|
SECTION II.
DISTINCT RACES IN SCOTLAND.
We come now to the consideration of an important subject; to make a few remarks upon the different races of men which appear originally to have settled in Scotland, and the division of orders and ranks in society into which they came to be separated during this remote era of our history. At the death of Malcolm Canmore, in 1093, four distinct races were dis-
4 Cartulary of Paisley, pp. 359, 360.
5 MS. Bibl. Cotton. Tit. A. XIX. f. 78, C. The MS. is a life of St Kentigern, written about the end of the reign of David the First. “ Ab illo quippe tempore in hunc diem tanta piscium fertilitas ibi abundat, ut de omni littore maris Anglici, Scotici, et’ a Belgicæ Gralliæ littoribus veniunt gratia piscand: pi - catores plurimi, quos omnes Insula May in suis rite suscipit portibus.” Macpherson’s Notes on Winton, vol. ii. p. 479.
ANCIENT STATE OF SCOTLAND. 243
cernible in Scotland. There was first the Gaelic or Celtic people, speaking the Erse language, and inhabiting Argyle, Galloway, Inverness, and nearly the whole of Scotland to the north of the Firth of Forth. Beyond them the hardy and warlike Nor wegians had seized upon the Western Isles, and colonised the extreme dis tricts of Ross and Caithness. In the richer lowland counties were the Saxons, a Gothic race, from whom Malcolm Canmore had chosen his queen, and whom he highly favoured and encouraged, while the convulsion in the sister country at the great era of the conquest had driven many opulent Normans to desert the service of the conqueror, and to carry their arms and their allegiance to a foreign prince, by whom they were warmly welcomed. During the long interval of a century and a half, which elapsed between the death of Malcolm Canmore and the accession of Alexander the Third, these materials became insensibly blended and mixed into each other; but the process was extremely gradual, and during the whole period we can discern distinct marks of the different races.1 At the death of Malcolm Can- more, an event took place which exhi bited in strong colours the animosity of the Gaelic people to the Saxons and Normans. Donald Bane, who had taken refuge in the Hebrides upon the usurpation of Macbeth, having emerged from his northern asylum, seized the throne; and his first exer tion of power was to expel from the country all the foreigners who had in truded into his dominions.2 The fre quent residence of David the First, pre vious to his accession to the Scottish throne, at the court of England, and his possession of the extensive district of Cumberland, which was exclusively occupied by a Saxon and Norman population, must have contributed to soften the lines of distinction between the different classes of his subjects when he became king. Yet his
1 Fordun a Goodal, book viii. chap, ii., iv., and vi., book ix. chap, xxxiv., xlvii., xlviii. and lxiii.
2 Chron. Johan. Brompton, p. 990. Chron. Melrose, p. 174.
anxious efforts could not altogether extinguish their jealous animosities, or prevent them from breaking out on most occasions when they were com pelled to act together.3 For example, at the battle of the Standard, Malise, earl of Strathern, a Gaelic chief, re monstrated with the Scottish king against his design of placing his squad rons of Norman soldiers, who were clothed from head to foot in steel, in the front of the battle. “ Why,” said he to the king, “will you commit yourself so confidently to these Nor mans? I wear no armour, yet none of them this day will go before me in the battle.” Upon which David, to prevent a rupture between the two divisions of his army, found himself compelled to give the post of honour to the Galwegians, whom the Norman historians represent as a nation of absolute savages.4 An attention to the arrangement of the Scottish army in this memorable battle, and to the circumstances under which it was fought, will throw some light upon the various tribes which at this time composed the body of the nation. After the Galwegians, who insisted on forming the first line, and were led by their chiefs, Ulric and Donald, came the second body, composed of the Norman men-at-arms, the knights and the archers, commanded by Prince Henry, whilst the soldiers of Cumber land and Teviotdale fought in the same line, and beneath the same banner. In the third division were drawn up the men of Lothian, along with the Islanders and Ketherans; and the king himself commanded a reserve, in which he had placed the Scots and the natives of Moray, with a select body of Saxon and Norman knights, which he kept near him as a body guard.5 There were at this time in the English army two Norman barons, Robert de Bruce and Bernard Baliol, who possessed estates in Galloway, which they held of David as their liege lord. Before the battle, Bruce,
3 Rich. Hagulstad. pp. 318, 323. Johan. Hagulstad. p. 262.
4 Ethelredus de BelIo Standardi, pp. 341, 342. Ricardus Hagulstad. Hist. p. 318.
5 Ethelredus de Bello Standardi, p. 342.
244 HISTORY OF SCOTLAND.
who had been an old and dear friend of the Scottish king during his resi dence in England, requested an inter view, and anxiously advised him to desist from further hostilities and to consent to a peace. In the arguments which he employed, as given by a con temporary historian,1 the enmity be tween the Scottish and the Norman race is strongly insisted upon. He paints the Scots as rejoicing at the op portunity of avenging themselves upon a nation which was odious to them, and accuses the king of extreme folly in making war on that people by whom he had supported his power against the attacks of his Scottish subjects. “Think not,” says he, “that one part of these savage tribes will be a suffi cient defence against the rest; that the Scots will be barrier enough against the Scots; and raise not your banner for the destruction of those whose faithfulness in your defence has made them to be hated by the Scottish race.”
