Such was the legal process, during the earlier portion of David’s reign, for settling the numerous cases of disputed boundaries, which, by the same king’s subsequent regulations, were decided by the “perambulation” of the “good men and true” of the neighbourhood, and in the presence of the royalMissi, or other notabilities, appointed as “unlying witnesses” of the proceeding. There is no trace at this period of the Vicecomes in Fifeshire, though he existed in other quarters beyond the Forth; nor of the “Jugement del Pais,” by which the arbiters chosen in publicMootwere replaced by the good men and true of the country, appointed by the royal official. As the division of power, so remarkable amongst the Gauls in the days of Cæsar, was still traceable in the delegation of authority to two officials, so the restriction of all judicial functions to the Druids would almost appear to have survived, in a certain sense, in the limitation of similar functions to their representatives, the Cynghellwrs, Brehons, or Deempsters. Thus theHerebanlevied during the reign of the secondAlexander upon all who failed to attend theHostingagainst Donald Mac Niel, was settled at Perth, on the second Thursday in Lent, “by all the Judges ofScotia;” condemnation was pronounced against Gillescop Mahohegan on “the Tuesday before St. Denis” at Edinburgh, “by all the united Judges of Galloway and Scotland;” the “Judges of Galloway” assessed the fine for a breach of the king’s peace; and when the king crossed the borders of a province in his great circuit, all the Judges of the district were still bound, in the reign of William, to be in attendance upon the royal court until it reached the frontiers of another province. Pure blood and property qualified the Teuton to be chosen as aScabinus, but the Celtic Judge seems to have been selected from a family ofBrehons.[313]
It was probably, then, upon a system acknowledging the usual Ordeals of water and iron, the Wager of battle, and Compurgation “by oath sworn on the altar, according to the custom of Scotland,” and in which justice was generally administered by the district, provincial, or royal judge, whether inheriting his office, nominated by the crown, or chosen as arbiter in the publicMoot, that David introduced the “Jugement del Pais” orVisnet; which must have, ere long, replaced the judgment of the earlier Brehon, or Deempster, by the verdict of “the good men of the country,” or the leading proprietary of the neighbourhood. Henceforth judgment was to be given by “the free-tenants, suitors of the Court,” sentence only being pronounced according to their verdict by the Judge, Sheriff, Alderman, or Bailiff, who was bound to leave the Court during their deliberation; and in process of time, the representative ofthe ancient president of the Gaelic Court of justice sunk so low, that the holder of the office of Deempster, which had long been shifted upon the lowest official of the law, no longer appeared at all in Court, except to pronounce that sentence of death which he himself was bound to execute—he was theHangman. Every man, whether Earl, Baron, Vavassor, or Burgess, was entitled to be tried by his Peers, though one of lesser standing might be judged by the verdict of his superiors. Damages, or the amount of injuries sustained, were to be assessed by men of credit—fide-digni, the “unlying witnesses” of Athelstan’s Laws; and in challenge of battle, the sum deposited was to be estimated, not according to the claim of the challenger, but by “the assize of the good country,” the “body of the defender” being reckoned as one-third of the amount; whilst if a man accused of theft could prove, to the satisfaction of a similar jury, that the complainant had never possessed as much property as he charged the accused with stealing, the latter was to be at once acquitted by their verdict. Jurisdiction in the four greater causes known as “the Crown-pleas”—murder, rape, robbery, and fire-raising—was removed from the lesser Courts, no Alderman or Baron’s Bailiff being permitted to try such cases unless by special mandate of the Justiciary or “his attorney;” and it was ordered, that in every county a royalMootwas to be held “within forty days,” or six week’s after the issue of the king’s writ, which was to be attended by the Bishop, the Earl, the Vicecomes, and by every free proprietor who was “Lord of a Vill.” All direct appeals to the king were prohibited, except in cases connected with the Crown-pleas, or where the officials in a lesser Court had failed to do their duty; and if the last law, ascribedto David, is not misplaced, all questions connected with property and inheritance were to be referred to the decision of “the assize of the good country.” The heir, no longer chosen according to the Law of Tanistry, by the kindred, was to be declared successor by the voice of “the good men of the neighbourhood;” whilst the claimant of property held by another—he who urged that he had been unjustlydisseised—was not to support his claim by an appeal to the sword, but to submit it to the verdict of a similar jury.[314]The older system, however, appears to have been reluctantly abandoned, or at any rate to have died out very gradually; and in Galloway, which, after its closer union with the rest of Scotland, retained its peculiar code until the days of the first Edward and Robert Bruce, the was the exception and not the rule, none being judged according to its provisions except they refused the older law, and claimedVisnet. The Ordeal, the Wager of battle, and the Wager of Law, long held their ground side by side with the Verdict of the “good men andtrue,” for most of the ordinary trials of “Common Pleas;” and it seems doubtful even if in other quarters besides Galloway it were not open to the contending parties, at a much later period, to choose between the “Jugement del Pais,” and the misnamed “Judgment of God.”[315]
Another of the innovations upon “ancient custom,” traceable apparently to the reigns of Alexander and David, though more particularly to the reign of the latter king, was the introduction of the written charter as the necessary evidence of the right to freehold property. It was long before any of the northern nations attached importance to the written documents, which were at the basis of the whole system of free rights, or property, held by Roman law. He who was freed “by tablet” ranked merely as a Roman citizen, reckoned at half the value of the man freed in open Court “by casting thedenarius;” and when the horn of the Graphio summoned theVoisinagearound the body of the murdered man, or when the suspended shield of the Centenarius marked the spot where theMallwas to be held, the parchmentwritwould have been unheeded by the Frank living by Salic Law, or despised as an unmeaning formula ofthe Roman. Liability was transferred, or responsibility was shifted, by casting a small stick into the lap, or by throwing a handful of earth, in openMall, or before witnesses; and allodial right was aloneacquired by undisputed possession for a term of years, or by descent. The earliest application of the Roman principle appears in the royal grant equivalent to the Franc-Alleu-noble—the permanent alienation of a certain portion of the Fiscal or Folk-land, in which, by ancient custom, the king, or the community, held a life interest alone: a similar process, some centuries later, converting the Benefice into the hereditary Feud, held by written charter. The royal grant ofBoclandhad long been familiar to the Anglo-Saxons as the sole known form of permanent property; but the Benefice, rather than the chartered Feud, was its equivalent amongst the Normans in the earlier part of the eleventh century; and when they adopted the Charter after the Conquest, it was always in the old Anglo-Saxon form, which can scarcely be supposed to have been brought from the Continental Duchy; and it was accordingly in this form that it penetrated subsequently into Scotland.[316]
