Chapter 27

[272]The IrishAdbharprobably answered to the WelshAelodeu, or all the members of a family within the fourth degree.[273]In 1275–6 Alexander II., and subsequently, in 1372, Robert II. confirmed a grant by which Niel, Earl of Carrick, had conferred upon Roland de Carrick, “ut ipse et heredes sui sint capud tocius progenie sue, tam in calumpniis quam aliis articulis et negotiis adKenkynollpertinere valentibus,” with the office of Bailliary (Seneschalship) of the Earldom of Carrick, and “the leading of the men thereof,” under the earl and his heirs (Robertson’s Index, 134. 6). The earldom went to Niel’s grandson, Robert Bruce. So MacDougal of Dunolly, the male heir of thede Ergadiafamily, was hereditary Bailie of Lorn. “The MacDuff” seems also to have been the next of kin to the Earl of Fife for the time being. The office of Tanist must have become obsolete when the heir was declared by the Probi homines of the Visnet instead of by the Kin. A royal grant, very similar to that of the Earl of Carrick, was in one celebrated case the cause of a feud lasting for centuries. As theToshachseems originally to have been the second personage in the clan, so theSenioroften appears to have monopolized the ecclesiastical preferment. The kings of the MacAlpin race were Cowarbs of St. Andrews; of the Atholl family, Cowarbs of Dunkeld; the Earls of Ross were descended from “Mac-in-Sagart”—the priest’s son—and it is highly probable that the older chiefs of Clan Chattan and representatives of Gillie-Chattan-More were also “Cowarbs of St. Chattan.” When the clan, after the breaking up of the confederacy of Donald Balloch, made its peace with the king, the headship was, for some unknown reason, conferred, not on theSenior, but theToshach, and accordingly a constant state of hostility existed between the Captain of Clan Chattan by royal grant—“the Mac-in-Toshach”—and the claimant of the chieftainship by right of blood—“the Mac-in-Pherson,” filius personæ, or son of the Cowarb. The Macphersons are neither mentioned amongst the “Landislordis and Bailies,” nor “the Roll of Clans” appended to “the General Band;” but only amongst “the brokin men of the surname of Macinpherson.” (Col. de Reb. Alb., p. 35,et seq.) Nothing but the tenacity with which the “old Clan Chattan” clung to their “chiefe” (do., p. 207) could have prevented a family, representing, probably, the ancient line of MacHeth, from sinking to the condition ofOg-tiernachunder a junior branch.[274]Grand Coutumier, c. 30.Vide Appendix D.[275]Act. Parl. Scot. As. Wil.9.[276]Lib. de Beneficiis.[277]Appendix D.[278]Chron. Lanercost.1268.[279]Stat. Alex. II.1. It shows how stationary—or rather retrograde—was the condition of Scotland in consequence of the disastrous English wars, and the weakness of the sovereign authority at a later period, that in the reign of James I., two hundred years after Alexander endeavoured to settle the agricultural population, a statute was passed to prohibit the lords spiritual and temporal from removing from their lands “colonos et husbandos pro anno futuro,” unless they required the land “ad usos suos proprios.”—Act. Jac. I., 1429;Act. Par. Scot.vol. 2, p. 17.[280]Reg. Morav.No. 76.Assize Wil.28.[281]Reg. St. And. quoted by Pinkerton,Inquiry,Appendix7, pt. 2 s. 3. Such were the Irish Charters in the Book of Kells (Miscell., I A S, vol. 1, No. x., p. 127), the Welsh in the Book of Llandaff, and the Memoranda in theReg. Prior. St. And., p. 113,et seq.[282]Assize Dav.26–28. For examples ofManred,Vide Col. de Reb. Alb.,passim. The word is often writtenMan-rent, but the tie had nothing to do withRentor any species of tenure. Theredis simply a termination, as in gossip-red, gemein-red, equivalent to the modernryin such words as infantry, cavalry.[283]Ini, 36·50.Edg. II.5.C.S.18. TheVicariusseems to have been the original deputy of the Frank Graphio, and theGingra, or junior, of the king’s Ealdorman,Alf.38. Both were replaced by the royalVicecomesandGerefa; amongst the Franks probably when theComesbecame a hereditary noble instead of an official.[284]Stat. Alex. II.5.Reg. Dunf., No. 79. Amongst the privileges of the Earls of Fife was numbered theLex Clan Macduff, by which “when ony man-slayer being within the ninth degree of kin and bluid to Macduffe, sumtime Earle of Fife, came to that croce (the cross of Macduff ‘above the Newburgh beside Lundoris’), and gave nine kye and ane colpindach, he was free of the slauchter committed be him.” It saved the life of Hugh de Arbuthnot as late as 1421 (Innes’s Sketches of early Scottish History, p. 215,note1). It was probably a relic of the old “right” once belonging to everyMormaororOirrigh, of retaining all his kindred in hismund; for amongst the rights of the WelshBrenhinwere all causes appertaining to the crown, king, orroyal family. Another right belonging to the Welsh king was the patronage of all the abbeys, which, though not retained by the Earls of Fife, was certainly vested in those of Strathearn.[285]Assize Wil.3, 4.Reg. Dunf., Nos. 13, 23, 43, 45, 56. I have renderedProbi hominesby Proprietary.Probushas passed into the French language asPreux; probus homo, asPreud-homme. They are continually found in the Frank laws and capitularies asMeliores pagenses, the class furnishing theScabini, theMediocresof some of the other early laws. Inburghsthey were the class from which echevins, bailies, and aldermen were chosen. They represented the leading members of all that part of thecommunitaswhich was not comprised in the clergy, greater barons, and royal officials, answering very much to the class from which in modern times—whetherin burghorupland—the grand jury, magistrates, and members of Parliament are supposed to be chosen. Amongst the old Saxons theScepenbarman—he who was qualified to be chosen for aScabinus—was required to be “probus, prudens, indigena, ingenuus, et quatuor avis natus, liber et opulentus;” in other words, the qualifications for aProbus homowere supposed to be birth, property, and character. In the old Scottish laws theprobus homois always rendered “good man”—and thegude-manis still the equivalent of “the master” in a certain class—theprobus homo et fidelis, “the good man and true,” being a man of a class superior to the simplefidelisor “leal man.” Thegoodequally appears in his equivalents amongst the Welsh,—theGwr dha“bonus homo;” and amongst the Spaniards—theHidalgo, “fijos d’algo,” or “filius boni hominis.” Amongst the Northmen he appears seemingly as theDanneman, and amongst the Irish Gael as theSaoi. The Scabinus derived his name from the same source as theScop; both wereMakers—to use the old English word answering exactly to ποιητης—and in times when an unwritten code was preserved in the memory by such verses as “the father to the bough, the son to the plough;” by a sort ofmemoria technicalike the Welsh Triads; or by a quaint system of question and answer, as is traceable amongst the Irish; the qualifications to constitute a good “law maker” may have often produced a good “maker” of poetry.[286]14Edwd. III.,Stat.1, c. 7. In Scotland the same tendency to act by deputy is observable as on the Continent, and the Lord JusticeClerkand LordClerkRegistrar—the deputies of the Justiciary and Registrar—appear in the place of their principals, just as in the case of the sheriff-depute.[287]Assize Dav.18.Will.6.[288]Assize Dav.14, 15. I have adopted the reading of the Ayr MS.; xx.ix. instead of xxix., as 180 cows—nine times twenty—were paid asmanbotefor homicide throughoutScotia. According to the other reading, the fine for homicide “in the king’s gryth” would have been less than elsewhere.Vide Act. Parl. Scot., vol. 1, p. 3.[289]Assize Will.13. This was known asBerthynsak. Cases of this description andBlodwite—petty thefts and assaults—long continued to be tried in the lesser courts.[290]Assize Dav.33.Wil.11.Leg. Wil. Conq.1, 28. For the Hundred,vide Appendix F.[291]Thorpe’s Ancient Laws, Ed.1.Ath.I. 10, 12, 24, v. 10.Edm. C.5.Edg. Sup., 3, 4, 5, 6, 8, 10.C. S., 24, and Gloss in vocTeam. By the laws of Edward and Athelstan none were to buy or sell except “in Port,” and before the Port-Reeve; but after the institution of the Hundred, purchases and sales might be made, in conformity with the legal forms, in theuplandas well asin burgh. The regulations about warranty first appear in the laws of Kent, the king’sWic-gerefaof Lunden-wicbeing the personage in authority, the king’s hall in thewic, the place of trial.H. and E.16.[292]Wootton Welsh Laws, l. 2, c. 4; l. 5, c. 5, s. 79, 80.Leg. Wil. Conq., 1, 21.Lex. Sal. Tit.49.Assize Wil.5. The FrankHamalluswas the “super quem res primitus agnita fuerit, vel intertiata,” the “third hand,” apparently, of the Welsh bargain. From the Conqueror’s laws it would appear that the NormanHemold-borhwas not identical with theGetyma, but he was a character of a similar description. As late as the seventeenth century, theBorch Hamelwas well known in the Scottish Highlands, and no cattle was bought without “sufficient caution of burgh and hamer.”Innes’ Sketches, etc., p. 382,note1.[293]Assize Wil., 3, 4, 5, 16.Lex. Sal. Tit.49.Leg. Hen. I.xli. The Welsh gave, for finding witnesses, three days within the Commot, nine if in the neighbouring Commot, and a fortnight beyond that distance or across an estuary.—Wootton, l. 2, c. 10.[294]Assize Wil.18.[295]Assize Dav., 1, 13, 16.Wil.20.Slat, Alex. II.4. Thethree Thanedomsare evidently the same as thethree Baronies, so continually met with in later laws. Both are evidently counterparts of the “threetuns” amongst the Anglo-Danish confederacy of Mercia, and the “threeDorfern” amongst the Saxons, with whom it was lawful, “if a theft be committedhand-habend, or a robbery in which the offender is taken, to choose a Go-graf” from at leastthree villages(Dorfern), “and they shall form a court and judge the case, provided the judge who has the office in fee (belehenten Richter) cannot be had.”Leg. Eth. III.15, andSach. Spieg., l. 1, c. 55, quoted innote d. The fine of 34cowsis called in William’s laws (14), the thief’swergild. By a law of Chlovis whoever saved a man from the gallows paid his wergild.[296]Eth. I.1.Wil. Conq., I. 11.Leg. Hen., I. lxvi., 8–10.Lex. Sax. Tit.2. As the penalties of this period, when not capital, were invariably fines, it is probable that the expression “a pound oath,” or “swearing for so many hydes,” meant that the compurgator, like the modern bail, was to be up to a certain point “a man of substance.”[297]Lib. de Ben.98.[298]Assize Wil.15. This was not the result of “Celtic barbarism;” for two centuries after the reign of William the Frisons still claimed their right to “blood for blood.”Leg. Fris. Tit.2, n. 5, (Canc.)VidealsoAppendix E.[299]Lex. Sax. Tit.2.[300]According to the laws of Athelstan, iv. 7, the simple ordeal of water was to take a stone out of boiling water as deep as the wrist; the triple ordeal deepened the water to the elbow. The ordeal of iron was to walk nine feet over hot iron; sometimes to carry it, probably the same distance. In all cases the hand or foot was bound up and inspected three days afterwards. If it had healed, the man was pronounced innocent. The ordeal of cold water was thedyke-pot, to which poor wretches accused of witchcraft were too often subjected.[301]Velleius Paterculus, l. 2, c. 118 (quoted by Blackstone).[302]Assize Wil.7.Ath.v. 8. I. 11.