The two races in David’s army, thus strikingly described, seem to have been the Galwegians, the Islesmen, and the Ketherans, on one hand; the Normans and Saxons, the men of Lothian, of Teviotdale, and of Cum berland, on the other. Nor is it diffi cult to discover the cause of their animosity. The fact just mentioned, that Bruce and Baliol, two Norman barons, possessed lands in Galloway, will guide us to it. It was the policy of this monarch to encourage the in flux of Normans into his dominions, by conferring upon them estates in the districts which his Gaelic subjects considered exclusively their own; and out of this policy arose a mutual jealousy and hatred, which it required centuries entirely to eradicate. The arms, the appearance, and the manners of these Galwegians are marked by the same author as essentially different from the rest of the Scottish army. When compared with the Norman men-at-arms, they were little else than naked savages. Their swords and a buckler of cow hide were their only weapons of defence against the steel
1 Ethelredus de Bello Standardi, p, 343.
casques, the chained-mail shirts, the cuirass, vantbrace, greaves, and iron gloves of the English army; but their first attack, in spite of these disad vantages, was so fierce as to be fre quently successful. On the other hand, the Saxons and the men of Teviotdale, Cumberland, and Lothian appear to have been a civilised race, in comparison with the Galwegians, the Islesmen, and the Ketherans.2
The distinction, indeed, between the Saxon and the Gaelic people was as strongly marked as that between the Normans and the Galwegians. Malcolm’s queen was a Saxon prin cess, and the sister of Edgar Atheling, the heir of the Saxon line in England. She spoke only her own language; and when she communicated with the Gaelic chiefs or clergy, employed as her interpreter the king, her husband, who was acquainted both with his own language and that of the English people.3
At the coronation of Alexander the Third, we have seen that the Gaelic portion of his subjects claimed a part in the ceremony, by the appearance of the Highland bard or sennachy, who repeated the genealogy of the king;4 and, during the long wars of the three Edwards, the animosity of the same people to the new race of the Saxons and the Normans is manifested by the constant rebellions of the Galwe- gians and northern Scots; and the apparent facility with which the Eng lish monarchs, on all occasions, sepa rated the lords of the isles and the northern chiefs from the common cause of liberty. Bruce’s expedition against the Western Isles in 1315, which was followed by a temporary reduction of the chiefs, evinces the continued feel ings of hostility; and almost the only
2 Ethelredus de Bello Standardi, p. 345. In Thierry’s Histoire de la Conquête de l’Angle- terre par les Normans, a work of talent, the author falls into an error (vol. iii. p. 24) in describing the Scottish army as having for its ensign or standard a simple lance. Ælred expressly tells us that they had “Regale vexillum, ad similitudinem Draconis figura- tum.” De Bello Standardi, p. 346.
3 Turgot, Vita Margaretæ Reginæ. Pin kerton’s Vitæ Sanctorum, No. 5.
4 Fordun a Goodal, vol. ii. p. 82.
ANCIENT STATE OF SCOTLAND. 245
occasion on which David the Second evinced a spirit worthy of his father, was in the suppression of a serious rebellion of the northern provinces of his dominions.1 As to the traces of the Norwegian or Scandinavian race in the body of the Scottish people, they were, although perceptible, partial and evanescent. Their settlements upon the mainland in Caithness and Ross were destroyed, and the Western Isles wrested from them by Alexander; so that, were it not for the impression which they have left in the Scandi navian names and superstitions which are prevalent in those remote regions, and the instruction communicated to the Islesmen in the art of navigation, we should not be able to discover that the children of Odin had ever pene trated into our country.
In the period of a hundred and twenty years, between the accession of Alexander the Third and the death of David the Second, the Norman and Saxon population became so intimately blended together as to appear one and the same people ; and their superior power and civilisation had gradually gained, from their fierce competitors, the Gaels, the greater and the fairer portion of Scotland. Even in those northern provinces, which had long exclusively belonged to them, barons of Norman and Saxon extraction were settled in possession of immense estates; and the constitution of the government, which, there is little doubt, had been under Malcolm Can- more essentially Celtic, was now as decidedly feudal, including certain orders and ranks in society which were clearly and strongly marked.
The king, under the feudal form of government, appears to have been superior to the highest nobility, in three great characters. He was the leader of the army in war, and pos sessed of the supreme military com mand ; 2 he was the great judge or administrator of justice to his people, either in person or by deputy ; and the fountain of honour, from whose will and authority all distinction and
1 History, supra, p. 228.
2 Simeon Dunelm. pp. 200, 210.
pre-eminence were considered as prim arily derived. It would be a great mistake, however, to suppose that his power was anything approaching to despotic; for it was controlled by that of the higher nobles, whose estates and numerous vassals enabled them almost singly to compete with the sovereign. At the same time, there is decided proof that ample provision was made for the due maintenance of the royal dignity, both in the person of the king himself and his eldest son, who, at a very early period, we find was considered as entitled to the crown by hereditary right.3
Edgar in 1106, being then on his deathbed, bestowed upon his younger brother David, afterwards David the First, a large portion of his dominions, which included the ancient kingdom of Strathclyde, and nearly the whole of the country to the south of the Firths, with the exception of the earldom of Dunbar; 4 a proof that the personal estate of the Scottish king was at that time great. Many other incidental notices, which are scattered in the pages of our early historians, may be brought to corroborate the same fact.
In the year 1152, the prospects of the kingdom were clouded by the death of Prince Henry, the only son of David the First; upon which that monarch, anxious for the stability of the throne in his own family, com manded his grandson Malcolm, the eldest son of Henry, to be proclaimed heir to the crown; whilst on the second son William, afterwards Wil liam the Lion, he bestowed his terri-
3 Simeon Dunelm. p. 223.
4 Ethelredus de Bello Standardi, p. 344. Macpherson’s MS. Notes on Hailes’ Annals, vol. i. p. 48. Hailes appears to be in an error when he imagines that the “portio regni,” spoken of by Ethelred, was the part of Cumberland possessed by the Scottish kings, as it was after this that David acquired Cumberland from King Stephen. David, before he was king, erected Glasgow into a bishopric, from which arises a strong pre sumption that it lay within his principality ; and we find that on his newly-erected Abbey of Selkirk, afterwards Kelso, he bestowed the tithes of his can of cheeses from Galloway, from which it is evident that he was the feudal superior of that district. Dalrymple's Collect, p. 404.
