Chapter IX: The State (3)

Every fortnight a _Moot_ was held within the burgh, at which every burgher within the walls was bound to be present--in winter, before _Undern_, or nine o’clock in the morning; and at _Midmorn_ during the summer--a greater Burgh-moot being assembled at Michaelmas, Christmas, and Easter, at which the presence of every upland burgher was also required, their absence being punished by the highest fine levied--the full forfeiture--as the burgher who dwelt without the walls was excused attendance upon the lesser moots. The general Burgh-moot was evidently a relic of the time before the separation of the Castle from the Burgh, when the upland thegns were bound, under heavy penalty, to meet three times a-year to fulfil the duties of their tenure; the lesser moots, and the general regulations of the burgh having been probably left very much to the _Twyhyndmen_ who dwelt within the walls. A watch was established for the security of the town; and at the stroke of a staff upon the door, an inmate was bound to come forth from every burgher’s house, and, armed with two weapons, to join in keeping watch and ward over the sleeping burgh from _couvre-feu_ to _cockcrow_, the houses of widows alone being exempted from this duty. The trades were under the general superintendence of the _Probi homines_, or leading men of the burgh, and some of their regulations are remarkable. The baker whose bread was not made and placed openly, in the window, for sale, was fined “full forfeiture,” and his bread confiscated for the use of the poor--a somewhat questionable method of disposing of it, if the law was to punish its adulteration. The provision dealer was obliged to sell all that was in his house beyond the value of fourpence, if required, on the plea that it was public property--an enactment levelled, probably, against hoarding provisions in a time of scarcity for private use, or for profit; for when famines were of frequent occurrence, the dealer in the necessaries of life might be tempted to speculate in his neighbours need. The dignity of the magistracy was kept up by prohibiting any Provost, Bailie, or Bedell, from making bread, or brewing ale, for sale; and of the burgherhood, by excluding from its privileges every dyer, butcher, or tanner, who worked at his calling with his own hands. If he aspired to become a member of the guild, the business was to be deputed to other hands, whom he was only to superintend as “a master.” Cloth appears to have been the staple product of the time, and wool was as jealously guarded as in England, none but a burgher being allowed to buy it, for the purposes of dying, or cloth-making. An occasional difficulty with “the hands,” as at present, appears to have arisen, though from different causes; but the age was less scrupulous, and the _Kemester_, or wool-comber, who tried to escape to the Upland, might at once be committed to the town-jail, on the plea that there was work to be done. The runaway was not invariably a fugitive from the rural districts. It was a hard age for the dependant classes wherever they were; and the “bondman in-burgh” may at times have cast many a wistful glance towards the blue hills in the distance. Monopoly and exclusive dealing were only in accordance with the spirit and policy of the age; and must inevitably have arisen in every quarter, when it was enacted that every sale and purchase should be made “in port,” and in the presence of witnesses chosen “in burgh;” which must, of course, have concentrated all the traffic of the district connected with the burgh in the hands of the resident population. The subdivision of the Hundred was unknown in Scotland, and accordingly such privileges occasionally extended over the whole County or Sheriffdom; as in Edinburgh, and as in the case of Perth; where, perhaps in consequence of this wide monopoly, the unprivileged trader from other quarters was allowed to retail cloth during the summer, from Ascension Day to the 1st of August; though ordinarily the privileges of the burgh were only suspended during Fair-time. The Fair was in some respects a sort of regulated Saturnalia; none but the outlaw, the traitor, and the malefactor whose crime was of too deep a dye to admit of sanctuary, could be taken during its continuance; all else, whether debtors, runaways, or minor offenders of any description, being free from arrest, except they broke “the peace of the Fair,” when they were tried and punished, not by the ordinary magistrates of the burgh, but in a temporary Court, known universally as the Court of _Pies-poudrees_, or _Dusty-feet_. The Dustyfoot was the travelling pedlar, or merchant as he was called in Scotland, the original of the modern Haberdasher--or “man with a _Havresac_;” and as, in Fair-time, the _Stallenger_, or trader who sold from a temporary stall, or booth, could claim “_lot and cavyl_”--share and share--with the more dignified Burgher, with whom for the time he was upon an equality, it would have been contrary to the true northern principle of justice if he had been liable to be tried and punished in a strange Court, and by any other verdict than that of “his Peers,” the Community, for the time being, of the Fair. The Dustyfoot probably came by land, and only entered the burgh for traffic during Fair-time; but the sea, or the river, bore the vessel of the foreign trader to the burgh at all times, though, except when it was otherwise provided, as at Perth during summer time, the burghers alone could dispose of the traders’ wares, only salt or herrings being sold on board ship. All disputes between a foreign trader and a burgher were to be settled before the third flood of the tide.[329]

