BRANCH III. DEEDS RELATING TO HERITABLE RIGHTS. PREPARATORY SKETCH. ESTABLISH MENT OF FEUDAL SYSTEM. TITLE I. THE CONSTITUTION OF AN ORIGINAL FEUDAL ESTATE. CHAPTER I. IN endeavouring to explain the system of permanent Land-Rights in Scotland, it is not my intention to enter at large on the consideration of the origin or history of the Feudal Law and usages. A dissertation of that extensive character is not required, in order to the exposition of the principles of the system. A brief notice, however, of the position of the national land-rights, and the relations of superior and vassal in this country, more particularly in the early feudal ages, is clearly requisite, both for understanding the essential principles of the system, no one of which has undergone alteration, and for appreciating those modifications in point of detail which have been made on it from time to time, and from which, taken together, it has its distinctive characteristics of security and simplicity. It is agreed on all hands, that the Feudal System was established in the south and west of Europe by the hordes from the north and from Asia, which overran and subverted the Roman Empire and most of its dependencies. Whether it was formed in England during the existence of the Saxon power, or was brought from the Continent by William the Conqueror, is a point on which learned writers are not at one. Professor Menzies says that, after the Norman invasion, the whole land in England was converted into proper feus;1 and certainly the system was well suited to promote the views of a Sovereign who owed his title to the sword. At what time the system obtained footing in Scotland is also matter of controversy. Lord Kames2 and others hold it to have been first adopted among us under Malcolm Canmore, a wise and politic prince, and to have made its way throughout this country gradually. From its remarkable peculiarities, and the obvious fact that, although 1 Menzies, p. 510. 2 Kames' British Antiquities, Essay 1. singularly adapted to the genius of this country in earlier ages, it was imported, and operated a fundamental change in the system of land-rights, on the whole, it appears probable that, with us, it was the work of time. and circumstances rather than the result of any direct exercise of power. But the system, by whatever means incorporated among our institutions, certainly struck root at a very early period in our history, and came to pervade the kingdom. PRINCIPLE OF THE SYSTEM. The original and fundamental principle of the system was, that all FUNDAMENTAL the lands in the kingdom either belonged to the Sovereign, or were held and enjoyed by the respective owners as vassals of and under the Sove reign, as superior, on condition of military service, or knight's service, as it is sometimes called. The Sovereign himself could not, in the nature of things, have any superior. His own right, jure corona, was allodial, and free of all obligation and condition. He was the source or fountain from whom all feudal rights flowed. From time to time the Sovereign. granted lands to subjects, on condition of their performing military service to the Sovereign, when required by him. The grant, and its acceptance, constituted a mutual contract: the Crown gave the lands; the vassal became bound, in respect thereof, to serve the Crown in time of war or insurrection. Or it may be described as a conditional grant; the condition being that the vassal should so serve, and should hold the lands only whilst fulfilling the condition. In like manner, subjects, holding in virtue of grants from the Sovereign, gave out subordinate rights to others, establishing with them the relative position of superiors and vassals. The vassals here again gave out, or were entitled to give out, subordinate rights, and so on downwards, each new subordinate grant constituting a new relation of superior and vassal. The superior and vassal, in every gradation, were in the same relative position to each other as that of the Sovereign and his immediate vassal. SERVICE. The stipulation or condition on which every grant was made, and MILITARY held, was military service; and so much was this the case that, if a grant was silent as to the manner or condition of the holding, it was presumed to be for such service. The grants, however, did not denude the makers, or dissever their connexion with the lands. On the contrary, each superior, the Sovereign excepted, remained in his order, notwithstanding his having made the subordinate grant, vassal to his own immediate superior, and liable as such to perform military service. Each vassal was superior to his own immediate vassal, and entitled, as such, to exact the same service. SUPERIOR AND The lands, viewed as a whole, formed, as it were, the subject of a RIGHTS OF joint-ownership; not as that term is now generally understood, but still essentially a joint-ownership, though of a very peculiar character. The change, which the position of the maker of each grant