Book 3 — CHAPTER VI. THE TRIBE IN SCOTLAND.

Early notices of tribal organisation.

In investigating the early social state of the Celtic inhabitants of Great Britain, we possess an advantage which does not attach to that of Ireland. For the Pagan period in the latter country we have no information except what is derived from native tradition; but in Britain we possess in addition a few incidental notices by contemporary writers of other countries, both as regards the native population of the Roman province and the Barbarian nations beyond its limits. These notices, few and general as they are, yet indicate the presence of a social organisation very similar to that of Ireland.

When we are told by one Greek writer ‘that its aboriginal tribes inhabit Britain, in their usages still preserving the primitive modes of life, and that they have many kings and princes;’^[241] by another, ‘that there are several states amongst them. Forests are their cities; for having enclosed an ample space with felled trees, here they make themselves huts and lodge their cattle;’^[242] when Cæsar tells us of the inhabitants of the interior, whom he calls indigenous, that ‘they did not resort to the cultivation of the soil for food, but were dependent upon their cattle and the flesh of animals slain in hunting for their food;’^[243] when Solinus reports of the inhabitants of the five Western Isles forming the southern group, that ‘they knew nothing of the cultivation of the ground, but lived upon fish and milk,’ which latter implies 210the possession of herds of cattle, ‘and that they had one king, who was not allowed to possess property;’^[244] when Tacitus speaks ‘of the numerous states beyond the Firth of Forth,’ and describes the great Caledonian army which Agricola encountered at the Mons Granpius as a federation of all the states of the northern population; and when we are told of the two great divisions of them in the third century—the Caledonians and the Mæatæ—‘that they inhabit mountains wild and waterless, and plains desert and marshy; that they live by pasturage and the chase, and that their state is chiefly democratical;’^[245]—we can see that they consisted of an aggregation of tribes occupying the land in common, and whose chief possessions consisted of cattle. When these writers add that they had their wives in common, they indicate at least that looser relation between the sexes which usually prevailed before the introduction of Christianity had invested a stricter rule of marriage with its sanction, and which led to a connection through females as being regarded with more favour than that through males.

The tribe among the Picts.

When we come down, however, to Christian times, we find the existence of the Tuath both as the tribe and as the tribe territory fully recognised as characterising the social organisation of the population of Gaelic race. The ancient tract, termed the Amra Choluim Chilli, of Dallan Forgaill, preserved in the Liabhar na h-Uidre, contains repeated references to the Tuaths both in the sense of tribes and of their territories, and as regards the Pictish nation as well as the Dalriadic colony. Thus we are told that Saint Columba ‘illuminated countries and territories’ (Tir agus Tuatha), and that from him ‘the Tuaths used to be disciplined.’ Again, when it is said, ‘Through an idolatrous Tuath he meditated criminality,’ which is explained to mean, ‘when going through the Tuath or territories of the 211idols he would know their criminality towards God,’ it can only refer to the pagan nation of the Picts; and when we are told that ‘he sought seven Tuaths, viz., the five Tuaths of Erin, and two Tuaths in Alban,’ the latter must be identified with the territory given him by the Picts, who, according to Bede, inhabited the districts adjacent to Iona. In another passage, when St. Columba is referred to as ‘the son of Fedelimid for whom used to fight or whom used to serve the twenty Tuaths,’ the word is probably used in the sense of tribes, and it is still more plainly used in this sense, as existing among the southern Picts, when he is described as ‘the teacher who used to teach the tribes who were around Tai, that is, the name of a river in Alban,’ which can obviously be identified with the river Tay. In another passage they are referred to as the people of the Tay (Lucht Toi); and the Tuaths or tribes are indicated as existing both among the Dalriads and the Picts, when he is called ‘the champion who bound new things for the alliance of Conall, that is, the champion of the new things is not here for alliance, that is, for confirming the alliance of Conall, that is, between the Tuaths of Conall within, or at making their alliance with other Tuaths externally.’^[246] Conall was the king of Dalriada at the time when St. Columba came over from Ireland to Scotland, and the other Tuaths or tribes which were external to his kingdom can only refer to the neighbouring tribes of the Picts. The undoubted antiquity of this tract gives great value to these incidental references to the existence of the Tuath or tribe, not only among the Scots of Dalriada, where we might expect to meet them, but also among the two great races of the northern and southern Picts, and this is confirmed by other authorities of a later date. Thus, in the tract called ‘The Genealogy of Corca Laidhe,’ referred to in a previous 212chapter, we read that ‘Irial Glumnar, son of Conall Cearnach, had two sons, viz., Forc and Iboth. Rechtgidh Righdearg led them into Alban. They gained great battles, so that great districts were laid waste in Alban, until the men of Alban submitted to Rechtgidh Righdearg, so that he was king of Erin and Alban; and it was from them sprang the two Tuaths or tribes, Tuath Forc and Tuath Iboth in Alban.’^[247] Rechtgidh Righdearg was one of the mythic pagan kings of Ireland, and Irial Glumnar a traditionary hero of the Cruithnigh, or Picts of Ulster; but it is a fair inference from it that two Tuaths or tribes bearing the names of Forc and Iboth were known in Scotland, and the name Forc, which is the old form of that of the river Forth, indicates their situation on the northern shore of that river or estuary, that is, among the southern Picts. That a social organisation similar to the Irish tribal system prevailed among the southern Picts, to whom St. Columba’s mission was mainly directed, is confirmed by the Gaelic entries in the Book of Deer, which open with the statement that ‘Columba and Drostan, son of Cosgrach, his pupil, came from Hi, as God had shown them, unto Abbordoboir or Aberdour, and Bede the Cruthnech or Pict, who was Mormaer of Buchan, gave them that town in freedom for ever from Mormaer and Toisech;’ thus exactly corresponding to the grant of land to the church of Kells, quoted in a former chapter as free from rent, tribute, hosting, coigny, or any other claim of king or Toisech. Where there are Toisechs there are Tuaths, and the district of Buchan probably formed a Mortuath like the other districts ruled over by a Mormaer, the equivalent in Scotland of the Ri Mortuath of the Irish system.

The tribe in Dalriada.

