Feudal Land Tenure AND TITLES
The feudal system probably originates from the courts of the Franks (in Germany, France and the Low Countries) in the eighth century, in the time of Charles Martel, grandfather of Charlemagne.
It was introduced to England by the Normans in 1066 and adopted almost a century later in a slightly different form in Scotland, which was never subject to Norman rule but was certainly open to Norman influence, especially where good ideas were concerned.
Feudalism derived from two earlier Roman concepts, benefice or usufruct (in Latin, beneficium and usufructus) and vassalage. (The word 'vassal' probably derives from an old Celtic word 'gwas' meaning 'young man', and with a similar meaning in modern Welsh. But 'knight' also derives from a word meaning a young, untried man -'knecht' in Germanic.) The two principles, benefice or usufruct and vassalage, were related but not necessarily intertwined. Someone could be given benefice or usufruct (for example, granted land) and a vassal would agree with a superior that the two would mutually aid each other -the superior offering protection and the vassal providing men-at-arms, for instance.
In time, the two became one. (Benefice is a non-heritable living, for example, granted to a churchman for his tenure in post, whereas usufruct can be inherited.)The sovereign was the ultimate superior (ultimus haeres, or ultimate heir) and owned all the land. With land came responsibility, and also jurisdiction. Therefore, all legal authority and all responsibility for upholding the law rested with the Crown. However, the Crown could give subjects the usufruct of land, in return for some service (the reddendo, see below).
These subject superiors, who were direct vassals of the Crown, could in turn parcel out land to their vassals, and they could do likewise (to an extent); so there was a hierarchy in which someone could be vassal to a superior (ultimately the sovereign), but superior to his vassals, who themselves would be superiors to their vassals.
By the eleventh and twelfth centuries, the system had developed so that it became virtually the same as ownership. Vassals were in no sense slaves -they could marry, hire workers, acquire and dispose of property and pass on inheritances without the permission of the superior -but there was a reciprocal duty from one to the other, and the conditions of vassalage imposed certain restrictions on the vassal. But ultimately, feudalism precludes personal ownership of land, and even the Crown held, say, Scotland, as a vassal of God.
Putting the hands together in the attitude of prayer is a reflection of the feudal act of a vassal doing homage to a superior.
The system of feudal land tenure was partially reformed in Scotland in 1974 and formally done away with by the Abolition of Feudal Tenure etc. (Scotland) Act 2000, fully enacted from 28 November 2004.
To this day, England and Wales are feudal, in the sense that all land belongs to the Crown and everyone holding land is a vassal, although there is no further feudal division of land.
The feudal system emerged in Scotland almost full-blown in the reign of David I (II24-33) but never penetrated to Scandinavia. This explains why, even now, the Orkney and Shetland Islands, which belonged to Norway until 1469, have vestiges of an older, non-feudal land law -allodial or udal law.
The level of landholding below the Crown was the earldom and the manor (in England) or barony (in Scotland), more of which later. But essentially the Crown handed out large parcels of land in exchange for an expectation that the individuals concerned would rule, administer, dispense justice and generally look after that land in the sovereign's stead.
Earldoms (in early times) and Scottish baronies differ from other titles in that they are territorial -based on land rather than being personal awards (as with duke, marquess, viscount and, later, baronet).
ENGLISH FEUDAL BARONIES
Up to 1290 in England, there was Feudal Barony by Tenure but the statute of Quia Emptores prohibited land from being subject to a feudal grant, and to being transferred without the feudal superior's permission, so breaking the link between title and landholding.
The alternative to feudal land tenure was allodial (also called odal or udal) tenure.This means full ownership, and while it could not be applied to land (except that the Crown might be said to have allodial tenure over the whole of, say, Scotland) it did apply to personal goods (moveables). However, there is some udal land in Orkney and Shetland, and in the rest of Scotland the Church was allowed to own allodially its kirks and kirkyards. The present-day situation is confusing, with some kirks, manses and glebes held feudally of the Crown, but kirkyards remaining allodial.