underwent, arose mainly and practically with reference to the right to possess the lands and draw the fruits or rents, and the obligation or liability for payment. of the national and local charges, or, in modern phrase, the public and parish burdens thereon. Each vassal, before making a subordinate grant, was proprietor and possessor. He had the whole proprietary benefit, an estate or interest which lawyers came to designate as the dominium utile of the soil. He was liable to pay all the burdens attaching by law to the rights of property and possession. By making the grant, he ceased to be proprietor in the sense of possessor; though, as we shall see, he had incidental rights, entitling him to resume the lands for a time, or permanently; and, even without resumption, he had an important control over the vassal's transactions as affecting the property. But, in general, he gave to his vassal that right of property which carried with it the privilege of possession, and of drawing the fruits and rents, so long as such vassal fulfilled the condition of the grant; the vassal, when the contrary was not stipulated, being liable to relieve the superior of the public and parish burdens. But the superior retained the radical right, the estate or interest which we now know familiarly as the dominium directum, or right of superiority, as contradistinguished from the dominium utile, or right of property conveyed to his vassal. Usually the entire right of property went to the vassal undivided, and the vassal became liable to pay all the corresponding burdens. But, on the one hand, the superior might reserve to himself valuable subjects, such as coal and lime, along with the dominium directum; and, on the other hand, it might be part of the contract that certain burdens, usually falling on the dominium utile, should attach to the dominium directum, or vice versa. In other words, the estate, as it stood undivided before the subordinate grant, became a joint-estate after such grant. Each party had real rights, and was subject to liabilities, distinct and separate, but capable of enlargement or restriction according to agreement. The rights of the parties accordingly stood thus -The radical right was in the superior, who was entitled, through his vassal, to have the condition of the subordinate grant fulfilled. He was therefore entitled, at all times, to have a vassal; and, if his vassal was not capable of fulfilling such condition, the superior was entitled to obtain compensation in one of those contingent or incidental rights attached to the dominium directum, technically called the casualties of superiority. The vassal, on the other hand, possessed the lands on condition of performing military service to the superior. As long as the superior had a vassal who was capable of fulfilling, and did fulfil, the condition of the grant, the superior could require nothing more. But in case of the non-fulfilment of the condition, or in case of the failure of the vassal, and until the admission or entry of a new vassal capable of fulfilling the conditions, as well as in some cases of feudal delinquencies on the part of the vassal, the superior was entitled, in virtue of his radical and fundamental right, to be reinstated in the actual possession of the lands, temporarily, or, in some cases, permanently. He had made a grant, the condition of which was not fulfilled; and the law in consequence suspended the grant for a time, or annulled it permanently. The grant to the vassal, and nothing else, excluded the superior; and, the grant being suspended or annulled, the superior's title resumed its original place, temporarily or permanently. During the suspension, or after the annulling of the grant to the vassal, there was no title but that of the superior himself, and he re-entered and possessed the lands accordingly. SUPERIORITY. The incidental rights arising to the superior, contingently on the CASUALTIES OF vassal's death, or inability or failure to fulfil the conditions of the grant, were technically called, as has just been stated, the casualties of superiority. Those appropriate only to the military holding are all now abolished, along with that manner of holding itself. But they are highly illustrative of the principles of the system of feudal land-rights; on which account, and as they are the origin of the incidental rights or casualties. still attached to estates of superiority, it will be useful here to explain their nature shortly. 