It is only from indirect evidence that it can be gathered that the Charter became necessary, to prove the existence of freehold right, from the time of David. The charters ascribed to Duncan II., and Edgar, were connected with the Saxon Church of Durham.They were attested, apparently, by witnesses of Saxon, or Danish, descent, connected probably with the diocese—Ligulf of Bamborough, for example—and drawn up by Saxon monks after the manner of their own country; so that they afford no proof whatever of the existence, or the necessity, of public, much less of private, documents of this description beyond the Forth at the opening of the twelfth century; and when Alexander restored to the Church the lands which had lapsed to the kings of Scotland, as hereditary abbots of St. Andrews, the re-grant was completed with all the studied ceremonial and display of “ancient custom.”[317]A different course, indeed, was adopted at Scone; when, for the first time, perhaps, was displayed the unwonted spectacle of six Gaelic Mormaors affixing crosses to the signatures, which some clerkly scribe had attached to a written document,confirming a munificent donation of lands and privileges to the royal foundation: but no private charters can be traced to an earlier date than the reign of David, who appears to have first introduced them into his principality of Scottish Cumbria. No law or enactment of any description has been left on the subject; but a statute of William, by which all who were found guilty of forging a royal charter were to be placed “at the king’s mercy”—the forgery of a similar grant from a subject being also punishable, but as a minor offence—affords the surest evidence of the necessity of a charter, at that period, in proof of freehold rights.[318]The habit of forging such evidence must have arisen out of the necessity of a written title-deed, a similar necessity accounting for the multiplicity of such forgeries in southern Britain; where a legend was occasionally framed for a similar purpose, or a saint appeared in a vision to afford miraculous, but suspicious, testimony about the extent and privileges of his ancient patrimony. Henceforth the Charter marked the Freeholder, or the member of the Community of the Realm; and whilst in southern Britain knight-service was the test of gentle birth, the holder by free socage, and the Kentish Gaveller, being only classed amongst the yeomanry, in Scotland a similar test was afforded by the Charter; and in the reign of Alexander II., all who were knights, sons of knights, or holders of any portion of a knight’s fee, and all who held their lands by free service, or by “fie-de-hauberc,” hereditarily and by charter, ranked, with their sons, as men of free and gentle birth, who could appear in the lists by their champion; the churl-born tenant of land, the man of ignoble birth, and all who had neither free tenement,nor free parentage, being bound to appear in person. It was from the former class that the “good men and true” were chosen to perform the duties of theVoisinage, and before the middle of the thirteenth century none could be sworn to hold inquest touching “the life or limbs of a land orgrassholding man,” except, “good men and true, freeholders by charter.”[319]
It can scarcely, then, be doubted that David was the originator of that important change by which a fixed title to land was acquired, produceable when necessary in proof of ownership—a change which, in connection with the formal perambulation of boundaries, in the presence of “the good men and true,” must have done much to put a stop to those constant disputes about proprietorship, which had hitherto been settled by the sword. David is often represented, in modern times, as the exterminator of his fellow-countrymen, granting their lands to foreigners, and driving out the native Scottish race, or enslaving them beneath the yoke of alien masters—a course that could have hardly earned the character ascribed to him by his friend and biographer Ailred, “he was beloved by his own people the Scots, and feared by the men of Galloway.” It would be nearer the truth, perhaps, to describe him as the great confirmer of proprietary right throughout the settled portion of his kingdom; and it still seems possible to point out the method which was adopted to carry out his purpose. By a law of a much later period it was decided that the freeholder was not bound to produce his charter tohis overlord more than once, after which it was to be returned to him immediately. It may be gathered, from this regulation, that there were occasions on which the land-holder might be required to prove his title to ownership; and the kings of Scotland, at a later period, are sometimes found amongst the Western Highlands demanding charters, and confiscating the property, or rather the freehold rights, of all who could not produce the necessary title-deed. Thus, at the opening of the fourteenth century, every Vicecomes was commanded to attend “our council,” with the other magnates of the realm, and to warn his bailies, amongst other duties, “to summon all who have, without license, entered upon lands alienated after the death of our predecessor Alexander, to show their right to do so”—a right which could only be proved by a written document. How such a title was originally acquired may be gathered from the example of Eogan, Thane of Rothenec, who appeared at Inverness on the Monday before St. Andrew’s Day, in the year 1262, and in the presence of the Bishop of Ross, the Justiciary of Scotland, and the Sheriff of Elgin, proved to the satisfaction of the good men and true of the neighbourhood, that the lands of Mefth, with a house in Elgin Castle, which had been given by William to Yothre Mac Gillies, had been held uninterruptedly by Eogan and Angus, son and grandson of the first recipient of the grant; passing from the last-named Angus to his son Eogan, the actual Thane of Rothenec, who was thus the fourth in descent from the original holder. The written and attested verdict of the good men and true, formed, from this time forward, the chartered title-deed of the lands of Mefth; and it may be conjectured that, at the first introduction of the Charter,all who claimed the right of freehold proprietorship were bound to attend the royalMoot, and prove to the satisfaction of the good men and true, the necessary qualification of three descents of ownership. He who was thus qualified could claim a charter as his title from the king, earl, thane, or ecclesiastical superior, of whom he held his lands; whilst in the case of all who failed in proving the necessary qualification, it would remain in the power of their overlord, either to confirm their proprietorship by the wished-for title, or to enter upon the land as lapsed “demesne.”[320]
