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PART III-HERITABLE RIGHTS.

I. THE FEUDAL SYSTEM-CASUALTIES OF SUPERIORITY, ETC.

548. Give an outline of the origin and nature of the Feudal

System.

A resemblance of the Feudal System is to be found in particular stages of the history of Greece and Rome, and in the customs of various nations and races both in the Old and in the New World; but the system, in its mature form, may be said to be the result of the state of society at the time of the fall of the Roman Empire, and the events which then took place. The several barbaric tribes who overthrew the empire, having cantoned themselves out into the countries which they had seized, continued arranged under their own officers, each of whom had a separate territory allotted to him, on which he could retain and support his immediate followers, the largest allotment being assigned to the principal leader; and in this way all were bound in allegiance, both to their immediate superiors and to their chief, and all were in readiness to be called out to arms whenever their services were required. The policy of this system, says Mr. Erskine, was so universally approved in that military age, that, even after an end was put to the reign of the Lombards in Italy, it was adopted by Charles the Great, and by most of the princes of Europe.1 The essential elements of the feudal system were thus LAND-with the protection of the vassal on the one hand, and, on the other, fidelity and military service to the superior of whom the grant was held; and although the tenure has now been adapted, perhaps as far as it is capable of being so, to the wants of civilised times, the funda

1 Ersk. 2, 3, 3; Ross Lect. ii. 23 et seq.; Menzies Lect. 482 (502) et seq.

mental principle still remains, that the property of land is held either directly and immediately under the Crown, as paramount superior, or indirectly under a Crown vassal, or a sub-vassal in a more subordinate degree.

549. Name the three great stages into which the progress of feus is divided by Sir Thomas Craig in his Jus Feudale, with their respective periods and characteristics.

(1.) The infancy of feus; when they were precarious or revocable at the granter's pleasure, which was their primary characteristic.

(2.) The childhood of feus; when they were for life, which prevailed from the middle of the seventh till the end of the ninth century.

(3.) The manhood of feus; when they become hereditary. Under Charlemagne feus were made descendible to children and grandchildren in the direct line; and by the Emperor Conrad, in 1026, they were made transmissible to collaterals.'

550. What are the date and contents of the Styles of Marculfus; and what was the first institute of the feudal law; by whom was it compiled, and chiefly from what source?

(1.) The Styles of Marculfus, who was a French monk, were published about the year 660, and they consist of two books, the first containing Preceptiones Regales—i.e., royal precepts or grants; and the second, Charta Pagenses-i.e., charters belonging to the country, or writings of country affairs.2

(2.) The first institute of the feudal law was the Consuetudines

1 Craig, 1, 4, 5 et seq.; Ross Lect. ii. 33 et seq.; Menzies Lect. 489 (509). A writer in the Journal of Jurisprudence, in an able and instructive article on "Feudalism" (ii. 220), somewhat facetiously completes Sir Thomas' metaphor thus :— "The barter of warlike for agricultural services was the act of senility,

lazy and detesting trouble and personal discomfort; the receipt of money for feu-holding was decrepitude; and the legislative abolition of ward-holding, or holding on condition of military service, was death.

2 Ross Lect. ii. 72; Menzies Lect. 486 (506).

Feudorum, or the Book of the Feus, compiled in the twelfth century, chiefly from the customs of the Lombards.1

551. What is the order in which the different authorities on

feudal questions are resorted to?

(1) Statutory law; (2) common law; (3) the laws and customs of other nations observing feudal institutions; and (4) the Consuetudines Feudorum.2

552. When was the feudal system introduced into Scotland; and what cause principally led to its extension?

It is generally supposed that the feudal system was introduced into Scotland in the eleventh century, and subsequent to the Norman Conquest. The cause which principally led to the extension of the system was the insecurity of the proprietors of allodial property, who, while they had the absolute power of disposal, and recognised no superior, were unable to defend the possessions of their property against hostile attacks in an age of violence, and were consequently induced, for their own protection, to resign their estates into the hands of the powerful barons, receiving back the lands in the form of a feudal grant. Allodial proprietors, also, whose title-deeds had been lost by the ravages of war, or consumed by fire, resigned their lands into the hands of the sovereign, and obtained a feudal recognition of their title; and a large extent of land which had been bestowed on the church was feued out to vassals for an annual payment, or for military services.3

553. What classes of property are excepted from the operation of the feudal system in Scotland?

(1.) Rights reserved to the Crown out of lands feued to subjects; as gold and silver mines, forestry, and salmon fishings. (2.) The patrimonial estate of the sovereign-lands, castles, palaces, &c.