The Scottish kingdom of Dalriada was at this time confined within very narrow limits, and could hardly claim a higher position than that of a Mortuath, as we find that it 213consisted of three tribes, termed, in the tract ‘Of the History of the Men of Alban,’ the three powerfuls in Dalriada. These were the Cinel Gabran, the Cinel Angus, and the Cinel Loarn, who traced their descent from the three sons of Eochaidh—Fergus, Angus, and Loarn—who led the colony from Irish Dalriada. We obtain from this tract some valuable information as to the constitution of these tribes. The Cinel Gabran occupied Kintyre in its old extent, including Knapdale, the district of Cowall, and the islands, that is, of Arran and Bute, and consisted of five hundred and sixty houses. The Cinel Angusa possessed Isla and Jura, and consisted of four hundred and thirty houses. The Cinel Loarn possessed the extensive district of Lorn, extending from Lochleven to the Point of Ashnish, and part of the opposite coast of Morvern, and consisted of four hundred and twenty houses. The districts thus occupied by these tribes surrounded an inner region, extending from the range of mountains called Drumalban to the arms of the sea termed Lochs Craignish and Crinan, consisting of the two districts of Lochaw and Ardskeodnish. This inner region seems to have been left to the older inhabitants of the country, and to have borne the name of Airgialla, possibly for the same reason that that name was applied to the extensive region in the heart of Ulster, wrested by the Scots under the three Collas from the Irish Picts.^[248] The houses of which these three tribes consisted seemed to have formed groups of twenty houses each, as we are told that their sea muster assigned twice seven benches or seats for rowers to each twenty houses, but the armed muster for the Sluaged or hosting was, for the Cinel Gabran three hundred men, for the Cinel Angusa five hundred men, and for the Cinel Loarn seven hundred men, but one hundred of these were furnished by the people of Airgialla.^[249]

The tribe in Galloway.

214The only other districts of modern Scotland in which a Gaelic population remained are those of the Lennox and of Galloway, and in the latter we can trace the remains of the same tribal system. Thus in the year 1276 we find King Alexander the Third confirming a charter by which Neil, Earl of Carrick, granted and confirmed to Roland of Carrick and his heirs the right of being head of their kin in all pleas relating to kenkenoll and the office of bailie, and the leadership of the men of the country under the earl. This shows that the Cinel or tribe, with its head or Ceannchinel, had formerly existed among the Gaelic population of Galloway; and the same thing is indicated by some notices of lost charters preserved in the ancient Index published in 1798. Thus there is a charter by David II. to Donald Edzear of the captainship of Clanmacgowin, and a charter ‘anent the Clan of Muintircasduff,^[250] John M‘Kennedy captain thereof;’ this term of Captain being the equivalent of the Toisech of the Irish and Scottish Gael,^[251] and the word Muintir, or people, being one of the appellations of a tribe.

Modification of original tribes under foreign influences.

These indications of the existence of a tribal organisation analogous to that in Ireland among the Celtic population during the period when, with the exception of Saxon Lothian, both king and people were Celtic, comprise in the main the information we are able to gain from the most trustworthy sources available to us; but after the purely Celtic dynasty of kings of Scottish race came to an end in the eleventh 215century in the person of Malcolm the Second, this tribal system became exposed to powerful external influences, which greatly modified its character, and finally resulted in its disappearance in the eastern districts under feudal forms, and its passing over in the mountainous regions of the north and west into the clanship which was afterwards found there.

Passing of the Mortuath into the Earldom, and the Tribe into the Thanage.

Soon after the death of Malcolm the Second the northern districts of Scotland fell under the dominion of the Norwegian Earl of Orkney, while the Celtic Mormaer of Moray reigned in a kingdom the centre of which was at Scone; but when the usurper was expelled by the heir through a female of the ancient line, and Malcolm Ceannmor was established on the throne by the powerful aid of the Angles of Northumberland under their Earl Siward, and the northern districts reverted to his sway on the death of the Norwegian Earl, Saxon influences became predominant; and the new dynasty, still more closely connected with the Saxons through the marriage of its founder with the Saxon Princess Margaret, found its support mainly in the Anglic population of Lothian, which now became the most important province of the extended monarchy. His son Eadgar reigned in reality as a Saxon monarch, and when on his death the kingdom was divided between his brothers Alexander and David, the former consolidated his kingdom north of the Firths of Forth and Clyde upon the basis of Saxon institutions, while the latter ruled over the districts of British Strathclyde and Anglic Lothian as a feudal lord, with Norman sympathies and supported by a powerful following of Norman nobles. During the reigns of Eadgar and Alexander there was a silent advance of Saxon colonisation, and a progressive assimilation of the people to Saxon customs, which led to a Saxon nomenclature being imposed upon their Celtic institutions which found analogous forms in the Saxon laws; and thus in the kingdom of Alexander the First we find the Celtic Mormaer 216appearing as Comes or Earl, while the name of Thanus or thane was applied to the Toisech,^[252] and the tribe territory is now termed Thanagium or Thanage. In the British district of Strathclyde the Celtic forms disappeared before the advancing feudalism of David; and when upon the death of his brother he became the first feudal king of all Scotland and its first lawgiver, the constitution of his kingdom was based upon the feudal system; and as its leading principle was that the king was feudal superior of all the territory, and all rights to land emanated from him, all land not given out as feudal holdings was held to be Crown land, and the tribe territories not placed under feudal lords, and now termed Thanages, were regarded as royal demesnes.^[253]

When Fordun, therefore, in the forty-third chapter of his fourth book, tells us that ‘of old almost the whole kingdom was divided into Thanages,’ he was not referring to that fabulous state of matters described in a previous chapter, when Thanes were supposed to be governors of provinces, with an Abthane over them as high steward—a state of matters which never existed in Scotland; but, as is evident from the context, to those smaller territories termed Thanages in his own day, and, viewing these Thanages as representing the more ancient Tuaths or tribe territories, he is reporting a genuine tradition of the tribal organisation which preceded the Saxon and feudal forms.

Distinction of people into free and servile classes.

The principal fragments of the ancient tribal law which we find still preserved in the subsequent legislation were those relating to the fines paid in compensation for different offences, analogous to those contained in the Irish and Welsh Laws; and these afford us the best indications of the different 217ranks or grades of society in the old tribal system. We find in Scotland, as in Ireland and Wales, the broad distinction between the free and servile classes. Thus in the laws of King William the Lion there is preserved this fragment of the older system ‘of the law that is callyt weregylt. Of euery thief through all Scotland the weregehede is xxxiiii. ky and one half, whether he be a freeman or a serf (liber sive servus).’^[254]

Classes of freemen.

Of the classes of freemen these laws regarding fines afford us complete information. Among the laws attributed to King David I. is a fragmentary code termed ‘Leges inter Brettos et Scottos.’ It is preserved in Latin, in Norman French, and in the vernacular Scotch. By the Bretti are meant the Britons of Strathclyde, and the term Scotti now comprehended the whole inhabitants of the country north of the Firths of Forth and Clyde. David had ruled over the former as earl during the reign of Alexander the First, and on his accession to the throne seems in this short code to have recognised as law the system of fines which existed among his Celtic subjects both of Gaelic and of British race, and to have included them in a short code applicable to both. It contains the fines paid in compensation for slaughter, termed here Cro, a word signifying death; but it is said to be equivalent to the Galnes or Galanas of the Welsh laws, and also to the Enauch or Honor price of the Irish. Another fine for slaughter is called Kelchyn, and the fines for ‘Blude drawn’ seem to be the Saraad of the Welsh. They were termed Bludwyts in Saxon and Fuilrath in Gaelic.^[255]

The Cro of the King of Scotland is said to be one thousand ‘ky’ or three thousand ‘ore’ or ounces of gold, three ounces being the value of a cow, and his Kelchyn is one hundred ‘ky.’

