Volume 1 — CHAPTER IX. The State.

Scotland in the twelfth and thirteenth centuries still retained many of the features of a confederated rather than of a consolidated kingdom, acknowledging indeed, even in the earlier portion of that period, the rule of one reigning family, but scarcely recognising the authority of the same laws and customs, or bound together by the ties of kindred, origin, and language. Between Forth and Tweed lay Lothian, bordering towards the western frontiers upon the Cumbrian principality and Galloway; both the former provinces having been annexed to the Scottish crown by a course of successful aggression, if not by actual conquest, though Galloway was still rather a tributary dependency than an integral portion of the kingdom. Lothian, apparently, preserved the same laws that were in force throughout Saxon Northumbria before the reign of Canute; whilst two centuries of the dominion of a Scottish line of princes over Cumbria must have introduced a Scottish proprietary very generally throughout the province, without effecting any material alteration in laws and customs, which, based upon the Celtic principle of government, differed probably little, if at all, from the code then and long afterwards retained in Galloway.

Northward of the Scots-water two great divisions were recognised, Scotia, or Scotland proper, and Moravia. The former embraced the whole of the Lowland districts from the Spey to the Forth, extending to the summit of the Mounth or Grampian range; thus including the earldoms of Mar, Buchan, and Angus, Fife, Atholl, Strathearn, and Menteith, with Gowrie and Stormont, the Merns and other districts retained more directly in the king’s hands; together with the whole of “Scottish Argyle,” which, before the creation of the shire and bishopric, was connected with Atholl and the Abbacy of Glendochart; whilst Cantyre and Cowal depended upon the earldom of Menteith. Moravia was made up of the earldoms of Moray, forfeited in the earlier portion of David’s reign; Caithness, which still included Sutherland, then extending as far as Dingwall; and Ross, a sort of debatable land between the Gall-Gael, Oirir-Gael, and ancient Mormaors of Moray: with “Northern Argyle,” or that portion of the territories of the Oirir-Gael which reached, at this period, from the northern boundaries of the modern county to the frontiers of the Gall-Gael in Sutherland.[270] Feudal tenure, in the later Anglo-Norman acceptation of the word, was unknown throughout these provinces at the accession of Alexander the First; though the earlier system of government, once existing amongst a number of independent tribes and confederacies, had long given place to the royal authority wherever the rights of the crown—as was certainly the case in Scotia—were thoroughly established. But though the principle of the system was changed, the features remained very much the same; and a nobility, owing their original appointment or confirmation to the crown, exercising as deputies the privileges of the sovereign, and retaining as their prerogative a portion of the dues they exacted in his name, stood in the place of the elective or hereditary magistrates of tribes and confederacies. The Thane, or Tighern, and the official known as the Deempster, represented the Cean-cinneth, or rather perhaps the Toshach, and the Brehon—the chief, or captain, and the judge of the clan; the earl or Mormaor the provincial judge answered to the chosen leader and judge of the confederacy; the kindred of these officials, and the Og-tiernach, or “lesser lords,” formed the Duchasach and Duine-uasal, the gentry or freeholders of the district; whilst none who could not claim to be enrolled amongst one of these kindreds were entitled to the privileges of free or gentle birth.

The only tenure known at this period was the Gavel[271] one of the earliest forms of the original allotment, which was enjoyed in common by all within the limit of the immediate kindred—or, in Teutonic phrase, all embraced in the Mæg-borh—a permanent property in such a holding only being acquired by uninterrupted possession for the usual period of “three generations.” No fixed or individual property, in the modern sense of the word, was conveyed by such a tenure in any certain spot of land as long as divisible and inheritable property consisted of money, arms, and ornaments, and the stock and produce of the land; but rather a right of joint-occupancy in the family district or holding, shared by all who could claim a certain degree of kindred with the Senior of the race. The Senior was elective, every member of the kindred who had a right of joint-occupancy also having an equal claim to choose the head of his family; though under ordinary circumstances the precedency seems to have been generally conceded to the actual representative of the original “eldest born.” Seniority conferred privileges, but it also entailed obligations. To every kindred occupant of a lesser holding was assigned a portion of land, the Senior having the preference in the choice of allotments, with a joint right to feed his live stock on the common pasture, and a similar share in the house, barns, and stabling; the possession of the hearth in the “capital messuage” generally being included amongst the prerogatives of seniority. All that was not partitioned out in this manner fell to the share of the Senior, who in return for his privileges was responsible for the whole of his kindred. He was their plegius or security, and their spokesman on all occasions,—or, in the language of the Anglo-Saxon laws, their Borh and Fore-Speca. He asserted their joint rights, he avenged their joint wrongs, and he was answerable in their joint names for the receipts or payments invariably following injuries whether inflicted or received—for community in good or evil was the very soul of the system of kindred—as well as for the due exercise of hospitality whenever the “overlord,” to use the feudal phrase, was entitled, on his Cuairt or Visitation, to demand the “refection,” which was known amongst the Anglo-Saxons as “a night’s feorm.” It may be safely assumed that similar features were exhibited on a greater scale in the thanage, and in the holding belonging to the district judge; the obligation of “refection” in the case of the thane being confined to receiving the king, an earl, or an abbot or bishop, according as he held office under a lay or ecclesiastical superior. To judge from the parallel case of the Welsh nobleman, this was generally on the occasion of the great winter circuit, when the Scottish kings and magnates were accustomed to pass their Christmas amongst their thanes, much as the kings and Jarls of Scandinavia were wont, according to the old Icelandic chronicler, to move about during the winter months amongst their baronage, or Hersirs, who held their lands in a similar manner by the tenure of Veitslo, or provisioning the king. The same rule may be supposed to have been applicable to the earldom; whilst the principle of community of right in the kindred unquestionably extended to ecclesiastical dignitaries amongst the Gael, Tanist and Adbhar abbots—or the successor actually chosen, and all capable of being nominated to the abbacy—being continually met with in the Irish annals.[272] It may be gathered from the ancient Scottish laws that the limit of the immediate kindred extended to the third generation, all who were fourth in descent from a Senior passing from amongst the joint-proprietary, and receiving, apparently, a final allotment; which seems to have been separated permanently from the remainder of the joint-property by certain ceremonies usual on such occasions. On the death of a Senior, a redistribution of the land and offices belonging to the family invariably took place; and it was at this period, probably, that all who were beyond the limit of the immediate kindred received their final allotment. The fourth in descent from a thane, no longer entitled to his share amongst the joint-proprietary, or Tigherns, became an Og-tiern, he and his descendants holding henceforth of the representative of the Senior, by the same tenure as the thane held of the king; the lapse of the necessary period in both cases rendering them irremovable from their respective districts. The Tanist, or next in succession—for the “law of Tanistry” is only another phrase for the law of succession—was appointed at the same time as the Senior, receiving an allotment in proportion to the dignity of his office, and, at this period, generally holding the Toshachdorach, or captaincy of the family,—which, in later days, as the law of succession gradually altered, and the office of Tanist sunk into disuse, seems to have become the especial prerogative of the next in succession; and when the earldom, lordship, or thanage passed out of the original family by female heiresses, was generally confirmed by charter on the heir male, to be held hereditarily under the head of the house. Nor was the Toshach a character confined to the Celtic people alone; for the Mayor of the palace under the early Merovingian sovereigns, who was usually elected at the same time as the king, and was perhaps a member of the same royal race, was known as the Dux Francorum; very much resembling the Gaelic Toshach, and the dignitary whose title appears upon the early British coins under the Latinized form of Tascio.[273]

Many of the features, indeed, displayed in the Celtic Gavel were not in any way peculiar to the Celtic people, but will be found to have very generally existed in every part of western and northern Europe, wherever a portion of the population continued to hold their land by the older system, which was stigmatized as Roturier after the feudal theory of “knight-service” was recognised as the only principle of “gentle tenure.” In the intermediate period, when the earlier system still held its ground side by side with the principles of Roman law, and the shifting allotment to which every member of the Folk or Leod was entitled by “the right of blood” was passing gradually into a fixed and permanent inheritance, length of possession, variously reckoned in different early laws, alone conferred pure allodial property in land amongst the German people—for the chartered grant from the king was thoroughly Roman—whilst throughout the North, long uninfluenced by contact with Imperial Rome, the original principle of descent, which was still traceable in the Germanic nobility of this period, and in the “inborn” right acquired by the lower orders, was in full force; the Bonder growing into the Odal-Bonder, and if his blood was strictly pure, into the Holder, solely after the lapse of the necessary number of descents. Long after the conquest of the ancestral dukedom of the English kings by Philip Augustus of France, the main features of the law of Tanistry, which seemed so strange to the Anglo-Irish lawyers of the seventeenth century, were still familiar to the Normans of the continental duchy. All the family up to the sixth degree were joint proprietors with the Senior of the race in the Tenure-par-Parage, holding by fealty alone, the seventh in descent passing from amongst the privileged kindred and holding by homage, thus becoming “the man” of the head of the family, just as the fourth in descent by Scottish custom became an Og-tiern under the Thane. The difference in the number of descents was simply the result of the introduction of a noble class above the free, and in either case, all who passed beyond the limits of the kindred evidently had an “inborn” right to a fixed and final provision.[274] A similar principle seems to have regulated the holding amongst the continental Angles, which never passed to an heiress until the kindred could furnish no male heir within the necessary limit, extending in this case to the fifth degree. The share-house of the Kentish Gavel (the Bold-getal perhaps of Alfred’s laws), with the hearth reserved, as among the Welsh, for the youngest heir; the allotment of which the name of shifting betokens the original character; and the freedom of the heirs from the consequences of the father’s felony, alluded to in the old Kentish rhymes, “the father to the bough, the son to the plough,”—a freedom which was confirmed, rather than introduced, in Scotland by the laws of William,[275]—closely resemble the characteristics of the Celtic holding: though the preference of the youngest heir in the Welsh and Kentish Gavel, and in the tenure known as Borough-English, discloses the pre-existence of a state of society unknown, apparently, amongst the Gael; whilst the allodial character of the Kentish Gavel seems to have been almost peculiar to that county.

