Report on Abolition of the Feudal System : Part 2

Report on Abolition of the Feudal System

Part 2 Abolition

2.1 We have already concluded that the feudal system of land tenure should be abolished.¹ In this part we consider how that should be done. In particular, we consider the effect of abolition on the rights of the Crown and on baronies.

The proposals in the discussion paper

2.2 In the discussion paper² we proposed that the Crown should lose the normal rights of a feudal superior under the feudal system of land tenure. The Crown should no longer be entitled to create new feus, exact payment of feuduty or enforce, as a superior, any land conditions or real burdens.

2.3 However, we made it clear that we had no intention of abolishing the Crown’s prerogative rights as sovereign or head of state in relation to such matters as the sea bed, or unowned property or the granting of peerages and other dignities. We noted the difficulty of disentangling such rights from the Crown’s position as paramount superior and therefore proposed that the abolition of the feudal system of land tenure should be without prejudice to any other rights, privileges or benefits of, or derived from, the Crown by virtue of the paramount superiority.

2.4 Almost all those who commented on these proposals agreed with them or accepted them. We adhere to them in substance. However, we do not now consider that, as a matter of technique, it is necessary or desirable to preserve the Crown’s paramount superiority in order to achieve the objectives set out in the discussion paper.

Recommendation: complete abolition

2.5 There is, we think, no doubt as to the objectives to be achieved. The feudal system of land tenure should be abolished in its entirety, and the interest of the owner of the dominium utile - who for all practical purposes is the owner of the land at present - converted into ownership. All feudal superiorities should cease to exist. The prerogative rights of the Crown as sovereign or head of state should, however, be preserved. It is not necessary to preserve the paramount superiority of the Crown in order to achieve that result. It is not desirable to preserve the Crown’s paramount superiority because its preservation would involve the retention, even if only in a theoretical sense, of part of the feudal system of land tenure. It would also mean that there would continue to be a distinction between land owned outright, such as udal land, and land held on feudal tenure. One of the longer term objectives of the reform of Scottish property law should, in our view, be a unified system of land ownership in Scotland. We therefore recommend that

1. (a) The feudal system of land tenure should be abolished as from the appointed day.

(b) The dominium utile in any land held on feudal tenure immediately prior to abolition should be converted automatically, by operation of law, into ownership and all feudal superiorities in the land should cease to exist.

(Draft Bill, clauses 1 and 2(1), (2))

Conditionality of ownership

2.6 Under our proposals feudal ownership (dominium utile) would become ordinary ownership (dominium). Land and buildings would then be owned outright instead of, as at present, being held from another person or from a chain of persons. Historically, feudalism separated immoveable property from moveable, leading, as Bell noted, to "a double system of jurisprudence, in relation to the subjects of property".³ Its abolition will bring conceptual unity to the law of property.

2.7 Outright ownership does not mean unrestricted ownership. Erskine’s famous definition of ownership, from the second half of the eighteenth century, was of "the right of using and disposing of a subject as our own, except in so far as we are restrained by law or paction";⁴ and in emphasising the restrictions affecting ownership Erskine was merely part of a much longer tradition in European legal thought.⁵ Today ownership is more restricted than at any time in the past. Professor Gordon’s work on land law devotes over 300 pages to identifying and analysing the restrictions.⁶ These range from voluntary restrictions, arising out of contract or real right, to restrictions based on the common law of nuisance or delict or common interest and conceived in the interest of neighbours. In modern times there has been a large volume of legislation, particularly in the fields of planning, environmental and social law. None of this will be affected by our proposals. After feudal abolition owners will no longer be answerable to feudal superiors. But otherwise ownership will be as conditional as before.