[303]A passage in the laws of Childeric ad an. 550, somewhat unintelligible indeed, seems to point to this, where, in reference to the “duodecim juratores,” it is said, “Propterea non est sacramentum in Francis, quando illi legem composuerunt, non erant Christiani.”Pertz. Leg., vol. 2, p. 6, c. 4. The only meaning I can make out of it is, “For this cause there is no oath amongst the Franks—no provision for compurgation in their code—when they made their laws they were not Christians.” The passage has rather a colloquial form, like the Welsh Triads or the Irish laws, so often framed in question and answer; pointing to an age in which the law was not written but committed to memory.[304]On such occasions, by Welsh law, if anAlltudjoined in the combat to make up the necessary number of combatants, and escaped with life, he ranked as afull-bornmember of the kindred for whom he had entered the lists. In the battle on the North Inch of Perth thirty men appeared on each side, armed with bows, axes, swords, and daggers, but without defensive armour. The number resembles the triple oath of “three Thanes and twenty-seven leil men,” by which the lord of the prison from which a thief escaped was bound to clear himself; the equipment was probably that required in the old “Scottish service.” It is generally supposed that the contest was for the chieftainship of the Clan Chattan, but it seems very doubtful that this was the case. The oldest account of the battle, which took place on 28th September 1396, is contained in a memorandum in theReg. Morav.p. 382, which says that thirty of theClan Hayfought thirty of theClan Qwhwle“quia firma pax non poterat intra duas parentelas.” Four years previously, in the second year of Robert III., the latter clan had figured as theClan QwhevilunderSlurachand his brothers, in the raid upon Angus, celebrated byWynton, bk. ix., c. 14.Act. Parl. Scot.,v.1, p. 217. They were the victors, and the Clan Hay disappears for ever; but theClan Chewillfigures in a Roll of Clans of the sixteenth century as a distinct family from the Clan Chattan and Macphersons.Col. de Reb. Alb., p. 39.[305]Heimsk. St. Olaf. Saga, c. 76, 80.[306]Capit. Carl. Mag. Pertz. Leg., vol. 1, p. 121.[307]Arch. Adm. de Rheims, vol. 1, p. 35. The seven assessors of the Graphio seem to have been originally known asRachimburgii, who, according toEdict. Chilp.7 (Pertz. Leg., vol. 2, p. 10), were to be “Antrustiones boni credentes.” They were afterwards known more generally asScabini, and numbered twelve in the Carlovingian era.Cap. Leg. Sal. Add. ad an.819, 1, 2, (Do.vol. 1, p. 227).VidealsoAp. Form. Marc. Canc.vol. 2, p. 247,note3. The number of compurgators appears to have been occasionallysevenas well as twelve (Cap. Add. Leg. Rip. ad an.803, s. 10.Canc.vol. 2, p. 320), and a similar number is also sometimes assigned to the mystic “Peers of Charlemagne,” a body which perhaps may have owed its creation to some confused idea in later times that the Graphio and his assessors were but the reflection of “nostrum placitum generale.” TheSagibaroseems to have been of a lower class than theRachimburgorScabinus, for the latter was necessarily an Antrustion or nobleman, the former ifingenuuswas raised to this rank by his office, and might be aLœt(V. Wergilds). As any cause decided by the threeSagibaronescould not be reopened before the Graphio, it is evident that they sat in the lesser Courts.Lex. Sal.56.[308]Canc, vol. 1, p. 236.Magn. Chart.II., s. 39, 52. No freeman was to be dispossessed of his freehold, liberties, or customs, “nisi per legale judicium parium suorum vel per legem terræ.” The former still continues to be the privilege of the “Majores Barones,” or House of Lords, the latter belongs to the “Minores Barones,” or the rest of “the Community.” Had not the old “judicium per pares” been superseded in the case of “the Community” by the “Jugement del Pais,” thePareswould now be counted by millions![309]Leg. Ath., iv. 6.Eth., iii. 3, 13. TheFolk-motewas probably the meeting of the whole people in early times, but after a king’s Ealdorman presided at it, it was surely only a meeting of theFolkunder his special jurisdiction. It is last alluded to in the laws of Athelstan, being replaced probably by the biennialShire-gemoteprovided by Edgar’s laws, in which the Bishop and the Ealdorman were the leading personages (Edg.ii., 5. C.S. 18). TheseMootshad nothing whatever to do with the government of the kingdom, which was vested in the king and hisWitan,—his Court or Privy Council, not his Parliament; for the voice of “the Community” was unheard in theWitanagemote. Self-government up to a certain point is traceable in the institutions of this period, but not beyond it. The Londoners might choose their Tything-men and manage their own affairs, but the right to do so was laid down in “the ordinance which the Bishops andReevesbelonging to London ordained;” the Reeves being appointed by the Crown, and Bishops, Reeves, and Ealdormen being answerable for holding theFrith“asI and my Witan have commanded” (Ath.v. 11). It is in vain to attempt to trace the germs of the English parliamentary system in the Anglo-Saxon Witan. Our modern Parliament was gradually developed out of the right, acknowledged by “Norman feudalism,” of the whole community of freeholders to gather round the sovereign. TheMajores Baronesstill exercise the right, once belonging to the whole community, of assembling in person; the lesser barons, and the rest of the community, whetherin burghorupland, assemble by their representatives, chosen originally by “the Reeve;” but from the reign of Henry IV. (who appears to have finally carried out the intentions of his grandfather, after a lapse of thirty years), by all freemen of a certain standing. The government of a king and his Witan—his Court or Privy Council—could only have been developed in course of time into, either a powerful but irresponsible despotism, or a feeble monarchy torn by the dissensions of a few powerful magnates contending for the real power. Such was the phase it assumed in England, unless the history of that period is gravely in error.[310]Wootton, l. 4.Triad85.[311]Malcolm IV., according to John of Hexham, was chosen in an assembly of this description, or rather, as amongst the Germans in the days of Tacitus, the assembly ratified the choice of their Seniors. “Tollens igituromnis populus terræMalcholmum ... apud Scotiam,sicut consuetudo illius nationis... constituerat regem pro David avo suo.”J. Hex.1154.[312]Reg. Prior. St. And., p. 117. This meeting must have taken place early in the reign of David, as the signature of Earl Constantine is soon replaced in the charters of the period by that of Earl Gillemichael.[313]Stat. Alex., II., 2–3.Assize Will.26.VidealsoWill.22.[314]Assize David, 4–8, 12, 24, 25, 35. If the law about Mortancestrie and Novel Disseisin is correctly ascribed to David, it would be not a little remarkable, for the change was only introduced into the English law by Henry the Second, according to the highest testimony, Glanville (l. 1, c. 11–21,quoted by Blackstone). Such changes generally travelled northwards, and will be found in England before they took root in Scotland. Thus the attempt of James I. to establish a representative system amongst the lesser freeholders in Scotland is surely traceable to his residence in England, where a similar system was actually established by Henry IV. The regulation ascribed to David, however, is not identical with “the Grand Assize,” which was constituted by appointing four knights in every sheriffdom, who were to choose twelve others. By the Scottish law such questions were to be decided by the ordinary “Assize of the good country of twelve men.” By Welsh law all questions relating to succession to property were to be decided by theHenduriad Gwlad—the seniorGwrdha, or good men of the country—the judge pronouncing according to their decision, which was known asDedfryd Gwlad, or the verdict of the country (Wootton, l. 2, c. 10). Whether this regulation was original, or derived from the principle introduced by Henry II., I cannot say.[315]Amongst theFragmenta,Act. Parl. Scot., vol. 1, p. 383, s. 29, is one which lays down the rules for the judicial combat, adding that in cases ofDisseisinit was optional for the parties to choose the Wager of battle or the Verdict of the good country, either course to be decisive. It is difficult to determine whether this must be regarded as a fragment of Galloway law, or as one of those retrogressions which were incidental to the state of Scottish society after the English wars. TheQuon. Attach., 35, 36, however, allude to theBreve de Disseisin et de Mortancestrieas the only familiar legal process, which would appear to place the fragment in question amongst the Galloway laws.[316]As the founders of the Norman kingdoms southward of the Alps were ignorant of the hereditary feud; as no charters are traceable in the Norman duchy until many years after the Conquest; and as the charters by which the Anglo-Normans held their English possessions were unquestionably framed upon the Anglo-Saxon model; it would appear as if such documents, familiar to the Anglo-Saxons, were comparatively unknown to, or unused by, their conquerors. In the thirteenth century, when Earl Warenne was called upon to produce the title by which he held his lands, he laid his sword upon the table; nor can the few remaining holders of lands, which their ancestors possessed at the date of Domesday, show any other title than that of the great Earl. Yet are we generally told that the Normans oppressed the Anglo-Saxons by the introduction of novel feudal tenures.SacandSoc,TolandTeam,InfangthiefandOutfangthief, were scarcely brought from Normandy.[317]The charters will be found in the Introduction to “Robertson’s Index.” The witnesses, all of whom have Saxon or Danish names, are sometimes supposed to represent the Scottish Court; and the total absence of all Gaelic names is assumed as a proof of the total exclusion of the native race from the court and councils of their sovereign. But this total absence is in itself suspicious. Where are the Gaelic Earls who were invariably the first to attest the great charters of Alexander and David? In the Foundation Charter of Dunfermlyn, David confirms the grants of his father Malcolm, his mother Margaret, and of his brothers Duncan, Edgar, Ethelred, and Alexander; all of which must have been made according to “ancient custom,” or the charters, would have been forthcoming in the Dunfermlyn Registry; and as the sole known charters of Duncan and Edgar are connected with Durham, whilst their grants made beyond the Forth were not confirmed by any written document, it would appear as if these Durham charters had been written and witnessedat Durham, and that no argument can be drawn from the names of the attesting witnesses about the composition of the Scottish Court. The title of “Basileus Scottorum,” applied to Edgar, will never be found in any Scottish charter, but it occurs frequently in Anglo-Saxon documents. It was the policy of the Scottish kings of that period to keep up a connection with Durham; and it must be always recollected that there was less difference between the Angles separated by the Tweed, than between the Angles and Anglo-Danes separated by the Tees. The chosen standard of David—the Dragon of Wessex—speaks volumes of the pretensions which the sons of Margaret were very ready to keep alive amongst a population, which was not included in the Domesday survey.