218The Cro of the king’s son,—that is, the Tanist of the Irish Laws, or of an Earl of Scotland, who is thus placed in the same rank,—is seven score ‘ky’ and ten ‘ky.’ His Kelchyn is three score ky and six ky and two parts of a cow; and for Blude drawn, nine ky.

The Cro of the son of an Earl, or of a Thane, who is placed in the same rank, is one hundred ky. His Kelchyn, forty-four ky and twenty-one pence and two-thirds of a penny; and for Blude drawn, six ky.

The Cro of the son of a Thane is three score ky and six ky and two parts of a cow. His Kelchyn is less by a third than his father’s, and is twenty-nine ky and elevenpence and the third part of a halfpenny; and for Blude drawn, three ky.

The Cro of the nevow or grandson of a Thane, or of ane Ogethearn, is forty-four ky and twenty-one pence and two parts of a penny. His Kelchyn is not given, but for Blude drawn it is two ky and two parts of a cow.

We are then told that all these who are lower in the kyn (parentela) are callit Carlis (rustici, vilayn), and that the Cro of a Carl is sixteen ky, that he has no Kelchyn, and that the ‘Blud’ of a Carl is one cow.

We have also in this code a section ‘Of thaim that are slayn in the peace of the King and other lordis.’

‘Giff ony man be slayn in the peis of our lord the Kyng, til him perteins nine score ky.’

If in the peace of the sone of the King or of an Earl, four score and ten ky.

If in the peace of the son of an Earl or of a Thayn, three score ky.

If in the peace of the son of a Thane, forty ky; and if in the peace of a nevo or grandson of a Thane, twenty ky and two parts of a cow.’^[256]

The names of the different ranks here are analogous to the Irish system, where the son of each grade occupied the rank 219of the next inferior grade.^[257] The Earl was the Scottish Mormaer, the Ri Mortuath of the Irish. The Thanus or thane was the Toisech. The Ogethearn is the Irish word Ogthighearna, one of the names applied to the second class of the Gradflatha,^[258] or those Aires who received stock from a superior Aire. They were also called Oglaochs. The fines occupy an intermediate place between those of the Irish and of the Welsh Laws, but most resemble the latter; and the distinction between the free and bond classes and the rights of the kyn are clearly indicated from the following addition it made to the account of the Kelchyn fine:—‘If the wife of a freeman (liberi hominis) be slain, her husband shall have the Kelchyn, and her kyn shall have the Cro and the Galnes. If the wife of a Carl (rustici, vileyn) be slain, the lord in whose lands he dwells shall have the Kelchyn, and her kyn shall have the Cro and the Galnes.’

A fragment has also been preserved giving the merchet or maiden-fee paid to the superior on the marriage of the daughter of a dependant. It is the Amobr or Gobr merch of the Welsh Laws:—‘According to the assize of the land of Scotland, the merchet of every woman, whether she be a serf or mercantile, was one calf or three shillings. If she was the daughter of a freeman who was not lord of a township, her merchet was one cow or six shillings. If the daughter of the son of a thane or of a ochethiern, two cows or twelve shillings. If the daughter of an earl, twelve cows.’^[259]

The fines which were paid for abstaining from attending the king’s hosting are preserved in the Statutes of Alexander the Second, where the following ‘record was made at St. Johnstoun or Perth before the king be all the “dempsteris” (judices) of Scotland in the seventh year of the king’s reign, or A.D. 1221,‘ after the king had been in hosting at Inverness 220against Donald Neilson.’ They thus declare that ‘of those that remained away from the host, the king shall have the forfeiture of the erlis if their thanes’ (that is, the earls’ thanes) ‘remained from the host; but how much that forfalture should be was not determined. Of all others which remained at home—that is to say, of the lands of bischopis, abbotis, baronis, knychtis, and thaynis which hold of the king, the king alone ought to have the forfalture; that is to say, of a thane, vi cows and a calf; of an ochtyern, xv sheep or vi shillings; but the king tharof shall have but the one half, and the thane or the knycht the other half. Of a Carl, a cow and a sheep; and they also are to be divided between the king and the thane or the knycht.’ ‘But when by the leave of the thane or the knicht they remained behind the king, he shall have all the forfalt. For no earl nor sergand of the erlis in the land of any man holding of the king ought to come to raise that default but the Erl of Fyffe, and he shall not come as earl but as the Mair of the king of his rights to be raised within the earldom of Fyffe. Of the Cairlis, however, where the king and the earl divide betwixt them, the king and the earl shall have the one half and the thane the other half; but where the thane falls in forfalt it shall be divided between the king and the earl, as in the laws of King William is declared.’^[260]

The analogy between this arrangement and the system of fines for withdrawing from hosting contained in the Irish Laws will be apparent at once, and the different grades here given are the same as those in the code of David I., though adapted to a period when the thane appears as the vassal of the king or of the earl, and the ochtyern as the vassal of the thane.

Ranks of bondmen.

The different ranks of the bondmen or unfree class have also been preserved in the code of laws termed Quoniam attachiamenta. They are there termed native-men (nativi), 221and we are told that there are several kinds of nativity or Bondage (nativitatis sive bondagii). For some are native-men of their grandfather and great-grandfather, which is commonly called de evo et trevo, whom their lord may claim to be naturally his native-men by narrating their progenitors, if their names are known, as his great-grandfather, his grandfather, and his father, who are challenged, declaring them to have been his native-men in such a township and in such a spot in that township, and to have made and rendered to him and his predecessors servile service in a servile land for many years; and this nativity or bondage may be proved by the kin of him who is challenged or by a good assize.

Another kind of bondage is similar to this, when any stranger receives servile land from any lord doing servile service for that land; and if he dies in that land and his son likewise dies in that land, and afterwards his son lives in the same land and dies there, then his whole posterity to the fourth degree shall be of servile condition to his lord, and his whole posterity may be proved in a similar manner.

The third kind of nativity or bondage is when a freeman, in order to have a lord or the maintenance (manutenencia) of any great man, gives himself up to that lord to be his native or bondman (nativum seu bondum) in his court by the hair of his forehead; and if he thereafter withdraws himself from his lord, or denies his nativitie to him, his lord may prove him to be his native-man before the justiciary by an assize, challenging him that he in such a day in such a year came to him in his court and gave himself up to be his man; and if any one is adjudged to be the native or bondman to any lord, that lord can seize him by the nose and reduce him to his former servitude, taking from him all his goods to the value of four pence.^[261]

These definitions of the different kinds of nativi or bondmen may no doubt apply to a later period than we are now 222referring to, and be more or less connected with feudal forms, but we may, notwithstanding, infer that they preserve the characteristics of the servile class in Celtic times; for, although the upper classes may in the Lowland districts have been superseded by Saxon or Norman proprietors holding their lands in feudal tenure, the servile occupiers of the soil of Celtic race who were attached to the land would remain and become the villains of the feudal lord; and so we find that wherever they appear in the Chartularies they possess Celtic names.