Both the principle of joint proprietary right, and the elective character of the Senior, were thoroughly recognised in the Imperial Benefice, at least as late as the eleventh century. The kindred, ending at the seventh in descent, and never acquiring hereditary right before the lapse of three generations, chose and presented their Senior to their lord, their representative fulfilling all the obligations of the benefice, which, being held by military service, differed in certain particulars from the older Gavel.[276] Stated military service was required for a stated portion of land, a well-armed soldier attending his lord from every benefice, which was always originally of a certain stated size, the holder of many being answerable for an equivalent number of men-at-arms, whilst the responsibility in half a benefice was shared between the Seniors of two such holdings. As the military feud required the service of a man-at-arms, it followed that the lord was entitled to provide a substitute whenever such service could not be rendered through the minority or sex of the heirs; and out of this right arose the claim of the lord of a military fief to control the marriage of the heiress, and to act as guardian of the minor, rights which, in the case of the Gavel, belonged to the kindred. The earlier system was ruled by a different principle of military service: the greater the numbers of the family or tribe, the more prominent their position in battle, the wider the district allotted to them in the annual distribution of the land; and hence it was the pride of the German pagi, in the days of Tacitus, to contribute a far greater number of warriors than their necessary quota of “a hundred.” The earlier principle was still in full force amongst the Celts, every freeman continuing to carry arms, and to be liable at the call of the king to attend the yearly assembly of the Sluagh or Leuchte—the Welsh Lluyd, the German Leudes—if required for a “hosting across the border;” a custom which was retained side by side with the military service of the feudal system, under the name of “Scottish service,” rendering an army thus levied, and armed only with weapons of offence, more numerous indeed, but far less effective, than the well-equipped body of mail-clad men-at-arms, who were bound by the tenure of “knight-service” to follow their lord to the field.

Wherever the adoption of the benefice had introduced the principle of stated military service, the representatives of the earlier freemen had invariably sunk into a class of agricultural peasantry, free, but occupying an intermediate station between the noble and the læt or serf. The soldier, for instance, amongst the Anglo-Saxons in the seventh century was exclusively represented by the Thane, whilst the member of the folk or people was only required to attend the army in the capacity of a camp follower, unarmed and without either the duties or responsibilities of a fighting man.[277] No such intermediate class is traceable amongst the Celts of this period, who had not yet, apparently, entered upon that stage of society in which the noble rose out from amongst the ranks of the free, as a member of a distinct and separate caste. The equivalent of the Anglo-Saxon Ceorl—the Boneddig or Bonnacht—continued to rank amongst the lesser Duine-Uasal who lived by the sword, and whilst the title of Churl has passed into an opprobrious epithet in the English language, the candidate for a Welsh county still esteems it an act of courtesy to address his constituency as Boneddigion or “gentlemen.” A wide, and in most cases apparently an all but impassable barrier, separated the Duine-Uasal from the agricultural population connected with the land, a class which may be said, in a general way, to have comprised all who were not connected by blood with the Duchasach of the district, answering to the Attach Tuatha or Daer-Clans amongst the Irish, and the Alltudion and earlier Lætic population—the Wealh—amongst the Welsh and Germans. Captives and criminals formed the absolutely servile class, for, to judge from the Welsh laws, the alien enjoyed a certain degree of freedom, being at liberty to change his residence as long as it was equally in the power of his lord to remove him from his land; though after a lapse of three generations in one locality, the fourth in descent acquired a permanent right to remain in the ancestral dwelling, with a claim to subsistence in that district from which he was now irremovable. No fixity of tenure was acquired by such a claim, which was simply a right to receive every year from the maor or steward of the Tighern a shifting allotment, representing literally the yearly assignment of land alluded to in the descriptions of Cæsar and Tacitus; and at the opening of the fourteenth century the agricultural population throughout Scotland, as a class, still held their farms by a yearly tenancy-at-will.[278] By that time, however, the shifting character of the allotment had probably undergone a certain qualification, for the earliest law laid down in the first year of the reign of Alexander the Second seems to have been directed against the unsettled condition of these Attach Tuatha, and their predilection for the listless indolence of a pastoral life. Every “Bondman” was ordered to plough and sow the land in the same locality, or Vill, he had occupied in the preceding year; all who had held no land but were in the possession of five cows or upwards—in other words, of more than a pound—were bidden to take land from their lord and raise a corn crop for his benefit; whilst the proprietor of less than that amount of cattle was to sell his oxen, if he had any, to those who could use them in tillage, and work as a labourer in digging and sowing, equally for the benefit of his lord.[279] The dependance of the Duine-Uasal for their support upon the population thus attached to the soil, ensured to the latter a certain amount of consideration; for it was on his “native-men” that the Tighern quartered his kinsmen and retainers, and from the same agricultural class he levied his rents. The necessity of a class of this description in such an age was its safeguard, up to a certain point, from extortion and oppression; they were protected like a sheep for its fleece, as long as their Tighern was in a condition to defend them, the want of fixed and settled rights being invariably most felt when society is in a state of transition.

Such then were the two great classes into which the whole population of Scotland was at this time divided. Earls, Thanes, Judges, and Ogtierns, with their respective kindred, composed the Duchasach or Duine-Uasal, the free proprietary of the kingdom, together with the lesser Duine-Uasal who dedicated their swords to the service of their Senior, answering to the Welsh Boneddigion. Amongst the numerous burdens which pressed so heavily upon the Irish peasantry in the Anglo-Irish period, was the payment of a certain sum under the name of Bonnacht, to relieve them from the necessity of supporting their lord’s retainers; the existence of this custom amongst the Irish Gael pointing to the manner in which, in a similar state of society, the lesser Duine-Uasal, or Bonnacht, amongst the Scottish Gael were quartered upon the native-men of their respective districts. Nor must the abbot and his kindred, with Duine-Uasal connected with the ab-thanage, be omitted from amongst the Duchasach; whilst as there were “inborn” clergy, who at a later date were numbered amongst the Nativi, and the son of a chaplain by the laws of William lost his free-right upon the death of his father, the law of descent which was in force amongst the laity was evidently in operation amongst the clergy also.[280] No especial privileges of rank belonged to the ecclesiastical order in early times amongst the people of Germanic origin; they were assessed according to their actual birth, and it was an innovation upon ancient custom amongst the Anglo-Saxons when the priest, “on account of his seven orders,” was reckoned worthy of Thane-right or nobility. The earlier custom was still in force apparently amongst the Celts; and as none beyond a certain limit of the “Founder’s kin” were privileged to succeed to the abbacy, so the descendants of the married clergy, beyond a similar limit, would appear to have become attached as dependants to the abbey lands; forming, probably, those bands of monastic warriors whose occasional conflicts, recorded in the Irish Annals, seem to have rivalled in ferocity the tumults of the eastern monks. The kindred of the sovereign enjoyed the rank and appanages of earls, the line of Atholl unquestionably, and perhaps that of Fife, branching off permanently in this manner from the royal stock—just as the ealdormen of Saxon Mercia towards the close of the tenth century traced their origin to Ælfhere the kinsman of Edgar. The remaining earls represented, either the “inborn” descendants of Mormaors appointed at an earlier period over conquered districts; or the inheritors of a province from an independent ancestry, who, acknowledging the superiority of the king of Scots, continued to hold their territories by hereditary right, resembling the ealdormen of Saxon Northumbria. Of the earls of Scotia, the majority probably answered to the former description, though the ancient earls of Strathern may have represented, either an offshoot from an earlier royal race, or the descendants of a line of independent princes; whilst amongst the latter class may be reckoned the forfeited earls of Moray, the earls of Caithness, and perhaps of Ross, with the lords of Galloway and of the Oirir-Gael.

The only recognised bond of union was the immemorial tie of kindred, none being entitled to the privileges of gentle birth who could not claim a certain degree of relationship to a Tighern or Og-tiern; none being entitled to a right of subsistence whose kindred had not dwelt for three generations in the district. Charters were unknown; a shake of the hand before a witness settled a common bargain—the thirstier southerns concluded such compacts with a drink—whilst the delivery of a stick, a straw, or a clod of earth, in the presence of a greater number of witnesses, apparently conveyed a more permanent grant of land, though length of occupancy alone conferred hereditary right. On important occasions a greater degree of ceremony was observed, one of the latest displays of this description occurring in the reign of Alexander the First, when the king restored to the Priory of St. Andrews the tract of country known as the Cursus Apri, or “the Boar’s Raik.” The king, in the presence of a vast concourse of people, led up to the high altar his Arab charger, equipped with housings of great value, and with a silver lance and shield; the royal saddle and shield, with a complete suit of Turkish armour, being preserved in the church of St. Andrews in testimony of the munificent donation. Notices of such grants after the middle of the eleventh century were occasionally preserved in writing, as memoranda, however, and not as title-deeds; and instances of such memoranda are to be found amongst the Irish and Welsh, as well as amongst the Scots, in the transitional period preceding the introduction of the regular charter.[281]

The inevitable tendency of such a state of society was to call into existence a class of lesser Duine-Uasal, clinging to the privileges of gentle birth, and naturally averse to sink to the level of the agricultural peasantry. The distant kinsman, removed beyond the limit of the privileged branches of the family, was ever ready to dedicate his sword to the service of the Senior of his race, and was quartered upon the peasantry of the district as an Amas or Bonnach, a member of the Arimannia or Hird; for he was always certain of a welcome in an age in which the numbers of such a following, useless except for purposes of aggression, were the source and evidence of a chieftain’s power. Expansion thus became a vital necessity, the very numbers of a kindred, which entailed the obligation, generally ensuring success in their encroachments on a weaker neighbour; and the same causes that impelled one German tribe upon another, or precipitated them in one mighty wave upon the Roman frontier, ensured a normal state of warfare amongst the Celts. Scotland was, however, in a far less disorganized condition than Ireland at this period; and though the royal authority was comparatively of little use in repressing internal warfare amongst the mountains of Moravia and Argyle, it was of greater power in the more open districts of Scotland proper, and the south, where the magnates no longer mustered their followers for “a hosting beyond the frontier” except at the sovereign’s command. Oppression and encroachment had taken the place of open warfare, and they were content to quarter their followers upon a weaker neighbour, and to relieve the native-men of their own district by moving about from place to place under pretence of travelling, or of attending upon the royal court, with a retinue numerous enough to support their own dignity, and ensure for themselves and followers the necessary hospitality known as “herbary.” It was to protect themselves against the abuses of such a system, which was long in full force amidst the mountains of the north and west, that the lesser barons at a later period entered into bonds of Manred—or of allegiance in return for protection—with the greater magnates, whose power and dignity were thus enhanced; such engagements being only the chartered form of the same tie that united, in an earlier period, the Gallic and Germanic clientes to the greater confederacies upon whom they were dependant: for wherever the circumstances of the age called it forth, the principle of clientage was sure to be developed.[282]

