Cornell University L,aw Library The Moak Collection PURCHASED FOR ; The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST OEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and EULEN D. WILLIAMS Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017861760 ^7^ A COURSE OF LEOTUEES THE GOVEENMENT, CONSTITUTION, AND LAWS SCOTLAND. A COURSE OF LECTURES GOYEKNMENT, CONSTITUTION, AND UM SCOTLAND, ''' FEOM THE EAELIEST TO THE PEESENT TIME. BY ALEXANDER E9JBERTS0N, M.A. OF Lincoln's inn, baebister-at-law. LONDON : STEVENS AND HAYNES, BELL YARD, TEMPLE BAE. 1878. DEDICATED, BY PERMlSSIONv \ RIGHT HONOURABLE EARL CAIRNS, ^ori ^igh (Ehanalbr of ®«at §xitnn. PEEFAOE. In the Albert Institute, Dundee, nearly three years ago, I delivered a Course of Seven Lectures on the Government, Constitution, and Laws of Scotland. I adapted these lectures, as far as possible, to a popular audience, and was rewarded with an amount of success far exceeding my most sanguine expectations. Formerly, my intention was to make these lectures the basis of an elaborate work on the History of the Constitution and Legal Institutions of Scotland ; but, for the present, I am obliged to abandon my original scheme. To my lectures, however, I have, in the following pages, made several additions, which will, I hope, enable the .reader to pursue his studies with greater satisfaction to himself than he could have done had the lectures been printed in the exact form in which they were delivered. In particular, I hope that the translations, in the first lecture, from Caesar and Tacitus, wUl throw greater light upon a most obscure part of Scottish History than the meagre outline which, in 1875, I adopted from these authors ; and that the new matter, in the Sixth and Seventh Lectures, bringing down my subject to the present date, will show pretty clearly what has been done by the legislature since the lectures were delivered. vm. PREFACE. With these observations, and in the most perfect confidence that I will receive ample justice at the hands of intelligent and impartial critics, as well as intimate friends, I humbly submit the following work to the judgment of the public. To my friends John Campbell Smith, Esq., Advocate, Edinburgh, and James Suthekland Cotton, Esq., Barrister-at- Law, London, I take this opportunity of acknowledging my great obligations for their assistance and valuable suggestions while this work was going through the press. I have also to thank my friend J. D. Gkant, Esq., Solicitor, Dundee, for assisting me in bringing down the Seventh Lecture to the present date. Nmember 1878 : 2 Plowden Buildings, Temple. TABLES OF CONTENTS. LECTUEE I. PAGE FEOM THE EAELIB8T TIMES TO THE FIRST YEAR OF THE EBIGN OP MALCOLM CANMORE. (500 B.C. TO 1057 A.D.) FIRST EPOCH. PRIMITIVE, OR THE ORIGIN AND EARLY HISTORY OP SCOTLAND AND ITS INHABITANTS. FIRST PERIOD. THE ABORIGINES . . .1 SECOND PERIOD. THE ROMANS . . . . .12 THIRD PERIOD. CELTIC AND TEUTONIC . . .26 FO0RTH PERIOD. SCOTO-PICTISH KINGDOM . . .42 LECTUEE II. FROM THE REIGN OP MALCOLM CANMORE TO THE DECLINE OP FEUDALISM. (1057 to 1406.) SECOND EPOCH. NOBMAN-SCOTTISH . ... 53 LECTUEE III. FROM THE DEOLINS OP FEUDALISM TO THE BEGINNING OP THE REFORMATION OP THE CHURCH. (1406 tO 1542.) THIRD EPOCH. SCOTTISH. FIRST PERIOD 103 X. TABLES OF CONTENTS. LECTUEE IV. PAGE FROM THE BEGINNING OF THE REFORMATION OF THE CHURCH TO THE GREAT REVOLUTION, (1542 tO 1688.) THIRD EPOCH. SCOTTISH. SECOND PERIOD .... . . 136 LECTURE V. FROM THE REVOLUTION TO THE END OF THE REIGN OP QUEEN ANNE. (1688 to 1714.) THIRD EPOCH. SCOTTISH. THIRD PERIOD . . . . . . .189 LECTUEES VI. & VIL FROM THE ACCESSION OF THE HOUSE OF HANOVER TO THE PRESENT TIME. (1714 to 1878.) FOURTH EPOCH. BRITISH. LECTURE SIXTH . . . . . . . 228 LECTURE SEVENTH 275 1:abLes of contents. xl. II. HISTOEICAL SUEVEY. SECTIONS 59 TO 71, 141 TO 151, 190 TO 196, 271, 325 to 334. THE EOYAL PEEEOGATIVES. SECTIONS 72 TO 82, 152 to 158, 164, 197 to 201, 272 to 283, 335 to 338. THE PAELIAMENT. sections 83 to 88, 159 to 163, 202 to 210, 284 to 290, 319, 339 to 355. THE CHUECH. sections 89 to 91, 165 to 167, 211 to 232, 291 to 296, 417 to 425. THE ADMINISTEATION OF JUSTICE. sections 92 to 102, 168 to 175, 233 to 246, 297 to 302, 356 TO 400. LAWS— CIVIL AND CEIMINAL. civil: sections 103 to 127, 176 to 184, 247 to 257, 303 to 310, 428 to 449. criminal: sections 128 to 134, 139, 185 to 188, 258 to 269, 311 to 318, 450 to 473. xu. TABLES OF CONTENTS. MISCELLANEOUS. BURGH LAWS LOCAL GOVBENMENT EDUCATION .... PAUPERISM .... UNION OF SCOTLAND AND ENGLAND Sections 135 to 138 sections 402 to 411 sections 412 TO 416 SECTIONS 426 to 427 sections 320 TO 323 SUMMAEIES. SECTIONS 58, 140, 189, 270, 324, 401, 474. A COURSE OF LECTURES THE GOVEENIENT, CONSTITUTION, AND LAWS SCOTLAISTD. LECTUEE I. FROM THE EAELIEST TIMES TO THE FIRST YEAR OF THE REIGN OF MALCOLM CANMORE (500 B.O. TO 1057 A.D.) Introduction. — The coiirse of Lectures which, by the kindness of the Directors of the Dundee Public Library, I am to deliver in this Hall, will, I hope, give you a general outline of the history of the Laws and legal institutions of our country. Grave doubts rest in my own mind as to how far the subject which I propose to treat is adapted for popular exposition ; but, if you will kindly extend your utmost attention 2 A COURSE OF LECTURES and forbearance towards me, I shall do all I can to render my Lectiires as interesting as circumstances will allow. That the subject is worthy of calm and serious dehberation . cannot be doubted ; for it com- prehends a brief survey of the great historical events of owe native land, and the causes which have brought about the present state of our government, constitution, and laws. Than a knowledge of our imperial constitu- tion and local and imperial government, what can be more important ? Than a general idea of the great prin- ciples of our law, what can be more useful 1 Certainly, no mere secular knowledge can be justly preferred to them ; for our laws are. the fundamental principles of our national moraUty,and deal with the daily and hourly concerns of our hves, honours, and fortunes ; and our governmental institutions are the modes by which the national will is expressed^ and the laws carried into execution. The ancient Romans, Cicero tells us, com- mitted their Twelve Tables to memory. Unfortunately, however, we have nothing corresponding to that code of Roman law; but rather a heterogeneous mass of statutes, decisions, and customs, from which a clear and well-defined system is not easily extracted. But difficulties in the way of accomphshing- a great and good object must never deter us from doing what we can to supply a pubhc want ; and, although failure may attend my efforts, I intend, at all events, to. try to clear the way for other explorers in a most fruitful field of inquiry. With these preliminary observations, I have this ' evening to invite you to consider the origin and early history of Scotland and its inhabitants. ON THE LAWS, ETC. OF SCOTLAND. 3 FIRST EPOCH. — PRIMITIVE, or the origin and early history ov SCOTLAND AND ITS INHABITANTS. FIKST PERIOD.— THE aborigines. 1. Scotland divided into petty states. — The modern kingdom of Scotland, whicli, in ancient times, was _ divided into a large number of petty states, was un- known by its present name tUl the 10th century, and its existing boundaries on the north and south were not fixed tUl the 1 4th. Herodotus and Aristotle refer to Britain and Ireland as the Cassiterides, and the Roman classical authors caU the whole country between the English Channel and the PentlandFirthBritannia. The earhest known inhabitants of Scotland were nomadic in their habits, and at the commencement of the Christian era could hardly have exceeded 200,000. They were then rude, fierce, and barbarous ; were divided into numerous states or clans, which were frequently at war with each other. 2. Primitive Scotland. — There were fifteen clans or septs which occupied Scotland at the time of the Roman government in Britain. The chief races or families were the Vecturiones, Selgovse, Novantes, Picti, Attacoti, and -Scoti. All these belonged to the Celtic family of nations. To these we must add the Teutons, who subsequently invaded Scotland, i.e. the Saxons, Danes, and Normans, in order to obtain a complete list of the races which ultimately formed our heterogeneous nationality. For the present, however, the Picts and Scots wiU chiefly engage our attention. Therefore, before proceeding 4 A COURSE OF LECTURES to consider the Roman invasion, and its effects in civilizing the northern parts of Britain, let us try to find out who the Celts were, and whence they came. 3. The aborigines of Britain were Celts. — The ab- original inhabitants of Biitaiin were the Celts, and spoke the Gaehc or Cunaraig dialect. They belonged to the Kimmerian race, from whom Camillus (400 B.C.) and afterwards Marius (100 B.C.) saved the Roman people. They formed part of those tremendous devasta- ting hordes by which Central Asia was, for many centuries, relieved of a superabundant popiil9,tion, and Eastern Europe was overwhelmedj and also reinvigo- rated, by the influx of a strong and courageous race of men. Afterwards the Goths, who came from the same region, and belonged to the same great Aryan family of nations as the Celts, but spoke a different dialect, drove large numbers of the latter to the western extremities of Europe about 500 B.C. ; and, according to Herodotus, this was about the time when the Celts took possession of Britain. Tacitus refers to the Picts by the name of Caledonians, and Bede states that they came originally from what is now Persia, and, not find- ing a settlement in Ireland, sailed to Scotland. 4. No authentic information till Coesar and Tacitus. — Previous to the Christian era, no writing exists to give us any authentic information in regard to the habits and customs of our Scottish ancestors, I will there- fore lay before you, in the words of the authors themselves, the information which, on these matters, has been left us by Csesar, the father of English histoiy, and by Tacitus, the father of the history of Scotland. 5. Ccesar says the southern Britons are like the ON THE LA-WS, ETC. OP SCOTLAND. 5 Gauls. — Speaking of the southern Britons, Csesar, who wrote his Commentaries between 55 and 46 B.C., says (V. 12-14) that they were very numerous ; had many buildings, which resembled those of the Gauls, and large herds of cattle, and used brass and iron of definite weights for money. The more civilized ia- habitants by far dwelt in Kent, and did not much differ in their customs from those who hved in Gaul. Those in the interior did not sow corn, but hved on flesh and milk, and clothed themselves with skins. All the Britons painted their bodies a blue colour, and by this means had a fierce look in battle. Csesar also alleges that polyandry existed amongst the Britons. His words are : " Uxores habent deni duodenique inter se communes, et maxime fratres cum fratribus, parenti- busque cvooa. hberis ; sed si qui sunt ex his nati, eorum habentur Hberi quo primum virgo quaeque deducta est." 6. Three classes a/mongst the Gauls. — Turning to Csesar's account of the Gauls (VI. 13-19) we find that there were two classes of men esteemed honourable, and that the common people were almost slaves. The two upper classes or orders were the Druids and knights. 7. The Druids. — They were engaged with divine things, superintended pubHc and private sacrifices, expounded the obHgations of rehgion, and instructed a great number of the youth. They decided almost all pubhc and private controversies. If any wrong was committed, or any slaughter done, or if any dis- pute arose about an inheritance or boundaries, they gave judgment, and awarded the compensation or punishment ; and if any one, pubhc or private, did 6 A COTJBSE OF LECTTJEES not obey their decision, tie was interdicted from the sacrifices. This punishment was very heavy; for those interdicted were ranked as impious and wicked ; all fled from them, and avoided their approach and speech, lest any mischief should befaE them from the contagion. Osesar says the Druids taught their pupils and the people that the soul never died, but, after death, passed from one man into another; and that, by a disregard of death, manliness was stirred up within men's breasts. He also tells us that they taught the youths many things as to the nature of the heavenly bodies, their motions, the size of the world and this earth, and the nature of things, and discussed the power and strength of the immortal Gods. 8. The Knights. — The other great class was that of the Knights. These, when the occasion of war demanded (and before the arrival of Caesar wars either of aggression or defence were almost perpetual), aU took their place in battle. Each according to his rank and wealth was followed to the field by vassals and squires. 9. Family Relations. — Csesar also tells us that reve- rence of parents by children was inculcated and strictly practised amongst the Gauls ; that they did not allow their children, unless they had come of age, and were able to bear arms, to approach them ; and that they considered it -disgraceful for a son in. his boyhood to stand in pubHc in the sight of his father. With regard to marriage, he says, that an estimate was made of. the value of the dower brought by a wife to her husband, and the husband contributed an equal amount to the common stock. An account was kept of the ON THE LAWS, ETC. OF SCOTLAND. 7 annual proceeds, and the whole, both of the original stock and of the proceeds, ultimately fell to the sur- vivor. The men had the power of life and death over their wives and children. When any illustrious person died, his relatives assembled. If there was anything suspicious about his death, they instituted an inquiry by torture amongst the wives ; and, if any thing was found out, they put them to death with fire, and most terrible cruelties. 10. The Councih — The best ordered states in Britain enforced the following rule : — That all rumours from abroad affecting pubhc matters should be immediately communicated to the Magistrates, but carefully kept secret from the general public. The Council had the sole right of discussing affairs of state. Such is Caesar's account of the Gauls, who may be taken as representative of our Celtic ancestors 'in Britain. Let us now see what he says (VI. 21-23) in regard to the Germans, who may be looked upon as similar in manners and customs to the Teutonic tribes who invaded the whole of Britain in the 4th and sub- sequent centuries of the Christian era. 11. Land tenure and Government. — The ancient Gemians did not attend to agriculture, and the chief part of their food consisted of milk, cheese, and flesh. None had a definite portion of ground with fixed boundaries. The magistrates- and the' chiefs, who were elected yearly, determined who were to dwell together, what and where they should have fields, and erJorced a fresh distribution in the following year. When a state carried on war, offensive or defensive, magistrates were specially chosen to command with 8 A COURSE OF LECTUBES the power of life and death. In peace, there was no common magistrate; but the head men of districts and of villages laid down the law for their fellows, and decided controversies. Eobberies committed beyond the territories of their own statg brought no disgrace, and they permitted these offences in order to sharpen their youth, and to diminish want. When any chief announced in council that he would lead forth some expedition, those who wished pledged themselves to follow him ; and if any of them broke their pledges and stayed at home, they were esteemed deserters and perjured, and afterwards looked upon as faithless. Let this suffice for what Csesar says as to the habits, manners, and customs of the Teutonic people. I pro- ceed to the statements which were made by Tacitus about a centiuy later. •12. Tacitus on the customs of the people of Germany. — Tacitus, Germ^nia, c. 6 to 27, treating of the man- ners, customs, and people of Germany, says that the Germans seldom had swords, but used sharply-pointed javelins. For the army, 100 men were sent from every village ; and the " hundred," which was originally a mere number, had become the name for a special class. In the choice of their kings they were determined by nobility of race ; in that of their generals, by personal bravery. The power of the kings was neither un- bounded nor arbitrary ; and the generals procured obedience not so much by authority as by their own example. None except the priest was allowed to exercise coercion, or sentence to bonds or stripes ; and, when the priests injflicted punishment, their authority was , regarded as higher than that of a gieneral ON THE LAWS, ETC. OF SCOTLAND. ^ and as if emanating from the Deity. There- fore they took the images and emblems of their Gods along with them to battle. In hostile operations, families and tribes who were related combined together, and their wives and children accompanied them to battle. In truth, they even believed their women endowed with power from above, and with the spirit of prophecy; and the tribe of the Sitones had women for their sovereigns. They were addicted beyond the rest of mankind to lots and auguries ; their priests interpreted those which were public, and the fathers of families those which were private. They placed reliance on the flight of birds, and even the neighing of horses. But this was the most characteristic omen by which they anticipated the result of their wars : They compelled a captive from the enemies' side to fight in single combat with a champion of their own, and accepted the issue of the duel as a presage of the war. 1 3. National councils. — The chiefs determined affairs of small moment, while the whole nation dehberated about those of higher importance, but in such a manner, that whatever depended on the pleasure and decision of the people was previously examined and discussed by the chiefs. When there was no special emergency there were regular assemblies at the new and full moon. At these assembUes the priests enjoined silence, and were invested with the power of correction. AU sat down, and all were armed. Then the king or chief was heard, and the rest in order, according to their pre- cedence in age, nobility, warlike renown, or eloquence. The people expressed their displeasure by an iaarti- 10 A COUKSE OF LECTURES culate murmur, and their approval by brandishing their javelins. In the assembly, accusations were presented, and capital offences prosecuted. Punishments varied according to the character of the crime. Traitors and deserters were hung. For Hghter transgressions the delinquents, on conviction, were coromanded to pay a fine of horses or cattle. Part of the fine went to the king or community, and part to him whose wrongs were vindicated, or to his nearest kindred. In the same assemblies were also chosen chiefs or rulers, and those who administered justice in the villages and burghs ; and to each of these latter officials 100 persons were assigned for assistance and counsel. 14. Rules of marriage and inheritance. — Almost alone among barbarians, the Germans, as a rule, were content to have each but one wife ; and the husband, not the wife, gave the dowry. Useful gifts of a warlike kind were given to the husband ; and the parents and relations of the parties attended the marriage, and declared their approbation. Children were held in the same estimation by their mother's brothers as by their own father. But to every man his own children were his heirs and successors. Wills they had none, and for the want of children the next of kin inherited. 15. Compensation for homicide. — All the enmities, . as well as friendships, of one's house, whether of father or kindred, had of necessity to be adopted. But even for homicide, compensation might be made with a fixed number of sheep and cattle, and by this means the whole family was pacified. 16. Slaves and freedmen cultivated the land and ON THE LAWS, ETC. OF SCOTLAND. 11 paid rent. — The tenants were slaves, and obliged to pay to their lords a certain quantity of grain, cattle, or clothes. They seldom exercised severity towards their slaves, but if they killed them, no vengeance or penalty followed. Freedmen, after emancipation, were held in but httle higher regard than slaves. Such is the information which we derive from the Germania of Tacitus ; and I think we can hardly fail to notice many points of resemblance between the manners and customs of the ancient Germans and those of the early inhabitants of Britain, and may even detect some of the practices of our ancestors at a time not far beyond our own times, and, it may be, still surviving in our midst. 17. Taxiitus thought the Caledonians were Germans. — Tacitus, in his life of Agricola, gives us some addi- tional particulars as to the people of Britain. He says that it was in the. time of Agricola that Britain was first circumnavigated, and it was then that the Orkneys were subdued by the B,omans. He was also of opinion that the red hair and large limbs of the Caledonians showed them to be Germans ; and that the swarthy complexion, curly hair, and situation as regards Spain of the Silures, who occupied a large part of Wales and two of the adjoining counties of England, furnished grounds for supposing that the ancient Iberians had arrived in Britain from thence. He further says that, before the Roman invasion, the Britons had been subject to kings ; and, in his time, were swayed by various chiefs, and torn . by factions ; and rarely did two or three communities assemble together to consult for the common safety. j 12 A COURSE OF LECTURES Having here given such lengthy extracts from Csesar and Tacitus as to the ancient inhabitants of Britain, I proceed briefly to consider the state of afiairs in Britain, and, of course, especially in Scotland, after the Boman invasion. Second.— THE ROMAN PERIOD. 18. Britain was invaded by Ccesar B.c. 55, — The progress of the eastern hordes in. western Europe brought the Geimans and the Celts face to face in Gaul, and the constant feuds of the Celtic inhabitants amongst themselves caused the Germans to be called in as allies by the military class, and the Romans by the priestly. The result was, that Csesar drove the Germans beyond the Bhine, and Gaul was reduced to a Boman province. The Belgse were the last to yield to the Boman yoke ; and, as they had re- ceived aid from their kinsmen in the south of Britaui, Csesar resolved to invade our island to punish those who had given assistance to the enemies of Borne. The Belgic Britons were alarmed by the tidings which they received of Caesar's intentions, and accordingly sent ambassadors to the Boman commander to sue for peace, and ofier hostages for their friture good behaviour. Caesar declined their proposals, embarked for Britaui at Portus Iccius or Boulogne with the 7th and 10th legions in 80, and his cavalry in 18 vessels. This was in 55 B.C. When Csesar landed in the south of our island, the Britons fled to the interior. The British chiefs sent messengers to Csesar promising obedience and ofiering hostages, and thereupon terms of peace ON THE LAWS, ETC. OF SCOTLAND. 