246 HISTORY OF SCOTLAND.
tories in Northumberland as the ap panage of the heir-apparent.1 We know, also, that David, earl of Hun tingdon, brother of William the Lion, held at the time of his death, which happened in the year 1219, the earl doms of Garioch and Lennox, the lordship of Strathbogie, the town of Dundee, with the lands of Inner- bervie, Lindores, Longforgrund, and Inchmartin, in consequence of a grant from the king his brother.2
In addition to these facts, which prove the power and personal estate of the king under the feudal govern ment in Scotland, the riches of the royal revenue are evinced by various pecuniary transactions of William the Lion. It is well known that this monarch paid to Richard the First the sum of ten thousand marks, for resigning the homage extorted by Henry the Second.3 Upon another occasion, he gave Richard two thousand marks to make up the heavy ransom which was exacted from the English monarch by the emperor.4 Upon John, king of England, he bestowed the marriage of two of his daughters, with fifteen thousand marks ; 5 and, if we may believe Hoveden, the same king offered fifteen thousand marks for Northumberland.6 Allowing ten pounds of modern money for every mark of ancient, we find from these insulated instances of the sums paid by this monarch that he disbursed, out of the royal revenue, two hundred and seventy thousand pounds; and was ready, in addition to this, to have paid a hundred and fifty thousand for Northumberland.
Upon the marriage of Alexander the Second with the daughter of Lord Ingelram de Couci, the portion of the youthful bride amounted to seven thousand marks, which was given her as a third of the royal revenue; so that in 1239, the date of this marriage, the
1 Fordun a Goodal, vol. i. p. 296. Johan. Hagulstad. p. 280. Grulielm. Neubrigen, p. 76.
2 Fordun a Goodal, vol. ii. pp. 33, 42. 3 Fordun a Hearne, p. 724.
4 Chron. Melross, a Stevenson, p. 100.
5 Fœdera, vol. i. p. 155. 6 Hoveden, fol. 420.
annual revenue of the King of Scot land, proceeding from the crown lands and other sources, amounted to twenty- one thousand marks,7 somewhat more than two hundred thousand pounds. The same monarch, notwithstanding the drain of the royal treasury, in his father’s time, gave ten thousand marks, besides lands, as a marriage portion with his second sister; and, on one memorable occasion, when the Scottish sovereign paid a Christmas visit to Henry the Third at York, in the mutual interchange of gifts be tween the two kings, Alexander, for the purpose of fitting out his royal host for the continent, made him a present of two thousand marks, or twenty thousand pounds of our present money, taking from him, at the same time, an acknowledgment, that the gift was never to be drawn into a precedent, but proceeded solely from his liberality.8
Under Alexander the Third, the riches of the royal revenue appear to have kept pace with the general pros perity of the kingdom. We have seen that monarch obtain the king dom of Man and the Western Isles by purchase from the King of Norway, paying down for them the sum of four thousand marks, with an annual pay ment of a hundred marks for ever; and, not long after this transaction, the same monarch, at the marriage of his daughter to Eric, king of Nor way, assigned as her dower the sum of seven thousand marks in addition to lands worth seven hundred marks a year.9 To give an exact account of the various sources of the royal revenue in those early times would require a careful and lengthened investigation. The rents and produce of the royal lands and manors throughout the country; the dues payable under the name of can on the products of agriculture, hunting, and fishing; the customs on the exports of wool, wool-
7 Math. Paris, p. 411. Macpherson’s Notes on Winton, vol. ii. p. 481.
8 Chron. de Dunstaple, MS. Bib. Cotton. quoted in Macpherson’s Notes to Winton, vol. ii. p. 480. Rotuli Pat. 14 Hen. III. m. 5. and 15. m. 7.
9 Fordun a Hearne, p. 1358. Fœdera, vol. ii. p. 1079.
ANCIENT STATE OF SCOTLAND. 247
fels, and hides ; on articles of domestic manufacture, on foreign trade and shipping; the fees and fines which arose at this period in all countries where the feudal system was estab lished, from the administration of justice upon the wardship and mar riage of heirs, and in the escheats of estates to the crown; the temporary aids which the tenants and vassals of every feudal sovereign were bound to pay on great occasions, such as making the king’s son a knight, the marriage of his daughters, his own coronation or marriage, or his ransom from cap tivity : these, amongst others, formed some of the principal sources of the revenue of the crown.1
If we make allowance for the rude ness of the period, the personal state kept up by the Scottish sovereign was little inferior to that of his brother monarch of England. The various officers of the royal household were the same; and when encircled by these dignitaries, and surrounded by his pre lates, barons, and vassals, the Scottish court, previous to the long war of liberty, and. the disastrous reign of David the Second, was rich in feudal pomp. This is proved by what has already been observed as to the con dition of the royal revenue, when compared with the inferior command of money which we find at the same era in England;2 and some interest ing and striking circumstances, which are incidentally mentioned by our an cient historians, confirm this opinion. As early as the age of Malcolm Can- more, an unusual splendour was intro duced into the Scottish court by his Saxon queen. This princess, as we learn from her life by Turgot, her confessor, brought in the use of rich and precious foreign stuffs, of which she encouraged the importation from distant countries. In her own dress she was unusually magnificent; whilst she increased the parade attendant on the public appearance of the sovereign, by augmenting the number of his per
1 Chalmers’ Caledonia, vol. i. p. 747. Chamberlains’ Accounts, passim.
2 Gulielmus Neubrig. p. 98. Macpherson’s Notes on Winton, vol. ii. p. 481.
sonal officers, and employing vessels of gold and silver in the service of his table.3 Under the reign of Alexander the First, the intercourse of Scotland with the East, and the splendid ap pearance of the sovereign, are shewn by a singular ceremony which took place in the High Church at St An drews. This monarch, anxious to shew his devotion to the blessed apostle of that name, not only endowed the religious house with numerous lands, and conferred upon it various immunities, but, as an additional evi dence of his piety, he commanded his favourite Arabian horse to be led up to the high altar, whose saddle and bridle were splendidly ornamented, and his housings of a rich cloth of velvet. A squire at the same time brought the king’s body armour, which were of Turkish manufacture, and studded with jewels, with his spear and his shield of silver; and these, along with the horse and his furniture, the king, in the presence of his prelates and barons, solemnly devoted and presented to the Church. The housings and arms were shewn in the days of the historian who has recorded the event.” 4
On another occasion, the riches of the Scottish court, and, we must add, the foolish vanity of the Scottish monarch and his nobles, were evinced in a remarkable manner. Alexander the Third, and a party of a hundred knights, were present at the corona tion of Edward the First; and in the midst of the festival, when the king sat at table, and the wells and foun tains were running the choicest wines, he and his attendants dismounted, and turned their horses, with their embroidered housings, loose amongst the populace, to become the property of the first person who caught them, —a piece of magnificent extravagance, which was imitated by Prince Ed- mund, the king’s brother, and others of the English nobles.5
