A History of Feudalism in Scotland

It was Sir Thomas Innes of Learney, a former Lord Lyon King of Arms, who wrote in the volume, 'Scots Heraldry' that: 'Scotland, owing to its clan organisation, has enjoyed a complete absence of class distinctions or 'class consciousness', and a corresponding popularity – indeed whole-hearted veneration – for everything pertaining to rank and lineage, honours, dignities and ensigns armorial.'

In the broader context it is important to understand that feudalism in Scotland was not imposed on a conquered people, as happened in England after the Norman Conquest, it was introduced in a well-developed form in a piecemeal and more or less peaceable fashion by the Kings of Scots themselves. Although the majority of those at the top of the feudal pyramid were either Anglo-Norman, Breton or Fleming incomers (the families of Balliol, Bruce and Stewart among them), there was not the bitter hatred between conqueror (Normans) and conquered (Saxons) that was such a notable factor in England. Not only that but the introduction of feudalism in Scotland tended to reinforce the bonds of mutual loyalty and protection that already existed under the clan system and feudal institutions, to a large extent, merely replaced similar institutions that were already there. The ancient earldoms continued to exist but were converted into feudal holdings from the Crown and the pre-feudal thanages were gradually replaced by baronies. In fact the introduction of feudalism did little to alter the view of the clansmen, which persisted into the late nineteenth century, and which still probably finds some sympathy in the heart of every modern Scot, that clan lands belong to the clan.

Feudalism originated as a system by which land was held in return for military service. The feudal relationship was a mutual obligation (an honourable bond) between two free parties, the superior and the vassal. The 'feudal agreement' proper, soon superseded by a written charter, consisted of two parts, an act of homage by the vassal, in which the vassal would place his hands between those of his superior and swear fealty to him, and an act of investiture by the superior granting land to the vassal to be held of the superior. This ceremony was conducted in front of reputable witnesses. The act of investiture involved the handing over of a sod of earth and a stone and once a vassal was 'infeft' in this manner he was described as being 'seized' of his lands, which he was in a literal sense. The principal obligation of the vassal was military service but this was later replaced by a money payment or nominal consideration (a penny, a rose, a glove, a blast of a hunting horn etc.) called 'blench ferm'.

In addition to owing military allegiance to his superior, the vassal also attended (owed suit to) his superior's court, which all superiors were entitled to hold for the administration and regulation of their lands. In return the superior undertook to provide protection and justice (in his court). There were penalties for non-compliance and, critically, either side could repudiate the feudal agreement if the other party did not meet their obligations or abused their position; this happened most notably when the Magna Carta barons repudiated their allegiance to King John, who demanded unconstitutional feudal 'aids', effectively illegal taxes, amongst other, less mentionable, misdemeanours.

It appears that in the very early days of feudalism there was no automatic right to succession by a vassal's heir but, over time, the feudal agreement became hereditary on both sides, that is between the superior and his heirs and the vassal and his heirs, and this gave the vassal relative security of tenure. When a vassal succeeded 'relief' was normally payable to the superior (£100 was the standard relief for a barony in England) and, if a minor succeeded, the superior normally had the right of wardship of that minor, hence the term 'ward holding' used to describe the most common form of early feudal tenure. If the minor was a girl this effectively included the right to marry her off to the highest bidder, an important source of revenue. Since the minor was clearly incapable of providing the military service due from the lands, the superior required to be compensated and wardship gave the superior control of the lands and their revenues.

A vassal who received a feu of lands in this manner could sub-feu all or part of those lands to others, who might also sub-feu, and feudal society was therefore hierarchical, a social pyramid. At the top of the hierarchy was the King, who as 'paramount superior' owned all the land (though whether he could control it was another matter) and was the fountain of honour and justice. Everyone was part of this hierarchy, and therefore subject to the feudal system and its laws. The exception was outlaws, who were literally 'outside the law' (hence the name) and, having no legal protection, could be killed with impunity. The feudal system was, in this sense, a great equaliser since it bound everyone, from the highest to the lowest, within the same legal framework. As Professor Barrow states ('Kingship and Unity, Scotland, 1000-1306', p. 43) 'in the process [of feudalisation] the highest was inevitably brought a little lower and the lowest somewhat raised'.

Below the King were his immediate vassals, his tenants-in-chief or 'barons', derived from the Latin baro meaning 'servant' or 'man'. Thus the King's barons were, in a sense, simply the 'King's men', just as the vassals of any superior were that superior's 'men' or, in a sense, his 'barons'. In the same sense all the immediate vassals of any superior were peers of each other, although the term came ultimately to be restricted to 'Peers of the Realm', that is those who had a right to a seat and vote in the House of Lords. The 'baronage' consisted of the earls and barons (the titles of Duke, Marquess and Viscount arrived in Scotland somewhat later, in 1398, 1599 and 1606 respectively), both of whom held their lands 'by barony', that is per baroniam.

