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Clanship and Feudalism


By Peter Lawrie, ©2017

 

Clanship and feudalism are often confused. Both are systems for the control and exploitation of land-based resources. The clan (Gaelic clann - family) derived from tribal society and was led by a kin-based chiefly group, but many non-related peoples who happened to live on the land controlled by the ruling kindred of the clan would be regarded, and regard themselves, as members of the clan. Essentially, the land or duthchas was perceived to be the property of the entire clan and held in common. The clan was in that sense a 'bottom-up' organisation, the chief and his immediate family owed their position to the continuing support of the clansfolk. These bonds might be celebrated by "hosting and feasting", whereby the surplus product of the land was redistributed.

It has been argued, by Gibbon and others, that the growth of the great estates or latifundia in the hands of fewer and fewer extremely wealthy men led ultimately to the collapse of the Roman Empire as the mass of the population became deprived of any stake in the resources of the empire. When the Empire in the West collapsed at the end of the 5th century, new peoples colonised much of Europe re-introducing tribe-based control of land resources. Kin-based networks of service and protection became the norm.

As larger polities, such as the Carolingian empire, grew in the 8th and 9th century to dominate large areas of Europe, a system was developed so that the rulers could control the mounted cavalry essential for their dominion. This was the genesis of the feudal system which, in its various forms, usually emerged due to the necessary decentralization of the empire. Mounted soldiers began to secure a system of hereditary rule over their allocated land and their power over the territory came to encompass the social, political, judicial, and economic spheres. Only with the infrastructure necessary for the exertion of centralised power — as with European monarchies in the late middle ages — did feudalism begin to yield to these new power structure and eventually disappeared.

The classic version of feudalism describes a set of reciprocal legal and military obligations among the warrior nobility, revolving around the three key concepts of lords, vassals and fiefs. A lord was in broad terms a noble who held land, a vassal was a person who was granted possession of the land by the lord, and the land was known as a fief. In exchange for the use of the fief and the protection of the lord, the vassal would provide some sort of service to the lord. There were many varieties of feudal land tenure, consisting of military and non-military service. The obligations and corresponding rights between lord and vassal concerning the fief form the basis of the feudal relationship. Fundamental was the obligation to support and provide service to ones superior and in turn to expect the support and service of ones vassals. Thus the monarch could summon his great lords who, in turn, could expect the service of their chief tenants. The system was based on law and the law could be used to enforce it and punish the recalcitrant or deprive them of their holdings.

In Scotland, feudalism was effectively introduced by David I at the start of the 12th century when he imported Norman knights in emulation the system he found in England. Legally speaking, all land in Scotland would be, from then on, held under feudal tenure. The extent to which feudal ownership could be enforced, however, often depended on the degree of remoteness from the power, such as it was, of the state in medieval Scotland. In much of Highland Scotland the old tribal structure of clanship persisted, in a much altered form until the abolition of the heritable jurisdictions in 1747 after Culloden.

The earliest entries in the "Register of the Great Seal of Scotland" date from 1306. The register, or "Registrum magni sigilli regum Scotorum : A.D. 1306-1668" was published in 1882 by the General Register Office (Scotland) and includes all the charters issued under the Great Seal, consisting mainly of royal grants of lands and confirmations. The registers also contain patents of nobility, commissions to major offices, letters of remission (or pardons), naturalisation and legitimation, and charters of incorporation, patents (until 1853) and licences to print money. Although the first crown charters were issued in the 11th century, many of the early charters and charter rolls have been lost. The earliest surviving roll is from the reign of Robert I, 1315-21 but there are many gaps until 1424 when the registers in volume form begin. The possession of a royal charter under the great seal made the holder a tenant-in-chief of the crown. Feudal lords, in turn, employed legal agents, usually churchmen, who would write charters detailing sub-infeudations.

Feudalism is a "top-down" land-based system whereby often unrelated people were joined in a superior-vassal relationship, involving formal vows of allegiance, fealty, homage, vassalage etc. All landed resource was regarded as being in the gift of the monarch. He would allocate lands to his immediate followers, the nobility of the kingdom, in return for homage and knightly service. In turn the nobility would infeudate their followers, the knights and barons, and so on down the tree to the lowest level of landholder. Feus might be for limited periods, the life of the holder or heritable, subject to the superiors approval and usually a payment at each transfer between the generations.