From this period two classes of Freeholders, besides the Earls and greater Barons, may be traced in Scotland, who may be compared to the Vavassors or Mesné tenants of the corresponding era in Southern Britain; the holders by knight-service, who grew into theLairds, or lesser Barons, of a later age; and the holders by Scottish service, who were, with few exceptions, confined to the northward of the Forth.[321]The latter were the Thanes, who, on the occasion of the festivities at York in 1251, when Paris notices the presence of more than sixty Scottish knights, were also in attendance upon their youthful sovereign, at least in equal numbers.[322]The lowest amongst theFreeholders appears to have been the proprietor of half a plough-land—the eighth part of aDavochor of aFief de Hauberk—containing fifty-two Scottish acres; the holder of that amount of land, by free service, and by charter, answering to the proprietor of the Half-holding, wherever the Imperial Law of the Benefice was acknowledged, who, though widely changed in character, is still known in the United Kingdom as “the forty shilling freeholder.” The Quarter-holding of twoox-gangs, or twenty-six Scottish acres, answering to the Anglo-SaxonVirgateor quarter-hyde, and known in many parts of Scotland as theHusband-land, gave no pretensions originally to freehold rights.[323]Scottish service was probably most popular in early times with the native Scots, for it accorded best with their custom of planting the junior branches of the family upon the land, liable to rent, as well as to general military service—a system which may have also had its attractions in the eyes of the greater Barons, who held their own lands by knight-service of the Crown—but it died out gradually in the more settled portions of the kingdom; and, in the case of certain well-known families, the charters can still be produced by which the ancestral Thanedom was converted into a Barony. The earlier system was traceable in the Highlands as late as the opening of the seventeenth century, when the proprietors were divided into Lords, Lairds—greater and lesser Barons—and royal Bailies of lands, the latter holding in fee-farm, and answering to the Thanes of an earlier period.[324]The patronymic, as distinguished from the surname, still lingered in the same quarter, where theTighernwas known for his descent, ratherthan from his property, though the custom was even then fast giving way; and at the present time, in no part of the United Kingdom is the territorial appellation so generally used as in the Scottish Highlands, where “the Laird” is often better known by the name of his property than by his own surname. A similar change had been in progress in ancientScotialong before it penetrated to the wilds ofMoraviaand Argyle; and after the introduction of the charter, when the privileges of free and gentle birth, hitherto attached to a certain degree of relationship to a thane, were transferred to the chartered freehold, the freeholder, whether of native or foreign origin, gradually became known from his barony or freehold; and as none but the greater Norman barons were distinguished, as at present, by a separate surname, the property itself supplied a designation for its owner. Thus by degrees the whole of the freehold proprietary, without distinction of race, relinquishing the shifting patronymic which had hitherto belonged as much to the Saxon and the Northman as to the Gael, adopted surnames from those chartered properties, which ensured to them the privileges of free and gentle birth, which had formerly attached to descent.[325]
If David may be looked upon as the regulator of the “Two Estates,”—the Clergy, and the Baronage and Freeholders connected with the land,—he may be regarded as the founder of the “Third Estate” in Scotland, the actual creator of the free populationconnected with the towns. An intramural population was an anomaly amongst the people of the North, and in their older codes no provision was made for a free proprietary dwelling in towns, land, and land only, being connected with freedom and hereditary right. It is only in the old Burgundian code that the craftsman connected with the city is mentioned, and he was placed by the regulations of Gundobald upon a servile footing. It scarcely admits of a doubt, indeed, that a civic population, for which no provision was made in any Germanic code, must have lived, whether free or servile, by Roman law, retaining probably their original institutions, after they survived the first fury of the storm, without much interference from their conquerors; nor would the privileges subsequently belonging to free towns have been of much moment, had there not been a time when all such communities were neither free nor privileged. Britain, however, was peculiarly situated, no Roman population remaining to preserve the civilized institutions of imperial despotism, side by side with the rude, but free, traditions of their Anglo-Saxon conquerors—most fortunately for the liberties of England—and as no regulations for a free civic proprietary are traceable in the earlier Anglo-Saxon laws, it may be doubted whether any such proprietary existed. The shattered remnants of the old Roman cities of the island became the property of the owners of the district in which they were situated—petty kings and Ealdormen originally, like Hrofa and Cissa, who gave their names to Hrofa’sceasterand Cissa’sceaster,RochesterandChichester; and latterly the sovereign of one of the greater states, or the nobleman to whom he entrusted the district—the population remaining probably on aLœticor dependant footing, theTeutonic element entering very little into its composition in early times. The Britishtown, according to Cæsar, was a portion of the forest separated from the rest by a bank and ditch, the Briton in time of danger securing his cattle and family within the precincts of this “circumvallation;” and as amongst several of the Germanic tribes the same wordWicmeanta grove,a temple, anda town, it may be surmised that the originalWickwas a portion of the forest similarly encircled with a bank and ditch, and used as a temple for the gods, and a place of security in times of danger, instead of the caves which, in the days of Tacitus, appear to have been used, for places of concealment rather than for defence. London-wicand other British towns may have occasionally supplied the place of such earlier and ruder “places of strength,” the resident population remaining on a dependant footing, and the freeholders of the vicinity not habitually dwelling within the walls, but sheltering themselves behind them in times of danger; for theTunof the Gesithcundman was scarcely capable of defence, and the Ceorl’sHedgewas only calculated to keep out cattle. Such seems to have been the case at the time of the Danish wars, when the walls were seldom of a more formidable construction than a strong wooden palisade, and were easily broken through at the great battle of York. As soon as he had saved the monarchy, Alfred directed his attention, as much to remedying this defect, as to reviving letters amongst his subjects, or building ships to protect the coast, constantly impressing the necessity of buildingBurhsupon his Reeves and Ealdormen, and providing skilled artificers—a sure test of the ignorance of such arts amongst his own people—to carry out his projects. London-wic,plundered and ruined by the Danes, arose from its ashes as London-burh, and was made over—gesetor let—by Alfred to his daughter’s husband, the Mercian Ealdorman. The history of the next reign, after Edward was once securely seated on his throne, is one continual record of the progress ofBurh-building andHlaford-socn—or Commendation—theBurh-bote, a permanent obligation attached to all property held of the crown, whether church-land or thegn-land, binding the churchman or thegn to keep in repair theBurhwith which his land was connected, such associations being entered into for defence, not for trade; and it would be a grave error to mistake the Anglo-Danish confederacy of “the Five Burghs,” or the men of London-Burgh in the days of Athelstane—theBurh-Thegnsas they are often called—whose Bishops and Reeves were bound to keep the peace, as ordered by the king and his Witan, for mercantile or trading communities. The rules laid down by the London Reeves and Bishops at this period will be found to relate to tracing stolen cattle, and keeping their “Hirdmen” in order; but it is vain to look for the regulations about trades and craftsmen, which will be found invariably in later Burghal laws.[326]