Earldoms and baronies were territorial as opposed to personal dignities and were therefore attached to the land rather than the individual, unlike modern peerages. Lands were erected into an earldom or barony and those lands were then granted out by the King. Both of these steps were effected by a single charter under the Great Seal. A man became a baron by virtue of being granted a barony, a baron by tenure, he was not personally made a baron. If an earl or baron disposed of his lands, which in theory he could only do with the consent of the King by means of resignation (to the King) and re-grant (by the King), the title went with the lands. Earls and barons were therefore noble because they held noble fiefs, that is lands that conferred nobility, as opposed to ignoble fiefs, lands that did not confer nobility (Lord Bankton, 'An Institute of the Laws of Scotland', II, III, para. 83). However, it seems that, in Scotland at least, if not also elsewhere, all armigers (those who had a coat of arms) were considered noble and that the distinction between nobles and non-nobles was between those who were 'known' (nobilis) by virtue of having a coat of arms and those who did not have a coat of arms and were therefore 'unknown' (ignobilis). Indeed, a modern grant of arms from the Lord Lyon, for which anyone of Scottish ancestry can apply, will state that the grantee is 'amongst all Nobles and in all Places of Honour, to be taken, numbered, accounted and received as a Noble in the Noblesse of Scotland'. It seems that under Scots law arms are also a noble fief conferring nobility (Sir Thomas Innes of Learney, 'Scots Heraldry', p.83). This view is supported by the following extract quoted in 'Ancient Heraldic Tracts' by Sir James Balfour, (p. 9): 'Aptlie a prince is said to nobilitat one quhen, ather by expresse wordes or by wreat, or other wayes by some externall acte or ceremoney, he manifests his princely magnificence and creatione, aither by giuing of Armes or Signe Armorialls to be borne by the party so honoured in Escutcheons, ore by careing Helmetts with open Beuer, muche ussed by the Germans. Gutier, lib. 3. et 4. quest. 17. num 151. Petrus Gregorius, lib. 6. de Repub. cap. 16. num. 2.'

As the King's immediate vassals the earls and barons owed suit to the King's court, which remained the supreme court of law after it had evolved into what we now call Parliament. The earls and barons, who constituted the nobility, attended Parliament along with representatives of the Church and the Burghs (towns) and these three together (Nobility, Prelates and Burgesses) came to be referred to as the 'Community of the Realm'. For the sake of completeness it is worth noting that there were, and still are, baronies held of earls (and also the Lord of the Isles until 1494). These were essentially a hangover from the pre-feudal period when the 'Seven Earls' (of Atholl, Fife, Moray, Mar, Strathearn, Caithness and Angus) were princes, if not kings (Righ), in their own territories and the King of Scots was 'High King' (Ard-Righ). Most of these baronies were later converted into baronies held of the King.

Although both earls and barons held their lands 'by barony' and sat in Parliament by virtue of being barons, there was always a distinction between the two, for the earls effectively retained their function as provincial governors, sat apart in Parliament on the steps of the throne and wore distinctive robes of office. Over time, the earls and more important barons (barones majores) were distinguished from the lesser barons (barones minores), who might hold only a few hundred acres and for whom the business of attending parliament was costly and inconvenient. The lesser barons continued to hold territorial dignities but a new peerage by patent, as opposed to baronage by tenure, evolved from the granting of personal dignities, mainly to the holders of existing earldoms and baronies in the first instance. The earliest of these was the Earldom of Douglas granted to William Douglas in 1358. These personal dignities were not attached to land (a cheapskate form of patronage!) and descended in accordance with the destination specified in the patent of creation, usually heirs male of the grantee. This gave rise to situations where a feudal title and a personal title of the same name, such as the Earldom of Arran, were held by one person.

By an Act of 1428 (A.P.S., ii, 15) the minor barons and freeholders were excused from attending Parliament and were allowed to send two or more commissioners from each shire ('twa or ma wismen efter the largeness of the schrefdome') to represent them. This Act does not seem to have been implemented because it was only following a petition to Parliament in December 1585 requesting that the minor barons and freeholders should be represented that a further Act was passed in 1587 (A.P.S., iii, 509, c. 120) by which 'the said act [of 1428] maid be king James the first to tak full effect and executioun'. It was in this manner that the Shire representatives in the Scottish Parliament, which still sat as a single body, evolved (together with the Burgh representatives) into the equivalent of the English House of Commons.

