| Burke's Peerage Library The Kingdom in Scotland
Burke's Landed Gentry - The Kingdom in Scotland
FAREWELL TO FEUDALISM
By David Sellar, Honorary Fellow, Faculty of Law, University of Edinburgh
"The feudal system of land tenure, that is to say the entire system whereby land is held by a vassal on perpetual
tenure from a superior is, on the appointed day, abolished". So runs the Sixth Act to be passed in the first term of
the reconvened Scottish Parliament, The Abolition of Feudal Tenure etc (Scotland) Act 2000. The Act is welcome. By
the end of the second millennium the feudal system had long outlived its usefulness, even as a legal construct,
and had few, if any defenders. As the Scottish Law Commission commented in 1999,
"The main reason for recommending
the abolition of the feudal system of land tenure is that it has degenerated from a living system of land tenure with
both good and bad features into some-thing which, in the case of many but not all superiors, is little more than an
instrument for extracting money".
The demise of feudalism brings to an end a story which began almost a thousand years ago, and which has involved all of
Scotland's leading families.
In England the advent of feudalism is often associated with the Norman Conquest of 1066. That Conquest certainly marked
a new beginning in landownership which paved the way for the distinctive Anglo-Norman variety of feudalism. There was a
sudden and virtually clean sweep of the major landowners. By the date of the Domesday Survey in 1086, only two major
landowners of pre-Conquest vintage were left south of the River Tees holding their land direct of the crown: Thurkell of
Arden (from whom the Arden family descend), and Colswein of Lincoln. Both, incidentally, bear Scandinavian rather than
In Scotland the story was quite different. The feudalism which took root in Scotland was certainly Anglo-Norman in form,
but it was promoted by the kings of the Scots themselves, and its advent was both later and more gradual than in England.
The reigns of David I (1124-53) and his grandsons Malcolm IV (1153-65) and William I (1165-1214) saw the spread of the
feudal system. Malcolm and William, indeed, were famously said by a contemporary chronicler to have held themselves out
as Frenchmen by race, manners, language and culture. They were no doubt well aware of their descent from Charlemagne
through their grandmother Elizabeth of Vermandois. Certainly at that time many from outwith Scotland
- Normans, Bretons,
Flemings and others - were granted land. The Flemings, it has even been claimed, brought the science of heraldry
to Scotland, although that claim has still to be fully made out. Prominent among the Normans was Robert de Brus, granted
Annandale by King David for the service of ten knights. Other Norman families included the Somervilles, Sinclairs, Hays
and Haigs, among names which are still familiar, and Avenel, de Morville and de Soulis among those which are not. The
most prominent family of Breton stock were the Stewarts whose ancestor was dapifer or steward to the Bishop of Dol in Brittany.
Many Flemings were granted land in the valley of the Clyde, including Thankard, who gave his name to Tankerton, Wice in Wiston,
Lambin in Lamington and William, the ancestor of the family of Douglas. Further north, Freskin the Fleming was granted land
in Moray, and founded the families of Murray and Sutherland.
However, in contrast to England, there was no wholesale displacement of native lords in Scotland. As Professor Geoffrey
Barrow has pointed out, in 1200 all the earls north of Forth and Clyde were still of Celtic descent; and as late as 1286,
eight of the earldoms in Scotland were still in the hands of those of native stock. Many native lords were granted or
confirmed in their lands in feudal form. As early as 1136, the leading Celtic magnate, the Earl of Fife, had a feudal
grant of his earldom. Other native landowners, such as the Earls of Atholl, Strathearn and Lennox are soon to be found
making feudal grants to their followers. Within a few generations, regular intermarriage and the Wars of Independence
had elided most of the differences between native and incomer, although not those between Highlander and Lowlander.
Terminology and Types of Tenure
The terminology of feudalism was soon in universal use: the superior who granted the feu;
the vassal who rendered feudal service in return for the grant; and the all important ceremony of sasine
(seisin), by which the vassal was given symbolic possession by the superior or his representative on the lands in
question, and without which the vassal could not be said to be properly infeft, or "clothed with" the feu.