Amongst the innovations introduced by the Normans, it may be read in the Saxon Chronicle how “they wrought castles throughout the land,” novelties to the people of the country, who seem to have retained much of that old Germanic aversion to castles which is traceable in the Frison law against building stone walls above a certain height; and accordingly from this time the Scots no longer swept the country in their invasions to the gates of Durham, but were stopped at Werk, Norham, and other feudal strongholds which they were obliged to invest, or ifthey advanced further into the country, to blockade. The royal castle was now attached to the royal burgh, and its garrison provided by the knights who held their lands by the tenure of castle-guard; the neighbouring gentry probably, differing little from the thegns who in earlier times had been bound to keep the burgh in repair. The name of Burgher henceforth undoubtedly belonged only to the actual possessors of property within the walls, the bulk of whom had probably from the earliest period of their location within burgh formed the commercial part—the Twyhyndmen, as the Upland thegns were the Twelfhyndmen—of the community. It was the Anglo-Norman Burgh, with its feudal castle, and its civic population distinct and separate from the garrison, which was the model of the burghs established, or confirmed, by David beyond the Tweed. It may be doubted whether any free communities engaged in commerce, and occupying walled towns, were in existence much before this reign even in the Lothians, though the germs of such societies may have existed at Scone, Edinburgh, Stirling, and other places, which were of a certain importance at that early period. Had there been burghs or walled towns in any part of Saxon Northumbria before the close of the eleventh century, the invading Scots would have surely been checked before they reached the gates of Durham; the unopposed incursion of the Second Constantine as far as the Tees marking apparently the non-existence, in that quarter, of any walled town in the middle of the tenth century, capable of arresting the progress of a hostile force. As the sees of Glasgow and St. Andrews may be regarded as the models left by David for the regulation of the other Scottish bishoprics, so theHanseor community of the Four Burghs ofRoxburgh, Berwick, Edinburgh, and Stirling, was the leading commercial association of the same reign, all other burghs as they grew into existence conforming to its rules and ordinances; and as theHansewas composed of four burghs, so each Burgh seems to have been originally divided into four Wards—in strict accordance with the theory which divided in a similar way the great rural association of the shire into four quarters. Over every Ward was placed a Bailie, a type of the rural “Mair of the Quarter,” and sometimes known, like the President of the Frison Quarter, as theFerthyngman; the leading personage being the Burgh-Reeve, or Provost, annually chosen, with the Bailies and Bedells, by the community of the Burghers in the first Burgh-Moot held after Michaelmas.[327]Complete self-government, indeed, was conferred, from the outset, upon the Scottish Burghersby a sovereign who was desirous of attracting such a class to his kingdom; and the enlightened policy of David, together with the state of peace and prosperity which he secured for the whole of the North of England, as well as for the settled portion of his own kingdom, soon filled the walled towns, which rapidly sprung up on every side, with a crowd of willing settlers from Southern Britain and Flanders, who were guaranteed the enjoyment of even more than the usual freedom and privileges under the royal protection. They were to be judged by their own chosen magistrates, by “the verdict of their peers”—a privilege shared, indeed, with every Scottish freeholder—and according to the laws and assize of the Burgh, sanctioned by the community, and regulated by the Provost and twelve leading men. As in the case of the Baron’s Court, the crown pleas were withdrawn from the jurisdiction of the Provost and Bailies, but the royal justiciary, or his deputy, sat in the Burgh-Court; the verdict was given by the “good men and true” of the community; and no summons made by a royal serjeant was valid, unless he was accompanied by the Town Bedell. Every burgher was bound to possess at least one rood of land in the burgh, for which he paid five pence yearly to the king; and to swear fealty to the sovereign, the magistrates, and the community of the burgh—for the tie which bound the burgher was the old fealty of theLeud, not the homage of theAntrustionwith its attendant obligations; he plighted his troth with his hand upon the Sacred Volume, not placed between the hands of his overlord “after the Frank custom.”In this, and in other points, burgage-tenure much resembled the tenures of socage, and of gavelkind, which approached the earlier allodial custom, looked upon in later times asRoturier; but from Merchet, Heriot, and other exactions which had passed, with the principles of service and dependance, into many of the tenures of the age, the Scottish Burgher was exempt; as well as from the wardship which was attached to knight-service. The heir, if a minor, remained with his “chattels” in the custody of his mother’s relatives, the father’s kindred taking the charge of the “heritage;” this heritage being strictly entailed upon the heir, who could stop those deathbed transfers of property which were occasionally suggested by designing personages, whether lay or clerical. Under certain circumstances, such as the fear of starvation, even the Allod might be parted with; and similarly the “Capital Messuage” might be sold, or the property alienated, if the heir was either unwilling, or unable, to relieve his father’s necessities, or to pay his father’s debts; the Burghal Code justifying this exception from the ordinary rule by the admission that “nede has na law.” Twelve witnesses were required for the purchase of a burgage tenement, the twelve next door neighbours apparently, who stood in the place of the kindred of earlier times—the occupants of the four houses on either side and of the four immediately opposite; and if the tenement was held without dispute for a year and a day—the period which also seems, from time immemorial, to have conferred the right of participating in the privileges of “the neighbourhood” in the rural districts—it became the absolute property of the purchaser, unless the former owner could show that he was a minor, or beyond sea, at the time of the purchase. Theperfect freedom of burgage tenure was ensured by the provision that “If any man’sthryll, baron’s or knight’s, comes to the burgh and buys a burgage, and dwells in his burgage a twelvemonth and a day, without challenge of his lord or his baillie, he shall be ever more free as a burgess within that king’s burgh, and enjoy the freedom of that burgh;” an enactment, not so much aimed at encouraging fugitive native-men from the rural districts to settle in the towns, as against a previous state of society which still exists in Russia—or existed lately—in which the bondman might rise to wealth and station as a citizen, without shaking off the thraldom which bound him to his original proprietor. As, after the enfranchisement of towns, the undisputed possession of a burgage tenement for a year and a day conferred the proprietorship of a freehold, it necessarily carried with it, like the gift of arms at an earlier period, the indisputable rights of a freeholder.[328]
