(50)  Abolition of the Feudal System

After 1,000 years of life, the end of the feudal system of land tenure in Scotland appears to be nigh. On 11 February 1999 the Scottish Law Commission published its Report on the (Scot Law Com No 168). The Report proposes the abolition of feudal tenure, with the dominium utile in any land held on such tenure being converted into ownership and all superiorities ceasing to exist (but this not to affect the prerogative powers of the Crown). Ownership of land will continue to be transferred on registration. All remaining feuduties will be extinguished, subject to payment of compensation. Blench duties, ground annuals, skat, teinds, stipends, standard charges, and dry multures will also go. Superiors will lose not only their hypothecs but also the right to enforce real burdens; but: (1) where the burden is in favour of a nearby (within 100 metres) building, or is a right to enter, or a right of pre-emption or redemption, or concerns minerals , salmon fishings or other incorporeal property, a notice for its continuation may be registered; (2) burdens affecting the sea bed or foreshore and enforceable by the Crown (to be known as maritime burdens) will continue to be so enforceable: and (3) real burdens enforceable as superior by a conservation body and having the purpose of preserving or protecting for the public benefit the architectural, historical or other special interest of the servient tenement or any buildings thereon will be enforceable if the conservation body registers the burden as a conservation burden. There is a scheme of compensation payable for the loss of development value real burdens, but triggered only if an act or event takes place which would have been a breach of the real burden if it had not been extinguished. Amongst other points of interest, the Report recommends that the dignity of baron should no longer be attached to land, and should be transferable only as incorporeal heritable property. Any surviving criminal or civil jurisdiction of barony courts should be abolished, along with any conveyancing privileges incidental to barony titles to land. Also for the anti-feudal chop are burgage tenure, booking tenure in Paisley, the kindly tenancies of Lochmaben, and the rental rights still surviving in the gypsy capital at Town and Kirk Yetholm in Roxburghshire. Land held under entail will be disentailed and the Register of Entails closed; all unextinguished rights of thirlage will be extinguished; partnerships will become capable of owning land in their own names; and feudal terminology such as infeftment, and the modern draftsman’s Anglicising favourite, estate or interest in land, will cease to be used. All this means a holocaust of existing legislation: 45 statutes will be entirely repealed, along with 246 sections, 57 schedules and many obsolete and unnecessary words in other Acts (para 1.4). The Report is also of interest for discussions of the legislative competence of the Scottish Parliament in relation to these matters, in particular as the proposals affect the Crown (with regard to baronies in particular), and the law of partnership, which are reserved matters (paras 2.43-2.44, 9.28), and of the requirements of the European Convention on Human Rights in relation to compensation schemes (paras 5.65-5.68). It is anticipated that the Report will be one of the first acts of law reform in the Scottish Parliament. The legal historian tempted to shed a tear for the good old law must acknowledge the force of the Commission’s observations that the main reason for recommending the abolition of the feudal system of land tenure is that it has degenerated from a living system of land tenure with both good and bad features into something which, in the case of many but not all superiors, is little more than an instrument for extracting money … [para 1.16] … It now serves no useful function. It has become an anachronism which needlessly complicates the law [para 1.17]. Comfort may also be sought in the preservation of the pre-feudal Lord Lyon’s jurisdiction in relation to coats of arms (which are not to be regarded as feudal); in the decision not to seek the abolition of udal land in Orkney and Shetland; and in Schedule 8 para 1 of the Commission’s draft Bill which amends the Mines and Metals Act 1592 as follows: … (d) for the words saidis fewis substitute disposition of the saidis mynis (e) for the words four witnesses substitute ane witness … (15 February 1999)