No new feus

2.8 There would be no point in abolishing the existing feudal system if a new one could be erected in its place. It was accepted by almost all of those who commented on our discussion paper that the Crown should not be able to create new feus after the appointed day. Even more clearly, it should not be possible for other landowners to create new feus. We recommend that

2. It should not be possible to create any new feudal estate in land after the appointed day.

(Draft Bill, clause 2(3))

Limitation on length of new leases

2.9 It would not be satisfactory if the feudal system of land tenure were to be replaced by a system based on ultra-long leases which had, or might come to have, many of the same defects as the feudal system. We therefore recommend, later in this report, a limitation on the length of all new leases.⁷ There already is a limitation on the length of leases of residential property: in effect such leases cannot exceed 20 years.⁸

Purported transfers of non-existent interests

2.10 As a matter of principle and logic it would no longer be possible after the abolition date to transfer a feudal interest in land. Any purported transfer of a superiority or dominium directum (or indeed of a dominium utile as such) would be void and of no effect. Officials of the Registers of Scotland expressed some concern, however, as to the practicalities of handling purported transfers of non-existent interests in land after the date of abolition. The problem is that there will after abolition be titles which consist partly of non-existent superiority interests and partly of transferable subjects, such as reserved portions of actual land or reserved minerals. The correct, and indeed the only logical, course would be for any transfer after the abolition date to relate only, and specifically, to the subjects now owned. There is a fear, however, that people will still attempt to transfer the whole subject matter of the old title even although part of it no longer exists and that this could pose practical problems for the Keeper of the Registers.

2.11 So far as the Register of Sasines is concerned the problem is not acute. The Keeper has a well-recognised discretion to refuse to register writs which are wholly inappropriate to the Register of Sasines.⁹ It would therefore be within the Keeper’s discretion to refuse to register any deed which clearly purported to convey only a dominium directum. However, if a deed merely included a dominium directum along with other matter appropriate for the register it is likely that the Keeper would not reject the deed. We are informed that the Keeper is normally loathe to deprive an applicant of a possible benefit of recording and will normally give the applicant the benefit of any doubt. In some cases it might not be clear that the purported conveyance included a non-existent interest. In such cases the deed would in practice be registered if it was otherwise in order. The Keeper cannot reasonably be expected to investigate titles for the purposes of the Register of Sasines. However, registration would not convert a non-existent interest into an existing interest. The Register of Sasines is simply a register of deeds, not a register of title. It would not matter if an occasional deed included matters which ought not to be on the register. In the course of time the Register of Sasines will in any event be replaced by the Land Register.

2.12 So far as the Land Register is concerned there could be a problem at the practical level. Section 2(4) of the Land Registration (Scotland) Act 1979 provides that

"There shall … be registrable … any transfer of a registered interest in land . . "

After abolition there will continue to be superiorities which on the face of the register are registered interests in land. In fact they will be registered non-existent interests in land - that is to say, registered nullities. They will not be capable of transfer because there will be nothing to transfer. It would, however, be reasonable to protect the Keeper from arguments of this type with applicants for registration who found on the apparently clear words of the Act. So, while the principle that an interest which cannot exist cannot be transferred is clear, it could be useful to strengthen the hand of the Keeper at the practical level of putting this principle into effect. The appropriate way of doing that, it seems to us, is to add a provision to section 4 of the 1979 Act (which deals with refusals of applications for registration) to make it clear that the Keeper must refuse an application if it relates, in whole or in part, to any interest in land abolished by the proposed new Act.¹⁰ We recommend that

3. It should be provided that the Keeper must refuse any application for registration in the Land Register if it relates, in whole or in part, to any interest in land abolished by the new legislation.

(Draft Bill, clause 3(a))

2.13 The effect of this recommendation is that in the course of time the Land Register will be cleansed of mixed titles - that is, titles containing superiorities. Anyone wishing to convey, say, reserved land or reserved minerals still covered by a title purporting also to be a title to the dominium directum would have to restrict any post-abolition transfer to the reserved matters. In so far as the application for registration purported to cover the dominium directum the Keeper would be bound to refuse it.

Crown rights

2.14 It follows from what has been said above that in general the new legislation should apply to the Crown. The discussion paper made it clear, and it was accepted by consultees, that any proposals for the abolition of the feudal system of land tenure should not affect the prerogative rights of the Crown - by which we mean those rights held by the Crown as sovereign or head of state - even if historically those rights, or some of them, can be traced back to a time when the feudal system was at its height. The draft Bill contains a clause to implement this policy.¹¹ We have made a careful examination of the various Crown rights and we have consulted those, such as the Crown Estate Commissioners, who have practical knowledge of their operation. This report is not the place for an exhaustive treatment but it is necessary to give a short explanation.