Women could inherit feudal fiefs but it was assumed that they needed protection and hence the superior usually had the gift of marriage. The situation of a widow in feudal society could be interesting, but it was normally assumed that she would re-marry if she had significant possessions in her own right. Clans often got into difficulty when the line terminated in an heiress. The Campbells and others had a practise of always marrying heiresses back into the kindred. They acquired the barony of Cawdor by kidnapping a young heiress and holding her until she could be married to a Campbell. The kin group thus deprived of their chief were hit by a ‘double whammy’. First they had to select the next eligible leader out of the kin-group - perhaps a far-out cousin and that could cause damaging conflict. More importantly, the link between kin-leadership and feudal ownership of the duthchas was broken. Clans usually disintegrated when deprived of land. Our ancestors found themselves in such a spot, before we were known as Clan Gregor. The leader of Clann Ailpeinach in Glen Orchy left only a daughter when he died in the wars of Independence. That daughter Mariota, married a Campbell taking with her the feudal possessions of the clan which was explicitly stated in the charter of David II to the Lord of Lochawe. Mariota's cousin, Gregor, became progenitor of clan Gregor and thus a vassal of the Campbell Lords of Lochawe from the beginning. The relationship appeared to have been benign for the following two centuries as both kindreds expanded, but this explicit feudal vassalage existed from the beginning.

True clanship was a kin-based system. Kinship and the degree of connection to the chief were paramount in determining relationships. Formal oaths were therefore superfluous in establishing loyalty. "Swearing on dirks", popularised by Hollywood fantasies, or any other form of oaths were not necessary to establish a relationship with one's chief but such oaths of allegiance would be more significant in circumstances not directly connected with the chief-clansman relationship. Recruiting unrelated clansmen could involve a formal commitment, termed calp - literally promising one's best cow at death. Calp was an acknowledgement of a relationship that might not be clear from any kin connection. .

Quite separate from the obligation owed by a clansman to an undisputed chief was the obligation on the chief (and this existed lower down the pyramid as well) to prove his fitness. Such proof of leadership and manhood might be a cattle raid or some notable martial deed. Failure to perform could result in the chief by right of birth being deposed. (Forced into the church, exiled, or more commonly assassinated). The obligation was therefore on the chief to prove himself in addition to his right of birth. There was not a corresponding obligation on the clansman to overtly swear allegiance - that was accepted and understood as the norm - it was a kind of treason if he did not show allegiance by deed. This obligation to prove fitness to lead one's kin in often violent exploits is a reason to doubt the likelihood of female chiefs.

The conflict which could grow out of such contradictory systems can be imagined. Elements of feudalism existed from the late 11th century but it was never a formal system as in France (by development) and England (by conquest) Clanship and feudalism fused - just as much in the Lowlands as the Highlands during the 12th to 14th centuries. Thus evidence of swearing allegiance to a chief demonstrated the feudal land-based power of a chief rather than an aspect of clanship.

A system that developed in late 15th and 16th century Scotland was manrent. Essentially manrent was a formal, usually written contract whereby one person gave a bond of manrent to another. There was usually no land-based contract as in feudalism. In many cases kinship links existed, often between powerful lords and their more far-out kin who possessed land in their own right (perhaps direct from the king) - to explicitly define clientage when feudal vassalage did not. Sometimes manrent established relationships between unrelated equals which was aimed at building political blocs. More commonly it was a means by which a lord who had recently acquired territory by feudal charter, would then establish relationships with the leaders of unrelated groups on his new territory or with neighbouring groups. The latter is the reason for most of the bonds issued by Grey Colin and Black Duncan.

In England, feudalism began to decline in the late 14th and 15th centuries being replaced by a cash economy. Until then, there had been an understanding that land could not be owned individually and was a communal asset, subject to duties and obligations. However, in a radical innovation in 16th century England, land became defined as a commodity which could be owned, like any other form of property, by individuals. This idea transformed rural England during the next three hundred years as successive waves of enclosure deprived the peasantry of access to common land.

The elite level of society in Lowland Scotland adopted this revolutionary change more slowly, but increasingly land would be acquired and disposed of, often for monetary consideration rather than service, along with the people on it. The reorganisation of the land beginning in the late 17th century has been called "The Lowland Clearance". Its effects on the population have been largely undocumented, but it is clear that it resulted in increased agricultural production and growing wealth in the hands of the elite. During the course of the 18th century and 19th centuries nowhere else in Europe underwent such rapid urbanisation as the population was brutally cleared from the countryside. With few exceptions, this process would not begin in the Highlands until the late 18th century when a process which had taken two to three hundred years in England and somewhat less in Lowland Scotland, overwhelmed traditional societies in barely a generation. Today, in England and Lowland Scotland, the trauma of enclosure and clearance has been largely forgotten, while the emptiness of the Scottish Highlands speaks for itself.