No Burgh was complete without a Hospital--no royal Burgh without a Castle. Leprosy was the disease of the age--a never-ceasing plague, entailed by unwholesome food, a want of vegetables, and the salted meat and fish, which formed invariably the winter diet, not a little aided by uncleanliness. Every one struck with leprosy within the walls was to be removed at once to the _Spittal_; and if he had nothing of his own, a collection of twenty shillings--a considerable sum for the time--was to be raised for his support. If the pauper was not cured by the time the money was spent, he was probably dismissed as incurable, and classed amongst the confirmed lepers, who were forbidden to enter any town, but were allowed to sit at the gate and beg. By the Law of Scotland it was allowable to give “Herbary” to a stranger for one night without question, but if he stayed beyond that period the host was answerable for the guest, and bound to produce him before the proper officer. Even this relic of the unstinted hospitality of early times was dispensed with in the case of this dreaded disease; and he who sheltered a leper within the walls was liable to the heaviest fine inflicted, “the full forfeiture.” Similar arrangements were once in force in every burgh; as in London, for instance, where the _Spittal Fields_ were the open meadows around the Hospital for Lepers, who were allowed to ask for alms at the _Cripples Gate_, a spot which the charitable may have sought out, but which a larger class must, most assuredly, have shunned.[330]

The royal burgh was under the rule of its chosen magistrates, but the royal castle was under the charge of the Constable appointed by the king, this office often becoming hereditary in the family on which it was originally conferred. Forty days were fixed as the period of service on castle-guard, which, like everything else towards the decline of the Feudal system, was gradually compounded for by a money payment to the Constable; who, in other words, performed the service with his own retainers, and exacted the usual fine, or its equivalent, for the non-attendance of the party bound by the tenure of his land to undertake such service. This custom, however, had scarcely grown into general use in the reign of David, for it was one of the provisions of Magna Charta that no Constable should summon a knight to perform castle-guard whilst he was serving in the king’s army, nor exact the fine for non-attendance when he was ready to perform the service in person, or by proper substitute. Freedom from arrest was one of the privileges attached to castle-guard, as well as to service in the king’s “host,” lasting, like the similar privilege of Parliament, which still exists, for the whole period of service; the same exemption being extended to all who were in attendance on their duties in the county, or who were sent to the burgh to buy provisions for their lord. The Bailie of the castle was empowered to borrow of a burgher goods to the amount of forty pence, and for a period not exceeding forty days; but it was at the option of the lender to increase the amount of the loan beyond that sum, or to defer the time of payment beyond the forty days. At Easter, Whitsuntide, and Christmas, a “castellan” was entitled to demand from a burgher pigs, geese, or chickens, “for the king’s need;” but if the burgher could close his door no entry might be forced--his house was his castle, according to the well-known English saying--but the castellan might catch and kill any of the burgher’s stock that he found beyond bounds, paying the price at which the neighbourhood assessed the articles. The probable object of both these regulations was to ensure the garrison a fair supply of necessaries without entailing too heavy a burden upon the townsmen. In all disputes, if a castellan complained of wrong, he was to claim his right in the Court of the Burgh; and if the burgher considered himself aggrieved he was to carry his plaint to the Castle gate. On these occasions there appears to have been a mixed jury, as in the trial of an alien at the present day, “the peers” of each party furnishing a portion; such at least seems to have been the case in the following trial in the castle of Dumfries for the homicide of a burgher, the party charged with the offence