[318]Assize Will.8.[319]Stat Alex. II.8, 15. The two classes were “Miles vel filius militis, vel aliquis libere tenens in feodo militari, vel aliquis alius terram suam aliquo modo tenens per cartam in feodo, per liberum servitium, vel per fie de hauberk, vel eorum filii;” and “Firmarii de rusticis nati, vel qui in vili prosapia fuerint sive rustici, vel aliqui alii qui liberum tenementum non habent, nec libertatem prosapiæ.”[320]Quon Attach.18.Act. Parl. Scot., p. 91–92. So when it was proved to the satisfaction of a similar jury that Crane, his son Sweyn, and his grandson Simon, had held, uninterruptedly, the office ofJanitorof Montrose Castle, with the lands attached to it (originally a grant of William to Crane), the five daughters of Simon—the fourth in descent—were pronounced heiressesin fee.—Ib., p. 90. The invariablethree descentsappear to have conferred hereditary right.[321]A Thane of Haddington is the sole instance that I am aware of in the Lothians; and yet the Scottish Thane is often derived from a Saxon original! For “Scottish Service,”Videch. viii. p. 208,note. AsScotusas much meant aGaelasFlandrensismeant a Fleming, orGalweiensisa native of Galloway, the great Border clan ofScottmust have been settlers from beyond the Forth.[322]Mat. Par. ad an.1251, p. 554.[323]Appendix D.[324]Col. de Reb. Alb., p. 35, No. viii.[325]I allude to names like Mac Caillin More, Vich Alaister More, Mac Connuil Dhuy, and others distinct from surnames. InAppendix RI have given my reasons at greater length for doubting the theory which assumes that the first holder of a charter was always a foreign settler, and that every territorial name—every name with ade—necessarily implies a foreign descent. De Ergadia, de Insulis, de Carrick, de Galloway, de Strathbogie, de Atholia, de Abernethy, de Ogilvy, and many others, attest the contrary.[326]Asser. in Mon. Hist. Brit., vol. 1, p. 474, 492, 493. AlsoAppendix F. Defence seems everywhere to have been the original bond of union in burghs—defence against the Moors, for instance, in Spain; but where the Goth and the Roman had dwelt, in a certain sense, on an equality long before they amalgamated, an intramural population, with Roman traditions and Roman law, must have existed many a year before it was recognised as a separate “Estate” in return for defending towns against the infidel. In the great German Burghs theTraderswere originally a separate class from theBurghers, and the distinction is still traceable in those regulations of the Scottish burghs which denied admittance to the Guild privileges to all who worked at certain trades with their own hands. What was the previous condition of the Traders—what their state before their town became aBurhwith privileged defenders, amongst whom they were gradually enrolled? At the best, it must have resembled that of otherFiscalini, and few “full-born” Teutons could have entered willingly into such communities until they went as free and privileged defenders of aBurh, rather than as members of a class which they looked upon as inferior and unprivileged. Their arms and their free rights they carried with them—the one was identical with the other in the olden time—becoming free members of a civic, as they had previously been of a rural association, and following such civic occupations as were not considered derogatory to the dignity of a Freeman. Germanic law long ignored written documents, and the customs of the Burgh were mostly in accordance with that older allodial system which the progress of Roman innovation stamped asRoturier. Men possessed property in land long before it was secured by written documents, and many a burgh had been in the enjoyment of rights and privileges by unwritten law long before it was thought necessary to obtain the sanction of a feudal charter, which must no more be regarded as necessarily creating a new burgh, than as necessarily introducing a foreign settler into Scotland, and eradicating a native proprietor. In both cases the charter was often only confirmatory of pre-existing rights. But it would be erroneous to imagine that the Teutonic Burghs ever existed as independent associations against “the tyranny of the noble class.” Some notice of such a state of society, had it existed, would surely be traceable in the regulations of the Carlovingian era. It was this very class, lay or ecclesiastical, who joined with the sovereign in buildingBurghsfor defence, or introducing free burghers into towns which had hitherto been unfree and comparatively defenceless. The spirit of antagonism arose with the increasing power of the greater burghs. In England theBurgharose out of the necessities of the Danish invasion; and if a Teutonic element existed previously amongst the resident intramural population, it was scarcely on the footing of Burgh-Thegns. There is no word in the Anglo-Saxon language expressive of a free and trading community associated within walls. TheBurhwas originally the place of strength, and the inhabitants ofBebba’s Burhwere surely not traders.Wicis a very vague word, andCeasterunquestionably of Roman origin. The latter is the word most often found in the translation of Beda—as in London-Ceaster, andEofer-wic-ceaster—and as theWealhremained at the basis of the population in the rural districts, a similar element probably supplied the bulk of the inhabitants of theCeasterbefore its conversion into aBurhintroduced the TeutonicBurh-Thegn.[327]Leg. Burg70, 71. TheHansewas simply that kindred association, known as theHant-Gemahl, without which no Teuton seems in early times to have been entitled to “free right.” (Appendix F.) The Northerns carried with them into theBurhtheir old customs, this association amongst the number. AHanseseems strictly to have been an association offour; there werefourclasses of towns in the great Hanseatic League, of which Hamburg, Bremen, Lubeck, and Cologne were “the Four Burghs.” When Roxburgh and Berwick fell into the hands of the English, Lanark and Linlithgow were added to complete the necessary number offourScottish Burghs. TheNorthernBurgh seems to have been simply the reproduction of the rural system within the walls, the Burgh-Thanes, or probi homines, of London, who chose theirTything-menandHynden-men—representing theTuns-men of the country districts—who also chose theirHead-boroughand Hundred’s Ealdor. Neither originally chose theirGerefa. I cannot look upon the Northern Burgh as simply a repetition of the Roman city, or the Roman city, with its Roman customs, enfranchised, and its citizens, living by Roman law, converted into burghers. TheHansewas scarcely Roman, but it was a necessary ingredient in thefree rightof every “full-born” Teuton. “Bare is back without brother behind it,” says the old northern proverb. TheEchevinwas a thoroughly Teutonic personage, the Scabinus, orScepen, of the rural district; and wherever such features are traceable “in-burgh,” I must look upon the original burghers, not as a trading class enfranchised, but rather as a class of free Teutons introducedabovethe traders for defence—carrying arms for the defence of the country being the mark of freedom—and introducing with them the freeallodialcustoms of the rural districts. The Anglo-Saxon Burgher, and the member of the great Hanseatic Burghs of northern Germany, were thoroughly Teutonic personages, owing little, if anything, directly to Rome and her municipal institutions, in early times, I should imagine.[328]Leg. Burg, 1, 2, 6, 7, 10, 15, 17, 98, 101, 106, 107, 110, 112. Such seems to have been the real meaning of this provision—it eliminated the servile element from amongst the burgherhood. A native-man might run away from his district, but how could he take with him the property to purchase a burgage-tenement?Stockwas his property, and it is difficult to conceive how he could carry the stock with him, or sell it, unknown to his lord, with all the machinery of witnesses and warrenter required for sales and purchases. But it is easy to imagine how the settlement of native-men in the towns may have been encouraged by their lords as a source of private profit. The whole trading class was once probably on such a footing, and the greater the wealth acquired by the trader, the more would he have paid for permission to remain away from his district—for he was not necessarily aslavein the modern acceptation of the word, but “inborn” to a certain district, from which he could not separate himself without his lord’s permission. He who settled in a town, and prospered in his unfree condition, if he aspired to become a free burgher, must, in all ordinary cases, have bought his freedom from his lord—as in the case of Renaldprepositusof Berwick in 1247—and after enjoying his tenement for a year and a day no further claim could be raised against him.Vide Scotland in the Middle Ages, p. 142. It was admission to the Guild in a Free burgh that conferred the same privileges in England.Vide Glanville, l. 5. c. 5.[329]Leg. Burg., 3, 8, 9, 20, 47, 54, 59, 60, 67, 75, 81, 86, 94, 103.Scotland in the Middle Ages, p. 159–162. The full forfeiture in Burgh amounted to 8 shillings, or one-quarter of the ordinary fine of 8 cows—the halfleod-gild—levied in the country districts. Washing the feet, in the olden time, implied an intention of stopping and accepting hospitality; and theDustyfootgot his name from passing onwards. The follower of the Celtic lord was sometimes known as theGillie-wetfoot, from wearing no shoes or stockings, a practice to which the Scottish peasantry long clung—an incidental testimony of the prevalence of the native element amongst that class.[330]Leg. Burg.58.Assize Dav.3.[331]Leg. Burg.3, 33, 46, 55, 102.Mag. Chart.ii. 29.Act. Parl. Scot., vol. 1, p. 87, 88.[332]Leg. Burg.99. This is clearly shown by Mr. Innes in his “Scotland in the Middle Ages,” p. 154.[333]Leg. Burg.13.Appendix F.[334]Newbridge, l. 2, c. 24. He is quite borne out by the Chartularies. Malmesbury gives a description of Ireland in the reign of Henry the First, which, with a due allowance for the prejudices of the historian, was probably not inapplicable at one time to Scotland. “Ita pro penuria imo pro inscientia cultorum, jejunum omnium bonorum solum, agrestem et squalidam multitudinem Hibernensiumextra urbesproducit; Angli vero et Franci, cultiore genere vitæ,urbes nundinarum commercio inhabitant.”—Gest. Reg., l. 5, sec. 409.[335]Counts and judges (Scabini) were to name the law they would live by, and judge accordingly—“Comites et judices confiteantur qua lege vivere debent, et secundum ipsam judicent,”Pertz. Leg., vol. 1, Capit. p. 101, sec. 48. So the Romans were to choose the law they would live by—Do. Hlot. Const. Rom., ad an824, p. 239–40. Hundred Court and Tithing Court, Scabinus and Sagibaro, all the machinery of the free Salic law, gradually disappeared, until the government of the people, whose very name was once synonymous with freedom, was expressed in the words “l’etat c’est moi.” It must always be recollected that our Third Estate differs in a most important particular from theTiers Etat, or Bourgeoisie, of the Continent. It includes theMinores Barones, the representatives of theMeliores pagensesorProbi homines; to whose keeping the free institutions of our ancestors were committed long before the existence of a Burgherhood.