Every fortnight aMootwas held within theburgh, at which every burgher within the walls was bound to be present—in winter, beforeUndern, or nine o’clock in the morning; and atMidmornduring the summer—a greater Burgh-moot being assembled at Michaelmas, Christmas, and Easter, at which the presence of every upland burgher was also required, their absence being punished by the highest fine levied—the full forfeiture—as the burgher who dwelt without the walls was excused attendance upon the lesser moots. The general Burgh-moot was evidently a relic of the time before the separation of the Castle from the Burgh, when the upland thegns were bound, under heavy penalty, to meet three times a-year to fulfil the duties of their tenure; the lesser moots, and the general regulations of the burgh having been probably left very much to theTwyhyndmenwho dwelt within the walls. A watch was established for the security of the town; and at the stroke of a staff upon the door, an inmate was bound to come forth from every burgher’s house, and, armed with two weapons, to join in keeping watch and ward over the sleeping burgh fromcouvre-feutocockcrow, the houses of widows alone being exempted from this duty. The trades were under the general superintendence of theProbi homines, or leading men of the burgh, and some of their regulations are remarkable. The baker whose bread was not made and placed openly, in the window, for sale, was fined “full forfeiture,” and his bread confiscated for the use of the poor—a somewhat questionable method of disposing of it, if the law was to punish its adulteration. The provision dealer was obliged to sell all that was in his house beyond the value of fourpence, if required, on the plea that it was public property—an enactment levelled, probably, against hoarding provisionsin a time of scarcity for private use, or for profit; for when famines were of frequent occurrence, the dealer in the necessaries of life might be tempted to speculate in his neighbours need. The dignity of the magistracy was kept up by prohibiting any Provost, Bailie, or Bedell, from making bread, or brewing ale, for sale; and of the burgherhood, by excluding from its privileges every dyer, butcher, or tanner, who worked at his calling with his own hands. If he aspired to become a member of the guild, the business was to be deputed to other hands, whom he was only to superintend as “a master.” Cloth appears to have been the staple product of the time, and wool was as jealously guarded as in England, none but a burgher being allowed to buy it, for the purposes of dying, or cloth-making. An occasional difficulty with “the hands,” as at present, appears to have arisen, though from different causes; but the age was less scrupulous, and theKemester, or wool-comber, who tried to escape to the Upland, might at once be committed to the town-jail, on the plea that there was work to be done. The runaway was not invariably a fugitive from the rural districts. It was a hard age for the dependant classes wherever they were; and the “bondman in-burgh” may at times have cast many a wistful glance towards the blue hills in the distance. Monopoly and exclusive dealing were only in accordance with the spirit and policy of the age; and must inevitably have arisen in every quarter, when it was enacted that every sale and purchase should be made “in port,” and in the presence of witnesses chosen “in burgh;” which must, of course, have concentrated all the traffic of the district connected with the burgh in the hands of the resident population. The subdivision of the Hundredwas unknown in Scotland, and accordingly such privileges occasionally extended over the whole County or Sheriffdom; as in Edinburgh, and as in the case of Perth; where, perhaps in consequence of this wide monopoly, the unprivileged trader from other quarters was allowed to retail cloth during the summer, from Ascension Day to the 1st of August; though ordinarily the privileges of the burgh were only suspended during Fair-time. The Fair was in some respects a sort of regulated Saturnalia; none but the outlaw, the traitor, and the malefactor whose crime was of too deep a dye to admit of sanctuary, could be taken during its continuance; all else, whether debtors, runaways, or minor offenders of any description, being free from arrest, except they broke “the peace of the Fair,” when they were tried and punished, not by the ordinary magistrates of the burgh, but in a temporary Court, known universally as the Court ofPies-poudrees, orDusty-feet. The Dustyfoot was the travelling pedlar, or merchant as he was called in Scotland, the original of the modern Haberdasher—or “man with aHavresac;” and as, in Fair-time, theStallenger, or trader who sold from a temporary stall, or booth, could claim “lot and cavyl”—share and share—with the more dignified Burgher, with whom for the time he was upon an equality, it would have been contrary to the true northern principle of justice if he had been liable to be tried and punished in a strange Court, and by any other verdict than that of “his Peers,” the Community, for the time being, of the Fair. The Dustyfoot probably came by land, and only entered the burgh for traffic during Fair-time; but the sea, or the river, bore the vessel of the foreign trader to the burgh at all times, though, except when it was otherwiseprovided, as at Perth during summer time, the burghers alone could dispose of the traders’ wares, only salt or herrings being sold on board ship. All disputes between a foreign trader and a burgher were to be settled before the third flood of the tide.[329]
No Burgh was complete without a Hospital—no royal Burgh without a Castle. Leprosy was the disease of the age—a never-ceasing plague, entailed by unwholesome food, a want of vegetables, and the salted meat and fish, which formed invariably the winter diet, not a little aided by uncleanliness. Every one struck with leprosy within the walls was to be removed at once to theSpittal; and if he had nothing of his own, a collection of twenty shillings—a considerable sum for the time—was to be raised for his support. If the pauper was not cured by the time the money was spent, he was probably dismissed as incurable, and classed amongst the confirmed lepers, who were forbidden to enter any town, but were allowed to sit at the gate and beg. By the Law of Scotland it was allowable to give “Herbary” to a stranger for one night without question, but if he stayed beyond that period the host was answerable for the guest, and bound to produce him before the proper officer. Even this relic of the unstinted hospitality of early times was dispensed with in the case of this dreaded disease; and he who sheltereda leper within the walls was liable to the heaviest fine inflicted, “the full forfeiture.” Similar arrangements were once in force in every burgh; as in London, for instance, where theSpittal Fieldswere the open meadows around the Hospital for Lepers, who were allowed to ask for alms at theCripples Gate, a spot which the charitable may have sought out, but which a larger class must, most assuredly, have shunned.[330]
