By Sir Malcolm Innes of Edingight, KCVO

When I came to consider a suitable title for the talk this evening I thought that as this is to be published so early in the year for the Great Jubilee and within a year of the founding of the Scottish Parliament, it would be appropriate that the subject should be one that spans the greater part of the millenium that has just ended, and relate to some legislative Act of the new Parliament. I therefore decided on the above title, as the origin of the Baronage of Scotland can be traced to the 12th century, and at the present time there is significant legislation regarding the Barony being considered by the Scottish Parliament. The legislation I have mentioned is The Abolition of Feudal Tenure etc. (Scotland) Bill.

This legislation is going to transform completely the way in which land is held in Scotland. Section 1 states emphatically "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." Thus will a system of land tenure introduced during the reign of David I, 1125-1153, come to an end. Many familiar arrangements and institutions will fall with the system. Section 50 provides for the disentailing of entailed land and the closure of the Register of Entails; Section 53 provides for the abolition of thurlage (multures), a system whereby grain had to be taken to the local mill to be ground; Section 61 is to significantly change the nature of feudal baronies of Scotland; and Section 62 abolishes the Kindly Tenants of Lochmaben. Many of the terms and phrases with which we have become so familiar in Scottish literature will disappear. In one of his essays, the Jewish philosopher Martin Buber distinguishes between epochs of habitation in which human beings live securely in the world, knowing who they are and what there place in the scheme of things is, and epochs of their place and purpose. We are now living, Buber suggests, in one of those epochs of cultural homelessness in which we have lost our religious bearings and our confidence about the human project. It would appear that we are also losing many of our secular bearings.

We have lost the burghs as a unit of local government, a unit that existed in Scotland for nearly nine hundred years, In some instances our counties have been changed out of all recognition - the former Counties of Kincardine and Banff have been incorporated into an area called "Aberdeenshire". Our parishes which developed in the 11th and 12th centuries are in great danger as the Church of Scotland struggles to maintain a parish structure in rural areas. Am unstable structure can deconstruct very quickly. Perhaps we can take some comfort froma recently published work by Francis Fukuyama, the author of The End of History, entitled The Great Disruption in which he thinks we may be about to experience a period of significant reconstruction similar to that experienced in the Victorian period.

In recent decades feudalism has had a very bad press in spite of a Government White Paper some thirty years ago having indicated that there was no demand of a modern industrial society that could not be met by the feudal system of land tenure. Of course the terms "vassal" and "superior" have been a gift to journalists over the years. What has perhaps been more surprising is the manner in which the historians and constitutionalists have over a very long period misrepresented the feudal system. This is in large measure due to the fact that in England feudalism was in effect curtailed by the passing of the statute Quia Emptores (1290). More generally feudalism in England was disliked because it:

1. was imposed after the national defeat at Senlac - Hastings;
2. was inimical to, and inconsistent with, the Tudor despotism;
3. functioned very effectively apart from the central government and was accordingly regarded with suspicion by centralising English administrators and parliamentarians. In Scotland feudalism was associated with the Jacobite risings with the result that the Hanoverian Government took steps to undermine the system.

Over the years feudalism has come to be a sort of bogey associated with serfdom. Serfdom was pre-feudal. had nothing to do with the feudal system, and as my kinsman Cosmo Innes indicated, Scotland had abandoned serfdom by 1320 and was probably the first country in Europe to do so!

It may be recalled that David I of Scotland, "David the Saint" (1124-53), introduced the feudal system into Scotland. Invitees, largely of Norman, Fleming and Breton origin were, under feudal charter, given significant grants of land; but it must be emphasised that these incomers were invited and did not come as conquerors as had been the case in England. In some areas the process was reisted - notably Moray

The Barony

The most authoritative account of the formation and functions of baronies in Scotland is to be found in the late Professor Croft William Dickinson's introduction to the Scottish History Society publication The Court Book of the Barony of Carnwath (1937).

It is quite impossible to study medieval history and feudalism without coming across the word "baron". It is a difficult term to pin down - it could mean different things at different periods in England and also have different meanings at different periods in Scotland. The significant period for the development of the barony in Scotland was during the 12^th and 13^th centuries.

