his old deeds were as a matter of historical interest, they had very little bearing on the question of legal ownership of the castle in the 20th century. To understand why, it’s necessary to go into a bit of property law. In order to establish legal ownership of a piece of heritable property (Scottish term for real estate: land and buildings), you have to have possessed it for twenty years (that was the period at the time: it’s since been reduced to ten years). “Possession” in this context means acting in relation to the property in a way that only its owner would: without a by your leave, as it were. There’s a very important proviso, however: the twenty years’ possession must have followed the registration of an appropriate title deed to the property (typically a deed of conveyance but there are other types) in your name in the Register of Sasines (known as Sasines for short and pronounced SAY-zeens: it’s the old Scottish register of title deeds since mostly replaced by the Land Register). The registered title deed doesn’t have to specifically mention the piece of property you’re claiming ownership of so long as there’s nothing in the description of the property the deed relates to which would exclude what you’re claiming (for example saying the property lies on the south side of a road when what you’re claiming is on the north side).

This is called acquiring title by prescriptive possession, or by prescription for short, and the simplest example of it in operation would be this: A conveys a house to B, the deed of conveyance is registered in Sasines and B starts to possess the house by living in it (or renting it to someone else to live in) and generally acting as its owner (not paying rent to anybody or asking anybody’s permission to alter it etc.) Twenty two years later, it emerges that the house didn’t belong to A and wasn’t his to convey to B. In fact it belonged to C. But by the operation of prescriptive possession, the house has belonged indisputably to B since the end of year twenty and C’s right to reclaim it has been cut off. And note that the result would be the same if B had sold the house to D in year twelve and the deed by B to D had been registered in Sasines and D had taken up possession by living in it or renting it etc. in succession to B. B and D’s respective periods of possession are added together and at the end of year twenty, D is undisputed owner of the house with C being unable to reclaim it from him.     

Applying this to Dunstaffnage Castle in 1909, the Captain produced two Decrees of Special Service (the type of deed which at that time passed heritable property from a deceased person to his heir), one in favour of his father registered in Sasines in 1880 and another in favour of himself following his father’s death registered in 1908. Neither of these Decrees specifically mentioned the castle as included amongst the property they transferred but that didn’t matter: all that was important was that there was nothing in the descriptions of the property in the Decrees inconsistent with the castle being included. Nor did the Decrees mention any of the stuff which had appeared in earlier Charters about the Captains acting as keepers of the castle on behalf of the Earls/Dukes of Argyll: there was no legal requirement for them to do so.

The castle from the north in 1823. Despite the fire in 1810, the gatehouse tower on the left appears to have been re-roofed. Picture credit: National Galleries of Scotland

As for the other half of the prescription equation – possession – the Captain led evidence that, since 1880 (i.e. for more than 20 years), he and his father before him had possessed the castle by carrying out, without permission from the Duke of Argyll or anybody else, such activities as appointing a caretaker to look after the castle and regulate the admission of the public; charging the public for admission to it; lodging fishermen in a bothy in the castle during the fishing season; putting up a small building in the castle called the tea-house used by the Captains and for the entertainment of their friends when visiting the castle. All of which is about as much possession as a ruined castle admits of.

Curiously, there was no mention in the context of possession of the Duke’s involvement in the restoration of the gatehouse in 1903-04. Perhaps the evidence showed that in fact the Captain had taken the lead on this with the Duke acting merely as more of a sort of high profile figurehead patron. Be that as it may, the Lord Ordinary (judge of first instance in the Court of Session) had little hesitation in finding that the Captain and his father had had prescriptive possession of the castle for more than twenty years following the registration in Sasines of appropriate title deeds in their names and the Duke’s claim to be owner of Dunstaffnage Castle was consequently dismissed.

The castle from the south east with the top storey of the gatehouse tower restored in 1903-04 on the right. Picture credit: Peter Wall

The Duke promptly appealed to the Inner House of the Court of Session. The three judges there who heard the appeal gave the Duke’s old charters a more sympathetic hearing: although it’s not normally necessary to look at title deeds from earlier than the beginning of the period of prescriptive possession relied on, which can be as short as twenty (now ten) years, the old deeds were relevant in this case, the appeal judges decided, in as much that they were evidence that the Captain and his father had not been possessing the castle since 1880 as owners, as is required to set up a plea of ownership through prescriptive possession. Rather, they had been possessing it as the Duke’s keepers, albeit not quite in the manner envisaged in the title deeds due to the castle having been destroyed by fire and abandoned in 1810. So in fact it was the Earls and Dukes of Argyll who’d been possessing the castle all along through the medium of the Captains as keepers on their behalf. And because the Argylls too had a whole series of registered title deeds to the Lordship of Lorne specifically mentioning Dunstaffnage Castle as its principal messuage (residence), the Duke was finally adjudged the castle’s owner by prescriptive possession.

Inside the courtyard with the gatehouse tower restored in 1903-04. Picture credit: Shadowgate

But although the Duke had won his case, it was a pyrrhic victory. That was because, as well as recognising the Duke of Argyll as the owner of Dunstaffnage Castle, the Court of Session also ruled that the Captains’ duties in relation to it under their charters from the Argylls involved them having the right to occupy the castle and live in it. There was no question of the Duke being entitled to dispense with the Captain’s services as keeper so nothing changed as regards the day to day use and management the castle and it had been, in the words of the Lord President of the Court of Session (Scotland’s most senior judge), “a litigation which it is impossible not to regret”.

The remains of the house along the inside of north wall of the courtyard built in 1725. Picture credit: ronnipete

In the end, nothing came of the Captain’s plans for a more comprehensive restoration of the castle, nor did he ever resume living in the rebuilt gatehouse as his ancestors had, perhaps due to the intervention of the First World War when he was a prisoner in Germany. In 1958, his son and the then Duke of Argyll, the 11th, jointly placed the castle in the care of the state, now represented by Historic Scotland. It still technically belongs to the Duke of Argyll, though, and I gather the Captain still symbolically spends three nights a year in the castle – despite the fact that the last vestiges of the feudal system were formally abolished in Scotland in 2004 thereby sweeping away all remaining obligations and privileges flowing from feudal charters such as looking after your neighbour’s castle and opening the door and putting the heating on for him whenever he wants to stay. It doesn't look from the picture below like the Captains of Dunstaffnage have been going out of their way in recent years to make the place very comfortable for the Dukes of Argyll when they call, at any rate! 

Inside the restored gatehouse tower. Picture credit: Sven Roder