3 Turgot, Vita Sanct. Marg. apud Pinkerton, Vitæ Sanctorum.
4 Extract from the Register of the Priory of St Andrews, in Pinkerton’s Dissertation, Ap pendix, vol. i. p. 464. Winton, vol. i. p. 286-
5 Knighton, 2461,
248 HISTORY OF SCOTLAND.
From these facts some idea may be formed of the wealth of the royal court of Scotland. Like the other contemporary feudal monarchs of Eu rope, the sovereign was surrounded by certain great ministers of state, under the names of the justiciar, the chancellor, the constable, the marshal, the seneschal, the chamberlain, and the hostiarius or doorward. These offices were held by the richest and most powerful nobles, whose wealth enabled them to keep up a train of vassals which almost rivalled the circle round the sovereign; and who, in their own court and castle, mi micked the royal pomp, and were surrounded by their own cupbearers, constables, seneschals, and chamber lains.1 Next to the king, therefore, such great officers held the highest rank in the nation; and no correct picture of the feudal government of Scotland, during this early period, can be given, without briefly consider ing the respective duties which de volved upon them.
In the history of our legal adminis tration, during that long period which occupies the interval between the accession of the First Alexander and the First James, the office of great Justiciar holds a conspicuous place; although, from the few authentic records of those times, it is difficult to speak with precision as to its exact province.
It has already been remarked that, in this early age, the king was the fountain of justice, and the supreme judge of his people. We are indebted to a contemporary historian for a fine picture of David the First in this great character. “ It was his custom,’’ says Ethelred, “to sit, on certain days, at the gate of his palace, and to listen in person to the complaints of the poorest suitors who chose to bring their cause before him. In this em ployment he spared no labour to satisfy those who appealed to him of the justice of his decision; encourag ing them to enter into argument, whilst he kindly replied, and endea voured to convince them of the justice 1 Robertson’s Index, p. 82.
of his reasons. Yet,” adds the histo rian, with great simplicity, “they often shewed an unwillingness to ac quiesce in his mode of argument."2
The progresses which were annually made by the king, for the purpose of redressing grievances, and inquiring into the conduct of his officers through out the realm, have been already noticed under the reign of Alexander the Third; but the general adminis tration of justice, at an early period, seems to have been intrusted to two great judges,—the one embracing within his jurisdiction the northern, and the other the southern part of the kingdom. Under these supreme officers, a variety of inferior judges appear to have enjoyed a delegated and subordinate jurisdiction, who bor rowed their designations from the district in which they officiated, and were denominated the Judge of Gowry, the Judge of Buchan, the Judge of Strathern, the Judge of Perth; but of whose exact authority and jurisdiction no authentic record remains.3 The existence both of the supreme and of the inferior judges can be traced in authentic muniments, preserved chiefly in the Cartularies, throughout the reigns of Alexander the First, David the First, and Mal colm the Fourth, during a period of nearly sixty years, from 1106 to 1165. William the Lion, who assumed the crown immediately after Malcolm IV., appears to have changed or new- modelled these offices, by the creation of two great judges named Justiciars ; the one the Justiciarius Laudoniæ, whose authority extended over the whole of the country south of the two Firths; and the other the Justi- ciarius Scotiæ, embracing within his jurisdiction the whole of Scotland beyond the Forth. The series of justiciars of Scotland from the reign of this prince, during a period of nearly a century, has been traced through documents of unquestionable
2 Fordun a Hearne, p. 940.
3 Chalmers’ Caledonia, p. 703, vol. i. note D Crawford’s Officers of State, p. 431. Robert son’s. Index to the Charters, Postscript, p. 53.
ANCIENT STATE OF SCOTLAND. 249
authenticity ;1 but that of the justi ciaries of Lothian cannot be so ac curately ascertained,2 while there is a third officer of the same high dignity, the Justiciarius ex parte boreali aquæ de Forth, whom we find incidentally mentioned at the same period; upon whose authority and jurisdiction the utmost research of our antiquaries has not succeeded in throwing any dis tinct light.3 There can be little doubt, I think, that the judicial authority of these officers was pre- eminent, and that it embraced a civil and criminal jurisdiction, which was next to that of the sovereign. At the period of the temporary subjugation of Scotland by Edward the First, this monarch, in his new-modelling of the machine of government, introduced a change by appointing two justices in Lothian, two others in the country lying between the , Forth and the Grampian range, called the Mounth, and, lastly, by separating the great northern district, extending from the Grampians to Caithness, into two divisions, over which he placed two supreme justiciars.4
Scotland, however, soon recovered her independence; and it seems pro bable that the ancient institution of a single Justiciar of Lothian was re stored, along with her other native dignities, by Robert Bruce. It is cer tain, at least, that the existence of a single judge under that title can be traced through authentic documents, down to the period of James the Fifth. The latter institution of Edward, re garding the four justiciaries of Scot land, who presided over the regions to the north of the Forth, as it was sanc tioned by ancient usage, was preserved by him who was the restorer of ancient right.5 It would thus appear that, 1 Dalyel’s Desultory Reflections on the Ancient State of Scotland, p. 43. See Cham berlains’ Accounts, Excerpta ex Rotulo Com- potorum Tempore Regis Alex III. vol. i. p. 8. 2 The Justiciarius Laudoniæ appears in the year 1263, under Alexander the Third. Chamberlains’ Accounts, Excerpta ex Rotulo Compot. Temp. Alexandri III. p. 15.