All land titles appear in the sasine register or the land register of Scotland (see chapter 10). However, because the Crown is ultimately 'seised' of all land in Scotland (as a vassal of God alone), the Crown cannot be 'infeft' of land, and so all Crown landholdings would not be recorded.
The implication is that where no register title can be found to a piece of land, it belongs to the Crown (a doctrine called 'abiding supreme allodial sasine').
Likewise, when land falls vacant by the death of a vassal without heirs, and there is no other superior, the land reverts to the Crown but there may be no trace of this in the registers. Occasionally, speculative foreigners turn up at registers of Scotland looking for 'unclaimed land'. There is no such thing.
FEUDAL DUTIES AND RESPONSIBILITIES
The single most important thing to bear in mind about the feudal system of land tenure is this: no one owned land, but had the use and benefit of it, and the right to pass it on to heirs, as if it were truly owned, but according to a set of agreed principles.
In an attempt to marry two legal underpinnings of the Scottish system -Roman law, in which individual ownership was central, and feudal law in which land ownership could not exist -it was necessary to invent a new concept: dominium.
The compromise was that land was said to be in multiple ownership, with the Crown having dominium eminens, and the rights to land split between the dominium directum (right to direct), belonging to the superior, and dominium utile (right of use) which belonged to the vassal.
The use of these terms gets confused at times, but the convention is that any superior, even if he himself is a vassal, has dominium directum and the ultimate vassal at the bottom of the chain has dominium utile, but obviously mid-superiors also have dominium utile. This is further confused by the usage dominium plenum (full ownership) when, for example, a vassal acquires the superiority over his land, or one dominium is merged with another. But in the main, a superior who has domininum dirtum grants dominium utile to a vassal. and the two terms are sufficient.
A vassal owes the superior 'fealty' (literally faithfulness, from the Latin fidelitas) and also 'homage' (from homo, man, as the vassal was the superior's 'man').They are linked but different. Homage was a deeper obligation and included fealty, and was signified by the vassal putting his hands together between the hands ofthe superior, indicating the relationship ofprotection.
The superior could expect certain things back for granting dominium utile. The land was 'feued', the vassal was 'infeft' and the vassal owed a 'fee' or 'feu duty' or 'fief' to the superior, and was a feuar (meaning the same as 'vassal' but without its overtones ofservitude). Obviously, all ofthese words have the same derivation. The feu was originally one of four types:
- ward: essentially military service, the provision of a specified number of mounted knights, armed men etc., abolished in the time of George II by the Tenures Abolition Act of 1746
- blenche-ferme: the original 'peppercorn' rent, where the payment was nominal (one peppercorn, a silver penny, an apple, a horseshoe, a mirror for larks) and often only if asked for
- alms: the vassal said prayers or paid for church services for the superior, often where land had been given ill collegiam (not to anyone person) to build a church
- feu-ferme: some form of physical payment, either produce or money
In time, the need for military service passed away (or the government disliked the idea of large landowners being able to raise an army, especially in Scotland), prayers became less ofan issue and single peppercorns were unprofitable, so the feu became the predominant form of payment. (More on this below.)
The end of feudalism
To be frank, strict feudalism started to decline in the late I300's, but its traces can be seen in the legal practices of land transfer right up to present day. However,James VI and I brought the landed nobles to heel during his reign (1567-1625) and the link between land and service was abolished in Scotland by two Acts, both the result of Jacobite uprisings -the Clan Act of 1715 and the Tenures Abolition Act of 1746.
A later law, the Heritable Jurisdictions Act 1747, removed the powers oflife and death and other criminal jurisdictions from the Baron Courts and the owners received compensation.