Few material changes had been introduced beyond the Scots water, in either church or state, when the youngest and greatest of Malcolm Ceanmore’s sons succeeded his brother upon the throne. Malcolm was a Gaelic king to the last, and the reforming energy of Margaret was directed to the court and clergy; she scarcely aimed at effecting any radical change in the principles of government. During the reigns of Duncan and of Donald, Scotland must, if anything, have retrograded rather than advanced, remaining stationary apparently whilst Edgar was king—to judge from the little that is known of that period—the disorganized condition of the see of St. Andrews, which was vacant during the whole of these three reigns, typifying probably the general state of the kingdom at large. Sufficient occupation was afforded Alexander by his contest with the church, which was scarcely brought to a close with his life, and by his northern wars; and though, from the presence of some of the great feudal officers of the crown, and of Vicecomites, on certain state occasions during his reign, it may be gathered that his policy was identical with that of his successor, David may be safely regarded as the first king who practically introduced into Scotland the novel system of government in church and state, which was hardly thoroughly established before the opening of the thirteenth century. Many of the institutions and principles which had grown into use, more or less, upon the Continent through the gradual substitution of Roman law for the earlier Teutonic custom, and which had been adopted by successive sovereigns of Alfred’s race in the reconstruction of the Anglo-Saxon monarchy, were now substituted in a similar manner for the earlier laws and customs of Scotland; some of these changes being carried out at once, whilst in other cases a considerable time elapsed, after the first introduction of the principle, before it was thoroughly in operation throughout the country.

There was a period in early Frankish history, when the Comes or Graphio was a royal deputy, answerable for the due collection of the royal revenue, and exercising over the population, dependant on the Crown, as fiscal-judge, a jurisdiction which did not extend over the allodial proprietary. None of these attributes belonged to the Count of a later era, who, no longer either a fiscal-judge or a collector of the royal revenue, was simply a greater baron, enjoying only the title and dignity of his former office. A similar change was in progress amongst the Anglo-Saxons, for in the reign of Ini, the king’s ealdorman was the leading judge of the shire, forfeiting his district for compounding a felony; and in Alfred’s days, no man of a certain class could pass from one shire to another without permission from the king’s ealdorman, who was still connected with the shire as the leading personage in the Gemote, and appealed to, on certain occasions, as an official. In Edward’s laws, however, and in the laws of subsequent kings, the sovereign addresses his Gerefas alone, without any allusion to the jurisdiction of the ealdorman; and though the presence of the bishop and the ealdorman at the Shire-Gemote was required by Edgar’s law, confirmed by Canute, the Norman Conquest seems to have found the sheriff, a royal official, and not the Earl—who was a Duke rather than a Count at this period—the presiding officer in the county court.[283] It appears to have been one of the leading features of the policy introduced by Alexander and David, to carry out an alteration of this character in Scotland, where the Earl and the Thane—the Mormaor and the Maor—like the Jarl and the Lenderman and Stallr amongst the Northmen, were still invested with the full authority of royal officials. In the Welsh Commot, which was supposed to be divided by law, or custom, into twelve maenols, only one of these divisions was the actual property of the Maer, who exercised a joint authority with the Cynghellwr over the whole district, one-third of the Commot being composed of Taog-trefs, occupied by royal villeins, in other words, being royal demesne; and from the division of the crown lands in Scotland at a later period into Thanages and Demesne, it may be gathered that the thanage was by this time restricted to the actual property of the thane, who, no longer exercising authority over the demesne as a royal official, was simply a hereditary tenant by rent, holding by Scottish service instead of by knight service. In the same manner, the authority of the Earl or Mormaor—a character unknown in the principality of Wales, but who was simply a high steward or Maer on a greater scale,—appears to have been limited to his actual earldom, the functions which he had hitherto discharged as a royal deputy devolving on the Vicecomes, an official newly introduced, and directly dependant on the sovereign; in certain cases standing in the same relation to the royal thanes and the tenantry on demesne lands, as the baron by military service did to the knights and tenantry of his barony. Thus, for instance, the great sheriffdom of Perth was made up, probably, of all the thanages and demesne lands withdrawn from the superintendence of the various earls, of whose ancient Mormaordoms the greater portion is now included in the modern county. In Gowrie there was an earldom and a regality, both remaining under the jurisdiction of the sheriff of Scone, as long as they were both retained in the king’s hands; though, had the earldom been granted away, the authority of the Vicecomes would have been limited to the regality. In Fife alone the Earl continued in the thirteenth century to exercise the prerogatives of a royal Maor; and when Alexander the Second, in accordance with the original gift of David, issued his writs for assigning one-eighth of the profits and fines of Fife and Fortrev to Dunfermlyn, one writ was directed to the sheriff of Fife, the other to Earl Malcolm and his bailies, directing him to make over to the abbey “the eighth, which ye levied with us in the county.”[284]

The sheriffdom, however, was introduced by degrees; and in Scottish Argyle, and in Cantyre and Cowal, the duties which devolved in Moravia on the Vicecomes of Inverness were still performed by the Earls of Atholl and Menteith, or the Abbot of Glendochart. David still addressed his mandate in behalf of the abbey of Dunfermlyn to “the earl and proprietary of Caithness and the Orkneys;” and when, in the subsequent reign, Malcolm issued a mandate of the same description to the Earl of Ross, it was similarly addressed to “Earl Malcolm and his thanes.” Four centuries elapsed before there was more than one sheriffdom in ancient Moravia—a sure sign of the weakness of the royal authority in early times in the distant north, when the earl, if so inclined, was probably a more efficient delegate to carry out the king’s decrees than the royal Vicecomes of Inverness. Even in Fife the Sheriff is not traceable before the days of William, David always addressing, “the bishop, earl, and proprietary of Fife,” and directing “my judge of that province” to assist at the court of the Abbot of Dunfermlyn; in the same manner as it was incumbent on the sheriff, or his substitute, to be present at a later period on similar occasions.[285] Gradually, however, in all the settled portions of Scotland, the Vicecomes assumed the prerogative of the royal Maor; amongst other duties, settling the rents of the demesne lands, much as his type, the English Sheriff, assessed the ferms levied upon the royal Hundreds or Wapentakes included in his shire. In both countries the sheriffdom occasionally became hereditary, until a statute of Edward the Third fixed a year as the limit of the English Sheriff’s tenure of office. Permanency, and a certain degree of greater dignity, seem still to have attached to the Vicecomes in Scotland, where the equivalent of the lord-lieutenant of an English county is known at the present day as “lieutenant and sheriff of the shire,” the acting official being the sheriff-depute, the tenure of whose office is equally permanent.[286]

As it was the policy of the race of Alfred to knit together the whole of Southern England and the Danelage in the bonds of Commendation, or hlaford-socn, so amongst the first principles of the system of government introduced by David, it was strictly enacted, that, within a fortnight after the proclamation of the king’s writ in the royal Moot, every man “should find him a lord,” or forfeit the usual mulct of eight cows to the king, and remain at the royal mercy until he had duly commended himself to some responsible person. So necessary was this enactment considered for insuring the internal peace of the kingdom, and the practical dependance of its unruly population upon the sovereign, that it was a royal axiom in the reign of David’s grandson, William, that any man accused of theft, who could not “find a lord” to be his surety, was to be at once treated as a convicted felon; though such must have been the difficulty of enforcing it in the remoter districts, that four centuries after the first introduction of the principle, enactments were still occasionally levelled against “the broken clans” of the Highlands and Borders.[287] Violence and robbery, the usual crimes of a lawless age, were severely dealt with, and the sanctity of the Gryth strictly enforced, its “infraction”—in other words a breach of the peace—being heavily fined, according to the rank and dignity of the personage whose gryth or peace was broken. All the district up to a certain limit around the kings court and person, and all the public highways, were “in pace regis,” or under the immediate protection of the king; whilst the earldom, the barony, and the thanage were under the similar protection of the proprietors, whether lay or clerical, who were entitled to the privileges of a court. For threatening to strike within the limits of the royal gryth, four cows were paid to the king, one to the party threatened; the oaths of two “liel men” being required in proof of the charge. For an actual blow the fine was raised, increasing in proportion, if blood followed; a drawn dagger was struck through the hand; and if the weapon were used, and with effect, the guilty hand was forfeited—a stern enactment, enforced five centuries later by the Star-Chamber;—whilst if death followed the blow, the full fine of one hundred and eighty cows was paid to the king, the kindred receiving that “satisfaction according to the law of Scotland”—the cro or wergild—from which the victim could no longer hope to profit.[288] Petty thefts were summarily dealt with; the man detected backberand—with a calf, a sheep, or anything he could carry on his back—was mulcted of a cow or a sheep by the lord of the property, was well scourged, and lost an ear, the presence of two “liel men” being required to carry out the punishment. None were to be hanged for less than the value of two sheep, each reckoned at sixteen pence, or an ore.[289] The usual form of robbery, however, was “cattle-lifting,” or the Creagh, a relic of that lawless state of society in which the property of all who were not connected by the ties of blood, or of intimate alliance, was looked upon as the lawful spoil of the strongest. The Creagh was on land what the Sumorlida was by sea; lawful warfare when carried on under the royal authority, but robbery and piracy if wanting the sanction of the sovereign power; which, as “the confederacy” was gradually bound in the firmer bonds of “the kingdom,” was invariably directed against the Cateran and the Viking, the last relics of that barbarous independence which claimed the right of private warfare. The rules laid down in the early Frank and Anglo-Saxon laws for tracing the perpetrators of a robbery, leave little room for doubt that, with the Frank and the Saxon, as with the Gael, there was a time when “lost property” was but another word for stolen cattle. It was to check the increase of “cattle-lifting,” against which the ordinary night watches—the stretward or road-guard of the Conqueror’s laws—were thoroughly inefficient, that the early Frank kings instituted the Canton, or Hundred, laying the responsibility of the theft upon the district in which it occurred: and as such robberies were generally carried out at night, the watch-dog was considered by David an animal of sufficient importance to justify the enactment of a special law, and whoever killed him was bound to watch his master’s house for a year and a day, being answerable during that period for any losses that might be incurred. It was probably to check this tendency to night robbery that a law, very much resembling the Norman regulation of the Couvre-feu—which may have been introduced for a similar reason—was either passed, or confirmed, in the reign of William, forbidding all but men in authority, or responsible persons, from leaving their homes after nightfall, except to fetch a priest to a sick man, to go to the mill, or to do the bidding of their lord; he who was abroad after dark on an errand of this description being bound to declare openly the reason of his absence from home. But the measures of David were not confined to the protection of the watch-dog, and he laid down rules for the course to be pursued in cases of robbery, assimilating his regulations to the usages elsewhere in force.[290]