In addition to being tenants-in-chief of the King (and having the rights and duties this implied), barons had a second function concerned with the administration of the judicial system. These were two sides of the same coin of course; as a vassal of the King a baron was obliged to attend the King's court, as a superior the baron was obliged to hold courts for his immediate vassals. These two functions became the critical features by which the baron could be identified - his position as tenant-in-chief of the King and his 'baronial jurisdiction'. As Sir John Skene stated in 1597 in his celebrated glossary of Scots legal terms "In this Realme he is called ane Barrone quha haldis his landes immediatlie in chiefe of the King and hes power of pit and gallows". In the early period charters were explicit in enumerating baronial rights (cum sacca et socca, tholl et them, et infangthief, cum furca et fossa – Charter of the Barony of Seton, 1169) but over time charters erecting baronies came to use a standard phraseology and baronial rights were encompassed by the single phrase in liberam baroniam – 'in free barony'.

The administration of public justice in rural medieval Scotland was carried out largely by the baronial courts, from which there was a right of appeal in civil cases to the local Sheriff Court and which were subject to supervision by the local Sheriff Court in criminal matters. As Alexander Grant states ('Independence and Nationhood, Scotland 1306-1469', p. 151) barons ' presided over most of the ordinary government and justice experienced by most of the people of Scotland'. Baronies have been properly described as 'franchise jurisdictions' and they worked in principle like any modern franchise; that is, the baron exercised a limited legal jurisdiction in a specified area (the barony) and, in return, was allowed to retain the profits of the office, that is the fines. It was the private administration of a part of public justice. It is important to understand that the baron was responsible only for the administration of justice within the barony, he did not act as judge or jury (these functions were carried out by the baron's vassals, his tenants) and although, like any system, feudalism was open to abuse, the principle that a man should not be a judge in his own cause (aliquis non debet esse judex in propria causa) was of the essence. As Professor William Croft Dickinson states ('The Court Book of the Barony of Carnwath 1523-1542', p. lxxx) 'the baron was technically in the same position as any other litigant', which meant that in a dispute between the baron and one of his tenants, it was the not the baron who decided the outcome but his other tenants. Where this principle was not observed, as happened in the later feudal period, this constituted an abuse of the feudal system, not a feature of it.

The jurisdiction of the baronial courts was strictly limited. The popular image of barons exercising at their own whim the 'power of life and limb' over their vassals is a distortion. While baronial jurisdiction certainly included 'furca et fossa' – the power of pit (fossa – the right to drown women) and gallows (furca – the right to hang men) – this power was limited to theft and manslaughter (un-premeditated killing) only and even then the criminal had to be caught within the barony either in possession of the stolen goods or 'red-handed'. More serious crimes, notably murder, rape, arson and robbery (the Four Pleas of the Crown) were dealt with by the itinerant Justiciars, who were senior royal officials, or by the regality court if the barony was within a regality (for which see below). The right to try cases of treason was always reserved to the Crown. In fact, 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 in fact), as well as a court of law, and might not try a juicy manslaughter case for decades, if ever – which was probably a bit of a disappointment for the tenants – and from the sixteenth and seventeenth centuries onwards the trying of capital crimes in the baron courts fell into desuetude, until finally abolished by the Heritable Jurisdictions Act of 1747. 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'.

The lynch-pin of the barony was the baronial castle or manor which, as the 'caput' or head of the barony, was a public place and the source of justice for the community in peacetime (i.e. where the courts were held) and of its protection in times of war or civil disorder. Their function is neatly summarised in a statute of James I (APS, ii. 13, c. 7) which ordered all lords beyond the Mounth to build, repair and reconstruct 'thar castellis and maneris and duell in thaim be thaim self or be ane of thare frendis for the gracious gouernall of their landis be gude polising'. It was only in unsettled times and particularly when royal authority was weak that, in certain limited cases, the baronial castle can be rightly seen as a source of anarchy or oppression.

