Prescriptive barony

Scotland

Scottish Prescriptive Barony by Tenure was, from 1660 until 2004, the feudal description of the only genuine degree of title of UK nobility capable of being bought and sold, (along with the Caput, or property), rather than merely passing by personal descent. Entry in the Sasine Register would give prescriptive (normal or correct usage) right, after so many years, to the caput, or the essence of the barony.

After 28 November 2004 under Scots law, a Scottish Barony that was a Scottish Prescriptive Barony by Tenure is now incorporeal feudal heritage, not attached to the land and remains the only genuine, prescriptive, degree of title of UK nobility capable of being bought and sold. The legal "trade" in these titles may be subject to change, however, and independent Scots legal advice should always be taken before entering into any contract.

Legal status

The Scots have a quite distinct legal system within the United Kingdom. Historically, in the Kingdom of Scotland, the Lord Lyon King of Arms, as the Sovereign’s Minister in matters armorial is at once Herald and Judge.

Up until 28th November 2004 a barony was an estate of land held directly of the Crown, or the Prince and Great Steward of Scotland, with a Crown Charter erecting the land into a Barony. It was an essential element of a barony title that there existed a Crown Charter of the barony. Crown Charters are recorded in the Register of the Great Seal of Scotland. Often the original Charter was later lost but usually an Official Extract can be obtained from the Register of the Great Seal. An Official Extract has the same legal status as the original Charter. Up until 1874 each new baron was confirmed in his barony by the Crown with a Charter of Confirmation.

In the seventeenth century two important statutes were passed. The first set up a General Register of Sasines, and said that all landowning should be registered in it, and that an entry in the Sasine Register would give prescriptive right, after so many years, to the "caput", or the essence of the barony. Accordingly, the individual - irrespective of sex, who owned the said piece of land containing the caput was the Baron or Baroness. The second statute setup the Lyon Register in 1672 and said that no arms were to be borne in Scotland unless validly entered in Lyon Register. This removed uncertainty about armorial rights.

From the Treaty of Union of 1707 - until 1999 - a unified Parliament of Great Britain, at Westminster, was responsible for passing legislation affecting private law both north and south of the Scottish border. In 1999 the devolved Scottish Parliament was established, and Private law measures can now be passed in Edinburgh. Using a prescriptive feudal grant allowed developers to impose perpetual conditions affecting the land. The courts became willing to accept the validity of such obligations, which became known as real burdens. In practical and commercial terms, these real burdens were like English leasehold tenure.

The first Scottish Executive was committed to abolishing the anachronism of the feudal system. On 28 November 2004 Scotland's feudal system came to an end. On that day the Abolition of Feudal Tenure etc. (Scotland) Act 2000 came into full force and effect. Section 63(1) of the Act, preserves the dignity of Baron and the heraldic rights of barons. The abolition of the feudal system, then, has had no adverse effect on barony titles themselves, but the titles are now feudal heritage, that are, incorporeal hereditament, and not attached to the land.

The transfer of the title must be agreed by the Lord Lyon - the Crown’s officer responsible for Scottish noble and peerage titles, and heraldry. The beneficiary must be armigerous, that is, entitled to arms - or be prepared to petition the Lord Lyon for a grant of arms. The prospective purchaser of a Scottish barony should seek specialist Scots legal advice.

England

Until 1290, in medieval England, there was a class of Feudal Barony by Tenure. The English Quia Emptores statute of 1290, prohibited land from being the subject of a feudal grant, and allowed it to be transferred without the feudal overlord's permission.

Under the Tenures Abolition Act 1660, many baronies by tenure were converted into Baronies by Writ. The rest ceased to exist as feudal baronies. Land held by barony was converted into free soccage (freehold), so baronies could no longer be held by tenure. True titles of honour were already limited since the fifteenth century by the Modus Tenenda Parliamenta, and only operable by writ of summons or pursuant to letters patent.

Tenure by knight service was taken away and discharged, such that the objects of such tenures, including once-feudal baronies, were henceforth held by soccage (or freehold). The English Fitzwalter case in 1670 ruled that barony by tenure had been discontinued for many years and any claims to a peerage on such basis, meaning a right to sit in the House of Lords, 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 to sit in the House of Lords by right of 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, meaning that they could not be held "by tenure" and confirmed the Tenures Abolition Act 1660. There are also three Redesdale Committee Reports in the early nineteenth century that reach the same conclusion.

Ireland

In Ireland, most originally-feudal titular baronies have long disappeared through obsolescence or dis-use. The Lordship of Finegal was granted to Walter de Lacy for seven knights fees, "although the lords thereof hold elsewhere in capite", according to the unusual grant by John, Lord of Ireland, in 1208, who allowed de Lacy to retain custody of his fees (see Rotuli Chartarum in Turri Londinensi Asservati, edited by Thomas Duffus Hardy, published in 1837; it contains original text of the Grant of Finegal by King John in 1208). Fingal at the time spread from the River Liffey to the River Delvin, north of Dublin, similar to the administrative boundary of today's County Fingal (minus Dublin City) created in part of County Dublin in 1994. A small number of other titular baronies continued to exist either as submerged titles of members of the Peerages of Ireland, Great Britain or the United Kingdom, or as titles held by grand serjeanty, such as, originally, Fingal. Those few that thus survive at all are traditionally considered to be "incorporeal hereditaments", and may continue to exist as interests or estates in land, registrable as such upon conveyance or inheritance under the Registry of Deeds of the Government of Ireland, although increasingly these are seen today as titles held in gross as personal rights, and not as real interests in land.