2.15 The first point to note is that no special provision is necessary for any private estates owned by the reigning monarch in a personal capacity. Such property will come under the proposed legislation in the ordinary way. Indeed the abolition of the feudal system will make the treatment of such property more simple. Under the feudal system there is an awkwardness in the situation where the reigning monarch holds private property as a vassal of the Crown. A special provision had to be enacted to prevent the two feudal interests from merging and the private estates from reverting to the Crown jure coronae.¹² Under the proposed new system of ownership there is no such awkwardness and no need for any special provision.¹³ The reigning monarch would simply be owner of his or her private estates in the same way as any other person.

2.16 There is also no need for any special provision for Crown property owned by government departments. The ordinary rules will apply. Any such land held on feudal tenure will, after the appointed day, be owned outright. Again the theoretical awkwardness in the idea of the Crown in one capacity holding of the Crown in another will disappear.

2.17 There is some land which has never passed into individual ownership but which remains Crown land. One example which was drawn to our attention is Edinburgh Castle. Such land is not held on feudal tenure. It has never been feued and has never entered into the feudal system of land tenure. It is allodial.¹⁴ It would be unaffected by our recommendations.

2.18 Certain rights, many of them important and valuable, are vested in the Crown by statute. For example, the property in petroleum existing in its natural condition in strata in Great Britain or beneath the territorial waters of the United Kingdom adjacent to Great Britain was vested in the Crown by statute in 1934.¹⁵ Older statutes regulate the Crown’s rights in relation to mines of gold and silver.¹⁶ Rights in wreck are also regulated by statute. Section 241 of the Merchant Shipping Act 1995 provides that

"Her Majesty and Her Royal successors are entitled to all unclaimed wreck found in the United Kingdom or in United Kingdom waters except in places where Her Majesty or Her Royal predecessors has granted the right to any other person. "

It is clear that any rights which have been vested in the Crown by statute and which have not since been disposed of by the Crown on feudal tenure would be unaffected by the abolition of the feudal system of land tenure.

2.19 There are other Crown rights of a miscellaneous character, known as the regalia majora and the regalia minora, which still depend largely on the common law.¹⁷

2.20 The regalia majora are regarded as held inalienably by the Crown to secure certain public rights such as the right to navigation. The content of the regalia majora is not easy to determine. Some rights which were formerly considered to be inalienable, such as rights in the foreshore, have since been held to be alienable.¹⁸ Some rights, which were at one time considered to be alienable at least to some extent, such as rights of criminal and civil jurisdiction,¹⁹ are now regarded as inalienable. Whatever the precise nature of the regalia majora in the present law, it is clear that inalienable Crown rights can never have entered into the feudal system of land tenure as it is defined for the purposes of this report. Having always been retained by the Crown they can never have been held of the Crown or of any subject superior. They would be unaffected by the abolition of the feudal system of land tenure.

2.21 The regalia minora are capable of alienation. They include

(a) the sea, sea bed, foreshore and tidal rivers;²⁰

(b) the right of ferry, port, harbour and highway;²¹

(c) the right of fishing for salmon²² or for oysters or mussels;²³

(d) any property which has become ownerless or which is unclaimed.²⁴

2.22 We have considered all of these rights, and others,²⁵ in some detail but in the end we have concluded that the problem of alienable Crown rights in or relating to land solves itself. In so far as any such Crown right has not been alienated then it has not entered the feudal system. It is like land which has never been feued out. It is simply unaffected by the abolition of the feudal system of land tenure. If the Crown right has been alienated then it no longer belongs to the Crown and there is no question of preserving a Crown right. If the right has been feued out then it would be affected by the proposed legislation in the normal way. The owner of the dominium utile will become the outright owner.