13 were arranged. These matters were no sooner settled than the chiefs, or, as they have often been called, kings; of whom there were then four in Kent, joined in a confederacy against the Homans. Caesar was enraged at this dupHcity, resumed the war, and defeated his enemies. He then returned to Gaul for the winter, and came back to Britain in the following spring. On his second invasion he had 5 legions and 2000 cavahy. in 800 ships. The Britons fled in terror, and were afterwards defeated by the Romans. But the native tribes, thinking that their disasters chiefly arose from their own dissensions, settled their differences, and chose Cassivellaunus as their common leader. AU their efforts, however, were in vain, and the various tribes one by one surrendered to the victorious Romans. Peace was made, tribute was to be paid, hostages were given, and Caesar again returned to Gaul in the same year. Caesar never advanced beyond the southern parts of Britain. Thus began in Britain the Roman dominion, which, with various success and extent of territory, subsisted for more than four centuries. 19. Brief sketch of the progress of the Roman arms to the tirfie of Agricola. — Nothing of any consequence happened in Britain for nearly a century. This was in consequence of the frequent bloody civU wars waged in the imperial city itself. In A.D. 43 the Emperor Claudius sent Aulus Plautius to queU some disturbances which had arisen in Britain. Plautius was the first governor of consular , rank in this country. He undertook the command of the Roman forces in Britain, and conquered the south- eastern district. Soon afterwards Vespasian reduced 14 A COURSE OF LECTUfeBS the south-western territory, which was then held by the Belgse and the Damnonii ; and in a.d. 50, Ostorius Scapula, who was also of consular dignity, erected forts from the Eiver Avon to the Severn, defeated the Iceni, who dwelt in Norfolk and Suffolk, and forced them to submission. Ostorius also vanq^uished the fierce and uncultivated Brigantes, who occupied the shires of York, Lancaster, Westmoreland,- and Cimiber- land, and also the formidable Silures, who held those of Radnor, Brecknock, and Glamorgan, in Wales ; and sent their king, Caractacus, as a prisoner to Rome. He then directed his attention to the internal govern- ment of the country which had been subdued by the Romans. Camulodunum, supposed to be Maldon in Essex, was raised to the rank of a colony, and made the Roman headquarters ; and Roman veterans were established in the territories which had been conquered. Eight years later, a.d. 58, great disorders had been stirred up by the Druids in the districts held by the Silures and the Brigantes. These were quelled by Caius Suetonius Paullinus, and the groves of the Druids in Mona or Anglesea were levelled to ' the ground. About this time the southern Britons, who had been reduced under the power of the Romans, and their territories formed into a Roman province, groaned under the grievous oppressions of their conquerors, and bitterly complained of the tyranny of the governor- general over their bodies and hves, and of the imperial procurator over their property and fortunes. In particular, the Trinobantes had been deprived of their lands in order to make way for the Roman veterans, and they themselves were treated as slaves. The outrages ON THE LAWS, ETC. OF SCOTLAND. 15 of the veterans and the hcense of the common soldiers caused the Iceni and Trinobantes to combine their forces, attack the colony of Camulodunum, raze it to the ground, give no quarter, and inflict extreme cruelty on the Romans and their confederates. The Iceni had Boadicea for their Queen, and they revolted because of the brutal treatment which had been inflicted on the Queen's two daughters. The Roman governor-general defeated Boadicea's forces with great slaughter ; and the heroic Queen, despairing of obtain- ing justice or freedom for her country, ended her days by taking poison. Suetonius, by whom the Britons had been cruelly treated, was recalled to Rome, and was succeeded by Petronius Turpillanus, a man of mUder temper than his predecessor. In a.d. 78, the Britons rose against their Roman conquerors ; and in the same year the government of what was then a Roman ^province, that is to say, the part of Britain nearest Gaul, was entrusted to Julius Agricola, who was of consular rank. He was a great statesman as well as a great general; and his exploits in Britain are recorded by his son-in-law, Tacitus the historian. These exploits bring us to that part of Britain with which we shaU hereafter be most chiefly concerned. 20. Agricola greatly advanced civilization in Britain. — Agricola, on his arrival in Britain, erected forts and garrisons throughout all the knoAvn and im- portant places of his province ; and, by his mUd and gentle treatment of those who were under his authority, brought them to love the Roman customs. He passed the Firth of Forth, and subdued several nations till then unknown to the Romans, and built forts on the 16 A COURSE OF LECTURES Scottish coast opposite to Ireland. He determined to signalize, his term of ofl&ce, not only by the greatness of his victories, but also 'by the wisdom, justice, and uprightness of his government. Accordingly, in order that the British provincials, -wild and dispersed over the country, and therefore easUy instigated to war, might, by a taste for pleasure, be reconciled to inactivity and repose, he first of all privately exhorted and pubhcly assisted them to build temples, houses, and places of assembly. He also took care to have the sons of the chiefs taught the liberal sciences, and they soon began to be fond of the Roman language and eloquence, and frequently to wear the Roman apparel and toga. Nay more, and what was not so good, we are informed by Tacitus, that they became enamoured of the dissolute incitements of their conquerors, and at last were charmed with their vices ! During the year 80 A.D., Agricola secured his acquisitions to the mouth of the Tay, and overran several tribes or nations ; and, in 81 A.D., he erected forts between the Clyde and the Forth to protect the fruits of his victories. 21. The Caledonians are defeated. — The year .83 A.D. was distinguished by the Caledonians betaking themselves to arms, and assailing the Roman forts which had been erected for the protection of the Roman province in Britain. The Caledonians were defeated. After this contest the Roman army determined to see the utmost limits of Britain ; and, on the other hand, the north Britons, losing nothing of their high spirit, armed their young men, removed their, wives and children to places of security, and, in a general con- vention of their several communities, engaged in a ON THE LAWS, ETC. OF SCOTLAND. 17 league for their mutual defence against the Romans, and ratified the engagement by solemn saciifices. When the summer of 86 arrived, Agricola reached the Grampian hUls, and found that the Caledonians were in great strength in the neighbourhood of the junction of the Tay and the Isla, and that reinforcements were continually arriving. Galgacus held the supreme com- mand of the northern Britons. He surpassed aU his compeers iu valour and descent ; and, according to Tacitus, spoke to his army in forcible and glowing terms. He told them that they had to fight for the liberties of all their fellow-countrymen ; that the E/oman government and their own peace were incom- patible. He urged them to fight for their children and dearest kindred ; to look back to the glory of their ancestors, and forward to the interests of their posterity. Whereupon chants, din, and shouts were heard. Agricola also addressed his soldiers, and said that they had now reached the eighth year since the conquest of Britain had begun ; that they had yet victories to win, and had arms and limbs to enable them to be successfal. He also reminded them of their past successes against the Britons, and told them that the coming battle would finish the war. The fight began, and although the Britons fought bravely and skilfully in a hand-to-hand encounter, the Romans were victorious; and, after suffering great loss, the Britons fled, and fell into the greatest despair. Of 30,000 armed men, the Britons lost 10,000. This was the last and most important act of Agricola in Britain, for he was soon afterwards recalled to Rome. The battle virtually decided the fate of the British 18 A COURSE OF LECTUBES nations, and made the Romans masters of the whole island. Henceforth many of the tribes lost their distinctive names, and were merged into Romans. 22. The. Picts or Caledonians. — I do not intend to enter into minute detail as to the ethnology of the various tribes which inhabited Scotland in the time of Agricola. I shall only here add that Ptolemy has preserved the names of two tribes as the inhabi- tants of Scotland to the north of the Brigantes. Of these the most important, on the north of the Forth, were the Caledonians, who occupied the wild forest country between Perth and Inverness. They, with the exception of the Scots from Ireland, and the northern tribes from Norway and Denmark, all of whom invaded Scotland at a subsequent period, supphed the most important element in the development of Scottish history. . To obtain the best idea of our ancestors before the Roman conquest, we ought to compare them with the septs or clans in Ireland, or in the Highlands of Scotland, in the 12th or 13th centuries, when each chief had an independent sovereign authority over his own clan, and when many dialects of the same language were spoken in contiguous districts. Whatever the origin of the several races inhabiting the north of Britain, and probably there were Celts and Teutons in the same regions, the Caledonians became, during the conquest of the low- land tribes, synonymous with all the tribes to the north of the Brigantes, and with all who refiised to acknowledge the supremacy of Rome. 23. Hadrian's Wall. — In 120 Hadrian's Wall, from the Solway to the Tyne, was erected in order to ON THE LAWS, ETC. OF SCOTLAND. 19 defend the provincials from the predatory warfare and frequent incursions of the Caledonians. In 139 a Roman wall or earthen rampart, between the Firths of Forth and Clyde, was erected by LolHus Urbicus, who was made praetor by Antoninus Pius ; and, by this means, the territory between these Firths was added to the Roman possessions. After the end of the 2nd century, Roman authors, in referring to the British people, mean the Caledonian tribes of the north, and speak of the rest of the inhabitants as Romans or serfs. 24. The Mceatce. — About 201 A.D., a new tribe comes into notice for the first time. Dio says that the two greatest northern tribes of the Britons were the Caledo- nians and the Maeatse ; that all were merged into these two ; and that the la,tter were settled down close to the Antonine wall, and the Caledonians beyond them. Of the nationality of the Mseatse nothing is known. He also informs us that, like the Caledonians, they were wUd, rude, and uncultivated; enjoyed democratic institutions; and could endure hunger, thirst, and other hardships ; and that, with the Caledonians, they made frequent incursions against the southern inhabitants. 25. The campaign of Severus. — The next important factor in our northern civilization was the expedition of the Emperor Severus in 208. From our present point of view, this expedition, effecting nothing except the making of the bridges and roads which were con- structed on the march, and which remained for many centuries, could not fail to be of the greatest use to the Britons after the Romans had left the island. 26. The first colony of the Irish or Scots expelled. — Nearly a century passed before any other event requires 20 A COURSE OF LECTURES to be mentioned. This incident had most important results in the course of time ; for it ended in a body of invaders from Ireland giving their name to the northern part of Britain. According to Bede's tradition, the Dalriadic colony, under Eeuda, crossed from Ireland (284 a.d.) to the wilds of Lorn and Kintore, and laid the foundation of the Dalriadic king- dom. This colony was temporarily expelled from Scotland ; but nothing is more certain than that henceforth we lose sight of the Caledonians and the Mseatee, and that the Picts and the Scots, along with the Attacots, take their place. 27. The Saxons invade Britain. — ^About the year 353 the Picts and the Scots joined the Saxons, who came from the River Elbe, in their incursions into England, and ravaged the south of Britain. Where- upon the Emperor Julian sent a magister armorum to repel the invaders, and peace was restored. 28. Later events to the breaking up of the Roman province. — Except that the Roman province was griev- ously harassed by the Picts andtheScots andthe Attacots from the north, and by the Saxons from the sea, nothing is known as to the condition of Britain during the reign of the Emperor Julian (861-363 A.D.) The incursions into the Roman province did not meet with much resistance tiU the reign of the Emperor Valen- tuiian, who gave up the Eastern provinces to his brother Valens, and devoted himself to the restoration of peace and order in the West. In 368 the Count of the Saxon coast was defeated and slain, and the Duke of Britain fell into an ambuscade. Seeing the grave state of affairs in Britain, Valentinian sent Theodosius to take ON THE LAWS, ETC. OF SCOTLAND. '21 the command of the, Eoman forces there. On his arrival, says Ammianus Marcellinus, he found that the Picts, who were then divided into two great tribes under the name of the Dicahdones and the Vecturiones, had joined the Scots and the fierce Attacote, and were plundering the country round about Augusta (London). Theodosius at once attacked his opponents, defeated them with great slaughter, and restored great part of the booty which had been seized by the Picts and their allies. He then issued a proclamation in which he offered pardon to all who returned to their allegiance, and many accepted his offer. Reinforcements arrived at the Roman camp, and Theodosius, who was an able and brave soldier, reduced various tribes to obedience, restored order and peace to the province, took the territory between the Hadrian and Antonine waUs from the Picts, who had for sometime previously held it in undisturbed possession, and gave it the name of Valentia. He also repaired the Roman forts and garrisons, and enabled the province to enjoy the bless- ings of peace for many years. He left Britain in 369, and was accompanied to the place of embarkation by grateful crowds of provincials. After this there is nothing to relate as to the history of Britain, except reiterated attacks by the Scots, the Picts, and the Saxons, and frequent revolts by the turbulent and arrogant Roman soldiery in Britain. The Roman Empire was at last struck with an incurable disorganisa- ' tion from within, and by overwhelming forces from without ; and the Roman legions were withdraAvn from Britain to stem the torrent of invasion near the centre of government. The Romans left Britain a.d. 407. 22 A COURSE OF LBCTUBES Lastly, Honorius wrote a letter to the British pro- vincials in 410 (Zozimus VI. c. 10) urging upon them the necessity of undertaking their own defence ; and the great Koman Empire in the West was extinguished in 476 by Odoacer, king of the Heruli, by whom the imperial city was taken. For five centuries from the departure of the Roman forces, Britain was in a continual state of war, and was frequently subjected to the greatest hardships. Before we attempt to consider this period of terrible dis- order, let us try to estimate the effects produced upon Britain by the Romans. The greatest results were brought about in the south of Britain ; but, more or less, the whole island was improved in the arts of civilization before the departure of the Romans, who left an indelible impress on its fiiture develop- ment. THE RESULTS OF KOMAN CIVILIZATION IN PROVINCIAL BRITAIS. 29. Agriculture improved, and towns founded. — Before the departure of the Romans from Britain, great improvement had been made in the art of agri- culture ; excellent roads had been formed ; a large number of flourishing towns and cities and splendid dwelling houses had been built, and richly provided with tesselated pavements and frescoes ; and temples, basUicae, theatres, and amphitheatres had been erected in many parts of the province. Towns and Cities Romanized. — 'The towns and cities were centres of industry, refinement, and good govern- ment. They were inhabited by the Roman colonists ON THE LAWS, ETC. OF SCOTLAND. 23 and the imperial ciAol and military authorities, by whom the customs and manners of the Eomans were practised, the Roman language spoken, and the Roman laws obeyed. Gaul had been completely Romanized ; and although the Romans may have foimd Celtic the predominant language in Britain, and although the great bulk of the inhabitants may have continued to speak this language, there cannot be any doubt that, had the Romans remained in Britain a little longer, our language, just as most of the languages on the continent, would have been a dialect of new Latin. The municipal government and privileges of the cities. — The most important element in the govern- ment of Britain received its birth from the Romans. This was the establishment of municipal govern- ment in the towns and cities. Richard of Cirencester writes that, in the time of the Romans, there were two municipal towns, namely, St. Albans and York ; nine colonies, including London ; twenty cities, and twelve stipendiary towns of less consequence. For all practical purposes, there was no difference between municipal towns and colonies in the later times of the empire, and the inhabitants of both enjoyed the fiill rights of Roman citizens. The stipendiary towns paid taxes in money instead of a fixed portion of the produce of the soil, as aU other imemancipated towns, villages, and districts of the Roman empire had to do. All these towns to which I have referred possessed the " civitas," and therefore were subject to the Roman law. They had an independent government, which was repubKcan in form, and resembled the ancient constitution of Rome, and they were not subject 24 A COURSE OF LECTURES to the ordinary jurisdiction of the high state officials of the Empire. Their inhabitants had to defend their own towns, and were exempt from military service elsewhere. Generally speaking, the Eoman municipitua:, or town corporation, consisted of the people at Ikrge and the curia, or governing body. The members of the curia were called curiales, secmiones, or senators. The sons of the curiales became members of the curia by right of birth ; and any freeman might become a member of the curia by election. The curiales alone had the right of electing the magistrates and officers of the municipium. At first these officers were two in number, namely, duumviri, or chief magistrates, who had powers entrusted to them similar to those of the consuls at Rome, and their authority extended over the town and its dependent territory. The duumviri were chosen from the curiales, were obliged to accept office on election, and if they reftised to act or concealed them- selves they were punished by the confiscation of their property. Next in order, and elected from the curia, were the principales, who formed the administrators of municipal affairs, and the permanent council of the curia. The duumviri were chosen for a year, and the principales for fifteen years. Nor were the plebeians, who of course formed the great body of the people, forgotten in the Roman municipal scheme of government. They elected the defensor civitatis, who was not to be a member of the curia, and whose duty was to protect the poptilace from the injustice and tyranny of the senators. He was a tribune, and in many of the Italian cities became the most powerful member of the community. How closely ON THE LAWS, ETC. OF SCOTLAND. 25 the chief magistrate and councillors and the electors of our modem towns corresponded till recent times in their functions to those of ancient Rome need hardly be pointed out. In addition to these municipal corporations, there were corporations or colleges of the different trades in the municipia ; and the members of these, not being included in the curia, chose patrons amongst the senators or curiales to look after their public and private interests. Here again we find the germ or origin of the various trades or guilds, with their right to have representatives in the municipal curia. General idea of the supreme provincial government of Britain. — The supreme government of Rome did not greatly influence the subsequent history of Britain. The " Notitia," which shows the state of things in the fifth centtiry, proves that Britain was divided into five departments, of which four were situated in England and the fifth in the lowlands of Scotland. After the reign of Constantine these departments were governed by presidents or consulares, who had a vicarius placed over them, and who himself was subject to the control of the prsefectus praetoris Galliarum. Under these high ofl&cials there were various officers engaged in the civil administration of the province; that is to say, assessors or assistant judges, secretaries, accountants, masters of prisons, notaries, clerks for appeals, Serjeants, and others. In like manner the imperial revenues were under a supreme officer in Gaul, entitled Comes sacrarum largitionum ; and under him was the collector for the whole of Britain, the over- seer of Augustinian treasures in Britain, and the 26 A COURSE OF LECTURES procurators of the Cynegia, or hunting establishment. Of a Eoman mint for coinage there are traces till the reigns of Diocletian and Maximinian (284 to 305 A.D.) At the period included in the " Notitia," military affairs were subject to the provincial government of Gaul ; for the vicarius or governor of Britain had then merely the civil power entrusted to his care. In Britain military affairs were under the Count of the Saxon Shore, " Comes Htoris Saxonici ; " and the Duke of Britain, " Dux Britanniarum." The Count of Britain, " Comes Britanniarum," was the civil assistant of the Duke of Britain, and had no mihtary authority ; and the whole of the Boman forces in Britain were under the command of the Count of the Saxon Shore and the Duke of Britain. As a matter of policy the Romans entrusted the supreme civil and military power as seldom as possible to the same person. THIRD PERIOD.— Celtic and Teutonic. 