Feu Duties, and Dereliction

A Norman knight, like Walterus le Brun

I am a person of place; what in Scots we call a hamebodie. My place is between the granite and the sea, between Bengairn and Heston Island. My home is a matter of great importance to me. In 2010 I went mad, and, as one of the consequences of going mad, lost my house; and the darkest days in my life were when I realised that, with the money I had left, and given my age and my very unreliable mental health, I'd never again be able to afford a house between the blue line of the granite and the grey line of the sea.

Being mad is in some sense liberating. When you know that the balance of your mind is disturbed, when you know that your judgement is not to be relied on, when you know that any decision you take make may be bad, you can give yourself permission to make risky decisions; and when you're suicidal anyway, the consequences of any decision you make turning out to be really, really bad cannot make things worse.

So I bought a field and a little bit of wood, without planning permission, and built what a dispassionate observer might describe as 'a hut' or 'a shack'. For me it's home; somewhere I'm safe, on land which I own and on which I owe no debts. But I understand well that for many people - perhaps not for everyone - being forcibly driven from their home is perhaps the worst psychological injury they can face.

In the world now many people are being forcibly driven from their homes, most notably in Syria and the Levant; waves of refugees fleeing to hoped-for safety in Europe are testimony to this. It makes me proud that Scotland is eager to welcome some of these people, to offer them new homes in which they can be safe.

But the reason I'm writing this essay today is that in just one week from now, three more families will be driven from their homes, not in far-off Syria but here in Scotland; driven out of their homes onto the streets, literally as refugees. They are being driven out because their local laird has quite arbitrarily decided they should go. The laws of Scotland were not meant to allow this; the Agricultural Holdings (Scotland) Act 2003 was crafted quite specifically to prevent this.

That was the law, democratically agreed only twelve years ago by the democratic will of the politicians democratically elected by the polity of Scotland.

But the unelected UK Supreme Court overruled this. The rights of a landowner arbitrarily to do as he pleased with his land overrode, in their opinion, a tenant farmer's right to home and livelihood. In doing so, they sentenced the farmer in the case, Andrew Riddell, to death, since he shot himself rather than leave the home where his family had lived for over a hundred years.

Law is, at best, a lagging indicator of social consensus. At worst, it's a means for people with privilege to protect the privilege of privileged people from the seething mass of the great unwashed. Politician-made law, democratic law, at its best, tends to the first of those positions. Judge-made law - for judges are drawn systematically from the privileged classes - tends towards the second.

Andrew Riddell is dead, and his family home is lost. Andrew Stoddart's isn't - yet. He's still fighting - for his home, for his family's home, for his workers and their families' homes. Like Andrew Riddell before him, Andrew Stoddart says he's not leaving. The law of Scotland, though, as bowdlerised and mangled by the UK Supreme Court, says that he is. And his laird says he's leaving in a week from now, on the 28th November.

On the streets. In winter. In Scotland.

Is our Scotland - our Scotland that is this week welcoming a thousand Syrian refugees into their new homes - going to allow this?

The UK Supreme Court's ruling is that the laird's right to property in the land overrides the tenant's right to a secure home. But on what basis can the laird claim to have a right of property at all? Land, in Scotland at least, is not man made. We may claim of an invention or of a work of art that I made this, therefore it is mine, but we cannot claim that of land.

Nor can we claim - for any inch of Scotland - that we were the first settlers, or that it has passed peaceably from parent to child down the ages from the first settlers. All of Scotland's land has been fought over, seized, stolen, not once but many times over the past seven thousand years.

But the lairds of Colstoun's claim to ownership it particularly easy to trace; they could, in fact, be poster-boys for Scotland's lairds. Because Colstoun has been owned by the same family for nine hundred years. How did they come by it? One Walterus le Brun, described as 'a mercenary' from France, was given the land by King Alexander I.

What the medieval Kings of Scotland were doing when they gave tracts of land to tough, competent, well armed mercenaries wasn't just generosity and open handedness. There was an explicit contract on which the whole feudal system was based. The King, as the personification of the state, provided the land, and the lairds in return provided local justice, civil administration, civil order, and defence of the realm. The same contract which gives the descendants of Walterus le Brun the power to throw Andrew Stoddart and his employees and their families out onto the street also requires them to meet the full cost of running East Lothian council and Haddington Police station out of their own pockets, and to provide one fully eqipped and crewed fighter bomber for the Royal Air Force.

