Sunday, 8 September 2013


A feu was simply a lease which lasted forever.

Feus also had different terminology from leases as noted in the grid below:-

I'm speaking about feus in the past tense because they were abolished in 2004. The feuar's ("tenant's") interest in the feu ("leased property") was converted to outright ownership ("freehold") and the superior's ("landlord's") interest (the superiority) was extinguished. Feudal abolition was an example of legal theory being brought into alignment with already existing practical reality as opposed to effecting any great social revolution.

Although there are earlier examples, feuing took off in the 15th century as a method of giving tenant farmers permanent security of tenure. In the paradigm case, a farmer holding a lease of his land for a finite number of years (or even just from year to year) would pay his landlord a capital sum - known as the grassum ("premium" in the modern language of leases) - for a feu of his land which would secure it to him and his heirs in perpetuity at the same annual rent (henceforth known as feuduty). The feuar (erstwhile "tenant") or any of his heirs could also sell ("assign" in the language of leasing) the feu to a stranger. Reflecting the practice of leases at the time, payments known as "casualties" equal to an extra year's feuduty (rent) were due to the superior (hitherto landlord) on the occasion of succession of an heir or sale of the feu to a stranger.

From modest beginnings in the 15th century, feuing really exploded in the 16th on the estates belonging to the Church. These accounted for between a third and a half (estimates vary) of the value of all land in Scotland. The Crown taxed the ecclesiastical estates heavily and the Church responded by feuing them to their tenants except that, to meet the cash demands, sometimes the grassum was higher than normal and the feuduty lower to disguise what was really in substance an outright sale of the land. The onset of the Reformation in the second half of the 16th century - when the clergy feared their estates being confiscated by Protestant noblemen - exacerbated the same trend. The net upshot was that, by the end of the 16th century, the ecclesiastical estates taken over by the Crown and the nobles had been almost entirely feued out. Inevitably, middlemen and speculators as well as humble tenant farmers had been involved in the process. The must read on this is an article by Margaret Sanderson called The Feuars of Kirklands  (I have a photocopy from Edinburgh Library if anyone's interested for private study) but the fact is the 16th century saw a major redistribution of landownership through the medium of feuing.

It's unfortunate with a view to understanding it properly that the terminology of "feuing" is muddled up with that of "feudalism". By the latter term, I'm referring to the system introduced into Scotland in the 12th century of lordships held by magnates from the Crown (or a superior lower down the feudal chain) in return for military service: these were known to lawyers as "ward-holdings" or, when the service to be rendered to the superior was a nominal token, "blench-holdings". It's simply that, when 15th century lawyers were looking for a mechanism for perpetual tenure by a farmer, they adopted the only model open to them, namely, the forms and procedures (charters, infeftments and sasine etc.) and some of the terminology ("superior") of ward and blench-holdings. But despite the superficial legal similarities, "feudalism" (ward and blench-holdings) and "feus" could not be more different in socio-economic terms: the former was a system of political administration, the paradigm ward/blench vassal a noble leader and local administrator whereas feuing was a commercial relationship, the paradigm feuar being a man of business. In fact, feudalism was rapidly breaking down in the later 16th century, being replaced by stronger central government financed by taxation. But tensions of transition remained: feuars might hold their land in perpetuity but were they really land owners? Were these jumped-up tenants really on a par with "freeholders", as the ward and blench vassals described themselves? The issue came to the fore in the late 16th century around issues of parliamentary representation and tax. Only feudal vassals of the Crown were entitled to elect members of parliament and only they were liable for taxes. Were the feuars on the Crown's estates (whose numbers expanded massively after 1587 when the Crown annexed the ecclesiastical estates) entitled to vote (No! cried the freeholders in unison) and/or were they liable to tax (Of course they are!)? It's a very complex subject on which the must read is Thomas Thomson's Memorial on Old Extent

Ward-holdings were abolished by the Tenures Abolition Act 1746 which converted those held directly from the Crown into blench-holdings for an annual payment of a penny Scots (a twelfth of a penny sterling) if asked (which needless to say it never was). Ward-holdings held from subject superiors were converted to feus for an annual feuduty to compensate the superior for the loss of the additional casualties peculiar to ward holdings (extra payments due to the superior when a minor inherited the estate and when the vassal married) to be fixed by the Court of Session failing agreement between the superior and vassal.

Feuing took on a dramatic new lease of life in the late 18th century in yet another new socio-economic context: the Industrial Revolution. When land was sold for the building of new houses or industrial premises as towns expanded, the plots tended to be feued for an annual feuduty rather than sold off outright for a lump sum price. In the context of housing, the owner of a suburban farm on the edge of an expanding city would typically commission a "feuing plan" showing a proposed street layout and how it was proposed to feu it out in lots for building tenement flats (for the working and lower middle classes) and/or detached villas (for the upper middle classes).

It was around the same time that there developed the feature of feuing which, after the significance of the annual feuduty had withered away due to inflation, would end up being its most enduring legacy: the real burden (burden for short). These were to feus what the conditions were to a lease. Thus, for example, a feu charter would stipulate that the feu was only to be used for one house (or as the case may be, a tenement of flats), to be used for residential purposes only with no business use. The point was to ensure that no feuar wrecked the value of the remainder of the superior's estate for sale for similarly douce purposes by opening on his feu a horse knackers or turkey red oil factory or some similarly noisome operation which, in these days, was almost wholly unregulated by the authorities.