30. Municipal towns were small republics. Scotland in a wretched condition till the 8th or 9th century. — The Roman forces and machinery of civil adminis- tration having been withdrawn, the British proviucials began to rule themselves ia their own way. This was not at aU difficult ; because the cities really governed themselves in the tioae of the empire, and the imperial power was chiefly fiscal and military. This observation is only strictly true as regards the southern part of this Island ; for there are no traces of any cities or ON THE LAWS, ETC. OF SCOTLAND. 27 municipal corporations of any importance in what is now Scotland till the 10th century. During four or five centuries after Britain ceased to be a Eoman province, Scotland must have been the scene of horrible bloodshed, anarchy, and confusion. Trade could hardly have existed, agriculture must have been in a very backward state, and a pastoral and warlike life was the common type of society. There happened, however, one great event which was destined more than any other to advance the civilization of the rude and barbarous peoples who dwelt north of the Tweed. This was the introduction, of Christianity. 31. Christianity introduced in the 5th and 6th centuries. — The Picts and the other Celts in Scotland up to a date much later than the departure of the Romans were Pagan in their national religion, and worshipped many gods. Doubtless the doctrines of the Christian faith were known at an early period in Britain, but the southern Picts, or those on the south of the Grampians, were not con- verted to Christianity till a.d. 412 ; nor the Picts of the north till a.d. 565 ; nor the Strathclyde Britons, whose capital was Dumbarton, and whose territories once comprehended Northumberland and Westmore- land, till about A.D. 580. Moreover, the old Scots, or the Scots who first came jB:om the north of Ireland and settled in Argyle, and who were afterwards driven back to Ireland, were probably Christians before their emigration, and at the latest must have been converted somewhere between 446 and 503 a.d. or while they were driven into exile. From the 6th century, a rude and barbarous Paganism gradually gave .2 8 A COURSE OF LECTURES way before the higher truths and morality of Christian- ity, and the latter long before the reign of Malcolm Canmore had become the national religion. The early Scottish Church was monastic in its character for four centuries, and long carried on its work by the aid of missionaries, who, in the course of time, were spread all over the country, and, in some instances, early settled down among the people. It was independent of the Pope of Rome, had its fountain head at Zona, and afterwards at Dunkeld; and, beyond all doubt, greatly contributed to the civilization of the people by encouraging industry and agriculture, educating the higher classes, and inculcating the principles of truth, morality, and rehgion in the great body of the people. THE KINGDOMS OF THE STBATHCLYDE BRITONS, THE PIOTS, AND THE SCOTS. 32. RoTne's successors in Scotland. — On the with- drawal of the Roman army from Britain, the Strathclyde Britons, the Picts, and the Scots obtained the sovereign power in Scotland ; and these three ultimately united to form the modem kingdom of Scotland. THE STBATHCLYDE KINGDOM. 33. Its history. — It is not known when the kingdom of the Strathclyde Britons first came into existence. What we do know is, that for one hundred years after the departure of the Romans, there ON THE LAWS, ETC. OF SCOTLAND. 29 was an unceasing war between the Scots, Picts, Strathclyde Britons, English, and Danes. Most pro- bably the inhabitants of the Strathclyde kingdom were Celts who had occupied the southern parts of Britain, and had been driven west by the successive invasions of the Saxons and the Picts. At no time dpes this kingdom appear to have exercised any considerable influence on the progress of events in Scotland. Sometimes the Strathclyde kings acknowledged a kind of subjection to the kings of England, and at other times a scion of the royal Pictish race was seated upon the Strathclyde throne. Early in the 10th century this kingdom was conferred by the king of the Scots on the Tanaist or heir-apparent of the Scottish throne ; and in the latter part of it, the Tanaist as king of Cumbria performed homage to Edgar king of England. The Saxon Chronicle, A.D. 924, states that the king of Strathclyde reverenced Edward king of England as his father ; and elsewhere it is stated that, even as early as 756, the king of Strathclyde paid homage to the Earl of Northumberland and also to Ungust king of the Picts. The southern part of this kingdom, with the city of Carlisle, Tiltimately became part of England, and the northern of Scotland. 34. Its language, manners, customs, and laws. — The national saint and the language both point to a close connection between the Strathclyde Britons and the Welsh. The language spoken in this region down to very recent times was Celtic or Gaelic, and, I daresay, this tongue may yet be spoken by the natives in some of the outlying districts. Of 30 A COURSE OF LEOTUBES course, this latter fact may be explained by the occasional migration of some Highland families, but, as no general migration is known to have taken place, this circumstance would not be sufficient to explain the recent general use of the Gaelic in this region. I therefore infer that their laws, manners, and customs were Celtic ; and we already know that they adopted the Christian religion. They had a monarchical form of government, nobles or chief- tains, a public assembly for the determination of all matters of national interest, and a Christian priest- hood, who had been substituted in place of Druidical priests. The mass of the people were in subjection to the great landlords or chiefs on the basis of clanship. 35. Possibly the original inhabitants were conquered by the Caledonian Picts about the time of the Saxon invasion. — A suggestion has been made, and been accepted by some, that, while the Angles were establish- ing themselves in Bemicia and Deira, the Caledonian Picts obtained possession of the western side of Lanca- shire, and there founded a kingdom. It was called by the Scots the kingdom of Strathclyde, because its nor- thern extremity was on the Clyde. How far this is based on fact, I am at a loss to say. I think, however, that there is a good deal to support the hypothesis ; for, on the breaking up of the Roman empire, the Caledonian Picts were menacing, attacking, and often devastating this part of the coimtry, and at a later period the sons of the royal house of the Picts were sometimes elected kings of Strathclyde. Against this view I do not consider the Celtic tongue of the Strathclyde Britons as any objection ; because the speech of a conquered ON THE LAWS, ETC. OF SCOTLAND. 31 people is often far more enduring than anything else in their history, and frequently survives the language of their conquerors. THE KINGDOM OF THE DALRIAD SCOTS, OR IRISH. 36. The Dalriod Scots arrive in Scotland. — In A.D. 258, as already stated, a colony of Scots from Ireland settled in Argyleshire and the adjacent islands. Reuda was the name of their leader, and after him they were called Dalreudini. This first colony retreated to Ireland about 440, and a new colony was established ia Argyleshire and the neighbourhood under the three sons of Ere in 503, and their territory, which was barren and mountainous, was called Dahlada. The Irish list of the kings of DaJriada makes Loam the first king, and his brother Fergus his successor ; but the Scottish list makes Fergus and Loam reign together, the latter in the north, and the former in the south, and calls Fergus the first king of the whole of Dabiada, which, as a separate kingdom (503-843), never exceeded the limits of the present county of Argyle. 37. Aidan's homage to the Tdngs of Ulster released. — Aidan, son of Galbran, reigned 24 years (575-599). He was the most celebrated of the Dahiadic kiags. He is called by Bede " rex Scottorum in Britannia " (603), and, in the Albanic Duan, "king of the extended territories." Certainly he did extend his kingdom more than any of his predecessors or his successors, 32 A COURSE OF LECTURES until Kenneth ascended the PictisH throne. As the evidence of his supremacy he received holy unction from St. Columba at his coronation. In 590 Aidan was present at the famous Council at Drumkeat in Ulster. This Coiuicil was composed of the kings, peers, and clergy, summoned by Aid king of Ireland, and is mentioned by Adamnan. At this council Aidan pro- cured the remission of aU homage due by the kings of Dahiada to the kings of Ireland. Hitherto he was a "regulus" or subordinate king, but henceforth, so far as Ireland was concerned, he and his successors were to be free and independent rulers over their own people. He suffered a great defeat at the hands of Adelfrid king of Northumbria ; and Bede says that thenceforth no king of the Scots had dared to fight with the king of the Angles to his day (703). 38. Some incidents as to subsequent Dalriadic kings. — Donald Brec, son of Eocha-Bruidhe, reigned twelve years, and was slain in 642 by Hoan king of the South Britons at Fraith Cairon. Adamnan says that Donald Brec, the grandson of Aidan, was defeated at Bath (Moy-Rath) by Dumnail, grandson of Amurec. This latter battle was fought in Ireland, and was brought about by the miu-der of a king of Ireland by Congal Claon king of UUah. Donald Brec was Congal's aUy. He was also defeated at several other places, and particularly at Glen Mureson in 638. Donald was singularly unfortunate, and his reign was as calamitous as Aidan's had been fuU of glory. The last of the line of Fergus was Malduin, who reigned fifteen years (665-680). His successor was Fercer II., who reigned twenty-one years (682-703). ON THE LAWS, ETC. OF SCOTLAND. • 33 The two royal houses of Loarn and Fergus fought against each other with the greatest bitterness, and sometimes the one and sometimes the other occupied the throne. At last both families were exterminated, and a- stranger took their place on the Dalriadic throne. This occurred in the middle of the 8th century, at which time the Dalriadic kingdom under the old Irish royal family comes to an end, 39. Frequent quarrels and slaughters for the Dalriadic kingdom. — According to one Hst, called the Latin, there were twenty-four Dalriadic kings from 508 to 843 ; but the Albania Duan, written in the reign of Malcohn III. (1050-1093), enumerates thirty-four. Their biographies, of which I have given some extracts, are not at all interesting. They are little more than the repetitions of quarrels and slaughters of the heirs of Fergus and Loam for the supreme power, and occasional contests between them and their neigh- bours. Even although they were reliable they have no great bearing on our subject ; for modern Scottish civilization and constitutional and legal progress are not derived from Celtic but Teutonic sources, and the DaJriadic kingdom had no great influence on the subsequent history of Scotland. As to the early religious development of our country, this was mainly Irish; for the early Scottish Church was derived from Ireland, and for several centuries was essentially based on the Irish model. 40. The Dalriadic kingdom elective, and adopted the law of tanistry.—'Fram what has been said as to the events of Aidan's reign, it is clear that till 560 the BO-caUed kings of Dahiada were nothing more than the V 34 A COTTRSE OF LECTURES chiefs or leaders of a small colony of Irish who had settled in and about Argyleshire, subordinate ; to the kings .of Ulster. After that date the chiefs of Dalriada were invested with sovereign power, and, so far as can be ascertaiued, the kingdom was hereditary, and brothers were preferred to sons in the succession to the throne. It is well known that the chief monarchy, whence the Dahiads were an oflfehoot, was elective, ajid O'Connor says that this principle also applied to Dalriada. The Scoto-Irish seem, in fact, to have adopted the same form of government as existed in the parent state at their departure from Ireland. There was only one sovereign, and yet there were continual disorder, civil war, and assassination. " The Dlighe tanaiste," or law of tanistry, would appear to have been followed in Dalriada, as in Ireland, both in the election of kings and of chieftains, and this law rather increased than diminished the disorders which arose in Dalriada; for the rule of succession to the throne caused many rivals to contend with each other for the royal sceptre. The tanist, or heir presumptive, commanded the army in the reign of the sovereign, and succeeded to the throne on his demise. 41. Their judges and punishments. — Tradition supplied the place of written laws, and the adminis- tration of justice was entrusted to Brehons or judges. In Brehon law, compensation was called Eric ; that is to say, not only reparation, but a fine, ransom, or forfeit. Amongst the inhabitants of Alban and around Drumalban, and called the Albanian Scots, this fine was called "ero," and a scale of offences as ON THE LAWS, ETC. OP SCOTLAND. 35 irecognised by them is to be found in the Begiam Majestatem. A minute catalogue is there given of offences against the person, from the king down to his lowest subject, including murder as well as the breaking of a bone or a finger. The office of Brehon was hereditaiy, and a piece of arable land was annexed to it. When performing his judicial duties the Brehon sat on a hillock, or heap of stones, or turf, or in the middle of a bridge, and the litigants themselves pleaded their causes before him. This sitting in the open air in the administration of justice was practised by the Druids, and in the " Tings " or Courts of the Scan- dinavians, in their legislative and judicial assemblies ; by the early Romans in the senate ; and by the Athenians in the Ecclesia. For a great length of time the baron-bailee, who was the Brehon's successor, dispensed justice amongst the Scoto-Irish on a moot hill, or eminence, and generally on the bank of a river and near a sacred edifice. 42. Their marriages. — When the DaJriadic king- dom was established by the second colony of Scoto- Irish, Christianity had made considerable progress aimongst their brethren in Ireland, and therefore polygamy must have been rare amongst the poorer colonists. How far their chiefs and great men had adopted monogamy, I cannot say. Amongst the Dalriads presents or dowries were given to husbands on their marriage ; and, in this particular, they differed from the Picts. 36 A COURSE OF LECTURES THE CALEDONIAN OB PICTISH KINGDOM. 43. Extent of the Pictish territories from the Christian era till the Picts and Scots combined. — Tacitus tells us tliat tlie Caledonians held all Britain north of the Tay ; Ptolemy gives Loch Fyne as their western boundary ; and Dio ^ves the Antonine Wall as the boundary between the Eoman provincials and the Mseatee. About a.d. 170 the Caledonians broke in upon the Vespasian province, and seized all the land to the Firth of Forth. Bede gives the Clyde as the . Caledonian boundary line, and says that the Dahiadic kingdom had been incorporated into Pictland. He wrote his history in 732. In 425 or 426, according to Gildas and Bede, the Picts seized the whole province of Valentia up to the waU of GaUio between the Solway and the Tyne. GUdas, who wrote about 560, adds that in 446 the Britons attacked the invaders without success, and that the Picts remained in their new possessions. The truth is that the Picts took, and for a century held, all the territory from the Tyne to the Humber (448 to 547), and for a century and more almost exclusively occupied this region, and then retamed the half of it in all time thereafter. From 685 to 793 the Tweed wae> the boundary between the Picts and the Angles ; and in the latter year the Danes invaded Northumbria, where they caused great confusion. The result was that the Picts of Galloway took Wigton, Kirkcud- bright, and parts of present GaUoway ; and the Picts of the east of Scotland seized on Koxburgh and Dumfries. ON THE LAWS, ETC. OF SCOTLAND, 37 44. The Hebridian monarchy. — The Hebridian monarchy was founded about 28 B.C., and about 300 A,D. comprehended the Decaledones, i.e. the Picts on the north of the Grampian mountains. Up to this latter date the Vecturiones, or southern Picts, had a democratic government, but the Hebridian king extended his sway over the latter about A.D. 430. King Drust is said to have succeeded to the throne of the Picts in 414, and it is certaia that Brudi was king of all the Picts in. 568. From the commencement of the Hebridian monarchy till 414 may be -.called the poetical or legendary period, and comprehends the reigns of thirty-sis kings. The historical period begins with Kiag Drust the Great. 45. The history of the Pictish monarchy. — Drust the Great was the thirty-seventh king of the Picts, and reigned thirty-eight years (414-452). He is said to have fought one hundred battles. Although the number is no doubt exaggerated, yet his battles with the southern Picts must have been frequent and bloody. In his reign, or immediately before it, Christianity was introduced amongst the southern Picts. Nethan was the thirty-ninth king, and reigned twenty-five years (456-481). The Pictish Chronicle calls him the Great King of all the Picts, From Nethan to Brudi II,, the forty-ninth king, there is a barren list of kings, Brudi II, son of Meilochon reigned thirty-one years (557-581). In the ninth year of his reign he himself together with most of the northern Picts was converted to Christianity by St. Columba. Forteviot 38 A COURSE OF LECTURES was in his reign the residence of the Pictish kings, and "Fortren" is often used for Pictland. Till Nethan III. the sixty-second king nothing is worth relating here ; for the chronicles contain nothing beyond the names and the deaths of kings, and the invariable slaughters which characterised this epoch of European history. Nethan III. reigned fifteen years (712-727'). In 718 the monks of lona were expelled beyond Drmn- alban by Nethan ; and Cosmo Innes conjectures that this event arose from a dispute as to the proper day for the celebration of Easter. Drust VII. and Elpin I. succeeded Nethan III. and reigned together five years (727-732).- All that need be said about their reign is, that numerous battles arising out of the elections to the monarchy were fought. Indeed, it would appear that usurpations were fi^equent in the Pictish kingdom, and that these disputes as to the succession to the throne were often fomented by the Dalriads. UngT^st I. the son of Vergust reigned twenty-nine years (732-761). If we except Drust the Great, he was the most valiant and powerful of the Pictish monarchs, and his reign was full of enterprise and glory. Though cruel when tried by a modem stand- ard, he was no more bloodthirsty than the victorious kings of the age ia which he lived. In 744 he fought a great battle with the Strathclyde Britons ; and in 756 Edbert king of Northumbria having joined his army to tJngust's, Alcluid the capital of Strathclyde was surrendered on what would appear to be terms of homage. Ungust I. defeated the Dalriads on several occasions. Thus in 739 he ravaged their territory, ON THE LAWS, ETC. OF SCOTLAND. 39 and put in cliains Dungal and Ferachtlie two sons of Selvac the late king of Dalriada ; and in 743 a battle was foTiglit between tbe Picts and the Dalriads, in which the latter were utterly defeated. From this date the race of the old Dahiadic kings comes to an end, and the Pictish royal house takes their place in Dalriada in some kind of subordination, to the Pictish throne. 46. The old Dah^iadic kingdom destroyed by Ungust king of the Picts, and the Picts and the Scots united by Kenneth the son of Alpin. — Murdac the son of AmbkeUach began his reign of three years in 736. In 739 the Dahiadic kingdom was totally destroyed by Ungust, son of Yergust, king of the Picts ; and Ungust wasted the whole of Dalriada. Sometime afterwards Talorgan the brother of Ungust routed Murdac, and slew many of his followers ; and in 743 Ungust again ravaged Dalriada. After this latter date the history of Dalriada ceases in Tighemac and the Annals of Ulster. What really took place at this time as to the Dalriadic throne is hidden in impenetrable darkness, and the history for a whole, century is almost un- known. Aod-Fin was made king in 739, but who he was, or by whom he was placed on the throne, or for what reasons, we are absolutely ignorant. The most probable solution of the difficulty involves a complete rejection of the old popular theory of the total destruction of the Picts, or even of their nobles. From the Annuls of Ulster it is clear that till 811 there were petty kings of Argyle, and that Kenneth, who was the son of Alpin, and also the king of 40 A COURSE OF LECTUKES the Scots, ascended the Pictish throne in 843 ; and that, in noticing the death of Kenneth in 857, both Tighemac and Carodoc of Llancom refer to him merely as " the king of the Picts." Kenneth's earher and smaller kingdom in fact becomes merged in the larger and later title. This was qmte natural, and is what is now supposed to have taken place as to four or five of the Dakiadic princes whose names appear in the lists of the kings of the Picts, and whose reigns belong to periods nearly coincident with the reigns of the kings of Pictland. The name of Kenneth's paternal grandfather is unknown"; but Kenneth him- self claimed the Pictish throne through his mother. Probably he succeeded to the throne in consequence of the internal dissensions, and he may in point of fact have been the nearest heir of the Pictish kingdom. From the accession of Kenneth to the Pictish throne, the tendency to an hereditary kingdom becomes more and more decided, and of course would be strengtTiened by the union of the two crowns. 47. Character of the Pictish kingdom. — The monarchy was elective, and the kings were chosen from a royal race. Dio, Hb. 76, says that the govern- ment was almost democratic, and there can be • no doubt whatever that the Pictish kings were elected by the people, and were often deposed^ aiid even sacrificed, by their subjects. It would also appear that brothers succeeded brothers, and not sons fathers. When there were two princes who appeared to have equal claims to the throne, we are told by Bede that the one who was descended from the female line was ON THE LAWS, ETC. OF SCOTLAND. 