[272]The IrishAdbharprobably answered to the WelshAelodeu, or all the members of a family within the fourth degree.

[273]In 1275–6 Alexander II., and subsequently, in 1372, Robert II. confirmed a grant by which Niel, Earl of Carrick, had conferred upon Roland de Carrick, “ut ipse et heredes sui sint capud tocius progenie sue, tam in calumpniis quam aliis articulis et negotiis adKenkynollpertinere valentibus,” with the office of Bailliary (Seneschalship) of the Earldom of Carrick, and “the leading of the men thereof,” under the earl and his heirs (Robertson’s Index, 134. 6). The earldom went to Niel’s grandson, Robert Bruce. So MacDougal of Dunolly, the male heir of thede Ergadiafamily, was hereditary Bailie of Lorn. “The MacDuff” seems also to have been the next of kin to the Earl of Fife for the time being. The office of Tanist must have become obsolete when the heir was declared by the Probi homines of the Visnet instead of by the Kin. A royal grant, very similar to that of the Earl of Carrick, was in one celebrated case the cause of a feud lasting for centuries. As theToshachseems originally to have been the second personage in the clan, so theSenioroften appears to have monopolized the ecclesiastical preferment. The kings of the MacAlpin race were Cowarbs of St. Andrews; of the Atholl family, Cowarbs of Dunkeld; the Earls of Ross were descended from “Mac-in-Sagart”—the priest’s son—and it is highly probable that the older chiefs of Clan Chattan and representatives of Gillie-Chattan-More were also “Cowarbs of St. Chattan.” When the clan, after the breaking up of the confederacy of Donald Balloch, made its peace with the king, the headship was, for some unknown reason, conferred, not on theSenior, but theToshach, and accordingly a constant state of hostility existed between the Captain of Clan Chattan by royal grant—“the Mac-in-Toshach”—and the claimant of the chieftainship by right of blood—“the Mac-in-Pherson,” filius personæ, or son of the Cowarb. The Macphersons are neither mentioned amongst the “Landislordis and Bailies,” nor “the Roll of Clans” appended to “the General Band;” but only amongst “the brokin men of the surname of Macinpherson.” (Col. de Reb. Alb., p. 35,et seq.) Nothing but the tenacity with which the “old Clan Chattan” clung to their “chiefe” (do., p. 207) could have prevented a family, representing, probably, the ancient line of MacHeth, from sinking to the condition ofOg-tiernachunder a junior branch.