The royal burgh was under the rule of its chosen magistrates, but the royal castle was under the charge of the Constable appointed by the king, this office often becoming hereditary in the family on which it was originally conferred. Forty days were fixed as the period of service on castle-guard, which, like everything else towards the decline of the Feudal system, was gradually compounded for by a money payment to the Constable; who, in other words, performed the service with his own retainers, and exacted the usual fine, or its equivalent, for the non-attendance of the party bound by the tenure of his land to undertake such service. This custom, however, had scarcely grown into general use in the reign of David, for it was one of the provisions of Magna Charta that no Constable should summon a knight to perform castle-guard whilst he was serving in the king’s army, nor exact the fine for non-attendance when he was ready to perform the service in person, or by proper substitute. Freedom from arrest was one of the privileges attached to castle-guard, as well as to service in the king’s “host,” lasting, like the similar privilege of Parliament, which still exists, for the whole period of service; the same exemption being extended to all who were in attendance on theirduties in the county, or who were sent to the burgh to buy provisions for their lord. The Bailie of the castle was empowered to borrow of a burgher goods to the amount of forty pence, and for a period not exceeding forty days; but it was at the option of the lender to increase the amount of the loan beyond that sum, or to defer the time of payment beyond the forty days. At Easter, Whitsuntide, and Christmas, a “castellan” was entitled to demand from a burgher pigs, geese, or chickens, “for the king’s need;” but if the burgher could close his door no entry might be forced—his house was his castle, according to the well-known English saying—but the castellan might catch and kill any of the burgher’s stock that he found beyond bounds, paying the price at which the neighbourhood assessed the articles. The probable object of both these regulations was to ensure the garrison a fair supply of necessaries without entailing too heavy a burden upon the townsmen. In all disputes, if a castellan complained of wrong, he was to claim his right in the Court of the Burgh; and if the burgher considered himself aggrieved he was to carry his plaint to the Castle gate. On these occasions there appears to have been a mixed jury, as in the trial of an alien at the present day, “the peers” of each party furnishing a portion; such at least seems to have been the case in the following trial in the castle of Dumfries for the homicide of a burgher, the party charged with the offence being an Upland-man, probably on castle-guard, as he was tried in the place appointed for appeals against a castellan. Adam, the miller of Dumfries, meeting Richard, son of Robert Elias’s son, in the churchyard of St. Fabian and St. Sebastian in the castle, abused him as a thief, “because he was a Galloway man”—a species ofreasoning still sometimes current in cases of unpopular nationality. On the following Thursday, when Adam was standing in the doorway of a house, a woman called out to him that Richard was coming up the street, warning him to be on his guard. “My knife is as sharp as his,” replied the miller; attacking Richard at once, who drew his sword and struck Adam with the flat side of the weapon. The miller closed his arm upon the sword, and in disengaging it sharply, Richard inflicted a mortal wound upon his assailant, exclaiming, on seeing the catastrophe, “you caused your own death.” All the Burghers testified on oath that Richard was a man of good repute, but that Adam was a rogue; and the “Barons” concurring, an unanimous verdict of acquittal was pronounced. Barons and Burghers both seem to have been concerned in this trial, which affords a very fair specimen of the lawless manners of the age, and of the advantages of the “jugement del pais” over the earlier system expressed in the legal axiom “buy the spear or bear it”—pay thewereor stand the feud.[331]
Such were the leading regulations of David’s community of Burghs. They correspond closely with the ancient customs of Newcastle, to which indeed allusion is made in the Burghal Code, the English community having been consulted apparently upon the law of inheritance;[332]and there can be little doubt that the Anglo-Norman Burgh, itself in most respects a confirmation of the Anglo-Saxon, except where the custom of Borough-English existed, was the model for the burghs introduced by David throughout the land. In imitation of their sovereign, thegreater magnates, lay and ecclesiastical, occasionally enfranchised their towns, or founded burghs, filling them with a class of freemen on a footing with the royal burghers, though the latter were reckoned higher in the social scale, and were privileged to decline the challenge of a member of a lesser burgh; just as theScepenbarman, who could count his “four ancestors and hishant-gemahl,” was entitled to refuse the challenge of his equal in position who was not his equal in blood.[333]The royal burghs generally retained their ascendancy, though not invariably; for in spite of the jealous rivalry of Dunbarton and Rutherglen, upon the margin of her own fair river, the great episcopal city of Glasgow has long been acknowledged the undisputed mistress of the western waters. The original burghers, as a class, were, with few exceptions, of foreign origin, emigrants from southern Britain, and not unfrequently Flemings; as in Berwick, where the Flemings long dwelt apart as a separate guild.[334]It was long before the native element entered largely amongst the privileged civic population, clinging to Scottish customs and to the rural districts, especially in the distant North, where the towns must have long stood out like commercial garrisons in a disaffected, and not unfrequently a hostile, country. Not the least amongst the many changes introduced by the burgher class beyond the Forth was the diffusion of the language hitherto only spoken to the southward of that river, a Teutonic dialect spreading over thecountry, as in Ireland, with the gradual preponderance of the intramural population, a similar result being traceable in France, though under exactly opposite circumstances; for the language spoken in towns, where men congregate together in large numbers, will always prevail over the dialects of a rural and scattered population. It would be difficult to overestimate the utility of the burgher class to the Scotland of that period, or its influence in promoting the amelioration and prosperity of the country. The increase it brought to the revenue, though perhaps one of its greatest advantages in the opinion of the age, was comparatively of secondary importance. The invariable tendency of such a class has always been to favour peace, order, and civilization, as long as it has occupied its natural position; for it is only when a burgherhood has become over-powerful that it has afforded as frequent examples as a nobility, or anautocracy, of the inability of human nature in any condition to withstand the evil influences of unlimited power. Such was not the case in Britain, where the burgherhood has never occupied the same position as the great communities of Flanders, of Germany, or of Northern Italy. It would be of little use to speculate upon what might have happened had England remained under the rule of a feeble, or an “unkindly” king—of Edgar Atheling or Harold—with her great provincialJarls, like the Dukes of Franee, distracting the country with their contentions for power. Great burgher communities might have arisen, especially in the Danelage, where the Socmen, representatives of theLand-agendemen, or Odal-Bonders, of an earlier period, were exactly the class to form a martial burgherhood; but such a future was not to be. In neither England nor Scotlandhas the civic class ever been the sole depositary of the ancient northern principles of self-government, as on the Continent; where theEchevin, the representative of the ancientScepenbarFreeholder, who could alone pass judgment upon his equal, has for centuries been confined to the towns. It may be read in the Capitularies of the Carlovingian era, how it was offered to the ancestry of the French nobility to declare the law they would live by, and their choice was destined to be unfortunate; for wherever the hand of Imperial Rome is traceable, it has sown the seeds of future despotism. In every part of Britain, however, there was but one law for Baron and for Burgher, framed upon the principles of the free north; and much as we may be indebted to the civic portion of our “Third Estate,” the institutions of which we are so justly proud, were not preserved by their intervention. It is well that in the days of old there were other parties engaged in the struggle; for where is the example that history can furnish of a contest for liberty successfully carried out by an unassisted Burgherhood?[335]