41 preferred on the ground of his having better blood ; but notwithstandiag this preference of males descended from females of the royal family there is not a single instancie, of a woman reigning in Scotland till after the disputed succession, when the rules of primogeniture and lineal succession by descent were firmly estabhshed in Europe. Adamnan states (II. 14) that the Pictish kings had a senate, and (II. 11) that the Picts had a race of nobles. Briefly then, the government of the Picts in. Scotland, like aU early governments, was a democratic monarchy, and the early kings chosen from a peculiar family were men of superior merit, rich in friends, retainers, lands, cattle, and slaves, and were little more than chiefs, like those in America in modern times. As every man had a voice in the general assembly of the tribe in the woods of Germany, and indeed everywhere in the early stages of society 'amongst freemen, so it was in the earliest and rudest times in Scotland. " De minoribus," says Tacitus in his Germania, " principes consultant ; de majoribus omnes." 48. Marriage of the Picts. — What Caesar says as to the southern Britons, Dio tells us of the Picts, namely, that they had wives in common. This, Montesquieu says, is a feature of pastoral society. Amongst the Picts there was no sacred ceremony in the celebration of marriage. When they wished to marry they made presents to their intended bride's father or guardian, and when the- marriage was to be consummated the bride made a present to her future spouse. Thereafter the parties themselves and their friends met together, and the father solemnly dehvered 42 A COURSE OF LECTURES the bride to the bridegroom, and then there was a marriage feast. FOURTH PERIOD.— The Sooto-Pictish Kingdom (843-1056). 49. Verge of authentic Scottish history reached.— During this period the darkness which enveloped Scotland for five centuries becomes less dense, and the dawn of our authentic national history is at last reached. In oiir next epoch we shall be able to avail ourselves of reliable materials ; but as yet we must grope along as best we can in the midst of a flickering twilight. I therefore propose to 'finish this epoch (1.) with a brief sketch of the lives of the early Scoto- Pictish monarchs ; and (2.) with some remarks on our early annals. 50. Sketch of the early Scoto-Pictish Jdngs. — Kenneth III. reigned in Pictland for sixteen years (843-860). He was a man of considerable talents, and had ruled in Dahiada for two years before he ascended the Pictish throne. In' 849 he transported the relics of St. Columba from lona to Dunkeld. He invaded England, and burned Dunbar and Melrose which had been seized by the English, or the Danes of Northumbria. On the other hand the Britons of Strathclyde burned Dunblane, and the Danes devas-- tated Pictland to Gluny and Dunkeld. He died in his palace of Forthunir-tabacht near the river Earn, south of Perth. This palace was the chief residence of the Pictish kings after the recovery of Lothian in 684. Before that time, as we may learn from Adamnan, ON THE LAWS, ETC. OF SCOTLAND, 43 they resided at Inverness. This king and all his successors, tUl Edgar's death in 1098, were buried at lona, which was the royal burying place tiU Dun- fermline was founded by Malcolm Canmore and his queen St. Margaret in 1070-1093. Donald I. succeeded his brother Kenneth III. and reigned one year. His reign is important from a statement in the Pictish Chronicle that he confirmed the old laws which had been granted by Aod-Fin to the Dalriads. What these laws were is not exactly known, but it has been plausibly conjectured that they were the Brehon or old Irish laws. Constantino II. the son of Malcolm III. was the next king, and reigned twenty years, or, as some say, sixteen (864-884). In 866 Olave the leader of the Danes and Norwegians in Ireland ravaged Pictland, and carried away hostages and plunder ; but having returned a few years later he was slain in battle. The .Norsemen afterwards (874) invaded Pictland, defeated the Picts with great slaughter, and remained a year in their coimtry. This reign was very disastrous to Scotland ; and the Picts seem to have been enervated by the long peace which they had enjoyed, and con- sequently were unable to contend with the hardy Danes, who were inured to arms and perpetual war. Not only were the Picts defeated in battle by the Danes, but they suffered great territorial losses at the hands of the invaders. Indeed,, somewhere between 864 and 882 the Norwegians had seized Orkney, the Hebrides, the shires of Sutherland and Caithness, and part of Eoss-shire, or in other words about a fourth of the Pictish kingdom. This 44 A COtTRSE OF LECTUEES was the result of many battles between the Norwegians and the Picts. Constantine III. the son of Ardh reigned forty years (904-944). The Chronicle of the, Picts informs us that the king and Kellach the bishop, along with the Scots, swore that the laTws and discipline of the faith, and the laws of the Church and evangelists, woTild be upheld. This compact was entered into on the HOI of Faith near Scone in 909, and was made, no doubt, in consequence of the differences between the Church of Rome and the Church of Scotland on various points of Church doctrine and practice. In 906 the Danes ravaged the kingdom. About 921 the Norwegians and the Danes of Ireland invaded North Britain with a great army. Constantine made an alliance with the North- Saxons or Northumbrians, and at " Timnore " gained a great victory over the invading hosts, whose leader was called Regiaald. Three of the divisions of the enemy's army were defeated with great slaughter, and the fourth under Reginald escaped and returned to Ireland. In 937 the great battle of Brunanburg was fought. Athel- stane had invaded Scotland by land and sea, and having ravaged the country retired. Constantine then formed a confederacy with Aulaf king of Ireland, the Norwegian prince of the Hebrides, Eugenius king of Cumberland, and many petty Norwegian and Damsh kinglets. The object of this confederation was to invade the territories of Athelstane ; but the design was frustrated by the English monarch, the allies were repulsed with great slaughter, and five kinglets and many celebrated chiefs fell in the battie.- In his old ON THE LAWS, ETC. OF SCOTLAND. 45 age Constantine resigned his kingdom, retired to the monastery of St. Andrews in 944, and died in 954. Malcohn I. son of Donald II. reigned nine years (944-953). The Saxon Chronicle states that in 945 Edmund king of England, having conquered Cumber- land from the Britons, gave it to Malcohn on condition that he would do homage for it, and defend the north of England from the Danes, who were now regarded as the common enemies of both Scotch and English ; and war between the latter peoples thenceforth ceased for half a centviry. . Kenneth IV. the son of Malcohn I. reigned twenty- two years (970-992). He made war on the Strath- clyde Britons, whose kingdom after this king's reign disappears from history. With this king the Pictish Chronicle ends. Malcolm II. the son of Kenneth rdgned thirty years (1001-1031). It was in this king's reign that the feudal or military division of aU the land ia Scotland is absurdly said to have been effected. The Saxon Chronicle (1031) says that Canute king of England and Denmark entered Scotland, and Malcohn and Mulbeth and Temarc became his subjects. This is one of the grounds for the assertion that Scotland was subjected to English dominion. Much fighting took place between the Danes and the Scots on the north of the Tay, and the former appear to have sustained terrible losses about the middle of the reign of Malcolm II. The general result of the wars of this period saved the kingdom of Scotland from being made a dependency of Denmark. 46 • A COUESE OF LECTURES Macbeth reigned seventeen yeaxs (1037-1054), and was an able and beneficent king. He was slain at Lumphanan by Macduff for his cruelties upon the latter's wife and children. 51. The history of Scotland clear after 1056. — Malcolm III. ascended the throne in 1056, and as Scottish history is henceforth clear, I will now make the proposed observations on this period, and close the first epoch of our subject. OBSERVATIONS ON THE SCOTO-PIOTISH MONAKOHT. 52. The Icings were elective. — The list of the kings of the Scoto-Pictish kingdom during the period just concluded proves that the monarchy was elective, as, indeed, was the case throughout Europe in this age. Hereditary succession to the throne was not established in Scotland tiU the death of Macbeth, and its exact rules were not determined in Europe till Edward I. give his decision on the claLms of the competitors to the Scottish throne in 1292. For the support of the royal dignity the king had chiefly to depend on the revenues of his own private estates. In this period, however, there is a distinct recognition of the right of the king and his court to be maintained by the great landowners when the monarch was traveUiag through the country. 53. The Scoto-Pictish Jdngdom virtually governed hy great chiefs. — Coincident with the union of the Scots and the Picts, and the extension of the Pictish kingdom, the national council or senate ON THE LAWS, ETC. OF SCOTLAND. 47 must have been gradually approaching the form which it took in the epoch which we will consider in the next lecture. How it was then composed, and. what it did at first, we have no direct infor- mation ; but its duties and its members may yet be determined with no inconsiderable degree of accuracy. The chiefs of the clans or tribes by whom Scotland was then held were its members, who gave advice to the king as to matters involving peace or war, and acted as a royal councU in all disputes referred to them by .the king. In the age with which we are dealing legal proceedings are rare, and were carried on before the local chiefs in their own halls, or before the church dignitaries or their deputies ; and only in cases of great hardship would the king or his council be troubled with complaints against injustice and oppression. Nay more ; the chief of a tribe was as in- dependent in his own territory as the king in his patrimonial estates, and would not allow an interference with what he considered his imdoubted and sovereign rights. In short, at the time under review, Scotland was ruled by a large number of petty chiefe or heads of families; by a few territorial magnates, whose wealth consisted in large herds of sheep and cattle, and wio were surrounded by a large number of kinsmen, ready at all times to- do. their behests; and by one supreme chief who was elected by the powerful men in the state in consequence of his royal birth, his wealth, the number of his followers, and his ability to command the national armies. With such an un- 48 A COURSE OF LECTURES settled and rude state of society as existed in Scotland) from the departure of tlie Eomans from. Britain till the eleventh century, settled rules of succession to the; throne or even to individual property are impossible. The whole framework of the commonwealth was based , on force. Against those who were disobedient or traitors to the constituted authority, the only effective means of punishment was the judgment of fire and sword, by which the offender's estates were wasted by a powerftd neighbour, who frequently received from the king a share of the devastated property as a reward for his services. 54. — The primitive population modified hy invasions from the North. — The great employment of the people- in those days was war, and invasions were being con- stantly made into Scotland by the Scandinavians of the North. These hostUe incursions deprived the Scoto- ■ Pictish king of a large portion of his territory, and brought about considerable modifications in the popula- • tion of the eastern parts of Scotland, and, in fact, of the whole country. The Scandinavian rulers in the North were as independent in the districts they acquired as the king of the Picts in his ; and in 920 Sig\ird added Caithness, Sutherland, and part of Ross to his earldom of Orkney, and this earldom was even farther extended southwards at a later period under Thorfinn. On Thorfinn's death (1074) the Norwegian supremacy received a severe shock, and his successors, one by one, had to submit to the king of the Picts. Maormor was long the title of the great chieftains ctf the North, and we have even Maormors of Angus, Argyle, and Moray. The name or title seems to be equivalent to ON THE LAWS, ETC. OF SCOTLAND. 49 the Saxon "Thane" or Scandinavian "Jarl." The Maormor of Angus was not reduced to subjection to the Scottish kings till the reign of Kenneth lY. ' 55. The Christian Church : Its wealth and contributions to the national civilization. — The father of Ismg Duncan, who reigned from 1031 to 1037, was the son of Crinan the abbot of Dunkeld, who was married to Bethoc the daughter of Malcohn II. This marriage between the king's daughter and an abbot has given rise to much misapprehension ia the minds of those who are not aware of the high position which ecclesiastics had already attained in the state, and that, till the decree of Pope Gregory III. (1074), HA .^ aU the clergy might marry, and that monks were \\ \ allowed to marry till the Council of Rheims in 1148. \J By the eleventh century the Church of Scotland had become richly endowed by the generosity of its members, and the brothers and sons of kings eagerly sought the great benefices which were at her disposal. Some abbacies were richer than bishoprics, and in dignity mitred abbots were the equals of the bishops. Whatever may be said in condemnation of the corruption and venahty of the Church at a subsequent period, it is nothing more than justice to state that the higher clergy of this period throughout Europe were the scholars, statesmen, and most enlightened land- lords of the age. 56. Tenure of land in Scotland anciently tribal. — Amongst the ancient Germans the arable land belonged to the tribe and not to the individual, and amongst the ancient inhabitants of this country the same ■ rule apphed. The pasture lands, as was almost E 5,0 A COURSE OF LECTURES _ within recent times the case in the Highlands 6f Scotland, were common to the people in the district ; and individuals were wealthy in proportion to their flocks and herds. Istand Landnamabok gives some interesting particulars conpeming the settlement of a barbaric colony among the Norwegians of the ninth century, thus supplying an account of what must have been true as to the people in Scotland at the same time. He says that the people of this colony had flocks of sheep and swine on the mountains, and kept a few horses and cattle near their houses. Many were rich ; the poor were industrious ; and all were equal in the national council. The rich had summer and winter residences, the former on the hiUs and the latter sheltered in glens. These houses of the great became the centres of little towns, which, in the course of time, rose to great and important cities. 57. Name, of Scotland not applied as now till 1020. — The modem names of Scotland and Scotch- men for the north of Britain and its inhabitants were unknown until about the year 1020. They were appHed by the later Celtic writers to the Plots and their country, and not to the old British Scots of Bede. These British Scots had for several centuries been called Gatheli and Hebemeses. None of the inhabitants of Scotland were known as Scots from 740 to 1020 ; and the alleged conquests of the Picts by the Dalriads is a delusion of the Irish monks of the eleventh century, unsupported by any credible authority. The Pictish Chronicle ends in 992, or a century and a half after the supposed conquest, and the exact words used by this authority are these : ON THE LAWS, ETC. OF SCOTLAND. 51 ^'Victoria autem a Pictis est nommata quos, ut diximus, Kinadius delevit." This refers to an account which does not now exist, and taken plainly and with- out reference to a supposed fact need not be translated with a stronger meaning than this, namely, that Kenneth put an end to the Pictish kingdom as it had hitherto existed. Besides, cotemporary authors give no support to the alleged conquest, e.g. Nennius, King Alfred, Asser, and Tighemac. I do not think that the native language spoken by Kenneth Macalpin affects the question here discussed ; because a king's mother tongue need not be the same as his people's. Moreover, the Picts referred to by the English authorities of the twelfth century are most probably a body of Pictish colonists who had taken up their abode in Galloway. Down to the twelfth century the lords of Galloway were only feudatories, and really independent of the kings of Scotland. 58. Sum/mary. — By way of introduction to the lectures which are to foUow, I have told you from the most reliable sources what we know of our primitive ancestors ; indicated the general results of the Eoman invasion into Scotland ; described the state of affairs which happened after the departure of the Eomans to the dawn of our authentic history ; and pointed out the various steps by which modem Scotland was formed into one independent and powerful kingdom. We find that great rudeness and barbarity existed amongst our ancestors tiU. the end of the epoch which we have been considering; that Roman law and civiliza- tion had not, directly, been very powerftd in influencing our laws and legal institutions ; and that the manners 52 '^ A COURSE OF LECTURES and customs, and also the Christian notions of religion and morality, of the great body of the people were Celtic. ON THE LAWS, ETC. OP SCOTLAND. 53 LECTUEE II. PEOM THE INTRODUCTION TILL THE DECLINE OP FEUDALISM (1057-1406). SECOND EPOCH.— NORMAN-SCOTTISH. ODTLINE or THB GREAT HISTORICAL EVENTS DITRING THE EPOCH. 59. Results of Norman Conquest for Scotland. — Malcolm III. succeeded to the throne in 1057, and, having reigned twenty-seven years, fell, during the reign of William Eufus, in a skirmish before Ahiwick Castle in Northumberland (1084). In his reign William the Conqueror invaded England, and was crowned in 1066 ; and the feudal laws of Normandy were soon afterwards introduced into England. The Norman Conquest produced important results for Scot- land : (1.) It drove the Saxon princes from England into this country, and caused Malcohn to take up arms against WiUiam in an attempt to restore the Atheling, his brother-in-law, to his English possessions. Malcolm was defeated, agreed to give hostages, and do homage for his own territories in England. (2.) It brought a large number of Saxon refugees from the Enghsh to the Scottish court, and gave rise to much discontent in Scotland in consequence of their receiving grants of 54 A COURSE OF LECTURES land from Malcolm, (3.) Intercourse with the culti- vated Normans raised the standard of civilization and refinement in Scotland. 60. Beign of David I. — David I. reigned twenty- nine years (1124-1153). He was defeated by the English in the battle of the Standard in 1138, and the war was ended in the following year by his being left in possession of Northumberland, Cumberland, and Westmoreland. David greatly promoted the civilization of his country by founding religious houses, which were then the chief seats of learning and the liberal arts in Scotland and the centres of industrial and agricultural activity. 61. William I. did homage to Henry II. — William I. the lion succeeded to the throne in 1165, and reigned forty-nine years (1165-1214). In 1178 arose a dispute with the Pope in regard to the nomination of a bishop to the vacant see of St. Andrews. The Chapter elected a distinguished Englishman, and was supported by the Pope in its nomination ; but the king, whose nominee ultimately succeeded to the bishopric, appointed his own chaplain to the vacancy. His wars with the king of England were less fortunate than his disputes with the clergy ; for, having made a vain attempt to get restitution of Northumberland from Henry II., he invaded that province. He was made prisoner, and compelled, as the price of his release, to do homage to the king of England for his whole kingdom. Richard I. renounced this right for 10,000 merks. 62. Alexander III. defeated Jdng Haco : the Hebrides and Man ceded to Scotland. — Alexander III. ON THE LAWS, ETC. OF SCOTLAND. 55 reigned tMrty-seven years (1249-1286). The early years of his reign were a series of struggles between adverse factions, which contended for the regency. In 1263 Haco king of Norway invaded Scotland. After punishing the earl of Ross and other chieftains for their savage excesses in the Western Isles, which were then under the dominion of Norway, and compelling the Orkneys and adjacent mainland to pay tribute, the king of Norway anchored the greater part of his fleet in the Clyde. Having lost many ships in a tempest, he landed a strong force near Largs, and was attacked and defeated with great slaughter by the Scots. A peace was afterwards concluded between Norway and Scotland, and the sovereignty of the Hebrides and the Isle of Man was ceded by the former to the latter kingdom. Alexander's daughter Margaret was married to Eric king of Norway, and dying in 1283 she left an infant daughter, the Maid of Norway. Alexander's death in 1286 made this princess the direct heir to the Scottish throne. A regent was ap- pointed, and amidst plots and counter-plots the Maid of Norway died on her way from Norway to Scotland ; and the country was obliged to undergo the miseries attending a competition for the crown amongst rivals, who were ready to sacrifice the honour and glory of the country in order to realize their own schemes of ambition. 63. The disputed succession referred to Edward I. To prevent a long and fierce controversy, the estates of Scotland asked and obtained the advice and mediation of Edward I. The competitors lappeared before the English king, and aU, with the exception of 56 A COURSE OF LECTURES Baliol, Bruce, and Hastings, withdrew their pretensions. The legal contest merged iato these two questions : (1.) Was the crown of Scotland divisible amongst co- heiresses and their descendants 1 and (2.) Ought the descendants of an elder daughter to succeed before those of a younger 1 Baliol was the grandson of the elder daughter of David I., and Bruce and Hastings were the sons of his younger daughter. A commission of a hundred and four persons, named by Edward I., Baliol, and Bruce, was appointed to examine the claims of the competitors, and report to the English king. Soon afterwards the regents of Scotland surrendered the kingdom into Edward's hands, and the English king came to Scotland and compelled persons of all ranks to sign the roUs of homage. 64. His decision in favour of Baliol, without' prejudice to his rights as Lord Paramount. — The final judgment was given on 17th November 1292, when Edward in the great hall of Berwick Castle decided that " John Baliol should have seizin of the kingdom of Scotland," and protested that the judg- ment he had thus given should not impair " his claim to the property of Scotland." On the 19th, the great seal of the regency was broken, and the fragments were deposited in the Treasury of England,, "in testimony to future ages of England's superiority over Scotland." Baliol the next day swore fealty to Edward at Norham, and on the 30th was solemnly crowned at Scone, and before the end of the year did homage for his kingdom at Newcastle. 