3 In the Excerpta ex Rotulo Compot. Temp. Custodum Regni, p. 58, there appears "William St Clair, Justiciarius Galwythie.” 4 Ryley’s Placita, p 504. 5 Cartulary of Lindores. p. 10. MS. Monast.
during the reign of Robert Bruce, the civil and criminal jurisdiction of the country was, with the exceptions to be immediately noticed, divided between five different Justiciars; and it is pro bable, although it cannot be stated with historical certainty, that these supreme judges acted by deputies, who officiated in their absence, or pre sided in minor cases; and that they continued to be the supreme judges in Scotland down to the time of James the Fifth.
The office of great justice or justiciar was undoubtedly of Norman origin;6 and, reasoning from the analogy be- tween the office in England and in Scotland, it may be conjectured that the principal duties which it embraced, at this period, regarded those suits which affected the revenue or emolu ment of the king.
The office of Chancellor, next in dignity to that of the justiciar, is cer tainly as ancient as the reign of Alex ander the First; but the precise nature of the authority committed to this great officer at this remote era of our history cannot be easily ascertained; and where authentic records do not demonstrate its limits, speculation is idle and un satisfactory. It existed at a very early period in France, under the reign of Charlemagne; it is found in England in the Saxon times; but it was not till a much later period in Scotland, when the traces of a Celtic government be came faint and almost imperceptible, and the Gothic race of the Saxons and the Scoto-Normans drove back the Celtic people into the remoter regions of the country, that Herbert the chan cellor appears amongst the officers of the crown.7 From this period, down to the coronation of Bruce, the indus try of Chalmers has given a series of these great officers; and without enter ing into any antiquarian or etymologi cal discussion, we have an authentic muniment in the contract of marriage between the son of Edward the First
Scotiæ, p. 26, quoted in Caledonia, p. 707. Robertson’s Index, pp. 67, 74.
6 Spelman’s Glossarium, p. 399. Chamber lains’ Accounts, Excerpta ex Rotul. Compot Tempore Alex. III. pp. 29, 42.
7 Crawford’s Officers of State, p. 4.
250 HISTORY OF SCOTLAND.
and the Maiden of Norway, by which it appears that the custody of the king’s seal, the examination of all writs which received the royal signa ture, and the cancelling or refusing the royal sanction to Such deeds as ap peared irregular, were then the chief duties of this officer. In addition to this, the Chancellor was the most inti mate councillor of the king : he was always lodged near the royal person; he attended the sovereign wherever he went, both in peace and war; and was generally witness to his charters, letters, and proclamations.1 This great office continued, as is well known, down to the period of the union of the king doms; an existence, if we compute from its appearance under Alexander the First, of nearly six centuries.
It has been already observed that the supremacy of the civil and criminal jurisdiction of the great justiciars was limited by some exceptions; and the first of these is to be found in the existence of the ancient office of sheriff, the earliest appearance of which is to be found in the beginning of the twelfth century, under the reign of Alexander the First.2 This, however, is the very dawn of the institution; and the division of Scotland into regu lar and certain sheriffdoms must be referred to a much later era. It seems to be a sound opinion of the author of Caledonia, that “ sheriffdoms were gradually laid out, as the Scoto-Saxon people gained upon the Gaelic inhabi tants, and as the modern law, intro duced by the Saxons, prevailed over the ruder institutions of our Celtic forefathers.” 3 Previous to the con clusion of that division of our national history, which this author has termed the Scoto-Saxon period, extending from 1097 to 1306, the whole of Scotland, with the exception of Argyle, Gal loway, and the western coast, had been progressively divided into sheriff- doms.
Many of these offices, the appoint-
1 Rymer’s Fœdera, vol. ii. p. 483. Balfour’s Practicks, p. 15.
2 Dalrymple’s Collections, p. 405. Charta Fundacionis Abbacie apud Schelechvrch. nunc Selkrig.
3 Caledonia, p. 715.
ment to which was originally in the crown, had, at this early period, be come hereditary in certain families; and, in imitation of the regal state, every greater baron appears to have appointed his sheriff,4 in the same manner as we find many of these petty feudal and ecclesiastical princes sur rounded by their chamberlains, chan cellors, mareschals, and seneschals. It is certain, from the evidence of authen tic records, that the term schire was anciently given to districts of much smaller extent than the sheriffships of the present day. In the foundation charter of William the Lion to the Abbey of Aberbrothoc, we find the shires of Aberbrothoc, of Denechyn, of Kingoldrum, and of Athyn; and in the Cartulary of the Abbey of Dun- fermline, Dumfermelineschire, Dolor- shire, Newburnshire, Musselburgh- shire, with the shires of Gelland and Gaitmilk. Over these minute divisions we do not discover any presiding judge enjoying the title of sheriff. Previous, however, to the memorable year 1296, these smaller divisions had disappeared; and the different enactments of Edward the First, preserved in the volumes of Prynne and Rymer, present us with an exact enumeration of thirty-four sheriffdoms, over most of which a sepa rate sheriff presided.5 The jurisdiction of this judge, both in civil and in criminal cases, appears to have been extensive, and within his own district nearly as unlimited as that of the great justiciars throughout the king dom.
Under that savage state of feudal liberty, which lasted for many cen turies in Scotland, all the higher nobles, both civil and ecclesiastical, enjoyed the power of holding their own court, and deciding causes where the parties were their vassals. The origin of this is curious. At a very early period, probably about the mid dle of the twelfth century, in the reign of Malcolm the Fourth, the land of Scotland began to be partially divided
4 Cart, of Glasgow, 103-5, quoted in Cale donia, p. 716. Cart. Newbottle, p. 89.
5 Robertson’s Index to the Charters. Notes to the Introduction, p. xl.
ANCIENT STATE OF SCOTLAND. 251
into royalty and regality. Those parts which were distinguished by the term royalty were subjected to the juris diction of the king and his judges; the districts, on the other hand, which were comprehended under the name of regalities acknowledged the juris diction of those ecclesiastics or nobles who had received a grant of lands from the crown, with the rights of regality annexed to it.
