The Duties of a Baron (from '1066 and All That')
- To be armed to the teeth.
- To extract from the Villein saccage and soccage, tollage and tallage, pillage and ullage, and, in extreme cases, all other banorial [sic] amenities such as umbrage and porrage.
- To hasten the King's death, deposition, insanity, etc., and make quite sure that there were always at least three false claimants to the throne.
- To resent the Attitude of the Church. (The Barons were secretly jealous of the Church, which they accused of encroaching on their rites.)
- To keep up the Middle Ages.
The modern idea of feudalism is amusingly portrayed by P. G. Wodehouse in 'Lord Emsworth and the Girl Friend':
'I - er...' said Lord Emsworth.
He stopped. In a sudden blinding flash of clear vision he had seen himself for what he was - the spineless, unspeakably unworthy descendant of ancestors who, though they may have had their faults, had certainly known how to handle employees. It was 'How now, varlet!' and 'Marry come up, thou malapert knave!' in the days of previous Earls of Emsworth. Of course, they possessed certain advantages he lacked. It undoubtedly helped a man in his dealings with the domestic staff to have, as they had had, the rights of the high, the middle and the low justice - which meant, broadly, that if you got annoyed with your head-gardener you could immediately divide him into four head gardeners with a battle-axe and no questions asked - but even so, he realized that they were better men than he was and that, if he allowed his craven fear of Angus McAllister to stand in the way of this delightful girl and her charming brother getting all the flowers they required, he was not worthy to be the last of their line.'
Introduction - nature of territorial titles
Under the feudal system in Scotland in the early medieval period the titles of earl and baron were the only titles of nobility*; the titles of duke, marquess and viscount arrived later, in 1398, 1599 and 1606 respectively. Earldoms and baronies were territorial as opposed to personal titles, which meant that they were attached to an area of land erected into (i.e. designated as) an earldom or barony by the King. The link between titles of honour and land ownership in the Middle Ages not only makes sense but is inevitable when one considers that, at that time, wealth (and therefore military strength and political power) was dependent on the ownership of land. In these circumstances it would hardly have made sense to have titles of honour that were not based on the ownership of land; such titles would have been 'empty titles' indeed.
At that time, therefore, a man was not personally granted a title of nobility, he became an earl or baron by being granted an earldom or barony (i.e. a fief that conferred nobility), which generally meant (but see below) that if he disposed of the lands he ceased to hold the title, which passed to the new holder of the lands; this was normally his heir but could be a 'stranger in blood', including a purchaser (though theoretically only by resignation to the King and re-grant, at least originally). An example is the sale of the Earldom of Wigtown by Thomas Fleming, 2nd Earl, to Archibald Douglas, Earl of Galloway in 1371/2 ('Scots Peerage', Vol. 8, p. 523). Another example, though in an English context, is the purchase in 1309 by Henry de Percy, 1st Baron Percy (a barony by writ) of the Barony of Alnwick from Anthony Bec, Bishop of Durham, thus starting an association between the Percy family (now Dukes of Northumberland) and the town and castle of Alnwick which continues to this day; prior to 1309 the Percy family had been based in Yorkshire. Actually, the naughty Bishop had no right to sell the barony since he held it on trust for the legal heir (as the naughty Baron well knew) but that's another story.
Scottish feudal earldoms and baronies can therefore be acquired by purchase as well as inheritance and they survived as territorial titles until the abolition of the feudal system in Scotland in November 2004. At that time they became personal titles (intangible property) that were not attached to land (similar to modern peerages); this means that sales of feudal earldoms and baronies, while still possible, no longer have to be recorded as property transactions in the Register of Sasines (property register). In this sense feudal earldoms and baronies are no longer strictly 'feudal' (although I believe that they are still held of the Crown, can still be resigned to the Crown and the Crown can still, I believe, grant charters of resignation and confirmation), but it is probably still correct to describe them as such since they are 'feudal in origin' and historically they will of course continue to be associated with (attached to) their lands - no law can prevent this.
Military service - barons as last surviving feudal knights
Feudal earldoms and baronies were originally held of the King by military service (usually for a number of knights' fees), which meant that the earl or baron was obliged to provide the specified number of knights for the specified period (normally 40 days, as I understand it, but one or two writers seem to think that the 40 day period referred to 'castle ward') when summoned by the King to do so; this was called the 'feudal levy', the gathering of the feudal host. Earls and barons normally granted part of their lands, or sub-feued, to others, that is knights, to be held of them by knight's service, one or more knights' fees or even a fraction of a knight's fee; they would retain part of their land as 'demesne', a sort of 'home farm' if you like. In this way feudal society was hierarchical. The King, the 'paramount superior', had his own vassals, the earls, barons and other tenants-in-chief, who would, in turn, be superiors of other vassals, that is knights, who would be superiors of others, that is husbandmen (tenant farmers) - and so on down to serfs and others who worked the land. A number of people would therefore have had an 'interest' (a slice of rights and duties if you like) in an area of land; the king, a baron, a knight, a husbandman and so on. Some of these 'interests' or feus, those which involved military, honorary or nominal service, were noble (conferred nobility), other were not, they were ignoble; those involving payment of rent, in money, in kind or labour. Note that those at the top of the feudal heirachy might be immediate superiors of those at the bottom without intervening ranks. Thus, on a manor held directly by the King (i.e. part of the royal demesne), a husbandman (a King's Yeoman) or a serf might be an immediate vassal of the King; the same applied to a baron. Note also that all barons must, by definition, have been knights in the feudal sense, since they held land by knight's service. In this sense feudal barons are the last surviving remnant of the feudal order of knights of Scotland.
Courts and jurisdiction - barons as original peers of the realm
As immediate vassals (i.e. tenants-in-chief) of the King, earls and barons had a duty and a right to attend the King's Court or Curia Regis (of which they were the peers - which simply meant that they were equal in degree - Latin 'pares' - as vassals of their immediate feudal superior); this court gradually evolved into Parliament. As feudal superiors, earls and barons had an obligation to hold courts for their immediate vassals (who were the peers of their court). These were not just courts of law but were, in essence, a form of parliament of the earldom or barony, that is essentially a mirror of the King's Court but at a lower level in the feudal hierarchy and with a more limited function, both geographically (limited to the area of the earldom or barony) and in scope (a limited judicial function). The business of the baron courts was mainly concerned, as one would expect, with the day-to-day administration of a rural estate (the barony) and included such matters as settling boundary disputes between neighbours, determining compensation for damage caused by cattle, organising the repair of the barony mill and so on. A baron court might ordain that 'non within the Barony and Jurisdiction drink excessively nor be sensibly drunke nor known to be drunk nor use filthy nor scurlus speeches and that non mock at piety' (Stitchill, 4) or might appoint men as 'haiffand power of the laird to tak ordour with all flytters and bakbytters as they find the fault, and to be put in the stocs quhill peyment be maid of fourtie sh.' (Spalding Club Misc., v. 224). The baron court is therefore probably best regarded as an administrative council of the baron and his tenants (a sort of parliament as stated), as well as a court of law, and might not try a serious crimminal case for decades, if ever. In fact, as far as possible, people tried to avoid resorting to the courts at all and disputes were often settled by informal negotiation under the auspices of respected neighbours (called 'burlaw men'). As Alexander Grant states ('Independence and Nationhood, Scotland 1306-1469', p. 156) 'the most striking aspect of medieval Scotland's legal system is probably the role of the people, in practice they seem generally to have dispensed their justice themselves'. It is important, in this context, to distinguish between a baron's rights of private jurisdiction as a landowner (feudal superior) and his rights of public jurisdiction (i.e. administration of the King's justice) as a baron.
Strictly speaking, a barony was not an area of land but a jurisdiction over an area of land; it was the jurisdiction which was the critical distinguishing feature of a barony. A charter under the Great Seal generally erected the lands into an earldom or barony and then granted that earldom or barony to an individual (the grantee) using the words (in the case of a barony) 'the lands and barony of x' to be held of the King 'in free barony' ('in liberam baroniam'). The lands and barony normally went together but they were, nonetheless, two distinct legal entities. To erect a barony, it was sufficient merely to grant the lands with baronial jurisdiction, that is without specifically erecting the lands into a barony, and as long as the jurisdiction was 'baronial' (see below), the words 'baron' or 'barony' did not have to be used. A baron was therefore one who a). held the lands in chief of the King and b). had 'baronial jurisdiction'. Earldoms and lordships were essentially just baronies of a higher type (in fact, as far as I can see, 'lordship' was just a name for a large barony) and carried no greater rights of jurisdiction than ordinary baronies, unless the earldom or lordship was erected into a regality (see below). Earldoms, lordships and baronies were therefore all held 'by barony' (Latin 'per baroniam') and their holders all sat in Parliament by virtue of being barons. Note that there were (and I think still are) some baronies held of earls (and possibly lords of regality) but these were barons and peers of the relevant earldom or regality, they were not barons or peers of the realm. Most of these baronies were converted into holdings from the Crown (i.e. they became barons and peers of the realm), including those held of the Lord of the Isles, when the Lordship fell to the Crown in 1494.
Until the passing of the Heritable Jurisdictions Act in 1747 (which was an attempt to destroy the power of the clan chiefs after the Jacobite Rebellion of 1745) the distinguishing feature of 'baronial jurisdiction' was 'pit and gallows', the right to hang men and drown women, but only in the case of theft or manslaughter within the barony and even then only under the supervision of the Sheriff. Critically, the baron was not 'judge and jury' in his own court (these functions were carried out by his immediate vassals - the peers of his court). The baron's function was to administer justice within the barony (that is to ensure that courts were held and followed the proper procedure) and, as a litigant, he was technically in the same position as his own vassals. It was the private administration of a part of public justice and the baron retained the fines to recompense him for the costs of administration. Barons did not have to personally attend their own court (except possibly in criminal matters) and day-to-day functions were often delegated to court officials, such as a baron baillie, a baron sergeand and a dempster. Feudal earls and barons retained the right to hold baronial courts and some residual rights of jurisdiction until the final abolition of the feudal system in 2004 and although any rights of public jurisdiction were then abolished, it appears that barons can still hold private courts if they so wish. In this context, it is worth noting that the Scottish Law Commission, in its 'Report on the Abolition of the Feudal System', stated (2.42) that 'A privately owned criminal and civil jurisdiction, even if limited and fallen into disuse, is such an anachronistic and objectionable relic of feudalism that it must clearly be abolished'. In the light of what I have said above, you will appreciate that this statement is as wrong as it could be; baronial jurisdiction was not a 'privately owned jurisdiction', it was, as I have made clear, the private administration of a part of public justice. The use of the term 'privately owned' implies a measure of judicial independence on the part of barons (who were effectively officers of the Crown) that simply didn't exist. It is clear that the authors of the report (Brian Gill, E. M. Clive, P. S. Hodge, Kenneth G. C. Reid and N. R. Whitty) fundamentally misunderstood the nature of baronial jurisdiction. Thus the entire basis on which they sought to abolish baronial jurisdiction was arrant nonsense - not a very good basis for making laws. They also stated (2.42) that 'the jurisdictional rights of barons have no value' and we must congratulate them on finding the only thing in the entire world of no value whatsoever.
Regalities - survival of title 'Lord of Regality'
Regalities were a form a barony with higher jurisdictional powers and other privileges which were held 'in liberam regalitatem' as opposed to 'in liberam baroniam'. They were equivalent to the Palatine Counties (that is Earldoms) in England, such as Durham (still called 'The County Palatine of Durham'), Lancashire and Cheshire, or Palatinates on the Continent, such as the Palatinate of the Rhine. A lordship of regality was a royal dignity and 'Lords of Regality' had, as the title implies, regal powers, including complete criminal jurisdiction (excluding only treason), as well as (potentially) their own chancery and mint and were effectively reguli or little kings within their domains (according to Bankton). Civil appeals from regality courts went only to Parliament. Royal officers, including Justiciars and Sheriffs, had no authority in a regality and thus the kingdom was divided into royalty and regality (Bankton, 'An Institute of the Laws of Scotland', II, III, para. 83), that is those areas where royal jurisdiction ran and those areas where regality jurisdiction ran. To hold land in regality was a major status symbol (and a source of significant additional revenue) and grants of regality were normally restricted to members of the royal family and leading magnates. Regalities included the Earldoms of Moray, Atholl, Strathearn and March, the Lordships of Badenoch, Garioch, Renfrew and Carrick, lands of the Earls of Douglas, the Earls of Angus, of the Douglas family of Dalkeith and a number of baronies ('Atlas of Scottish History to 1707', p. 207). Since a regality would normally be erected over an existing earldom or a number of existing baronies (held by one man), such an erection would have little impact on the administration of justice within the regality; the existing courts would have continued to function very much as before. The only practical difference would have been that more serious crimes (murder, rape, arson and robbery - the Four Pleas of the Crown) would have been tried in the Regality Court rather than by the relevant Justiciar (of the North or South as the case might be) and that civil appeals from the Baron Court would have gone to the Regality Court rather than the Sheriff Court. The caput or head of a regality was technically a palatium, that is a palace or 'seat of royal authority' (Nisbet, 'System of Heraldry', Vol. II, Part IV, p. 46). Regality jurisdiction was abolished by the Heritable Jurisdictions Act in 1747 (though Lords of Regality still retained baronial jurisdiction, as restricted by the Act, and the right to hold courts) but it appears, in the opinion of senior counsel, that on a strict construction of the Act (it was an act to remove jurisdictions, not dignities) the title of 'Lord of Regality' has survived.
Feudal earls and lords of regality had the right to create barons and it would appear that this right was exercised into the 1990s (see 'Scottish Feudal Baronies' by Hugh Peskett, Consultant Editor for Scotland, Burke's Peerage, Baronetage & Knightage. This article also appeared in 'East Lothian Life', Autumn 2003, p. 17). It would also appear that this right was protected by the Abolition of Feudal Tenures etc. (Scotland) Act 2000, s. 63, which states that 'Any jurisdiction of, and any conveyancing privilege incidental to, barony shall on the appointed day cease to exist; but nothing in this Act affects the dignity of baron or any other dignity or office (whether or not of feudal origin)... 'dignity' includes any quality or precedence associated with, and any heraldic privilege incidental to, a dignity...'