65. Baliol revolted, and Edward seized upon Scotland. — ^Very soon, however, Baliol, at the insti- ON THE LAWS, ETC. OF SCOTLAND. 57 gation of his nobles, renounced his allegiance to Edward. The English monarch invaded Scotland, reduced aU. the principal fortresses to his power, and compelled the Scottish king to abdicate and resign his kingdom into his hands. On the 7th of July 1296, an English parliament was held at Berwick, where most of the Scottish clergy and laity took the usual oaths of fealty to Edward, and the supreme authority was entrusted to a governor, treasurer, and justiciar. 66. Wallace defeats the English, hut is at last put to death. — At this crisis of the national history Wallace appeared on the scene. He raised the standard of revolt, and the people, conquered yet not whoUy subdued, gathered around him. as the national deliverer. Victory followed victory ; and the English troops were forced to evacuate Scotland. Thereafter Wallace assimied the title of Governor of Scotland ; envy and disaffection broke out in the ranks of the nobles ; the patriotic army was utterly routed at Falkirk, and Edward I. was again master of the kingdom. The Scottish barons obtained peace by a capitulation ; and Wallace, the great popular hero of Scotland, was betrayed to his enemies, sent to London, condemned to death as a traitor, and hanged at Smithfield. 67. Robert Bruce defeats the English at Bannock- hum, and Scottish independence acknowledged. — The Scots again rose against the English, and this time with complete success. Robert Bruce, the grandson of the competitor for the Scottish throne before Edward I., became the champion and dehverer of his country. Under this intrepid leader the spirit of the 58 A COUESE OP LECTtfEES nation was thoroughly roused ; the English were attacked in every quarter, and once more driven out of Scotland. Bruce was crowned at Scone in 1306 ; and, defeating Edward 11. at Bannockburn on the 24th of June 1314, Hberated Scotland for ever frqm subjection to England, and secured the Scottish throne to himself and his posterity. The independence of Scotland was formally acknowledged in the Treaty of Northampton on the 17th of March 1329. Tdl the quarrels arising out of the disputed succession to the Scottish crown, a friendly feeling had long existed between the inhabi- tants of the northern and southern kingdoms of Britain, but henceforth for nearly four centuries they were almost at perpetual war with each other. In these contests Scotland was to suffer unspeakable miseries. 68. David II. taken prisoner, and afterwards ransomed. — David II. succeeded his father Robert I. in 1329, and died in 1370. He was four years old when his father died, and the government was entrusted to Randolph earl of Murray. Edward Bahol, supported by the English, was for a short time king of Scotland ; but, assisted by the French, who now first appear as the aUies of the Scots, David was restored to his throne. David subsequently invaded England, and was taken prisoner at the battle of Durham ; and after suffering captivity for eleven years, was ransomed by his subjects in 1357, and ended a turbulent reign in 1370. 69. Robert II. the jvrst of the Stuarts. — On the death of David II. Robert II. ascended the throne in 1370, and reigned twenty years. He was the son of ON THE LAWS, ETC. OF SCOTLAND. 59 WaWer the Steward of Scoliland, who had been mairied to Maijory daughter of Eobert the Bruce. He thus fouaded the celebrated royal house of Stuart. 70. The long regency of the Duke of Albany. — Eobert III. succeeded his father Eobert II. in 1390, and died in 1406. He was unfitted to perform his duties as king, and his brother the earl of Fife, afterwards duke of Albany, was, under the title of Guardia,n, appointed ruler both of the king and his kingdom. The duke almost uninterruptedly retained his more than regal powers for thirty-four years during the nominal reigns of his father, brother, and nephew, and died in 1419. He ruled the people with the cruelest tyranny, and was imitated, not restrained, by the feudal nobility, of whom he was the chief, in aU his oppression and despotism. The duke of Albany was succeeded by his son Murdoch as regent. Miu-doch had neither the talents nor the ambition of his father, and anarchy and con- fusion reigned supreme. 71. Oppression hy ih^ feudal lords: The battle of Harlaw. — Nowhere in Europe had the feudal aristo- cracy attained a loftier height than in Scotland. The power of the greater barons, which rendered them independent and often the rivals of their sovereign, was a soiu-ce of perpetual distiu-bance and disorder in the kingdom. Eobert I. when he attempted to diminish the vast territorial possessions of his barons by requiring every landholder to produce the titles of his estate, was boldly told by them that their swords were their charters. The battle of Harlaw, which was fought on the 24th 60 A COUESB OF LECrLrHES of July 1411 between the lowlanders and high- landers, is an important event in our history ; for it ended in the supremacy of the kings of Scotland over the Lords of the Isles. THE SOVBRBIGN. 72. The kingdom becomes hereditary : Parliaments a,re established and regents arise. — The kingdom was now an hereditary monarchy, a new hierarchical nobiHty was established, and the parHament, composed of the three estates of the realm, becomes an important ele- ment in the government of the country. The principle of primogeniture has been preserved inviolate, with shght exceptions, for eight hundred years in. the succession to the Scottish throne. But almost coincident with this principle a new feature in our government makes its appearance. I refer to the appointment of regents as substitutes for kings in minority, and guardians or regents for those who were permanently or tem- porarily incapacitated from discharging their royal functions. They were sometimes appointed by a pre- decessor and sometimes by the king himself; but in no case could such appointment be effectually made without the consent, express or imphed, of the Parhament. 73. The king's functions. — The king's ftmctions may be thus briefly summarized : He was generalissimo of the national forces ; he was the ultimate arbiter of peace and war ; he made treaties with foreign poten^ tates; he was the supreme judge of the realm; he ON THE LAWS, ETC. OF SCOTLAND. 61 was the general state prosecutor for crimes ; he had the right of granting pardons to all offenders agaiast the commonwealth ; he issued proclamations as to matters of public interest ; he could grant privileges to any of his subjects in the nature of monopohes ; and he had the exclusive power of coining for the whole kingdom. 74. His privy council. — ^As early as William I. in 1165, the king had a council to assist him in matters of government, and even in the passing of laws for the realm. This council is plainly referred to on many subsequent occasions, and merges in the king's privy council. At first it was chosen by himself at his own pleasure ; but on several occasions during this epoch hei was obhged to restrain his personal inclinations in deference to the wishes of his people or their repre- sentatives. This council had cognisance of the manner in which those who held the king's com- mission in the various offices in the state conducted themselves. 75. The kin^s high officers of state. — The high officers of state and the ordinary advisers of the king in all national affairs were the Lord Chief Justiciar, the Lords High Chancellor, Marshal, Constable, Admiral, Treasurer, Chamberlain, and Steward, and the Lords Justice Clerk and Clerk Eegister, These exalted personages were usually chosen from the nobles, who eagerly sought the humblest office connected with the royal person. The Lord Chief Justiciar was the highest judge in the land. He exercised all the judicial functions of the king in the royal domains, and had 62 A COURSE OF LECTURES exclusive jurisdiction in all pleas of the crown through- out the kingdom, unless granted to a lord of regality. These pleas were murder, rape, arson, and robbery. He was the king's deputy in legal affairs, and was occasionally superseded by him. He was the judge before whom appeals from the different sheriffs of the counties were brought. At first there was only one Justiciar, but by Robert III. c. 30, two were to be appointed, one for the north and one for the south of the Forth. The Lord Chief Justiciar in Scotland never had so great powers entrusted to him as had been conferred upon the corresponding high functionary in England ; and as the duties of the Great Justiciar in England gave way before the Lord High Chancellor, who became the highest judicial officer in England, so the same result occurred in Scotland. This probably arose from the Chancellors being frequently churchmen in early times, and also the most learned persons in the kingdom. At first the Lord High Chancellor managed the king's chancery, or the office from which all royal writs, charters, and the like issued ; and in the next epoch which we will have to consider he also acted as supreme judge. The Lord High Steward was the head or superin- tendent of the king's household. The Lord High Chamberlain once had important duties to perform as to the king's revenue, and also as to the supervision of the royal burghs ; but very soon he had little weight or concern in the duties of government. The Lords High Constable and Marshal had ON THE LAWS, ETC. OP SCOTLAND. 63 the supreme command of the king's forces in his absence, and when the king was himself present with his army, as was ordinarily the case in this period, they had the command of the cavalry and infantry respectively. Both these officials performed judicial duties in connection with their military offices. The Lord Justice Clerk, as the name impHes, was originally the assistant of the Lord Chief Justiciar, who it is to be feared knew much less about law and legal proceedings than his subordinate. It is therefore not wonderful that the Lord Justice Clerk should emerge at a later period as the second highest judge in the realm. The Lord Clerk Register was the official , who recorded the consultations of ParKament and the judgments of the king's justiciars ; but he never rose to high judicial office like the Master of the Rolls in England. 76. Origin of modern Scottish nobles: The new nobility and feudalism. — Wealth is primarily the origin of all power and influence in the state in early times, and an hereditary nobility independent of riches was almost unknown in any ancient government. Unless as regards the royal races it was wholly absent in Greece ; and unless as regards a limited right or chance of election to the senate it was unknown to the republic of Rome, and did not exist at all under the Roman Emperors, whose senators on their death did not convey to their children any right to a seat in the imperial senate. Wealth and distinguished services to the state as generals, statesmen, and authors were in ancient times the reasons for pubHc 64 A COUBSE OF LBCTUBES esteem and ofl&cial rank. This was also the state of matters in the olden times in Scotland, whether in the lowlands or the highlands. The introduction of feudalism into Europe totally changed this condition of things ; and large territorial possessions fell into the hands of the feudal barons, who were really in- dependent princes within their own domains. The unsettled condition of Scotland made the burdens of feudalism very heavy and grievous. 77. Feudalism introduced into Scotland. — The kings of Scotland borrowed the principle of feu- dalism from their English neighbours, and many Normans were not slow to avail themselves of the generous gifts of land by the Scottish kings. The native Scots loudly complained of heavy burdens under their new masters, and large numbers of Normans were obliged to return to England; but the feudal principles which the southern strangers had brought with them into Scotland were left behind, and were adopted and improved upon by the king and by those Normans who remained in this country, and brought to perfection with aU their hardships, cruelty, and op- pression. Knowing when feudalism became a part of English poHcy, and also knowing that Scotland was then almost cut off from any intimate connection with the governments of the continent, was in close relations with England, and did not become the ally of France till the war for national independence, we may assume that feudalism was not a part of the Scottish constitution tOl the end of the eleventh centxxry. As an organ of the state, it was a vast system of government by which every person in the country from ON THE LAWS, ETC. OF SCOTLAND. 65 the lowest to the highest was connected with the rest, and by which, in return for grants of land, military service was to be given. 78. Feudal tenures become almost universal in . Scotland. — The germ of this kind of holding land is to be found in the necessities of conquerors in dealing with conquered territory, e.g. of the Romans ; and feudalism was forced upon all the peoples and races who succeeded to the inheritance of Rome in the west of Europe. In the course of time, and in con- sequence of the insecurity of life and property during the dark ages, the original native landowners who held their possessions free from aU feudal services were glad to obtain the protection of a great military lord in exchange for homage and consequent duties. In early times military service was the essence and soul of feudalism; but money was afterwards accepted in satisfaction of services in the field. Ultimately, and as soon as standing armies became fixed institutions in modern Europe, it was found convenient by the king's tenants to relieve themselves from feudal obligations, and throw the burden of the national army upon the people in general. 79. The fundamental notions of feudalism. — (1.) Homage was paid by the tenant to his lord, and was a promise to the effect that he would aid his lord on all just occasions and against all his enemies. This engagement was made on his knees, and with his hands within his lord's hands. (2.) Protection was promised by the lord to his tenant. This was a reci- procal obligation, and almost invariably accompanied by a grant of land for life or some shorter term by the 66 A COURSE OF LECTURES lord td his vassal. The close resemblance in several respects between the Eoman relationship of patron and client is worthy of being noticed. 80. The sovereign was the head of the feudal hierarchy. — The sovereign was at the head of the feudal hierarchy, and the fountain of honour and justice ; and his court, which was the highest in the kingdom, was attended by his own vassals alone, and ultimately became the parhament of modem times. In hke manner the great feudal lords and other freeholders had their own coiirts, and exercised all the functions of government within their own territories, in subordination of course to the highest or supreme courts of the country. These functions were both judicial and legislative. 81. The Icing's army in feudal times. — It is difficult to say what in feudal times was the greatest strength of the king's army, which, as we know, was composed of the king's mihtary tenants and their sub-vassals, but about the time under consideration it has been estimated at 40,000 men. At Halidon HiU, in 1333, the Scottish forces amounted to nearly 15,000. The king's feudal tenants were bound to serve in the royal army in a fixed proportion to the land or knight's fee they held from the crown, and in aU his wars, for forty days a year free of aU expense, and defend the nation against the attacks of enemies at all times. This last duty was incumbent on all the members of the community, and various regulations were passed for compelling the attendance of aU the king's free subjects at " weapon-shawings," in presence of the sheriff, at stated intervals during the year. These ON THE LAWS, ETC. OF SCOTLAND. &7 military exhibitions were obligatory, not only upon all freeholders and their tenants, but upon all who had a certain amount of personal property. 82. General picture of the king and his nohles in the feudal period. — The Scottish king thus stood at the head of a powerful aristocracy, and was surrounded by many signs of pomp and grandeur. His revenues were chiefly derived from the rents of his own lands, the casualties derived from the feudal possessions of his tenants, and the fines and forfeitures of delin- quents. Of taxes or customs in the modern sense there were very few, and the country was too poor to be able to contribute much from its trade or commerce. The great potentates imitated the customs and practices of the royal palace ia its minutest par- ticulars, and a few of them rich ia . resources, e.g. the Douglasses, emulated and even surpassed the pomp and dignity of thaking. This- emulation proved fatal to some of the oldest families, and the nobles them- selves were not slow to aid the sovereign to pull down any dangerous subject whose lands were likely to be confiscated and divided amongst themselves. THE PARLIAMENT. 83. First known use of the term.-^ln this age we come into contact with the first steps towards the estabhsh- ment of " Parliament," which term is certainly not used ia Scotland earlier than 1289, and its earliest use on record is by Baliol at Scone in 1292. Previous to that date we have undoubted proof that several assizes were held by the king and Ms nobles and others of his 68 A COUESB OF LECTURES subjects ; and as these exercised duties sitnilar to those afterwards performed. by Parliament, I consider tiiat they afford evidence of a more ancient general council than our parliamentary records would entitle us to assert. In 1214 (Alexander I. c. 1) the words are, "with consent of his earls ;" c. 2, "with counsel ahd consent of the venerable fathers, bishops, abbots, earls, barons, and his good subjects ; " and c. 3, " with consent of his community." The statutes of 13 Robert I. are passed " with common advice and consent of all prelates and freeholders and whole community;" but it is clear to me that the persons present were the bishops, abbots, priors, earls, barons, and tenants in chief, and none else. 84. The enacting clauses in the early statutes. — In, the assi^ies of David II. (1330-1370) the words generally used are, "the king statutes;" but c. 17- has "the king, with the consent of the prelates, earls, and barons ; " and c. 27 and c. 29^ " the king, with the consent of the community of the realm." In 1346 there is an acknowledgment of the price of David's ransom by the Scottish ParHament, and an obHgation entered into by each of the three estates — clergy, . barons, and biirgesses — and also by certain individuals, for payment of the money ; and in the Parliament of 1347, c. 40, the words are, "at the instance and request of the three estates ; " and in c. 41 "with consent of the three estates." In the Parlia- ment of Robert III. c. 17 (1372), there is a declaration that the king promised to keep the laws then madei^ and it is stated that an oath to observe the same was given by "all and sundry prelates, proeurators of. ON THE LAWS, ETC. OF SCOTLAND. 69 prelates, and others of the clergy, all earls, barons, and burgesses present." Lastly, in 13 Robert III. (1400), the Parliament was held with "all bishops, iabbots, priors, dukes, earls, barons, freeholders, and burgesses holding of our sovereign lord in chief." The statutes of the Parliament were ordered to be read and published in all the jurisdictions of the realm and in all places where the people congregated. Vide {Statute of Eobert I. c. 34 (1319). 85. The chief elements of our modern Parlia/ments in existence. — All the chief elements of our modern Parliaments were now in existence. The great council of the nation was composed of the king's tenants va. chief, and its members were the lords spiritual and temporal and the commissioners of the citizens of the royal burghs. There was as yet no sub- stituted representation of the smaller freeholders of the king, and all the king's tenants who did not appear in the royal court at certain times of the year were Hable to be fined. In this august assembly for consultation, deliberation, and judgment the king sat in his chair of state, and was surrounded by his tenants or vassals, who occupied particular places of honour according to their titles and rank. The king's chief tenants alone, that is to say, those who held land from the sovereign, had the right to be present at the king's great court or council, and neither the ordinary- farmers or cultivators of the soil, nor the inhabitants of towns within the estates of the nobles or of the Church, had at this time any place in the national councU, and none of these were called upon to dis- charge any public duties unless through their superiors, 70 A COURSE OF LECTUBES who miglit be lords spiritual or temporal, holding land directly of the crown. 86. The Parlimnent was the supreme court.— On feudal principles, Parliament must have been the supreme court of Scotland, and it is proved to have been so in point of fact by the Treatise on the Baron Courts, in which it is laid down (c. 16) that, security being found, there was an appeal ia all cases to Parha- ment, but from Parliaiment there was no appeal, because it was the highest court in the kingdom, and was ordained for the remedy of aU courts under it. 87. -Proxies or procurators appointed. — That pro- curators or proxies were frequently appointed by most of the members of the Parliament there can hardly be the sHghtest doubt ; and that they were appointed down tiU. the Union, between England and Scotland is equally beyond question. It is quite true that in the assizes of David II. and Robert IL there are enactments that none except those elected should be in the king's courts ; but those regulations appHed to the practice of having councillors in the house in attendance on the members. 88. Commissioners from the royal hurghs. — We know that representatives jfrom burghs were first . mentioned in the English Parliament in 1264, and they are not likely to have been present at any Scot- tish Parliament at an earHer date. It may be that the burghs were not at first asked, or rather compelled, to send representatives to the great council of the nation, unless their interests were involved. Indeed, I rather think that this was the. leading idea which guided our early kings in deciding who were to be ON THE. LAWS, ETG. OF SCOTLAND. 