by Wm. Jardine Dobie, S.S.C.
The main characteristic of allodial property is that it represents absolute ownership without service to, or acknowledgment of, any superior. In Scots Law the property of moveables is allodial. But in heritage—which concerns us here—allodial holdings are now confined to (a) the properties and superiorities of the Crown and the Prince of Scotland, (b) udal lands in Orkney and Shetland (see No. 37, supra), (c) lands acquired compulsorily under Lands Clauses Consolidation (Scotland) Aet, 1845, and (d) mansa, gleba, churchyards and churcha so far as these are not now blench holdings in terms of the Church of Scotland (Property and Endowments Act, 1925.
It is generally assumed, however, that feudal tenure in Scotland was preceded by an allodial system. But of this earlier system no records have come down to us.' Feudalism in England is commonly said to date from the Norman Conquest,' but the better view is that the Conquest merely accelerated what was already in progras.5 In Scotland feudal principles developed at a later period, the exact date of which it is difficult to determine.' Their full atablishment and general application was probably more gradual than is sometimes imagined.' And Walter Ross has shown' that many of the forms, the phrases and the ceremonies which became essential parts of feudal conveyancing, were adapted from the older allodial system. Thus in the styles of Marculfus in France, dating from about 660, are conveyances containing the cause of granting and dispositive clause, a tenendas clause and the evident commencement of the wearisome clause of pertinents which cumbers our estate descriptions of today. l ~ Even such apparently feudal ceremonia as resignation, confirmation and symbolical delivery, are based on, if not entirely borrowed from, the earlier system." And the same connection ean be traced by comparing our earliest Seottish grants of the eleventh centu with Saxon land charters which are admittedly allodial. All these early deeds are couched in the most direct and simple language, and if our first Scottish charters are to be taken as feudal in form and tenure, their style is singularly reminiscent of Saxon grants made centuries before the Norman Conquest was thought of. So if our earliest deeds are claimed by the feudalists and we can produce nothing to show how Scottish land was transferred under an allodial system, it can at least be said that we still enshrine in our conveyancing some remnants of practices that long preceded the introduction of feus.
With no data to go upon, it is impossible to reconstruct tbe allodial system which may have been known to our remoter ancestors. But the resemblance in customs and manners which existed in early tima between the peopla of Western Europe just)fies some general conclusions as from a common source.' And there is the nearer analogy of Anglo-Saxon law.
Celtic law—with which we are not here concerned—must have covered much of what is now Scotland (see No. z9, above). But in Lothian and in the eastern lowlands in general, if different customs prevailed, we may fairly assume a system which, if not t he same as the law of the Anglo-Saxons, would be akin to it in general principles. The similarity between the earliest Scottish and early Saxon charters has been already mentioned, and it has been stated that in the earlier Middle Ages the laws of Scotland and England were to all intents and purposes the same. The latter pronouncement may be thought too general, but there is no reason to doubt that at the period indicated there was essential similarity of customs in Southern Scotland—so far as not under Celtic influence—and in England. The Tweed as a division between conflicting legal systems was a later development.
Working along these lines, we infer that the allodial proprietor, though under none of the restrictions that came with the feudal system, might be subject to something like the Saxon burden of the trinoda necessitas—the triple duty of attendance in war, of repairing fortresses and constructing and maintaining bridges.
Further, like the udaller in Orkney and Shetland,' he was no doubt severely discouraged from alienating his holding outside the family. For such a restriction on transfer seems to have been almost universal in early times in Western Europe.' Writing was not in these early days needful to the transfer of property.' But such transmissions as were permitted were made in a public manner, probably before some court, chief or official, or at least in the praence of witnesses.' Symbolical delivery was almost certainly a necq part of the ceremony.' On the death of the owner his heirs would succeed as a matter of right, and the deceased had probably no control by will over the succession.' The feudal idea of primogeniture being absent, sons probably succeeded equally,' and Craig thought that, in allodial property, females took along with males. As in udal law there seem to be traces of the eldest son's right to the principal dwelling, and Anglo-Saxon custom apparently recognused the widow s right to a liferent." But the safest conclusion is that the precise rules of inheritance varied according to local custom.
In the circumstances it is impossible to point to any real source of allodial law in Scotland. But in udal law (No. 37, supra) can be seen the workings of an allodial system that has been gradually swamped by the rising tide of feudalism. For general information on what preceded the introduction of the few our soundest and most comprehensive authority is Ross Lcchrcs (5).
The Jus Feudale is, on such a topic, a less reliable companion. For Craig was too partisan a feudalist ever to admit that any good thing could have come out of an allodial system. Kames' Essays and Tracts (2) and (3) provide somewhat scanty fare for the enquirer, and Dalrymple (4), though a little fuller, deals with the matter in only general terms. Robertson's Scotland (6) is useful as an historical background, and has a certain amount of detailed information. But his southern analogia must be read along with more modern authorities (as iu, 5, 6 and 1o, infra). If the Anglo-Saxon analogy is accepted a flood of information is available, but nothing like a complete bibliography can be given here. From the works mentioned (;u, 4, 5, 6 and ~o) a note of additional authorities and records can be readily obtained. But it was impossible to omit a reference to Vinogradoff (iu, 8 and 9), whose knowledge of early customs has added so much to historical jurisprudence, and whose genius finally elucidated the real meaning of Saxon folkland (iu, 9), p. gr.