See here for more on regalities.
Until November 2004 all Scottish feudal baronies were legally attached to a 'caput' (Latin meaning 'head'), which was normally a building, such as a castle or manor house, but could be a moot hill, a field, a tree, a standing stone or some other place where the barony court was held - as a matter of interest the caput of Scotland was the moot hill at Scone. Since a barony was legally attached to the caput rather than the lands, a baron could (and sometimes did) dispose of the lands but if he retained the caput (or the feudal superiority of the caput) he also retained the barony, that is the jurisdiction. Sometimes a father would pass on the lands to his son but would retain the barony, possibly because he did not feel his son was ready to administer the jurisdiction. The land was therefore 'partible' (capable being divided and capable of being alienated) but certain things were 'impartible' (incapable of being legally divided, both in themselves and from each other); these included the caput, the baronial jurisdiction, the title of baron and any heraldic additaments (See Sir Malcolm Innes of Edingight, 'The Baronage of Scotland: The History of the Law of Succession and the Law of Arms in Relation Thereto', The Scottish Genealogist, June 2000). Collectively these impartible elements are known as the 'esnescya' ('Complete Peerage', Vol. IV, p. 676).
A caput was sometimes specified in the charter granting the earldom or barony (which explains references to 'the earldom of the castle of x') but even then the caput was not immovable; over time a castle might fall into ruin and be replaced as the caput by a manor house. The general rule of law was that if the caput was sold the barony went with it unless specifically reserved (Kidson-Montgomerie of Southannan, Scots Law Times, 1951, Lyon Court). In many instances the lands of a barony were sold off (i.e. alienated) over time so that the barony effectively shrank to the caput and a small area of land; according to the Complete Peerage (Vol. 1, p.144) this happened at an early date in the case of some of the great Scottish earldoms. In this context, it is important to note that alienation of the greater part (more than 50%) of a barony did not result in the barony being automatically destroyed or forfeited to the Crown, as some have claimed. Although the Crown could 'recognose' (forfeit) a barony in such circumstances this had to be done via an action (for a declarator) in the courts. If the Crown did not take the proper legal steps to forfeit a barony then the barony was retained by its owner (Bankton, 'An Institute of the Laws of Scotland', II, XI, 36; Register of the Great Seal, ii, 2839). Alienation, in this context, means where the baron ceases to be the feudal superior i.e. he disposes of the land to be held by the purchaser of the King (done via a 'charter by progress') and ceases to have any interest in it; this differs from a situation where the baron remains the superior, that is he grants a feu (done by a 'feu charter') and the grantee becomes his vassal. In the former case the lands cease to be part of the barony and hence are no longer subject to the baronial jurisdiction (the lands fall within the jurisdiction of the local Sheriff Court); in the latter case the lands continue to be within the barony and hence subject to the baronial jurisdiction. When a vassal granted a 'feu' he split his rights in two, into a right of superiority (the 'dominium directum'), which he retained, and a right of use and possession (the 'dominium utile') i.e. the feuar (vassal) enjoyed the practical rights of ownership (the occupation and use of the buildings and land), unless he, in turn, also granted a feu. Thus, the vassal, in granting a 'feu', made himself the feudal superior (he created a superiority) of his own vassal, the feuar.
Meaning of 'baron' ' - emergence of personal titles
It appears that no Scottish feudal baronies have been created since the late 17th or early 18th century and today the word barony refers to a title, a personal dignity, granted by the Crown to an individual, now usually a life peerage. The first personal title to be granted in Scotland was the Earldom of Douglas granted to William Douglas in 1358. The holders of personal titles came to be known as 'lords of parliament' (to differentiate them from feudal barons - but see below) and, as their numbers grew, they replaced the feudal baronage as the 'estate of the nobility' in Parliament. It should be noted that the term 'lords of parliament' referred to those who had the right to sit and vote in the Scottish Parliament as nobles (and remember, there was not then nor ever has been a House of Lords in Scotland), which included all the degrees in the peerage, but the term also referred (and still refers) to the lowest rank in the peerage of Scotland, equivalent to barons in England. Thus, somewhat confusingly, the term 'lords of parliament', in a Scottish context, referred to dukes, marquesses, earls, viscounts and lords of parliament. In England, the feudal baronage did not survive (or so it is commonly believed) so the word 'baron' could be used to describe the lowest level of the peerage without risk of confusion. This means that the peers of England consist of dukes, marquesses, earls, viscounts and barons whereas the peers of Scotland consist of dukes, marquesses, earls, viscounts and lords of parliament. Creations in the peerages of Scotland and England ceased with the union in 1707, after that creations were of peerages of Great Britain until 1800 and since then creations have been of peerages of the United Kingdom. Thus, no Scottish 'Lords of Parliament' (equivalent of English barons) have been created since 1707, creations have been either of baronies of Great Britain or of baronies of the United Kingdom, even where the recipient is a Scot. Today, in a United Kingdom context, the term 'lords of parliament' refers to those who have the right to sit and vote in the House of Lords, including bishops (who are lords of parliament but not peers) and also, of course, to the pre-1707 Scottish equivalent of English barons, at least those who still sit in the House of Lords. It appears that 'lords of parliament' were described as major barons (Latin 'barones majores') and the feudal barons as minor barons (Latin 'barones minores'), though, interestingly, these terms originated in England where 'barones majores' referred to feudal barons (certainly at the time of Magna Carta - see article 14 - when there were no baronies by writ or patent) and 'barones minores' referred to freeholders (tenants-in-chief by non-baronial tenure).
Loss of right to sit in Parliament
In the early days, of course, those who were created 'lords of parliament' tended to be rich and powerful already (such as William Douglas mentioned above), that is they were invariably already substantial landowners and therefore probably feudal earls or barons. Over time, the more powerful feudal earls and barons acquired lordships of parliament (often with the same name as their feudal title); it was the less powerful feudal barons who were gradually 'squeezed out'. The smaller feudal barons were not forced out of Parliament as such but there was little to attract them - attendance was expensive, often futile (in terms of the influence they could expect to have) and sometimes dangerous, certainly when meddling in the affairs of the great. The great nobles used to travel to Edinburgh with large retinues of armed men and fighting and assassination in the capital was not unusual; in short, Edinburgh was a place that many feudal barons probably felt was best avoided. Presumably, because they had a duty to attend Parliament, feudal barons must have asked for leave of absence when summoned, at least until formally excused by Act of Parliament (see below). Over time, personal dignities were granted to more and more men who were 'raised from the dust' and who replaced many of the historic landowning families of Scotland; the same process happened in England. One of the reasons for the emergence of personal titles was quite simply that successive Kings began to 'run out of land'; they alienated vast areas of land by grants of feudal earldoms and baronies, gradually eating away the 'royal demesne' and thus a large part of the King's income - it was not a process that could continue indefinitely. The granting of personal titles can therefore be described as 'patronage on the cheap' (after all, a title costs nothing) but the ease with which personal titles could be granted had the effect of diluting the ancient orders. Earldoms, for instance, degenerated from a situation where they had been only seven in number, corresponding to the ancient kingdoms, and where the earl was effectively a prince in rank, to a situation where there were literally dozens of the things and many of these were earldoms 'of' places of no significance whatsoever e.g. the earldom of Crawford.
Feudal barons technically retained (and in fact have never lost) their right to sit in Parliament as part of the nobility but by an Act of Parliament of 1428 and another of 1587 they were allowed to appoint two representatives in each sheriffdom to represent them; they could still attend in person if they so wished. The franchise was extended to 40 shilling freeholders, so, in terms of de facto (i.e. practical, if not properly legal) Parliamentary representation, the feudal barons became the equivalent of freeholders and then, with the introduction of universal suffrage, ordinary voters. The feudal barons did not give up their rights without a struggle and over 100 feudal barons attended the Reformation parliament of 1560. As late as 1672 various feudal barons successfully claimed heraldic supporters on the basis that 'they were as good Barons after that Act (1587) as before' (Sundry Barons v. Lord Lyon, 1672, 'Brown's Supplement', Vol. III, p. 6). In this context, it is important to note that the right of the feudal barons to sit in Parliament as part of the nobility does not appear to have been lost, as some have claimed, by negative prescription (i.e. non-use) since, as stated by Lord Corehouse in Macdonnell v. Duke of Gordon (1826), "If there be a principle well settled in the law of Scotland, it is this - that the right of ownership in a feudal subject, being complete, cannot suffer the negative prescription ..."
How baronies became lost and were later resurrected
With the effective abolition of baronial jurisdiction in 1747 and the loss of parliamentary privileges, feudal titles ceased to have much practical significance and the vast majority appear to have been forgotten about. While most baronies became 'lost' they continued to exist in the legal sense, since baronies are, by definition, indestructible except by Act of Parliament (the theory here is that since the Crown erects baronies only the Crown can destroy them - see Professor William Croft Dickinson, 'The Court Book of the Barony of Carnwath 1523-1542', p. l & xviii) and, in fact, charters and dispositions usually included the text of earlier charters and dispositions verbatim; the problem is that people either don't bother to read them or don't understand what they say. As a result it is quite likely that instances have occurred where purchasers of a castle or country house in Scotland have acquired a barony unknowingly (this happened to the writer, who unknowingly acquired the Barony of Mordington), though this can no longer happen after the abolition of the feudal system in 2004. It was only relatively recently, largely as a result of the efforts of the late Lord Lyon, Sir Thomas Innes of Learney (Lord Lyon 1945-1969), that interest in feudal baronies was revived but, even so, only some 130 out of a total of 1,500 to 2,000 baronies are recorded in Burke's Peerage, that is have been formally recognised (by a grant or matriculation of arms with baronial additaments - see below) by the Lord Lyon. Many of these 130 are, I believe, held by the 'historic family' but an increasing number have been purchased; there is a steady trickle of recognitions of purchased baronies by the Lord Lyon every year. Of the remainder, it is likely that many, if not most, are still held by the Scottish aristocracy (the word being used here to describe holders of personal titles), who, in the case of large landowners, might hold a number of baronies.
In Scotland the word 'baron' still refers to a feudal baron, whereas in England the word 'baron' refers to the lowest rank of the peerage (the peerage consisting of dukes, marquesses, earls, viscounts and barons); the confusion results from the fact that the words 'baron' and 'peer' were poached from their proper feudal context and are now used, as detailed above, to describe non-feudal titles. The precise legal status and social precedence of Scottish feudal earls and barons continues to be a subject of some uncertainty. In summary, most people assume that since feudal barons did not sit in the Scottish Parliament as nobles for many years before the Act of Union in 1707 (which united England and Scotland) and have never sat in the House of Lords since the Act of Union, that they cannot be or ever have been 'peers'. It is a fact, however, that the feudal earls and barons were the original peers of the realm in the proper feudal sense of the word. It is also a fact, as stated above, that feudal barons continued to have the right to sit as part of the nobility in the Scottish Parliament up to the time of the Act of Union. Since they had as much right to sit as part of the nobility in the Scottish Parliament as did 'lords of parliament' they were, at that time, just as much peers as those 'lords of parliament'. Lord Bankton, one of the great institutional writers (i.e. someone who is accepted as authoritative in courts of law), states in his 'Institute of the Laws of Scotland' (II, III, para 83) that 'Baronies and Regalities come next to be considered … This leads me to the distinction of fees Noble and Ignoble … Noble fees, are those which conferred nobility to persons vested in them; these were baronies and regalities; and anciently all nobility, in the modern states proceeded from such fees; thus the title of Baron included Duke, Marquis and Earl, as well as that of Lord. All barons were equally entitled, as lords of parliament, to sit and vote in it'. This makes it quite clear that anyone who had the right to sit in Parliament as a baron was a lord of parliament and therefore, if there was any doubt in the matter, also a peer. In addition, Sir Thomas Innes of Learney refers ('The Robes of the Feudal Baronage of Scotland', P.S.A.S, Vol. LXXIX, p. 144) to the case of Sundry Barons v. Lord Lyon (1672) ('Brown's Supplement', Vol. III, p. 6) where those sundry barons 'successfully maintained, in claiming their supporters, that they were as good Barons after that Act (1587) as before'. On this basis, Scottish feudal barons were 'peers of Scotland' for the purposes of sections 22 and 23 of the Act of Union which made all 'peers of Scotland' into 'peers of Great Britain' (they remained 'peers of Scotland' but became part of a greater peerage of Great Britain). Since Scottish feudal barons became 'peers of Great Britain' in 1707 they have continued to be so ever since and all of them became entitled to sit in the House of Lords under the Peerage Act of 1963 (The Act states that 'The holder of a peerage in the peerage of Scotland shall have the same right to receive writs of summons to attend the House of Lords and to sit and vote in that House as the holder of a peerage in the peerage of the United Kingdom; and the enactments relating to the election of Scottish representative peers shall cease to have effect.') Since their peerages are not 'hereditary' under the terms of the House of Lords Act 1999 but are 'in commercio' (they can be bought and sold), they were not deprived of their right to sit in the House of Lords by that Act. Approached from the other direction the question is simply 'If feudal barons were originally peers of Scotland, exactly when and how did they cease to be peers of Scotland?' The answer is they didn't, certainly not in 1428 or 1587 (because they continued to have the right to attend Parliament as nobles) and certainly not in 1707.