71 present at any particular general council ; and this was probably the reason why the burgesses appear as con- senting parties in a treaty which was made with France ia 1295. It also appears that in. the Parlia- ment of 1326 the burgesses contributed toward the expenses of the national war of independence ; and by the power which the large towns had over the national resources, and from the increasing pecuniary difficulties of our sovereigns, the burgesses soon obtained the great influence which they stUl possess in the affairs of the nation. Nay more, I am inclined to beHeve that the burgesses never were, excluded from having a large share in deciding upon the destinies and policy of the country ; for the king's burgesses, in their collective capacity, were tenants in chief, i.e. held land within the burgh directly from the king. Most assuredly, as early as 1326, the burgesses are com- prehended under the free tenants of the king. Thus, in the indentiu-e as to the expenses of the war of independence, it Was agreed between " the king, earls, barons, burgesses, and all others his free tenants," that the king should receive the tenth penny of the lands and rents of his tenants for life. StiU fiuther, we need not be surprised that the royal burghs had no clear and definite place in the first great councils of the nation ; for, as will be seen, ' they had a parliament of their own, and they there decided not only questions of private right, but even made rules as to the succession of the burgesses, There were two such parliaments, one for the North and one for the South ; but the latter was the most important of. the two, and ultimately comprehended 72 A COURSE OF LECTURES both. Here thfe burgesses reviewed tbe decisions of tbe separate biirghs, and their president was the king's Lord High. Chamberlain. From the decision of the Lord High Chamberlain and the four Burghs of the South there was no appeal to Earliament. {Vide ParUament of David II. of 134 8 ^^^ Charters of four Burghs of 1405.) The words of the latter authority are wide and comprehensive, and are in strong contrast to the present limited functions of the Convention of Royal Burghs. They are in these terms, namely, that two or three burgesses of the royal burghs south of the Spey should compear yearly in the convention of the four burghs " to treat, ordain, and determine upon all things concerning the utility of the common weal of aU the king's burghs, their Hberties and courts." THE CHUECH. 89. Its great power and influence. — The Scottish Church of this age reached its greatest pitch of grandeur. It was immensely rich by the pious bene- factions of its members, and its ministers possessed almost aU the learning and science at the king's court,' and rose to places of the highest trust and emolument in the service of the state. Gradually priests began to settle' in the towns and on the estates of the great lords, and became more or less independent of the monastery or priory in the neighbourhood, and simultaneously bishops rose to power as the spiritual overseers of the secular clergy of a district or diocese, and the authority of the abbots and priors was restricted to their own lands and estates. ON THE LAWS, ETC. OF SCOTLAND. 73 90. It was remodelled on the princijdes of the feudal system. — The church system was greatly modi- fied by David I. and William the Lion, and was reduced by them to the order or pattern of the continental, or, as it may be called, the feudal system : that is to say, of archbishoprics, bishoprics, deaneries, chapters, and parishes ; and further, some of the great monastic societies were re-organised into the sees of bishops. The episcopal order thus became the heads of great feudal corporations, which held extensive and valuable landed possessions; and, by their learning and family influence, exercised a vast influence as pioneers of civilization in their respective dioceses. But the bishops were not at liberty to dispose of their lands without the king's confirmation ; because, says the Begiam Majestatem. (I. c. 23), their lands and baronies are a part of the alms of the Iring and his predecessors. 91. The coercive and voluntary jurisdiction of the Church largely increased. — ^Even in the tkne of the Roman empire the bishops were entrusted with judicial authority, which was exerdsed by.tliem after Rome was finally overtlirown, and their powers in legal matters were largely increased by the volufitaiy submission of disputants, and by the coercive power which they held as the upholders of morality and as the vicegerents of God on earth, and by means of the usurpations made by the Church on tiie civil power in the twelfth centiuy. Within smaller limits, but with no less authority, very great influence was exercised by the heads of the abbeys, which were founded towards the end of the previous epoch and 74 A COURSE OF LBCTUBES about the hegmmag of this. These abbeys owed their existence to the mtmificence of sovereigns and the great nobles. They had exclusivereligious jurisdiction within their own boundaries conferred upon them by the Pope, and, within the same hmits, also all the rights of the king as to crimes and civil actions. Thus the Chiirch became vested with extensive judicial powers both spiritual and temporal. She was the sole judge of marriage and dowries, legitimacy and bastardy, testacy and intestacy, advocation of kirks and rights of patronage, and even arrogated to herself the decision of all questions arising out of ordinary debts ia which the oaths of the parties had been interposed. THE ADMINISTRATION OP JUSTICE. 92. Courts baron. — The kingdom of Scotland was formed by the compulsory aggregation of many separate and independent states or communities, whose chiefs or princes were allowed to retain most of their royal prerogatives on the condition of their acknow- ledging the king of Scotland as lord paramount. When feudalism was introduced into the country no change was made in this respect, and many of the new nobility or great feudal lords, spiritual as well as temporal, had all the royal civil and criminal prero- gatives of the crown bestowed upon them by the king ; and every baron of the king, i.e. every immediate vassal of the king, had jurisdiction in his own court baron over all his tenants in all matters of a civil and in most of a criminal nature. Substantially then, ON THE LAWS, ETC. OF SCOTLAND. 75 what we have to deal with in the judicial administra- tion of the country during this epoch is a series of baronial courts from the king himself down to the hum- blest subject who held land directly from the king. Soon after the introduction of feudahsm, it was universally laid down by the lawyers, and was very nearly in harmony with fact, that all the land belonged im- mediately or mediately, directly or indirectly, to the sovereign ; and just as the king had a court composed of his tenants, so every feudal vassal of the king had his court, in order to support his dignity and enforce his rights within his own domains. To this general system, the royal burghs, which were erected oh the king's own territories, or had royal charters granted to them, were no exception. 93. The pleas of the crown. — Kb I have already hinted, the jiu-isdiction of the nobles and feudal tenants was not, in all cases, precisely the same as that which was exercised by the king. Thus, the crown pleas tried in any part of the kingdom naturally fell under the jurisdiction of the king's chief justiciar in his ayres or circuits throughout the countiy. But, as I have said, the great landowners were frequently raised, to the dignity of lords of regality, and thus had all the sovereign judicial powers conferred upon them ; and most of the large royal burghs had charters with similar powers granted in their favour. These rights were territorial, and, hke the lands to which they were attached, became hereditary in families and corporations ; and, unless justice was denied, the king's judges had no right to interfere with the administra- tion of justice within the territories of the lords of *7Q A COURSE OF LECTURES regality. The gi?eat lords and favoured burghs ajfi- pointed justiciars to discharge then" legal fiinctiong, the baronial lords pure and simple appointing stewards or bailies, and the magistrates of burghs exercisirig' their judicial functions in person with the assistance of their town clerk as assessor. 94. The sheriff^ courts. — The sheriffs of counties were invested with aU the ordinary jurisdiction of the king in their respective shires, but they had no original jurisdiction ia the crown pleaSj which were reserved to the king's chief justiciars or the regaHty lords,' who were supreme judges civil and criminal. The sheriffs' jurisdiction comprehended all pleas as to women's terce, homagie,'rehef, agreement for final con- cord, debts of laymen, bondage, inquisition of theft and murder, and in default of the barons " tulzies," strokes, and wounds. 95. The order of appeal from inferior courts.'^Th.e sherifife were the judges of appeal from the courts baron, and an appeal lay from the sheriff to the chief justiciar, and from the latter to the king in Parlia- ment assembled. But, for a time at least, all appeals from the burghs had to be taken to the Convention of Royal Burghs. In early times the right to hold a court was a rich source of revenue. I shall now state a few miscellaneous regulations as to the administration of justice in the present epoch. 96. General regulations against bribes, -c&g. — By 13 Eobert I. c. 21 (1319), judges were prohibited from, maintaining pleas or taking rewards in the king's courts, and offenders were to be punished at the king's ON THE.LAWS, ETC. OF SCOTLAND. 77 will, and lose office for life ; and (lb. c. 30) judges who maliciously adjourned their courts were to lose their goods and office, and their life was to be in the king's wiU. The statute of 2 Eobert I. c. 15, lays down the righteous principle that no man should judge in his own cause, and he who contravened this enactment was to be fined by the king, and give satisfaction to the injured party. Then, by 2 David II. c. 18 and c. 41, it is declared that, independently of the king's com- mand, justice should be equally done to all men ; and (lb. c. 30, 1347) sheriffe were ordered to do equal justice to all, and were held answerable for their deputies. This interference with justice by the king's orders was a cause of long and serious complaint. The granting of royal paxdons also led to much injustice ; and it was therefore enacted by David II. c. 44, that, unless the injured party was satisfied within a year and day of their date, no remissions granted by the king for crimes were to be valid. The right of repledging also appears to have been used for defeating the ends of justice; and by a declaration of Robert III. c. 14, this right was limited so that it was not to be exercised when the apprehension of the offender had been ordered by the king or his justiciar, e.g. in murders, prison breaking, theft, felony, excommunica- tion, and rebellion. 97. As to sheriffs, their deputes and clerks. — A statute of David II. c. 9, ordered sheriffs to hold courts every forty days, and commanded the bishop and earls of the sheriffdom, the sheriff, and lords of every village to be present ; and by a statute of an earlier date (Alexander II. c. 14) the sheriff or his 78 A. COlfllSE OF LECTURES deputies had to give their attendance at the coui^s of bishops, abbots, earls, and freeholders ; and ■ strange to say, Bobert III. c, 23, declares that the shenff- clerk was in future to be appointed by the king. 98. Trials by hot water or iron. — These were in existence ia the reign of WiLLiam I. (c. 15)i and were soon afterwards abolished or disused. According to the statute of William, if a person was challenged for theft or for having given ransom for theft, and proof thereof was given by the provost and three of the indwellers of a burgh, he was to underKe the law of water, and if three other witnesses gave similar evidence he was to be immediately hanged. Here we have the element of doubt introduced as the reason for this appeal to God for a decision. Elsewhere we are told that when a thief was taken red-handed he was hanged. 99. Singular battle. — This was another rude- way of deciding the rights of litigants. Yet the practice was not so absurd as some have imagined ; for it was not available when there was plain proof, and was used only in crimes of falsehood, and when the point in dispute was .doubtful. . Thus, if an action was raised for money borrowed and lent upon an alleged writ, aj\d on comparison of seals the defender was found to be wrong in his statement, judgment was given against him ; and, if the matter was doubtful, singular battle was allowed (Reg. Maj. III. c. 8). The accused might also dechne singular battle on the ground of bodily uxfirmity and old age (lb. lY. c. 3). See also the statutes of David II. c. 28 (1330), and Kobert III, . c. 16 (1440), as to persons who were obliged to fight, and in what causes. In the reign of Alexander II. ON THE LAWS, ETC. OF SCOTLAND. 79 single combat was not unknown in our judicial con- tests, but afterwards rapidly fell into disuse. 100. The first appearavice of the jury trial in Scotland : the primitive duties of juries. — The sheriifs of the counties were assisted by the freeholders who were suitors, sectatores curice. In the Quoniam Attachiamenta, we are told that these had to appear at the sheriff's head courts and be examined before they were admitted to act ; and if they pronounced a judgment which was afterwards falsified, i.e. laid aside as contrary to law, each was fined £10. Thus we have arrived at a time when the jury trial began to be developed. At first, the freeholders were the judges, and the sheriff or other judge merely the president or assessor ; but, in the course of time, the duties of judge and freeholders were almost reversed, or rather the powers of thefreeholders became greatly diminished. By a statute of Alexander II. c. 2, an inquisition upon a knight was to be made by an assize of knights of heritable freeholders ; and (lb. c. 3) no oath was to be received as to the loss of life, limb, or land, unless by faithful and good men iand freeholders by charter. 101. As to justice ayres. — By the statutes of William I. c. 2, the abbots, earls, barons, knights, and freeholders, who were charged by the king's precept, were bound to attend the justiciars ayres, and the justiciar and his deputies were alone to hold crown pleas, which, besides treason against the king, were murder, rape, robbery, and wilful fire-raising. By Robert III. c. 34, the justiciar in his ayres, which were held twice a year in different parts of the country, was to challenge the sheriffs and other judges of the 80 A COURSE OF LECTURES king ; and, if he fotind fatdt with them, was to suspend and report them to Parliament. 102. Sentence of death.— Bj Eobert I. c. 3 (1319), men conderoned to death shall not be redeemed saving the king's power, and the liberties granted to the kirk and kirkmen and other lords. This statute is re- affirmed by David II. c. 50 (1367), and deserves particular notice ; for it points out in what manner the idea of compounding for murder and other crimes punishable by death then existed. Formerly it was thought that compensation to the king or chief and the deceased's kindred was sufficient. Now a wider conception is becoming developed, namely, that the public at large have an interest in the pre- vention and punishment of crimes. The statute of David is in these terms : No remis- sion shall be given for wilful murder till inquisition. If murder has been committed, the king has promised not to give remission except by the advice of the general council as they shall think for the good of the realm ; and if manslaughter is committed by " chaud melee," the king will consult with the good council. Here may be seen the mode in which the modem right of the sovereign to grant remission for murder was once exercised. I now wish to draw your attention to our most ancient laws contained in Skene's collection, which comprehends (1.) the pretended laws of Malcolm II. ; (2.) the Eegiam Mayestatem, or alleged code of David II. ; (3.) the Quoniam AttaxMamenta of old, yet un- known date ; and (4.) the statutes of William I. down to Kobert III. (1165-1406.) ON THE LAWS, ETC. OF SCOTLAND. 81 LAWS CIVIL AND CRIMINAL. 103. The laws of Malcolm II. are spurious. — The alleged laws of Malcolm II. are rejected as forgeries by all competent authorities. Their history is un- known till the reign of James III., and their claim to authenticity is based on their being supposed to be referred to in the Statute Book {Vide 14 James III. c. 113). The objections to their authenticity are threefold : (1.) They contain assertions which are palpably false ; (2.) they refer to a state oflB.cial who had no existence in Scotland till long afterwards ; and (3.) several of their provisions are contained in sub- sequent statutes. Take these points in their order. First, ward and relief are said to have had their origin thus : King Malcolm gave and distributed aU his land of his realm of Scotland amongst his men, and for the king's sustenance all his barons gave the king ward and relief of the heir of every baron when he should die. There is no extraneous proof or the shghtest corroboration of any such distribution in the reign of Malcolm II., or even of Malcolm III., or in any period of Scottish history. Second, certain fees are said to be payable to the Constable ; whereas there was no such officer known in England tiU Henry I., and none in Scotland tiU after his reign. Third, the statutes which agree with subsequent enactments are these: c. 10 with William c. 7 ; c. 11, § 1, with Alexander II. c. 14, § 2 ; c. 11, § 2, is an inference of c. 11, § 1 ; c. 12, §§ 1, 2 in Quo. Atta. c. 12 ; and c. 13 is an amplified repetition of c. 11. These objections 6 82 A COtfBSE OF LECTURES are fatal, and accordingly I do not place any reliance on these spurious laws in this history. 104. The Eegiam Majestatem and Quoniam At- tachiamenta, &c. a/re authentic. — With regard to all the other specimens of our ancient, laws contained in Skene, I have to say that, whether they are really what they pretend to be or not, they undoubtedly show us some of the foundations of our peculiar jurisprudence, and, perhaps, without a single exception, give us the authentic records of our early laws. The JRegiam Majestatem belongs most probably to the reign of Robert I. (1306-1329), and not to that of David I. (1124-1153). A minute comparison with GlanvUle's Treatise, which was certainly written in the reign of Henry II. (1154-1189) has induced Cosmo Innes and other competent authorities to acknowledge that the jReg. Maj. is a copy of the EngHsh justiciar's work, altered to suit the local circumstances of Scotland, and to be interspersed with numerous extracts from the civU and canon law, and some well-known and genuine specimens of the laws of our early Scoto-Saxon kings. The earliest MS., which is preserved in the Advocates' Library, appears to be written in the fovir- teenth century. Both the Regia/m Majestatem and the Quoniann Attachiam^nta are referred to in the Statute Book in the reign of James I. (par. 1425, c. 10) and afterwards. Moreover not even the breath of sus- picion has ever been cast upon the statutes from WiUiam I. to Robert III. I therefore consider that I am entitled to avail myself of all the sources of our law which I have just enumerated, except the so- called laws or statutes of Malcolm II. ON I'HE LAWS, ETC. OF SCOTLAND. 83 105. The Regiam Majestatem : its contents. — The Regiam Majestatem consists of four books. The first treats of civil actions and jurisdictions ; the second, of judgments and executions ; the third, of contracts ; and the fourth, of crimes. In the first book we have an examination of the brieve of right, which was used for settling disputes about real property; and from which it appears that twelve men were required to give an unanimous verdict for the pursuer or defender. This verdict was obtained by withdrawing and supply- ing assizers till there was unanimity amongst them. There are also many regulations as to the guaranteeing of sales of land and movables, and these would appear to show that guarantees were almost universal in all sales. Then foUow several chapters on pactions, which are divided into real and personal, profitable and unprofitable. The second book begins with arbiters, and lays down what is even now the law, namely, that a decree arbitral shall be obeyed whether just or unjust, provided it is not contrary to the laws of the realm, and no deceit or guile has been committed by the arbiters. Next there is a minute description of the proceedings under a brieve of bondage and the modes of manumission. Amongst the latter are residence for a year and a day in a burgh, and for seven years on a master's land without challenge as to bondage. Moreover, it is expressly declared that a bondman cannot free himself by his own earnings, because all these belonged to his master. Then the widow's terce is discussed, and the causes for which it is lost, e.g. adultery, and the conviction of a husband for treason 84 A COURSE OF LECTUKES or felony. It is also laid down that parties intendiog to marry may make agreements before marriage as t^v the provisions which are to take effect at their respect- ive deaths. With regard to succession, we are- informed that a knight's son succeeds to all his father's lands ; and where the land is held in soccage, or free tenure, it is divisible between sons equally, and the elder shall have the chief messuage; and when daughters succeed, all of them receive equal shares. Testaments could then be made by all persons, and. the power of devolution was very extensive. If, how- ever, a man was married and left a widow and children; at his death, the former got one-third of his personalty, and the latter one-third ; and if only a widow, or only children, either received one-half; and the remain- ing one-third or one-half, as the case may be, was at the. disposal of the defunct. This is the law stiQ. There is also an important section in this second book to the effect that there was then no legitimation 'per subset., quens matrimonium. The light of courtesy is also, explained, and defined to be the right of a husband to the liferent of his deceased wife's heritage when a child of the marriage has been born and heard to cry. The third book treats of debts, buying, seUing, and pledging, and is well worthy of careful study. The fourth book deals with lesse-majesty, which was the name of the crime committed by one guilty of the king's death, or of sedition against the realm or in the king's army. As in all pleas of felony and sedition, the punishment of lesse-majesty was the loss of Hfe or limb according to the king's mercy, con- fiscation of the offender's movables, and the offender ON THE LAWS, ETC. OF SCOTLAND. 