being an Upland-man, probably on castle-guard, as he was tried in the place appointed for appeals against a castellan. Adam, the miller of Dumfries, meeting Richard, son of Robert Elias’s son, in the churchyard of St. Fabian and St. Sebastian in the castle, abused him as a thief, “because he was a Galloway man”--a species of reasoning still sometimes current in cases of unpopular nationality. On the following Thursday, when Adam was standing in the doorway of a house, a woman called out to him that Richard was coming up the street, warning him to be on his guard. “My knife is as sharp as his,” replied the miller; attacking Richard at once, who drew his sword and struck Adam with the flat side of the weapon. The miller closed his arm upon the sword, and in disengaging it sharply, Richard inflicted a mortal wound upon his assailant, exclaiming, on seeing the catastrophe, “you caused your own death.” All the Burghers testified on oath that Richard was a man of good repute, but that Adam was a rogue; and the “Barons” concurring, an unanimous verdict of acquittal was pronounced. Barons and Burghers both seem to have been concerned in this trial, which affords a very fair specimen of the lawless manners of the age, and of the advantages of the “jugement del pais” over the earlier system expressed in the legal axiom “buy the spear or bear it”--pay the _were_ or stand the feud.[331]

Such were the leading regulations of David’s community of Burghs. They correspond closely with the ancient customs of Newcastle, to which indeed allusion is made in the Burghal Code, the English community having been consulted apparently upon the law of inheritance;[332] and there can be little doubt that the Anglo-Norman Burgh, itself in most respects a confirmation of the Anglo-Saxon, except where the custom of Borough-English existed, was the model for the burghs introduced by David throughout the land. In imitation of their sovereign, the greater magnates, lay and ecclesiastical, occasionally enfranchised their towns, or founded burghs, filling them with a class of freemen on a footing with the royal burghers, though the latter were reckoned higher in the social scale, and were privileged to decline the challenge of a member of a lesser burgh; just as the _Scepenbar_ man, who could count his “four ancestors and his _hant-gemahl_,” was entitled to refuse the challenge of his equal in position who was not his equal in blood.[333] The royal burghs generally retained their ascendancy, though not invariably; for in spite of the jealous rivalry of Dunbarton and Rutherglen, upon the margin of her own fair river, the great episcopal city of Glasgow has long been acknowledged the undisputed mistress of the western waters. The original burghers, as a class, were, with few exceptions, of foreign origin, emigrants from southern Britain, and not unfrequently Flemings; as in Berwick, where the Flemings long dwelt apart as a separate guild.[334] It was long before the native element entered largely amongst the privileged civic population, clinging to Scottish customs and to the rural districts, especially in the distant North, where the towns must have long stood out like commercial garrisons in a disaffected, and not unfrequently a hostile, country. Not the least amongst the many changes introduced by the burgher class beyond the Forth was the diffusion of the language hitherto only spoken to the southward of that river, a Teutonic dialect spreading over the country, as in Ireland, with the gradual preponderance of the intramural population, a similar result being traceable in France, though under exactly opposite circumstances; for the language spoken in towns, where men congregate together in large numbers, will always prevail over the dialects of a rural and scattered population. It would be difficult to overestimate the utility of the burgher class to the Scotland of that period, or its influence in promoting the amelioration and prosperity of the country. The increase it brought to the revenue, though perhaps one of its greatest advantages in the opinion of the age, was comparatively of secondary importance. The invariable tendency of such a class has always been to favour peace, order, and civilization, as long as it has occupied its natural position; for it is only when a burgherhood has become over-powerful that it has afforded as frequent examples as a nobility, or an _autocracy_, of the inability of human nature in any condition to withstand the evil influences of unlimited power. Such was not the case in Britain, where the burgherhood has never occupied the same position as the great communities of Flanders, of Germany, or of Northern Italy. It would be of little use to speculate upon what might have happened had England remained under the rule of a feeble, or an “unkindly” king--of Edgar Atheling or Harold--with her great provincial _Jarls_, like the Dukes of Franee, distracting the country with their contentions for power. Great burgher communities