Interestingly, it appears to be the case that a Scottish feudal earl is legally a peer ('Barony Title - A Response', Adam Bruce, Journal of the Law Society of Scotland, April 1993, p. 157), in which case one must ask the question why a Scottish feudal baron is, apparently, not legally a peer, since they both sat in Parliament by virtue (and only by virtue) of holding their lands 'per baroniam', that is as barons. There is certainly one Scottish earldom, that of Sutherland, which is recognised as a peerage but is still a feudal title, there never having been a grant of a personal title of that name since the earldom was first erected in about 1235. In the same vein, in 1739, on instruction from the House of Lords, the Lords of Session compiled a list of the peers of Scotland in 1706, the so-called 'Union Roll'. The Lords of Session do not actually define the word 'peer' (a slight oversight), but the list, by its contents, was clearly intended to exclude feudal barons (although they do include, for instance, the Earldom of Sutherland, which was and is a purely feudal title). However, the Lords of Session do state (Nisbet, 'System of Heraldry', Vol. II, Part IV, p. 181) that 'Before that time [the reign of King James VI], titles of honour and dignity were created by erecting lands into earldoms and lordships'. A few sentences later these earldoms and lordships are referred to as 'such ancient peerages'. This makes it quite clear that the Lords of Session considered feudal earldoms and lordships to be peerages. Again, one must ask the question why a Scottish feudal baron was, apparently, not considered to be a peer, when a feudal earl or lord was so considered, since they all sat in Parliament by virtue (and only by virtue) of holding their lands 'per baroniam', that is as barons. Torphichen is a feudal barony that has been recognised as a peerage; since this barony was granted to 'heirs and assignees' it is an example of a peerage that can be sold ('Scots Peerage', Vol. 8, p. 387; 'Complete Peerage', Vol. 12, Part I, p. 776).
To many people, the idea of referring to a law that was passed almost 300 years ago will probably seem odd to say the least. Can it still apply? Well , the answer is 'Yes' because the law itself cannot fall into disuse; once a law is made that is it, until it is changed or repealed by competent authority, usually Parliament. Thus, the Act of Union was judged to be still applicable in the case of Grant of Grant (Scots Law Times, Lyon Court, 1950). In this context it is relevant to consider Lord Halsbury's statement in the Earldom of Norfolk case of 1907 (R. P. Gadd, ‘Peerage Law’, p. 110) that ‘Our duty is to the best of our ability to ascertain what the law is, and, having ascertained it, to give effect to it; to alter it or even modify it is the function of the Legislature, and not of your Lordships’ House. No stronger illustration of this principle can be given than when, so lately as 1818, the Court of King’s Bench, with Lord Ellenborough presiding, felt itself compelled to allow a claim to wager of battle [trial by combat] in an appeal of murder, and but for the intervention of an Act of Parliament (59 Geo. III, c.46), some of His Majesty’s judges might have had to preside over a single combat between the appellant and his antagonist.' So the courts felt themselves compelled to enforce a law that must have fallen into disuse some 500 years or more earlier. Furthermore, we must remember that the House of Lords has resurrected peerages that have been dormant for many years, including Strabolgi (dormant for 547 years), Fauconberg (dormant for 440 years) and Camoys (dormant for 413 years).
Functions and jurisdiction of the Lord Lyon
Related to the question of whether Scottish feudal barons are peers or not is the question of heraldic additaments (i.e. additional heraldic 'elements' in a coat of arms). Heraldry within Scotland is within the jurisdiction of the Lord Lyon King of Arms and 'baronial additaments' are confirmed or obtained by petition to him; confirmed by 'matriculation' of existing (i.e. inherited or previously granted) arms or obtained by a grant of new arms. This is how one obtains recognition as a baron. It is important to understand that the Lord Lyon acts in both a ministerial (i.e. executive) capacity and a judicial capacity. When the Lord Lyon acts in a ministerial capacity, he acts on the monarch's behalf; I believe that this is rather more than simply acting as the monarch's 'representative', he is effectively acting AS the monarch and, on this basis, there is no appeal against his decision except to the monarch via the Scottish Office ('Scots Heraldry', 2nd Ed., p. 88, note 3). When the Lord Lyon acts in a judicial capacity, he acts as a judge in an inferior court, the Lyon Court, in the Scottish legal system and it is possible to either appeal against his decision to the Court of Session or petition the Court of Session for a judicial review, depending on the circumstances. Further appeal can be made from the Court of Session to the House of Lords. When the Lord Lyon is petitioned for a matriculation of existing arms, he makes a judicial decision as to whether the petitioner is the owner of heritable property (the arms in question); when the Lord Lyon is petitioned for a grant of new arms, he acts in a ministerial capacity in deciding whether or not the petitioner is a 'virtuous and well-deserving person'. As I understand it, in the case of a petition for a grant of new arms with baronial additaments, the Lord Lyon acts in both a ministerial capacity and a judicial capacity. He makes a ministerial decision as to whether the petitioner is a 'virtuous and well-deserving person' and he then makes a judicial decision as to whether the petitioner is the owner of the barony (which is heritable property) in question; the latter is simply a question of fact - 'Is the petitioner the owner of the barony or not?'. Critically, if the judicial decision is that the petitioner does own the barony in question, then that petitioner is entitled AS OF RIGHT to baronial additaments; in other words, the Lord Lyon CANNOT refuse to grant baronial additaments to a baron. Theoretically, the Lord Lyon could decline to grant arms at all and without arms there can be no additaments.
It is currently the established position that a Scottish feudal baron is entitled to a baronial chapeau (cap of estate), a steel tilting helm garnished with gold, a baronial mantle (robe) 'gules doubled silk argent, fur-edged of miniver and collared in ermine, fastened on the right shoulder by five spherical buttons or', a standard and may also be entitled to supporters.
With regard to the chapeau or cap of estate (also called a cap of maintenance or cap of dignity), it was only during the reign of Sir Thomas Innes of Learney as Lord Lyon (Lord Lyon 1945-1969) that the chapeau was assigned positively and exclusively to feudal barons, although there had been grants of the chapeau to feudal barons before, as he describes in his 'The Robes of the Feudal Baronage of Scotland' (P.S.A.S, Vol. LXXIX), where the matter is fully discussed. In the early medieval period the chapeau seems to have been borne mainly by kings and the higher nobility (princes, dukes and earls) but there does not seem to have been any rule as to its use*. Since that time the peerage have acquired coronets of rank and baronets and knights have acquired badges and collars, leaving the feudal baronage as the only 'order' with no distinguishing heraldic additament to their coats of arms; Sir Thomas set out to address the problem. The Armorial de Gelre (below) shows the arms of Edward III with his crest of a chapeau gules furred ermine surmounted by a lion statant regardant proper crowned or. As a matter of interest the same crest can be seen on the tournament helm (his original helm not a carved representation) of the Black Prince (Edward III's eldest son) above his tomb in Canterbury Cathedral. On the same page, the arms of the Earls of Oxford and of Northumberland also include a chapeau.
*According to Gadd's 'Peerage Law' (p. 5) the cap of dignity was restricted to dukes until 1470. In that year the cap of dignity was allowed to marquesses (Marquis of Montagu) and later, in the reign of Edward VI, to earls (p. 7). Thus originally a cap of dignity was a more exclusive symbol of status than a coronet. In my view the cap of dignity was originally a symbol of sovereign authority, more so than a crown.
The chapeau borne by feudal barons in possession (i.e. up to November 2004 in possession of the caput; I assume that since then the red chapeau has been awarded to the current owner of the barony) is the same as shown (i.e. a chapeau gules furred ermine) but it is placed between the shield and the helmet in the same manner as a coronet of rank. A feudal baron not in possession (i.e. the representer of a previous baron) has the same chapeau but blue (azure) instead of red (gules).
With regard to the standard, Sir Thomas Innes of Learney states in his 'Scots Heraldry' (2nd Ed., p. 43) that barons are entitled to a standard 4 yards in length. Please refer to that work for further information.
With regard to supporters, the current position is that they are allowed to the 'representer' (being a descendant - presumably 'representer' therefore means 'heir of line') of a baron who held the barony in 1587, the year of the Act of Parliament relieving feudal barons of their duty to attend Parliament; this is on the basis that the right to supporters derives from the right to sit in Parliament as a noble i.e. as a peer. However, we have already established that feudal barons did not lose their right to sit as nobles in the Scottish Parliament in 1587 so the restriction is clearly incorrect. In addition, Sir Thomas Innes of Learney refers ('The Robes of the Feudal Baronage of Scotland', P.S.A.S, Vol. LXXIX, p. 144) to the case of Sundry Barons v. Lord Lyon (1672) ('Brown's Supplement', Vol. III, p. 6) where those sundry barons 'successfully maintained, in claiming their supporters, that they were as good Barons after that Act (1587) as before', thus making it clear that barons were just as much entitled to supporters after 1587 as they had been before. Furthermore, the current practice of further restricting supporters to descendants, as described above, is also incorrect since there are proven instances of supporters passing to a purchaser, as cited by Sir Thomas Innes of Learney himself ('Scots Heraldry', 2nd Ed., p. 132, note 2). The reason for this is quite clear; baronial supporters are impartible hereditaments (see above) and pass with the barony, whether it passes by sale or inheritance. In addition, J. H. Stevenson refers ('Heraldry in Scotland', p.352-353) to 'an elasticity allowed to the term "representative", which enabled it to comprehend the successor of the family in its principal fief, whether he was its heir-male or heir-female, or even in blood a total stranger.' On this basis, it is clear that all Scottish feudal barons are entitled to supporters. Furthermore, Sir Thomas Innes of Learney states in his 'Robes of the Feudal Baronage of Scotland' (P.S.A.S, Vol. LXXIX, p. 142, note 1) that 'All the evidence is to the effect that supporters related to jurisdiction of High Justice and not to presence in Parliament', which, if true, would still mean that feudal barons are entitled to supporters. The fact that feudal barons no longer have any rights of public jurisdiction would not affect their right to supporters since 'lords of parliament' retain their supporters even though they no longer sit in the House of Lords (which was the basis of their right to supporters).
However, since Scottish feudal barons are peers of the realm, as established above, they are not only entitled to supporters as peers but are also entitled to a baron's coronet of rank, that is a coronet with six silver balls - but they would still be entitled to a coronet of rank in any event (even if they were not peers). The reason for this is that the relevant warrant, of 29 June 1665, granted the right to wear a coronet of rank to 'barons and lords of parliament, most famous in former times, who had place and vote in Parliament and other public conventions, by heritable right...' (Nisbet, 'System of Heraldry', Vol. II, Part IV, p.52). This warrant is addressed to the Privy Council in Scotland and must therefore be interpreted in this context (i.e. the word 'baron' must be taken to have its Scottish meaning unless there are clear reasons for doing otherwise). Clearly, the words cannot mean 'lords of parliament who are also feudal barons' since this would have excluded those lords of parliament who were not also feudal barons and we cannot simply assume that the words mean 'barons or lords of parliament' (that is, lords of parliament being the equivalent of English barons); in accordance with the normal rules of interpretation, we must take the words at their face value to refer to two distinct groups of people (which makes sense in a Scottish context), that is feudal barons and lords of parliament. In addition, the words 'barons and lords of parliament' are stated to refer to those who had a place and vote in Parliament by heritable (as opposed to hereditary) right and, clearly, feudal barons fall within this definition.
The Abolition of Feudal Tenures etc. (Scotland) Act 2000
With regard to the Abolition of Feudal Tenures etc. (Scotland) Act 2000, Section 63 of the Act states that 'Any jurisdiction of, and any conveyancing privilege incidental to, barony shall on the appointed day cease to exist; but nothing in this Act affects the dignity of baron or any other dignity or office (whether or not of feudal origin)... 'dignity' includes any quality or precedence associated with, and any heraldic privilege incidental to, a dignity...' It is clear, on this basis, that any heraldic privileges, such as baronial additaments, incidental to the ownership of feudal baronies are entirely unaffected by the Act. The intention of Parliament in this matter is quite clear and there cannot therefore be any 'unintended consequences' of the Act in heraldic terms as suggested by Sir Crispin Agnew of Lochnaw Bt. QC in his article 'Unintended consequences of the Abolition of Feudal Tenure etc (Scotland) Act 2000?' (Scots Law Times, October 2004). The intention of Parliament is so clear that it is surprising that the statement should need to be made at all.
Bearing this is mind, it is worth looking at some of Sir Crispin's arguments. With regard to territorial designations (i.e. where someone is described as being 'of' a place e.g. Agnew of Lochnaw), Sir Crispin states that 'as a barony is no longer attached to the land under section 63(2) of the 2000 Act, a baron may no longer adopt a territorial designation derived from his barony, because a barony is not an estate in land'. What Sir Crispin is saying here is basically that if you don't own the land (it is arguable that) you should not describe yourself as being 'of' the place. On the face of it this seems reasonable enough until you consider that the Standing Council of Scottish Chiefs (of which Sir Crispin, as a Chief, is a member) includes a number of people who are acknowledged by the Standing Council (and the Lord Lyon) to be entitled to a territorial designation when they do not own the relevant land. An example of this is MacDonnell of Glengarry referred to in Sir Thomas Innes of Learney's 'Scots Heraldry' (p. 206). Now Sir Crispin must be aware of this fact, so why does he single out feudal barons as (arguably) not being entitled to a territorial designation without holding the lands when he is perfectly aware that others are (and have long been) acknowledged to be so entitled in such circumstances? The logical extension of Sir Crispin's argument is that the Baronets of Nova Scotia (of which Sir Crispin is one) are no longer Baronets of Nova Scotia because they have long since ceased to have any interest in the land of Nova Scotia (Scotland ceded Nova Scotia to France in 1632), but Sir Crispin seems to have overlooked this point.
With regard to supporters, Sir Crispin states that this was a right arising from the duty to attend Parliament and ceased in 1587, which we know is incorrect (see above). But of course, if he is correct in saying that the right to supporters ceases when the right to sit in Parliament (as a noble) ceases, it is arguably also the case that hereditary peers are no longer entitled to their supporters since their right to sit in the House of Lords was removed by the House of Lords Act 1999.