The clergy appear to have been the first who, in the charters of lands which they often procured from the crown, prevailed upon the sovereign to convey to them the right of hold ing their own courts, and to grant them an immunity from the jurisdic tion of all superior judges. As early as the reign of Alexander the First, a royal charter conferred upon the monks of the Abbey of Scone the right of holding their own court in the fullest manner, and of giving judgment either by combat, by iron, or by water; together with all privileges pertaining to their court; including the right in all persons resident within their terri tory of refusing to answer except in their own proper court.1 This right of exclusive jurisdiction was confirmed by four successive monarchs. The same grants were enjoyed, as we know from authentic documents, by the Bishop of St Andrews, and the Abbots of Holy- rood, Dunfermline, Kelso, and Aber- brothoc, and, we may presume, on strong grounds, by every religious house in the kingdom. These powers of jurisdiction excluded the authority or interference of every other judge, of which we have decided proof in the Cartulary of Aberbrothoc.2 It appears that in the year 1299 the abbot of that house repledged from the court of the king’s justiciar, which was held at Aberdeen, one of his own men, upon pleading the privilege of the regality of Aberbrothoc; and in imita tion of the clergy, the higher barons soon procured from the royal fear or munificence the same judicial rights and exemptions, which they in their turn conveyed to their vassals.
1 Cartulary of Scone, p. 16.
2 Cartulary of Aberbrothoc, p. 19.
A superior baron in those ancient times was thus in every respect a king in miniature. Surrounded by the officers of his little feudal court, he possessed the privilege of dispensing justice, or what he chose to term jus tice, amongst his numerous vassals; he was the supreme criminal judge within his far-extended territories, and enjoyed the power of life and death, of imprisonment within his own dungeon, and of reclaiming from the court, even of the high justiciar, any subject or vassal who lived upon his lands. Can we wonder that, in the course of years, men, possessed of such high and independent privileges, became too powerful for the crown itself ? It was in consequence of this that Bruce, in the disposition of many immense estates, which were forfeited for their determined opposition to his claim to the crown, bestowed them in smaller divisions upon new proprietors, who rose upon the ruins of these ancient houses.3 The frequent grants of these estates by Bruce diminished the strength of the ancient aristocracy ; but it is evident, at the same time, that, as the new charters frequently conveyed along with the lands the rights of holding their own court, the power which had controlled the crown during the struggle of this great prince for his kingdom was rather divided than diminished; so that the new barons, under the weak reign and long captivity of his successor, became as independent and tyrannical as before. When we come to consider the origin of the royal burghs, and the privileges conferred upon them by the sovereign, we shall discover a different and infe rior judicial power, which extended to the determination of all causes aris ing within the limits of their jurisdic tion.
In this brief sketch of our civil history it is impossible to enter into details upon the great subject of the law of the kingdom, as it existed dur ing this remote period; but it may be generally remarked, that in the courts of the great justiciaries, as well as in
3 Robertson’s Index, Charters of Robert the First.
252 HISTORY OF SCOTLAND.
those held by inferior officers of jus tice throughout the realm, most causes of importance appear to have been determined by the opinion of an assize, or an inquest; a mode of legal deci sion which we can discern as early as the reign of William the Lion. In the year 1184, we find an inquest appointed to decide a dispute regarding the pas turage of the king’s forest, which had arisen between the monks of Melrose and the men of Wedale. The inquest, which consisted of twelve “good men,” fideles homines, and Richard Moreville the constable, were sworn on the relics of the Church, and sat in presence of the king, his brother David, earl of Huntingdon, and the prelates and nobles of the court. It is probable, although it cannot be affirmed with certainty, that, even at this early age, the opinion of the majority of this jury of thirteen decided the case, and that unanimity was not required.1
In an inferior dispute, which seems to have arisen between the monastery of Soltre and the inhabitants of the manor of Crailing, in the year 1271, regarding the right of the monks to a thrave of corn every harvest out of the manor, the cause was determined by a jury summoned from the three contiguous manors of Eckford, Upper Crailing, and of Hetun, who, under the title of Antiquiores patriœ, decided it in favour of the monks of Soltre.2
The office of constable, which ap pears in Scotland as early as the reign of Alexander the First, was exclu sively military, and undoubtedly of Norman origin. This great officer was the leader of the military power of the kingdom. In England, we find him in 1163 denominated indiscriminately constabularius and princeps militiœ;3 and there is every reason to believe that the province of the constable, as head of the army, was the same in both countries. What was the exact distinction in our own country be tween the office of the mareschal and the constable it is not easy to deter-
1 Chron. Melrose, p. 176. Cartul. of Mel- rose, p. 64. Chalmers’ Caledonia, pp. 752, 753.
2 Cartul. of Soltre, No. 17.
3 Math. Paris, p. 1028, 1. 63, 1. 11. Twys- den, x. scrip, vol. ii. Glossary.
mine. That they were different ap pears certain from the fact that we find a mareschal and a constable under the same monarch, and held by dif ferent persons; but we have no au thentic record which describes the nature of the duties which devolved upon the mareschal, although there is no doubt that both offices, at an early period, became hereditary in cer tain great families.4 The offices of the seneschal, or high steward, and of the chamberlain, belonged to the per sonal estate of the sovereign; and those who held them enjoyed the supreme authority in the management of the kings household, and in the regulation of the royal revenue. Both are as ancient as the reign of David the first; and the rolls of the royal expenditure, and receipts of the vari ous items and articles of revenue, which were kept by the chamberlain, in his capacity of treasurer, still for tunately remain to us,—a most curi ous and instructive monument of the state of the times. The offices of inferior interest, though of equal anti quity—the panetarius, or royal butler; the hostiarius. or keeper of the king’s door; the pincerna, or cupbearer; to which we may add the keepers of the king’s hounds, the royal falconers, the keeper of the wardrobe, the clerk of the kitchen, and various other in ferior dignitaries—sufficiently explain themselves, and indicate a consider able degree of personal state and splen dour.
To whatever spot the king moved his court, he was commonly attended by the great officers of the crown, who were generally the richest and most powerful nobles of the realm. It will be recollected also that such high barons were, in their turn, encircled by their own seneschals, chamberlains, constables, and personal attendants, and brought in their train an assem blage of knights, squires, and inferior barons, who regarded their feudal lord as a master to whom they owed a more paramount allegiance than even to their king. To these officers, knights, and vassals, who, with their 4 Chalmers’ Caledonia, pp. 709, 710.