might have arisen, especially in the Danelage, where the Socmen, representatives of the _Land-agende_ men, or Odal-Bonders, of an earlier period, were exactly the class to form a martial burgherhood; but such a future was not to be. In neither England nor Scotland has the civic class ever been the sole depositary of the ancient northern principles of self-government, as on the Continent; where the _Echevin_, the representative of the ancient _Scepenbar_ Freeholder, who could alone pass judgment upon his equal, has for centuries been confined to the towns. It may be read in the Capitularies of the Carlovingian era, how it was offered to the ancestry of the French nobility to declare the law they would live by, and their choice was destined to be unfortunate; for wherever the hand of Imperial Rome is traceable, it has sown the seeds of future despotism. In every part of Britain, however, there was but one law for Baron and for Burgher, framed upon the principles of the free north; and much as we may be indebted to the civic portion of our “Third Estate,” the institutions of which we are so justly proud, were not preserved by their intervention. It is well that in the days of old there were other parties engaged in the struggle; for where is the example that history can furnish of a contest for liberty successfully carried out by an unassisted Burgherhood?[335]

The Court was not forgotten in the reforming zeal of David, and following up the innovations, which seem to have been first introduced by Alexander, he assimilated the Scottish Court to the Anglo-Norman model, with which both brothers must have been familiar. It must not be supposed, however, that before this period a Court was unknown in Scotland; but it was probably of a primitive character, even after the innovations of Queen Margaret. Howel Dha is supposed to have laid down certain regulations, about the middle of the tenth century, for his Court in Wales; and without putting faith in the apocryphal ordinances ascribed to Malcolm the Second, it may be safely assumed that Scotland, in the eleventh century, was at least as far advanced in this respect as Wales in the tenth. Fordun, who gives to Crinan the title of Abthane of Dull and Seneschal of the Isles, describes the Abthane as the Head of all the royal Thanes; and though the title is evidently an error, the office may have been a reality, for it would have been simply identical with that of the Welsh Distyn, the Lord High Steward or Seneschal. In every Scottish Earldom the Seneschal was next in authority to the Earl--his Deputy or Maor, who appeared in his place at the greater Shire Moots appointed by William; and Crinan may have filled such an office under the king. The feature most worthy of remark, however, in the constitution of the Welsh Court, was the rank and position of the royal attendants, the highest alone--the Distyn--being on a footing with the Chief, and the royal officials of the Commot; while only the leading Court officials were on a level with the Breyr, or noble proprietor; and the other members of the household ranked only just above the Boneddig, or Lesser Freeman. Dignity of the highest description, therefore, was not attached at this period to service about the royal person; and the classes from which the Welsh king chose his courtiers and attendants were the lesser freemen, and the dependants known as _Mab aillts_, rather than the noble class which furnished the Maors and Cynghellwrs.[336]

It must not be imagined that this was a Welsh or a Celtic peculiarity, for there was a time when the _Hird_, or Court, of the Frank kings was of a yet more primitive description, the attendants in the Hird being all on a servile footing, known as _Scalcs_, and chosen most probably from the subordinate race. The Household appears to have been under the superintendence of the _Sene-scalc_--perhaps the Senior Slave--the Stable under the _March-scalc_, officials who seem to be traceable amongst the Anglo-Saxons in the _Wealh-gerefa_ and the royal _Horswealh_, the latter raised by his office to the footing of a _Ceorl_.[337] Totally unconnected with the servile classes, and in the absence of the sovereign exercising royal authority over the whole kingdom, as well as over the Household, was the Deputy, the “Dux et Major Domus regni Francorum,” more familiarly known as the _Maire du Palais_, whose original Teutonic title was probably the _Stallr_. The office was originally elective, the Franks choosing the Deputy as well as the actual sovereign; and it must in some respects have resembled that of the Celtic _Tascio_. It latterly became hereditary, as is well known, in the family of Pepin and Charles Martel, who monopolized the office in Austrasia and Neustrasia, until they exchanged the title of Maire du Palais for that of king. No other great official besides the Stallr is traceable in the Norwegian Court, for which, at the opening of the eleventh century, Olive the Saint framed regulations, which must