With regard to the chapeau, Sir Crispin states that 'if the red chapeau indicates ownership of a jurisdiction, then the abolition of the jurisdiction of a baron by section 63(1) of the 2000 Act may well mean that a baron is no longer entitled to a chapeau'. Again, this seems logical enough, but if this is the case then is it not also the case that the hereditary peers ceased to have the right to coronets of rank as a result of the passing of the House of Lords Act 1999? Note, in this context, that the right to a coronet of rank was granted to Scottish 'Lords of Parliament' (equivalent of English barons) on the basis that they had a right to a 'place and vote in Parliament and other public conventions, by heritable right', so if the right to sit in Parliament is lost then, according to Sir Crispin, the right to the coronet is also lost. I asssume the same applies to other ranks of the peerage, including English barons.
As we can see, Sir Crispin fails, for some reason, to apply his arguments by extension to Scottish chiefs, baronets or peers - or indeed the Crown.
Furthermore, Sir Crispin suggests that since baronies are no longer attached to land the Lord Lyon might take the view that a foreign purchaser of a barony is outwith his jurisdiction and cannot therefore be recognised as a baron by a grant of arms with baronial additaments. In this context he states that 'Lyon normally only grants arms to persons falling within his jurisdiction. This has usually been taken to be those domiciled in Scotland or owning land in Scotland' but Sir Crispin seems to have forgotten an article that he himself wrote in 1988 ('The Conflict in Heraldic Law') and re-printed in 'The Double Tressure' (the official journal of the Heraldry Society of Scotland) in 2005 where he stated that 'In addition Nisbet tells us that the Sovereign can enoble and grant arms "not only to their Subjects but to Strangers" and this means that the Lord Lyon can grant arms to aliens as well as citizens of Commonwealth countries.'
With regard to precedence, most tables of precedence and books on etiquette do not mention Scottish feudal barons at all. Where they are mentioned, it is generally stated that Scottish feudal barons take precedence after knights but before esquires and gentlemen. Since, historically, knights were the vassals of barons, this is clearly, historically, a nonsense. This 'rule' is based on a baronetcy warrant of 1625 to Sir Robert Gordon (Douglas, 'Baronage of Scotland', p. 11) which states that the grantee was, as a baronet, to have precedence 'before all knights hitherto made and created or to be made and created at any future time, and ahead of all barons (lairds), armigers (esquires) and gentlemen whomsoever'. Not only does this wording not actually specifically establish the relative precedence of knights, barons, esquires and gentlemen (i.e. there is nothing saying that these four rank in that order) but, in addition, the reference to 'barons (lairds)' (the original Latin is 'baronibus, lie lairdis') is misleading. While all barons are technically lairds, not all lairds are barons (in fact most lairds are not barons) and to equate the two is therefore wrong. The word 'laird' is cognate with the English word 'lord' but has no precise meaning; effectively it just means 'landowner'. I take it to refer properly to both barons and freeholders, that is non-baronial tenants-in-chief (we have already established that freeholders were called minor barons in England), who are entitled to a territorial designation, such as 'Smith of Glensmith'. It has been variously estimated that there were some 2,000 barons and some 10,000 lairds at that time - so the distinction is important. Which of the two is it? Since we cannot say with certainty that the warrant relates to one or the other, we cannot positively conclude that it relates to either. In short, the warrant cannot be relied upon as an authority.
It is worth noting, in this context, that some people try to claim that while feudal barons may have taken precedence over feudal knights (Latin 'miles'), who were their vassals, the modern order of knighthood is a different thing altogether, being based on chivalry. Thus, apparently, modern knights form an order of 'eques auratus' ('golden knights', an order which apparently existed in classical Rome). This idea is, however, demonstrably false since chivalric knighthood emerged during the feudal period (i.e. feudal barons and chivalric knights co-existed) and no chivalric knight ever took precedence of a feudal baron by virtue solely of his knighthood (by which I mean that a King who had been knighted clearly took precedence over a baron as King - but not as a knight).
Note, in this context, that even Green's 'Encyclopaedia of the Laws of Scotland' (Vol. XII, 'Precedence', Section 28 'Landowners') is incorrect on this point. This states that 'the term 'barones lie lairds,' means person holding land either in superiority, or both superiority and property in liberam baroniam of the Crown'. This is wrong. The term 'barones' refers to those holding in liberam baroniam from the Crown, the term 'lairds' refers to a different group of people (which includes barons) as explained above.
In addition, Sir Thomas Innes of Learney refers ('The Robes of the Feudal Baronage of Scotland', P.S.A.S, Vol. LXXIX, p. 144) to the case of Sundry Barons v. Lord Lyon (1672) ('Brown's Supplement', Vol. III, p. 6) where those sundry barons 'successfully maintained, in claiming their supporters, that they were as good Barons after that Act (1587) as before'. Clearly, if the feudal barons 'were as good Barons after that Act (1587) as before', then they must have retained the same precedence after the Act as they did before, namely the same precedence as 'lords of Parliament' (equivalent of English barons).
Furthermore, Sir Thomas Innes of Learney in his 'Scots Heraldry' (2nd Ed., p. 88, note 1) states that 'The Act 1672, cap 47, specially qualifies the degrees thus: Nobles (i.e. peers, the term being here used in a restricted seventeenth-century English sense), Barons (i.e. Lairds of baronial fiefs and their "heirs", who, even if fiefless, are equivalent to heads of Continental baronial houses) and Gentlemen (apparently all other armigers).' Baronets and knights are evidently classed as 'Gentlemen' here and are of a lower degree than Barons. Although precedence is primarily a matter of royal prerogative, the royal prerogative is subordinate to Acts of Parliament (as proved by the case of the Duke of Edinburgh, who was assigned precedence by a royal warrant of 1952 'unless provided otherwise by Act of Parliament'), so the warrant of 1625 must fall by the wayside - it is of no effect with regard to the precedence of barons in relation to baronets and knights.
In any event, the warrant is clearly subordinate to the Act of Union of 1707, under which Scottish feudal barons take precedence as 'peers of Great Britain', that is after Barons of England in order of creation and before baronets, knights, esquires or gentlemen. This is the proper, historical and natural order of things; that a baron should come before a baronet (a sort of 'little baron') and a knight (historically a vassal of a baron). On the Continent, where there are no baronets, barons are ranked in their proper place after dukes, marquises and counts as part of the nobility (i.e. where they have been for the last thousand years) but most definitely before 'chevaliers' (knights).
It is also worth noting that Nisbet states ('System of Heraldry', Vol. II, Part IV, p. 56), in relation to the cap of estate (and remember, he is writing long before the cap of estate was officially and exclusively assigned to feudal barons), 'Where [referring to certain works on heraldry] the achievement of knights, baronets, and bachelors and esquires, are represented engraven on copperplate, having their helmets and other parts of their achievements ensigned with this cap of state, which ought not properly to be carried by any below nobility [used in the sense 'estate of nobility'*]'. This makes it clear that knights and baronets are not part of the nobility in the sense used, whereas feudal barons are and always have been. Clearly, it is nonsensical to suggest that baronets and knights should take precedence before feudal barons on this basis.
With regard to forms of address, the position is, in summary, as follows:
Where John Smith owns the Barony of Glensmith |
||
| Where | Baron | Wife of a baron |
| Envelope | The Much Hon. the
Baron of Glensmith Together: The Much Hon. the Baron of Glensmith and Lady Glensmith |
The Much Hon. the Lady Glensmith or The Much Hon. the Baroness of Glensmith |
| Invitation | The Baron of Glensmith Together: The Baron of Glensmith and Lady Glensmith |
Lady Glensmith or The Baroness of Glensmith |
| Place card | The Baron of Glensmith | Lady Glensmith or The Baroness of Glensmith |
| Greeting in letter | Dear Baron or Dear Glensmith or Dear Baron of Glensmith | Dear Lady Glensmith or Dear Baroness |
| Signature | John Smith of
Glensmith or J. Smith of Glensmith I understand that it is also legally correct to sign as 'Glensmith'. |
Jane Smith of Glensmith or J. Smith of Glensmith |
| Face to Face | Baron or Glensmith | Baroness or Lady Glensmith |
| Introducing a baron to someone else | The Baron of Glensmith or John Smith, Baron of Glensmith or John Smith of Glensmith, Baron of Glensmith | The Baroness of Glensmith, Jane Smith, Baroness of Glensmith, Jane Smith of Glensmith, Baroness of Glensith or Lady Glensmith |
| Phonebook listing | Smith, J., Much Hon.
Baron of Glensmith or Smith of Glensmith, J.,
Much Hon. Baron of Glensmith (or the nearest to this you can persuade your telephone company to use) |
Smith, J., Much Hon. Lady Glensmith, Smith, J., Much Hon. the Baroness of Glensmith, Smith of Glensmith, J., Much Hon. Lady Glensmith or Smith of Glensmith, Much Hon. the Baroness of Glensmith |
| Passport, driving licence, legal documents | John Smith, Baron of Glensmith or John Smith of Glensmith, Baron of Glensmith | Jane Smith, Lady Glensmith, Jane Smith, Baroness of Glensmith, Jane Smith of Glensmith, Lady Glensmith or Jane Smith of Glensmith, Baroness of Glensmith |
Notes:
- There are some alternative usages but if you use the above you will not go wrong (but see the next note).
- The above are formal usages. Informally barons should be addressed by their Christian names and would introduce themselves and be introduced as just e.g. 'John Smith'.
- The territorial designation e.g. 'of Glensmith', as shown above, is optional (though, where adopted, will legally become part of the surname i.e. your surname will become 'Smith of Glensmith') and, on its own, somewhat misleading, since territorial designations are used (correctly) by people who are not barons. 'John Smith of Glensmith' by itself does not tell people whether or not you are a baron.
- The wife of a baron is LEGALLY e.g. 'Lady Glensmith' whereas the wives of baronets and knights are only described or addressed as such by courtesy. Correctly, the wife of a baronet or a knight is a 'Dame'; the wife of 'Sir John Smith' (either baronet or knight) is correctly 'Dame Jane Smith' and should be referred to as such in legal documents. (See 'Scots Heraldry', 2nd Ed., p. 209 and 'The Clans, Septs and Regiments of the Scottish Highlands', 7th Ed. revised by Sir Thomas Innes of Learney, p. 411).
- If you are a Scottish feudal baron then it is incorrect to describe yourself as 'Mr.' on a form and such a usage may invalidate legal or official documents. In other words, if your correct designation is 'John Smith, Baron of Glensmith' (as you would be referred to in official documents, such as grants of arms, from the Lord Lyon) then, logically, you are NOT (in fact cannot be) 'Mr. John Smith' - any more than Sir John Smith is Mr. John Smith. In fact, a baron should NEVER be described or addressed as e.g. 'Mr. Smith'. As stated in 'The Clans, Septs and Regiments of the Scottish Highlands' (7th Ed., p. 411) 'It is rude, not "respectful", to address Clanranald as "Mr. Macdonald" or the Laird of Keir [a feudal baron] as "Mr. Stirling".' On a similar basis, the wife of a baron should never be described or addressed as 'Mrs.' (See 'Scots Heraldry, 2nd Ed., p. 209, note 4).
- It is important to emphasize that the title of baron is not a mere description but a proper title which should be used wherever a title is required, such as in conversation, on an envelope or a salutation in a letter. This is made clear by Sir Thomas Innes of Learney in his 'Scots Heraldry' (2nd Ed., p. 204) where he states that baronial titles 'have been recognised by the Committee of Privileges as "titles"; the "title of Barone of Spynie" in a Crown charter was held to be a territorial and not a peerage dignity'.
As an example of what is currently said on this subject, it is sufficient merely to quote from Debrett's 'Correct Form' (2002 Ed., p. 99) concerning the form of address for the wife of a chief:
'Until the end of the eighteenth century, a wife of a chief or laird was invariably described as 'Lady', followed by her husband's territorial designation, e.g. the wife of Cameron of Lochiel was called Lady Lochiel.
As the difference between 'Lady' plus estate, and 'Lady' plus the surname (i.e. a knight's wife) was not understood by English officials, this title for a chief's wife died out early last century, becoming restricted to the peerage, baronetage and knightage. For the same reason, a chief or laird's wife came to adopt her husband's full surname, and not just the territorial designation part.
Today, some wives of chiefs or chieftains use the designation 'Mrs.'; others have adopted the Irish style of 'Madam', e.g. Madam Chisholm, which has met with Lord Lyon's approval. To be certain of the designation preferred, one needs to check with the individual family.'
In effect, we are being asked to accept that the wives of Scottish chiefs and lairds allowed their correct and legal designation of 'Lady' to slip to 'Mrs.' - quite happily and without a murmur of protest - while, at the same time, the wives of baronets and knights (who are correctly called 'Dame') somehow managed the reverse process and acquired the title of 'Lady'. Thus, we end up with a position where those who are correctly called 'Lady' are called 'Mrs.' and those who are correctly called 'Dame' are called 'Lady'. While it is true that the wives of baronets and knights have acquired the courtesy title of 'Lady', it is absolutely false to claim that the wives of Scottish chieftains and lairds should not be called 'Lady' when 'Scots Heraldry' (2nd Ed., p. 209), the standard reference work, states that 'a Laird's wife is legally "the Lady Lour".' Note that Debrett does not even cover the wives of Scottish feudal barons, they are completely ignored. What is even worse is that Debrett states that the widowed wife of a Chief should be called the 'Dowager Mrs. x'!
With regard to feudal barons, Debrett's 'Correct Form' (2002 Ed., p. 96) states:
'According to Scottish law there are some special titles which are recognised by the Crown. These fall into two divisions: those of the peerage of Scotland, with the title of Master, and recognised chiefly styles and territorial designations of chieftains and lairds, which are strictly speaking part of their surnames. These are under the jurisdiction of the Lord Lyon King of Arms and by statute form part of their surnames and should always be used.