In the early period the word baron might mean the "man" as opposed to the "lord" from whom he held the land. In an even earlier period the term baron simply meant "man" and later acquired the separate sense of "King's man". The term soon came to imply holding in chief of the King - that is immediately of the King. In due course the term baron came to signify one one who held "of the King" with certain rights and duties and at its highest development the word came to mean one who held as tenant in chief of the King's lands erected by Charter "in liberam baroniam" - in free barony. As Sir John Skene in his celebrated glossary of Scots legal terms put it in 1597 "In this Realme he is called ane Barrone quha haldis his landes immediatlie in chiefe of the King and hes power of pit and gallows".

The furca and fossa, or the pit and gallows, refers to the high justice including the capital penalty. The furca was a device for hanging slaves in ancient Rome and refers to the gallows for hanging men; the fossa was a ditch filled with water for the drowning of women. That hereditary right of high justice survived until 1747 when it was removed from the barons and from the holders of Regalities and sheriffdoms, by the Heritable Jurisdictions Act 1747. It is interesting to note that at least one of those compensated for the loss of a heritable jurisdiction was a woman! There was thus no discrimination with regard to the holding of baronies, sheriffdoms and Regalities as between men and women.

Commentators have tended to dwell unduly on the aspect of capital punishment in relation to feudal baronies. It is probably more helpful to view the barony as a social unit and the court as a form of council which enabled the area of the barony to function effectively. From the records contained in the published court books relative to the baronies of Carnwath, Stitchell and Urie, and others, it may be seen thatthe baron and his deputy, the baron baillie, and the Council, were concerned with such matters as: responsibility for repair to ditches and hedges, assessment of damage caused by cattle found on another's ground, the maintenance of the mill race in good order and free from weeds and the mending of the mill dam, and indeed cases of neighbours using "unreasonable language", and "miscalling one another" - from this it is evident that "neighbours from hell" were not unknown in earlier days! The baron court might regulate the rotation of crops and the manuring of the ground. It is evident that the baron, and the court or council, had an important role in relation to the sound administration of the area, and was truly local government. All these rather mundane matters were, over the years, of far more importance thanthe more dramatic capital punishment that so many commentators have dwelt upon.

It appears that there were in certain instances a close connection between the old Celtic thaneages and the new feudal baronies. Certainly in the 14^th and 15^th centuries both the thane and the baron are mentioned in Writs in relation to the same area of land. In due course the references to thaneages tended to be discontinued. It may be noted that Ninian Brodie of Brodie, the present Baron of Brodie, still owns part of the lands of the ancient Thaneage of Brodie and he is, of course, heir to the ancient Thanes of Brodie.

To complicate matters further it may be noted that not all baronies in Scotland were held of the King of Scotland. Some were held of subject superiors, and the term used in relation to such holding is "en vavassour". In due course the feudal system was adopted by the Lords of the Isles who acted as independent Princes. The Lords of the Isles issued feudal charters just as did other European Princes or Sovereigns. Thus are found Barons of Argyll and the Isles holding their baronies in a proper feudal relationship from the Lord of the Isles down to the time of the final forfeiture of the Lordship to the Scottish Crown in 1494. It is for this reason that Scottish Crown baronies in the more distant Highlands and Islands are found being created at a later date than in the nearer Highlands. Of course, it is also the case that the extent of a Highland barony, the land being poor, is much greater than that of a Lowland barony, for instance in Fife.

Succession to Baronies

What do we mean by the term destination? The term "heritable subjects" points to what is involved. With heritage, or heritable subjects (and baronies were such), the lands and barony descended in accordance with the destination or series of heirs specified in the deed creating or confirming the barony. Once that destination is included in the original Writ then the barony and lands will descend in accordance with that provision on the subsequent deaths of holders of the barony. Thus "heritage", or lands, did not fall into intestacy if the holder of them left no will or testament - the land descended automatically in accordance with the destination.It may well be that certain formalities were required to be completed by the heir to make up progress of title. In addition to the word "heirs" the destination usually included a reference to "assigns" (otherwise assignees) which allowed alienation or transfer of the lands to a third party who had then become infeft in, or took Sasine of, the feu from the superior. In early days this was done at the site of the land when sods of earth etc. were handed over by the principals to the contract. Later this was done by agents with the subsequent issuing of a precept, later recorded, of Sasine. By the 19^th century the mere recording of a deed of Transfer in the Register of Sasines, founded 1617, implied infeftment.