By Anglo-Saxon law, all property above a certain value was to be bought in open market, and in the presence of Witnesses, who were always men of property and good repute—the Reeve, the Landlord, the Priest, or other “unlying men” of similar station, who were chosen for this and other purposes in every Burh and Hundred. No sale was legal without a Warranter, who guaranteed that the property offered for sale was honestly acquired; and if it was subsequently claimed within a certain period as stolen goods, the purchaser was bound to produce his witnesses and the warranter, the responsibility from that time resting upon the latter. If he failed to appear the purchase was void, though the oaths of the witnesses cleared the purchaser from the legal consequences of theft; but if neither witnesses nor warranter came forward in his behalf, he was at once condemned as a thief. The name of the warranter was Getyma, whilst the legal process, which was always numbered amongst the privileges of the Baron’s Court at this period, was known as Team, and was a part of that system which aimed at supplanting the rude personal independence which answered every accusation by an appeal to the sword.[291] The equivalent of the Getyma amongst the Welsh was known as the Mach, and he seems to be traceable in the Salic law under the name of Hamallus, the prototype apparently of the Norman Heimil-borch, or Hemold-borh—perhaps even of the Anglo-Saxon Getyma—the similarity of the title by which the warranter was known beyond the Tweed, or rather perhaps beyond the Forth, Hamehald, pointing to the quarter from which the regulations of the Team would appear to have been introduced, at any rate beyond the “Scots-water.”[292] In pursuance of this system, of which the germs are earliest found in force amongst the Franks, David appointed certain places in every Scottish sheriffdom to which all property “challenged for theft” was to be brought, and all the warranters in such cases were to be summoned. Scone, Cluny, Logierait and Dalginch were the places named for Gowrie, Stormont, Atholl, and Fife; Kintulloch for Strathearn; Forfar and Dunottar for Angus and the Mearns; and Aberdeen for Mar and Buchan. Inverness was named for Ross and Moray, whilst Stirling was the place appointed for transactions in which “the men beyond the Forth” were implicated; for though in modern times this description would apply to the northern Scots, when Scone was the capital and Gowrie the heart of the kingdom, “all beyond the Scots-water” meant the inhabitants of the Lothians, Cumbria, and Galloway. Just as amongst the Franks forty days were allowed the accused to collect his evidence within Ardennes and the Loire, eighty if the parties required dwelt beyond these limits;—the time varying amongst the Anglo-Saxons from one week to four, according to the distance of the shire from which the evidence was summoned, six weeks and a day being allowed for all “beyond sea,”—so if the warranter was within the limits of Scotia the challenged party was bound to produce him in a fortnight, an additional month being allowed if he dwelt beyond the borders: and as it is obvious that there must occasionally have been considerable difficulty in procuring the attendance of a reluctant Hamehald, his lord was bound to enforce his attendance under penalty of forfeiting one hundred cows, the recusant himself being mulcted in three times the value of the challenged property, whilst he who failed his warranter was proclaimed an outlaw. Every assistance in the search was to be given by the Vicecomes and his officers—the Sheriff of Inverness being answerable for the whole of Moravia, whilst the Earl of Atholl, or the Abbot of Glendochart, were responsible for Scottish Argyle, and the Earl of Menteith for Cantyre and Cowal, the sheriffdom being as yet unknown throughout the territories of the Oirir-Gael.[293] Considerable light is thrown by these regulations upon the comparative dependance of different parts of Scotland upon the crown during the reign of David; and as they are not extended to the Lothians, which remained under the jurisdiction of the Northumbrian ealdormen for nearly a century after similar rules appear in the Anglo-Saxon codes, it may be inferred from this silence, not that the law was not enforced throughout southern Scotland, but that the Team was a familiar process to the population between Forth and Tweed, at the time when David first extended its provisions over the rest of his kingdom.

Very stringent rules were either enforced, or confirmed, in a subsequent reign for all cases in which a priest was called as warranter. The necessity of open dealing in all transactions connected with property was enforced upon the clergy by rendering it unlawful for a priest to receive gift or tithe except in the presence of “good and true men”—the Witnesses probably of a bargain between laymen—and he could not be summoned as a warranter without the testimony of “three leal men,” evidently the witnesses in question. If he named the donor, when the gift was challenged, and produced his three witnesses, the responsibility was shifted upon the person named, who, in addition to any other penalties, was bound to make good the value of the gift to the priest; and if the latter stated that the claimed property was his own, or, if cattle, reared by himself, his assertion was to be corroborated by the oaths of “three leal men;” and to guard against all undue influence, their credibility was to be vouched for by the lord of the Vill. It was not from any suspicion of the ecclesiastical body that the law required their evidence to be thus corroborated on such occasions, but rather from a perfect appreciation of the practice, not confined to cattle-lifters, of compounding for a course of evil doing by dedicating a portion of ill-gotten gains to the church. Hence the necessity of the lord of the Vill vouching for the credibility of the witnesses, thus becoming responsible for the penalties of their perjury; for the priest who was capable of receiving stolen goods would have scarcely hesitated at exercising the influence of his sacred character amongst ignorant, or unscrupulous, parishioners in order to clear himself from the consequences of his offence.[294]

The strictest regulations, however, would have been of little avail without securing the co-operation of the magnates of the land, whose right to hold a court with the privileges of “pit and gallows,” which in this reign carried with it jurisdiction in cases of theft and homicide, must have rendered such co-operation absolutely essential. Undue leniency towards offending relatives or dependants, and occasionally connivance in a Creagh for a share of the spoil—for a gift might purchase immunity from the overlord as well as absolution from the priest—must have been of only too frequent occurrence in an age in which escape from the gallows was so likely an event, evidently through a fellow feeling with the criminal, that the very first law in the collection ascribed to David, whilst ensuring the actual offender against a second hanging for the same offence, visited the consequences of his escape upon the officiating party as a crime of more than ordinary magnitude. Hence, as it was incumbent upon every freeman to seek the protection of a lord, it was equally necessary that such protection should be restrained within just and proper limits; and for “selling a thief” for money, friendship, or any other consideration whatever, a mulct of a hundred cows was levied upon an earl, or upon any magnate enjoying the rights and privileges of an earl—a description probably embracing the greater barons, the officers of state, the higher clergy, and subsequently the lords of Galloway, Argyle, and the Isles. The fine was reduced to thirty-four cows in the case of personages of lesser dignity; whilst if a thief escaped from prison, the lord of the prison was bound to clear himself from all complicity by the oaths of three Thanes and twenty-seven “good men and true;” the triple oath, in other words, of three Thanedoms or Baronies. The complicity of “the Baronage” in offences of this description was, but too often, a fruitful source of disorder; and in the subsequent reigns, the practice of taking money for “remission of judgment” was punished by withdrawing from “the lord,” found guilty of such an abuse, all further right of “holding a court:” and if, in return for a gift or rent of any description, he granted his protection to a man accused of crime, who was proved by the verdict of “the good men of the country” to be neither liegeman nor native-man of his protector, he was condemned for so doing to be “at the king’s mercy.”[295] Laws and enactments, however, are of little avail unless the lawmaker has the power of enforcing them, and long after the rule of the House of Atholl had passed away, the Scottish magnates, though capable of exercising their “rights of regality” in a very summary manner, were only too apt to overlook, if not to connive at, the excesses of an useful follower; though a true idea of the state of Scotland under the later successors of David would scarcely be gathered from confounding it with the state of the same country in the fourteenth, perhaps even in the following century; during which period the kingdom, at any rate in its more settled and civilized quarters, had decidedly retrograded rather than advanced from its condition in the thirteenth century.