- Chiefs of clans (Highlands)
- Chiefs of names (Lowlands)
- A few independent heads of considerable houses who are recognised as chiefs (for example, Fraser of Lovat, Macdonald of Clanranald and Macdonald of Sleat)
- Chieftains (branch chiefs)
- Lairds
Some of the above are also feudal barons with precedence before esquires [Note however that Debrett does not include feudal barons in the order of precedence at the end of the book (p. 311) - for the obvious reason that it would just have looked ridiculous to have 'Barons of Scotland' appearing after, for instance, the younger sons of knights.]. They may be known by their baronial status (usually on the Continent, where baronets and the other designations mentioned above are not understood). For this reason the fifth grade in the Peerage of Scotland is a Lord of Parliament and not a Baron as in other peerages. There is no English equivalent for the formal style of William Stirling, Baron of Keir.'
Apart from this Debrett's 'Correct Form' does not mention feudal barons at all. Well, where do we start? In the first place, it is stated that barons are usually known by their baronial status 'where baronets and other designations mentioned above are not understood' (There's a put down if you like!) i.e. barons are only known by their baronial status in error. That is what it says. Almost in the next sentence, reference is made to a formal style of 'William Stirling, Baron of Keir'. So is this an error? Well, presumably not. So, we gather that there IS a correct formal style for a Scottish feudal baron (which, since it uses the word 'Baron' means that the person is correctly known by their 'baronial status'). This correct formal style must differ from the correct formal style for chiefs, chieftains and lairds, since they are not necessarily barons, as Debrett makes clear i.e. a chief clearly cannot be known as 'Baron of x' if he isn't a baron. This begs the question 'If there are different correct formal styles for Scottish feudal barons (and their wives and children), why are these not stated in the same way that correct formal styles are given for every other imaginable group of people, including, for Heaven's sake, the nobility of Malta and the 'Canadian nobility', which, it seems, has one member?!' Enough said I think.
As Sir Thomas Innes of Learney said (The Clans, Septs and Regiments of the Scottish Highlands', 7th Ed., p. 407) 'The late Lord Lyon Burnett emphasised that it is the duty of our baronial chiefs (and most of the Highland chiefs are such) to assert their position' and (p. 411) 'Celtic chiefly and territorial styles [including baronial styles] should be supplied and used on all official occasions and in official documents'.
Today, in some quarters of officialdom and elsewhere, there is considerable 'disapproval' of the fact that feudal baronies* can be bought and sold, and continued attempts have been made, and continue to be made, to suppress or ignore them (See 'Scots Heraldry', 2nd Ed., p. 205 and my comments on Debrett's 'Correct Form' above), even though the Prince of Wales himself holds a Scottish feudal barony, the Barony of Renfrew (Hansard, 18 May 1999, Column 228). Most of this is just 'bureaucratic bolshiness and obstructionism' but, in a few cases, this attitude derives from a genuine opinion that the Crown is, or at least should be, the sole 'fount of honour'. However, this is a comparatively recent concept and, in the early days of chivalry, any knight could confer knighthood and earls and lords of regality (i.e. palatine lords) could create barons - and it appears that they still can, in Scotland at least (See 'Scottish Feudal Baronies' by Hugh Peskett, Consultant Editor for Scotland, Burke's Peerage, Baronetage & Knightage. This article also appeared in 'East Lothian Life', Autumn 2003, p. 17). In addition:
- The Crown is not the direct 'fount of honour' for hereditary peerages beyond the first generation (i.e. hereditary titles descend by accident of birth).
- Peerages are now granted mainly at the whim of politicians, not the Crown.
- Most charters of feudal baronies are to 'x, his heirs and assignees', which constitutes consent on the part of the Crown to the sale of the barony; so, in this sense, the Crown approves the destination of a feudal barony in exactly the same way that it approves the destination of a hereditary title.
*being proper titles of nobility, as ruled by the Lyon Court on 26th February 1943; see 'Register of Genealogies', Vol. IV, p. 26 which states that 'with regard to the words ‘untitled nobility’ employed in certain recent birthbrieves in relation to the Minor Baronage of Scotland, Finds and Declares that the Minor Barons of Scotland are, and have been both in this nobiliary Court and in the Court of Session recognised as a “titled nobility” and that the estait of the Baronage (i.e. Barones Minores) are of the ancient Feudal Nobility of Scotland’.
Interestingly, many people who would not dream of questioning the validity of a hereditary title seem to regard a purchased title as somehow invalid, though an inherited title is clearly no more 'earned' than a purchased one. This attitude is illogical since if someone declines to recognise a feudal title on the basis that it hasn't been earned, then, by extension, that person should also decline to recognise ALL hereditary titles and ALL courtesy titles, which, while at least consistent, is the short road to republicanism. This is fair enough if that is what you want but I regret that you will find that the people who run your new republic will soon start awarding themselves titles, privileges and perks (like inflation-proof pensions, huge expense allowances, subsidised meals etc. etc. - Why does this make me think of Eurocrats and the European Parliament, I wonder?) in the same way that elites have always done. It is a fact, for instance, that the present Labour government has created many times more peers than any previous government (289 since 1997 compared to 205 for the whole period of the Thatcher government - over 3 times the rate - as at April 2005 - and it has not been done to redress the political balance in the House of Lords, since the majority of hereditary peers who were removed under the House of Lords Act 1999 were Conservative) and I do not recall a flood of people refusing peerages. So much for socialist principles! Nonetheless, I hope you would agree that if a title is legally valid in this country then it should be recognised with good grace. The moment one starts to say 'I am not going to recognise that fellow's title because I don't agree with feudal baronies/baronetcies/hereditary titles/all this mayor nonsense' or 'I am not going to recognise that fellow's title because he is a just a crony of the prime minister/a civil servant and it's a perk of the job/made loads of money and then gave a bit back to charity', one is on the road to chaos.
Feudal titles were real titles in a way that modern titles (which I have seen referred to as 'mere personal dignities') are not, since they included not just the title (which was largely incidental) and the right and duty to attend the King's Court (later Parliament) but also a substantial area of land, a castle or manor house and baronial jurisdiction over the earldom or barony. In the medieval period, when you where earl or baron OF a place, it meant exactly that. Sadly, with the emergence of personal titles this ceased to be the case. It is important to remember that feudal earls and barons were the proper and original nobility (as well as being the original peers of the King's Court, that is peers of the realm) and that many feudal baronies are, historically, of far more significance and interest than modern personal titles. For this reason, it is very important that they should be preserved. As Sir Thomas Innes of Learney said of Scottish titles (The Clans, Septs and Regiments of the Scottish Highlands', 7th Ed. revised by Sir Thomas Innes of Learney, p. 411) 'their preservation and correct use is important in preserving the structure and spirit of our native Scottish social system, and the courtly manners of the Highlanders'.
So what of the future? It will be clear, from reading what I have said above, that the position of Scottish feudal baronies is far from satisfactory, certainly with regard to precedence, heraldic additaments and forms of address, although a more serious problem has resulted from the Abolition of Feudal Tenures etc. (Scotland) Act 2000. Before that Act came into effect in 2004 feudal baronies were, as we know, attached to land and this meant that sales of feudal baronies had to be recorded in the Register of Sasines (property register); that register therefore provided pretty much definitive proof of the ownership of a barony i.e. if you were the owner of a barony that fact would be recorded in the Register of Sasines. Now that sales of baronies are no longer recorded in the Register of Sasines it is clear that determining ownership becomes more problematic and the scope for fraud is greater. This lack of control with regard to ownership and uncertainty with regard to precedence, forms of address and heraldic additaments in relation to properly legal titles of nobility within the United Kingdom does not reflect well on those responsible. Fortunately, there is a very simple solution to all of these problems, namely for a Royal Warrant to be issued establishing:
- an official 'Roll of the Baronage of Scotland' along exactly the same lines as the existing official 'Roll of the Baronetage', itself established by Royal Warrant in 1910. In fact, there is no reason why both rolls should not be maintained by the 'Registrar of the Baronetage' (within the Department of Constitutional Affairs) who could also become 'Registrar of the Baronage of Scotland'.
- the precedence, forms of address and heraldic additaments of Scottish feudal barons.
(Since writing the above I have found out that following the removal of hereditary peers from the House of Lords under the House of Lords Act 1999, a new 'Roll of the Peerage' was established by Royal Warrant dated 1st June 2004. In addition to establishing the official 'Roll of the Peerage', the warrant also states that any peer not entered on the Roll will not be entitled to any precedence attaching to his peerage, and shall not be addressed or referred to by the title of his peerage in any official context. Logically of course, since Scottish feudal barons are peers they should just be included in the Roll of the Peerage, on which basis there is no need for a separate Roll of the Baronage of Scotland.)
The question is 'If the matter is so simple why hasn't it been done?'. Well, the answer is, regrettably, that the 'official' attitude seems to be that Scottish feudal baronies should be quietly suppressed (such open and honest people - not underhand at all!) and, in the meantime, ignored as far as possible. However, if this is the case then it is just wishful thinking; the feudal barons of Scotland have existed for over 800 years, they are not about to 'go away' and the likelihood of them ever doing so is vanishingly remote (short of an Act of Parliament abolishing them - which would trigger huge compensation claims, possibly to the order of hundreds of millions of pounds). It would be better for all concerned if this fact were to be accepted with good grace and the situation addressed in the manner I have suggested; as it is, those who try to suppress feudal baronies just look dishonest and underhand - which is exactly what they are.
Earls and barons formed the 'estate of the nobility', one of the three estates which formed the 'community of the realm' in Parliament; the others being the clergy and the burgesses, who represented the church and the towns. In this sense, if you were not part of the 'estate of the nobility' then you were not a noble, even if (somewhat confusingly) you were a knight (Latin 'miles' or 'milites') holding land by military service, that is a noble fief (a fief that conferred nobility). Thus, knighthood was not, in this sense, a 'title of nobility'. In another sense of course, that is in the sense that knights were armigers (they had a coat of arms - at least when the use of arms developed), they were definitely noble, since they were 'known' (Latin 'nobilis') by virtue of having a coat of arms. This latter and wider definition of nobility seems the better one to me. In addition, the chivalric concept of knighthood differed from the feudal concept of knighthood. Under the latter a man was a knight by virtue of holding an area of land (a 'knight's fee') by military service; under the former it depended on adherence to a chivalric code and on proven bravery in battle. Nevertheless, if you held land by military service you were likely to be required to demonstrate your bravery in battle anyway!
Note that neither a barony or a knight's fee were defined areas of land. This has been a topic of much discussion but a knight's fee was often, if not commonly, about 5 hides of land, that is 600 acres (1 hide = 120 acres) or one square mile - see Round's 'Feudal England'. In England, the number of knight's fees in a barony was very variable, according to Sanders ('English Baronies', Oxford, 1960); some consisted of as few as 2 or 3 (or even 1), 5 to 10 would be a more reasonable norm in my view and some consisted of over one hundred knight's fees (Chester 118, Leicester 125 - both of which were earldoms). In terms of relief, a baron paid £100 and a knight £5, so one could say that a barony was equivalent to 20 knight's fees, that is 20 x 600 acres = 12,000 acres. Other sources, such as the 'Modus Tenendi Parliamentum', say that a barony was 13 and 1/3rd knights' fees (making land to a value of 400 marks). It would probably be reasonable to regard an English barony as being in the region of 5,000 to 10,000 acres, though many were smaller. In Scotland, I would say that the variability was even greater; there were some huge baronies (earldoms, regalities and lordships - as well as ordinary baronies) but many baronies, particularly those erected in the 1500s and 1600s in the South-East of Scotland (where the land was more fertile and more heavily settled), were only a few hundred acres, smaller than a single English knight's fee.
Anyone who is familiar with the history of the peerage in England will be aware of 'baronies by writ'; that is, baronies that are held to have been created by the receipt of a writ of summons followed by a sitting in the House of Lords. Such baronies are deemed to be descendible to heirs general i.e. heirs male and female. The doctrine of baronies by writ was not 'ascertained' until the Clifton case in 1674 but was later applied retrospectively to writs of summons issued from 1264, when the first sitting of Parliament was (incorrectly) deemed to have taken place. It has now been established that certainly until 1464 (when the Barony of Stafford of Southwick was created by patent - see 'Complete Peerage, Vol. IV, App. H, p. 699) and probably until the mid to late 16th century, the issue of a writ of summons was not intended to create a hereditary title of any kind. The only instance of a writ of summons being issued before 1597 (see below) which did create a hereditary title is that to Henry de Bromflete, Baron de Vescy in 1449 ('Complete Peerage', Vol. IV, App. H, p. 700) but the inclusion of words of inheritance in the writ proves that without such words no hereditary title was created - so this writ re-inforces the position established by the 1464 patent mentioned earlier. After that, the first instance that I can find of a writ being issued with the clear intention of creating a hereditary title is Howard de Walden in 1597 ('Complete Peerage', Vol. IV, App. H, p. 701). A right to succession by an heir general was recognised in 1580 in respect of the Barony of Willoughby, so one may say that by that date a writ of summons was deemed to create a hereditary title, even though the original writ (1313 in this case) could not have been issued with such an intention. No claim was put forward in respect of the Barony of Berners in 1533 (implying that it was not believed that there was a hereditary title to claim), so it seems that the doctrine of a hereditary title being created by a writ of summons emerged between 1533 and 1580. After 1597 there appear to have been only four baronies by writ; Clifton in 1608 (which was the subject of the famous case of 1674), Strange in 1628 (where a writ was issued in error - but this is still deemed to create a barony), Powlet of Basing in 1717 (another writ issued in error) and Percy in 1722 (another writ issued in error); this seems to have been the last barony created by writ. As a result of the erroneous retrospective application of the doctrine a number of baronies by writ have been recognised which shouldn't have been, including the Baronies of Camoys (abeyant 1426 - 1839), Fauconberg (1463-1903 abeyant again in 1948), Strabolgi (1369-1916) and Botetourt (1406-1764 abeyant again in 1984). This has led to the extraordinary situation where there is a class of people who are acknowledged to be peers when they shouldn't be, while there is another class of people who are not acknowledged to be peers (the holders of feudal baronies - including English feudal baronies- see below) who should.