2.23 States have certain rights in public international law. A State, for example, has well recognised rights in relation to its own territories, including its territorial waters. It is clear that the rights in public international law of the United Kingdom, or of the Crown as representing the United Kingdom, would be completely unaffected by the abolition of the feudal system of land tenure in Scotland, which is a matter of internal law affecting only one part of the kingdom.

2.24 The Crown’s powers in relation to peerages and other higher dignities may have been regarded at one time as pertaining to the Crown’s paramount superiority in the system of land tenure.²⁶ However, peerages and higher dignities appear to have ceased to be tied to lands from about the 16th century and are now detached from the feudal system of land tenure. The Crown’s powers in relation to them are now regarded as prerogative powers. Baronies, by contrast, are still territorial and are linked to the system of land tenure. They are a by-product of the feudal system rather than an aspect of the Crown’s prerogative powers. The acquisition of a barony does not involve any exercise of the Royal prerogative in favour of the acquirer or his or her ancestors. It involves buying a plot of land with certain feudal features in its title deeds. We consider baronies separately later.²⁷

2.25 For the reasons given above, we do not believe that the complete abolition of the feudal system of land tenure would affect Crown rights other than those manifestly held as a feudal superior, such as the right to feuduties or the right to enforce real burdens in relation to land which had entered the feudal system of tenure. For the avoidance of any doubt, we recommend that there should be a saving provision in the legislation to make it clear that any prerogative powers exercisable by the Crown (including any powers relating to peerages, dignities or other honours and any powers relating to ownerless or unclaimed property) would be unaffected by the provision abolishing the feudal system of land tenure.²⁸

2.26 At present there is some doubt as to whether the Crown can dispone land, as opposed to feuing it. We recommend later that this doubt should be removed and that it should be made clear that the Crown can grant a disposition, just as any other owner can do.²⁹ This, coupled with the preservation of the Crown’s prerogative powers, would enable a title to be granted to anyone who had an appropriate moral claim to property which had passed to the Crown under the rules on bona vacantia.

2.27 We recommend that

4. It should be provided that the abolition of the feudal system of land tenure does not affect any prerogative power exercisable by the Crown as sovereign or head of state (including any prerogative powers relating to peerages, dignities or other honours or relating to ownerless or unclaimed property).

(Draft Bill, clause 52)

The Prince and Steward of Scotland

2.28 It has been suggested³⁰ that there are two paramount superiorities in Scotland - that of the Crown and, in relation to lands within the Principality of Scotland, that of the Prince and Steward of Scotland. The Principality of Scotland comprises the hereditary lands of the Stewarts and the Earldom of Carrick and the Isles.³¹ The Prince and Steward of Scotland is the reigning monarch’s eldest son. If the reigning monarch has no son, the reigning monarch is Prince and Steward.³² The lands of the Principality have been feued out to vassals and bring in only a small income.³³

2.29 The recommendations which we have made for the abolition of the feudal system of land tenure would apply to lands within the Principality as to other lands within Scotland whether or not the Prince has a separate paramount superiority. Accordingly, the owner of the dominium utile of any land within the Principality would become the outright owner of the land. Any "principality duties" would be extinguished on the payment of compensation in the same way as ordinary feuduties.³⁴ Nothing in the Bill would affect the title of Prince and Steward of Scotland.

Peers and holders of ancient offices

2.30 This report is concerned with land tenure. Superiors will disappear and there will be special provisions on baronies³⁵ but, subject to that, the report is not concerned with any right, title, honour or dignity (even if of feudal origin historically) held by any person. In particular, it is not the purpose of this report to affect any of the feudal elements in constitutional law or practice,³⁶ any peerages, or any of the ancient offices or positions which may have been feudal in origin.³⁷ The draft Bill is framed in such a way that all such matters would be unaffected by it.³⁸