ANCIENT STATE OF SCOTLAND. 253
own soldiers and martial dependants, constituted what was termed the “ fol lowing” of every great baron, his voice was, in the most strict and literal meaning, a supreme law, his service their only road to distinction. This has been sometimes called the prin ciple of honour; but as their neglect was sure to be visited with punish ment, if not with utter ruin and de gradation, it was, in truth, a lower principle—of selfishness and necessity, which limited their duties to the single business of supporting their liege lord against those whom he chose to esteem his enemies. None, indeed, can atten tively read the history of those dark times without being aware that the immense body of the feudal vassals and military retainers throughout Scotland regarded the desertion of their king, or their leaguing themselves against the liberty of their country, as a crime of infinitely lighter dye than a single act of disobedience to the commands of their liege lord; and, considered in this light, we must view the feudal system, notwithstanding all the noble and romantic associations with which it has invested itself, as having been undoubtedly, in our own country, a principal obstruction to the progress of liberty and improvement. We shall conclude our remarks upon the distinction of ranks in Scotland by some observations upon the state of the lower classes of the people during this important period of our history.
These classes seem to have been divided into two distinct orders. They were, first, the free farmers, or tenants of the crown, of the church, and of the greater or lesser barons, who held their lands under lease for a certain rent, were possessed of considerable wealth, and enjoyed the full power of settlement in any part of the country which they chose to select, or under any landlord whom they preferred. This class is generally known in the books of the Chamberlains’ Accounts by the title of “ liberi firmarii;“ and a convincing proof of their personal freedom at an early period is to be found in the fact, which we learn from
the same curious and instructive re cords, that the farmers of the king possessed the full power of removing from the property of the crown to a more eligible situation. During the minority of the Maiden of Norway a sum of money was advanced to the farmers of the king, in order to pre vail upon them to remain on the crown lands of Liberton and Laurence- town, which they were about to de sert on account of a mortality amongst their cattle.1 It was, I conjecture, this free body of feudal tenants who were liable to be called out on military ser vice, and formed the great proportion of the Scottish infantry, or spearmen, in the composition of the army.
Very different from the condition of this first order was the second class of cottars, bondsmen, or villeyns. Their condition forms a marked and extra ordinary feature in the history of the times. They were slaves who were sold with the land ; and their master and purchaser possessed over their persons the same right of property which he exercised over the cattle upon his estate. They could not remove with out his permission; wherever they settled, his right of property attached to them ; and, whenever he pleased, he could reclaim them, with their whole chattels and effects, as effectu ally as he could seize on any animal which had strayed from his domain. Of this state of slavery innumerable examples are to be found in the Cartu laries, establishing, beyond contro versy, that a considerable portion of the labouring classes of the community was in a state of absolute servitude.
We find, for example, in the Cartu lary of Dunfermline, that three bonds men, Allan, the son of Constantine, with his two sons, had in 1340 trans ferred themselves from the lands of the abbot of this religious house to some other habitation, under pretence that they were the villeyns of Duncan,
1 “Item firmariis regis terre de Liberton et Laurancyston quorum animalia anno pre- dicto moriebantur ad valorem x librarum iii. c. de gracia ad presens, et ne exeant terrain regis in paupertate, et ne terra regis jaceat inculta.”— Chamberlains’ Accounts, Temp, Custodum Regni, p. 65,
254 HISTORY OF SCOTLAND.
earl of Fife. On being ordered to come back to their own master they had refused, upon which an inquest was summoned, for the purpose of de termining to whom Allan, the son of Constantine, and his sons, belonged; when it was found that they were the property of the abbot.1
So early as the year 1178, William the Lion made a donation of Gillan- drean M’Suthen and his children to the monks of Dunfermline for ever.2 We find that David the First, in 1144, granted to the Abbot of Kelso the church of Lesmahago, along with the lands of the same name, and their men ; and still later, in 1222, the Prior and the Convent of St Andrews, by an express charter, which is still pre served, permit a bondsman and his children to change his master, and to carry his property along with him.3 In the year 1258, Malise, earl of Strathern, gave to the monks of Inch- affray, for the safety of his own soul and the souls of his ancestors and suc cessors, John, surnamed Starnes, the son of Thomas, and grandson of Thor, with his whole property, and the children which he had begotten, or might beget;4 and this for ever.
When a grant of land was made by the king, or by any of his nobility, either for military service or to be held blench for the payment of a nominal feu-duty, it carried along with it to the vassal the power of remov ing the tenants, with their cattle, pro vided they were not native bondsmen. The right to these, and the power of reclaiming them, remained in the per son of the lord of the soil, or feudal superior. Thus, in a valuable col lection of ancient papers, we find a charter by which one of the Roberts
1 Cartulary of Dunfermline, p. 654. M’Far- lane’s Transcript. The folio in the original 98.
2 Ibid, folio 13.
3 MS. Monasticon Scotiæ, p. 33 ; quoted in Chalmers’ Caledonia, vol. i. p. 720, and MS. Original Charters in Advocates’ Library, No. 27. See Dalzel’s Fragments of Scottish His tory, p. 26. See also Cartulary of Kelso, p. 9, as to the bondage of the labourers in the time of Alexander the First, and the Cartulary of Dunfermline, M’Farlane’s Transcript, pp. 592, 593.