Most historians seem to accept the idea of the emergence of baronies by writ without question. When I say 'emergence of baronies by writ' I mean a process whereby the 'old (or feudal) baronage', who were barons by tenure, ceased (apparently) to have the right to attend Parliament by virtue of their tenure and the King 'acquired' the right to summon to Parliament as a peer anyone he pleased, simply by summoning them by writ (a writ of summons). However, this process gives rise to an extraordinary, indeed inconceivable, situation as explained by Henry Hallam in his 'Middle Ages' (Vol. III, p. 240) where he states 'there is surely a great difficulty on the opposite side, in the hypothesis that, while it is acknowledged that there were, in the reign of Edward I and Edward II, certain persons holding by barony and called peers of the realm, it could have been agreeable to the feudal or to the English constitution that the King, by refusing to the posterity of such barons a writ of summons to Parliament, might deprive them of their nobility, and reduce them forever to the rank of commoners.' No King of England has ever had such a power and I can state as a matter of bald fact that such a power did not then and never has existed under feudal or any other kind of law; indeed the right of a vassal to attend his immediate superior's court as a peer of that court could not be removed without dismantling the entire foundation of the feudal structure since it would remove the right of vassals to obtain justice; how can a man obtain judgement from his peers if those peers are not allowed to attend the court? It is of course a matter of historical fact that men who were not barons by tenure were summoned to Parliament by writs of summons but this does not alter the fact that those who were barons by tenure had a right to be summoned which the King had no authority to remove. It is sometimes asserted (along the lines 'it is said that') that an Act of Parliament was passed in the reign of Henry III which provided that no-one should attend Parliament as a peer without a writ of summons but no such Act has, to my knowledge, ever been found. It easy to see why such an assertion is necessary because such a fundamental alteration in the feudal relationship between the King and his immediate vassals (the peers of the realm) would have been impossible under feudal law without the consent of those vassals and those vassals (the peers of the realm) would hardly have consented to grant power to the King to deprive them of their nobility at his own whim. This is a circle that cannot be squared.
Of course, the interesting question is why feudal barons apparently allowed their right to sit in the House of Lords to lapse; if they had the right to sit in the House of Lords why didn't they insist upon it? I think there are a number of reasons for this:
- Many, if not most, of those summoned to sit in the House of Lords by writ of summons, certainly in the early period when such summonses were issued, were from established land-owning families; they would have been feudal barons.
- Many feudal baronies were inherited by co-heirs i.e. by this period the lands of the barony had been spilt up amongst daughters in the absence of a male heir. It would seem that there was some confusion about the exact status of those who held part of the lands of a barony and it is easy to see that the holder of part of the lands of a barony would not have been in a strong position to insist upon a right to sit in the House of Lords as a baron. (It is difficult to understand the apparent confusion in England on this point. In Scotland feudal law was quite clear; the barony - caput, jursidiction, arms, title - went to the eldest daughter - or rather the husband of the eldest daughter- while the land might be split up amongst all the daughters. The eldest daughter owed suit to the King for the whole barony and the younger daughters owed suit to the eldest daughter; they held of her.) In fact, one can even see that the emergence of baronies by writ was, at least in part, due to a shortage of barons caused by the breaking up of baronies amongst co-heirs.
- Some feudal baronies will have merged with higher honours, e.g. an earldom, through the marriage of an heiress and would have been represented in the House of Lords through that higher honour. 'Merged' means in the sense of being held along with another title, not merged (made as one) in a legal sense.
- Of that small number of feudal barons who did not fall into any of the above categories and who were not summoned to Parliament, it is likely that their lack of summons resulted from their opposition to the Crown at some period. These barons possibly felt that a lack of summons was a relatively light punishment and were probably quite relieved to be able to retain their estates in peace.
In short, it is conceivable that there was not a single holder of an entire feudal barony not summoned by writ with the power, wealth and inclination to insist upon his right to sit in the House of Lords. The holder of an entire feudal barony of power, wealth and standing would invariably have been summoned by writ.
See 'Complete Peerage', Vol. I, p. xiii; Vol. IV, App. H; Vol. IX, App. B for further information.
The prevalent view of English feudal baronies is that they no longer exist. This view is probably best summarised by an extract from an article on Scottish Feudal Baronies written by Hugh Peskett, Consultant Editor for Scotland, Burke's Peerage, Baronetage & Knightage, which was published in the 107th edition of Burke’s Peerage, Baronetage & Knightage, as follows:
'English and Irish Feudal Baronies
The existence of these has been suggested[!]. Feudal baronies are baronies by tenure, i.e., by possession of the pertinent land. There was in medieval England a class of barony by tenure, but this is academic as it was ruled in the Fitzwalter case in 1670 that baronies by tenure had been discontinued for many years and were not to be revived, nor any right of succession based on them. In the Berkeley Case in 1861, an attempt was made to claim a barony by tenure, but the House of Lords ruled that whatever might have been the case in the past, baronies by tenure no longer existed, and any which had existed were converted into Baronies by Writ by the Tenures Abolition Act 1660. There are also the three Reports of the Redesdale Committee in the early 19th century that reach the same conclusion. It is probable that the same applies to Ireland, by a similar Tenures Abolition Act; in any event it would be difficult to augment a list of Irish peers by tenure beyond the twelve barons by tenure summoned in 1489 and subsequent years, and their heirs, who sat in the Irish House of Lords together with the original three earls and other peers created by patent. No others holding by tenure sat, and an alleged baron by tenure who never sat in the Irish House of Lords would prima facie lack credibility.'
The Tenures Abolition Act of 1660
- The Tenures Abolition Act of 1660 was designed to remove the onerous burdens associated with certain forms of feudal tenure, such as wardship. These onerous burdens were, in the main, attached to the noble forms of tenure i.e. knight's service and grand sergeantry. Grand sergeantry was the holding of land in return for the performance of a service to the King, such as providing a cook for the coronation. Almost any service performed directly for the King seems to have constituted grand sergeantry. Petty sergeantry involved other lesser forms of service. Note that a barony could be held by military service only, by both military service and grand sergeantry or, I believe, by grand sergeantry alone. I believe that it was also possible to hold a barony by purely nominal service, such as a penny a year, if asked; this was certainly the case in Scotland. The Act was actually an attack on the prerogative of the Crown since it was the Crown which usually benefited (financially) from these burdens - which is why the King resisted the Act so vigourously.
- Essentially, the Act abolished certain forms of feudal tenure and converted them into another form of tenure, that is 'free and common socage', ancestor of our modern tenure of 'freehold'. The forms of tenure that were abolished were tenure by knight's service, tenure by grand sergeantry and all tenures in capite, that is tenures held in chief of the King. No mention is made in the Act of tenure by barony but since baronies were held in capite, it would seem that tenure by barony must have been abolished by the Act. However, since the tenures that were abolished were converted into another form of tenure, that is free and common socage, it would seem that these new tenures must still have been held OF someone and that this person can only have been the King. In other words, the Act says that all tenures in capite are abolished but it actually just creates a whole new set of tenures in capite. One thing, I believe, is certain, namely that the Act did not create 'alloidal' tenures, that is tenures held of no superior.
- Although tenure by barony was apparently abolished by the Act, section 11 states that the Act 'shall not infringe or hurt any title of honour, feudal or other, by which any person hath or might have right to sit in the Lords House of Parliament, as to his or their title of honour, or sitting in Parliament, and the privilege belonging to them as Peers'. This means that even if tenure by barony was abolished, feudal baronial titles, and any right to sit in the House of Lords arising, were specifically preserved.
- Although the Act preserves baronial titles, it does not expressly state how they were to be preserved. The question is 'If baronial tenure is abolished, how does a baron hold a barony? Is the barony still attached to the land (i.e. feudal) or does it become a personal title?' My view is as follows and is derived mainly from the effect the 1660 Act had on the rights of feudal barons in relation to alienation and succession. When a barony was held by feudal tenure (i.e. attached to the land) it passed in accordance with the limitations specified in the charter granting the barony e.g. 'heirs and successors'. If there was no limitation then it must have been the case that a baron could dispose of his barony as he pleased (i.e. if there was no limitation specified there was no-one to alienate FROM). A baron could alienate his barony away from his 'heirs and successors', if this was the specified limitation, with licence from the King but, importantly, he could also alienate his barony away from his 'heirs and successors' WITHOUT licence from the King, subject only to being liable to a fine. Now, if the Tenures Abolition Act of 1660 converted feudal titles into personal titles (baronies by writ - as the judges in the Berkeley case of 1861 ruled) then the barony could only descend to heirs general in accordance with the normal rules associated with baronies by writ. In addition, a barony by writ can fall into abeyance, whereas a feudal barony cannot; it passes to the eldest daughter. It is clear, on this basis, that the 'conversion' of feudal baronies into baronies by writ would have represented a substantial restriction of the rights of barons in relation to their powers of disposing of their baronies. We therefore have, quite clearly, an Act which TAKES AWAY RIGHTS. This is where a fundamental doctrine of English law comes into play, the presumption against taking away rights. This doctrine states that a person's rights cannot be taken away by statute except by express language or necessary implication. So the question is 'Is there express language in the Act which says that feudal titles were to be converted into personal titles or is it a necessary consequence of the Act that this should happen?' Well, there is no express statement in the Act to this effect, so we are left asking whether the conversion of feudal into personal titles was a necessary consequence of the Act. There is a strong temptation to argue that since the Act abolished tenure by barony, baronies could not be held by tenure as a result; in which case they must have been converted into personal titles. This is wrong. The fact is that the Act actually CONVERTED tenure by barony into tenure by free and common socage i.e. it just replaced one form of tenure with another. So could a barony be held by free and common socage? The answer is 'Yes'. The King had the right to grant a barony subject to ANY feudal tenure he pleased, whether by knight's service, grant sergeantry or honorary service (effectively no service) only. So, if the King had the right to grant a barony to be held by free and common socage then it was NOT a necessary consequence of the Act that feudal titles should become personal titles. On this basis, the law will assume that feudal baronies remained attached to the land and, as a consequence of the Act, were held of the King by free and common socage. The effect of the Act was therefore to abolish tenure by barony but to leave feudal baronies as titles attached to land held directly of the King by free and common socage and capable of being disposed of as before the Act, except that the Act abolished fines for alienation. In other words, feudal baronies remained feudal. The preservation by the Act of the honorary services of grand sergeantry by tenure of free and common socage proves, in my view, that baronial service could also be preserved to be held by free and common socage. As with baronial titles there is nothing in the Act which makes the honorary services of grand sergeantry personal duties, so, as with baronial titles, they were still attached to the land and passed with the ownership of it.
The Berkeley Case of 1861.
- In the Berkeley Case of 1861, the claimant, Maurice Berkeley (1788-1867), who was an illegitimate son of Frederick Berkeley (1745-1810), 5th Earl of Berkeley, and who held the castle and estate of Berkeley as tenant for life under a trust, claimed the right to a seat in the House of Lords by virtue of holding the feudal Barony of Berkeley by tenure, which was historically attached to Berkeley castle.
- The Committee for Priveleges of the House of Lords found that the claimant had not made out his claim and ruled, inter alia, a). that section 11 of the Tenures Abolition Act of 1660 (see above) 'has not the effect of preserving such barony by tenure, if it ever existed' and b). that a tenant for life or devisee of such hereditaments (property) has no legal right to a seat in the House of Lords.
- It is important to realise that when the House of Lords ruled that the Tenures Abolition Act 'has not the effect of preserving such barony by tenure, if it ever existed', they did not say that feudal baronial titles themselves, or any right to a seat in the House of Lords arising, no longer existed, they merely ruled that the barony by tenure had been abolished and that since the claimant claimed a seat in the House of Lords by virtue of holding a barony by tenure, his claim must fail. Lord St. Leonards, one of the judges in the case, stated in his judgement that 'The right to sit [in the House of Lords] is saved [by section 11 of the Tenures Abolition Act of 1660], but it no longer depends upon the tenure which is extinguished. The title of Honor was left as a substantive personal right. The tenure was not saved in the particular instance in order to save the title of Honor, but the title of Honor was itself saved although the tenure was destroyed....There is, indeed, a Barony of Berkeley, not depending on tenure still existing.' (VIII, HLC, 118-119). So there we have it in black and white. Lord St. Leonards stated later in his judgement that 'we are bound to consider the Act of Charles 2 as having extinguished the tenure under which the Petitioner seeks to establish his right to sit in this House' which is true but potentially misleading, as we have seen; tenure by barony was abolished but baronial titles were preserved. It is quite clear, therefore, by Lord St. Leonards' own admission, that feudal baronial titles and any right to sit in the House of Lords arising from tenure by barony still existed in 1861 and so, of course, continue to exist to this day, subject only to the consequences of the House of Lords Act 1999.
- As I state above, I disagree that any feudal baronies existing at that time (1660) were converted into baronies by writ (i.e. personal titles) since there is no express statement to that effect in the Act and it is not a 'necessary implication' of the Act. In other words, my view is that the Barony of Berkeley was still attached to the castle but it was held by free and common socage rather than 'per baroniam' or 'by barony'.
A number of arguments have been put forward in relation to the above as follows:
- Section 11 refers to baronies by writ
only.
No, section 11 specifically refers to 'any title of honour, feudal or other'.
- Section 11 refers to existing members of
the House of Lords only.
No, section 11 specifically refers to 'any title of honour, feudal or other, by which any person hath or might have right to sit in the Lords House of Parliament'. There are no words in the Act restricting the operation of section 11 to existing members of the House of Lords, who, of course, held personal, not feudal, titles.
Note that Lord St. Leonards stated (VIII, HLC, 119) that 'The Act found the Lords' House of Parliament filled with Peers sitting with inheritable blood, and it effectually saved their right. This House has consequently ever since (a period of two centuries), been constituted of Peers claiming either under an original writ of summons or by patent. No man has sat here under a simple right depending on the acquisition of a baronial estate [This is, in fact, wrong, as proved by another judge in the case, Lord Redesdale, who referred to the baronies of Abergavenny and Berkeley (VIII, HLC, 153)].' What this means is not that section 11 of the Act referred to existing peers only but that the Act, by abolishing barony by tenure, ensured that people who had been barons by tenure could not sit as barons by tenure but as barons holding a personal title, in the same way as existing peers. This is why Lord St. Leonards says the Act 'effectually saved their right' as opposed to directly saving their right, which would have been the case if section 11 had referred to existing peers.