While Adam Smith could justify the self-interested pursuit of wealth by individuals as producing the greater good of Society, even Dr Johnson would lambast the greed of landlords and the ensuing poverty of the people which he witnessed throughout the Highlands and Western Isles in the 1770s. The contrast with the rest of Europe was striking. T.M. Devine contrasted the changes in Scotland with Denmark where agricultural reorganisation, every bit as far-reaching, was managed very differently with "a degree of social benevolence which ensured social stability with funds to help the transition."

In Clanship, disposing of the ancestral duthchas was unacceptable and good grounds for a clan to kill its chief! Oigreachd in clan society could refer to lands acquired that did not form part of the duthchas and which the chief in his role as a feudal lord could then dispose of. The feud between Macintosh and the Camerons was a good example. Macintosh received a feudal grant of lands occupied by Camerons and regarded by them as their duthchas. Over many years, several generations and considerable violence the Macintoshes failed to remove the Camerons from the land. When the dispute was finally resolved the Macintosh chief was able to part with the land with relatively minor consequences from his own people. The Cameron chief could not concede the issue for fear of his own people's reaction to the loss of their duthchas. That is a somewhat simplistic summary. Anglicised chiefs in the 18th and 19th century regarded any such duthchas land as personal estates from which they were entitled to maximise their income. Their people’s inability to understand this lay behind the tragedy of the clearances.

There were a number of bonds other than kinship that defined relationship. Most important was fosterage. Leading families in a clan competed to offer to foster a chief's son. The foster child was entitled to inherit a share in their foster-parents estate. The bond between dalta or foster kin was regarded as stronger than simple kinship. Kinship itself came next. Marriage might unite groups but such bonds were the least strong and easier to set aside. Mother-child bonds were of course different.

According to the late Dr Alasdair MacGregor Hutcheson, an appreciation of the Concept of Kinship with the Land, i.e. with a particular place or area, is essential towards understanding the fabric of human society in the Highlands. Occupancy of land was claimed by hereditary customary right. The claim of immemorial occupancy, also expressed as ‘since before the memory of man’, is believed to have had its origin as far back as Neolithic times, i.e. the New Stone Age, around 5,000 years ago or more depending on location, when man, thanks to the practice of agriculture, first began to settle land on a permanent basis.

There was a widespread belief that the prolonged occupation of land gave right of kindness, or kindly tenancy, implying a right of permanent occupation (not possession – land was believed to belong to all). Symbolically their own area of ground was the Earth Mother and, as children of the Earth Mother, such kindly tenants felt a very special and strong sense of belonging to the land on which they lived and worked. There was no general principle as to the length of time required to acquire this right and the clear definition of claim varied between districts.

This spiritual link between people and land is a world-wide concept. Today it underlies what environmentalists call green consciousness.

Belief in the right of kindness remained strong throughout the clan period despite the fact that land ownership, established by legal charter and backed by laws that were feudal in character, had become established in the Highlands by the 14th century. For this reason it was only occasionally that rights of kindness were recognised in law. For instance, when MacGregors were dispossessed of their lands in the 16th and early 17th centuries, they vainly claimed their rights of kindness. Consequently the trauma of being declared landless not only caused great physical hardship but was also deeply felt spiritually by the Clan.

More than a century later, in the wake of Culloden, a once proud people were to witness the lands of their kindred being sold for monetary gain and they themselves treated as mere pawns in such business transactions. People were cleared, often cruelly evicted, from the lands of their ancestors. Is it any wonder that ordinary folk felt a deep sense of betrayal and demoralisation? The North Uist bard, John MacCodrum (1693-1779), gave expression to such feelings when he wrote:

Seallaibh mun cuairt duibh   Look around you
Is faicibh na h-uaislean,   And see the nobility
Gun iochd annt’ ri truaghain,   Without pity for poor folk,
Gun suaiceas ri dàimhich:   Without kindness to friends:
‘S ann a tha iad am barail   They are of the opinion
Nach buin sibh do ‘n talamh   That you do not belong to the soil,
‘S ged dh’fhàg iad sibh falamh,   And though they have left you destitute,
Chan fhaic iad mar chall e.   They cannot see it as a loss.