We see from the above description that their connection with their lord was of two kinds—first, by occupying under him servile land; and second, by placing themselves under him as personal bondmen; and of the former class, they were either natives by descent or strangers who had taken land from him, and the latter became native serfs after four generations. Here we recognise at once the Sencleithe or old adherents of the Irish law, and the Bond Fuidhir, who became Sencleithe after four generations. The latter class of personal serfs are the Mogha of the Irish and the Caeth of the Welsh Laws. The Celtic names by which these two classes were known in feudal times have also been preserved to us. Thus, in the Chartulary of Scone, King William the Lion grants a mandate directing that if the abbot of Scone or his sergands shall find in the lands or in the power of others any of the Cumlawes and Cumherbes pertaining to his lands, he may reclaim them;^[262] and in the Chartulary of Dunfermline, the foundation charter by King David the First grants that all his serfs and all his Cumerlache from the time of King Edgar shall be restored to the Church wherever they may be found, and the scribe interprets the word Cumer lache by fugitivi on the margin; and in a mandate by the same king to the same effect the title is ‘Of the fugitivi which are called Cumerlache.’^[263] In the 223last syllable of the name Cumherbes or Cumarherbe we can recognise the Irish word Orba, applied to that part of the tribe territory which had become the private property of the chiefs; and this name was no doubt applied to that class of serfs whose bondage was derived from their possessing servile land. They were the ascripti glebae of feudal times. The term Cumlawe or Cumarlawe is simply a translation of the Latin term manutenencia, which characterised the third kind of bondage above described, and whose tie to their master being a personal one, led to their frequently escaping from hard usage and being reclaimed as fugitives.^[264] Thus among the laws of King William the Lion we find one declaring that any one who detains a native fugitive man (nativi fugitivi) after he has been demanded by his true lord or his bailie, shall restore the said native-man with all his chattels, and shall render to his lord the double of the loss he has sustained.^[265]

Measures of land.

As in Ireland and Wales, so also in Scotland, the ancient measures of land were closely connected with the tribal system, but here too we find them more greatly affected by external influences than in the two former countries. When we examine the most ancient land-measures of that part of Scotland lying north of the Firths of Forth and Clyde, we do not find the same local varieties which can be traced in the different provinces of Ireland and Wales, but instead, a great and leading difference between those of the eastern and the western districts. In the eastern districts there is a uniform system of land denominations consisting of Davachs, Ploughgates, and Oxgangs, the davach consisting 224of four ploughgates, and each ploughgate of eight oxgangs; but as soon as we cross the great chain of mountains separating the eastern from the western waters, we find a different system equally uniform. The ploughgates and oxgangs disappear, and in their place we find davachs and penny lands. The portion of land termed a davach is here also called a Tirung or ounce land (unciata terra), and each davach or Tirung contains twenty penny lands.

The davach^[266] being the only denomination common to both parts of the country, we may infer that it belongs to the old Celtic system of land-measures, and that the others are foreign importations. Now we find in the ancient province of Lothian, which originally formed part of the Anglic kingdom of Northumbria and possessed an Anglic population, the land-measures consisted of Carucates or ploughgates, and Bovates or oxgangs. The oxgang contained thirteen acres, two oxgangs made a husband-land, and eight oxgangs a ploughgate, which thus consisted of 104 acres of arable land. On the other hand, in the islands of Orkney and in the district of Caithness, which were formerly a Norwegian earldom under the king of Norway, we find the land was valued according to a standard of value derived from the weight of silver, the unit being the ounce or Eyrir, eight ounces forming the Mörk or pound, and twenty pennings one ounce,^[267] and thus the land-measures consisted of Oers or ounce lands, the ounce lands containing either eighteen or twenty penny lands. They seem to have been so called, because under the Norwegian rule each homestead paid one penny as scat.

225It is therefore a fair inference that, with the Saxon colonisation, the Saxon denominations superseded the older Celtic lesser denominations, as forming the subdivisions of the Davach in the eastern districts, while in the western seaboard and in the islands, which were for a time under Norwegian rule, the Norwegian denominations replaced the Celtic, but in both cases they were adapted to the existing divisions of land, which could not be altered without interfering with the whole framework of society. The Carucate or ploughgate was a term known to the Irish system, and may likewise have existed in Scotland in Celtic times, as it appears in Highland charters under the name of Arachor, the Gaelic equivalent of the Latin Aratrum,^[268] but seems sometimes to have contained 160 acres in place of 104, and consisted of a definite measure of arable land with common pasture;^[269] and we find from a charter of a Carucate or ploughgate of land on the Nith, that the common pasture carried 24 cattle and 100 sheep,^[270] and the minor terms can probably still be traced in the topography of the districts. We have the words Ballin, Bal, from Baile, a town, entering into many local names in both parts of the country, as well as the word Teaghlach or family, corrupted into Tully and Tilly, as in Tullynessle, Tillymorgan, etc. Then in the east there are the Pits, the old form 226of which, as appears from the Book of Deer, was Pette or Pett. It is there uniformly connected with a personal name, as if it was applied to a single homestead, as in Pette mac Garnait, Pett mac Gobrig, and Pett Malduib, and the affix Pitt seems to have a similar meaning in the old entry in the Chartulary of St. Andrews, where we read of the ‘villula’ or homestead, which is called Pitmokane.^[271] In the western districts we find the penny land also entering into the topography, in the form of Pen or Penny, in such names as Pennyghael, Pennycross, Penmollach, while the halfpenny becomes Leffen, as in Leffenstrath; and if the group of twenty houses, which we found characterising the early tribe organisation in Dalriada, was the Davach, then we obtain the important identification of these houses or homesteads with the later penny lands. We find notices in the charters connected with this part of the country of the Shammark, equal to two penny lands, of Cow lands, probably the Irish Ballyboe, and of Horsegangs.^[272] When these western districts fell under the rule of the Scottish monarchs, the valuation of land called the Old Extent seems to have been to some extent introduced. In the eastern districts it corresponded so far with the land measures, that the ploughgate was the same as the forty shilling or a three-merk land;^[273] but the merk land in the west appears to have had no uniform relation to the penny land, though in Lochaber we find that five penny lands were equal to a forty-shilling land, which seemed to indicate that here also the ploughgate was the fourth part of a Davach, and consisted of five homesteads; on the other hand, we are told that each 227township in Isla consisted of two and a half merk lands.^[274] The state of these districts probably gave the Davachs and penny lands a fluctuating value, which depended more upon the pasture and the stock it carried than on the arable land. There is an old tradition that the Davach was land capable of pasturing 320 cows, and that a merk land was as much land as would graze twelve milch cows, ten yeld cows, including three-year-olds, twelve two-year-olds, twelve year-olds, four horses, four fillies, mares and followers, one hundred sheep, and eighty goats.^[275] The two systems of land measure appear to meet in Galloway, as in Carrick we find the measure by Penny lands, which gradually become less frequent as we advance eastward, where we encounter the extent by merks and pounds, with an occasional appearance of a penny land, and of the Bovate or oxgang in Church lands.