Note, in this context, that the Berkeley Case of 1861 was raised under section 11 of the Act, in other words on the basis that section 11 preserved feudal baronial titles. Now if section 11 was intended to relate only to existing members of the House of Lords at the time of the Act (1660) then the Committee of Pivileges of the House of Lords would have simply dismissed the case on this basis. The fact that they did not do so proves conclusively that the Committee agreed that section 11 did cover the holders of feudal titles who might have a right to a seat in the House of Lords by virtue of holding such a title.
- Feudal baronial titles are not 'titles of
honour'.
Lord St. Leonards specifically referred to feudal baronial titles as titles of honour when he stated that 'the title of Honor was itself saved although the tenure was destroyed'. In addition, the Attorney-General, the Government's solicitor, quoted Lord Hale referring to a 'feudal title of honour' (VIII, HLC, 34), with reference to the Earldom of Arundel and the Barony of Berkeley. In addition, authoritative sources, such as Sanders 'English Baronies' (p. viii) refer to feudal baronies as honours. If you want an actual example, there is, of course, the famous 'Honour of Clare'. It is also worth asking the question as to why the government lawyers who drafted the Tenures Abolition Act of 1660, who presumably knew what they were talking about, should draft a clause referring to 'any title of honour, feudal or other' if there was no such thing as a feudal title of honour. Rather pointless I would have thought.
Note also that the Complete Peerage (vol. IV, p.653) says: 'All earls held some of their lands by barony - that is to say, an agglomeration of knight's fees which was called a barony or an honour.'
- Feudal baronies may be honours but this
does not mean that feudal baronial titles are
titles of honour.
See above.
- It is illegal to sell titles of honour
and since feudal baronies can be sold they cannot
be titles of honour.
This refers to the Honours (Prevention of Abuses) Act of 1925 which states that 'If any person accepts (or gives, or agrees or proposes to give) or agrees to accept or attempts to obtain from any person, for himself or for any other person, or for any purpose, any gift , or money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title or honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour'. This actually makes it illegal to pay for the grant (by the Crown - via the Prime Minister - it was Lloyd George's blatant selling of titles that led to the Act) of a dignity or title of honour, which is what the Act was designed to prevent, it says nothing about the sale of a title of honour by one person to another. The Act says quite clearly 'to procure the grant of a dignity or title or honour to any person'.
Modern peerages created by patent are, of course, personal dignities that pass in accordance with the destination clause in the patent of creation and peerages by writ pass to heirs general in accordance with well-established (but incorrect) rules; they are both, by their very nature, unsaleable.
- Feudal baronies have 'fallen out of use'.
It was decided in the Fitzwalter case (actually not a legal case at all but a 'decision' of the Privy Council) in 1670 that 'the nature of a barony by tenure being discoursed, it was found to have been discontinued for many ages, and not in being, and so not fit to be revived'. As counsel for the claimant in the Berkeley Case said: 'In law the resolution was wrong. Desuetude cannot determine a right. The law as to wager of battle [see below] is an instance of that.' (VIII, HLC, 56). This did not stop the Attorney-General saying 'If, therefore, any such right as that now contended for ever had existed, it has been lost by desuetude.' or some of the judges citing the 'decision' in the Fitzwalter case. What they overlooked (steam-rollered through), in spite of the fact that the point was specifically raised by counsel for the claimant, is a fundamental doctrine in English law called the 'presumption against taking away rights' which basically means that the rights of an individual (that is any right, including a right to a title and a right to sit in the House of Lords) cannot be taken away by statute except by express language or necessary implication (See Gadd's ‘Peerage Law’, ISCA Publishing Ltd, 1985, p.103). Now, if a right can only be taken away, even by statute, by express language or necessary implication, how can a right be lost through the mere passage of time? Surely the answer is that it can't. The Tenures Abolition Act of 1660 itself proves this point beyond any doubt, because it was clearly necessary to pass an Act of Parliament (The Tenures Abolition Act) to extinguish tenure by military service, even though the last proper military summons in England took place in 1327 (according to Sanders), some 333 years earlier; in short, the fact that tenure by miltary service had fallen into disuse over 300 years earlier had not affected its legal existence one jot. In this context , it is relevant to consider Gadd’s ‘Peerage Law’ (p. 110) quoting Lord Halsbury in the Earldom of Norfolk case, namely: ‘Our duty is to the best of our ability to ascertain what the law is, and, having ascertained it, to give effect to it; to alter it or even modify it is the function of the Legislature, and not of your Lordships’ House. No stronger illustration of this principle can be given than when, so lately as 1818, the Court of King’s Bench, with Lord Ellenborough presiding, felt itself compelled to allow a claim to wager of battle [trial by combat] in an appeal of murder, and but for the intervention of an Act of Parliament (59 Geo. III, c.46), some of His Majesty’s judges might have had to preside over a single combat between the appellant and his antagonist.' Thus the judges in that case felt compelled to enforce a law that had fallen out of use at least 500 years earlier. It is also worth noting that the House of Lords has recognised a number of baronies by writ that had been in abeyance for hundreds of years, including the Barony of Strabolgi (which was actually completely non-existent), which had been in abeyance for 547 years.
- No feudal barons have sat in the House of
Lords for centuries.
This is really just the previous argument put in another way.
- Decisions of the House of Lords are
final, so there's no point in discussing it.
Incorrect. Decisions of the House of Lords are not final and can be overturned in a number of ways, including by the House of Lords itself (which is not bound to follow its own precedents), by Parliament, by other courts (e.g. European Court of Human Rights) and also by the Crown itself in certain circumstances. One of these circumstances is peerage cases, where, as I understand it, the House of Lords makes a recommendation to the Sovereign, not a legal decision as such. In any event, if the House of Lords makes a wrong decision (for whatever reason) then this fact should be made clear. I would have thought that this was obvious - but apparently not.
- When Lord St. Leonards' said 'There is,
indeed, a Barony of Berkeley, not depending on
tenure still existing' he was referring to the
barony of Berkeley created by writ of summons in
1295.
Incorrect. If you read Lord St. Leonards' judgement it is quite clear that he is referring to the feudal barony of Berkeley. The existence of the barony by writ was never in question, was actually held at this time by another person (Thomas Berkeley, 14th baron by writ), was not claimed by the claimant, could not be claimed by the claimant (since he was illegitimate) and the existence of that barony was absolutely irrelevant to the claim before the House. It would have made no difference to the claim if the barony by writ had never existed (although the existence of the barony by writ did confuse matters somewhat). In fact, Lord St. Leonards even stated (VIII, HLC, 119) that 'if the petitioner were to establish his claim, there might be two Barons of Berkeley sitting here at the same time, one a Baron by tenure, and the other a Baron by writ of summons.'
- Lord St. Leonards statements were only
'passing comments'.
No, his statements were part of his judgement.
- Feudal baronies could only be alienated
with licence. Alienation without a licence did
not permit a new owner to claim the dignity.
An interesting assertion (as far as I can see unsupported by statute or by any major legal authority) but if this is the case then why didn't the judges in the Berkeley case of 1861 simply dismiss the claim on the basis that the claimant was an illegitimate son of the 5th Earl of Berkeley and that the claimant's inheritance of the barony represented an alienation (from the legal heir of the 5th Earl, the 6th Earl) without licence? The fact that this argument was not put forward by the Attorney-General (the Government's lawyer), who surely would have used it if he could, would seem to indicate that it is without foundation. In fact, the Attorney-General said 'It was an assumption made by the claimant that there could not previously to the statute of Charles 2 [The Tenures Abolition Act of 1660], be any alienation without licence from the Crown. Alienations might have been made upon ordinary fines. A fine would have been payable, nothing more. There is no reason for holding that lands created into a barony, did not partake of the ordinary liberty of alienation incident to other lands, no reversion being in the Crown'. In other words, the Attorney-General is acknowledging that baronies could be alienated in the same way as other lands held in chief of the King; that is they could be alienated with a licence from the King or, if alienated without licence, by the payment of a fine (I Ed. III, st. 2, c.12).
- Holders of feudal baronies were required
to do homage for them and if they did not pay
homage they could not hold a barony.
Another interesting assertion (also, as far as I can see, unsupported by statute or by any major legal authority) but, again, if this is the case then why didn't the judges in the Berkeley case of 1861 simply dismiss the claim on the basis that the claimant (or presumably any number of the previous holders of the barony) had not paid homage for the barony (which, presumably, the King would not be obliged to accept)? The fact that this argument was not put forward by the Attorney-General (the Government's lawyer), who surely would have used it if he could, would seem to indicate that it is without foundation.
Note: An act of homage was originally the central part of the process whereby a vassal received a grant of land from a superior. In essence this process consisted of a ceremony (in front of reputable witnesses who could attest to it) where the vassal knelt before his superior (to be), placed his hands between those of his superior and swore fealty to him; in return the superior granted lands to be held by the vassal of him and handed over a sod of earth and a stone to represent the lands being granted. This ceremony was superceded at an early date by a written charter which provided the security of physical evidence of the grant, that is a piece of paper, and the act of homage became redundant in legal terms.
I believe that it was possible to hold land by homage, which meant that an act of homage was the service due from the lands (as opposed to, say, knight's service). In other words, the act of homage was the actual service due from the lands rather than a ceremony evidencing the actual service due from the lands (e.g. knight's service). In such cases, it would be logical that if the service (the act of homage) was not performed then the land would be lost. So, if a barony was held by the service of an act of homage, failure to perform that act of homage could have led to forfeiture of the barony. Perhaps this is what has caused confusion.
- Neither the major barons (tenants in
chief who held 'in baroniam') or the minor barons
(tenants in chief by non-baronial tenure i.e.
freeholders) had a right to attend the King's
Court/Great Council/Parliament, only a small
number of the major barons were summoned to the
King's Council and consent to aids or scutage
(shield money) was not required, so attendance by
vassals to grant consent to aids or scutage was
not required.
This argument confuses ORDINARY AIDS, EXTRAORDINARY AIDS and SCUTAGE. In the first place scutage was not an aid as such, it was a commutation of military service. In other words, people paid a sum of money (scutage or shield-money) instead of serving personally in the army; the king used scutage to hire mercenaries i.e. a professional army. This arrangement suited everyone. Military service was unconditional in the sense that, in the nature of things, war is unpredictable. Thus the king could summon military aid whenever he needed it and no consent was required from his vassals. By extension the same applied to scutage. Therefore, any argument that employs the fact that consent was not required for scutage falls to the ground.
Similarly, ORDINARY AIDS were part of the 'feudal contract' between superior and vassal. The king could demand them in the appropriate circumstances and no consent was required from his vassals. There were 3 ORDINARY AIDS which were to pay the ransom of the superior if he was captured in war; on the knighting of the superior's eldest son and on the marriage of his eldest daughter.
Generally speaking, everything else was an EXTRAORDINARY AID and required the consent of the king's vassals, that is it was outside the feudal contract (but the king could levy a taille, I think it was called, on his demesne tenants and on the towns according to their charters – I am unclear on the king's precise powers in this area). Not only did extraordinary aids demanded by the King require the consent of his barons but the barons, in their turn, had to obtain the consent of their vassals as well.
It has been pointed out that sections 12 and 14 of Magna Carta were breaking new ground with regard to scutage and aids and implied that before this time no consent was required to levy them. The actual situation is as I have described above; it was breaking new ground to require consent for scutage and ordinary aids but not of course for extraordinary aids. So what was the practical significance of extraordinary aids? It will be appreciated that almost everything a government does costs money. Now the king's power to raise money was limited as we have seen and the original feudal concept was that he, like his vassals, should manage on the revenue from his own demesne lands but as the business of government expanded these revenues quickly became hopelessly inadequate. The king could demand scutage but only for war of course. He could demand the ordinary feudal aids but they were pretty useless so, as the business of government expanded, so did the government's need for money to do the business of government. This gave the barons considerable power since, basically, their consent was required in order to raise revenue from a large chunk of the kingdom and from the king's wealthiest subjects (i.e. themselves). In this way the requirement for consent for extraordinary aids meant that in practice government could not be carried out without the barons' consent. In this manner they effectively acquired a right to a voice in the government of the country. Pretty simple really.
Of course, this begs the question as to what actually happened in the case of extraordinary aids? Was every one of the king's tenants in chief actually summoned to give their consent? Well, the short answer is that I don't know; I don't think anyone has researched this specific question. What I do know is that Hallam in his 'Middle Ages' quotes an occasion when the barons that were summoned refused an aid because not all those whose consent was required were present.
In conclusion I can do no better than to quote the Report of the Lords Committee on the Dignity of a Peer (p.54) as follows:
'the records of the reign of King John seem to give strong ground for supposing that all the King's tenants in chief by military tenure [not just those holding in baroniam], if not all tenants in chief, were at one time deemed necessary members of the common councils of the realm, when summoned for extraordinary purposes, and especially for the purpose of obtaining a grant of any extraordinary aid to the king.'
See Hallam's 'Middle Ages', vol. III, p. 211.
So this covers the question of CONSENT. The consent of the barons was required for extraordinary aids and this gave the barons a voice in government because the business of government could not be carried out without such aids; that is, the barons acquired a right to be consulted in matters of taxation, which, in practical terms, meant government generally.
