From sunset to sunrise

The passing of feudalism on 28 November 2004 will be deeply regretted by its many friends. Even those who regarded it with disfavour will shed a generous tear for a personality which, whatever its faults, has been the constant companion of Scots lawyers for not far short of a thousand years. Latterly its appearance was, it is true, somewhat down-at-heel. Long gone were its golden days, and a genteel and shambling poverty had replaced what had once been a haughty and aristocratic splendour. Those who admired feudalism, as well as those who did not, may perhaps feel that it was right and proper that this aged citizen of the legal world should pass from the stage, into a permanent place in the long chronicles of our law.

The date and the place of its birth have been debated by the learned. The predominant view is that it first saw the light of day in the eighth century, on the continent of Europe, and specifically in the Kingdom of the Franks. The time of its adoption in Scotland has also been debated, the competing periods being the 11th century and the first half of the 12th, but at all events feudalism was settled in its most northerly home by the death of David I. Feudalism liked warm climates. It never settled in the Scandinavian countries. Scotland was its nearest approach to the Pole. Indeed, it never fully penetrated the most northerly parts of Scotland itself. In Orkney and Shetland udal law made a long, honourable and to a substantial degree successful resistance to this “ferrylouper”.

Beginning of the end

In Scotland feudalism began its long decline in the 15th century. Several statutes of that time weakened its force, none more so than the Diligence Act 1469, which undermined the superior’s sacred right of veto over a sale. In the 16th and 17th centuries feudalism held its ground, and the middle of that period saw the composition of one of the best known – though now little read – texts extolling its virtues, Jus Feudale of Thomas Craig, one of the tiny handful of Scottish legal works to achieve a reputation outwith Scotland.

The 18th century saw a resumption of statutory dismantling, the most important reforms being the Highland Services Act 1715 (commonly called the Clan Act), the Tenures Abolition Act 1746 and the Heritable Jurisdictions Act 1746. These Acts were passed in response to the Jacobite risings, and to this day adherents of the White Cockade think of feudalism as somehow bound up with the Good Old Days when the Scots were still ruled by their rightful kings. After the legislation of 1746 feudalism was not much more than a system of perpetual leases. (But curiously the legislation, while it clipped the wings of the feudal courts, did not abolish them altogether. One or two still sit ceremonially. See for example www.prestoungrange.org/ prestoungrange/ . These courts are abolished by the 2000 Act. However, baronies will survive, on a non-feudal footing.)

An enduring legacy

Nevertheless the 18th and 19th centuries also gave rise to what is perhaps feudalism’s most enduring legacy. The superior’s power to impose conditions regulating the buildings to be constructed on, and use to be made of, the subjects feued, helped to underpin ambitious plans for urban development beyond the confines of medieval city walls. Edinburgh’s New Town owes much to the feudal system, as do numerous smaller developments around Scotland, conceived in the days before the Town and Country Planning Acts – and even in some cases more recently.

Starting in the 1840s a series of Acts was passed to defeudalise the conveyancing process, beginning with the Infeftment Act 1845 and culminating in the Titles to Land Consolidation (Scotland) Act 1874 and the Conveyancing (Scotland) Act 1874. The last of these Acts together with the Feudal Casualties (Scotland) Act 1914, abolished any feudal reddendo other than feuduty and blenchduty. The defeudalisation of the conveyancing process has made life simpler but duller. Here is a slice of real life in 1812 (see (1980) 25 JLSS 90):

“Suddenly five human beings appeared in one of the fields, the leader and spokesman being a notary. Two of the band were his clerks, or at least could sign their names. The remaining two were anything, generally captured in the vicinity by the notary, only a few minutes previously, and of whom he knew nothing whatever. They might have been, and frequently were, whinstone-nappers on the highway, ditchers, packmen, cadgers, weavers, cobblers, herds, colliers, carters, rat-catchers, dog-breakers, sweeps – in fact anything… women, however, were always, and Irishmen generally, excluded… the notary then, to the amazement of the parties, proceeded to dub, say, a cadger, with the title of ‘procurator and attorney’ and a ditcher with that of ‘bailie’…