[274]Grand Coutumier, c. 30.Vide Appendix D.

[275]Act. Parl. Scot. As. Wil.9.

[276]Lib. de Beneficiis.

[277]Appendix D.

[278]Chron. Lanercost.1268.

[279]Stat. Alex. II.1. It shows how stationary—or rather retrograde—was the condition of Scotland in consequence of the disastrous English wars, and the weakness of the sovereign authority at a later period, that in the reign of James I., two hundred years after Alexander endeavoured to settle the agricultural population, a statute was passed to prohibit the lords spiritual and temporal from removing from their lands “colonos et husbandos pro anno futuro,” unless they required the land “ad usos suos proprios.”—Act. Jac. I., 1429;Act. Par. Scot.vol. 2, p. 17.

[280]Reg. Morav.No. 76.Assize Wil.28.

[281]Reg. St. And. quoted by Pinkerton,Inquiry,Appendix7, pt. 2 s. 3. Such were the Irish Charters in the Book of Kells (Miscell., I A S, vol. 1, No. x., p. 127), the Welsh in the Book of Llandaff, and the Memoranda in theReg. Prior. St. And., p. 113,et seq.

[282]Assize Dav.26–28. For examples ofManred,Vide Col. de Reb. Alb.,passim. The word is often writtenMan-rent, but the tie had nothing to do withRentor any species of tenure. Theredis simply a termination, as in gossip-red, gemein-red, equivalent to the modernryin such words as infantry, cavalry.

[283]Ini, 36·50.Edg. II.5.C.S.18. TheVicariusseems to have been the original deputy of the Frank Graphio, and theGingra, or junior, of the king’s Ealdorman,Alf.38. Both were replaced by the royalVicecomesandGerefa; amongst the Franks probably when theComesbecame a hereditary noble instead of an official.

[284]Stat. Alex. II.5.Reg. Dunf., No. 79. Amongst the privileges of the Earls of Fife was numbered theLex Clan Macduff, by which “when ony man-slayer being within the ninth degree of kin and bluid to Macduffe, sumtime Earle of Fife, came to that croce (the cross of Macduff ‘above the Newburgh beside Lundoris’), and gave nine kye and ane colpindach, he was free of the slauchter committed be him.” It saved the life of Hugh de Arbuthnot as late as 1421 (Innes’s Sketches of early Scottish History, p. 215,note1). It was probably a relic of the old “right” once belonging to everyMormaororOirrigh, of retaining all his kindred in hismund; for amongst the rights of the WelshBrenhinwere all causes appertaining to the crown, king, orroyal family. Another right belonging to the Welsh king was the patronage of all the abbeys, which, though not retained by the Earls of Fife, was certainly vested in those of Strathearn.

[285]Assize Wil.3, 4.Reg. Dunf., Nos. 13, 23, 43, 45, 56. I have renderedProbi hominesby Proprietary.Probushas passed into the French language asPreux; probus homo, asPreud-homme. They are continually found in the Frank laws and capitularies asMeliores pagenses, the class furnishing theScabini, theMediocresof some of the other early laws. Inburghsthey were the class from which echevins, bailies, and aldermen were chosen. They represented the leading members of all that part of thecommunitaswhich was not comprised in the clergy, greater barons, and royal officials, answering very much to the class from which in modern times—whetherin burghorupland—the grand jury, magistrates, and members of Parliament are supposed to be chosen. Amongst the old Saxons theScepenbarman—he who was qualified to be chosen for aScabinus—was required to be “probus, prudens, indigena, ingenuus, et quatuor avis natus, liber et opulentus;” in other words, the qualifications for aProbus homowere supposed to be birth, property, and character. In the old Scottish laws theprobus homois always rendered “good man”—and thegude-manis still the equivalent of “the master” in a certain class—theprobus homo et fidelis, “the good man and true,” being a man of a class superior to the simplefidelisor “leal man.” Thegoodequally appears in his equivalents amongst the Welsh,—theGwr dha“bonus homo;” and amongst the Spaniards—theHidalgo, “fijos d’algo,” or “filius boni hominis.” Amongst the Northmen he appears seemingly as theDanneman, and amongst the Irish Gael as theSaoi. The Scabinus derived his name from the same source as theScop; both wereMakers—to use the old English word answering exactly to ποιητης—and in times when an unwritten code was preserved in the memory by such verses as “the father to the bough, the son to the plough;” by a sort ofmemoria technicalike the Welsh Triads; or by a quaint system of question and answer, as is traceable amongst the Irish; the qualifications to constitute a good “law maker” may have often produced a good “maker” of poetry.

[286]14Edwd. III.,Stat.1, c. 7. In Scotland the same tendency to act by deputy is observable as on the Continent, and the Lord JusticeClerkand LordClerkRegistrar—the deputies of the Justiciary and Registrar—appear in the place of their principals, just as in the case of the sheriff-depute.

[287]Assize Dav.18.Will.6.

[288]Assize Dav.14, 15. I have adopted the reading of the Ayr MS.; xx.ix. instead of xxix., as 180 cows—nine times twenty—were paid asmanbotefor homicide throughoutScotia. According to the other reading, the fine for homicide “in the king’s gryth” would have been less than elsewhere.Vide Act. Parl. Scot., vol. 1, p. 3.

[289]Assize Will.13. This was known asBerthynsak. Cases of this description andBlodwite—petty thefts and assaults—long continued to be tried in the lesser courts.

[290]Assize Dav.33.Wil.11.Leg. Wil. Conq.1, 28. For the Hundred,vide Appendix F.