This leads me to the question of COUNSEL and this is another area of confusion, that is between COUNSEL and CONSENT. It is sometimes pointed out that only a small number of barons were generally called to the King's Council and argued that this is proof that barons did not have a right to be summoned but here we are dealing with the giving of COUNSEL as opposed to CONSENT. The point is that feudal vassals had a duty to give advice and counsel to their superior, so the superior had a clear right to demand it (and of any vassal of his that he wished). To what extent a vassal had a right to give advice and counsel (that is a right to be consulted – as opposed to giving consent to extraordinary feudal aids) is somewhat less clear but simply because the vassal had less power to insist upon it. In practice, it would be a very foolish king who did not obtain the advice of his more powerful vassals and their effective consent as well. This reminds me of the famous occasion when the de Bohun, Earl of Hereford (I think it was) refused to accompany Edward I on campaign to France. Edward apparently said to Hereford 'By God, Earl, you shall either go or hang' to which the Earl replied 'By God, King, I shall neither go nor hang' (and this to a man like Edward, at the mere sight of whom one of his subjects had once dropped dead with terror). In any event, the fact that the King could summon whoever he liked to give him COUNSEL does not alter the fact the King did, as explained above, have to summon all his immediate vassals in order to obtain CONSENT for an extraordinary aid. It should be clear that both COUNSEL and CONSENT might be given in the same sitting or session of the King's Council. There is nothing wrong with this of course, except it is clear that if the King summoned a small number of barons to give COUNSEL and then asked for an extraordinary aid, their reply would be 'Not on your life, buster, not without the CONSENT of our peers.' Clearly, the idea of summoning all the king's tenants in chief was both impractical and inconvenient (but this is what actually happened in the early days of feudalism e.g. the entire Frankish nation, at least the male half, used to gather every March in what is now known as the Champ de Mars (the Field of March) outside Paris for what was effectively an annual Parliament) and this explains why a system of representation evolved from such an early date; considerations of practicality meant that there was always a gap between practice and the law. Sometimes of course (and tenure in baroniam is a good example) it took several hundred years for the law to catch up with practice. But remember, we are talking about the legal existence of tenure in baroniam and the legal right to be summoned, not what happened in practice.
Thus the arguments relating to aids and counsel fall to the ground. The requirement that a vassal's consent was required for EXTRAORDINARY AIDS means that the barons did have a right (a legal right) to be summoned to Parliament because the financing of the WHOLE (peaceful) business of government was, in the strict feudal sense, extraordinary in that it did not relate either to the paying of a ransom, the knighting of the king's eldest son or the marriage of his eldest daughter. Odd but true.
- Some argue that there has never been such
a thing as a title of 'Baron' derived from a
feudal barony. To support this they assert a).
that charters granting lands to be held 'per
baroniam' make no mention of granting a title and
b). that in lists of various types the title of
baron is not generally used.
In the first place much is made of the lack of the use of the title 'Baron' in describing feudal barons but it is equally true that people summoned to Parliament by writ (barons by writ) weren't called barons either (Complete Peerage, Vol. I, p. viii-xxv) but few would dream of asserting that these people were not barons.
This argument confuses PERSONAL TITLES with FEUDAL TITLES. Feudal titles were attached to land, which meant that that a man became a baron by being granted an area of land that had been erected into a barony (but see below); there was never any personal grant of a title to the individual. In short, it was understood (it didn't need to be stated) that if you were granted a barony you became baron. This was exactly the situation in Scotland until 2004 where crown charters did not usually (or rather rarely – in fact I know of only one instance, namely Spynie) refer to the grantee as a baron; they erected the lands into a barony and stated that the lands were to be held 'in liberam baroniam' by the grantee. Often the lands weren't even erected into a barony, they were simply granted to be held 'in liberam baroniam'. There was no mention of a title but it is a fact (recognised in law) that such a grant did confer a title of nobility – the title of baron. In fact, early grants not only didn't erect the lands into a barony, they didn't even grant the lands to be held 'in liberam baroniam', they simply granted the land with the right of 'pit and gallows' (e.g. Seton in 1169) and this was enough to erect a barony and of course confer the title of baron on the grantee – the word 'baron', 'barony' or ' by barony' simply didn't appear in the charter (and they didn't need to).
Hilariously, sometimes people quote the Complete Peerage to the effect that 'there is no evidence that there was any conception of a barony as a peerage dignity before the creation 10 Oct (1387) 11 Ric II, of John de Beauchamp as Lord de Beauchamp and Baron of Kidderminster'. Now this is one of those wonderful circular arguments that goes as follows:
1). I define a peer as someone who has been granted a PERSONAL dignity carrying a right to a seat in the House of Lords (i.e. a peer in the 'modern sense');
2). FEUDAL barons did not hold PERSONAL dignities;
3). Therefore FEUDAL barons were not peers.Of course, whether feudal barons were peers or not depends on your definition of the word 'peer'. If your definition is limited to the holders of PERSONAL titles, it is hardly surprising that the holders of FEUDAL titles do not fall within that definition. But feudal barons were the original peers of the realm as I have previously pointed out; there is no argument on this point. Of course the whole point is that since feudal barons were the original peers of the realm and since their right to sit in Parliament has not only never been removed but was specifically preserved by section 11 of the Tenures Abolition Act of 1660, they have continued to be peers to this day, making them very much 'peers in the modern sense'.
Craig states in his 'Jus Feudale' (I, xii, 23) that 'where the prince makes a grant of lands which have rank attached to them he enobles the grantee [with the rank attached to the lands, such as 'Earl' or 'Baron'] even though no express conferrment of noble rank be made'. I think that settles the matter.
Broadly speaking, the same arguments apply to Irish feudal baronies which were subject to a similar Act.
Peerage cases in the House of Lords
A word of caution about decisions of the House of Lords in relation to peerage cases. These are often cited by people (see the article by Hugh Peskett above) as though they are authoritative, which indeed they should be. However, it is mischievous for anyone who is familiar with the subject to cite such cases without pointing out their significant deficiencies. To prove this point I would merely refer you to the 'Complete Peerage' (Vol. I, p. xiii), acknowledged by both historians and genealogists to be the most authoritative work on the British peerage, which refers to the 'arbitrary, conflicting and unhistoric decisions of the House of Lords'. This is a polite way of saying that these decisions are often (indeed usually as far as I can see) complete rubbish; this is no exaggeration. Worse than that, these decisions are not only rubbish, they are dangerous rubbish, because they are subsequently given weight as a result of the mere fact that they issue from the House of Lords. The only guiding principle in practically all the decisions of the House of Lords in peerage cases is that they do what they want (i.e they are arbitrary) without regard either to the facts of history (i.e. they are unhistoric) or the law (i.e. they are contrary to precedents established by other legal cases). This is actually proved by certain comments made by Lord Redesdale himself in the Berkeley case, who stated (VIII, HLC, 153), with reference to the Abergavenny case (another leading case in baronies by tenure), that 'the manner in which both peerages were awarded by restitution is a proof that the House was resolved not to declare Abergavenny a barony by tenure'; in other words they simply weren't going to do it and that was that. When the House of Lords comes across some inconvenient fact they simply ignore it, say that it must have been a mistake or that it didn't happen, when they come across a previous decision of the House of Lords that actually contradicts them, they simply declare that it is an anomaly and cannot be treated as a precedent e.g. the Arundel case in which a barony by tenure (the Earldom of Arundel) was legally recognised. The Fitzwalter 'case', referred to by Hugh Peskett, is another example. In this 'case' it was stated that 'the nature of a barony by tenure being discoursed, it was found to have been discontinued for many ages, and not in being, and so not fit to be revived'. This is a remarkable statement. They are saying that baronies by tenure are not fit (a telling word) to be revived simply because they have been discontinued for 'many ages' (a bit of an exaggeration), completely ignoring the fundamental fact that the law itself does not and cannot fall into disuse. In other words, if baronies by tenure legally existed in, say, 1200 (as they most certainly did - just ask yourself who signed Magna Carta) then they continue to exist in perpetuity unless extinguished by statute. The Tenures Abolition Act of 1660 itself proves this point beyond any doubt, because it was clearly necessary to pass an Act of Parliament (The Tenures Abolition Act) to extinguish tenure by military service, even though the last proper military summons in England took place in 1327, some 333 years earlier; in short, the fact that tenure by miltary service had fallen into disuse over 300 years earlier had not affected its legal existence one jot. In spite of this, the patently ridiculous statement in the Fitzwalter 'case' has ever afterwards been cited as authoritative, even by the House of Lords. As a matter of interest, if you told a judge that you had 'discoursed' a matter, would you expect him to accept that without any further argument or evidence? (Plaintiff: 'It's alright, your honour, we have discoursed it.' Judge: 'Well, that's OK then.') The truth of the matter is that if you ever hear anyone argue that baronies by tenure have fallen into 'desuetude' (disuse), you are listening to someone who has run out of arguments; put quite simply IT CANNOT HAPPEN (See also Gadd's 'Peerage Law', p. 103 and p. 110). So, if we cannot rely on the decisions of the House of Lords, what do we do? Well, the answer is that you simply have to make sure that you know the facts and then apply common sense and the law as you understand it to those facts. Argue the matter from first principles and insist that others do the same.
(Nisbet, 'System of Heraldry', Vol. II, Part IV, p. 164):
'I sall be leille and treu to you my Leige Lord Schire James King of Scots, and not heir your skaith, nor see it, but I sall let it at all my power, and warn you thereof; Your counsaill heile that you shaw me, the best counsaile I can to give you when ze charge me. In verbo Dei, and als help me God, and holy evangells.'
(Nisbet, 'System of Heraldry', Vol. II, Part IV, p. 156):
- I shall fortify and defend the true Christian Religion, and Christ's holy evangel, now presently preached within this realm to the utmost of my power.
- I shall be loyal and true to my sovereign Lord the King's Majesty, to all orders of chivalry, and to the notable Office of Arms.
- I shall fortify and defend justice at my power, and that without favour or fead.
- I shall never flee from my sovereign Lord the King's Majesty, nor from his highness's lieutenants in time of mellay or battle.
- I shall defend my native realm from all alieners and strangers.
- I shall defend the just action and quarrel of all ladies of honour, of all true and friendless widows, of orphans, and of maidens of good fame.
- I shall do diligence wheresoever I hear there are any murderers, traitors, and masterful reavers, that oppress the King's lieges, and poor people, to bring them to the law at my power.
- I shall maintain and uphold the noble estate of chivalry, with horse, harness, and other knightly abuliments, and shall help and succour them of the same order at my power, if they have need.
- I shall enquire and seek to have the knowledge and understanding of all these articles and points contained in the book of chivalry
All these I promise to observe, keep, and fulfil, I oblesse me. So help me, my God, by my own hand. So help me God.
You will notice that only one of the nine items - and not the first or most important - actually relates to fighting, which is what we tend to associate knighthood with. The oath is mainly concerned with religious faith, the pursuit of justice, defence of the weak, loyalty, honour and truth. Thus were the knights of the realm the mailed fist of the King and the shield of his people.
Explanation of the list of Scottish feudal baronies
The following list has been extracted from the index to the 'Inquisitionum Ad Capellam Domini Regis Retornatarum Abbreviatio' or the 'Retours of Services of Heirs', which cover the period 1544-1699. It shows the name of each barony, as recorded in the index, and the relevant sheriffdom. This means that the existence of all the baronies listed below has been confirmed (often more than once) by a properly constituted jury of inquest in a Sheriff Court. This does not exclude the possibility of errors of course.
There are numerous duplicate entries under different sheriffdoms. I believe that this is because baronies often consisted of a number of parcels of lands in different sheriffdoms and that an inquest (resulting in a retour) was required in each sheriffdom.
The historical notes for the CD of the retours (see below) state that 'When a Scottish landowner died, the heir could not suceed to the lands until his claim had been formally recognised and he had been served nearest lawful heir. The procedure to do this began with a Brieve of Inquest (writ) sent from the Chancery (the office of the Lord Chancellor, later the Director of Chancery) to the Sheriff of the county in which the lands were situated. The brief [brieve] instructed him to appoint a jury and hold an enquiry [inquest] into the claimant's right to succession and into other questions related to the value of the land, the feudal superior and the feudal service of the land holding. The findings of the enquiry were then sent back to the Chancery (i.e. retoured) and recorded in the Record of Retours [Returns] now held by the National Archives of Scotland in Edinburgh.'
My understanding is that it is not possible to have two baronies of the same name, which explains why there is a barony of 'Abernethie' and a barony of 'Abernethie in Rothiemay'; there had to be some distinction. Since it is often not easy to identify duplicate entries, all entries are given.
Scottish feudal baronies are indestructible, except by Act of Parliament, so all the baronies listed below continue to exist. Having said that, situations do arise where it is impossible, as a result of imprecise conveyancing, to determine the legal owner of a barony, but even then a barony can be legally 'resurrected'. There are only about 130 feudal baronies recorded in Burke's Landed Gentry for Scotland and it would appear, therefore, that the vast majority of the baronies listed below are 'lost'; meaning that they have simply been overlooked or forgotten about rather than lost in a legal sense. This is a pity from a historical point of view and rather surprising given that the value of these baronies could be as much as $200,000,000 or more.
The list not only contains numerous duplicate entries but may well not record all feudal baronies existing before 1700. It is simply a starting point for further research.
There appear to be something between 1500 and 2000 baronies in total and it would appear that most of these date from the 15th, 16th and 17th centuries, since only about 400 baronies are identified as existing in 1405 ('Atlas of Scottish History to 1707', Univ. of Edinburgh, 1996). Large numbers of baronies appear to have been erected in the 17th century.
If you are interested in finding out more about the history and current ownership of a particular barony, then you will need to refer to the 'Retours of Services of Heirs' (available on CD from the Scottish Genealogy Society), the Register of the Great Seal and the Register of Sasines. These three together should give you what you need.
Please note that regalities, which are a higher form of barony, are listed separately in the index and are included in a separate list at the bottom of this page. For more on regalities see:
'The Court Book of the Barony of Carnwath 1523-1542',
The Scottish History Society, 1937 (in particular page
xiii, note 4 and page xl);
'An Introduction to Scottish Legal History', The
Stair Society, 1958 (in particular page 378);
'An Institute of the Laws of Scotland', Bankton,
Book II, Title III, Section VIII;
'An Institute of the Law of Scotand', Erskine,
I.IV.7 & 10.
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