Burdens on the land.

The burdens upon the land held by the community in Scotland seem to have been principally four. We find them still attaching to the Crown and the Church lands during the twelfth and thirteenth centuries, and they are analogous to those connected with the Irish tribe system. They were Cain, Conveth, Feacht, and Sluaged. The two former were fixed payments in kind. The two latter were services to which the possessor of the land was subject. They are rendered in Latin by the words expeditio and exercitus. We find these burdens in both of the leading divisions of the country north of the firths. Thus, by a deed dated at Lismore in the year 1251, Sir Ewen, son of Duncan de Erregathil (Argyll), granted to William, bishop of Argyll, fourteen penny lands in Lismore, free of all secular exactions and 228dues—viz., Cain, Coneveth, Feacht, Sluaged, and Ich—and of all secular services;^[276] and similarly Roger, bishop-elect of St. Andrews, granted between 1188 and 1198, when he was consecrated, the lands of Duf Cuper to the church and canons of St. Andrews, free of ‘of ‘Can et Cuneveth et exercitu et auxilio et ab omni servicio et exactione seculari.’^[277]

The Cain or Can.

We find during this period that these dues and services were derived by the king from the Crown lands, and by the superiors from lands not held feudally. Thus King David grants to the monks of Dunfermline the tithe of his whole Can from Fif and Fothrif, likewise the tithe of his Can of Clacmannan, and the half of his tithe of Ergaithel (Argyll) and Kentir in that year, to wit, in which he receives Can from it, and these grants are repeated by his successor Malcolm IV.^[278] King David likewise grants to the church of Urchard (Urquhart) the tithe of the Can de Ergaithel de Muref, that is, that part of the great province of Ergadia or Ergaithel which belonged to Moray, extending from the Leven to the border of North Argyll.^[279] King William confirms to the bishop of Moray the Cana et Coneveta which his predecessors had received from those who held land of the bishops during the time of King David and King Malcolm;^[280] and in an agreement in 1225 between the bishop and Walter Cumyn of Badenoch, the bishop frees him from any claim he had for the tithe of the Can of his lord the king from the lands of Badenoch.^[281]

In Aberdeenshire we find the Earl of Mar granting to the bishop of St. Andrews the tithe of the ‘redditus’ or Can of his whole lands;^[282] and Thomas the Hostiary gives to the canons of Monimusk ten bolls of meal and ten stones of 229cheese from his lands of Outherheicht, which is afterwards called the Can of Houctireycht.^[283]

In Mearns or Kincardine Earl David of Huntingdon grants to the church and canons of St. Andrews the whole Kan and Kuneveth, which they were due him, from the lands of Ecclesgirg, and the services which his men of Eccleskirch were bound to render him.^[284] Then in the beginning of the thirteenth century the record of a dispute between the bishop of St. Andrews and the abbot of Arbroath is preserved to us in the chartulary of that church, regarding the lands of Fyvy, Tarves, Innerbondy, Munclere, Gamery, Inverugy, and Monedin, and the Can or redditus and Conevet of these lands, which the bishop resigns to the abbot free of every exaction, reserving to himself the ancient ‘redditus’ of Monedin, viz., three shillings and sixpence, and the portion of the Conevet which was wont to be paid at Bencorin or Banchory; and in the same Chartulary there is a grant by King William to the abbey of Arbroath of the ferry and ferrylands of Munros, to be held free ‘ab exercitu et expeditione et operatione et auxilio et ab omnibus consuetudinibus et omni servicio et exactione;’ and the earl of Angus grants them the lands of Portincraig in similar terms, as free ‘ab exercitu et expeditione et exactione multure et ab omnibus auxiliis et geldis et omnibus serviciis et exactionibus;’ the ‘exercitus’ and ‘expeditio’ being the Sluaged and Feacht of the Gaelic charters.^[285]

Then in Fife we find in a rental of the earldom a certain firma or rent which is termed Canus, with ten shillings of the Can of Abernethy; and in Stratherne we find the bishops of Dunkeld confirming to the canons of Inchaffray the lands of Maderty, which is called Abthan, and the freedom 230from the Cane and Coneveth which the clerics of Dunkeld were wont anciently to receive from these lands.

These notices will be sufficient to show that these Celtic burdens on land prevailed over the whole of the country north of the Firths, on the crown lands and those of the church, and on all lands which had not become the subject of feudal grants.

Passing then to the country south of the Firths, we find them equally prevalent, except in the great Anglic province of Lothian. Thus King David grants to the church of Glasgow the whole tithe of his Chan in the beasts and pigs of Strathegrive and Cuninghame, Kyle and Carrick, in each year, unless the king himself shall go to dwell there and consume his own Chan.^[286] These districts formed the greater part of the ancient British kingdom of Strathclyde, and this was an appropriate grant to the church of Glasgow, which had been its metropolitan church. Then we find the lords of Galloway granting lands in that district to the canons of Holyrood, free from all ‘Can and Cuneveht and from every exaction, custom, and secular service;’^[287] and finally, at a court held by the judges of Galloway at Lanerch in the reign of King William the Lion, in presence of the Lord of Galloway, it was adjudged that ‘when the king ought to receive his Can from Galloway he should issue his breve to the Mairs of Galloway, and the Mairs should go with the royal breve to the debtor of the Can and exact the Can from him. If he fail to pay, the Mair was to take the rod or staff, called the king’s staff, and take a distress for the king’s Can, and if the debtor removed the subject of the distress he was to pay for each ten cows fifteen cows, besides a hundred cows de misericordia; but if he delivered part of the Can, till after the Nativity he was to pay for each cow four shillings of cow-tax, and for each pig sixteen pence, and before the Nativity 231the debtor was to deliver cows worth forty pence, and if he stated on oath that he had no pigs, he was to pay for each pig seventeen pence.’^[288]