1. The most important was the casualty of ward; arising when the WARD. vassal's estate or feu fell to an heir who happened at the time to be in minority. The superior was, from a very early period, bound to admit or enter the heir as his vassal, in place and stead of the deceased ancestor. But, the condition of the grant being military service, which, it was said, could not be performed by a minor, the feudal law gave the superior, during the heir's minority, not only the custody or guardianship—the warding-of the heir's person, and management of his whole affairs as his tutor; but also, in compensation for the loss of services, the full rents of the heir's estate. Hence the casualty was called the ward, and the tenure by military service acquired the name whereby it is now most familiarly known, viz., ward-holding. The superior's rights, in virtue of this casualty, lasted until the heir, being a male, attained twenty-one years of age, or a female, fourteen, until which age, by our old law, she could not marry. The guardianship of the person appears to have been little exercised, however, after the commencement of the seventeenth century. Erskine says superiors grew weary of an office which brought no profit ;' and hence the casualty of ward came latterly to be understood with reference to the superior's right in his minor vassal's estate. By-and-bye TAXED WARD. this casualty came occasionally to be fixed at a specific sum, payable annually during the wardship,-in other words, taxed. In such cases, the superior levied from the minor vassal the taxed sum annually. The vassal, on the other hand, had the uninterrupted right of possession of his own lands. The casualty of ward, whether simple or taxed, was abolished altogether in 1748.2 But, under the holding in simple ward, and whilst the casualty was in operation, the right of the superior was so independent, that no debt contracted, or right granted, by the previous vassal, without either direct legal authority or the superior's consent, had the effect of restricting the ward-estate to the superior's prejudice. The superior was not bound to respect subordinate rights granted by his vassal, though duly published and made real through the registers; nor 1 Erskine, ii. 4. 3. VOL. I. 2 20 Geo. II. c. 50, s. 1. MARRIAGE. leases so granted, though followed by possession of the tenant, and protected against purchasers by an express Statute.1 That Act did not extend to or affect the rights of the superior, which remained untouched by such leases. The vassal's debts, though heritably secured on the ward-lands, were not effectual against the superior, who could also disregard servitudes constituted by the vassal, unless fortified by prescription. Even the decree of a Sheriff, fixing the marches of the ward-lands, was not effectual against the superior, if he had not been made a party to the suit. In certain contingencies, the superior's right is as independent even at the present day, though it is hardly ever met with in exercise to the full extent. 2. As connected with the willing and efficient performance of military service, the superior had an interest in seeing his vassal, particularly when a female, married into a friendly house. Hence there was the casualty, peculiar to ward-holding, of marriage; arising from the right claimed by the superior to choose a wife or a husband, as the case might be, for a vassal succeeding as heir of a former vassal, and to receive what the heir got with such wife or husband in name of tocher or provision. This casualty, by our later practice, accrued to the superior in every case where the vassal-heir was not married at the time of his ancestor's death. It was exigible even though the heir, when required by the superior to marry a lady of the superior's choice, accepted and married such lady. The amount, called the avail (or value), was ultimately estimated at two years' rent of the ward-vassal's whole lands; not merely the lands held of the superior claiming the casualty, but the whole lands belonging to the vassal. When, however, the vassal, not contented with refusing the wife or husband offered by the superior, presumed to choose a wife or husband for him or her self without the superior's consent, and intermarried with the person so chosen, the vassal was liable in double avail. A curious evidence of the abuses attempted under this state of the law appears from a reported case, where the superior, having learnt that his vassal was actually engaged to be married, offered him another lady as his wife, in order to found the claim of double avail. This, however, the Court, in the circumstances, disallowed.2 And the steps necessary for entitling the superior to claim the double avail instructively tell of the liability of such a right to lead to abuse, and of the checks early provided by legal forms in the way of prevention. The superior had to require the vassal, under form of instrument, to meet and treat with him, in some unsuspected place, upon the marriage offered by the superior. If the vassal, at the interview, refused to name a day for celebrating the marriage so offered, the superior took upon himself to name the day for such marriage, and, upon the day appointed, brought the lady to church, where she must have openly declared her willingness to accept of the vassal for her husband. On this Erskine remarks: As it can hardly 'be figured that a woman of character would have stooped so low 2 Drummond, 22d Feb. 1678, M. 8541. 1 1449, c. 18. |