Chapter IX: The State (1)

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.