“[The] notary next, with a pleased air, pulled from a gaping outside coat-pocket, with flaps as broad as the ears of an elephant, a thickish paper, which he caused the cadger to shuffle to the ditcher for a moment, uttering at the same time some words, to them perfectly unintelligible… The notary… requested the ditcher, ‘qua bailie’, to lift a handful of earth, with as many small stones in it as he could get, and to tear up another handful of grass and stubble, which two handfuls the ditcher was implored to present to the cadger, alias the ‘procurator and attorney’. The latter gentleman received the dirt, the stones, the grass and the stubble into his half-closed palms… Suddenly the notary put a shilling in the cadger’s hand, which the latter was in the act, most promptly and naturally, of burying in the recesses of his own corduroys, when the notary wildly snatched it from him, and coolly replaced it in his own pocket, saying, with a grim smile, that he was ‘taking instruments’…

“Lastly, the notary, with great solemnity, implored the hitherto inactive clerks to bear well in their memories all these interesting circumstances; the ditcher and the cadger received each a shilling for their pains, and the notary bid them a good day... On one occasion a very staid old gentleman, whom I remember well, had got the length of dubbing a cobbler a bailie, when the wife of the latter, who had been patching the party through the hedge, rushed through a slap, and taking hold of her husband by the cuff of the neck, fairly drove him before her into his house, using somewhat strong language to the solemn-looking notary for taking the cobbler off his work... The notary took a tremendously long snuff, and merely remarked, with a melancholy air, that the captive appeared to have a very imperfect knowledge of the jus mariti.”

Electronic conveyancing will never match that.

The last rites

In the continental countries where it had established itself, feudalism came to be regarded as outdated in the 18th century. The French Revolutionary Parliament resolved, in the dramatic language generally favoured in such times, that “l’assemblée nationale détruit entièrement le régime féodal”. What happened in France happened soon elsewhere. Feudalism had largely disappeared on the continent even before the fall of Napoleon. The last bastion was Mecklenburg, where it lingered on until 1919. In England it went into decline rather early, as a result of the statute Quia Emptores in 1290, which forbade subinfeudation. Most of what was left was buried by Oliver Cromwell, whose actions were confirmed by the Restoration Parliament (Tenures Abolition Act 1660). Copyhold, however, survived until the legislation of 1925. Feudalism has never been formally abolished in England, but it has long been dead: just not buried. Some elements of feudalism seem to survive in the Channel Islands, but by 1920 it was only in Scotland that anything that could really be called feudalism still existed.

During the 20th century feudalism in Scotland struggled on, but by the 1960s a political consensus had emerged that what remained of it must be abolished. The Land Tenure Reform (Scotland) Act 1974 paved the way for final abolition by prohibiting the creation of new feuduties and providing for the gradual redemption of existing ones. At that time it was widely expected that complete abolition would happen long before the end of the century, but the reform process became temporarily becalmed, and during the 1980s it seemed very possible that feudalism might limp on for decades to come. But in the early 1990s pressure for abolition waxed once more. In 1999 the Scottish Law Commission published its Report on Abolition of the Feudal System. The advent of the Scottish

Parliament merely hastened the passage of a bill which, even without devolution, would have been passed eventually anyway. When the Abolition of Feudal Tenure etc (Scotland) Act 2000 was passed, it was thought it would come into force rapidly. But a final period of grace was granted, for practical reasons. Even the date of death, 28 November 2004, is a sign of how times have changed: the good old Martinmas was 11 November. But whatever one thinks of the date, the 2000 Act is on the whole a very well constructed piece of legislation. One is so used to statutes being drafted (is it deliberate?) in obscure language that the clarity of section 1 comes almost as a shock. Perhaps the greatest problem was what to do about feudal burdens. It is easy to imagine worse solutions than those adopted. It is hard to imagine better ones.

It is sometimes thought that whilst our moveable property law was Roman, our land law was feudal. The latter half of this idea was only half right. As feudalism gradually decayed over the centuries, Roman law (or perhaps one should say civilian law) grew up in the widening cracks. By the eve of the 2000 Act much, perhaps most, of land law had actually become civilian, often without people fully realising that fact. Whatever one thinks of the civilian legal tradition – and the present writer thinks highly of it – the result does at least mean that we have no major transition problems. Land law already has a strong framework based on the civilian tradition – a framework that also is used in most European countries. Feudal law thus did not really have to be replaced to any substantial degree with something else. The something else already existed. And so feudalism can pass to its long home without much more than a gentle flurry of section 18 notices. Requiescat in pace.

George Gretton, University of Edinburgh; Consultant, Pagan Osborne