The general rule was that baronies were descendable to "heirs" and it is appropriate that we should consider just how such heirs general were to be determined in different situations.

1. Where there were male children the rule of primogeniture applied and the eldest son succeeded.
2. If there was no male child but an only daughter she succeeded to the baony and the lands. This was evidently the case from quite early times for we find that in 1160 Simon Fraser gave certain lands to the monks of Kelso and in 1190 this conveyance was confirmed by Eda, "filia et haeres Symonis Fraser", i.e. "daughter and heiress of Simon Fraser".
3. If there were no male child but several daughters a complex situation could arise. The general rule with regard to succession when there were daughters only was that all should take equally as heirs portioners (the equivalent of co-heiresses in the law of England). It seems that the will of God indicated that, failing sons, an inheritance should belong to daughters. This was the decision which followed the petition of the daughters of Zelophedad to be allowed to succeed to their father in the absence of male issue. The derivation of this law is charmingly narrated by the great Institutional Writer on the law of Scotland, Sir Thomas Craig of Riccarton. "It will be remembered that, in view of the difficult question raised by their petition, Moses consulted the Lord, who found that the case made by the daughters was a fair and reasonable one; and laid down, as a perpetual law of succession, that, failing sons, daughters should succeed to their father. Indeed, it seems contrary to nature that women should be made to occupy a position to that of men". (Craig, 2.16.9)

There was, however, a general rule in feudal law that those things that were indivisible pertained to the eldest daughter. Such elements were:

1. The superiority;
2. The caput of the barony;
3. The baronial jurisdiction;
4. The Principal Mansionhouse (seat of the family);
5. Any titles of honour;
6. Any heraldic additaments (chapeau and supporters).

With regard to a barony, therefore, where there were only daughters, we might find the following situation. The superiority, the caput, the baronial jurisdiction, titles of honour and heraldic additaments, would pass to the eldest heir portioner. The lands might be divided equally between the daughters. The shares of the junior daughters might be held by them as vassals of the eldest daughter in which case the extent of the barony would remain the same, and the daughters would give service at the baron court o their elder sister. The JURISDICTION could not be divided - it was IMPARTIBLE.

Succession to the Crown of Scotland and the succession to a barony.

At first sight the connection between the law governing the succession toa feudal barony and the law governing succession to the Crown of Scotland might appear to be remote. This, however, was not the case.

King Alexander III died in 1286 and was succeeded by his granddaughter Margaret, Lady and Queen of Scotland, otherwise the Maid of Norway. Margaret died in 1290 and following her death there was considerable uncertainty as to who was in right of the Crown of Scotland. In due course the submissions of the various claimants were heard by Edward I as Lord Paramount of Scotland, who set up a centumviral court consisting of eighty auditors from Scotland, twenty four auditors for Edward and/or for England and Edward himself, making the total of one hundred and five. This arrangement echoed the ancient Roman court of the centumviri which consisted of one hundred and five men - three representatives from each of the thirty five Ancient Tribes of Rome - and it seems that the particular province of the centumviral authority lay in the decision of questions of right of property, and especially concerned hereditary succession. In November 1292 this body reported to Edward that "the right of succession to the Kingdom of Scotland was to be decided as the right of succession to earldoms, baronies and other impartible tenures was decided" (sicut comitatibus baronibus et alias tenuris impartibilibus). The significance of "imaprtible" in this statement is great. Baronies were impartible and the Kingdom of Scotland was impartible and not capable of division.

In 1292 it was the Common Law of succession to the Crown that was being applied. That Common Law persisted until the reign of Robert I who made the two settlements regarding the succession to the Crown of Scotland. The first of King Robert's settlements was made by an assembly at Ayr on 27 April 1315 and it was agreed that if Robert did die without leaving a surviving son, his brother, Edward Bruce, tanquam vir stremnus et in actibus bellicus expertus, and his heirs male should succeed to the Crown. Edward Bruce was killed in Ireland in 1318 leaving no lawful heirs and the settlement of 1315 was of no effect. A Parliament, however, was held in September 1318 at Scone declaring Robert, the only son of MAry Bruce and Walter the High Steward, to be heir to the Crown if Robert had no male issue. However, David, son of Robert Bruce was born in 1324.

