feal and divot and cups and lavers and loaning and pasturage and ish and entry

I love double words: elephant & castle, vat & tonsure, bed & board, house & home, bed & breakfast and so many others. One that you no doubt have never heard of is "feal and divot." This was a right in English law, technically called a servitude, in which a person could collect "feals and divots" from a servient tenement for his own use. In the rich days of the 21st century we have trouble understanding how some common law rights, such as the common of estover (a common law right granting a tenant of property a liberty of taking necessary wood or branches for repair of his house or fences; Bracton has it as the necessary maintenance for an imprisoned felon) would ever have been important to people. But, people by and large were not rich in Merry Olde England, and a right to pasture or collect the money from pasturing pigs (pannage), right to collect wood (estover), or a right to gather acorns (mast) and other like rights were far from insignificant. The right of "feal and divot" was one such right.

Defining Feal and Divot

Though not a golfer, I had heard of the term divot when I first came upon this double term in Bell's early 19th century dictionary of Scottish law. A divot to a golf aficionado is "a piece of turf cut out with a club by a player in making a stroke." But, in older times it was the purpose to which the slice of earth was put that was important. In this older meaning a divot is "a slice of earth with the grass growing on it, a turf, a sod, such as are used in the north for roofing cottages, forming the edges of thatched roofs.." Feal, known in the OED as fail, is synonymous with divot: it is "a turf, a flat clod covered with grass cut off from the rest of the sward." So, the right of feal (fail) and divot has to do with removing this material from the land and putting it on your roof. I will give two quotations concerning it, both from the early 19th century. Bell says:

Feal and Divot. This is a servitude which consists in the right of turning up feals or divots from the surface of the servient tenement, and using them for thatching houses, or for other purposes within the dominant tenement. This servitude may be constituted by express grant, or by use following on the general expression of parts and pertinents; but it is held to be a lesser servitude than that of pasturage, and the right of pasturage does not include the right of feal and divot; they are separate servitudes altogether," A Dictionary of the Law of Scotland, vol 1, p. 299.

In his 1802 book The Principles of the law of Scotland: in the order of Sir George Mackenzie's Institutions of that law, John Erksine repeats much of this definition, though he mentions that feal and divot is one of the two "predial" servitudes the Scots have which were foreign to the Romans. A "predial" servitude is one "consisting of or pertaining to land or farms." It is "real" or "landed," pertaining to "the country," and is derived from the Latin praedium, meaning "farm" or "estate." The other such servitude, which I will mention in a future essay, is thirlage. Erskine talks about the right as "that of feuel or feal and divot," and defines it as the right by which the owner of the dominant tenement may turn up "peats, turfs, feals, or divots from the ground of the servient and carry them off either for feuel, or thatch or the other uses of his own tenement. If such a person has not asserted this lesser right, even though he has the right of pasturage, he may well be excluded from "casting feal," as the right was called. The English equivalent was the common of turbary (turbary=peat or turf), though this envisioned a right of the people to use common land of the manor to bring fuel or turf to their homes, while feal and divot in Scottish law seemed to be confined to the one controlling the dominant tenement.

The Clergy and Feal and Divot

You must have thought some clergy in America had great benefits. but here is what they got in Scotland in Erskine's time, about two centuries ago. Erskine says, in the work noted above,

"Ministers, besides their glebe [i.e., special portion of land assigned to them] were entitled to grass for a horse and two cows by [the law of] 1649, ch. 45 which is revived by 1663, ch. 21. And if the kirk-lands, out of which the grass may be designed, either lie at a distance, or are not fit for pasture, the heritors are to pay the minister L 20 Scots yearly, as an equivalent.

Now we come to feal and divot.

"Ministers also have freedom of foggage, pasturage, fuel, feal, divot, loaning, and free ish and entry, according to use and want, 1593, ch. 165; 1663, ch. 21. What these privileges are, must be determined by the local custom of the several parishes. Besides the above-mentioned burdens which are imposed upon heritors, the parishioners were obliged to provide communion cups and lavers, 1617, ch. 6 and to repair the kirk and kirkyard dykes, 1572, ch. 54; 1597, ch. 232; but these burdens are now, for the most part, undertaken by the heritors.

Conclusion

Before moving along further on feal and divot, then, we need to stop and walk through some terms in the last two paragraphs. The next essay will do so.

1662