Barons

2.31 Introduction. One of the most distinctively feudal features of the system of land tenure in Scotland is that the holding of a feudal estate in land on a particular type of title called a barony title gives rise to certain conveyancing peculiarities and carries with it certain privileges. The estate in land might be no more than the dominium utile or even the bare dominium directum of a tiny plot of waste ground, of little or no value in itself, which represents the head place or caput of the barony.³⁹ The estate in land can be bought and sold in the normal way. Remarkable as it may seem, ownership of such an estate in land carries with it a barony. It enables the owner to claim ennoblement by the "nobilitating effect" of the "noble quality" of the feudal title on which the land is held. The title of "Baron of So-and-So" or "Baroness of So-and-So" can be adopted. If the holder is granted armorial bearings by the Lord Lyon (which is entirely a matter for the Lord Lyon’s administrative discretion) and if a prima facie title to the barony is established there is a right to relevant baronial additaments to the coat of arms. Baronial robes can be worn. The baron can, in theory, hold a baron’s court, appoint a baron baillie to be judge, and exercise a minor civil and criminal jurisdiction.⁴⁰

2.32 In recent years a market in Scottish baronies has developed. We were informed by a dealer in baronies that in June 1997 the expected price for a barony, with no special features and a minimal amount of land of no value in itself, was about £60,000. Information from other sources suggests that the market value of baronies has not decreased since then.

2.33 It is important to be clear about what is meant by a barony title. The term is used in two senses. The first sense refers to the actual title to the land. This must have originally been granted by the Crown by a feudal grant which specifically conferred baronial privileges and responsibilities. The conveyancing terminology varied from time to time but a standard form of wording came to be a grant of all and whole the lands and barony of X to be held in free barony (in liberam baroniam). In this sense the term "barony title" simply means a title to land which can, from its nature and wording, be identified by conveyancers as deriving from a Crown grant of land in barony. The land or the estate in land must still be held of the Crown without any intermediate superior but it is possible for the estate to be a mere dominium directum. The second sense of "barony title" refers to the right to use the title or appellation "Baron". This is more of a lay person’s usage than a lawyer’s usage but the idea that the purchaser of a barony acquires a "title" in this sense may well contribute to the value of baronies on the market. In this report we use "barony title" in the conveyancing sense.

2.34 Proposals in the discussion paper. The discussion paper⁴¹ mentioned, but rejected, the possibility of allowing the "noble aspects of the barony title" to lapse along with the abolition of the feudal relationship on which the ennoblement of the baron is based. It noted that the abolition of entitlement to the title "baron" was not a necessary part of feudal land reform and might well give rise to justifiable claims for compensation. The discussion paper also mentioned, but rejected, the possibility of separating the title from the ownership of the barony lands. The preferred approach in the discussion paper was the minimalist one. Barony titles to land would be allowed to continue to carry with them the distinctive⁴² privileges and pertinents attaching to them under the existing law.⁴³ The discussion paper did not mention the problem of baronies which are attached to a mere superiority or dominium directum. The implication of the proposal for the abolition of all superiorities was that such baronies would disappear with the superiority to which they were attached.

2.35 Responses to discussion paper. There is a Convention of the Baronage of Scotland which submitted comments on our discussion paper. The constitution of the Convention provides for a Committee of the Baronage of Scotland and associate members. The Committee consists of

"(a) those who have recorded Armorial Bearings with the addition of a red chapeau in the Public Register of All Arms and Bearings in Scotland;

(b) inheritors of such Arms whether Peers or otherwise who can demonstrate ownership of the barony lands and/or caput of a baronial title;

(c) owners of barony lands and/or caput who have not recorded Armorial Bearings but who have produced evidence of such ownership and possession on a baronial title. "

The constitution provides that "Only the Committee of the Baronage of Scotland should have the right to … represent the interests of the Baronage of Scotland". Associate members of the Convention "have a variety of interests in the baronage or in baronial houses and estates".⁴⁴

2.36 In their comments on the discussion paper the Convention said that full membership of the Convention was "open only to the feudal barons of Scotland" and that members had "pride in their heritage as successors of those who formed one of the Estates of the Scottish Parliament". They were determined to "preserve the special form and advantages of their title to land and the historic ‘Scotch titles’ which are fully recognised by the Court of St. James⁴⁵ … , H M Government (on official documents such as passports) and by the Lord Lyon King of Arms". They said that they would "deplore the termination of the legal relationship between the Crown, representing the people of Scotland, and those individuals who hold noble estates granted by the Crown". They claimed to be a surviving element of the old Scottish Parliament - one of the Three Estates - along with the Church of Scotland and the Convention of Scottish Local Authorities. They said that the "essence of the nobiliary effect of the ownership of an estate erected by the Crown into a barony is the feudal relationship with the Crown" and that "the essential feature of a barony title is the noble quality of the feudal grant".⁴⁶ They were concerned that if the feudal link were to be severed then "the nobilitating effects of holding land on a barony title will be lost". They claimed that "the Feudal Baron’s rights within his own barony are very comparable - on a smaller scale - to the Royal rights of Paramount Superior over the land of the nation". They recommended that both the paramount superiority of the Crown and the equivalent right of barons should be preserved.

2.37 Most other consultees supported the provisional proposal in the discussion paper. However, some favoured the complete abolition of barony titles, including the noble aspects. The Keeper of the Registers of Scotland referred to the practical inconveniences of having separate conveyancing rules for barony titles and suggested that, if baronies were not abolished altogether, the noble title should be separated from the title to land.

2.38 Assessment. There are three special features of barony titles. First, certain conveyancing peculiarities attach to them. Secondly, the holder of land on a barony title still has, in theory but not in practice, the right to hold a baron’s court. Thirdly, the holder of land on a barony title has the right to use the title of baron and, if granted armorial bearings by the Lord Lyon,⁴⁷ to add certain special baronial features to the coat of arms.⁴⁸

2.39 The main conveyancing specialities of land held on a barony title are that (1) a barony can be conveyed by its general name⁴⁹ and (2) the barony title suffices for the acquisition of salmon fishings by prescription, even if they have not been expressly granted in the title.⁵⁰ We agree with the Keeper’s suggestion, which attracted support at a meeting of our advisory group, that these aspects of barony titles should be removed. The new Scottish system of landownership should, in our view, be free of feudal peculiarities. Land which is owned outright under the new system of landownership should be conveyed in the same way, and should be subject to the same rules, no matter what the nature of the feudal holding was under the former law. In fact, the issue is no longer of much practical significance. New salmon fishing rights are unlikely to be acquired today, and existing rights would not be affected by our proposals. Once land is entered on the Land Register, the conveyancing privileges cease to have a distinctive role.

2.40 The right to the title and dignity of baron is the right which gives baronies the value which they have over and above the actual value of the lands themselves. Indeed the barony as such is often attached to a residual plot of land, with little or no intrinsic value, which is recognised as the caput baroniae. Baronies have a considerable commercial value and to abolish the so-called noble element in them, as was strongly urged by some consultees and members of our advisory group, would give rise to substantial claims for compensation. We see no need to do this. Although baronies are a feudal relic, the abolition of baronies is not a necessary feature of the abolition of the feudal system of land tenure. We do however consider that the social, ceremonial and armorial aspects of baronies should be severed from landownership. Baronies should become non-territorial dignities. There should be no change in the jurisdiction of the Lord Lyon in relation to questions of precedence and arms. If the Lord Lyon were not satisfied, on the evidence produced, that an applicant for a coat of arms with baronial additaments was entitled to a barony, and refused the application in relation to the additaments, then it would be open to the applicant to seek a declarator of entitlement to the barony in the ordinary courts and, if successful, to return to the Lord Lyon with that declarator. The courts already have sufficient jurisdiction to decide questions relating to heritable right and title. There is no need to create any special new jurisdiction.