We also need to be aware of regalities, which were a form a barony with higher jurisdictional powers and other privileges and which were erected in liberam regalitatem as opposed to in liberam baroniam. They were equivalent to the Palatine Counties 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 their own chancery and mint and were effectively reguli or little kings within their domains. 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 (Lord Bankton, 'An Institute of the Laws of Scotland', II, III, para. 83). 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, 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) would have been tried in the Regality Court rather than by the relevant Justiciar (of the North or South as the case might be), which quite probably speeded the process up, and that civil appeals from the Baron Court would have gone to the Regality Court rather than the Sheriff Court. It should be noted that erection of a feudal earldom or lordship implied no higher jurisdictional rights than an ordinary barony, unless that earldom or lordship was also erected into a regality. The caput or head of a regality was technically a palatium, that is a palace (Alexander Nisbet, 'A System of Heraldry', Vol. 2, Part 4, p. 46). Regalities probably had little effect on the day to day life of ordinary people, unless perhaps your local Lord of Regality happened to be Alexander Stewart, 'Wolf of Badenoch'! Even so, regalities remained subject to royal authority and on those occasions when Lords of Regality came into conflict with the Crown they were resoundingly crushed, as happened to the eighth and ninth Earls of Douglas.

In feudal theory a barony would be held of the King for a number of knights' fees, say 10, 20, 30 or more (the number varied according to the size of the barony, although there was no standard area of land defined as a 'knight's fee'), which meant that, when summoned by the King to do so, the baron was obliged to supply the specified number of knights to fight in the King's army for the standard period of service, normally 40 days. In order to meet this military obligation the baron would normally 'feu' (grant in fee) part of his lands to others, milites or knights, who held of him by one or more knights' fees or even a fraction of a knight's fee. Part of the levy might be met by household knights, that is knights who were part of the baron's household retinue and who did not hold land by knight's service. Knight's service was the lynchpin of the feudal system, since it was by this mechanism that the system of holding of land in return for military service operated.

In England feudalism certainly operated on this model, that is knights holding of barons. There was a large knightly class which it is recognised later formed the basis of the landed gentry or squirearchy and the House of Commons. In Scotland, while knights certainly existed, the knightly class seems to have been less evident (partly no doubt as a result of the relative poverty of the country and scarcity of good land) and their equivalent in Scotland seems to have been the minor barons, clan chiefs, lairds and so on, who were less vociferous than their English equivalent and less conscious of their identity as a class. This, along with the fact that the minor barons continued to sit, or at least have the right to sit, in Parliament as nobles (which right knights did not have of course) is the reason why no House of Commons evolved in Scotland. An interesting result of these different models of feudalism, if we can call them that, was that England could field a large and well-equipped army via the feudal levy (there were more than 2,000 English knights at Bannockburn) whereas Scotland could only hope to match its larger and richer neighbour by what was effectively a national mobilisation, a levée en masse. Even so the number of knights that Scotland could put into the field was always small and a Scottish feudal army consisted of what were effectively the armies of the Earls (harking back the their pre-feudal role) and the barons with their tenantry (and God help an English knight if they got hold of him!).

Below knights were the yeomen, that is free peasants (called 'husbandmen' in Scotland), so-called because they were not tied to the land in the same manner as serfs or villeins, that is unfree peasants (called 'neyfs' in Scotland). It appears that in the early feudal period the land was worked mainly by unfree peasants (neyfs) and it was only later, with the gradual disappearance of neyfship in the 14th century, that an identifiable class of richer peasants, the husbandmen, emerged. Below them were a class of 'cottars' or very small scale farmers, often sub-tenants of husbandmen. Below both of these were landless labourers who, though the evidence is scanty, may have formed as much as one third of the population of adult males. The majority of the peasant population held their land on short, usually annual, leases and it is here, the distinction between those who enjoyed security of tenure and those who did not, that perhaps the key social divide within the feudal system lies. Short leases were clearly devised to benefit the landlord but, even so, we must remember that in times of population decline, and hence reducing rents, short leases benefited the tenants.
The distinction between these two classes of peasant was greater than the distinction between the substantial husbandmen and the lower ranks of the nobility, for a substantial husbandman might farm a larger area than a small baron (Alexander Grant, 'Independence and Nationhood, Scotland 1306-1469', p. 122) and his family could even, over time, join the ranks of the nobility. As Grant states (p. 121) 'Although late-medieval Scottish society was not totally fluid, class consciousness was probably relatively slight, while upward social mobility, depending on the acquisition of freeholdings and open to anyone with sufficient wealth, would have been fairly straightforward. The only real social barriers seem to have been economic ones.' We must also remember the rate at which noble families became extinct and although the Scottish nobility seems to have survived better than the nobility in England and France, where an extinction rate of 25% of noble families every generation was about the norm, a constant supply of 'new blood' was both required and forthcoming.

