SUPERIORS moveables of a debtor having lands were insufficient to pay his debts, the Sheriff was to sell his lands on fifteen days' notice; the purchaser to hold of the Crown, or subject-superior, as the debtor held; the subjectsuperior having always right of pre-emption.1 It appears also that, even at a remote period, and before the modifications of the law on the subject now in force were introduced, superiors consented to accept and enter strangers to the feus, or, as they are now called, singular successors, instead of the former vassals, on payment of fines of various amount. But, at the period here referred to, the right of superiors to refuse new vassals was absolute. That, however, was a state of things which, to a people growing in wealth and intelligence, was intolerable. It was obviously essential that land should become an article of commerce, and still more that it should be made subject to the onerous debts contracted by the proprietor, which, in a very early age, it seems to have been,-though, for a time afterwards, it was not. But the manner in which our legislators proceeded, in amending the law on these important points, shows remarkable caution, and is highly illustrative of the deep-rooted influence which the feudal rules must have obtained in the country. The Act of Alexander is the earliest Statute we have on this subject. But that Act seems to have fallen into abeyance; for, in 1469, an Act2 was passed, conferring on creditors, as a new and original privilege, the right to apprise their debtor's lands for payment of his debts. This last-mentioned Act has proved of very great value and importance in regard to Scottish land-rights. For, although in its terms in favour of creditors only, and not professing to improve or alter the position of purchasers, it has in its practical operation been available to absolute purchasers also. In fact, it not only formed the introduction to the laws by which heritable estate in Scotland can be sold by the owner's creditors, for payment of the owner's debts, but it has proved the foundation of the arrangement, now by law existing, in reference to the admission or entry of strangers or singular successors to feudal estates. By its terms, it simply conferred power on creditors to obtain judicial securities over their debtors' lands, that is, to apprise the lands for payment of their debts; the rights of the creditors being redeemable by the debtors (the owners of the land) within seven years. In the case of apprising, it abrogated the superior's right to refuse the new proprietor, and ordained the overlord, or superior, to receive the creditor as his tenant,- that is, vassal (strictly speaking, the person holding the feu),-on payment of a year's mail, or rent, as the land was set for the time. The Act thus entitled creditors-apprisers to compel the superior to receive them as vassals on making this payment; and ordinary purchasers were in use to go through the form of apprising the lands purchased, after which they took advantage of the enactment to obtain entries in the form and character of creditors-apprisers, paying, of course, the year's rent due to the superior. By-and1 Thomson's Acts of Parliament, i. p. 371. 2 1469, c. 3. bye, apprisings, as conducted under the Act in question, were found to cause injustice and oppression to the proprietors of lands; and adjudications, that is, judicial dispositions or conveyances in favour of the creditors, but subject to the right of redemption on the part of the debtor during a limited period,-came to be substituted for apprisings. And by the Act 1672, cap. 19, adjudgers were placed on the same footing with apprisers as regarded the superior. A few years afterwards, we find purchasers of bankrupts' lands at judicial sales entitled to be entered on payment of a year's rent.1 PURCHASERS ON Still, ordinary voluntary purchasers were denied the privilege of ENTRY OF being at once, and as matter of legal right, admitted in their true PAYMENT OF A character of purchasers as vassals, instead of the former vassals. This COMPOSITION. state of the law led to the introduction of conveyances with alternative manners of holding,-a me de superiore meo, and de me; the operation of which I will explain fully in a subsequent lecture. The effect was to give a purchaser present security of title, against all third parties not having rights preferable to the seller's own right, and full power to obtain an entry from the superior, as soon as the superior consented to receive him as vassal. From these two modes of obviating the legal difficulty interposed by the feudal rules,-aided largely, no doubt, by the offer of the usual fine or composition upon entry, it became usual for superiors to compound with new proprietors, and to accept from them a year's rent, in consideration of waiving the right to refuse them an entry. But the new proprietors remained without direct legal remedy (in the event of the superior refusing an entry) until after the Rebellion in the year 1745; when, by the Act 20 Geo. II. cap. 50, sects. 