This last notice will explain in some degree what the burden termed Cain or Can really was, and how it was exacted. It consisted of a portion of the produce of the land, in grain when it was arable land, and in cattle and pigs when pasture land. It was in fact the outcome of the Bestighi or food-rent of the Irish laws, and the Gwestva of the Welsh laws, paid by every occupier of land to his superior. Over the whole of Scotland, except in Lothian, it was a recognised burden upon the crown lands and upon all land not held by feudal tenure, but it ceased as soon as the possessor of the land was feudally invested. Thus we find in the Moray Chartulary an agreement between the bishop of Moray and Thomas de Thirlestan, who had received a feudal grant of the lands of Abertarff, regarding a half-davach of land, which the bishop asserted belonged to the church, and regarding the tithes of the royal Can payable from the lands of Abertarff before his feudal investiture (ante infeodationem). There is a similar agreement between the bishop and James, son of Morgund, regarding certain lands in his fief of Abernethy, and regarding the tithes of the Can which was wont to be paid to the king from these lands before his feudal investiture, and another between the bishop and Gilbert the Hostiary regarding the tithes of the Can which he was wont to pay annually to the king from the lands of Strathbroc and Buleshe before his feudal investiture (ante infeodationem).^[289] The Can or Chan was so termed from the Gaelic word Cain, the primary meaning of which was ‘law.’ It was the equivalent of the Latin word canon, and like it was applied to any fixed payment exigible by law.^[290]

Conveth.

232Conveth was the Irish Coinmhedha or Coigny, derived, according to O’Donovan, from Coinmhe, which signifies feast or refection. It was the Dovraeth of the Welsh laws, and was founded upon the original right which the leaders in the tribe had to be supported by their followers. It came to signify a night’s meal or refection given by the occupiers of the land to their superior when passing through his territory, which was exigible four times in the year, and when the tribe territory came to be recognised as crown land, it became a fixed food contribution charged upon each ploughgate of land. Thus in the charter by King Malcolm the Fourth, confirming the foundation of the abbey of Scone, he grants to the canons from each ploughgate of the whole land of the church of Scone in each year, at the Feast of All Saints, for their Coneveth, one cow and two pigs, and four Camni of meal, and ten threaves of oats, and ten hens and two hundred eggs, and ten bundles of candles, and four pounds of soap, and twenty half meales of cheese.^[291]

In the reign of Alexander the Third this word seems to have assumed the form of Waytinga, and appears in the Chamberlain Rolls of his reign as a burden upon the Thanages. Thus the Chamberlain renders an account of the Waytingas of Forfar and Glammis, of the Waytinga of one night of Fettercairn, of the Waytingas of four nights in the year of Kinross, and ‘of the rent of cows of two years,’ that is to say, of the Waytingas of two nights in the year of Forfar, forty-eight cows, and of the Waytinga of (one) and a half nights of the Thanage of Glammis, twenty-seven cows.^[292]

233Another name for this exaction was Cuidoidhche, or a night’s portion, corrupted into Cuddiche or Cuddicke. It appears under this name mainly in the Highlands and Islands, and was continued as a burden on the lands to a late period. In the rentals of South and North Kintyre for 1505 we find, besides firma or rent, each township charged with a certain amount of meal, cheese, oats, and a mert or cow, pro le Cuddecht. A description of the Western Isles written between 1577 and 1595, has preserved a record of these payments. Lewis, a forty pound land, pays yearly 18 score chalders of victuall, 58 score of ky, 32 score of wedderis, and a great quantity of fishe, poultry, and white plaiding by their Cuidichies—that is, feasting their master when he pleases to come in the country, each one their night or two nights about, according to their land or labour. In Uist each merk land paid 20 bolls victual, besides other customs which are paid at the landlord’s coming to the Isle to his Cudicht; and in Mull each merk land paid yearly 5 bolls bear, 8 bolls meal, 20 stones of cheese, 4 stones of butter, 4 marts, 8 wedders, 2 merks of silver, and 2 dozen of poultrie by Cuddiche, whenever their master comes to them. Under the name of Conyow or Coigny it appears in Iona, when, in a contract between the bishop of the Isles and Lauchlan M‘Lean of Dowart, in 1580, the latter becomes bound that he ‘sall suffer na maner of persoun or personis to oppress the saidis landis of Ycolmekill (Iona) and Rosse, or tenantis thaireof or trouble or molest thame in ony sort with ather stenting, Conyow, gerig service or ony maner of exactioun.’^[293] In Atholl we find the vassals of Strathtay and their tenants ordered as late as in 1719 to pay their Cudeichs according to ancient use and wont. These included two pecks of corn, one threave of straw, and six shillings Scots for maintenance of the superior’s horses and servants who wait on them, out of each twenty shilling land; and in 1720 it is ordered that the 234accustomed corn and straw and other casualties paid yearly as Cuddeichs out of each merk land be taken up, excepting always the land laboured by the vassals for their own use.

A similar burden under different names emerges in Galloway, when in a charter by David II. to Sir John Heris, knight of the barony of Terreglis, in Dumfriesshire, in which it is declared ‘free of Sorryn and Fachalos unless officers come through it with a robber or with the head of a robber; and if they, the king’s officers, can pass beyond the barony before sunsetting, they shall have nothing for their expenses, and if they cannot pass beyond the barony before sunsetting they shall have hospitality for that night (hospicium ad hospitandum),’ etc. Sorren was a tax imposed in Ireland upon the possession of land for the clothing, feeding, and supporting the galloglasses and kernes. It was originally a night’s meal upon land passed through, and Fachalos was probably the Irish Fechtfele, which is explained as ‘the first night’s entertainment we receive at each other’s house.’^[294]

Expedition and hosting.

The Feacht and Sluaged (expeditio et exercitus) consisted of a general obligation, originally upon the members of the tribe, and afterwards upon the possessors and occupiers of what had been tribe territory, to follow their superiors and chiefs as well as the Ardri or sovereign in his expeditions and wars. They are usually termed expedition and hosting, and in Scotland the burden was apportioned upon the davach of land. It is probably this burden that is referred to in the Book of Deer, where we are told that the ‘Mormaer and Toisech immolated all the offerings to God and to devotion, and to Saint Columcille and to Peter the Apostle, free 235from all the burdens, for a portion of four davachs of what would come on the chief tribe residences generally and on the chief churches.’ These obligations seem to have constituted what is called in charters Scottish service (servitium Scoticanum), and were of two kinds, internal and external, the one representing the Feacht or expedition, and the other the Sluaged or hosting. We find them distinguished in a charter by Waldevus de Stratheihan to the church of St. Andrews of the lands of Blaregeroge, which are granted ‘free from all exaction and service, internal and external’ (sine omne exactione et servitio intrinseco et forinseco);^[295] and their connection with the Davach appears very clearly from three Charters, one by Alexander II. to the abbey of Scone of the lands of Magna et Parva Blar, which contains in the reddendo the clause, ‘rendering the external service only which pertains to five davachs of land, that pertaining to the sixth davach being remitted.’^[296] In another by the Earl of Stratherne to Willelmus de Moravia, the lands are granted free of ‘every service except the external Scottish service of our lord the king;’king;’^[297] and in a third charter by Alexander the Second to the abbey of Arbroath of the lands of Tarvays, consisting of four davachs and a half davach and quarter davach, they are granted ‘rendering the external service in the army which pertains to the said lands.’^[298] We have seen that the Feachtmara or sea expedition of each tribe in ancient Dalriada was attached to each twenty houses, corresponding to the twenty penny lands which formed the davach in the west, showing very clearly that even at this early 236period the Davach was the measure of land by which this burden was regulated.

