Chapter IX: The State (2)

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

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

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

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

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

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

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

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

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

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

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

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