4 Cartulary of Inchaffray, p. 36 ; quoted in Annals of Scotland, vol. i. p. 304.
confers upon Maria Comyn certain lands, “ cum licentia abducendi tenen- tes, cum bovis suis, a terris, si non sint nativi et ligii homines.”5
In consequence of this certain and acknowledged right, in the feudal landlord or baron, to the property of his bondsmen, with their children and children’s children for ever, it became a matter of great consequence to ascer tain with exactness, and to preserve, the genealogy of this unfortunate class of men, in order that, upon any deser tion or removal, the power of reclaim ing them might be exerted with cer tainty and success. Accordingly, the Cartularies present us with frequent examples of genealogies of this sort.6 The names of these bondsmen are essentially different from the free- born vassals and tenants, who com monly took their names from their lands. In an ancient deed, entitled a perambulation to determine the bound aries between the lands of the Abbot of Dunfermline and those of David Doorward, which took place in the year 1231, under Alexander the Se cond, the names of the landholders and minor barons, and of the bonds men who attended upon this occasion, are easily distinguishable from each other. We meet with Constantine de Lochor, and Philip de Loch, and many others, after which occur such uncouth appellatives as the following :—Gille- costentin, Bredinlamb, Gilleserfmac Rolf, Gillecolmmacmelg, John Trodi, Riscoloc, Beth MacLood, Gillepatric Macmanethin; and it may be noticed as a singular circumstance, which proves how different were the habits and customs of this degraded class from the freemen of the same coun try, that the father does not seem to have transmitted his name or surname to his children, or, at least, that this did not necessarily happen. In the genea logy of John Scoloc, which is preserved in the Cartulary of Dunfermline, the son of Patrick Stursarauch was Allan Gilgrewer, and the son of Allan Gil-
5 Haddington’s Collections, quoted by Dal- zel, Fragments, p. 27.
6 Cartul. of Dunferm. pp. 145, 146. See Illustrations, letters PP
ANCIENT STATE OF SCOTLAND. 255
grewer was John Scoloc.1 It seems certain that no change in the situation of these bondsmen, by which they rose in eminence or opulence, could have the effect of removing them from their original degraded condi tion. They might enter the Church and become clerks, or continue lay men, and pursue a successful career as artisans or merchants, but they were still as much slaves as before; and, till the time they purchased or pro cured their liberty by the grant of their master, their persons, profits, and whole estate belonged exclusively to him. This is strikingly exemplified in a convention preserved in the Car tulary of Moray, which took place be tween Andrew, the bishop of that see, and Walter Comyn. It was agreed, in this deed, that the Bishop of Moray and his successors in the see should have all the clerks, and two laymen, whose names were Gillemalavock Mac- nakengello, and Sythach Macmallon; these clerical and lay bondsmen, the deed proceeds to say, are to belong to the bishop and his successors, with their cattle, possessions, and children for ever; while the Lord Walter Comyn is to have all the remaining lay bonds men of the lands of Logykenny and Inverdrummyn.2 It may perhaps be doubted whether the clerici nativi here spoken of do actually mean bondsmen who have become clerks, or may perhaps merely signify bondsmen belonging to Church lands. Yet the words of the deed, and the marked opposition in which we find the words clerici et laici nativi, seem to favour the meaning here attached to it.
In England, under the government of the conqueror, it was the mark of freemen that they could travel where they chose; and exactlv the same criterion was established in our own country. In Doomsday Book, a Nor man baron, Hugo de Port, is men tioned as the master of two tenants, who, in the days of Edward the Con fessor, might go where they pleased
1 Cartulary of Dunfermline, p. 145. M’Far- lane’s Transcript. See Illustrations, letters QQ.
2 Cartulary of Moray, pp. 53, 54. See Illus trations, letters PP. Caledonia., p. 721.
without leave. In like manner Robert Bruce, in the year 1320, grants a charter to Ade, the son of Aldan, in which he declares that it had been found, by an inquest held before his chamberlain and justiciary, that this person was not the king’s slave or bondsman, but was at liberty to re move himself and his children, with their goods and chattels, to any part of the kingdom which he might select, at his own will and pleasure, without molestation by any one: on which account the king declares the said Ade, with his sons, Beth, John, Ranald, and Duncan, to be his freemen, and as such not subject to any yoke or burden of servitude for ever.3 As the master could reclaim his fugitive bonds man from any place to which he had transferred himself, so it was in his power alone to make his slave a free man whenever he pleased. Thus, by a charter, dated at Perth on the 28th February 1369, David the Second in timates to all concerned that he has made William, the son of John, the bearer of these letters, who was his slave and bondsman, his freeman, and had emancipated all his posterity; so that he had full right, without trouble or molestation, to travel with his pro perty and his children to whatever place he chose, and there take up his abode.4 Many examples of the manu- mission of such unfortunate persons by their baronial masters, and still more frequent instances of the gift of freedom, conferred by the rich eccle siastics and religious houses, are to be found in records of undoubted authen ticity.5 But the progress of freedom amongst the labourers of the soil was exceedingly slow and gradual; the names which are indicative of this degraded condition, such as nativi,
3 Henshall’s Specimens, p. 74. “ Præter hoc habet Hugo duos homines tenentes dimidium solinum, qui poterant tempore Regis Edwardi ire quolibet sine licentia.” Doomsday Book, 601. Robertson’s Index to the Charters, Postscript, p. 54, and Index, p. 16, No. 26. In Robertson’s Index, P.S. p. 54, will be found another curious deed, illustrative of the condition of the “ nativi homines,” which is taken from an original in the Advocates’ Library.
4 Robertson’s Index, pp. 89, 47, 66.
5 See Illustrations, letters PP.
servi, villani, homines fugitivi, bondi, mancipii, occur throughout the whole period of the thirteenth and fourteenth centuries; nor is it prior to the fifteenth that we can discern the ex tinction of slavery, and the complete establishment of individual freedom. In Scotland, bondage appears to have been sooner abolished than in the sister country. It continued in force in England as late as the year 1536 ; and its last traces are still discoverable in 1574, when a commission was issued by Elizabeth for the complete manu mission of the last relics of bondsmen and bondswomen in her dominions.1
But first, if you want to come back to Scotland's History and Legends again, just add www.historyandlegends.com to your bookmarks or favorites now! Then you'll find it easy!
Also, please consider sharing our Scottish History and Legends website with your online friends.
Our Privacy Policy can be found at www.cholesterolcholestrol.com/privacypolicy.htm
Copyright © 2000-present Donald Urquhart. All Rights Reserved. Designated trademarks and brands are the property of their respective owners. Use of this Web site constitutes acceptance of our legal disclaimer.
|