The next significant events relative to the destination of the Crown of Scotland were Acts of Parliament of 1371 and 1373, and from that time to the present day the Crowns of Scotland, of Great Britain and of the United Kingdom have been held subject to statutory provision and not to the Common Law of succession or any right of blood. Acts subsequent to that of 1373 were those of 1681, 1685, 1689 and the Act of Union of 1707, which incorporated the English Act of Settlement of 1701. This matter has all become of interest quite recently as it is the Act of Settlement of 1701, as incorporated in the Scottish Act of Union, which does not allow the Sovereign to be a Roman Catholic or married to a Roman Catholic.

Entails of Baronies

It is appropriate, however, that we should consider entails or tailzies, that is where a destination included in the Charter of Erection was different or more extensive than the common law destination. These entails or tailzies should not be confused with the strict entails that were introduced by an Act of 1685 which I shall discuss later.

Descent confined to male heirs or other special limitations might be imposed in the Charter erecting the barony. In 1369, for example, we find in relation to the Barony of Dalkeith that the destination granting the Barony was to Sir James Douglas "et heredibus suis masculis de corpore suo legitime procreandis, quibus forte deficientibus, propinquioribus semper heredibus masculis dicti Jacobi cognomen de Douglas habentibus", that is "and to the lawful heirs male of his body, whom failing to the nearest heirs male of James having the name of Douglas". We later find a tendency creeping in to limit succession to heirs male and of tailzie. An entail or tailzie is a destination that diverts the succession from the heir at law. There were at certain periods Acts of Revocation (1493 and 1540). In 1532/33 it was not allowed to "ony Baron, freeholder or landit man...haldand landis immediatelie of the King in chief, to mak ony chartour or infeftment of tailzie of his landis, in all ore parte, without expres consent, licence or confirmation of the King". There is some doubt as to how effective these Acts of Revocation actually were. What was largely behind these Acts of Revocation was that the Royal Exchequer benefited to a greater degree when the heir was a female than when the heir was a male. The feudal casualties or taxes on a female heir were greater than on a male heir.

Where there was a sole daughter who succeeded to the barony and lands, her husband was united with her in those lands if she married. Such an "incoming husband" took not only the baronial title but also the armorial bearings and supporters jure uxoris, that is in right of his wife. In Scots law the male marrying the heiress enjoyed a very much higher status than in many other realms.

If the holder of a Barony was of the opinion that the destination was not in accordance with the best interests of the family as it existed he could always resign the lands and the barony in to the hands of his superior, the Sovereign, and receive a re-grant: a Deed of Resignation in favorem of a series of heirs followed by a Charter of Novodamus. If the Crown did not approve of the proposed arrangement feudal entry and infeftment would not be given and a Charter of Novodamus would be refused.

Strict entails were introduced by an Act of 1685 and by the middle of the 18^th century a very large proportion, perhaps thirty to forty per cent, of the land of Scotland was held under strict entails. It was realised that this was not good for commerce, business and development because the lands couldnot be pledged for credit and were effectively extra commercio and could notbe bought or sold, and gradually over a period of one hundred and fifty years the law on these strict entails was relaxed to allow greater freedom to disentail. Section 48 of the Abolition of Feudal Tenure etc. (Scotland) Bill states "land which immediately before the appointed day is held under an entail is disentailed on that day". So the current Bill will abolish all strict entails relating to land. By Section 50 the Register of Entails is to be closed and transferred to the Keeper of the Records of Scotland for preservation.

Barons in Parliament

The Barons of Scotland continued to have the right to sit in the Scottish Parliament until 1694 [actually 1594]. It is the case that in respect of the right to sit in Parliament such Barons were entitled to hereditary supporters in their armorial bearings. The right to such supporters was indivisible and descended with the caput of the barony. It is open to any person at the present time who can establish that he is the representative of a Baron who had the right to sit in the Scottish Parliament prior to 1594 to petition for a grant of supporters. Nowadays this happens very rarely.

By the Heritable Jurisdictions Act 1747 the powers of life and death were removed from the BAron Court and indeed the criminal jurisdiction was very significantly reduced but not entirely abolished. The hereditary jurisdictions of Regality Courts and of the Sheriff Courts were abolished and the owners received significant sums in compensation.