85 and his heirs were perpetually disinherited from the offender's lands. Theft was then severely- punished; and, verifying for once a popular notion now exploded, a man who fell from the gallows was freed, and the hangman fined ! At the end of this work is a list of assythments, but these are not thought by Skene to be authentic, and afford Httle information as to the subject on hand. ; 106. The Quoniam Attachiamenta : its contents. — The Qwonia/m Attachiamenta contains valuable informa- tion as to the legal proceedings under our ancient system of jurisprudence. The first step in the civil process was an attachment, which was a lawful bond by which the defender was constrained to stand to the law, and answer judicially to the party complaining in legal form. Then followed the summons, which was served by the Serjeants of the court, and was a command to appear before the inferior courts in fifteen days, before the superior in forty if within the reahn, and twice forty if without. At the fourth court, if the defender appeared, the pursuer had to be pre- pared' to prove his demand ; and if he was not, the defender, who denied the debt, might acquit himself at the next court by his own oath and the oaths of five men swearing with him. In the latter case the defender was to swear that he did not owe the debt, and that he brought true and liel men to swear along with him, and then they should swear that the defender's oath Was true and not false. If the pursuer succeeded, the judge was to take a pledge or security from the defender that he would pay in fifteen days, and if he refused, distress and poinding were to be 86 A COURSE OF LECTURES executed. The doom or judgment of the sheriif court was given by the " soytours," or representatives of the barons ; and, if falsified, i.e. proved unrighteous before the justiciar, each soytour was fined £10. Wager of battle was still a means of judicial investigation. Replegiation was also practised in the courts ; and consisted in an offender or defender being handed over to another court on an understanding that justice would be done. This practice arose out of the jurisdiction which every freeholder had over his vassals, and could be exercised in almost all cases, except in the pleas reserved to the crown. There were several kinds of brieves, which were common forms of action in cases of most frequent occurrence. These were the brieves of distress for debt, of mort ancestrie, of disseisn, of breaking the king's peace, of bondage, of warrandice, and of right. The assize is frequently mentioned in this Treatise, and consisted of twelve liel and true men, unless in falsity of doom, when the number was twenty-four. 107. General conception of an ancient civil suit, and its decision by an assize, — With the help of the Regia/m Majestatem we can form a very acciu'ate notion of the proceedings in a civil action in those ancient times. For example, take those under a brieve of right as to heritage. This brieve was available when one person by force and violence withheld lands from another, and was issued out of the king's chancery, and called upon the defender to compear and answer. Let us suppose that the defender referred his right to God and a good assize of his neighbours. In this case the assize had to find out who had most right to the ON THE LAWS, ETC. OF SCOTLAND. 87 lands claimed. Therefore, twelve loyal men, neigh- bours or of the court, were chosen, and they had to swear the great oath in presence of the parties that they should declare who had best right. All suspected persons were repelled from the assize, and if none of the assizors first chosen knew the truth, and testified the same by their great oath in the co^xlct, other persons were chosen in their place, untU such men as knew the truth could be found, and the assize was thus purged of those who were ignorant of the facts till twelve men agreed for one or the other of the litigants. We are also told that the assizers were to swear that they would deal justly between the parties, and that they must know the truth by sight or by hearing by them- selves, or by the narration of their fathers, or by such tokens and arguments as those to which they would give faith in their own proper sayings and doings. After the assize had ascertained the truth in the matters submitted to them, the judge pronounced the doom ; and if afterwards the doom was falsified, the assizers had their movables escheated to the king's use, and were imprisoned, and held to be infamous. This brief outline will explain the source and original reasonableness of obtaining unanimity, and wiU also show inferentiaUy that witnesses might be called in support of the claims of either party. This latter inference is not free from obscurity, and is contrary to what has been usually held on this subject ; but if the assizers could give their verdict on the evidence which they might have received before the trial, I cannot suppose that our ancestors would object to evidence hieing given in the court itself. 88 A COURSE OF LBCTUEES By a statute of Alexander (1214), c. 3, the assize of life and limb, or of land, was to be composed of faithful and good men, and freeholders by charter. This was a departure from our primitive laws, and shews the influence which feudalism was gaining upon the judicial conceptions of owe ancestors. HERITAGE. 108. Homage and allegiance. — These were two of the services which were due by a vassal to his lord, and the former was rendered to the chief or principal lord. Homage without allegiance was a promise by the vassal that he should be the lord's man, liel and, true to him for his lands, and preserve and keep his worldly honour, saving his faith to the king and his heirs (Eeg. Maj. II. c. 61 and 62). The brd; made a correlative promise to his vassal (lb. c. 67). To do anything toward disinheriting his lord, or hurting . his body, or anything to his shame and dishonour, was a violation of homage by the vassal ; and the offender, on conviction by his peers, was punished by dis- inheritance (lb. c. 63). By Robert III. c. 4, the superiority of land could not be conveyed away with- out the vassal's consent. This statute strongly evinces the notions of mutual protection which the feudal system involved. 109. The heir entitled to his ancestor's land. — If an heir is a minor, and in ward, he shall get his lands into his own hands at twenty-one, and he can enforce his claim by writ of mort ancestor ; and if he is of age ON THE LAWS, ETC. OF SCOTLAND. 89 he shall enforce his right by brieve of recognition in the court of his lord (2 Kobert I. c. 6). 110. Widow required lord's consent to her marriage. — A widow may not marry without the consent of her lord, and may be compelled to give security that she will not (Alexander II. c. 23). 111. Heir of conquest. — A doubt having arisen in a lawsuit as to the person who was heir of conquest, it was enacted by Kobert III. c. 21, that the heirs of the last and youngest brother in the conquest of lands was the next elder brother. 112. Co-heiresses. — The division of heritage amongst sisters shall be equal, unless the land was given to be held of the over-lord (Eobert III. c. 35). It ought to be here noticed that this rule did not extend to the succession to the throne. 113. Soccage.—'Wh.exQ an heir succeeds to soceage, that is, lands free from the feudal burden of , ward, rehef, and the rest, and he is in pupilarity, his tutors shall not waste or destroy, sell or wadset, the estate ; and tutors, at the perfect age of their pupils, shall make full count and reckoning of their intromissions (2 Eobert I. c. 18). 114. Lawful age of heirs. — The lawful age of those who succeed to land held by ward and rehef is twenty- one if males, and fourteen if females ; of those who succeed to soceage land, the lawful age of males and females is fifteen ; and to burgage, fourteen (Reg. Maj. II. c. 41). 115. Ward. — The casualty of ward was exigible by the over-lord of land held by his vassal by knight- service (Reg. Maj. II. c. 42). With recognition 90 A COURSE OF LECTURES and marriage it formed the casualties of ward holding, and might be taxed or untaxed. When un- taxed, this casualty (Ers. I. 5. § 5) entitles the superior during the heir's minority to the whole profits of ward fee, which formerly arose to the deceased vassal either " from the natural produce of the ground, or from the rent payable by tenants. 116. Subsidies given when lord's eldest son knighted, or eldest daughter to be married. — When the lord made his son and heir a knight, or was willing to marry his eldest daughter, his vassals shall give him a subsidy thus : for a knight's fee, 20s. ; and if more than a knight's fee be held, then proportionately more ; and if less, then less (2 Robert I. c. 18). 117. Vassal not to sell by sub-infeudation.^-lt shall be lawfiil for a freeman to sell his lands at his will and pleasure, so that the buyer shall hold of the lord who is the lord of the seller, and for the same services and duties as the seller held the same ; and the buyer uifeft shall hold of the immediate lord, and be bound to perform the services conform to the quantity of the land (2 Robert I. c. 24). The object of this law was, to protect the over-lord from the effect of conveyances by his vassal, by which the former might be unable to enforce his rights. 118. Alienation. — If a freeholder give or sell any part of his lands, he shall leave as much as wiU pay his over-lord the services he owes him ; and if he do otherwise, and is called before his lord's court, he shall lose all his lands, unless his lord consent (William I. c. 31). So long as the feudal system was kept up, this requirement was reasonable. ON THE LAWS, ETC. OF SCOTLAND. 91 Alienations may be made by a farmer of land , for a term certain to whomsoever he pleases before the term expires, but not later (Robert III. c. 18). ' 119. Alienation on a death-bed. — The ancient law as to the conveyance of heritage by a person on his death-bed, in prejudice of his heir, is contained in a statute by William I. c. 13, which subsisted for about seven centuries, and was abrogated quite recently (34 & 35 Vic. c. 81). It stood thus : No man in his sickness whereof he dies, in prejudice of his heir, may dispose or gift to any man his lands pertaining to him heritably, within burgh or without, or any lands which he conquests (acquires by himself), in the time of his death, except he be burdened with debt, and compelled by necessity to sell or wadset his land. 120. Unlawful gifts of land to religious houses. — It is unlawful to give lands to any religious house, and then receive them back to be held of the same religious house ; and where this enactment is contravened the lands shall go back to the original donor (2 Robert I. c. 2). This law was passed with the same object as the last, i.e. to prevent gifts from being made by which the superior would be deprived of his services, military or otherwise. For sometime it was thought that church lands were not Hable to mihtary service ; but, as a general rule, this opinion was erroneous. 121. Unlawful disseisin. — No one shall be poinded, xinless for suit contained in his charter (2 Robert II. 0. 2). 92 A COURSE OF LECTURES MOVABIiES. 122. Intestacy. — When a person dies intestate, all his goods and cattle belong to his lord ; and if he has more lords than one, each shall have as much as is in his own lordship and domain (Beg. Maj. II. c. 53). 123. Wreck. — If a man, dog, or cat is hving and saved from a wreck, the owner shall claim the wreck within a year and day ; and if not so claimed, it shall belong to the king or his donee (Alexander II. c. 25). The barbarous practice of rendering this law inoperative ' was long known in the North after the passing of this, humane statute. OBLIGATIONS AND CONTRACTS. 124, Husband's obligations for wife's contracts.-^ The law on this subject as found in the Beg. Maj. IV ' c, 30. § 6, subsists to this day, and is as foUows : Pactions made by a wife are unprofitable, that is to say, the wife cannot make any paction or contract without the authority or consent of her husband. Another ancient principle on this head is, that in aU the contracts of a wife for household necessaries and the like, it is implied that the husband gave his con- sent to the same, unless the contrary is proved. 125. Buying and selling...-rT-Bnyiiig and seUing are eflfectuaUy and perfectly complete after the contractors are agreed as to the price, and the thing bought and sold is dehvered to the buyer ; or the price is paid in ON THE LAWS, ETC. OF SjGOTLAND. 93 whole or in paxt ; or when arias (or God's money) have been given by the buyer to the seller, and is accepted by him. The parties may agree to pass from the contract, and then the general rule is that paction between parties is above the law (Reg. Mag. III. c. 10. § 2, 3, and 4). Again, if the thing is sold as without fault, and the buyer prove that the fault existed at . the time of the sale, the seller shall take back the thing sold (Id. § 8). Lastly, the peril of a thing bought or sold generally pertaias to him who is possessor thereof, unless there is a paction to the contrary (Id. III. c. 11. § 1). 126. Cautionary. — If a debtor can pay, a cautioner shall not be obliged to perform his obhgation ; and if the former cannot, the latter shaU. have the lands and rents of his debtor tiU he has been repaid what he has been obliged to pay for the principal debtor (2 Robert I. c. 10). ^ 127. Banhrwptcy. — Every bankrupt shall swear that he has no more than five shillirigs and a penny, and wiU not retain more than two pence for his meat ajid drink, and wiU give every third penny for the pEiyraent of his debts ; and if he fails again, he shall be banished (William I. c. 17). Thus we see that the ancient laws against bankrupts were much more severe than they are now, and made the necessity of paying creditors in fuU a legal duty. CRIMES, ,128. Treason and conspiracy against the king. — When any man is accused or defamed (suspected) of 94 A COUBSE OF LECTURES the king's death, or of sedition against the reahn or the king's host, the trial shall be in presence of the justiciar ; and if the accused be condenmed, his life and hmb shall depend on the king's good will, as use is in aU other pleas of felony and sedition against the realm, and he and his heirs shall be perpetually for- feited in all time coming. If the pursuer alleges in court that he did see, or that he knows that it is proved in any way that the accused did imagine, or pur- pose to have done anything anent the king's death, or anent the seditioJi of the host, or that he gave consent, council, or authority thereto, and offers himself ready to prove and verify the same, and the defender denies the charge, the plea may be decided by singular battle, or the defender may elect to be tried by an assize. The punishment on conviction was the same as in high treason (Reg. Maj. IV. c. 1). I have already had occasion to refer to some of our ancient laws as to treason, and therefore I need here only observe that, by 13 Robert I. c. 20, conspirators, or narrators of murmurs by which discord was excited between the king and his people, were to be itnprisoned; and if attainted, they were to be imprisoned till, the king declared his will. This last statute grievously errs against the liberty of the subject; because it leaves the offender to be dealt with at the capricious will of the king, instead of being punished on a fixed, determinate principle, and ac- cording to a weU-known rule. Some of the Scottish statutes, although remarkable for their brevity and terseness, are very loose in this respect. ON THE LAWS, ETC. OF SCOTLAND. 95 129. Murder. — By Robert II. c. 3, when a murder or manslaughter shall occur, an inquisition shall be taken as to whether it was voluntary or casual ; and, if voluntary, justice shall be done ; and, if casual, the offender shall have his lawful defences. Then (Id. c. 4) a fugitive manslayer may be banished after a warning of forty days, and his goods confiscated to the king or baron as escheat, and his lands confiscated for life to the use of the king or baron ; and (Id; c. 9) if a man- slayer flies to the church, and is warned to appear before the judge, and fails, he shall be exiled ; and if it appeared that the slaughter was by chance-medley, the offender shall be restored to the church ; but before he leaves the church he shall give security to the sheriff for his crime. This last enactment refers to the composition which, in such cases, fell to be paid to the representatives of the person who had been slain, and also to the fine which was payable to the king. In the time of David II. a somewhat curious case arose. A husband piuiished his wife ; and, in con- sequence, she refused to take food and died. Her relations charged the husband with the murder of his wife. The case was submitted to the king by the judges; and the king, by an assize (c. 16), declared that the husband who punished a wife with modera- tion for her correction was not giulty of her death, and the husband was accordingly pronounced innocent of the charge brought against him. 130. Mutilation. — He who is accused of mutilation, wounding, and beating, shall pass to an assize ; and, if convicted, shall buy and redeem his life from the 96 A COURSE OF LECTURES judge, and satisfy the party injured (2 Eobert II. c. 1 1). 131. Theft. — ^A thief in the earfy part of this epoch was tried by hot iron and water ; and, if he was found guUty, was hanged. By Alexander II. c. 13, a thief, or suspected one, who had no master or pledge, was condemned to death without further trial ; but, by Alexander II. c. 7, if one was challenged with theft, and had a master, he was to be tried by an assize, and not by hot iron or water. A statute (2 Robert I. c. 29) was also made that, if a thief was found breaking up a house in the night, and was wounded and died, he who had wounded him should not be guilty of his death ; and further, if the thief was wounded in the day and died, the offenders should be guilty of manslaughter. The assize of David II. c. 3, leads to the con- clusion that theft was often perpetrated against the poor, and remained unpunished. To put an end to this state of things, the king made a law that he who was poor and wanted help of all men should be under the king's protection ; and that where thefb was com- mitted against such a person, restitution was to be made to the king. In the reign of Robert II. we are told of ketharans, or sorners, who are referred to in Robert II. c. 25, as persons travelling through the country and eating it up, and consuming the goods of the inhabitants. These ketharans were to be judged as rebels ; and if slain, no one was to be guilty of their death. The country having no regular police was liable to be over-run by gangs of wandering vagabonds, who pre- ferred the fruits of plunder to those of honest labour. ON THE LAWS, ETC. OP SCOTLAND. 97 132. Using false weights. — The practice of using false weights was known in Scotland in early times. By an assize of David II. it was ordered that the Caithness weight should be used, and he who used unequal weights was to be fined eight cows for his transgression. The offence here referred to was buying with a heavy weight, and selling with a light one. I beheve there is a case on record of a dealer in Dundee having been fined for selling with a heavy one ! 133. Felony. — Felony is any offence which was followed by the confiscation of the offender's property. Thus, by 2 Robert I. c. 21, if any one was taken for slaughter, or any other felony for which he should be imprisoned, he was dispossessed of his lands, tenements, and cattle, untU convicted of the felony. As soon as the accused was apprehended, his goods were to be inventoried. If convicted, his goods, except the necessary expenses for himself and his family so long as he was in prison, remained with the king for a year and day ; and if he was fi-eed by an assize, all were to be restored to him. After the king's right of escheat, the lands and goods fell to the over-lord of the felon, and the lord retained the goods to his own use and the land for fife. 134. Principal and accessory. — The principal offender shall be first tried, and, if acquitted, the person charged as accessory is to be discharged, and, if not, must pass to an assize (David II. c. 29). As to husband and wife, who, by a fiction of the law, are supposed to be one and the same person, it was declared (David II. c. 16) that a wife was not obliged to accuse her husband, nor disclose his theft 98 A COURSE OF LECTURES or felony, because she has not power over hel'&elf. Further, the husband should not consent to the felony or trespass of his wife, nor yet the wife of the husband, and she should stay him as far as she could. If both were partakers in an offence, both should be partakers of the pain. These laws as to felony, principal and accessory, husband and wife, exist to this day. BUE6H LAWS. 135. The towns of Scotland become important: their origin. — In the first epoch of this history there were no towns in Scotland of any great consequence ; but in this second epoch numerous important villages, towns, royal burghs, and cities spring into existence. Some of these owe their origin to the impetus which had been given to trade throughout the country, and others to the desire to escape the oppression of the feudal aristocracy. But, in most instances, they were founded by the kings, the nobles, and the clergy ; for wherever a royal or episcopal palace, a nobleman's castle, a cathedral or a monastery was bmlt, there also the elements of a town were sure to be found. These cities and towns became the great centres of industry and freedom, civilization and refinement, and had their privileges secured to them by charters, with various degrees of liberty. The rise and progress of the towns of Europe form an important branch of the history of aU the countries in the West. Their rights and duties, their functions and jurisdictions, will be pretty clearly understood by the laws which I shall now specify. ON THE LAWS, ETC. OF SCOTLAND. 99 136, Antiquity of hurgh laws. — Certain laws and constitutions were made for the government of burghs by David I. (1124-1153.) Their exact date is un- known ; but they are referred to in the statute book at an early date (James III. c. 53). 