Such, then, were the burdens connected with the ancient tribal organisation as depicted in the Irish and Welsh Laws which we find still attached to the thanages, as well as to all the crown and church lands not held on a feudal tenure. They consisted of, first, a share of the produce of the land and the stock, of the personal services of certain of the tenants, and of various fines, which were all included in the general term of Cain; secondly, of rights of entertainment and support for a certain number of nights in the year, under the name of Coinmhedha or Coneveth, Cuidoidhche or Cuddechie, Waytinga, Sorren, and Fachalos, and assessed on homesteads or penny lands in the west, twenty of which made a davach; and on Carucates or ploughlands in the east, four of which constituted the davach; thirdly, of the Feacht or expedition,—the burden of joining in expeditions within the kingdom or territory; and fourthly, of the Sluaged or Scottish service of hosting,—that is, the burden of attending the king’s army or host when assembled for the defence of the kingdom or for hostile invasion; and of all these burdens the various grades connected with the land had their Cuid or share in definite proportions.

Assimilation to feudal forms.

These old Celtic tenures, however, became gradually more and more assimilated to feudal forms as the kingdom with its mixed population assumed more the aspect of a feudal monarchy, and its kings adapted the customs of their subjects of different race to the model of those of the feudal law. In this progress of adaptation we can trace two distinct stages,—one when the crown lands came to be considered as held upon a distinct tenure termed in England fee-farm, in Scotland feu-farm, and in Latin charters feodifirma; and again, when the War of Independence which followed on the death of the last of the kings of the race of Malcolm 237Ceannmor and the contest between the houses of Bruce and Baliol led to numerous confiscations of the land held by their partisans on both sides, and to the general conversion of the crown grants into feudal tenures for military service.

Tenure in feu-farm.

The tenure of crown lands in feodifirma, or feu-farm, appears in England as early as the reign of King John, and must have then been already well established, as one of the stipulations in the articles of the Barons which led to the great charter of liberties or Magna Charta, and repeated in the latter, is, that if any one holds of the king per feodifirmam, or on sokage or burgage tenure, and of another for military service, the king is not to have the custody of the heir or of his land who holds of another in fee by reason of his fee-farm, sokage, or burgage holding of the king, nor shall he have the custody of the latter unless the fee-farm owes military service;^[299] and in Scotland it was evidently recognised as a tenure holding of the Crown in the reigns of William the Lion and of Alexander the Second. The tenure in feu-farm or feodifirma was in fact an intermediate tenure between those who had merely the usufruct of land the right of property in which still remained with the granter, and those who held land as his vassal by a formal feudal grant for military service. Of the two words of which the name is composed, Firma—derived from the Saxon feorm—was the share of the produce of the land paid by a tenant to his landlord by way of rent; and to hold land ad firmam or in firma was equivalent to the modern leasehold tenure: it was constituted by a lease and completed by possession, and the tenant was called firmarius; but feodum is the feudal fief granted by charter and completed by seisin or infeftment. The tenure in feodifirma, therefore, was a feudal grant of land, not for military service, but for a firma or permanent rent, and was equally constituted by charter 238and seisin. Such lands were held ad feodifirmam, the annual payment was the feodifirma, and the holder was called feodifirmarius. These grants were supposed to resemble the Roman Emphyteusis, and the form still exists in Scotland in our modern feu-charter, in which the same expressions are used. In these the land is conveyed ‘in feu-farm, to be held in feu-farm fee and heritage for ever,’ for payment of an annual ‘feu-duty,’ and the granter is called the ‘feuar.’ It is, however, essentially a feudal holding, and differs from a mere tenancy by lease in this—that in the former the dominium utile of the land is conveyed by charter to the vassal, while in the latter the usufruct of the land is solely given, and the property of the soil remains with the granter.^[300]

Ranks of society on Crown lands.

When the thanage came to be considered as crown land it assumed an appearance, with its thane holding it under the Crown and paying a share of the produce as Cain, which was so analogous to that of the feu-farm holding, that when feudal forms became more generally adopted it almost unavoidably passed over into the latter; and it is at this stage of the history of the thanage, when it was universally recognised as a feu-farm holding, that the very important description of the tenure of crown lands given us by Fordun in his Chronicle, to which we have already adverted, more directly applies. We must now examine this description more in detail.