The law of succession governing Barons continued more or less unaltered until 1964. There were of course adjustments in the various Acts affecting conveyancing. However the Succession (Scotland) Act 1964 abolished the distinction between "heritage" or landed property and movables (goods, chattels, shares etc.) when property passes without a will or testament, that is to say on intestacy. All land and movables were pooled and shared in accordance with the Scottish Law of intestacy. That Act governs the position down to the present time and will do so until the Bill at present before the Scottish Parliament becomes law.

The Bill

Section 61 of the current Bill states in subsection (1) that "Any jurisdiction of, and any conveyancing privilege incidental to, barony shall on the appointed day cease to exist; but nothing in this Act affects the dignity of baron or any other dignity or office (whether or not of feudal origin)" and the subsection (2) states that "When, by this Act, an estate held in barony ceases to exist as a feudal estate, the dignity of baron, though retained, shall not attach to the land: and on and after the appointed day any such dignity shall be, and shall be transferable only as, incorporeal heritable property (and shall not be an interest in land for the purposes of the Land Registration (Scotland) Act 1979 (c.33) or a right as respects which a deed can be recorded in the Register of Sasines)".

There is little doubt that the Government would have liked to have abolished the barony. It will be recalled that the holders of abolished Hereditary Sheriffdoms and Regalities were in 1748 compensated. To compensate the Barons for their lands would have given rise to claims for several million pounds and clearly the Government was anxious to avoid paying any such compensation.

Thus a barony will no longer be an honourable title to land but will become an incorporeal right and dignity which may be inherited or transferred at will but no longer by the type of documentation used for the ownership and transfer of land. It will not be protected by a public register of titles to land. On intestacy the succession will proceed as it did prior to the passing of the Succession (Scotland) Act 1964 like a peerage or a coat of arms, both of which were excepted from the provisions of the 1964 Act. The barony will be transferable or assignable on a simple Deed of Transfer but as there is no register in which such deeds can be recorded, the scope for fraud and deception will be very great. If a person offers to sell one a barony, one has no means of knowing whether he executed a Deed of Transfer relative to that barony the week before. It will really be rather like buying a second hand motor car without the records of the DVLC being in existence.

To conclude, it is probably appropriate that we should very briefly consider the position of the Scottish Baron in the European context. This was superbly summarised by the late Sir Iain Moncrieffe of that Ilk when he observed "the Scoto-Norman Bosvilles or Boswells were a baronial family from the twelfth century. David Boswell, the then Baron of Balmuto (living 1492), married secondly Lady Margaret Sinclair, daughter of William, last Jarl of Orkney and first Earl of Caithness, Lord High Chancellor of Scotland, and by her was father of Thomas Boswell, who was granted the Barony of Auchinleck by his kinsman, King James IV, on 20 November 1504 and who fell with his King at Flodden. James Boswell himself (the writer) was son and heir of Lord Auchinleck (the judge), who was 8^th Baron of Auchinleck and whose wife was an Erskine of the great comital house of Mar. James Boswell's grandfather, James Boswell, 7^th Baron of Auchinleck, had powers of life and death in his barony until 1747 (whether he exercised them or not) and was married to Lady Elizabeth Bruce, daughter of the 2^nd Earl of Kincardine. The Boswells of Auchinleck, as barons whose ancestors had sat in Parliament by hereditary right until 1594, were entitled to supporters (an honour only accorded heritably in England to peers). In Scotland, the "old laird" and the "young laird", or the "old baron" and the "young baron", were recognised characters vested in the baronial parent and heir. It is improbable that many, if any, of the German barons whom young Auchinleck met were of so high a lineage or so ancient a baronial status (nor with so recent a jurisdiction of life and death). Yet the surprising belief is often to be met with in the South, that a great Scottish baron like Lochiel is in some way less of a baron than the cadet of a cadet of some paper baron created by the sovereign of some nineteenth century German dutchy."

In the light of this it must be a matter of regret to see such a historic and noble institution divorced from its land and left to limp into the future as a "personal dignity". One cannot help wondering if it might have been more dignified if the Baronage, like the Cameronian regiment, were to march into history.

Selected and re-typed by Graham Milne.
This article first appeared in The Scottish Genealogist, June 2000.