[291]Thorpe’s Ancient Laws, Ed.1.Ath.I. 10, 12, 24, v. 10.Edm. C.5.Edg. Sup., 3, 4, 5, 6, 8, 10.C. S., 24, and Gloss in vocTeam. By the laws of Edward and Athelstan none were to buy or sell except “in Port,” and before the Port-Reeve; but after the institution of the Hundred, purchases and sales might be made, in conformity with the legal forms, in theuplandas well asin burgh. The regulations about warranty first appear in the laws of Kent, the king’sWic-gerefaof Lunden-wicbeing the personage in authority, the king’s hall in thewic, the place of trial.H. and E.16.

[292]Wootton Welsh Laws, l. 2, c. 4; l. 5, c. 5, s. 79, 80.Leg. Wil. Conq., 1, 21.Lex. Sal. Tit.49.Assize Wil.5. The FrankHamalluswas the “super quem res primitus agnita fuerit, vel intertiata,” the “third hand,” apparently, of the Welsh bargain. From the Conqueror’s laws it would appear that the NormanHemold-borhwas not identical with theGetyma, but he was a character of a similar description. As late as the seventeenth century, theBorch Hamelwas well known in the Scottish Highlands, and no cattle was bought without “sufficient caution of burgh and hamer.”Innes’ Sketches, etc., p. 382,note1.

[293]Assize Wil., 3, 4, 5, 16.Lex. Sal. Tit.49.Leg. Hen. I.xli. The Welsh gave, for finding witnesses, three days within the Commot, nine if in the neighbouring Commot, and a fortnight beyond that distance or across an estuary.—Wootton, l. 2, c. 10.

[294]Assize Wil.18.

[295]Assize Dav., 1, 13, 16.Wil.20.Slat, Alex. II.4. Thethree Thanedomsare evidently the same as thethree Baronies, so continually met with in later laws. Both are evidently counterparts of the “threetuns” amongst the Anglo-Danish confederacy of Mercia, and the “threeDorfern” amongst the Saxons, with whom it was lawful, “if a theft be committedhand-habend, or a robbery in which the offender is taken, to choose a Go-graf” from at leastthree villages(Dorfern), “and they shall form a court and judge the case, provided the judge who has the office in fee (belehenten Richter) cannot be had.”Leg. Eth. III.15, andSach. Spieg., l. 1, c. 55, quoted innote d. The fine of 34cowsis called in William’s laws (14), the thief’swergild. By a law of Chlovis whoever saved a man from the gallows paid his wergild.

[296]Eth. I.1.Wil. Conq., I. 11.Leg. Hen., I. lxvi., 8–10.Lex. Sax. Tit.2. As the penalties of this period, when not capital, were invariably fines, it is probable that the expression “a pound oath,” or “swearing for so many hydes,” meant that the compurgator, like the modern bail, was to be up to a certain point “a man of substance.”

[297]Lib. de Ben.98.

[298]Assize Wil.15. This was not the result of “Celtic barbarism;” for two centuries after the reign of William the Frisons still claimed their right to “blood for blood.”Leg. Fris. Tit.2, n. 5, (Canc.)VidealsoAppendix E.

[299]Lex. Sax. Tit.2.

[300]According to the laws of Athelstan, iv. 7, the simple ordeal of water was to take a stone out of boiling water as deep as the wrist; the triple ordeal deepened the water to the elbow. The ordeal of iron was to walk nine feet over hot iron; sometimes to carry it, probably the same distance. In all cases the hand or foot was bound up and inspected three days afterwards. If it had healed, the man was pronounced innocent. The ordeal of cold water was thedyke-pot, to which poor wretches accused of witchcraft were too often subjected.

[301]Velleius Paterculus, l. 2, c. 118 (quoted by Blackstone).

[302]Assize Wil.7.Ath.v. 8. I. 11.

[303]A passage in the laws of Childeric ad an. 550, somewhat unintelligible indeed, seems to point to this, where, in reference to the “duodecim juratores,” it is said, “Propterea non est sacramentum in Francis, quando illi legem composuerunt, non erant Christiani.”Pertz. Leg., vol. 2, p. 6, c. 4. The only meaning I can make out of it is, “For this cause there is no oath amongst the Franks—no provision for compurgation in their code—when they made their laws they were not Christians.” The passage has rather a colloquial form, like the Welsh Triads or the Irish laws, so often framed in question and answer; pointing to an age in which the law was not written but committed to memory.

[304]On such occasions, by Welsh law, if anAlltudjoined in the combat to make up the necessary number of combatants, and escaped with life, he ranked as afull-bornmember of the kindred for whom he had entered the lists. In the battle on the North Inch of Perth thirty men appeared on each side, armed with bows, axes, swords, and daggers, but without defensive armour. The number resembles the triple oath of “three Thanes and twenty-seven leil men,” by which the lord of the prison from which a thief escaped was bound to clear himself; the equipment was probably that required in the old “Scottish service.” It is generally supposed that the contest was for the chieftainship of the Clan Chattan, but it seems very doubtful that this was the case. The oldest account of the battle, which took place on 28th September 1396, is contained in a memorandum in theReg. Morav.p. 382, which says that thirty of theClan Hayfought thirty of theClan Qwhwle“quia firma pax non poterat intra duas parentelas.” Four years previously, in the second year of Robert III., the latter clan had figured as theClan QwhevilunderSlurachand his brothers, in the raid upon Angus, celebrated byWynton, bk. ix., c. 14.Act. Parl. Scot.,v.1, p. 217. They were the victors, and the Clan Hay disappears for ever; but theClan Chewillfigures in a Roll of Clans of the sixteenth century as a distinct family from the Clan Chattan and Macphersons.Col. de Reb. Alb., p. 39.

[305]Heimsk. St. Olaf. Saga, c. 76, 80.

[306]Capit. Carl. Mag. Pertz. Leg., vol. 1, p. 121.

[307]Arch. Adm. de Rheims, vol. 1, p. 35. The seven assessors of the Graphio seem to have been originally known asRachimburgii, who, according toEdict. Chilp.7 (Pertz. Leg., vol. 2, p. 10), were to be “Antrustiones boni credentes.” They were afterwards known more generally asScabini, and numbered twelve in the Carlovingian era.Cap. Leg. Sal. Add. ad an.819, 1, 2, (Do.vol. 1, p. 227).VidealsoAp. Form. Marc. Canc.vol. 2, p. 247,note3. The number of compurgators appears to have been occasionallysevenas well as twelve (Cap. Add. Leg. Rip. ad an.803, s. 10.Canc.vol. 2, p. 320), and a similar number is also sometimes assigned to the mystic “Peers of Charlemagne,” a body which perhaps may have owed its creation to some confused idea in later times that the Graphio and his assessors were but the reflection of “nostrum placitum generale.” TheSagibaroseems to have been of a lower class than theRachimburgorScabinus, for the latter was necessarily an Antrustion or nobleman, the former ifingenuuswas raised to this rank by his office, and might be aLœt(V. Wergilds). As any cause decided by the threeSagibaronescould not be reopened before the Graphio, it is evident that they sat in the lesser Courts.Lex. Sal.56.

[308]Canc, vol. 1, p. 236.Magn. Chart.II., s. 39, 52. No freeman was to be dispossessed of his freehold, liberties, or customs, “nisi per legale judicium parium suorum vel per legem terræ.” The former still continues to be the privilege of the “Majores Barones,” or House of Lords, the latter belongs to the “Minores Barones,” or the rest of “the Community.” Had not the old “judicium per pares” been superseded in the case of “the Community” by the “Jugement del Pais,” thePareswould now be counted by millions!