have been adopted for the usages of other Courts of the same period; though the use of the word _Hus-Carles_, both there and in England, may point to the gradual replacement of the _scalc_ by the freeman about the royal person. The progress of Roman innovation soon necessitated the presence of officials whom the simpler institutions of the north ignored; and to receive the offerings of the fiscal tenantry, made in lieu of the _feorm_, _veitzslo_ or actual support afforded to the sovereign and his retinue, a _Camera_, or treasure-chamber, was required; the leading _Camerarius_, or Chamberlain, the Lord High Treasurer of the age, becoming, as purse-bearer, a most important member of the Court. The charter next became a necessary document to attest the possession of proprietary right; and accordingly, in the early part of the ninth century, it was ordered in the Frank Capitularies, “that there should be chosen everywhere good and true Chancellors, to write public charters before the Comes, Scabini, and Vicarii.”[338] Much more, then, was it necessary that a similar official should be in attendance at the fountain-head of all chartered grants, and consequently the royal _Cancellarius_ became another most important attendant upon the royal person, the clerkly attributes required for the Chancellorship naturally placing it in the hands of the clergy. Most of these changes were probably introduced amongst the Franks after their king had been converted into the _Kaiser_ of the West; and as the old Allodial Stallr disappeared with the institutions of which he was a part, the office, which raised a subject to such a dangerous proximity to the throne, seems to have been divided between his subordinates. His leadership in war fell to the share of the _Constable_, the commander of the royal armies, in the absence of the king, whose name is derived from the same title of Stallr, held by a Comes, or Graphio, instead of by the _Heretoga_ of the whole kingdom. The _Mareschal_ had not yet arrived at the leadership of the army; his duties were still connected with the horse, but they had increased in dignity with the growing importance of the _Chevalerie_; for though not the head of the army, the representative of the royal farrier had become the captain and leader of the _Chivalry_ of the age. The judicial functions of the Stallr were performed by the _Grand Justiciary_, the President of the royal Courts of Law; whilst the _Seneschal_, who, though he retained his servile name, had, like the Mareschal, long discarded his servile origin, rose to the office of “Maire du Palais;” and in France he was also supreme over all the justiciaries. In Germany the Stallr was unknown, the Dukes of the Alamanni, Bavarians, and Saxons, having themselves been originally, in some sort, the Stallrs or Deputies of the king of the Franks; and by the time that the Empire passed to the eastward of the Rhine, the Court had become thoroughly Romanized, the Allodial Stallr never forming any part of it. His functions were accordingly divided between his two leading subordinates, the Seneschal and the Mareschal, the former being the _Pfaltz Graf_, or Count Palatine, and representing the Maire du Palais; whilst the Mareschal was the _Heretoga_, and leader of the host. Together with the three Chancellors and the Chamberlain, they were the first to give their votes at the election of a _Kaiser_, whom they were bound to accompany to Rome; and, in later times, with the subsequent addition of the Grand Butler, they were known as the seven Electors, monopolizing amongst themselves the sole choice of the Emperor.

Little can be said of the composition of the Anglo-Saxon Court after the establishment of the sole monarchy by the race of Alfred, though it was scarcely framed at first upon the Roman model, resembling rather that of Wales or Norway, or the Teutonic _Hird_, after the freeman rather than the noble had replaced the _scalc_. A nearer advance towards the usages of the Feudal era is disclosed in a charter of the Confessor’s reign, attested apparently by the royal court, the great _Jarls_ or Dukes being the leading witnesses amongst the laity; and next to them in importance the Stallr, known under his Latin title of “Regiæ procurator Aulæ,” probably the Constable. The _Aulicus_ seems to be the next official--he may have been the Chamberlain--and the _Palatinus_, perhaps the Pfaltz Graf, or Seneschal of the Household; followed by the _Chancellor_, whose office was deemed at this time of scarcely sufficient importance to be held by one of the higher clergy. The _Butlers_ of the king and queen, with three _Stewards_, close the list; two of the latter being attached to the king, whilst the other was in attendance upon the queen.[339] The Justiciary and the great Feudal functionary, whose name is still identified with military command, are missed from the Court of the Confessor; the Anglo-Saxons were not a race of horsemen--chivalry and the Mareschal came in with the Normans.