Feuing plan of Pollokshields, 1849
In the late 19th and early 20th centuries, many big aristocratic country estates - I mean here those which didn't have potential for feuing for urban development - were broken up. This was a process I don't know much about (but would love to know more if anyone can point me to an accessible text) but I gather it was due to a combination of agricultural depression and death duties. What I do know, though, is that many farms were sold off to their tenants and this time round (compared with the 16th century), the farms were sold off outright for a lump sum price rather than being feued. But if a small site in the country was sold - for a church or a school or a cottage etc. - then these continued to tend to be feued well on into the 20th century.

Although I've described a feu as a type of lease, a big difference is that a feuduty can never be reviewed as the rent under a lease can. Thus, feuduties are vulnerable to being whittled away by inflation. Bearing in mind that the typical feuduty was either for a farm feued in the 16th century or the footprint of a building feued in the 19th, squaring the inflation timescales with the respective areas of land involved meant that, by the second half of the 20th century, it was rare to find a feuduty of more than £30-40 a year - in fact, single figures was the most common. This syndrome, coupled with the fact that feus had for long been seen as outright ownership anyway, led to the Land Tenure Reform (Scotland) Act 1974. This did not abolish feus but decreed that, whenever one was sold, its feuduty had to be redeemed by payment by the seller to the superior of a capital sum linked to the price of Government bonds. (The "feuduty redemption factor" used to be published on the financial pages of the Scotsman: in practice it was between 10 and 20 times the annual feuduty depending on prevailing interest rates.)     

The 1974 Act did not even prohibit the grant of new feus but it did prohibit the imposition of a feuduty in any feu granted after the Act. The intelligent reader will recoil at that: "What's the point of a feu (a type of lease) without a feuduty (rent)?" There is an answer to that but I don't want to get into it in this already over long blog. It relates to real burdens in feus. There are (contrary to popular belief) burdens in outright sales as well but they're slightly different from those in feus. Without getting into the detail, a burden is a bit easier to enforce if you're a feudal superior than an outright seller. That advantage was the only aspect of feuing which survived the 1974 Act. In all other respects post 1974, the grant of a feu was, in practice (if not in strict theory) an outright sale of outright ownership.

Pollokshields today
The Abolition of Feudal Tenure etc. (Scotland) Act 2000, which came into force in November 2004, brought the whole edifice finally to an end. Existing feuars became outright owners in theory as well as practice. The grant of new feus was prohibited. And to make sure feuing wasn't reintroduced through the back door under the guise of very long leases (and to maintain the distinction between ownership on the one hand and term limited occupation of land on the other) all future leases were limited to a maximum of 175 years. Any remaining feuduties (i.e. feus which hadn't been sold since 1974) were compulsorily redeemed. Some feudal real burdens which were on a par with burdens in outright sales would remain in place (he says, glossing over a massively complicated topic).

Incidentally, the reason why leasehold tenure is relatively rare in Scotland compared with England is because we had feuing instead.

Any bit of that anyone doesn't understand?
It remains just to give a brief retrospective of feuing. One the one hand, it's often praised as the system which delivered Edinburgh's New Town (a UNESCO World Heritage Site built c.1760-1830). I don't entirely buy that because English law, which never had feuing, managed to deliver the equally splendid Georgian terraces of Bath, also a WHS (I assume through long leaseholds although I don't know). But that bit of good publicity apart, feuing generally gets a bad press when viewed through the inevitable lens of hindsight. That's probably mostly due to it being hopelessly confused with "the feudal system" and all its negative connotations. It's true that feuing was tarnished in its last decades by the syndrome of superiors charging to waive burdens they had no real interest to retain due to having feued out their entire estate long ago since. But I think that most of the bad press comes from the fact that, looking back, it seems like madness to have leased valuable land in perpetuity for what look to us in the second decade of the 21st century as such small sums. And that inevitably leads to suspicions of incompetence or corruption, especially where the superior was "public sector" such as the Church, the Crown or a local authority.

But take a quarter acre site for a house on the edge of a Scottish town feued in the 1950s at the rate of around £60 per acre which was common then. It looks preposterous to modern eyes but that's equivalent to an annual rent of about £1,400 an acre in today's money. Compare that with the highest rent for the best acre of agricultural land which would have been about £3-£4 an acre in the 1950s or about £100 today. That makes feuing green field sites for housing look very attractive and arguably positively negligent for any landowner (public or private) not to have indulged in it. There was a time (early-mid 20th cent.) when institutional investors like insurance companies and pension funds bought superiorities for the income stream from feuduties.

You also need to have a historic perspective on inflation. According to the Bank of England inflation calculator, inflation averaged 6.7% during the 40 years from 1960 to 2000. Contrast that with the 200 years of the heyday of feuing - 1760-1960 - when inflation averaged only 1%. I'm always a little hesitant about bandying statistics around so I'll conclude with a more human interest insight - I remember my father saying he preferred, in the 1950s, to buy a Wimpey house rather than a MacTaggart & Mickel one because M&M houses had a low price but an ongoing feuduty whereas Wimpeys had a higher upfront price but a purely nominal feuduty ongoing. (I can't swear it wasn't the other way round but you take my point.)

Nice houses, shame about the feuduty.