[309]Leg. Ath., iv. 6.Eth., iii. 3, 13. TheFolk-motewas probably the meeting of the whole people in early times, but after a king’s Ealdorman presided at it, it was surely only a meeting of theFolkunder his special jurisdiction. It is last alluded to in the laws of Athelstan, being replaced probably by the biennialShire-gemoteprovided by Edgar’s laws, in which the Bishop and the Ealdorman were the leading personages (Edg.ii., 5. C.S. 18). TheseMootshad nothing whatever to do with the government of the kingdom, which was vested in the king and hisWitan,—his Court or Privy Council, not his Parliament; for the voice of “the Community” was unheard in theWitanagemote. Self-government up to a certain point is traceable in the institutions of this period, but not beyond it. The Londoners might choose their Tything-men and manage their own affairs, but the right to do so was laid down in “the ordinance which the Bishops andReevesbelonging to London ordained;” the Reeves being appointed by the Crown, and Bishops, Reeves, and Ealdormen being answerable for holding theFrith“asI and my Witan have commanded” (Ath.v. 11). It is in vain to attempt to trace the germs of the English parliamentary system in the Anglo-Saxon Witan. Our modern Parliament was gradually developed out of the right, acknowledged by “Norman feudalism,” of the whole community of freeholders to gather round the sovereign. TheMajores Baronesstill exercise the right, once belonging to the whole community, of assembling in person; the lesser barons, and the rest of the community, whetherin burghorupland, assemble by their representatives, chosen originally by “the Reeve;” but from the reign of Henry IV. (who appears to have finally carried out the intentions of his grandfather, after a lapse of thirty years), by all freemen of a certain standing. The government of a king and his Witan—his Court or Privy Council—could only have been developed in course of time into, either a powerful but irresponsible despotism, or a feeble monarchy torn by the dissensions of a few powerful magnates contending for the real power. Such was the phase it assumed in England, unless the history of that period is gravely in error.

[310]Wootton, l. 4.Triad85.

[311]Malcolm IV., according to John of Hexham, was chosen in an assembly of this description, or rather, as amongst the Germans in the days of Tacitus, the assembly ratified the choice of their Seniors. “Tollens igituromnis populus terræMalcholmum ... apud Scotiam,sicut consuetudo illius nationis... constituerat regem pro David avo suo.”J. Hex.1154.

[312]Reg. Prior. St. And., p. 117. This meeting must have taken place early in the reign of David, as the signature of Earl Constantine is soon replaced in the charters of the period by that of Earl Gillemichael.

[313]Stat. Alex., II., 2–3.Assize Will.26.VidealsoWill.22.

[314]Assize David, 4–8, 12, 24, 25, 35. If the law about Mortancestrie and Novel Disseisin is correctly ascribed to David, it would be not a little remarkable, for the change was only introduced into the English law by Henry the Second, according to the highest testimony, Glanville (l. 1, c. 11–21,quoted by Blackstone). Such changes generally travelled northwards, and will be found in England before they took root in Scotland. Thus the attempt of James I. to establish a representative system amongst the lesser freeholders in Scotland is surely traceable to his residence in England, where a similar system was actually established by Henry IV. The regulation ascribed to David, however, is not identical with “the Grand Assize,” which was constituted by appointing four knights in every sheriffdom, who were to choose twelve others. By the Scottish law such questions were to be decided by the ordinary “Assize of the good country of twelve men.” By Welsh law all questions relating to succession to property were to be decided by theHenduriad Gwlad—the seniorGwrdha, or good men of the country—the judge pronouncing according to their decision, which was known asDedfryd Gwlad, or the verdict of the country (Wootton, l. 2, c. 10). Whether this regulation was original, or derived from the principle introduced by Henry II., I cannot say.

[315]Amongst theFragmenta,Act. Parl. Scot., vol. 1, p. 383, s. 29, is one which lays down the rules for the judicial combat, adding that in cases ofDisseisinit was optional for the parties to choose the Wager of battle or the Verdict of the good country, either course to be decisive. It is difficult to determine whether this must be regarded as a fragment of Galloway law, or as one of those retrogressions which were incidental to the state of Scottish society after the English wars. TheQuon. Attach., 35, 36, however, allude to theBreve de Disseisin et de Mortancestrieas the only familiar legal process, which would appear to place the fragment in question amongst the Galloway laws.

[316]As the founders of the Norman kingdoms southward of the Alps were ignorant of the hereditary feud; as no charters are traceable in the Norman duchy until many years after the Conquest; and as the charters by which the Anglo-Normans held their English possessions were unquestionably framed upon the Anglo-Saxon model; it would appear as if such documents, familiar to the Anglo-Saxons, were comparatively unknown to, or unused by, their conquerors. In the thirteenth century, when Earl Warenne was called upon to produce the title by which he held his lands, he laid his sword upon the table; nor can the few remaining holders of lands, which their ancestors possessed at the date of Domesday, show any other title than that of the great Earl. Yet are we generally told that the Normans oppressed the Anglo-Saxons by the introduction of novel feudal tenures.SacandSoc,TolandTeam,InfangthiefandOutfangthief, were scarcely brought from Normandy.

[317]The charters will be found in the Introduction to “Robertson’s Index.” The witnesses, all of whom have Saxon or Danish names, are sometimes supposed to represent the Scottish Court; and the total absence of all Gaelic names is assumed as a proof of the total exclusion of the native race from the court and councils of their sovereign. But this total absence is in itself suspicious. Where are the Gaelic Earls who were invariably the first to attest the great charters of Alexander and David? In the Foundation Charter of Dunfermlyn, David confirms the grants of his father Malcolm, his mother Margaret, and of his brothers Duncan, Edgar, Ethelred, and Alexander; all of which must have been made according to “ancient custom,” or the charters, would have been forthcoming in the Dunfermlyn Registry; and as the sole known charters of Duncan and Edgar are connected with Durham, whilst their grants made beyond the Forth were not confirmed by any written document, it would appear as if these Durham charters had been written and witnessedat Durham, and that no argument can be drawn from the names of the attesting witnesses about the composition of the Scottish Court. The title of “Basileus Scottorum,” applied to Edgar, will never be found in any Scottish charter, but it occurs frequently in Anglo-Saxon documents. It was the policy of the Scottish kings of that period to keep up a connection with Durham; and it must be always recollected that there was less difference between the Angles separated by the Tweed, than between the Angles and Anglo-Danes separated by the Tees. The chosen standard of David—the Dragon of Wessex—speaks volumes of the pretensions which the sons of Margaret were very ready to keep alive amongst a population, which was not included in the Domesday survey.

[318]Assize Will.8.

[319]Stat Alex. II.8, 15. The two classes were “Miles vel filius militis, vel aliquis libere tenens in feodo militari, vel aliquis alius terram suam aliquo modo tenens per cartam in feodo, per liberum servitium, vel per fie de hauberk, vel eorum filii;” and “Firmarii de rusticis nati, vel qui in vili prosapia fuerint sive rustici, vel aliqui alii qui liberum tenementum non habent, nec libertatem prosapiæ.”

[320]Quon Attach.18.Act. Parl. Scot., p. 91–92. So when it was proved to the satisfaction of a similar jury that Crane, his son Sweyn, and his grandson Simon, had held, uninterruptedly, the office ofJanitorof Montrose Castle, with the lands attached to it (originally a grant of William to Crane), the five daughters of Simon—the fourth in descent—were pronounced heiressesin fee.—Ib., p. 90. The invariablethree descentsappear to have conferred hereditary right.

[321]A Thane of Haddington is the sole instance that I am aware of in the Lothians; and yet the Scottish Thane is often derived from a Saxon original! For “Scottish Service,”Videch. viii. p. 208,note. AsScotusas much meant aGaelasFlandrensismeant a Fleming, orGalweiensisa native of Galloway, the great Border clan ofScottmust have been settlers from beyond the Forth.

[322]Mat. Par. ad an.1251, p. 554.

[323]Appendix D.

[324]Col. de Reb. Alb., p. 35, No. viii.

[325]I allude to names like Mac Caillin More, Vich Alaister More, Mac Connuil Dhuy, and others distinct from surnames. InAppendix RI have given my reasons at greater length for doubting the theory which assumes that the first holder of a charter was always a foreign settler, and that every territorial name—every name with ade—necessarily implies a foreign descent. De Ergadia, de Insulis, de Carrick, de Galloway, de Strathbogie, de Atholia, de Abernethy, de Ogilvy, and many others, attest the contrary.