Some of these officials may have been introduced into the Scottish Court by Margaret, but with the exception of the Constable, the Justiciary, and the Chancellor, who appear in the time of Alexander, none of the great Feudal dignitaries who were in constant attendance upon the royal court in the middle ages are to be met with in the few existing charters which date before the reign of David. The earliest Constable on record was Edward, son of Siward, who fully justified the confidence of Alexander and David on the field of Stickathrow, the office--of which the jurisdiction, like that of the ancient Stallr, extended over all the country within a certain distance of the royal person--after the death of Edward, becoming hereditary in the great Norman family of De Moreville. Alan, son of Flahald, was another noble of the same race, who, like most of the actual followers of the Conqueror, crossed the Channel before the general use of surnames had arisen amongst the Normans, and upon his son, Walter, David conferred the hereditary Seneschalship of the realm; his descendants, it need hardly be added, deriving their name of Stewart from the dignity thus acquired by their ancestor. Neither the Chamberlain nor the Mareschal held their offices by a similar hereditary tenure; the former in the capacity of royal treasurer, exercising supreme sway over the Third Estate, who paid the largest ordinary contributions into the treasury; holding his “Courts of Eyre” or circuits, and presiding in the great assembly of the burghs; whilst the Mareschal was the supreme judge and referee in Courts of Honour and of Chivalry. The Justiciary and the Chancellor completed the six greater dignitaries of the Scottish Feudal Court, Constantine, Earl of Fife, being Justiciary at the opening of David’s reign, the only Gaelic Earl who appears at that time amongst the leading courtiers holding office. Service about the royal person was scarcely yet regarded as befitting the great Gaelic Mormaors, and as the Court henceforth was in reality the Supreme Council of the kingdom, the preponderance of the Feudal element in the direction of affairs was quickly developed.

Such were the leading features of David’s civil policy; the state of the Scottish Church, and the changes introduced during the course of this reign, will be the subject of the ensuing chapter. The influence of David upon his native country has been compared to that of Alfred upon England, and of Charlemagne upon a wider sphere, but in some respects it was of a different character. Alfred was the saviour of the Anglo-Saxon race from complete subjection to the Danes, and though he can scarcely be called a king of England, he was the real founder of the monarchy. Within the limits of his ancestral dominions, and of the rescued principality of English Mercia, he was the reviver of letters; the creator of a navy; the reformer of the army, upon which he expended a third of his revenue; and, as the builder of walled towns, he may in a certain sense be regarded as the originator of a burgherhood; but, like Charlemagne, he was a collector and not a maker of laws, the constitutional institutions which have been attributed to him belonging, unquestionably, to other periods. His was a policy of defence not of aggrandisement--not even of amalgamation beyond the limits of the Anglo-Saxon race--of defence by sea and on land; of renovation rather than of innovation, for it was not an era for the development of great constitutional changes. But David was a mighty innovator, scarcely reviving anything except bishoprics; and even in his ecclesiastical policy, in all other respects, he was equally an innovator. He instituted a feudal court, a feudal nobility, and feudal tenures, governing the country upon feudal principles; for the great dignitaries of the court, in his time, were not merely the holders of honorary offices, but the actual ministers of the crown. He introduced the charter into general use, confirming proprietary right throughout the kingdom, the earls and freeholders by ancient Scottish tenure, henceforth standing, side by side, with the new noblesse and their vavassors, until all difference insensibly disappeared. He created a burgherhood, and laid down a novel Code of Law, by which the earlier system was gradually superseded by the principle still acknowledged--“the verdict of the neighbourhood.” Augustus found Rome brick and left her marble; but David found Scotland built of wattles and left her framed in granite, castles and monasteries studding the land in every direction. He found her a pastoral country, and before the close of his reign she is described as the granary of her neighbours; and though the expressions of Ailred are probably exaggerated, as an exporting country she must have made considerable progress in agriculture. England may trace the germs of her monarchy to Alfred, and of the union of her people under one sovereign, though it was certainly not consummated in Alfred’s time. First amongst the Cæsars of the Western Empire stands Charlemagne, scarcely, however, the originator of the mighty results of that revival which still continue to influence the continent of Europe. But of feudal and historical Scotland; of the Scotland which counts Edinburgh amongst her fairest cities, and Glasgow, as well as Perth and Aberdeen; of the familiar Scotland of Bruce and of the Stewarts, David was unquestionably the creator. With the close of the eleventh century ancient Gaelic Alban gradually fades into the background, and before the middle of the twelfth, modern Scotland has already risen into existence.