The other thing to be said about the feudal system under which the le Brun family were granted the lands at Costoun is that it was recursive. The tenants held their lands under exactly the same legal basis as the Lairds held theirs: as vassals to their feudal superior, in return for services rendered, and subject to - sometimes very abrupt - termination if those services weren't provided. Neither laird nor tenant held the land as inalienable property. The modern notion of property was never part of the bargain.

But what's happened over the intervening nine hundred years is that we've socialised the duties under the feudal contract - the ordinary folk of Scotland now pay for justice. civil order, civil administation and defence of the realm out of our own taxes - but privatised the benefits: we've left the aristocracy with the rewards. Worse, we've allowed them through a process of legal alchemy to transmute those feudal grants into property rights. The rents of the estate of Colstoun are now essentially a synecure, a monopoly guaranteed by the state in return for no service at all; and thus the lairds of Colstoun have lived fat off the labour of more honest folk for at least the last five hundred years and given nothing back for it.

That simply isn't tolerable.

There's another thing to be said here. In Scotland, good arable land is valuable; even good pasture is valuable. But rough grazing, willow carr, houghland, mire is much less valuable. In Scotland, good arable land doesn't just happen; it isn't just handed down by a benevolent God on a plate. Good arable land is made, by draining, by the laborious and back breaking work of stone picking, by the addition of organic matter, by fencing and hedge-laying and dyke building.

That work hasn't been done by the lairds and it hasn't been paid for by the lairds. But - especially at Colstoun - over generations lairds have encouraged tenants to invest their all into improvement of the land, and then turned those tenants off to relet the improved land to a new tenant at a higher rental.

The lairds have lived rich not only off the tenants labour, not only off the rents, but off the tenant's capital investment.

That isn't tolerable either.

It's not new that it isn't tolerable. It wasn't tolerable in the eighteenth century, when the levellers tumbled the dykes of the lairds' new enclosures. It's never been tolerable. But now, when we are in the early days of building a better nation in Scotland, it's more than ever intolerable.

We need to look again - and much more closely - at what we understand by ownership of land in Scotland. We need to look at the heritability of ownership. We need to look at the limitations to ownership. Because we cannot build a better nation in a land where some people have, by right simply of birth, vast privilege unavailable to the rest of their fellow citizens.

But most of all, we need to look at the duties consequent on ownership. The state guarantees to land owners a monopoly on the right to use and manage a piece of land, guarantees that others will not seize that land off them by force. What duties does the landowner owe back to the state as their side of that bargain?

Walterus Le Brun's descendents still live in the Big Hoose of Colstoun. Nevertheless, it's perfectly clear that for several hundred years at least, the lairds of Colstoun have not been fulfilling their part of the bargain under which the lands of Colstoun were granted to them. They were never given property of the lands in the modern sense; rather, they were granted a vassalage from the state in return for services to be rendered.

Now, how Alexander the Fierce would have dealt with dereliction by a vassal of their feudal duties is a matter of conjecture, but given his nominative epithet my conjecture is that he would have been bloody, bold and resolute. Times have changed: I'm not proposing that the lairds of Colstoun should be deprived of their lives, their heads or even their home, no matter how desirable it might be pour encourager les autres. They have as much right to a secure home as anyone else; I'm not proposing that they should be driven out of it, any more than I think we should allow them to drive Andrew Stoddart out of his.

But the lands are another matter. The lands were granted in return for services to be rendered. Those services are no longer being rendered, therefore the contract is void, therefore the land isn't theirs, therefore they have no power to evict Andrew Stoddart (nor, incidentally, to levy rents, so they may owe him twenty years of rent back).

And just as the state could, nine hundred years ago under Alaxandair mac Maíl Coluim, grant the lands of Colstoun to Walterus le Brun in return for services to be rendered, so the state can now, under Nicola Sturgeon, revoke that grant on the grounds that his descendents are in default on their obligations under the grant.