[326]Asser. in Mon. Hist. Brit., vol. 1, p. 474, 492, 493. AlsoAppendix F. Defence seems everywhere to have been the original bond of union in burghs—defence against the Moors, for instance, in Spain; but where the Goth and the Roman had dwelt, in a certain sense, on an equality long before they amalgamated, an intramural population, with Roman traditions and Roman law, must have existed many a year before it was recognised as a separate “Estate” in return for defending towns against the infidel. In the great German Burghs theTraderswere originally a separate class from theBurghers, and the distinction is still traceable in those regulations of the Scottish burghs which denied admittance to the Guild privileges to all who worked at certain trades with their own hands. What was the previous condition of the Traders—what their state before their town became aBurhwith privileged defenders, amongst whom they were gradually enrolled? At the best, it must have resembled that of otherFiscalini, and few “full-born” Teutons could have entered willingly into such communities until they went as free and privileged defenders of aBurh, rather than as members of a class which they looked upon as inferior and unprivileged. Their arms and their free rights they carried with them—the one was identical with the other in the olden time—becoming free members of a civic, as they had previously been of a rural association, and following such civic occupations as were not considered derogatory to the dignity of a Freeman. Germanic law long ignored written documents, and the customs of the Burgh were mostly in accordance with that older allodial system which the progress of Roman innovation stamped asRoturier. Men possessed property in land long before it was secured by written documents, and many a burgh had been in the enjoyment of rights and privileges by unwritten law long before it was thought necessary to obtain the sanction of a feudal charter, which must no more be regarded as necessarily creating a new burgh, than as necessarily introducing a foreign settler into Scotland, and eradicating a native proprietor. In both cases the charter was often only confirmatory of pre-existing rights. But it would be erroneous to imagine that the Teutonic Burghs ever existed as independent associations against “the tyranny of the noble class.” Some notice of such a state of society, had it existed, would surely be traceable in the regulations of the Carlovingian era. It was this very class, lay or ecclesiastical, who joined with the sovereign in buildingBurghsfor defence, or introducing free burghers into towns which had hitherto been unfree and comparatively defenceless. The spirit of antagonism arose with the increasing power of the greater burghs. In England theBurgharose out of the necessities of the Danish invasion; and if a Teutonic element existed previously amongst the resident intramural population, it was scarcely on the footing of Burgh-Thegns. There is no word in the Anglo-Saxon language expressive of a free and trading community associated within walls. TheBurhwas originally the place of strength, and the inhabitants ofBebba’s Burhwere surely not traders.Wicis a very vague word, andCeasterunquestionably of Roman origin. The latter is the word most often found in the translation of Beda—as in London-Ceaster, andEofer-wic-ceaster—and as theWealhremained at the basis of the population in the rural districts, a similar element probably supplied the bulk of the inhabitants of theCeasterbefore its conversion into aBurhintroduced the TeutonicBurh-Thegn.

[327]Leg. Burg70, 71. TheHansewas simply that kindred association, known as theHant-Gemahl, without which no Teuton seems in early times to have been entitled to “free right.” (Appendix F.) The Northerns carried with them into theBurhtheir old customs, this association amongst the number. AHanseseems strictly to have been an association offour; there werefourclasses of towns in the great Hanseatic League, of which Hamburg, Bremen, Lubeck, and Cologne were “the Four Burghs.” When Roxburgh and Berwick fell into the hands of the English, Lanark and Linlithgow were added to complete the necessary number offourScottish Burghs. TheNorthernBurgh seems to have been simply the reproduction of the rural system within the walls, the Burgh-Thanes, or probi homines, of London, who chose theirTything-menandHynden-men—representing theTuns-men of the country districts—who also chose theirHead-boroughand Hundred’s Ealdor. Neither originally chose theirGerefa. I cannot look upon the Northern Burgh as simply a repetition of the Roman city, or the Roman city, with its Roman customs, enfranchised, and its citizens, living by Roman law, converted into burghers. TheHansewas scarcely Roman, but it was a necessary ingredient in thefree rightof every “full-born” Teuton. “Bare is back without brother behind it,” says the old northern proverb. TheEchevinwas a thoroughly Teutonic personage, the Scabinus, orScepen, of the rural district; and wherever such features are traceable “in-burgh,” I must look upon the original burghers, not as a trading class enfranchised, but rather as a class of free Teutons introducedabovethe traders for defence—carrying arms for the defence of the country being the mark of freedom—and introducing with them the freeallodialcustoms of the rural districts. The Anglo-Saxon Burgher, and the member of the great Hanseatic Burghs of northern Germany, were thoroughly Teutonic personages, owing little, if anything, directly to Rome and her municipal institutions, in early times, I should imagine.

[328]Leg. Burg, 1, 2, 6, 7, 10, 15, 17, 98, 101, 106, 107, 110, 112. Such seems to have been the real meaning of this provision—it eliminated the servile element from amongst the burgherhood. A native-man might run away from his district, but how could he take with him the property to purchase a burgage-tenement?Stockwas his property, and it is difficult to conceive how he could carry the stock with him, or sell it, unknown to his lord, with all the machinery of witnesses and warrenter required for sales and purchases. But it is easy to imagine how the settlement of native-men in the towns may have been encouraged by their lords as a source of private profit. The whole trading class was once probably on such a footing, and the greater the wealth acquired by the trader, the more would he have paid for permission to remain away from his district—for he was not necessarily aslavein the modern acceptation of the word, but “inborn” to a certain district, from which he could not separate himself without his lord’s permission. He who settled in a town, and prospered in his unfree condition, if he aspired to become a free burgher, must, in all ordinary cases, have bought his freedom from his lord—as in the case of Renaldprepositusof Berwick in 1247—and after enjoying his tenement for a year and a day no further claim could be raised against him.Vide Scotland in the Middle Ages, p. 142. It was admission to the Guild in a Free burgh that conferred the same privileges in England.Vide Glanville, l. 5. c. 5.

[329]Leg. Burg., 3, 8, 9, 20, 47, 54, 59, 60, 67, 75, 81, 86, 94, 103.Scotland in the Middle Ages, p. 159–162. The full forfeiture in Burgh amounted to 8 shillings, or one-quarter of the ordinary fine of 8 cows—the halfleod-gild—levied in the country districts. Washing the feet, in the olden time, implied an intention of stopping and accepting hospitality; and theDustyfootgot his name from passing onwards. The follower of the Celtic lord was sometimes known as theGillie-wetfoot, from wearing no shoes or stockings, a practice to which the Scottish peasantry long clung—an incidental testimony of the prevalence of the native element amongst that class.

[330]Leg. Burg.58.Assize Dav.3.

[331]Leg. Burg.3, 33, 46, 55, 102.Mag. Chart.ii. 29.Act. Parl. Scot., vol. 1, p. 87, 88.

[332]Leg. Burg.99. This is clearly shown by Mr. Innes in his “Scotland in the Middle Ages,” p. 154.

[333]Leg. Burg.13.Appendix F.

[334]Newbridge, l. 2, c. 24. He is quite borne out by the Chartularies. Malmesbury gives a description of Ireland in the reign of Henry the First, which, with a due allowance for the prejudices of the historian, was probably not inapplicable at one time to Scotland. “Ita pro penuria imo pro inscientia cultorum, jejunum omnium bonorum solum, agrestem et squalidam multitudinem Hibernensiumextra urbesproducit; Angli vero et Franci, cultiore genere vitæ,urbes nundinarum commercio inhabitant.”—Gest. Reg., l. 5, sec. 409.

[335]Counts and judges (Scabini) were to name the law they would live by, and judge accordingly—“Comites et judices confiteantur qua lege vivere debent, et secundum ipsam judicent,”Pertz. Leg., vol. 1, Capit. p. 101, sec. 48. So the Romans were to choose the law they would live by—Do. Hlot. Const. Rom., ad an824, p. 239–40. Hundred Court and Tithing Court, Scabinus and Sagibaro, all the machinery of the free Salic law, gradually disappeared, until the government of the people, whose very name was once synonymous with freedom, was expressed in the words “l’etat c’est moi.” It must always be recollected that our Third Estate differs in a most important particular from theTiers Etat, or Bourgeoisie, of the Continent. It includes theMinores Barones, the representatives of theMeliores pagensesorProbi homines; to whose keeping the free institutions of our ancestors were committed long before the existence of a Burgherhood.

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