Following a report by the Law Reform Commission [1], a Bill for proposed legislation has been presented and lies before the Oireachtas to abolish the concept of the feudal system of land tenure in the Republic of Ireland. The submerged feudal titles of surviving Irish or British peers will not be affected, and will continue to exist as personal rights. However, the obsolete or unregistered feudal titles, and those that lapsed into desuetude after 1662, after the abolition of tenures act was passed by the Irish Parliament, no longer exist as incorporeal hereditaments, nor as personal rights, and cannot be revived.

Usage

The barony is not a peerage, and the equivalent Scottish term for an English barony peerage is "Lord of Parliament". An English barony is a peerage, a Scottish barony is not, but is a noble title of less than peerage rank.

The feudal barony titles tend to be used when landed families are not in possession of titles of higher rank. Many heads of landed families have subsequently been granted UK peerage titles, or have been created knights of the realm.

The owner of the Scottish barony "Inverglen", may decide to continue to use his existing name, "John Smith", and add the title, to become "John Smith, Baron of Inverglen" and be addressed as "Inverglen". He may take the territorial (or laird's) designation as part of his surname, to become "John Smith of Inverglen, Baron of Inverglen". The name recorded by the Lord Lyon as part of a grant of arms or matriculation becomes the holder’s name for all official purposes. A married couple become: "The Baron and Baroness of Inverglen"; "Inverglen and Lady Inverglen", or "The Baron and Lady Inverglen". It is helpful when the barony holder's preferred style is printed at the letter head or on a correspondence card.

Scottish heraldry

The Lord Lyon has recently declined to award the following baronial additaments to the arms of those feudal barons registering arms now that the Abolition of Feudal Tenure etc (Scotland) Act 2000 is in force. Lord Lyon has also questioned his ability to recognise future Scottish feudal barons, owing to being unable to assure himself formally who the present owner of a barony is (since no land transactions will now be recorded in respect of Scottish baronies).

Chapeau

When new arms are granted, or a matriculation of existing arms takes note of a barony, the owner will be given a chapeau or cap of maintenance as part of his armorial achievement. This is described as "gules doubled ermine" for barons in possession of the caput of the barony. An azure chapeau is appropriate for the heirs of ancient baronial families who are no longer owners of the estates.

At the Treaty of Perth 1266, Norway relinquished its claim to the Hebrides and Man and they became part of Scotland. In 1292 Argyll was created a shire and “The Barons of all Argyll and the Foreigners’ Isles”, which had preceded the kingdom of Scotland, became eligible to attend the "Scots" Parliament – appearing in the record of the parliament at St. Andrews in 1309. Historically they have a chapeau, "gules doubled ermines", ermines being white tails on black.

The chapeau is placed into the space directly above the shield and below the helmet, and may otherwise be used on a visiting card, the flap of an envelope or to ensign the circlet of a crest badge as used on a bonnet.

Feudo-baronial mantle

Particularly Scottish in character is the Feudo-baronial Mantle or robe of estate - described as gules doubled silk argent, fur-edged of miniver and collared in ermine fastened on the right shoulder by five spherical buttons or. This may be displayed in a pavilioned form, draped behind the complete achievement of arms - or the armorial shield alone - tied open with cords and tassels and surmounted by the chapeau.

Helmet

The helmet is shown as either a feudal steel tilting helm garnished in gold, that may be shown affronté, or occasionally, a steel helm garnished in gold with one or three grilles.

Supporters

Supporters, are now usually reserved for the holders of the older baronies (chartered before 1587) and those which have been in continuous family ownership. In England, supporters are reserved for the peerage, and if a Scottish baron approaches the English College of Arms, he will not be allowed supporters.

A compartment has occasionally been granted to barons, representing their territories, even in cases where there are no supporters.

Badge and ensign

A badge – distinct from the crest – as a separate armorial device, is not necessarily a feature of the arms. The badge may be used by the "tail" or following of a landowner baron. The grant is linked to the baron’s pennon, a heraldic flag, in the livery colours that carries a large representation of the badge. The pennon is blazoned in the grant or matriculation. The livery colours are usually the two most prominent colours of the arms themselves.

An ensign may be occasionally be granted and blazoned. This is a square flag, smaller than the flying banner, and carrying the full embroidered achievement (arms, crest, motto), again fringed in livery colours.

References

A View of the Legal Institutions, Honorary Hereditary Offices, and Feudal Baronies established in Ireland, by William Lynch, Fellow of the Society of Antiquaries, published by Longman, Rees, Orme, Brown, and Green, Paternoster Row, London, 1830.