12 & 13, superiors were ordained to enter purchasers or disponees, upon their paying or tendering such fees or casualties as the superior was by law entitled to receive upon their entry. The Act of 1747 was passed at a time when the suppression of a rebellion, fostered almost exclusively by a 'party whose influence lay in their feudal power, must have greatly strengthened the hands of the Government. Nevertheless, we have still, in that Act, a remarkable concession to feudal notions, in the particular mode by which alone it enabled new proprietors to enforce their right of being admitted as vassals to their feus. For a long time previously, it had been usual to frame conveyances of land, with a view to the purchaser's entry with his superior, in one or other of two forms, viz., by resignation or confirmation. According to the former, the vassal selling appeared before the superior, and, with all reverence and humility, as the Styles record (and in this they no doubt tell of what took place in early times, though the practice gradually fell into disuse), resigned, and surrendered his feu into the hands of the superior in favour of histhe vassal's-disponee, in order that the superior might receive and enter and infeft such disponee as his vassal. This was the entry by resignation, in which you will observe that the new vassal's infeftment 1 1681, c. 17. HOSTING AND HUNTING. HERITABLE proceeded directly from the superior. In the entry by confirmation, the old vassal first gave the new vassal an infeftment, which the superior was then asked to confirm. But there was no resignation and surrender, and the new grant, or infeftment, did not proceed from the superior. He simply confirmed the grant made by his old vassal. The practice of framing conveyances, adapted to either of these modes of entry, had become universal, long before the passing of the Act of 1747; and it would have seemed natural that the new law should have authorized entry in either form, in the option of the vassal. But the law did not go so far. It allowed only one form in which to require the superior to grant entries; and it selected that which had the most distinct traces of feudal usages in it, viz., the resignation and surrender by the old vassal in the hands of the superior, in order that he might give the new infeftment to the new vassal. After various modifications of the law in the above particular, the last vestige of restraint was removed in 1847 by one of Lord Rutherfurd's Conveyancing Acts;1 and superiors are now bound to admit and enter any person, having a formal title from the last vassal, upon payment of such fees or casualties as they are by law entitled to receive. It had been not unusual to engraft on feu-holdings obligations to pay marriage-fines, and obligations of personal service, similar to those implied in proper ward-holding; the object of superiors being to secure thereby the benefits of the feu-holding, without losing those attendant on the ward. These were called the services of hosting and hunting, being obligations to attend the superior in time of the king's wars, and of trouble and insurrection in the country; to ride or go with him (as the Style set forth) in help and defence of himself and his friends, their honour, life, lands, goods, and gear, and to appear with him in good equipage on local State occasions; in other words, in wars and commotions, and at frays and followings. All these obligations were abolished by the Act commonly called the Clan Act, which was passed after the Rebellion of 1715,2 and the Acts which were passed after the Rebellion of 1745.3 Annual payments in money were substituted in place of these obligations; the amount to be assessed by the Court of Session, when the parties themselves could not agree on it. It may not be out of place to notice here the heritable jurisdictions JURISDICTIONS. Which formerly existed throughout Scotland; for though they no longer exist, and their abolition was of importance politically and socially, far more than as connected with the system of land-rights, still they were strictly incidental and appropriate to the feudal usages, which regarded the superior as the judge, as well as the ruler, in his own territory. The jurisdictions, moreover, were feudal estates granted by the Sovereign, to be held of and under the Crown as superior, and for payment of annual duties. They were alienable by one vassal to another, as far as lands were so alien 1 10 & 11 Vict. c. 48, s. 6. 21 Geo. I. stat. 2, c. 54. 3 20 Geo. II. c. 43, and c. 50. 6 able, and they could be attached for the proprietor's debts equally with lands. The most numerous of these jurisdictions were those attached to feudal baronies. The erection of a barony in old times carried with it the power of inflicting capital punishment on those within the barony, for offences there committed. In Crown charters of baronies, granted within a comparatively recent period, the clause expressing the privilege of pit and gallows,' 'infang-thief,' and 'outfang-thief,' appears to have been introduced almost as matter of course. The most important of the jurisdictions, however, consisted of sheriffships of counties, or portions of counties, of which there were no fewer than twenty, and lordships of regalities, of which there were many more. Of these last the proprietors were styled lords of regality. They had, within the bounds of their grant from the Crown, civil jurisdiction equal to that of the Sheriff, and criminal jurisdiction more extensive;--as they were, occasionally at least, competent to judge in the four pleas of the Crown, and possessed the same jurisdiction with the Court of