Amongst the regulations either introduced, or confirmed, by David, at any rate beyond the Scots-water, the system of the Voisinage, or Visnet, holds a prominent place; through which the older forms of trial were gradually supplanted by the verdict of “the good men and true” of the neighbourhood. Two principles seem to have lain at the root of the whole system of justice—compurgation, and the ordeal. As individuality was unrecognized, or helpless, the testimony of a single witness was, except under certain circumstances, inadmissible; though the oath of a man of rank, or of a churchman, after the church had acquired worldly station, outweighed the oath of an inferior, and seems often to have been reckoned according to the proportion of their wergilds. Thus, amongst the Anglo-Saxons, two thanes appear to have answered to twelve compurgators of lesser note; five thanes to the triple oath of thirty in Wessex, though the number of the triple oath varied in Wessex, Mercia, and the Danelage; and a similar principle is traceable in the laws of the kindred Old Saxons of the Continent.[296] Compurgation was originally the duty of the kin, and the nearest relatives who received, or paid, the wergild were bound to come forward to take oath in behalf of any member of the brotherhood, every accusation being thus supported or repelled. The number of compurgators varied according to the importance of the case, judgment going against the party whose kin declined to come forward, or who failed in obtaining the required number. The accusation frequently had to be repelled by a number of compurgators doubling the amount of those who supported the charge; and on some occasions, to judge from the custom of the Imperial Benefice, each party went on increasing in number until the greater tourbe, the most numerous body of compurgators, carried the day; or else a final appeal seems to have been made to the ordeal.[297] Witnesses, in the modern sense of the word, are seldom or never alluded to; had they been examined, and borne testimony against a man, as at present, they would have legally had to “bear the feud” of his kindred—a danger actually provided against by one of William’s laws. In an age in which the duty of revenge was amongst the paramount obligations of the family tie, the kindred, in such a case, were only too ready to wreak their vengeance on all through whom their kinsman suffered; an offence which was visited with the highest fine for a breach of “the kings peace,” except the victim’s kindred had consented to the deed—had, in other words, declined “to bear the feud.” The extent to which the blood-feud was acknowledged, at this period, may be gathered from a proviso in the same law, that even if the king had “granted grace” to the offending parties, his pardon was of no avail unless it had been issued with the full knowledge of the kindred of the slaughtered man, who otherwise retained their legal right of vengeance on the homicide.[298] The liability of the kindred, however, must have enabled the jurisprudence of the age, in ordinary cases, to dispense with witnesses. The responsibility of the theft, or homicide, was thrown upon the district; and if the responsible parties failed to shift it elsewhere, the law visited them with the penalty. Publicity was the test of innocence, secresy of guilty intent. In the olden time, all who crossed the mark openly were welcomed as guests, safe and secure in the protection of the whole people, amongst whom they were sacred characters; but he who failed to give due notice of his approach, was slain at once as a foe or a thief; and in later days, the magnate travelling through the royal forest might always strike a deer or two if he first sounded his horn, to give due notice to the forester of his intention. He who slew his foe in open strife, proclaimed the deed, and told where the body lay—sometimes even if he left his weapon sticking in the wound—was never reckoned as a murderer, simply bearing the feud with his kindred, or paying the wergild; whilst by Old Saxon law, a murderer was fined nine times the ordinary mulct, his kinsmen only paying one-third of the usual wergild as their share of the fine, and being released from all consequences of the feud; evidently on the principle of their ignorance of the secret intentions of the murderer.[299] So, at a later date, it was the duty of the man who claimed his own cattle, or “impounded” that of another for debt, to proclaim it openly in the neighbourhood; when his neighbour, thus made aware of his intentions, might stop him if in the wrong, and assist or clear him on oath if right. Thus, publicity was necessary in all the transactions of social life; and as its neglect was assumed to imply a guilty purpose, and the kin, or the neighbourhood, was the joint security for all its members, it would naturally become a legal axiom of the age, that the kinsmen, or neighbours, were responsible that such publicity had been complied with, and liable to pay the penalty of any neglect.

For all who doubted their ability to muster the requisite number of compurgators—but too often, it is to be feared, for the friendless—the ordeal was the last resource; either water, cold or boiling; hot iron; or the wager of battle.[300] In primitive societies the sword has ever been the freeman’s last appeal—still remaining so where they congregate in numbers sufficient to constitute a separate state—and the early Germans looked upon every other mode of settling a disputed question as a novel and unheard of method of proceeding.[301] Many of the rights which have long been made over to the state were in early times supposed to be vested in every full-born member of the community, continuing until a comparatively recent period, to be more or less enjoyed by the great and privileged; and it must have been the aim of the early lawgiver to control and regulate rights which he could not supersede; just as in Scotland the royal official directed the judgment of the Barons’ Court long before he superseded its jurisdiction. As long as the constituted authorities were too weak, or too feebly supported, to retain the sword of justice in their own hands, it is evident that it remained in the power of every free kindred to execute the vengeance which the laws allowed; and when the suit had not been compounded, or the feud appeased, the criminal, instead of being “left for execution,” was simply handed over to the legal vengeance of his enemies; just as amongst the Israelites of old it was not from the official, but from the avenger of kindred blood, that the unintentional homicide fled to the city of refuge. Men, under certain circumstances, were allowed “to take the law into their own hands;” the thief caught by the “sequela clamoris viciniæ”—the hue and cry of the neighbourhood—with the stolen cattle in his possession, was hung without ceremony; and in their rules for tracing stolen cattle, the men of London-burh were bidden to be foremost, not in delivering the thief to justice, but in taking prompt and summary vengeance on him. The regulations in the Anglo-Saxon laws for clearing the man slain for a thief, show that the well-known proverb about “Jeddart justice,” has been scarcely exaggerated—“Hang first and try afterwards.”[302] The wager of battle naturally arose out of such a state of society, when the “ultima ratio regum,” with other royal prerogatives, was regarded as the right of every full-born freeman; and the same arguments, which are now used to palliate warfare between states, might then have been urged in favour of the freeman’s last appeal. Disseisin, when the freeman was dispossessed of his property, was simply invasion on a lesser scale; and as long as the central authority was inefficient to rectify the wrong, and reinstate the rightful owner, all that it could promise was “non-intervention,”—open lists for the combat, and death to all who interfered; whilst in doubtful charges affecting a man’s life, it was quite in accordance with the rude justice of the age, that, as a last resource, the accused might defend his head with his hand. The challenger faced the west, the challenged party the east, and he who was defeated lost all “right” for ever; though, if he “craved” his life, he might live as a “recreant,” a craven who “recanted” the perjury he had sworn to; so that most brave men must have fought to the death. Compurgation, which passed into the English law as “the wager of law,” and was not quite forgotten in the Perthshire highlands in the early part of the seventeenth century, was probably one of the first compromises of the ancient “wager of battle”—perhaps suggested by the softening influence of Christianity[303]—the same number of the kindred who formed the Wer-borh, or cleared their kinsman on oath, having, perhaps, in early times, like the second in a duel of the seventeenth century, stood beside him occasionally in the actual combat, or kept the ground during its progress—one of the latest instances in Scotland of such a combat on a great scale being, perhaps, the well-known contest on the North Inch of Perth.[304]

Compurgation and ordeal seem to have been as familiar to the Celts as to the Teutons, until by degrees the system known of old in English law as the “Jugement del Pais,” superseded all the earlier methods of trial. Amongst the early Germans, a leading magnate, or prince, was chosen in the yearly meeting to judge the people, making the tour of the whole confederacy, with a hundred comites to assist and support him in his decisions; the Vergobreith amongst the Gauls being a very similar character, though, from the peculiar separative principle of Gallic policy, the Druids supplied the place of the Comites, the exposition of the law being one of the prerogatives of the sacred caste. Every freeman, therefore, was tried in the open Mall, or court, of his own district by a judge, in whose appointment he was supposed to have a voice; and in the presence of his equals, or of the class to which all legal and religious obligations were deputed. For his family, his Hird or followers, his Lœts and serfs—for all who were in his mund or under his protection—he was himself the judge; and as the class of Comites increased in numbers, a greater body of freemen was transferred, so to say, from the jurisdiction of the public to that of the private judge, thus exhibiting the spectacle of a free population living, in a certain sense, according to different laws. This is nowhere better exemplified than in the case of Sweden in the eleventh and twelfth centuries, when the whole of the Bonders, or allodial proprietary, were under the jurisdiction of their chosen Lagaman, none of “the king’s men” having a right to enter the Bonders’ Court without their permission, where, when the king was present, the Lagaman sat on a raised seat opposite the royal throne, on the footing of all but equality.[305] A similar spectacle may have been exhibited, in a certain stage of society, wherever a kingdom arose out of a number of small allodial communities; but after the various members of the Frank confederacy were united in one kingdom, under the race of Merovic, the different laws acknowledged in the historical period were, not allodial and royal, but Salic and Roman—a distinction generally observable wherever a people of Teutonic race settled as conquerors in the Roman provinces. Amongst the Burgundians, indeed, where the Roman and his conqueror were on a footing of comparative equality, two royal officials administered justice in the same court, each people being judged by a Count of their own race, and according to the laws of Gundobald, or the code of Rome; but with the Franks, amongst whom the Roman was an inferior, there was but one official, the Graphio, or Judex Fiscalis, whose authority extended, though in a different degree, over both races. The Roman was judged solely by the royal official, who was bidden when in doubt “to read the Roman law;”[306] but in all cases in which the Frank was tried by the old Salic law, the official, whether Missus or Fiscal judge, simply pronounced the sentence, the real judges of the cause being the Scabini. Originally seven in number, latterly twelve, the Scabini were always chosen by the Graphio, or the Missus, from amongst the “Meliores Pagenses,” or leading proprietary of the district in which the cause was tried; and in cases of doubt reference was made, not to a written code, but to “nostrum placitum generale,” representing the whole community in general Mall or meeting; just as the Scabini represented the “proportio visnetæ,” or the chosen portion of proprietors acting in the name of the whole neighbourhood. The same principle was extended to every lesser court, whether public or private; three Sagibarones pronounced judgment in the court of the Canton; and when Sigwald the priest, and Dodilo the noble—representing respectively the ecclesiastical and lay element, as in the association of the Bishop with the Ealdorman in the old Anglo-Saxon Shire-gemote—sat as Missi, or deputies, of Hincmar in the archi-episcopal court of Rheims, the judgment was pronounced by eight Scabini chosen from amongst the leading Frank-tenantry of the archbishop.[307] This difference between the Roman and the Teutonic systems is even yet recognisable in English law—all questions falling within the province of the great official, who derives his origin from the institutions of Rome, the Chancellor, being settled by the fiat of the royal official alone; but whenever the freeman is put on his trial for life or liberty, his fate is still decided by “the Jugement del Pais,” the verdict of his own Visnet or neighbourhood—unless for some sufficient reason the venue is changed to another Visnet or neighbourhood—the presiding judge simply passing sentence according to the verdict thus given; though in modern times the jury, and not the judge, leave the court. Every Germanic people seems to have clung with tenacity to this principle, and after the law of the Benefice, mostly founded on the Roman Code, had replaced allodialism in Eastern Germany, it is still recognizable in the stipulation that no man should be deprived of his Benefice—for the jus Beneficiale had now replaced allodial right—except “by the judgment of his peers”—the identical principle maintained by the Anglo-Norman barons against the encroachments, not of the Norman William, but of the Angevin Henry and his sons.[308]