The Court was not forgotten in the reforming zeal of David, and following up the innovations, which seem to have been first introduced by Alexander,he assimilated the Scottish Court to the Anglo-Norman model, with which both brothers must have been familiar. It must not be supposed, however, that before this period a Court was unknown in Scotland; but it was probably of a primitive character, even after the innovations of Queen Margaret. Howel Dha is supposed to have laid down certain regulations, about the middle of the tenth century, for his Court in Wales; and without putting faith in the apocryphal ordinances ascribed to Malcolm the Second, it may be safely assumed that Scotland, in the eleventh century, was at least as far advanced in this respect as Wales in the tenth. Fordun, who gives to Crinan the title of Abthane of Dull and Seneschal of the Isles, describes the Abthane as the Head of all the royal Thanes; and though the title is evidently an error, the office may have been a reality, for it would have been simply identical with that of the Welsh Distyn, the Lord High Steward or Seneschal. In every Scottish Earldom the Seneschal was next in authority to the Earl—his Deputy or Maor, who appeared in his place at the greater Shire Moots appointed by William; and Crinan may have filled such an office under the king. The feature most worthy of remark, however, in the constitution of the Welsh Court, was the rank and position of the royal attendants, the highest alone—the Distyn—being on a footing with the Chief, and the royal officials of the Commot; while only the leading Court officials were on a level with the Breyr, or noble proprietor; and the other members of the household ranked only just above the Boneddig, or Lesser Freeman. Dignity of the highest description, therefore, was not attached at this period to service about the royal person; and the classes from which the Welshking chose his courtiers and attendants were the lesser freemen, and the dependants known asMab aillts, rather than the noble class which furnished the Maors and Cynghellwrs.[336]
It must not be imagined that this was a Welsh or a Celtic peculiarity, for there was a time when theHird, or Court, of the Frank kings was of a yet more primitive description, the attendants in the Hird being all on a servile footing, known asScalcs, and chosen most probably from the subordinate race. The Household appears to have been under the superintendence of theSene-scalc—perhaps the Senior Slave—the Stable under theMarch-scalc, officials who seem to be traceable amongst the Anglo-Saxons in theWealh-gerefaand the royalHorswealh, the latter raised by his office to the footing of aCeorl.[337]Totally unconnected with the servile classes, and in the absence of the sovereign exercising royal authority over the whole kingdom, as well as over the Household, was the Deputy, the “Dux et Major Domus regni Francorum,” more familiarly known as theMaire du Palais, whose original Teutonic title was probably theStallr. The office was originally elective, the Franks choosing the Deputy as well as the actual sovereign; and it must in some respects have resembled that of the CelticTascio. It latterly became hereditary, as is well known, in the family of Pepin and Charles Martel, who monopolized the office in Austrasia and Neustrasia, until they exchanged the titleof Maire du Palais for that of king. No other great official besides the Stallr is traceable in the Norwegian Court, for which, at the opening of the eleventh century, Olive the Saint framed regulations, which must have been adopted for the usages of other Courts of the same period; though the use of the wordHus-Carles, both there and in England, may point to the gradual replacement of thescalcby the freeman about the royal person. The progress of Roman innovation soon necessitated the presence of officials whom the simpler institutions of the north ignored; and to receive the offerings of the fiscal tenantry, made in lieu of thefeorm,veitzsloor actual support afforded to the sovereign and his retinue, aCamera, or treasure-chamber, was required; the leadingCamerarius, or Chamberlain, the Lord High Treasurer of the age, becoming, as purse-bearer, a most important member of the Court. The charter next became a necessary document to attest the possession of proprietary right; and accordingly, in the early part of the ninth century, it was ordered in the Frank Capitularies, “that there should be chosen everywhere good and true Chancellors, to write public charters before the Comes, Scabini, and Vicarii.”[338]Much more, then, was it necessary that a similar official should be in attendance at the fountain-head of all chartered grants, and consequently the royalCancellariusbecame another most important attendant upon the royal person, the clerkly attributes required for the Chancellorship naturally placing it in the hands of the clergy. Most of these changes were probably introduced amongst the Franks after their king had been converted into theKaiserof the West; and as the old Allodial Stallr disappeared with the institutionsof which he was a part, the office, which raised a subject to such a dangerous proximity to the throne, seems to have been divided between his subordinates. His leadership in war fell to the share of theConstable, the commander of the royal armies, in the absence of the king, whose name is derived from the same title of Stallr, held by a Comes, or Graphio, instead of by theHeretogaof the whole kingdom. TheMareschalhad not yet arrived at the leadership of the army; his duties were still connected with the horse, but they had increased in dignity with the growing importance of theChevalerie; for though not the head of the army, the representative of the royal farrier had become the captain and leader of theChivalryof the age. The judicial functions of the Stallr were performed by theGrand Justiciary, the President of the royal Courts of Law; whilst theSeneschal, who, though he retained his servile name, had, like the Mareschal, long discarded his servile origin, rose to the office of “Maire du Palais;” and in France he was also supreme over all the justiciaries. In Germany the Stallr was unknown, the Dukes of the Alamanni, Bavarians, and Saxons, having themselves been originally, in some sort, the Stallrs or Deputies of the king of the Franks; and by the time that the Empire passed to the eastward of the Rhine, the Court had become thoroughly Romanized, the Allodial Stallr never forming any part of it. His functions were accordingly divided between his two leading subordinates, the Seneschal and the Mareschal, the former being thePfaltz Graf, or Count Palatine, and representing the Maire du Palais; whilst the Mareschal was theHeretoga, and leader of the host. Together with the three Chancellors and the Chamberlain, they were the first to give their votes at theelection of aKaiser, whom they were bound to accompany to Rome; and, in later times, with the subsequent addition of the Grand Butler, they were known as the seven Electors, monopolizing amongst themselves the sole choice of the Emperor.