Justiciary, except in the case of treason. The particular nature of the jurisdiction of the lords of regalities is forcibly exhibited in the following passage, taken from a charter by King James the Seventh to George Mackenzie, Viscount Tarbat. The charter gives him a heritable jurisdiction of regality, with power to administer justice within the 'said regality, and whole bounds thereof, to all persons complaining and 'having interest; malefactors and transgressors of laws to apprehend, examine, prosecute, and incarcerate, and to bring them to the know'ledge of an assize, for crimes of whatsoever nature or quality competent 'to be judged by His Majesty's laws of the ancient kingdom of Scotland; and that by hanging up, beheading, whipping, dipping or drowning in water, dismembration, fining, imprisonment, banishment, or 'extermination out of the said regality.' The above is quoted from Dallas' Styles. These formidable powers were granted to a subject and his heirs, with the ordinary right of alienation; yet so little did such a grant create surprise in his day, that Dallas, as a stylist, merely prefaces this print with a statement that the charter contains the power of Courts, and to a great extent in punishing, 'with many more fit clauses.' The exercise of the powers attached to these jurisdictions in criminal matters had long been discontinued, or fallen greatly into disuse, before the jurisdictions were formally abolished. But it was not quite obsolete; and the Rebellion of 1745 not only showed the necessity of having judicial power placed only in the hands of parties fitted from personal qualifications to exercise the duties of their offices, but it also afforded a good opportunity for making the needful change. The Government of the day wisely took advantage of the occasion. All the heritable jurisdictions were abolished, reserving to the proprietors all lands, etc., which had been annexed to their offices, and providing compensation in money for the abolished jurisdictions. All privileges of pit and gallows, or the like (though the exercise thereof had long fallen into disuse) were 1 Dallas, p. 577. formally abolished; and no heritors of lands, erected into a barony, or granted with other lower jurisdictions, or their bailies, were in future to exercise jurisdiction in capital cases, nor in any criminal cause other than minor assaults and smaller crimes; nor in civil causes for debts exceeding 40s. sterling, except for recovering from vassals and tenants the mails. and duties of their lands, or multures, or mill services. Proprietors often had the privilege of holding fairs and markets on their lands, with relative rights of jurisdiction; and these rights were reserved, so far as necessary for preserving the peace. There was likewise reserved the jurisdiction, then competent by law, over colliers or salters, but in no case the power of judging in a cause inferring loss of life or dismembration. The full extent and variety of the jurisdictions thus abolished will be found in the report and certificate made by the Lords of Session to the King in Privy Council, dated 18th March 1748, and printed among the Acts of Sederunt.2 The amount of the compensation money to be paid in lieu of the jurisdictions was £152,037, 12s. 2d. sterling. 1 The important changes in the system of land-rights before detailed, with others of a more practical character, chiefly introduced by the Conveyancing Acts of 1847, 1858, and 1860, have placed the system on a footing substantially adapted to the requirements of the day; and we have this remarkable fact to record concerning these changes, that, though extending over centuries, and the work of numerous hands, and intended to obviate difficulties of much variety, they have not trenched upon a single essential principle of the system. In principle, the system of land-rights established in Scotland, when the feudal usages were in the zenith of their power, remains wholly untouched. Theoretically and technically, the relation between superior and vassal throughout this country stands at this day in the same position as at the maturity of the system. And, though changes in detail will unquestionably be called for from time to time, we may hope, and, trusting to past experience, we can hardly doubt, that the system will exhibit in itself ample power of adaptation, and will keep pace with every reasonable requirement, consistent with what is the prime object in all systems of land-rights-security of title. In conclusion, it may well be noticed, not without a sense of wonder, and at the same time of gratification, that the system, formerly so well adapted to times of war and internal commotion, should now be so perfectly suited to times of peace and security. It cannot fail to excite wonder that the once powerful organization, the great reality of the feudal system, as a political and social institution, should now exist, with its distinctive principles untouched,—but merely as a technicality; and it cannot fail to excite a lively feeling of gratification that those habits of selfish aggrandisement, and the display of power, on the one hand, and of servile obedience on the other, which the system, in its prime, was so peculiarly calculated to engender and promote, should now, under 1 20 Geo. II. c. 43, ss. 1, 2, 6, & 17. 2 See Act of Sederunt, 18th March 1748. |