In the 1970s, legislation made it possible for the voluntary or compulsory redemption of feu duty by a one-off payment, and in 2004 all feudal tenure disappeared from Scotland altogether. In strict legal terms, under Section 63 (I) of the Act, a Scottish barony that was a 'prescriptive barony by tenure' is now not attached to the land and is 'incorporeal feudal hereditament', but the dignity ofBaron is preserved. Such titles can be freely transferred and so a Scottish barony is the only genuine, prescriptive, degree oftitle capable of being bought and sold in the UK.
THE FEUDAL BARONIES OF SCOTLAND, REGALITY, BARONY AND JURISDICTION
Territorial and personal titles
In early medieval Scotland the tides of earl and baron were the only nobilities. The other ranks appeared later -the grant of an earldom as a personal title in 1358 (Douglas), duke (1398), marquess (1599), viscount (1606) and later the lesser rank of baronet (not a peerage, but a form of hereditary knighthood invented by James VI and I to raise money).
Earldoms and baronies were territorial titles -linked to land -as opposed to personal titles.
The land itself was 'erected into' an earldom or a barony by a charter under the Great Seal and then that earldom or barony was granted to some person using a formula like the lands and barony of Hauch to be held of the King in liberam baroniam.
This made sense in a society where wealth, power, military capability and administration depended on land ownership, so a mere title in itself would have been meaningless. Someone became an earl or a baron by virtue of being granted the physical earldom or barony (a fief of the Crown that also conferred nobility) .
In strict terms, a barony or earldom is not a parcel of land, but jurisdiction over an area of land. The important point here is that the lands and the barony went together but were two separate legal entities. The logical consequence of that is, that where the land is disposed of, the new title-holder (normally the heir but could be by purchase) the title goes with it. Scottish feudal baronies can be, and are, sold. It happened less frequently with earldoms.
The original earldoms were seven in number, corresponding to the ancient kingdoms, and each earl was in effect a prince or a minor king in his lands. With time, and as land available to parcel out became sparse, personal earldoms were created -a cheap form of patronage, as an empty title costs nothing.
Such nobles were designated 'of' somewhere, as is still the case, but the name has no significance other than the desire of the ennobled person to assert a relationship. The Duke of Fife does not own Fife; and Lord Mackay of Clashfern -the Scottish mathematician and advocate who was Lord Chancellor under Margaret Thatcher from 1987-97 -had no special rights in Clashfern.
Where land was held in liberam baroniam (in free barony) the holder was a territorial baron (barony by tenure or baro minor) , but not necessarily a baron with a peerage (barony by writ or baro major).
The distinction is most important in Scotland, where the vast majority of barons were not peers -they did not sit in the House of Lords alongside dukes, earls, marquesses and viscounts.
They were and are referred to as Baron of Such-and-such whereas a titled baron would be Baron So-and-so. Of course, a particular person could be both, holding a peerage as a baron but also being baron of certain lands. Barons had considerable jurisdiction over the baronies (discussed below) and the barony was the effective social and judicial unit of Scotland for a long time.
The barony is the equivalent of the manor and a baron a lord of the manor in England. But if the land was the barony, so to speak, how could the land be divided up and sub-feued?
The legal fiction was that the barony attached to the caput (Latin meaning 'head').
The barony was legally attached to the caput so the baron could dispose of the lands but retain the caput, or the feudal superiority over the caput, and so retain the barony and the jurisdiction.
Land was 'partible' (capable of being divided and 'alienated') but the caput, the baronial jurisdiction, the title of baron and any heraldic additaments (such as the baron's chapeau on the coat of arms) were 'impartible' (could not be legally divided or separated from each other). In general, if the caput was sold or inherited the barony went with it unless specifically reserved. In the course of time, many baronies have shrunk to just the caput which could be a handkerchief-sized piece of ground or a particular stone, and since 2004 need have no physical presence at all.
With the Abolition of Feudal Tenure Act in Scotland in 2004 baronies became personal titles no longer attached to land, like present-day peerages.