There is not a trace of any similar institution amongst the earlier Anglo-Saxons, as far as it is possible to judge from the collection of laws in force in Wessex and Saxon Mercia during the reign of Alfred. The king’s Ealdorman or his junior—the Vicarius, not the Vicecomes—presided in the ancient Folk-mote, which was held in every shire or district under an Ealdorman; and as every freeholder was bound to be present at a meeting of this description, justice appears to have been administered according to the ancient custom, in the presence of the whole free population; though not by a Lagaman chosen by the people, but by an official appointed by the crown. A solitary passage in the laws of Athelstan seems to point to the exercise of judicial functions by the “Meliores Pagenses” in the reign of Alfred’s grandson; for in cases of manslaughter and fire-raising, if the accused was found guilty, it was “to stand within the doom of the Senior men of the Burgh whether he should have his life or not.” The principle was in full force, during the reign of Ethelred, amongst the Anglo-Danes of the Mercian confederacy, twelve of the Senior Thanes binding themselves to administer true justice with the Reeve in the Gemote; unanimity in their verdict being aimed at by fining the dissentient minority, when two-thirds of their number had agreed, the whole amount of the sum which each had deposited as a wed—the decision of the majority carrying the verdict, continuing to be a feature distinguishing the Scottish from the English jury at the present day.[309] No innovation appears to have been introduced amongst the Gaelic people upon the older custom of assembling the whole free population of the district, confederacy, or kingdom, in annual or occasional meetings, which in the settled parts of the country were by this time probably represented by the assemblages of the thanedom, the earldom, and the great meeting in which the sovereign presided in person; for it is still possible to trace the existence of district, provincial, and royal judges, who must have had a part assigned to them in each separate assemblage of this description. Four “Courts” are alluded to in the Welsh laws, but the free proprietary had probably little to do with the courts of the Breyr and of the Tawg-tref—the Baron’s and the Villein Court—their attendance being only required at the courts of the Cymmud and of the king—for the earldom was unknown in Wales—where, in the absence of the sovereign, the Effeiriad, the Distyn and the Brawddwr-Llys presided; or the royal chaplain (the equivalent perhaps of the Scandinavian Hird-Bishop), the high-steward as president of all the Maers, and the court judge as senior of all the Cynghellwrs.[310] It was in a great assembly of the whole free population of the united people that “the laws of Aodh the Fair,” involving, probably, the right of his descendants to the throne, were recognised in the reign of the first Donald; a similar assemblage under Constantine the Second, on the Moot Hill of Scone, appears to have ratified, or assented to, the ecclesiastical constitution of the Scottish church of that period; and it was in great meetings of a similar description, and at the same place, that it was “the custom of the Scots” to choose their kings, or rather perhaps to confirm the selection of their Seniors.[311] The affairs of a province, or Mormaordom, appear to have been regulated in a similar assemblage on a smaller scale; and a description of such a meeting in the olden time will be found in the Registry of the Priory of St. Andrews, part of the property of the priory having been held by a verdict given in a general assembly of the province. When Sir Robert Burgoin encroached upon the lands of Kirkinnis an appeal was at once made to king David, who despatched his messengers throughout the united district of Fife and Fotheriff to convene the people of the province. The place of meeting is not mentioned; but thither came Earl Constantine of Fife, “a discreet and eloquent man,” at this time Justiciary of Scotland, with “the Satraps, Satellites, and Hosting” of the county; or the free proprietary who held under the Mormaor, with their kinsmen, and the followers who would have been known amongst the Northmen as Thingmen. The presence of the Bishop is not alluded to, but thither came his Hosting, or all the Frank-tenantry of the broad lands restored by Alexander to the church, under the captaincy of Budadh and Slogodadh—Toshachs or leaders apparently of the military contingent due from the church-lands in the province—and under the presidency of Macbeth, Thane of Falkland, probably the Maor, Baillie, or Vidame of the bishop. When the whole community of the province was assembled, three arbiters were chosen to try the case,—Earl Constantine as justiciary; Maldonaeth Mac Machedach, “a good and discreet judge,” the Brehon probably of the province; and Dugal Mac Moccha, on account of his venerable age,—the number of the arbiters exactly coinciding with the number of judges in a Welsh court. The cause was conducted on the principle of compurgation—in earlier times it would have been decided by battle—the abbot in legal phrase “swearing se sexta manu;” or, in other words, Abbot Dubtach and five of his clergy testified, by an oath sworn on the altar, to the boundaries in dispute. As no notice is taken of the defence, it is impossible to say whether Sir Robert failed in producing his twelve compurgators—for he would have been bound to “lay twelve hands” on the altar—or whether the oaths of his “jury” were disbelieved; the arbiters, deferring to Dugal from his experience and “knowledge of law,” pronounced in favour of the Culdees; and a notice of the transaction, entered in the Registry of the Priory of St. Andrews, attested the right of that foundation to the property in question, as heirs of the Culdees of Kirkinnis.[312]

Such was the legal process, during the earlier portion of David’s reign, for settling the numerous cases of disputed boundaries, which, by the same king’s subsequent regulations, were decided by the “perambulation” of the “good men and true” of the neighbourhood, and in the presence of the royal Missi, or other notabilities, appointed as “unlying witnesses” of the proceeding. There is no trace at this period of the Vicecomes in Fifeshire, though he existed in other quarters beyond the Forth; nor of the “Jugement del Pais,” by which the arbiters chosen in public Moot were replaced by the good men and true of the country, appointed by the royal official. As the division of power, so remarkable amongst the Gauls in the days of Cæsar, was still traceable in the delegation of authority to two officials, so the restriction of all judicial functions to the Druids would almost appear to have survived, in a certain sense, in the limitation of similar functions to their representatives, the Cynghellwrs, Brehons, or Deempsters. Thus the Hereban levied during the reign of the second Alexander upon all who failed to attend the Hosting against Donald Mac Niel, was settled at Perth, on the second Thursday in Lent, “by all the Judges of Scotia;” condemnation was pronounced against Gillescop Mahohegan on “the Tuesday before St. Denis” at Edinburgh, “by all the united Judges of Galloway and Scotland;” the “Judges of Galloway” assessed the fine for a breach of the king’s peace; and when the king crossed the borders of a province in his great circuit, all the Judges of the district were still bound, in the reign of William, to be in attendance upon the royal court until it reached the frontiers of another province. Pure blood and property qualified the Teuton to be chosen as a Scabinus, but the Celtic Judge seems to have been selected from a family of Brehons.[313]

It was probably, then, upon a system acknowledging the usual Ordeals of water and iron, the Wager of battle, and Compurgation “by oath sworn on the altar, according to the custom of Scotland,” and in which justice was generally administered by the district, provincial, or royal judge, whether inheriting his office, nominated by the crown, or chosen as arbiter in the public Moot, that David introduced the “Jugement del Pais” or Visnet; which must have, ere long, replaced the judgment of the earlier Brehon, or Deempster, by the verdict of “the good men of the country,” or the leading proprietary of the neighbourhood. Henceforth judgment was to be given by “the free-tenants, suitors of the Court,” sentence only being pronounced according to their verdict by the Judge, Sheriff, Alderman, or Bailiff, who was bound to leave the Court during their deliberation; and in process of time, the representative of the ancient president of the Gaelic Court of justice sunk so low, that the holder of the office of Deempster, which had long been shifted upon the lowest official of the law, no longer appeared at all in Court, except to pronounce that sentence of death which he himself was bound to execute—he was the Hangman. Every man, whether Earl, Baron, Vavassor, or Burgess, was entitled to be tried by his Peers, though one of lesser standing might be judged by the verdict of his superiors. Damages, or the amount of injuries sustained, were to be assessed by men of credit—fide-digni, the “unlying witnesses” of Athelstan’s Laws; and in challenge of battle, the sum deposited was to be estimated, not according to the claim of the challenger, but by “the assize of the good country,” the “body of the defender” being reckoned as one-third of the amount; whilst if a man accused of theft could prove, to the satisfaction of a similar jury, that the complainant had never possessed as much property as he charged the accused with stealing, the latter was to be at once acquitted by their verdict. Jurisdiction in the four greater causes known as “the Crown-pleas”—murder, rape, robbery, and fire-raising—was removed from the lesser Courts, no Alderman or Baron’s Bailiff being permitted to try such cases unless by special mandate of the Justiciary or “his attorney;” and it was ordered, that in every county a royal Moot was to be held “within forty days,” or six week’s after the issue of the king’s writ, which was to be attended by the Bishop, the Earl, the Vicecomes, and by every free proprietor who was “Lord of a Vill.” All direct appeals to the king were prohibited, except in cases connected with the Crown-pleas, or where the officials in a lesser Court had failed to do their duty; and if the last law, ascribed to David, is not misplaced, all questions connected with property and inheritance were to be referred to the decision of “the assize of the good country.” The heir, no longer chosen according to the Law of Tanistry, by the kindred, was to be declared successor by the voice of “the good men of the neighbourhood;” whilst the claimant of property held by another—he who urged that he had been unjustly disseised—was not to support his claim by an appeal to the sword, but to submit it to the verdict of a similar jury.[314] The older system, however, appears to have been reluctantly abandoned, or at any rate to have died out very gradually; and in Galloway, which, after its closer union with the rest of Scotland, retained its peculiar code until the days of the first Edward and Robert Bruce, the was the exception and not the rule, none being judged according to its provisions except they refused the older law, and claimed Visnet. The Ordeal, the Wager of battle, and the Wager of Law, long held their ground side by side with the Verdict of the “good men and true,” for most of the ordinary trials of “Common Pleas;” and it seems doubtful even if in other quarters besides Galloway it were not open to the contending parties, at a much later period, to choose between the “Jugement del Pais,” and the misnamed “Judgment of God.”[315]