There were different types of feudal tenure, the classic example being military tenure, in which the return for infeftment
was military service. On the west coast there was a distinctively Scottish variant of this. Grants might be made in return for
a specified naval service: thus Robert I granted Colin Campbell the lands of Lochawe and Ardscotnish (Kilmartin) in
free barony for the service of a galley of 40 oars; while David II granted Malcolm MacLeod two thirds of Glenelg for a
galley of 26 oars and Torquil MacLeod the lands of Assynt for a galley of 20 oars. Another type of tenure, as in England,
was blench tenure, in which the service required was more nominal. Thus the barony of Penicuik, near Edinburgh, was
held for the service of blowing three blasts on the horn on that part of the burgh muir of Edinburgh known as the Forest of
Drumsheugh when the king hunted there; the Douglases held Galloway between the rivers Nith and Cree for the annual rendering
of a white rose at the castle of Dumfries; and the Campbells held Kilmun in Cowal for the rendering of a pair of gloves at
the Glasgow Fair.
However, the type of feudal tenure which came to pre-dominate in Scotland was tenure in return for a sum of money, generally
paid twice a year, at Whitsunday and Martinmas. This was known as feu ferme tenure, and the sum
due in perpetuity was known as feu duty. For example, the burgh of Edinburgh was granted its lands in feu in
1329 for an annual payment of £34.13.4d.
One difference between England and Scotland was the position regarding subinfeudation, that is, the granting of sub-feus
which added another vassal to the feudal chain. This was at first competent in England, as in Scotland, and could lead to
longer and longer chains of tenure, and ever more complicated questions of ownership. In the thirteenth century, for example,
the lands of Paxton in Huntingdonshire were held by Roger of St German of Robert of Bedford who held in turn from Richard of
Ilchester who held of Alan of William le Boteler who held of Gilbert Neville who held of Chartres who held of Dervorguilla
Balliol who held the lands of the King of Scotland who held them of the King of England! In England further subinfeudation
was prohibited in 1290 by Edward I's statute Quia Emptores. In Scotland, however, subinfeudation continued to be
competent for as long as feudal tenure survived, being used in the twentieth century, for example, by builders and property
Succession and Jurisdiction
Feudal holding also affected succession to land and patterns of jurisdiction. Scotland followed England in favouring males
to females in succession to heritage (land), and in operating primogeniture among males related in the same degree. When
the succession did open to females, the property was divided equally between those in the same degree. Remarkably, these rules
continued to be followed by Scots law until 1964.
In matters of feudal jurisdiction, however, Scotland resembled the Continent rather than England, in that for many hundreds
of years franchise jurisdictions existed in Scotland, alongside the ordinary courts of common law. Grants might be
made in liberam baroniam, that is, in free barony, or in liberam regalitatem, in free regality. These rights of
jurisdiction were much prized. Barony jurisdiction included infangthief, the right to try a thief found with the stolen
goods still on him, and also the right to try a manslayer caught red-handed. Both offences incurred the death penalty, and many
barons were proud of their gallows, which were usually prominently displayed. As the name suggests, regality jurisdiction
conferred a semi-regalian power, which covered all save the pleas of the crown. These franchise jurisdictions were granted in
considerable numbers and continued to be a notable feature of Scots law until the eighteenth century.
This could result in a remarkably complex patchwork of jurisdiction. For example, the lands in the small Highland glen of
Glen Urquhart, near Inverness, were divided between at least five separate baronial jurisdictions in the sixteenth century.
Most lay within the barony of Urqhuart possessed by John Grant of Freuchie, chief of the name, but some lay within the barony
of Corrimony belonging to his son Iain Og, and others lay in the barony of Glenmoriston, belonging to his illegitimate son Iain
Mor. The lands of Achmonie in the glen were part of the Bishop of Moray's barony of Kinmylies, while Buntait, at the top of
the glen, belonged to Fraser of Lovat.
Scotland produced one writer on feudal law of European eminence, Thomas Craig (1538-1608). Craig's Jus Feudale,
written about 1600, is not only a brilliant exposition of the feudal law of Scotland, but also an essay in comparative legal
history. Craig was able to discern the origins of both Scottish and English feudalism, and to set both in a European context.
