feuing conditions query

[skauwt]

not sure if this topic is in the right place but anyways

this query came up on the chisholm genealogy site and i was wondering if anyone could help out as my knowledge of old scots law is practically non-existent

ive copy and pasted this to avoid dilution of the query

Help needed with a bit of olde Scots Law, regarding feuing conditons.

Dictionary Definition follows:
Absolute interests in land
This means that a person has unfettered ownership of property, the equivalent of a freehold in English land law. In Scotland historically until the abolition of the feudal system there were two distinct legal estates, superiority and feu. The estate of superior was unfettered, and therefore absolute. Under a feudal estate the actual owner (or "feuar") must not have breached the feuing conditions, but he was otherwise entitled to complete possession of his property for all time, and therefore his ownership is also regarded as absolute, subject to any statutory restrictions, eg planning.

I know there was an old feudal custom (or is that condition?) that on the occasion of a marriage, the feudal superior retained an option to have first matrimonial rights with the lucky lady. I vaguely recollect this element may have been played up in some Hollywood rendition of olde Scotland. Does any forum reader have any idea if this custom continued into the relatively recent times of the early 1600's.
I am just asking this query with reference to Walter XIV of that ilk. If one disregards the Mckenzie story about being a Royalist soldier captured at Preston in 1648, one can find a story more salacious in nature, in which young Walter incurs the great wrath of his feudal superior, Douglas of Drumlanrig. The story goes that Drumlanrig did not approve of Walters choice of woman, and fined him 5,000 merks, enough to cause the loss of the Chisholme Estate. Would anyone know if ancient feuing conditions also included the right of the Superior to approve the marriage partner of his "feuar"?

[Cygnus]

I know there was an old feudal custom (or is that condition?) that on the occasion of a marriage, the feudal superior retained an option to have first matrimonial rights with the lucky lady. I vaguely recollect this element may have been played up in some Hollywood rendition of olde Scotland. Does any forum reader have any idea if this custom continued into the relatively recent times of the early 1600's.

I think you're thinking of Braveheart - and, if I remember correctly, the idea of prima noctis was distinctly Roman. Of course, that's not to say that other feudal lords didn't take advantage of vassals from time to time, though I'm not sure it was as formal a practice or widespread enough to be called a tradition.

As far as I know, during feudal times, one's lord could do whatever he pleased so long as he didn't, himself, incur the wrath of his "betters" in doing so.

I'm no historian, though, so we'll leave the "official" answer up to those who know better!

[skauwt]

id like to point out that the query in bold wasn't worded by myself in anyway merely copy and pasted so im certainly not thinking braveheart

i think the person who initially came up with the query was wondering if rather than taking a lady like so many thought is it possible they took there so called rights in other forms e.g fines and taking over of lands

[gilmore]

The right of first night, while not entirely fiction, is close to it, though it does make a good story. While there was not a legal right to it, or to the determination of marriage partners, a feudal lord or laird could and sometimes did enforce his wishes through extra-legal means. Today we would call it sexual harassment.

[Cygnus]

Today we would call it sexual harassment.

That's putting it very mildly.

But that's getting into the dragon-infested part of the map.

I'm interested to hear about the fees and "land-taking" listed by the OP, since I have no historical information to back my assumption that a member of the "lordly" class could virtually do anything he (or occasionally she) could so long as it didn't step on the toes of the next person up in the pecking order.

[MacMillan of Rathdown]

*****

[MacMillan of Rathdown]

The dictionary definition is spot on, and clearly explains the relationship that exisited between the superior and and the feuar. However, what is missing is the charter (or in more modern terms the contract) that would have existed between the land "occupier" and his feudal superior. Usually this charter spelled out the financial, and sometimes personal, obligation that had to be met in order for the feuar to retain possession of the land. Failure to live up to this obligation could result in the occupier being dispossessed and the land reverting to the superior.

Looking at the facts as you have presented them (without the embellishments) it looks as if two events occurred that caused the loss of the estates-- being on the wrong side in 1648, and owing Drumlanrig a tidy sum of money. Precisely how the money actually came to be owed will probably never be known. It could have been as simple a situation as running up debts because of living well above one's means-- something a great many Scottish chiefs succumbed to. Or, it could have been borrowed to pay a fine and thus avoid a lengthy prison sentence for having been on the wrong side in 1648.

What I suspect may have happened is that the Chisholm Estates were forfeited and then purchased by Drumlanrig, with an embellished "Sir Walter Scott" version of the events added, perhaps, sometime in the 19th century.

Since land transactions were recorded in the Sassines, I'd suggest that a quick look there would perhaps shed a bit more light on the subject.

[cessna152towser]

As MoR rightly pointed out failure to live up to the obligations in the Feu Charter could result in the occupier being dispossessed and the land reverting to the superior.
This was the case in Scots Law until relatively recently. Indeed I had to deal with just such a case during my own legal career.
Feudal obligations more usually related to the required use of the land, for example as residential property or for the construction and continued operation of a school. These types of conditions have been replaced by conditions in title deeds which could be enforceable by neighbouring proprietors.
The obligation to pay financial dues has recently been abolished. Before that, since the nineteen seventies vassals had the right to buy out the superior's right to claim feuduty by paying a sum which if invested in government stocks would give the Superior the equivalent annual income. Obligations to supply goods to the superior (Casualties) were abolished early in the twentieth century. As far as I know the suggestion that the feudal superior retained an option to have first matrimonial rights with the vassal's new wife is apocryphal.
As MoR has said you could ascertain the circumstances under which the Chisholme lands passed to Drumlanrig by searching for the Feu Charter in the General Register of Sasines in Edinburgh.

[skauwt]

MacMillan of Rathdown and cessna152towser thankyou for your input in this subject both your views certainly make sense for the reasons as to why the land might`ve been forfeited

[Pleater]

The British army is perhaps one of the last remnants of the feudal system, and a serving soldier should ask his commanding officer for permission to marry.

It is not always done these days - but that soldier has gained himself an unfortunate notoriety by disregarding the usual requirements.

I suspect that the 'droit de seigneur' myth is a misinterpretation of the reward a girl might expect for herself and her family should she catch the eye of someone from the big house - either she being married, eventually, to someone of higher status in the community than she could ever have aspired to, or she returns home bringing money and valuables, garments and possibly horses too.

Some of the old ballads seem to point to this, particularly some which survive only as fragments where the main part of the plot is lost, just the 'and she came back with' part being the more memorable verses.

Anne the Pleater :ootd: