Feal & Divot II
Bill Long 1/12/06
Subsidiary Questions; a Grant of Feal & Divot; Thirlage
In Erskine' definition quoted at the end of the previous essay, we have a few issues that need further clarification. A distinction is made between heritors and parishioners, with the former picking up the tab for a grant of L 20 Scots yearly if no adequate pasture is found for the pastor's two cows or horse on the kirk lands. A heritor in the legal sense (a word only going back to 1597) is a proprietor of land or houses who is liable in payment of public burdens. I don't know exactly how it worked--i.e., which lands the heritor owned which made him liable to assume public burdens. But, in any case, it is not simply the responsiblity of the residents of the parish to support the kirk.
As we move to the next paragraph, quoted near the end of the previous essay, we see a number of other rights for the minister which are reminiscent of a statute passed under James VI before he became James I of England. From 1597 we have "That the saidis glebes (for ministers) be designed with freedome of foggage, pastourage, fewall, faill (feal), diffat (divot), loning, frie ischue and entrie. The OED defines foggage as "the pasturing of cattle on 'fog'; the privilege of doing this. Fog is attested, going back to the 13th century, as "the grass which springs up immediately after the hay-crop has been taken off, aftermath" or "the long grass left standing in the fields during winter."
We see that the minister also has the right of loaning. A loan in old Scottish law was a "lane" or "by-road," or "an open uncultivated piece of ground near a farmhouse or village, on which the cows are milked." A free loaning is a right of way. Thus the minister has the right to (pass along) the uncultivated and uncultivable lanes. Finally, he has a right to ish and entrie. We see the word "issue" in ish, and in fact it is synonymous with "issue" or "exit" or "right of exit." The 1861 version of Bell's Dictionary has a fuller explanation of the term: "The clause cum libero exitu et introitu ('with free ish and entry'), in the tenandas of a charter [i.e., the portion begining with the word "holding"], imports a right to all ways and passages, in so far as they may be necessary, to kirk and market, through the adjacent grounds of the granter."
A Grant of Feal and Divot
I managed to find in an early 19th century book of conveyancing in Scotland the following words which would be effective to grant a servitude of feal and divot. It provides:
"Have sold and disponed, as I hereby sell and dispone to, and in favour of the said___________, and his heirs and assigness whomsoever, for the benefit of the lands of __________, and for the accommodation of the tenants and possessors thereof, an heritable and irredeemable right of servitude and tolerance of casting fuel, feal, and divot, and of pasturing cattle on the muir of ___________, lying in the parish and shire of ___________, with roads to and from the said muir, and all privileges necessary for enjoying fully the said servitudes, which servitudes shall commence from and after the term of _____________.
Note it is the "casting" of fuel, feal and divot rather than the "gathering" of it. But then, I rushed to the OED, and saw that definition 1.d. of casting is "In ploughing, the method and operation of turning all the furrow-slices of a ridge in one direction, and those of the adjoining ridge in the opposite direction." An 1855 quotation from John Morton's Cyclopedia of Agriculture seems to suggest that the words gathering up and casting are similar. "The mysteris of 'gathering up,' 'rown and furrow' ploughing, 'casting,' 'yoking or coupling' ridges, etc..."
This and the previous essay have introduced us to some of the rights or servitudes enjoyed in common law England and Scotland. Our focus has been on the Scottish servitude of feal and divot, but the statute passed in the late 16th century also spoke of rights of ish and entrie, of loaning, of pasturage and of foggage. The English counterpart of feal and divot was a common of turbary, even though in the latter context the right seemed to attach to anyone who lived in the manor lands, while feal and divot was enjoyed by the possesssor of the dominant tenement in Scotland. And so England also had the commons of estover and piscary.
Let's close this essay with a bonus word--for those who have faithfully followed to the end of this exposition. From Bell's Dictionary, I discovered the following. There was at common law the falsing of dooms. It was equivalent to an appeal at law. The "doom" was the sentence of the lower court, and the "falsing" was the plan or attempt to prove the injustice of the sentence. Maybe next time I speak to one of my appellate judge friends or an appellate attorney acquaintance, I will look somberly at him/her and say, "Hm. At work on the falsing of dooms, eh?" I will probably come away from those encounters with fewer friends.
Copyright © 2004-2007 William R. Long