His Jus Feudale was used as a textbook on the Continent, an edition being published in Leipzig as late as 1716.
Craig's motives for writing were complex: in part he wished to support King James VI's scheme for an encompassing union of
England and Scotland, but in part also he wished to glorify the feudal system for which he had an almost mystic regard.
Feudalism, wrote Craig, had so commended itself for centuries past to the nations of Europe that there "is not in all
Christendom a single people (not excluding the unspeakable Turk) which has not freely borrowed from it in forming its own
laws and institutions." Craig suggested to James VI that feudalism, "in the willing hands of a heaven-endowed prince", might
be used for "the perfect attainment of law and equity, than which nothing in the world could be more excellent, nor more pleasing
to Almighty God whose living image on earth a prince is."
Register of Sasine 1617
Shortly after Craig's death, a remarkably forward looking statute of 1617 set up a public land register, known the Register of
Sasines, in which all documents conveying title to land were to be recorded. The Register became one of the glories of Scots
conveyancing, and has been maintained ever since. The symbolic ceremony of granting sasine, however, also continued.
A notice on the castle esplanade of Edinburgh presented by the Province of Nova Scotia in Canada records that:
"Near this spot in 1625 Sir William Alexander of Menstrie, Earl of Stirling, received sasine or lawful possession of
the royal province of Nova Scotia by the ancient and symbolic ceremony of delivery of earth and stone from Castlehill
by a representative of the King. Here also (1625-1637) the Scottish baronets of Nova Scotia received sasine of their distant
Franchise jurisdiction continued until the Jacobite risings of the eighteenth century. Readers of Waverley
will remember Cosmo Comyne Bradwardine, Baron of Bradwardine and Tully-Veolan, who boasted that his lands had been erected
into a free barony by King David I, "cum liberali potest. habendi curias et justicias, cum fossa et furca [lie pit and gallows]
et saka et soka, et thol et theam, et infang-thief et outfangthief, sive hand-habend. sive bak-barand." "The peculiar meaning of
these cabalistical words", continues Scott, "few or none could explain; but they implied on the whole, that the Baron of Bradwardine
might, in case of delinquency, imprison, try, and execute his vassals at pleasure." Or, as it is expressed in 1066 and
All That, "infangthief is damgudthing".
The Heritable Jurisdictions Act 1746 put an end to the major feudal jurisdictions while paying handsome
compensation to the holders. At the same time all surviving military tenures were converted into blench holdings.
Barony jurisdiction in minor matters, however, was preserved, but gradually fell into desuetude. There have been the
occasional latter day revivals, as when the Baron Court of Corstorphine was reconstituted as a vehicle for the Forrester
family association. More recently in 1998 the Baron Courts of Prestoungrange and Dolphinstoun were revived to support and
extend the work of the Heritage Museum on the baronial lands.
Barony jurisdiction is finally abolished by the 2000 Act. The Act, however, specifically preserves barony title,
that is, the dignity of a feudal or territorial baron, although this has now been divorced from both jurisdiction
and territory. A distinct Section of this Volume records the final holders of such title of the feudal age. There
has lately been a lively market in barony titles, comparable to the English market in lordships of the manor, but after the
2000 Act they are only transferable as "incorporeal heritable property".
In the nineteenth and early twentieth centuries there were further important reforms. The use of Latin in feudal grants came
to an end. The symbolic granting of sasine on the lands was superseded in 1845. Infeftment became dependent on entry in the
Sasine Register. However, these reforms were largely technical, and the underlying structure and terminology remained the same.
By the mid-twentieth century the need for more radical reform was urgent.
"Feudalism" had become a term of abuse. As the Halliday Committee noted in 1966, the use of archaic terms such as
"feudal", "superior", "feuduty" and "vassal" all suggested to a proprietor of land that his status was inferior,
and detracted from a sense of full ownership. In 1969 the Westminster Government of the day accepted that root and
branch reform was the only answer, and that the feudal system of land tenure should be brought to an end.
A number of preliminary measures were put in train, including provision for the compulsory redemption of feu duties,
and the setting up of a new Register of Title, but somehow the impetus was lost, and final reform had to wait until
the 2000 Act.