This sense of belonging is also expressed in other ways. When we say “I belong to . . .”, we perpetrate this ancient sense of belonging and, unwittingly, its associated symbolism. Likewise it was, and still is, common in the Highlands to refer to a person, not by surname, but by territorial designation, e.g. 'Johnnie Gart' (John, the tenant of the farm named 'Gart'); 'Glengyle' (in reference to, for example, Gregor MacGregor, the Chief of the MacGregors of Glen Gyle); 'Montrose' to refer to, for example, James Graham, various of whom were Earls, Marquesses or Dukes of Montrose.

Feudal tenure may seem to be one of those hoary ideas from the dim and distant past, but in fact "The Abolition of Feudal Tenure etc. (Scotland) Act 2000" was a long-overdue land reform enforced by an Act of the newly restored Scottish Parliament which received Royal Assent on 9 June 2000.

The Act officially brought to an end annual feu duties, a vestige of feudal land tenure, on 28 November 2004 (that is, Martinmas, as the Act required the "appointed day" to be one of the Scottish term days). After that date, the former vassal of an estate was the sole owner of the land, and the former superior's rights were extinguished.

However, the abolition of feudalism in Scotland did not end the consequences of our feudal past. Even today, half of Scotland is "owned" by less than 500 individuals, many, if not most of them foreign domiciled and hiding behind opaque corporate structures. While many of these individual or corporate owners can trace their ownership back to purchases in the past two centuries, some of the old feudal owners still possess substantial estates which, it may be said, were acquired in the most dubious of circumstances.

The medieval concept of feudalism placed the monarch, for which we can substitute 'the state' at the pinnacle of power, surrounded by courtiers, aka 'politicians' and the mass of the people at the base of the pyramid, to be lied to and consulted only when it suited the politicians. The concept of the tribe, which may be equated to the "kindred of the clan in the locality" placed power in the hands of 'the people', loaning that power of decision to the leaders of the state. I do not suggest that the ancient clan system was perfect and most certainly not 'democratic'. Today everyone is entitled to have their democratic say once in a while, even if their decision-making ability may be warped by wealthy media barons. This concept of the bottom-up approach underlies the 14th century declaration of Arbroath and the modern 'Claim of Right' in Scotland.

In contrast, Westminster, the successor of absolute feudal English monarchs, despite the modern veneer of elective democracy, remains a 'top-down' system. Today, the mad 'brexiteers' in Westminster claim they are entitled to use 'Henry-the-Eighth' absolute powers in order to force their post-imperial delusions through Westminster.

In a sense, the 17th century structure of the presbyterian Church of Scotland is the closest to the ideal of a state based on the localism of the 'tribe' or 'clan'. The congregations, represented by their elders in the Kirk Session, send delegates to the presbytery, who in turn delegate to the Synod and finally to the General Assembly. Decisions were made at the lowest feasible level in the hierarchy. Local decisions about local issues would not normally be overturned further up the tree. More general principles would be referred up to the appropriate level for deliberation and decision. The monarch or secular state, in the eyes of the Scottish reformers (1560-1688), should have no power over the Kirk. Well, that was the theory, but it led to bloody civil war when the 'state' in the person of Charles I and his son Charles II refused to accept it. In the English episcopal church, the head is the archbishop, supported by bishops with seats in the house of Lords, thus the spiritual realm mirrored the secular realm. It is perhaps typical of the difference between English feudalism and Scots clanship, that once the Kirk had finally succeeded in their presbyterian goal in the 1689 settlement, and had their success explicitly confirmed by clauses in the 1707 Treaty of Union, among the first Acts of the post-Union state affecting Scotland, was the 1712 decision of the House of Lords to allow landowners to 'present' their choice of minister to churches on their estates, over-riding the decisions of the congregation. This led to a series of secessions from the established Kirk of Scotland and ultimately to the Disruption of 1843. Westminster just cannot help itself! While today, Kirk membership has become a minority in Scotland, and barely relevant, perhaps it could serve as a model for a future sovereign Scottish state and avoid micro-management by bureaucrats at the centre.

The very idea of devolution from Westminster to Holyrood is fundamentally feudal, since the state represented by Westminster has consented to devolve or hand down some limited powers to Holyrood. Holyrood in turn has been reluctant to devolve any serious autonomy to local authorities and communities, instead hypothecating cash grants for particular purposes. In the spirit of clan-dominated early Scotland, true authority should lie with communities whose representatives take local decisions. These communities should have their own significant tax-raising and planning powers; and would agree to allocate some of the money raised to Regional authorities - which might run general hospitals, for example - finally regional representatives would relate to our National Parliament in Edinburgh. This is not a subject which can be dealt with in a paragraph, but the emphasis should be on the local community lending some of its authority to the centre rather than the other way around.