Little can be said of the composition of the Anglo-Saxon Court after the establishment of the sole monarchy by the race of Alfred, though it was scarcely framed at first upon the Roman model, resembling rather that of Wales or Norway, or the TeutonicHird, after the freeman rather than the noble had replaced thescalc. A nearer advance towards the usages of the Feudal era is disclosed in a charter of the Confessor’s reign, attested apparently by the royal court, the greatJarlsor Dukes being the leading witnesses amongst the laity; and next to them in importance the Stallr, known under his Latin title of “Regiæ procurator Aulæ,” probably the Constable. TheAulicusseems to be the next official—he may have been the Chamberlain—and thePalatinus, perhaps the Pfaltz Graf, or Seneschal of the Household; followed by theChancellor, whose office was deemed at this time of scarcely sufficient importance to be held by one of the higher clergy. TheButlersof the king and queen, with threeStewards, close the list; two of the latter being attached to the king, whilst the other was in attendance upon the queen.[339]The Justiciary and the great Feudal functionary, whose name is still identified with military command, are missed from the Court of the Confessor; the Anglo-Saxons were not a raceof horsemen—chivalry and the Mareschal came in with the Normans.
Some of these officials may have been introduced into the Scottish Court by Margaret, but with the exception of the Constable, the Justiciary, and the Chancellor, who appear in the time of Alexander, none of the great Feudal dignitaries who were in constant attendance upon the royal court in the middle ages are to be met with in the few existing charters which date before the reign of David. The earliest Constable on record was Edward, son of Siward, who fully justified the confidence of Alexander and David on the field of Stickathrow, the office—of which the jurisdiction, like that of the ancient Stallr, extended over all the country within a certain distance of the royal person—after the death of Edward, becoming hereditary in the great Norman family of De Moreville. Alan, son of Flahald, was another noble of the same race, who, like most of the actual followers of the Conqueror, crossed the Channel before the general use of surnames had arisen amongst the Normans, and upon his son, Walter, David conferred the hereditary Seneschalship of the realm; his descendants, it need hardly be added, deriving their name of Stewart from the dignity thus acquired by their ancestor. Neither the Chamberlain nor the Mareschal held their offices by a similar hereditary tenure; the former in the capacity of royal treasurer, exercising supreme sway over the Third Estate, who paid the largest ordinary contributions into the treasury; holding his “Courts of Eyre” or circuits, and presiding in the great assembly of the burghs; whilst the Mareschal was the supreme judge and referee in Courts of Honour and of Chivalry. The Justiciary and the Chancellorcompleted the six greater dignitaries of the Scottish Feudal Court, Constantine, Earl of Fife, being Justiciary at the opening of David’s reign, the only Gaelic Earl who appears at that time amongst the leading courtiers holding office. Service about the royal person was scarcely yet regarded as befitting the great Gaelic Mormaors, and as the Court henceforth was in reality the Supreme Council of the kingdom, the preponderance of the Feudal element in the direction of affairs was quickly developed.
Such were the leading features of David’s civil policy; the state of the Scottish Church, and the changes introduced during the course of this reign, will be the subject of the ensuing chapter. The influence of David upon his native country has been compared to that of Alfred upon England, and of Charlemagne upon a wider sphere, but in some respects it was of a different character. Alfred was the saviour of the Anglo-Saxon race from complete subjection to the Danes, and though he can scarcely be called a king of England, he was the real founder of the monarchy. Within the limits of his ancestral dominions, and of the rescued principality of English Mercia, he was the reviver of letters; the creator of a navy; the reformer of the army, upon which he expended a third of his revenue; and, as the builder of walled towns, he may in a certain sense be regarded as the originator of a burgherhood; but, like Charlemagne, he was a collector and not a maker of laws, the constitutional institutions which have been attributed to him belonging, unquestionably, to other periods. His was a policy of defence not of aggrandisement—not even of amalgamation beyond the limits of the Anglo-Saxon race—of defence by sea and on land; of renovation rather than of innovation,for it was not an era for the development of great constitutional changes. But David was a mighty innovator, scarcely reviving anything except bishoprics; and even in his ecclesiastical policy, in all other respects, he was equally an innovator. He instituted a feudal court, a feudal nobility, and feudal tenures, governing the country upon feudal principles; for the great dignitaries of the court, in his time, were not merely the holders of honorary offices, but the actual ministers of the crown. He introduced the charter into general use, confirming proprietary right throughout the kingdom, the earls and freeholders by ancient Scottish tenure, henceforth standing, side by side, with the new noblesse and their vavassors, until all difference insensibly disappeared. He created a burgherhood, and laid down a novel Code of Law, by which the earlier system was gradually superseded by the principle still acknowledged—“the verdict of the neighbourhood.” Augustus found Rome brick and left her marble; but David found Scotland built of wattles and left her framed in granite, castles and monasteries studding the land in every direction. He found her a pastoral country, and before the close of his reign she is described as the granary of her neighbours; and though the expressions of Ailred are probably exaggerated, as an exporting country she must have made considerable progress in agriculture. England may trace the germs of her monarchy to Alfred, and of the union of her people under one sovereign, though it was certainly not consummated in Alfred’s time. First amongst the Cæsars of the Western Empire stands Charlemagne, scarcely, however, the originator of the mighty results of that revival which still continue to influence the continent of Europe. But of feudal and historical Scotland;of the Scotland which counts Edinburgh amongst her fairest cities, and Glasgow, as well as Perth and Aberdeen; of the familiar Scotland of Bruce and of the Stewarts, David was unquestionably the creator. With the close of the eleventh century ancient Gaelic Alban gradually fades into the background, and before the middle of the twelfth, modern Scotland has already risen into existence.