In theory, being a superior conferred and imposed certain duties, including jurisdiction over the vassal's lands. In practice this was only the case when the superior held the land in regality or in barony. It could be neither. No Scottish feudal baronies have been created since 1800. But unlike personal titles, feudal baronies cannot be extinguished; they exist forever, for someone to claim if they can prove entitlement.
For more on this fascinating subject see Sir Malcolm Innes of Edingight, 'The Baronage of Scotland: The History of the Law of Succession and the Law of Arms in Relation Thereto', The Scottish Genealogist, June 2000.
Originally, the feudal earldoms and baronies were held of the Crown by military service, requiring a specified number of knights for a defined period (normally forty days) when requested.The earls and barons sub-feued part of their lands to these knights, held of them by knights' service (knights' fees), and the knights might in turn sub-feu parts of these lands to other vassals, as husbandmen (tenant farmers) and so on in a hierarchy down to the final vassals, who might have serfs and others to work the land. (A knight's fee would be about a square mile or a few hundred acres.) Therefore, a whole network of people would have an interest in the earldom or barony land, with the tenants-in-chief, who owed feus to the Crown, having nobility conferred on them. Their feus were military (or some other honourable service) while the 'ignoble' at the bottom of the chain paid their feus in money, produce or labour. None of this depended on the number of people in the hierarchy -a tenant farmer ploughing a field on land directly held by the Crown (a 'royal demesne') was every bit a direct vassal of the Crown as an earl.
COURTS AND JURISDICTION
Criminal and civil jurisdiction was also hierarchical. Tenants-in-chief of the Crown (earls and barons) had the right and duty to attend the Curia Regis (King's Court) of which they were considered the 'peers' (Latin pares meaning equal in rank); and this gradually evolved into a parliament. Feudal superiors were also obliged to hold courts for their immediate vassals, which as well as being courts of law were a local parliament or council but limited in geography and powers.
The Barony Court mainly occupied itself with the regular administration ofthe estate but could ordain local laws (like present-day by-laws) regulating the vassals' behaviour and relationships.
At its highest, the Barony Court had the right of'pit and gallows' (the exercise of trial and capital punishment by hanging for men and drowning for women) and could appoint Baron Baillies (bailiffs), Baron Sergeands (effectively police officers), a Dempster ('doom-sayer' , who pronounces sentences, and therefore a sort of judge) and other officers with what we would now recognise as legal authority and police powers.
The baron had the rights of private jurisdiction as any landholding feudal superior but also had public jurisdiction as a baron, delegated from the Crown.
In reality, serious cases in the Barony Court were overseen by the local sheriff and the baron was not in any sense judge and jury.The baron's immediate vassals were the peers of his court (which is the origin of everyone's right to be tried by a jury of his or her peers).
The baron saw that justice was administered according to the proper procedure and he was legally in the same position as his vassals -a litigant. However, the barony retained any fines in recompense for the administrative costs.
Much of this had passed away by the 1500S but was still sufficiently operative in the Highlands of Scotland for the Hanoverian government to blunt the local power of clan chiefs whether barons may still hold private courts and what their jurisdictions would be.
PARLIAMENT AND THE 'THRIE ESTAITES'
Originally the landed earls and barons and the senior churchmen constituted a parliament. The earliest mention in Scottish records is 1235, but by 1326 this was composed of the 'three estates' (landed nobility, senior clergy and burgh commissioners, representing the commoners) the phrase itself first used around 1357. In fact, this parliament was a body which ratified decisions of a variety of committees, the most important being the Lords of the Articles -a sort of inner cabinet -whose membership was managed by the sovereign, ensuring a high degree of direct royal control.
Parliament met wherever the sovereign decreed, and had no fixed home until 1632 when Charles I ordered the building of a fixed site for parliament and the courts in Edinburgh. Parliam.ent House, adjacent to St Giles' Cathedral on the Royal Mile, was first used by the Estates in 1641 and is still the site ofthe law courts.