Another of the innovations upon “ancient custom,” traceable apparently to the reigns of Alexander and David, though more particularly to the reign of the latter king, was the introduction of the written charter as the necessary evidence of the right to freehold property. It was long before any of the northern nations attached importance to the written documents, which were at the basis of the whole system of free rights, or property, held by Roman law. He who was freed “by tablet” ranked merely as a Roman citizen, reckoned at half the value of the man freed in open Court “by casting the denarius;” and when the horn of the Graphio summoned the Voisinage around the body of the murdered man, or when the suspended shield of the Centenarius marked the spot where the Mall was to be held, the parchment writ would have been unheeded by the Frank living by Salic Law, or despised as an unmeaning formula of the Roman. Liability was transferred, or responsibility was shifted, by casting a small stick into the lap, or by throwing a handful of earth, in open Mall, or before witnesses; and allodial right was alone acquired by undisputed possession for a term of years, or by descent. The earliest application of the Roman principle appears in the royal grant equivalent to the Franc-Alleu-noble—the permanent alienation of a certain portion of the Fiscal or Folk-land, in which, by ancient custom, the king, or the community, held a life interest alone: a similar process, some centuries later, converting the Benefice into the hereditary Feud, held by written charter. The royal grant of Bocland had long been familiar to the Anglo-Saxons as the sole known form of permanent property; but the Benefice, rather than the chartered Feud, was its equivalent amongst the Normans in the earlier part of the eleventh century; and when they adopted the Charter after the Conquest, it was always in the old Anglo-Saxon form, which can scarcely be supposed to have been brought from the Continental Duchy; and it was accordingly in this form that it penetrated subsequently into Scotland.[316]

It is only from indirect evidence that it can be gathered that the Charter became necessary, to prove the existence of freehold right, from the time of David. The charters ascribed to Duncan II., and Edgar, were connected with the Saxon Church of Durham. They were attested, apparently, by witnesses of Saxon, or Danish, descent, connected probably with the diocese—Ligulf of Bamborough, for example—and drawn up by Saxon monks after the manner of their own country; so that they afford no proof whatever of the existence, or the necessity, of public, much less of private, documents of this description beyond the Forth at the opening of the twelfth century; and when Alexander restored to the Church the lands which had lapsed to the kings of Scotland, as hereditary abbots of St. Andrews, the re-grant was completed with all the studied ceremonial and display of “ancient custom.”[317] A different course, indeed, was adopted at Scone; when, for the first time, perhaps, was displayed the unwonted spectacle of six Gaelic Mormaors affixing crosses to the signatures, which some clerkly scribe had attached to a written document, confirming a munificent donation of lands and privileges to the royal foundation: but no private charters can be traced to an earlier date than the reign of David, who appears to have first introduced them into his principality of Scottish Cumbria. No law or enactment of any description has been left on the subject; but a statute of William, by which all who were found guilty of forging a royal charter were to be placed “at the king’s mercy”—the forgery of a similar grant from a subject being also punishable, but as a minor offence—affords the surest evidence of the necessity of a charter, at that period, in proof of freehold rights.[318] The habit of forging such evidence must have arisen out of the necessity of a written title-deed, a similar necessity accounting for the multiplicity of such forgeries in southern Britain; where a legend was occasionally framed for a similar purpose, or a saint appeared in a vision to afford miraculous, but suspicious, testimony about the extent and privileges of his ancient patrimony. Henceforth the Charter marked the Freeholder, or the member of the Community of the Realm; and whilst in southern Britain knight-service was the test of gentle birth, the holder by free socage, and the Kentish Gaveller, being only classed amongst the yeomanry, in Scotland a similar test was afforded by the Charter; and in the reign of Alexander II., all who were knights, sons of knights, or holders of any portion of a knight’s fee, and all who held their lands by free service, or by “fie-de-hauberc,” hereditarily and by charter, ranked, with their sons, as men of free and gentle birth, who could appear in the lists by their champion; the churl-born tenant of land, the man of ignoble birth, and all who had neither free tenement, nor free parentage, being bound to appear in person. It was from the former class that the “good men and true” were chosen to perform the duties of the Voisinage, and before the middle of the thirteenth century none could be sworn to hold inquest touching “the life or limbs of a land or grass holding man,” except, “good men and true, freeholders by charter.”[319]

It can scarcely, then, be doubted that David was the originator of that important change by which a fixed title to land was acquired, produceable when necessary in proof of ownership—a change which, in connection with the formal perambulation of boundaries, in the presence of “the good men and true,” must have done much to put a stop to those constant disputes about proprietorship, which had hitherto been settled by the sword. David is often represented, in modern times, as the exterminator of his fellow-countrymen, granting their lands to foreigners, and driving out the native Scottish race, or enslaving them beneath the yoke of alien masters—a course that could have hardly earned the character ascribed to him by his friend and biographer Ailred, “he was beloved by his own people the Scots, and feared by the men of Galloway.” It would be nearer the truth, perhaps, to describe him as the great confirmer of proprietary right throughout the settled portion of his kingdom; and it still seems possible to point out the method which was adopted to carry out his purpose. By a law of a much later period it was decided that the freeholder was not bound to produce his charter to his overlord more than once, after which it was to be returned to him immediately. It may be gathered, from this regulation, that there were occasions on which the land-holder might be required to prove his title to ownership; and the kings of Scotland, at a later period, are sometimes found amongst the Western Highlands demanding charters, and confiscating the property, or rather the freehold rights, of all who could not produce the necessary title-deed. Thus, at the opening of the fourteenth century, every Vicecomes was commanded to attend “our council,” with the other magnates of the realm, and to warn his bailies, amongst other duties, “to summon all who have, without license, entered upon lands alienated after the death of our predecessor Alexander, to show their right to do so”—a right which could only be proved by a written document. How such a title was originally acquired may be gathered from the example of Eogan, Thane of Rothenec, who appeared at Inverness on the Monday before St. Andrew’s Day, in the year 1262, and in the presence of the Bishop of Ross, the Justiciary of Scotland, and the Sheriff of Elgin, proved to the satisfaction of the good men and true of the neighbourhood, that the lands of Mefth, with a house in Elgin Castle, which had been given by William to Yothre Mac Gillies, had been held uninterruptedly by Eogan and Angus, son and grandson of the first recipient of the grant; passing from the last-named Angus to his son Eogan, the actual Thane of Rothenec, who was thus the fourth in descent from the original holder. The written and attested verdict of the good men and true, formed, from this time forward, the chartered title-deed of the lands of Mefth; and it may be conjectured that, at the first introduction of the Charter, all who claimed the right of freehold proprietorship were bound to attend the royal Moot, and prove to the satisfaction of the good men and true, the necessary qualification of three descents of ownership. He who was thus qualified could claim a charter as his title from the king, earl, thane, or ecclesiastical superior, of whom he held his lands; whilst in the case of all who failed in proving the necessary qualification, it would remain in the power of their overlord, either to confirm their proprietorship by the wished-for title, or to enter upon the land as lapsed “demesne.”[320]

From this period two classes of Freeholders, besides the Earls and greater Barons, may be traced in Scotland, who may be compared to the Vavassors or Mesné tenants of the corresponding era in Southern Britain; the holders by knight-service, who grew into the Lairds, or lesser Barons, of a later age; and the holders by Scottish service, who were, with few exceptions, confined to the northward of the Forth.[321] The latter were the Thanes, who, on the occasion of the festivities at York in 1251, when Paris notices the presence of more than sixty Scottish knights, were also in attendance upon their youthful sovereign, at least in equal numbers.[322] The lowest amongst the Freeholders appears to have been the proprietor of half a plough-land—the eighth part of a Davoch or of a Fief de Hauberk—containing fifty-two Scottish acres; the holder of that amount of land, by free service, and by charter, answering to the proprietor of the Half-holding, wherever the Imperial Law of the Benefice was acknowledged, who, though widely changed in character, is still known in the United Kingdom as “the forty shilling freeholder.” The Quarter-holding of two ox-gangs, or twenty-six Scottish acres, answering to the Anglo-Saxon Virgate or quarter-hyde, and known in many parts of Scotland as the Husband-land, gave no pretensions originally to freehold rights.[323] Scottish service was probably most popular in early times with the native Scots, for it accorded best with their custom of planting the junior branches of the family upon the land, liable to rent, as well as to general military service—a system which may have also had its attractions in the eyes of the greater Barons, who held their own lands by knight-service of the Crown—but it died out gradually in the more settled portions of the kingdom; and, in the case of certain well-known families, the charters can still be produced by which the ancestral Thanedom was converted into a Barony. The earlier system was traceable in the Highlands as late as the opening of the seventeenth century, when the proprietors were divided into Lords, Lairds—greater and lesser Barons—and royal Bailies of lands, the latter holding in fee-farm, and answering to the Thanes of an earlier period.[324] The patronymic, as distinguished from the surname, still lingered in the same quarter, where the Tighern was known for his descent, rather than from his property, though the custom was even then fast giving way; and at the present time, in no part of the United Kingdom is the territorial appellation so generally used as in the Scottish Highlands, where “the Laird” is often better known by the name of his property than by his own surname. A similar change had been in progress in ancient Scotia long before it penetrated to the wilds of Moravia and Argyle; and after the introduction of the charter, when the privileges of free and gentle birth, hitherto attached to a certain degree of relationship to a thane, were transferred to the chartered freehold, the freeholder, whether of native or foreign origin, gradually became known from his barony or freehold; and as none but the greater Norman barons were distinguished, as at present, by a separate surname, the property itself supplied a designation for its owner. Thus by degrees the whole of the freehold proprietary, without distinction of race, relinquishing the shifting patronymic which had hitherto belonged as much to the Saxon and the Northman as to the Gael, adopted surnames from those chartered properties, which ensured to them the privileges of free and gentle birth, which had formerly attached to descent.[325]