Not only was movement possible up the social ladder (and of course even the most noble of families originally rose from humble stock, though you might not get this impression from their pedigrees!) but movement down the social ladder was also a constant process. Many nobles had numerous progeny and they could not all be provided with landed estates, so the younger sons of baronial or chiefly families would often go into the professions or trade (to which there appears to have been less stigma attached than in England) and daughters would often marry lower down the social ladder. Over time their descendants might move further down the social ladder and this is the reason why if you walk down the High Street of any Scottish town you will see shop signs which say, for example, R. Bruce (Butcher), J. Stewart (Baker) and W. Hamilton (Candlestick Maker), though we must not forget that (frustratingly!) many a bearer of a famous Scottish name is descended from someone who simply assumed the name of their lord or clan chief.

As far as the neyfs are concerned, we need to remember, firstly, that neyfship disappeared from Scotland at a relatively early date (by 1370 or thereabouts) and, secondly, that, as Professor Barrow states ('Kingship and Unity, Scotland, 1000-1306', p. 18) 'in practice the extent of their servitude would have been lessened by two things, first by the comparatively high degree of personal freedom conferred by the pastoral way of life (men whose wealth is on the hoof can more easily take refuge from oppression than men who depend on harvesting field crops) and secondly by the markedly vertical structure of Scottish society. This meant that in every shire and region what counted was the lineage and kindred to which a man or woman belonged. Freedom was neither absolute nor homogeneous, but was experienced and enjoyed at different levels in different milieux'.

In addition Professor Barrow draws our attention (page 19) to a charter of William the Lion in which he refers to his thanes of Birse in Aberdeenshire as his 'neyfs'. He goes on to say 'our modern notions of an unbridgeable gulf between a free and privileged aristocracy on the one hand and an oppressed peasantry on the other cannot be squared easily with the concepts actually prevailing in the twelfth century. In any case we should do well to recall the underlying harshness of life in our period. The absence of legal freedom would often have seemed a small enough matter when set beside the threat of harvest failure or epidemic disease among the livestock upon which the very survival of a peasant family depended.'

It seems to be clear, on this basis, that our notion of feudalism in Scotland might require revision. The nobility had rather less unbridled power and there was less differentiation and more mobility between the lower ranks of the nobility and the higher ranks of the peasantry, in both directions, than we might have thought. The bonds of servitude of the neyfs appear to have been stronger in concept than in practice and their servitude seems to have been of relatively small moment when put in the context of the harshness of life at the time.

Considering the evidence presented here as a whole it would seem that there is a large element of truth in Sir Thomas Innes of Learney's statement ('Scots Heraldry', p. 3) that 'the chieftain's turreted keep with its carved escutcheons and emblazoned banner was to each surrounding cottage the embodied grandeur of that pride of race which burned as strongly in the ploughman's low-thatched roof as in the lofty baronial hall itself'. This is a proposition that would be treated as laughable by egalitarian reformers but the weight of evidence supporting it is persuasive.

So now, as we watch the feudal system slip gently from our view and into the pages of history, we can think of future generations who will read the pages of that book and wonder what it was like and why it lasted for so long. I have tried to answer the first question already so let us look at the second one. Feudalism in Scotland survived for nine hundred years for one obvious reason - because it worked. More importantly, while recognising that injustice and inequality occurred, it survived because it worked for most of the people most of the time. Ultimately no system survives without the consent of the people who are part of it and certainly not for so long - Communism lasted for less than a hundred years. As the 'Report on the Abolition of the Feudal System' stated (1.7), feudalism 'could not have achieved such success if it had not met the needs of the times in an efficient way.' Indeed, not that long ago a government White Paper* stated that 'there was no demand of a modern industrial society that could not be met by the feudal system of land tenure' (Sir Malcolm Innes of Edingight, KCVO, 'The Baronage of Scotland: The History of The Law of Succession and of The Law of Arms in Relation Thereto', The Scottish Genealogist, June 2000).

On this basis I feel safe to say that we have now dismantled something that we should have cherished; something that, anachronistic as it might have been in many ways (and what's wrong with a bit of anachronism now and then), was ancient, honourable and just; something that was colourful, interesting and romantic; something that actually worked. And why did it work? Because it was personal and familiar and small in scale. The same could be said of the Scottish Regiments that have been amalgamated or disbanded - and the Government is at it again.

Is there a lesson here? Perhaps it is that what works best, what people trust, what people will give their time and effort (and sometimes their lives) for is something that has stood the test of time, something that is intimate and personal, something of which they are part and which is part of them, like a family, a village or a parish, all targets of the unsentimental and unseeing eye of the reformer. Feudalism was just that; it was a bond of service but it was a personal bond and an honourable one. Goodbye, old friend.

*Land Tenure in Scotland: A Plan for Reform, Government White Paper, Cm 4099, 1969

This article was originally published in The Scottish Genealogist in September 2004, by Graham Senior-Milne.



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