2.41 The surviving rights or privileges of barons (which can all be covered by the term "the dignity of baron")⁵¹ would no longer have a connection with an interest in land. The dignity of baron would become a "floating" right or privilege. It would no longer be possible to transfer it as an incident of the transfer of the land to which it was formerly attached. It would cease to be an appropriate matter for the Register of Sasines or the Land Register. We have considered whether some alternative registration system should be established for baronies in their new form but have concluded that this would be neither necessary nor appropriate. The dignity of baron would be, and would be transferable as, incorporeal heritable property.⁵² For the avoidance of any doubt, and to protect the Keeper of the Registers from attempts to continue to register baronies or deeds relating to them in the land registers, there should be a provision in the legislation making it clear that baronies are not interests in land for the purposes of the Land Registration (Scotland) Act 1979 and that deeds relating to them cannot be recorded in the Register of Sasines. A barony could be sold along with a plot of land if that were desired but the effect would be like selling a valuable painting along with the land. From the Keeper’s point of view the selling of the painting, or the barony, would be a separate transaction of no relevance to the land registers. We have no doubt that conveyancers will be able to devise a suitable form of document for transferring baronies as incorporeal heritable rights from one living person to another. In other respects, including succession on death, the law applicable to the preserved barony rights would be unchanged. In cases of intestacy it would be the old pre-1964 law of succession to heritable property, with its preference for males and its rule of primogeniture, which would apply.⁵³

2.42 The civil and criminal jurisdiction of barons was preserved by the Heritable Jurisdictions (Scotland) Act 1746⁵⁴ but was limited to cases of a minor nature. The criminal jurisdiction was restricted to cases of "assaults, batteries and smaller crimes" and the powers of punishment were limited to a fine of up to £1 or confinement in the stocks for up to three hours "in the daytime".⁵⁵ The civil jurisdiction was limited to cases with a value of up to £2 and cases for the recovery of rents or other dues of a like nature.⁵⁶ A privately owned criminal and civil jurisdiction, even if limited and fallen into disuse,⁵⁷ is such an anachronistic and objectionable relic of feudalism that it must clearly be abolished. The jurisdictional rights of barons have no value and compensation for their abolition would be inappropriate and unnecessary.

2.43 Competence of the Scottish Parliament. In our view it would be within the competence of the Scottish Parliament to deal with feudal baronies. The only reserved matter which might be relevant is that specified in paragraph 1 of Part I of Schedule 5 to the Scotland Act 1998. This comes under the heading "The Constitution" and it reserves, among other "aspects of the constitution",

"the Crown, including succession to the Crown and a regency".

It cannot, in our view, reasonably be argued that feudal baronies are an "aspect of the constitution" coming under the heading of "the Crown". Barons of this type have no constitutional position. They are not members of the House of Lords. They are an aspect of the feudal system of land tenure. Feudal baronies go with land which can be bought and sold in the ordinary way. Anyone can buy a barony.

2.44 The Queen’s prerogative functions are not in general reserved by paragraph 1 of Part I of Schedule 5⁵⁸ but this does not apply to the prerogative functions in relation to honours and dignities.⁵⁹ In so far as such functions are reserved by paragraph 1 they remain reserved. It is this mention of honours and dignities in an exception to an exception to a reservation which might be thought to give rise to a doubt as to the competence of the Scottish Parliament. However, the Queen has no prerogative functions in relation to feudal baronies. There is no exercise of the Royal prerogative involved. Any function of the Crown in relation to baronies of this kind is as paramount feudal superior. The Scotland Act 1998 makes it clear that the reservation of those aspects of the constitution coming under the heading of "the Crown" does not include

"the ultimate superiority of the Crown or the superiority of the Prince and Steward of Scotland".⁶⁰

In our view the Scottish Parliament could, if it wished, abolish feudal baronies altogether as part of a reform of the feudal system of land tenure. If that is so then it is even more clear that it can take baronies out of the system of land tenure and land registration, while allowing the dignity of baron, derived from the former connection with the Crown as feudal superior, to continue as a floating dignity.

2.45 Recommendation. We recommend that

5. (a) Any surviving criminal or civil jurisdiction of barony courts should be abolished.

(b) Any conveyancing privileges incidental to barony titles to land should be abolished.

(c) The new legislation should not abolish the dignity of baron or any other dignity (whether or not of feudal origin). Accordingly barons should retain the right to call themselves baron and should retain any precedence and ceremonial or heraldic privileges deriving from their barony.

(d) The dignity of baron should no longer be attached to land. It should be, and should be transferable only as, incorporeal heritable property.

(e)It should be provided that after the appointed day a barony will not be an interest in land for the purposes of the Land Register and no deed relating to a barony can be recorded in the Register of Sasines.