If David may be looked upon as the regulator of the “Two Estates,”—the Clergy, and the Baronage and Freeholders connected with the land,—he may be regarded as the founder of the “Third Estate” in Scotland, the actual creator of the free population connected with the towns. An intramural population was an anomaly amongst the people of the North, and in their older codes no provision was made for a free proprietary dwelling in towns, land, and land only, being connected with freedom and hereditary right. It is only in the old Burgundian code that the craftsman connected with the city is mentioned, and he was placed by the regulations of Gundobald upon a servile footing. It scarcely admits of a doubt, indeed, that a civic population, for which no provision was made in any Germanic code, must have lived, whether free or servile, by Roman law, retaining probably their original institutions, after they survived the first fury of the storm, without much interference from their conquerors; nor would the privileges subsequently belonging to free towns have been of much moment, had there not been a time when all such communities were neither free nor privileged. Britain, however, was peculiarly situated, no Roman population remaining to preserve the civilized institutions of imperial despotism, side by side with the rude, but free, traditions of their Anglo-Saxon conquerors—most fortunately for the liberties of England—and as no regulations for a free civic proprietary are traceable in the earlier Anglo-Saxon laws, it may be doubted whether any such proprietary existed. The shattered remnants of the old Roman cities of the island became the property of the owners of the district in which they were situated—petty kings and Ealdormen originally, like Hrofa and Cissa, who gave their names to Hrofa’s ceaster and Cissa’s ceaster, Rochester and Chichester; and latterly the sovereign of one of the greater states, or the nobleman to whom he entrusted the district—the population remaining probably on a Lœtic or dependant footing, the Teutonic element entering very little into its composition in early times. The British town, according to Cæsar, was a portion of the forest separated from the rest by a bank and ditch, the Briton in time of danger securing his cattle and family within the precincts of this “circumvallation;” and as amongst several of the Germanic tribes the same word Wic meant a grove, a temple, and a town, it may be surmised that the original Wick was a portion of the forest similarly encircled with a bank and ditch, and used as a temple for the gods, and a place of security in times of danger, instead of the caves which, in the days of Tacitus, appear to have been used, for places of concealment rather than for defence. London-wic and other British towns may have occasionally supplied the place of such earlier and ruder “places of strength,” the resident population remaining on a dependant footing, and the freeholders of the vicinity not habitually dwelling within the walls, but sheltering themselves behind them in times of danger; for the Tun of the Gesithcundman was scarcely capable of defence, and the Ceorl’s Hedge was only calculated to keep out cattle. Such seems to have been the case at the time of the Danish wars, when the walls were seldom of a more formidable construction than a strong wooden palisade, and were easily broken through at the great battle of York. As soon as he had saved the monarchy, Alfred directed his attention, as much to remedying this defect, as to reviving letters amongst his subjects, or building ships to protect the coast, constantly impressing the necessity of building Burhs upon his Reeves and Ealdormen, and providing skilled artificers—a sure test of the ignorance of such arts amongst his own people—to carry out his projects. London-wic, plundered and ruined by the Danes, arose from its ashes as London-burh, and was made over—geset or let—by Alfred to his daughter’s husband, the Mercian Ealdorman. The history of the next reign, after Edward was once securely seated on his throne, is one continual record of the progress of Burh-building and Hlaford-socn—or Commendation—the Burh-bote, a permanent obligation attached to all property held of the crown, whether church-land or thegn-land, binding the churchman or thegn to keep in repair the Burh with which his land was connected, such associations being entered into for defence, not for trade; and it would be a grave error to mistake the Anglo-Danish confederacy of “the Five Burghs,” or the men of London-Burgh in the days of Athelstane—the Burh-Thegns as they are often called—whose Bishops and Reeves were bound to keep the peace, as ordered by the king and his Witan, for mercantile or trading communities. The rules laid down by the London Reeves and Bishops at this period will be found to relate to tracing stolen cattle, and keeping their “Hirdmen” in order; but it is vain to look for the regulations about trades and craftsmen, which will be found invariably in later Burghal laws.[326]

Amongst the innovations introduced by the Normans, it may be read in the Saxon Chronicle how “they wrought castles throughout the land,” novelties to the people of the country, who seem to have retained much of that old Germanic aversion to castles which is traceable in the Frison law against building stone walls above a certain height; and accordingly from this time the Scots no longer swept the country in their invasions to the gates of Durham, but were stopped at Werk, Norham, and other feudal strongholds which they were obliged to invest, or if they advanced further into the country, to blockade. The royal castle was now attached to the royal burgh, and its garrison provided by the knights who held their lands by the tenure of castle-guard; the neighbouring gentry probably, differing little from the thegns who in earlier times had been bound to keep the burgh in repair. The name of Burgher henceforth undoubtedly belonged only to the actual possessors of property within the walls, the bulk of whom had probably from the earliest period of their location within burgh formed the commercial part—the Twyhyndmen, as the Upland thegns were the Twelfhyndmen—of the community. It was the Anglo-Norman Burgh, with its feudal castle, and its civic population distinct and separate from the garrison, which was the model of the burghs established, or confirmed, by David beyond the Tweed. It may be doubted whether any free communities engaged in commerce, and occupying walled towns, were in existence much before this reign even in the Lothians, though the germs of such societies may have existed at Scone, Edinburgh, Stirling, and other places, which were of a certain importance at that early period. Had there been burghs or walled towns in any part of Saxon Northumbria before the close of the eleventh century, the invading Scots would have surely been checked before they reached the gates of Durham; the unopposed incursion of the Second Constantine as far as the Tees marking apparently the non-existence, in that quarter, of any walled town in the middle of the tenth century, capable of arresting the progress of a hostile force. As the sees of Glasgow and St. Andrews may be regarded as the models left by David for the regulation of the other Scottish bishoprics, so the Hanse or community of the Four Burghs of Roxburgh, Berwick, Edinburgh, and Stirling, was the leading commercial association of the same reign, all other burghs as they grew into existence conforming to its rules and ordinances; and as the Hanse was composed of four burghs, so each Burgh seems to have been originally divided into four Wards—in strict accordance with the theory which divided in a similar way the great rural association of the shire into four quarters. Over every Ward was placed a Bailie, a type of the rural “Mair of the Quarter,” and sometimes known, like the President of the Frison Quarter, as the Ferthyngman; the leading personage being the Burgh-Reeve, or Provost, annually chosen, with the Bailies and Bedells, by the community of the Burghers in the first Burgh-Moot held after Michaelmas.[327] Complete self-government, indeed, was conferred, from the outset, upon the Scottish Burghers by a sovereign who was desirous of attracting such a class to his kingdom; and the enlightened policy of David, together with the state of peace and prosperity which he secured for the whole of the North of England, as well as for the settled portion of his own kingdom, soon filled the walled towns, which rapidly sprung up on every side, with a crowd of willing settlers from Southern Britain and Flanders, who were guaranteed the enjoyment of even more than the usual freedom and privileges under the royal protection. They were to be judged by their own chosen magistrates, by “the verdict of their peers”—a privilege shared, indeed, with every Scottish freeholder—and according to the laws and assize of the Burgh, sanctioned by the community, and regulated by the Provost and twelve leading men. As in the case of the Baron’s Court, the crown pleas were withdrawn from the jurisdiction of the Provost and Bailies, but the royal justiciary, or his deputy, sat in the Burgh-Court; the verdict was given by the “good men and true” of the community; and no summons made by a royal serjeant was valid, unless he was accompanied by the Town Bedell. Every burgher was bound to possess at least one rood of land in the burgh, for which he paid five pence yearly to the king; and to swear fealty to the sovereign, the magistrates, and the community of the burgh—for the tie which bound the burgher was the old fealty of the Leud, not the homage of the Antrustion with its attendant obligations; he plighted his troth with his hand upon the Sacred Volume, not placed between the hands of his overlord “after the Frank custom.” In this, and in other points, burgage-tenure much resembled the tenures of socage, and of gavelkind, which approached the earlier allodial custom, looked upon in later times as Roturier; but from Merchet, Heriot, and other exactions which had passed, with the principles of service and dependance, into many of the tenures of the age, the Scottish Burgher was exempt; as well as from the wardship which was attached to knight-service. The heir, if a minor, remained with his “chattels” in the custody of his mother’s relatives, the father’s kindred taking the charge of the “heritage;” this heritage being strictly entailed upon the heir, who could stop those deathbed transfers of property which were occasionally suggested by designing personages, whether lay or clerical. Under certain circumstances, such as the fear of starvation, even the Allod might be parted with; and similarly the “Capital Messuage” might be sold, or the property alienated, if the heir was either unwilling, or unable, to relieve his father’s necessities, or to pay his father’s debts; the Burghal Code justifying this exception from the ordinary rule by the admission that “nede has na law.” Twelve witnesses were required for the purchase of a burgage tenement, the twelve next door neighbours apparently, who stood in the place of the kindred of earlier times—the occupants of the four houses on either side and of the four immediately opposite; and if the tenement was held without dispute for a year and a day—the period which also seems, from time immemorial, to have conferred the right of participating in the privileges of “the neighbourhood” in the rural districts—it became the absolute property of the purchaser, unless the former owner could show that he was a minor, or beyond sea, at the time of the purchase. The perfect freedom of burgage tenure was ensured by the provision that “If any man’s thryll, baron’s or knight’s, comes to the burgh and buys a burgage, and dwells in his burgage a twelvemonth and a day, without challenge of his lord or his baillie, he shall be ever more free as a burgess within that king’s burgh, and enjoy the freedom of that burgh;” an enactment, not so much aimed at encouraging fugitive native-men from the rural districts to settle in the towns, as against a previous state of society which still exists in Russia—or existed lately—in which the bondman might rise to wealth and station as a citizen, without shaking off the thraldom which bound him to his original proprietor. As, after the enfranchisement of towns, the undisputed possession of a burgage tenement for a year and a day conferred the proprietorship of a freehold, it necessarily carried with it, like the gift of arms at an earlier period, the indisputable rights of a freeholder.[328]