Feudal barons were technically competent to sit in parliament as part of the nobility but, by Acts passed in 1428 and 1587, they could send two representatives from each sheriffdom. Before 1587 Scottish barons had the right to attend parliament.
Not many did -imagine the expense -although in the Reformation parliament of 1560 more than lOO feudal barons attended in person. The Act of Relief of 1587 gave the barons in each shire the right to elect two representatives each year to attend on their behalf, known then as Commissioners and later as Lords of Parliament.
By 1627, the Barons lost their right to sit in parliament by negative prescription.
Later, '40 shilling freeholders', and eventually everyone, had universal suffrage. The Scottish parliament went through many other changes -the gradual replacement of the barons by nobles with personal titles, the assertion of its own authority in the last half of the sixteenth century, the removal of bishops and their reinstatement, opposition to Cromwell's changes, direct elections and finally the merger with Westminster in 1707 and devolution in 1999. There is more detail on this at www.scottish.parliament.uk.
As Baronies had less and less practical use -baronial jurisdiction all but disappearing in 1747 and parliamentary attendance no longer an issue -many feudal titles were simply forgotten.
They did not disappear -only an Act of Parliament or an edict of the Crown could extinguish a barony -and are probably acquired unknown to the purchaser of, say, an estate or a castle. As few as 150 out of the likely total of 1,500 or more are recorded as having arms with baronial additaments by the Lord Lyon, and most of these are with the original family or a landed aristocrat.
Tracing a barony
Some 400 baronies existed in 1405 and most of those later created date from then until the seventeenth century, when a considerable number were erected. (See Atlas of Scottish History to 1707.)
Refer to the Retours ofServices of Heirs (available on CD from the Scottish Genealogy Society), the Register of the Great Seal and the Register of Sasines. If the original charter is lost an official extract can be obtained from the Register of the Great Seal, which has the same legal status as the original charter.
USAGE AND HERALDRY OF A SCOTTISH BARONY
The barony is not a peerage, but is a noble title or 'dignity' of below-peerage rank.
The owner of the Scottish barony Inversneckie, may use his existing name and add the title, as in
'lain MacClerk, Baron of Inversneckie'
and be addressed as 'Inversneckie' or take the territorial designation as part of his surname, 'lain MacClerk of Inversneckie, Baron of Inversneckie'.
A married couple are 'The Baron and Baroness of Inversneckie',' Inversneckie and Lady Inversneckie' or 'The Baron and Lady Inversneckie'. Notice the baron is NEVER 'Baron Inversneckie'. In most formal situations, a Scottish baron and baroness are styled 'The Much Honoured'.
A Scottish feudal baron's arms bear a steel tilting helm garnished with gold, the baronial chapeau (cap of estate) and the baronial mantle which is blazoned as 'Gules doubled silk Argent, fur-edged miniver and collared in ermine, fastened on the right shoulder by five spherical buttons Or'.This indicates a red (Gules) cape with a white (Argent) lining, with furs as indicated and five gold (Or) buttons.
It was the case until recently that when new arms are granted, or a matriculation of existing arms includes a barony, the armiger may add a chapeau (cap of maintenance) to the armorial achievement directly above the shield and below the helmet. This is blazoned as 'gules doubled ermine' for barons in possession of the caput of the barony, and a chapeau azure is considered appropriate for the heirs of ancient baronial families who are no longer owners of the estates themselves. The chapeau can be used on stationery or to ensign the circlet of a crest badge. However, the new Lord Lyon (appointed in 2008) may take the view that acquiring a barony title does not mean that the baronial additament of a chapeau will be added to arms. Any such decision will likely be appealed to the Court of Session.
The helmet of a baron is a feudal steel helm garnished in gold affronte, and occasionally garnished with one or three grilles.
Supporters These are now usually reserved for the older baronies (chartered before 1587) and those which have been in continuous ownership of one family. In England, by contrast, supporters are reserved for the peerage. Occasionally a compartment was granted, representing territories, with or without supporters, but even in I637 this was contentious.