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Issue 72 - Layers of society

Scotland Magazine Issue 72
December 2013


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Layers of society

James Irvine Robertson looks at how society was ordered

Up until 2000 the feudal system still existed in Scotland. Every homeowner had to pay feu duty each year as a vassal to his superior for the land on which his house was built. This extraordinary anachronism was the last vestiges of a legal structure that had once provided the framework for the social order of Europe. It had a beautiful simplicity.

With its origins in ancient Egypt, feudalism was refined in early medieval France and imported to England by William the Conqueror in 1066. All land belonged to the king. He rewarded his followers with estates in exchange for oaths of fealty to him and military service when he demanded it. In turn these great barons could parcel out their land to lesser knights on the same terms. At the bottom of the heap were the serfs whose only duty was to till the soil and produce the food to support the fighting men and those who led them. They also supported the clergy who waxed fat, often literally, on their own lands and a tithe, a tenth, of what everyone else produced.

It was not surprising that the Scottish monarchs could see the advantages of this system. For generations they had been the kings of Scots. Feudalism could turn them into kings of Scotland. David I was the youngest son of Malcolm III, Malcolm Canmore, and, exiled from Scotland, he spent 20 years at the English court. His sister married the English king and David married Matilda who held the lordship of Huntingdon and Northampton. David became a great Norman-French magnate, the Earl of Huntingdon and, from his brother King Edgar of Scotland, gained the title and lands of Prince of Cumbria. On the death of his brother Alexander I in 1124 and with the backing of Henry I of England he took the throne of Scotland. He brought with him other Norman knights to help him establish his control.

To these followers, he granted the feudal charters. These men became barons with legal powers within their lands and they built castles to stamp their authority and that of their king, their feudal overlord, on the people.

Beforehand everyone knew their masters, the mormaer and the thane who were usually part of the local kinship group that had farmed their lands since time immemorial and answered to the king - when they were not in rebellion. The incomers with their great horses, armour and castles relied on vellum or parchment documents carrying the king’s seal to hold their lands – with the help, of course, of their swords.

It worked wonderfully but important change had to be made. The old inheritance system was based on tanistry by which a new head of the kingdom, the tribe or the clan was selected by the kinsmen of his predecessor as the most suitable among their number. “The Highland law of Tanistry provided that the brother should succeed before the son, and that if the lawful heir should not have attained fourteen years, the nearest relation succeeded and held for life only.” In effect the way that David himself had won the Scots throne. The feudal system used primogeniture. The eldest son of the charter holder – or the king - was his heir and inherited everything. In the absence of sons, the estate was shared equally between his daughters. Tanistry and primogeniture did not easily mix. The Scots barons and the king owned lands in England and for these they had to acknowledge the English monarch as their overlord. The Bruce family, which was one of many that came north with King David, held Annandale in Scotland but also had estates in Cumbria and Essex. Such Norman magnates were never unequivocal in their support for either nation. Nor was the King of Scots. For his English land he swore fealty to the English king and for centuries this gave the latter his excuse for claiming overlordship of Scotland. Edward I most notoriously used this when he arbitrated on the rival claims to the Scots throne in 1296. On that occasion Bruce and Baliol were the principal claimants to the Scots throne. Baliol’s claim relied on primogeniture, as he was a direct descendant of the eldest daughter of David I’s grandson. Bruce’s claim relied on the older system of tanistry. His ancestor came from the second of the daughters, but was a generation closer to the king. Of course Edward plumped for feudal primogeniture. After Bruce, primogeniture ruled in the succession to the Scots throne although tanistry was not abolished until James VI.

But, encouraged by successive kings, charters began to carpet the country. In the Highlands, some clans were slow to obtain such legal ownership of their lands, relying instead on the freedom of holding it through the sword, but this made them vulnerable. Without a charter the law would not back their ownership. Even if a clan had a charter, it could be used as collateral against a loan. Buy the loan, foreclose and the buyer had the legal right to the land. The law gradually obtained supremacy over the sword alone. The Camerons were a clan that never bothered with a charter and found that the Earl of Argyll was their superior. It took more than a piece of vellum to oust a clan as powerful as the Camerons but it gave an uncertain edge to their dealings. Perhaps wiser was the chief of the Clan Donnachaidh, the Robertsons. As a reward for capturing the assassins of King James I, he turned down an earldom and asked instead for a royal charter and a free barony of his lands, which allowed him to escape from potential vassalage to the neighbouring earls of Atholl.

The obligations and rights of feudalism were abolished in 1746 as part of the legislation to destroy the power of the chiefs after the Rising, save in the case of land ownership and here chains of subfeus proliferated. Until 2000, each householder paid a sum to the feudal owner of the land on which his bungalow or garden shed was to be built. And few mourned its passing.

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