(Draft Bill, clause 57)

Protection for Keeper of the Registers

2.46 Feudal abolition creates a number of difficulties for the Keeper of the Registers. The first is volume of work. With the feudal system will perish superiorities, feuduty and feudal real burdens. All three will need to be removed from the Land Register, and until this can be done the Register will be inaccurate. When and how this can be accomplished will depend largely on the resources available to the Keeper. The appropriate method of removing an inaccuracy is by the process known as rectification;⁶¹ but rectification on this scale will take some considerable time. Later we make recommendations to deal with the particular problem of real burdens.⁶²

2.47 The next difficulty is power to rectify. Usually rectification is barred if it would prejudice a proprietor in possession.⁶³ The Register must then remain inaccurate. In practice rectification following on from feudal abolition is unlikely to prejudice a proprietor in possession, either because abolition has taken away the status of proprietor (as in the case of superiors) or because the rectification will confer actual benefit on the proprietor (as in the case of the deletion of feuduties and real burdens). Nonetheless there may be cases where prejudice may arise. We suggest that, for these cases, the legislation should declare that rectification to take account of feudal abolition should be deemed not to prejudice a proprietor in possession.

2.48 Thirdly, there is the risk of mistakes. Not all alterations will be straightforward. Sometimes it will be difficult to determine which part of a mixed estate title relates to former dominium utile (and should be preserved) and which relates to former superiority (and should be deleted). Similar kinds of problem may arise with real burdens.⁶⁴ Given the scale of the changes, mistakes seem unavoidable. Mistakes may also occur in relation to the notices provided for in Parts 4 and 5 of this report. A notice might be invalid for reasons which are not apparent to the Keeper, and effect might be given to it on the Register notwithstanding its invalidity. The Register will then be inaccurate. Unless the Keeper is given power to rectify in cases like this, feudal abolition will impair the reliability of the Register.

2.49 Finally, there is the question of indemnity. On rectifying, the Keeper must usually indemnify any person who suffers loss;⁶⁵ and on one view of the law indemnity is due even without rectification, or a request for rectification, merely on the ground that the Register is inaccurate.⁶⁶ There would be no point in giving power to rectify if the Keeper was then made liable for payment of indemnity. It seems clear that indemnity should not be payable in such cases.

2.50 We recommend that

6. It should be made clear

(a) that any rectification of the Land Register which is required to take account of the abolition of the feudal system of land tenure, or of anything done under or by virtue of the legislation on abolition, is not to be regarded as prejudicing any proprietor in possession and

(b) that there is no entitlement to indemnity under section 12 of the Land Registration (Scotland) Act 1979 as a result of any such rectification or as a result of any inaccuracy in the register resulting from the abolition of the feudal system of land tenure, or of anything done under or by virtue of the legislation on abolition.

(Draft Bill, clause 3 (b) and (c))

Saving for jurisdiction of Lord Lyon

2.51 There is a risk that the abolition of feudal interests in "land" might have inadvertent effects on the jurisdiction of the Lord Lyon in relation to coats of arms. This is because arms have been regarded as an incorporeal fief and have been held to be feudal heritage.⁶⁷ It is not our intention to interfere in any way with the jurisdiction of the Lord Lyon⁶⁸ and, for the avoidance of any doubt on this point, we recommend that

7. It should be made clear that the statutory provisions abolishing the feudal system of land tenure do not supersede or impair the jurisdiction or prerogative of the Lord Lyon King of Arms.

(Draft Bill, clause 56)

Coats of arms may be matriculated in names containing a territorial designation derived from a bare superiority.⁶⁹ After the appointed day it will no longer be possible to register a new coat of arms on this basis alone. Clearly, however, the disappearance of superiorities would not affect existing coats of arms matriculated before the appointed day. The word "supersede" in our recommendation⁷⁰ is designed to make it clear that the Lord Lyon retains full jurisdiction and control over coats of arms and that there is to be no room for any argument that, as a result of the new legislation, coats of arms can no longer be matriculated. The word "impair" is designed to make it clear that arms which have already been matriculated by the Lord Lyon are not affected by the new Act.