Fordun divides the possessors and occupiers of the crown lands into three classes, beginning his description with the lowest class, and proceeding through the different ranks till he reaches the Thane; but it will be more convenient for our purpose to invert the order in which he describes them. 239He introduces his description by stating that the kings were accustomed of old to give to their soldiers more or less of their lands in feu-farm a thanage or portion of some province, of which, however, he gave to each as it pleased him. Then follow the three classes. The highest he terms principes, thani, and milites. To these, who were few in number, he gave the land in perpetuity, but under the burden of a certain annual payment to the king. The word principes here, probably, means the earls of those ancient earldoms who represented the old Mormaers, and whose demesne was held to have been originally part of the crown land.^[301] The thani represented the older Toschachs, and here we find the Toschachs or thanes holding the demesne of the thanage of the king in feu-farm, and paying an annual feu-duty, first in kind, and retaining its original name of Cain, but afterwards commuted to a money payment. Accordingly, in the laws of William the Lion and of Alexander the Second we find them in the position of crown vassals holding of the king in capite. Thus in an assize held at Perth by King William the Lion there were present the bishops, abbots, earls, barons, thanes, and whole community or estates of the kingdom. Again, a law passed in A.D. 1220, regarding persons absenting themselves from the king’s army, mentions those belonging to the lands of bishops, abbots, barons, knights, and thanes who hold of the king.^[302] By milites, Fordun here means those who held 240a portion of the thanage termed a tenement or tenandry, either direct from the king, or, as was more usual, under the thane or lord as a sub-vassal, as distinguished from the demesne.^[303] These formed the class termed freeholders or libere tenentes, and were bound to yield certain services as suit and service in the court of the overlord and Scottish service to the king. This class is frequently alluded to in the laws both of William the Lion and of Alexander the Second. Thus in a statute of King William the Lion in 1180, regarding the holding of barony courts, it is provided that neither bishops nor abbots, nor earls nor barons, nor any freeholders (libere tenentes) shall hold courts unless the king’s sheriff is summoned, etc. Again, in a statute regarding justice and sheriff moots, we have barons, knights (milites), and freeholders (libere tenentes) classed together; and a statute regarding the mode of citation refers to persons cited to attend the moots of the justiciary shiref, baron, vavasour (that is, of one holding of a baron), or of any freeholder (libere tenentis) that has a court. Then a declaration regarding the freedom of the Church is made by King William at Scone, with the common consent and deliberation of the prelates, earls, barons, and freeholders (libere tenentium); and finally there is a statute by the same king that the earls, barons, and freeholders (libere tenentes) of the 241realm shall keep peace and justice among their serfs, and that they shall live as lords from their lands, rents, and dues, and not as husbandmen or sheep-farmers, wasting their property and the country with a multitude of sheep and beasts, thereby troubling God’s people with penury, poverty, and destruction; this curious statute showing not only the position of the libere tenentes as proprietors, but that there was a tendency even at this early period to withdraw land from culture and convert it into pasture land.^[304] Then in the Statutes of Alexander the Second there is one de modo duelli secundum conditionem personarum, in which reference is made to the miles or knight, or son of a knight, or any libere tenens or freeholder in feodo militari or knight’s fee. Again, in another law, the king statutes that if any miles or knight shall be indicted by inquest, he shall pass through an assize of good and leil knights, or of freeholders of heritage (libere tenentium hereditarie);^[305] and their position is clearly indicated by a provision in the Quoniam attachiamenta, that any freeholder (libere tenens) whose tenement is by his infeftment free from all service, shall fall to a lady by reason of her terce, and unwittingly did service to her, shall not be liable in similar service to his superior.^[306] This view of the position of the libere tenentes as freeholders holding land under the thane or baron as sub-vassals of the Crown, is corroborated by a few charters which may be noticed. Thus Robertus de Keth, lord of the same and of the barony of Troup and Marischall of Scotland, grants certain lands within the barony of Troup to his son John de Keth, with the bondmen, bondages, native-men, and their followers, but reserving to himself the superiority and service of the freeholders (libere tenentium) of the lands of Achorthi, Curvi, and Hayninghill, lying within the barony of Troup. Again, 242Morgund, son of Albe, grants to his son Michael one davach of his land of Carncors in Buchan, to be held of himself in fee and heritage for ever, as freely as any freeman (liber homo) can grant land; and Alexander Cumyn, Earl of Buchan, grants to Fergus, son of John de Fothes, the tenement of Fothes, with its bondmen, bondages, native-men, and their followers, to be held of himself and his heirs in fee and heritage for ever, as freely as any freeman (liber homo) can hold (tenet) any tenement of any earl or baron within the kingdom, rendering such form in service to the king as pertains to their lands, and a half-pound of wax to us and our heirs in lieu of all secular service or demand which we can exact in future.^[307]. This class appears to be meant by the Ogethearn of the old laws, who ranked next after the thane.^[308]

The second of Fordun’s groups consists of those whom he terms liberi et generosi, who held portions of land either for ten or for twenty years or during life, with remainder to one or two heirs. These were the tenants in the modern 243sense of the term. The former were the liberi firmarii of the statutes, or free farmers, and the latter the kindlie tenants or tacksmen, who were usually near relations of the lord of the land, and when they had a liferent possession of land, occupied an intermediate position between the libere tenentes or freeholders and the firmarii or farmers, and may in fact be classed with either.^[309] We find in this group a resemblance to the Ceile or tenants of the Irish Laws in two respects. First, in the steelbow tenancy, by which many of these tenants held their land, and were sometimes called steelbow-men. By this tenure the landlord provided the stock and implements called steelbow goods, which were transferred to the tenant on valuation; and he was bound on the termination of his lease to return stock and implements to the same value, while the rent paid for the land was higher in proportion to the value of the steelbow goods. Secondly, the smallest possession held by a free farmer appears to have been two bovates or oxgangs of land, or the fourth of a ploughgate, called in some parts of the country a husband-land; and we find that in the north of Scotland the name of Rath was given to this portion of land, a name which in the Irish Laws signified the homestead, which formed the lowest single tenancy. Thus William, son of Bernard, grants to the monks of Arbroath ‘two‘two bovates of land, which are called Rath (que vocantur Rathe), of the territory of Katerlyn (in Kincardineshire), with the right to pasture twenty beasts and four horses on the common pasture of Katerlyn; and the same person grants to the monks two other bovates of land in the territory of Katerlyn, consisting of seven acres of land adjoining their land which is called Rathe, on the north, and nineteen acres of land adjoining these seven acres on the seaside towards the east, 244under that culture which is termed Treiglas, thus making up the twenty-six acres of which a husbandland consisted.’^[310] The word Rath enters largely into the topography of Scotland, under the forms of Rait, as in Logierait; Ra, as in Ramorny; Rothy, as in Rothiemay and Rothiemurchus, anciently Rathmorchus.

The last of Fordun’s groups consists of those termed Agricolœ or husbandmen, holding land from year to year for rent (ad firmam). They are distinguished from the liberi or freemen, and belonged to the class of holders of servile tenements termed in the laws Rustici. This class of servile tenants seems to form the object of the first laws made by Alexander the Second on his accession in A.D. 1214. They are issued at Scone, with the common council of his earls, for the profit of the country, and provide that the ‘Rustici in those places and townships in which they were the previous year shall exercise their agriculture and not neglect their own profit, but shall begin to plough and sow their lands with all diligence fifteen days before the Feast of the Purification (second of February); and that those Agrestes who have more than four cows shall take land from their lord and plough and sow it, to provide sustenance for them and theirs; and those who have less than five cows may not use them in ploughing, but shall labour the land with hands and feet, trenching and sowing as much as is necessary for the sustenance of them and theirs. Those that have oxen shall sell them to those that have land to plough and sow. Earls not allowing those who have such lands on their earldoms to do so shall forfeit eight cows to the king; and if any one holding of the king shall neglect to do so, he shall forfeit eight cows to the king. If he hold of an earl, he shall 245give the earl eight cows. If he be a serf, his lord shall take from him one cow and one sheep, and thenceforth shall force him who will not do it of free will; and the king adds the following warning to them to take heed that that does not happen to them which is taught in parables. He who will not plough in winter owing to severe cold shall beg in summer, and it shall not be given him, but rather according to the judgment of the apostle—Let them labour with their hands, working what is good, that they may have to give to those who are in necessity.’^[311]

The thanage then consisted, like all baronies, of two parts, demesne and that part given off as freeholds (libera tenementa) or tenandries. The demesne was held by the Thane of the king in feu-farm, and cultivated by the servile class, the bondmen and native-men, and the tenandries were either held of him in fee and heritage by the sub-vassals called freeholders or libere tenentes, or occupied by the kindlie tenants and free farmers.

Such was their position prior to the death of Alexander the Third, the last king of the old dynasty, and a similar description would apply to those thanages which did not form part of the crown lands, but were held under earls of the ancient earldoms north of the Forth as part of their demesne,^[312] or of the Church.

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