(3.) The principality of Scotland belonging to the sovereign's eldest son, as Prince and Steward of Scotland.

(4.) The Crown's superiority of lands belonging to subjects in property.

1 Ross Lect. ii. 38; Menzies Lect. 490 (510).

2 Menzies Lect. 494 (514).

3 Ross Lect. ii. 16, and 56 et seq.; Duff's Feud. Conv. 41, 43; Menzies Lect. 490 (510).

(5.) Church property-churches, churchyards, manses and glebes.

(6.) Lands in Orkney and Shetland held by udal tenure.1

554. What was the ancient method of constituting the feudal relation, and what were the progressive steps leading

to the modern form of investiture?

(1.) The feudal relation was anciently constituted by the superior in person delivering possession to the vassal upon the ground of the feu, in presence of the pares curia, which was called the proper investiture. Although writing was not necessary, sometimes the superior, after the ceremony, delivered to the vassal a breve testatum, attesting the fact of delivery.

(2.) As the personal attendance of superiors was not always convenient, the practice was introduced of their executing a mandate or precept before possession was given, directing their commissioner or bailie to invest the vassal; and the investiture was completed by the delivery of possession to him in virtue of the precept. But the precept was no evidence of the right, unless the bailie's seal was appended to it, in token of possession having been given, or unless the bailie gave a separate certificate attesting the fact of delivery. This was termed the improper investiture.2

(3.) The next step was the charter, with a separate precept, and afterwards the charter and precept combined, followed by symbolical delivery, which was attested by the instrument of

sasine.

(4.) The institution of the registers for publication was the next advance towards the modern form of investiture, one of its essential elements having been thereby introduced. Thus the requisites of investiture at this stage were-(1) the grant; (2) symbolical delivery on the ground; (3) evidence of delivery by the instrument of sasine; and (4) publication of the right by regis

tration.

(5.) Symbolical delivery was abolished by the Infeftment Act of 1845.

(6.) By the Titles to Land Act, 1858, the sasine was dispensed

1 Ersk. 2, 3, 8; Menzies Lect. 496 (516).

2 Ross Lect. ii. 120; Menzies Lect. 508 (528).

with, and registration of the charter introduced as an equivalent; so that the requisites of a complete investiture now are (1) the -(1) grant; and (2) publication of it by registration. [The provisions of the 1858 and 1860 Acts are substantially re-enacted by the Consolidation Act.]

555. Enumerate the feudal holdings, and mention which of them still subsist?

There were originally five kinds of holding, viz.—(1) wardholding;(a) (2) feu; (3) blench; (4) burgage; and (5) mortification. Of these, feu, blench, and burgage alone subsist.

(1.) Ward-holding, the ancient military holding, was once the prevailing tenure of the feudal law, so that when no holding was expressed, ward was presumed. The reddendo, or fixed return, expressed in the grant, was servitia solita et consueta, being military and personal services. (b) This holding was abolished by the Act 20 Geo. II. c. 50.

(2.) Feu-holding, now the prevalent tenure, is where lands or other feudal property are granted in perpetuity for a reddendo of money, grain, or agricultural services.

(3.) Blench-holding, originally the holding expressed in grants bestowed ob præclara in rempublicam merita et partam bello gloriam, is where the reddendo is nominal or illusory, as a pair of gilt spurs, a pound of wax, or a penny, si petatur tantum. In other respects it resembles feu-holding.

(4.) Burgage is a species of military holding, peculiar to royal burghs. The sovereign is superior, each proprietor holding directly of the Crown for the service of watching and warding, the magistrates being the Crown's commissioners in renewing investitures. [The Conveyancing Act, 1874, enacts, section 25-"there shall not, after the commencement of this Act, be any distinction between estates in land held burgage and estates in land held feu, in so far as regards the conveyances relating thereto, or the completion of titles." Burgh registers are retained.]

(a) Also soccage. See note (b), below.

(b) As the military service incumbent on the vassal in ward-holding interfered with agriculture, landholders, to remedy the inconvenience, made grants of small parcels of land on condition that the grantee should cultivate and sow the granter's lands retained in his own possession. The holding in these grant was called Soccage; Ersk. 1, 1, 35, and 2, 4, 5.