137. Some important and curious regulations. — A burgess was bound to have a rood of land. For each rood in a burgh the king received five shillings as rent, and the burgesses had to swear that they would be faithful and true to the king, his bailies, and the community of the burgh. The jurisdiction in burghs extended to all pleas and quarrels within their bounds, except the king's pleas, which were reserved for the king's justiciar. If land within the burgh was held peaceably, without challenge, and was truly bought, a good title was acquired on the testi- mony of twelve men, unless a claim was made by a minor, by a person out of the realm or in prison. Burgesses alone were to carry on the trade of merchandise. Three head courts every year had to be held in the burgh, and the absent burgesses were fined. Neither provosts nor bailies could sell bread or ale, or sell anything in their houses. Women appear to have been the only, or at least the usual brewers, and they were obliged to make good ale, or be fined. Baihes were to be elected at the first head court after Michaelmas, and were to be faithful and of good fame by the common consent of the honest men of the burgh, and were to swear fidelity to the king and the indweUers of the burgh. The night watching of the burgh was to be done by a man deputed from each inhabited house. Thieves were rigorously punished 100 A COURSE OF LECTURES by the pillory, banislimeiit, cutting off the ears, and hanging. Lands were bought and sold by actual or symboHcal dehvery in the presence of twelve men and one baOie. If all these thirteen witnesses were dead, then the right to the lands was decided by twelve men, who should speak to the narration of their fathers, or to whom they gave as much credence as to themselves. Things were to be sold by means of a borgh, or security. If a burgess had a foolish wife, and she committed some trespass, he was not bound to pay more than fourpence for her, unless he pleased, and " might correct her as a bairn within age !" Customs or town dues were either great or small. The former were payable to the king, and the latter to the town; and earls, barons, knights, and freeholders by charter were exempt from payment. 138. Statutes of the Guildry. — By the statutes of the gmld, (society of merchant's,) made by the mayor of Berwick in 1283 and 1284, relief was to be given to indigent brethren and their daughters ; and the price of bread and ale was fixed. This latter regula- tion was very commonly made by the bailies of towns, and they also fixed the price of many other articles as well as the rate of wages to labourers and trades- people. These regulations have long been in disuse. THE LIBERTIES OP THE MEN OP GALLOWAY. 139. — Charter of Eohert I. — These are mentioned oftener than once in the statute book, and are seciu'ed by a new charter of Hberties in 1325 {Vide 2nd statutes of Eobert I. c. 35). According to this charter, the Gallowegians were to be tried by a good and true ON THE LAWS, ETC. OF SCOTLAND. 101 asske of their countrymen; were not to be obliged to make purgation or acquittance ; the four pleas of the crown, as well as treason and the slaughter of strangers, were reserved (exempted) ; and when con- victed by an assize, each was to pay the value of ten cows to the king for each indictment found; and where treason or the slaughter of strangers was perpetrated, the offender was to be in the king's will as to life and limb. These privileges evidently point to the rejection of singular battle in the judicial trials of the GaUo- wegians. 140. Sum/mary. — The subjects which we have con- sidered in this lecture have been numerous and varied. I have touched upon the war of independence, and shewn when Scotland was finally acknowledged to be free from all subjection or vassalage to England. "We have also seen the rise and some of the consequences of feudalism, and have laid bare the first indications of the causes which gradually changed the feudal court of the sovereign into the house of representa- tives of the nation. I have also briefly hinted at the internal organization of the king's palace and of the castles of the great nobles. StiU farther, I have shewn in what manner the nation was protected from aggression both at home and abroad, and how justice was administered in the courts of the king, the great landowners, and the burgesses. I have also made special reference to some of the provisions which existed during this epoch for the protection of life and property, and the punishment of crimes. The trial by jury comes 102 A COmSE OF LECTURES more and more into use, and other and more ancient modes of judicial investigation fall into desuetude or are abrogated and repealed. Suretiships and mutual protection amongst individuals was then powerful for the maintenance of order. The aristocratic element, always strong in Scotland, was then, perhaps, stronger than at any other period of our history, and feudalism reached its highest point of glory. The next epoch will embrace a period of stUl greater advance in the science of government, the. rights of property, personal protection, and security ; and, when we next meet, I hope to bring down my in- vestigations to the end of the reign of James V,, at which time the world began to be shaken by the mighty forces which brought about the reformation of the Church, and introduced new and potent influences into modern life and society. ON THE LAWS, ETC. OF SCOTLAND. 108 LECTUEE III. FROM THE DECLINE OP FEUDALISM TO THE BEGINNING OF THE KEFORMATION OP THE CHUEOH (1406 TO 1542). THIED EPOCH. — Scottish — first period. RECAPITULATION OF LAST LECTURE. 141. Historical survey. — The condition of Scotland and its government "will be best understood and most conveniently illustrated by a brief preliminary outline of the chief events of the reigns of this period. This I proceed to give. 142. Reign of James I. : he curbs his factious nobles and subdues the Lord of the Isles. — James I. ascended the throne in 1424, and was murdered in 1437. His murderers were put to death with a refinement of cruelty, which, although diabolical, was not unknown in the practice of this and other countries of Europe of that age. In his youth he was sent from Scotland to France with the view of escaping the machinations of his uncle the duke of Albany, and was taken prisoner by the English in 1406, and detained at the English court for eighteen years. 104 A OOUKSE OV LECTURES On Ms return to Scotland he found that the king- dom had suffered from misgovemment and internal dis- order, and he bent his whole energies on the improvement and civilization of his people by passing many excellent laws, and resolutely enforcing them. He pimished the factions of the nobles, and restrained their injustice and cruelty. Informed of the universal rapine and plunder which prevailed, he is said to have exclaimed : " Let God but grant me hfe, and, by His help, I shall make the key keep the castle, and the farze bush the cow throughout my dominions, though I should lead the life of a dog to complete it." He carried out his threat with a resolute determination, and perished in striving to govern his kingdom in justice and righteousness. How his threat was executed may be imagined from some punishments, inflicted in his reign, which are mentioned by Balfour. Thus, in 1429, the king caused Macdonald Ross, a notorious thief and murderer, to be apprehended and shod with horses' shoes of burning hot iron, and to be led in a halter about the town of Perth, and then, with twelve of his companions, to be hanged. This peculiar punishment was inflicted on Ross in consequence of his having acted in a similar fashion to a poor woman who com- plained to the king of his oppression. Take another instance from the same author in the year 1427. The king went to Dunstaffnage, ordered the chiefs and clans to meet him, and, after Donald Balloch had fled to Ireland and would not return, arraigned and sentenced three hundred of Donald's clan to the gaUows, and caused them all to be hanged. ON THE LAWS, ETC. OF SCOTLAND. 105 The northern part of the reahn as it now exists was completely subjected to the kings of Scotland by the destruction of the sovereignty of Donald of the Isles in 1427. James I. was a statesman and a legislator, and acted upon the principle that the security of life and property are indispensable in a weU-govemed com- munity. He largely succeeded ia bringing his lawless subjects under the authority of the laws. 143. Reign of James II. : he quelled the chronic state of disturbance in Scotland, and hilled earl Douglas with his own hand. — James II. was crowned in 1437, and died in 1460. Tytler, in his General History, says that he quelled the factions of his nobles by a bar- barous rigour of authority, was beneficent and humane to his people, and contributed materially to their civilization and prosperity by his laws. At his father's death he was six years old, and his minority was characterised by interminable strife, faction, and blood- shed amongst the nobles. During these intestine feuds, WUliam the fifth earl of Douglas was treacherously seized by the Lord Chancellor Sir William Crichton in the year 1440, and was beheaded without trial. Not long afterwards (1452) the king himself, who had undertaken the management of public afiairs, summoned the earl of Douglas to Stirling Castle, and enraged at him for his cruelty and oppression, his pride and arrogance, stabbed him to the heart. An assembly of the estates then declared the Douglas family to be enemies to the state, forfeited their lands, and forced them to fly for refuge to the English court. Thus was 106 A COURSE OF LECTURES the noble house of Douglas, holding vast territories in the richest districts of the kingdom, and rivalling, if not surpassing, the sovereigns in wealth, grandeur, and magnificence, levelled to the ground. It was never able to regain its former power and authority. The brother of the murdered earl, though expelled from his native country, involved James II. in a war with England ; and the king was killed by the bursting of a cannon, in the twenty-ninth year of his age and twenty-fourth of his reign, while he was superintending the siege of Roxburgh castle, which had been in the hands of the English for upwards of a century. The castle surrendered, and was razed to the ground, and James III. was saluted king by the army. 144. Reign of James III. : inveterate contests between the king and the nobles : Berwick finally lost. — James III. was eight years old at his accession, and reigned twenty-eight years (1460-1488). He attempted to tread in the footsteps of his father and grandfather, l?ut had neither their abihties nor their courage. He endeavoured to humble his ba,rons by employing com- moners in pubHc affairs, and his turbulent nobles betook themselves to rebellion. He even excited the contempt and hatred of his own brothers, who revolted against him. He only succeeded in maintaining himself on the throne by taking away the life of one brother, the earl of Mar, and by a reconciliation with the other, the duke of Albany, and by temporarily giving the latter the most important office in the kingdom. He was indolent, fond of literatttre, and governed by favourites, who were sometimes seized, e.g. at Lauder Bridge, and ON THE LAWS, ETC. OF SCOTLAND. 107 put to death almost before his eyes. In a war with England he lost the town and castle of Berwick, which has ever since belonged to the English; and some- what later the malcontents, gaining the king's eldest son to their cause, defeated the royal army, and, in an attempt to escape from the field of battle, the king was mortally stabbed by an assassin. 145. Reign of Jam£s IV. : t}ye Idng married to the princess Margaret of England, and hilled in 1513. — James IV. succeeded his father at the age of sixteen, and was slain in the disastrous battle of Flodden, after a reign of twenty-five years (1488- 1513). The barons who remained faithful to the late king James III. raised the standard of rebellion, but James IV. vanquished them, and, by his clemency, gained them over to his own government. His relations with his cotem.porary Henry VII. were most unsatis- factory, and the endeavours of the Enghsh king to excite the disafiected Scottish nobles against him urged James to defend himself by hostUe measiires. In 1503 he married Henry's daughter the Princess Margaret ; but this most auspicious aUiance was not destined to bring a lasting peace till more than a century had passed away. Indeed, the king's nuptials had scarcely been celebrated for more than ten years when James and his brother-in-law Henry VIII. were at war, which ended in the destruction of the finest army which ever crossed the borders into England, and by the slaughter of the king himself and the flower of his nobihty. 146. Reign of Ja/mes V. : the factions caused great disorder : the king allies himself with Germany and 108 A COITUSE OF LECTURES Prance: opposed to the reformation of the Church. — James V., an infant at his father's death, was pro-i„ claimed at the unusually early age of twelve, and his reign lasted twenty-nine years (1513-1542). Margaret, the queen dowager, lost the regency of the kingdom by marrying the earl of Angus. The; young king and his brother, Alexander duke of Ross, were entrusted to the noble and clerical party, which was opposed to the English alliance. The whole country was divided between two factions, one of which, the English, was headed by Margaret and Angus ; and the other, or the French, comprised the most of the nobles and the majority of the people. In 1515 the duke of Albany, the king's uncle, returned from France, and, amidst the acclamations of the people, assumed the oflS.ce of regent, and evinced his hostility to England as decidedly as he ostentatiously displayed his devotion to France. One insurrection after another followed; offenders of the dominant party - against the commonwealth were pardoned from weak- ness or pohcy ; and others of the opposite, and, for a time, defeated faction were tried and .executed as traitors. Albany went back to France in 1517, and Margaret re-assumed the ofl&ce of regent ; but the incessant scenes of uproar, confusion, and bloodshed in the streets of the capital proclaimed to the world that Scotland was destitute of a supreme government. Albany returned to Scotland in 1521, and found the country in a most deplorable condition from internal dissension and the intrigues and hostile attacks by Cardinal Wolsey and his master Henry VIII. The duke was able to effect nothing for the good of the ON THE LAWS, ETC. OF SCOTLAND. 109 country, and in despair and disgust, he again returned to France. In 1528 James freed himselffrom the Angus faction, forbade the Douglasses from his court, drove them across the border, and entered into an alliance with the emperor of Germany and the king of France. He determined, he said, to maintain in Scotland the religion of his forefathers. He married (1) Magdalen the daughter of Louis XH. and (2) Mary, sister to the duke of Guise. These matrimonial aUiances, and the disturbances which had arisen in England in the pro- gress of the Reformation, made James a sturdy oppo- nent to the doctrines of the reformers. His latter days were checkered by disappointment and chagrin, and he died utterly disconsolate at the treatment which he had received at the hands of his haughty nobles and mutinous vassals. He died in the thirty-third year of his age, and only seven days after the birth of his still more unfortunate daughter Mary Queen of Scots. Here I may not inappropriately interpose a few remarks on two or three subjects of a general character. 147. Leagues for mutual defence. — The state of the people during the whole of this period was most lamentable. The rebellions, murders, thefts, and op- pression are hardly credible. The powers of the central government were annihilated, and the commons endured the most grievous and terrible wrongs. This gave rise to leagues and bands for mutual defence and protection ; and, although powerless to repress the disorder, various laws were made declaring those leagues contrary to the public welfare (James I. p. 2. 110 A COURSE OF LECTURES c. 30 ; James II. p, 14. c. 27 ; James III. p. 3. c. 34, and p. 6. c. 87). 148. Revocations of forfeited estates by the Tdng.-r— In the midst of this disorder, a great deal of landed and personal property was forfeited to the crown. Some of it was restored to those who had been deprived of it by their rebellion or opposition to the dominant faction; some of it was conferred on the heirs of former owners; and the remainder, though intended for the use of the king as the sovereign and representative of the people, found its way into the hands of the greedy and rapacious barons at court. These alienations caused frequent revocations to be made by the kings of Scotland on the ground of their minority and their coronation oath. These revocations were ratified by parKament. They were sometimes general in their terms, and at other times were exe- cuted under certain reservations as to particular individuals specially mentioned ^FicZe James II. p. 1. c. 2; James III. p. 9. c. 71; James IV. p. 1. c. 5; lb. p. 2. c. 22 ; lb. p. 2. c. 10 ; lb. p. 4. c. 50 ; lb. p. 4. c. 50 ; lb, p. 4. c. 51 ; lb. p. 6. c. 100 ; James V. c. 70). 149. Scotland reaches its utmost extent. — In the year 1468 James III. was married to a daughter of the king of Denmark. Amongst the arrangements made on the marriage was the renunciation by the Danish king of aU rights claimed by biTn to Orkney and Zetland, and those islands have ever since been annexed to the Scottish kingdom. Since then no substantial modification has been made as to the extent of Scotland, unless as regards Berwick, which ultimately fell to England. ON THE LAWS, ETC. OF SCOTLAND. Ill 150. One law for all Scotland. — ^Nearly half a century before this consolidation took place, namely in 1425, all the king's lieges (3 James I. c. 48) were commanded to live and be governed by the laws of the realm. Thus came to an end that diversity of laws which existed throughout Scotland till that year, e.g. amongst the Gallowegians. 151. Codification of law required. — This order was a great step in the path of progress, and could not fail to be of the utmost advantage to the whole nation. The principle adopted by James has not reached its final development, and I hope to see a still greater uniformity in the laws of the whole of the United Kingdom, and especially in all matters of trade and cormnerce. The necessity for this uniformity is daily becoming more imperative, and its triumphant recogni- tion ought to be urged forward by all parties in the state. By a fiction of law, no one is ignorant of its provisions ; but, in numerous instances, the greatest obscurity exists. This should not be so, but, on the contrary, the law of the land ought to be clear and intelligible to all. Our wise and statesmanlike king James I. was keenly alive to the importance of this matter, and had a law passed by which six wise and discreet persons were to be chosen fi-om each of the three estates of parliament, to see and examine the books of the law, and where necessary to amend them. Nothing was done under this act ; but what was then desirable is now a hundred-fold more necessary. In some way or another the chaotic mass of our laws must be reduced to . order and symmetry ; and a code for Scotland might well prepare the way for one for the 112 A COURSE OF LECTURES whole of the United Kingdom and to some extent of the empire. This is a matter for the serious considera- tion, not only of parliament, but also of the people in general, and this is the reason why I give James's abortive attempt so much prominence here. Let this suffice for our historical retrospect, and let us now consider the prerogatives of the king. THE king's PEEEOGATIVES. 152. Tendency to restrict them. — The king's pre- rogatives were enunciated in my last lecture. They never exceeded those which I have there stated, and there has always been a tendency to restrict them. Thus the king's judicial power became vested in the college of justice ; and restrictions were placed on the sovereign's power to dispose of the royal inheritance (1 James IV. c. 12, and 6 James lY. c. 90) ; and the sovereign right of granting pardons had, for a time^ to be exercised with the approval of the king's secret or privy council, or of parhament. Again, how, if at all, the king had power to make laws for the whole nation is very doubtful, and the right, if ever exercised, was neither in accordance with the primitive institutions of our ancestors, nor sanctioned by the feudal lords, nor the community, at any period of oiu- history. 153. The king was the head of a feiidal aristocracy. — The Scottish king was the head or chief of a feudal aristocracy. He was himself a great feudal lord, whose vassals held the largest and richest territories in the country ; and practically he was unable to carry on war or make peace without the concurrence of his vassals. ON THE LAWS, ETC. OF SCOTLAND. 113 Indeed, in primitive times, all the land ia Scotland belonged to chiefs or petty kings as the heads of their tribes, and guardianship for the tribe has gradually merged into absolute ownership. Military power and feudal legal conceptions have radically changed the ancient ideas of Europe about landed property ; and centuries of feudalism, consecrated by prescription for many generations, have erected an indefeasible, in- dividual property. 154. Feudal hereditary offices condemned. — A most important law was made in the reign of James II. in regard to the tenure of pubHc offices. In Scotland, as in aU the feudal countries of Europe, not only did our kings confer grants of land, subject to military service, fidelity, and allegiance, but they also bestowed upon their favourites all sorts of offices in the govern- ment by way of inheritance. Consequently sheriff- ships, constableships, and nearly all the offices about the king's person were given away in perpetuity to some particular family. Some of them exist to this day. This practice caused much injustice throughout the land, and was an evil which required to be speedily removed. A sHght palliation was adopted by parha- ment m 1455 (11 James II. c. 44) ; but the evil was not uprooted tiU feudalism was abolished three hundred years afterwards. 155. The royal revenue. — This was chiefly derived from the royal domains, and from the services and casualties which arose out of the feudal system ; but, in addition to this soiirce, there were certain customs or dues leviable on various articles of trade and com- merce, which were chiefly paid by the burghs, and I 114 A COURSE OF LECTtTRES were usually fixed by use and wont, or by agreemeni between the traders and the officers of the king. 156. Ghmrdiam of the realm frequently wppointed. —During this period, as I have already told you, guardians and regents of the kiagdom were frequently appointed. These were chosen for various reasons, e.g. occasionally the king was mentally incapable of exer- cising his royal functions, and frequently he was in minority. These temporary sovereigns were elected or approved by parliament, and had such powers conferred upon them as the legislature thoughtproper. Sometimes a single person was entrusted with the royal authority, and at other times there were several. The frequent appointment of these regents, when the happiness of the people might have been more advanced by retiun- ing to the old practice of election, clearly «hows that the rules of hereditary succession to the throne had taken deep root in the national mind ; and sub- sequent events have demonstrated the wisdom of rigidly adhering to these rules, unless the sovereign had shown a decided and uncontrollable preference for absolute and independent authority rather than for the high power aiid dignity of a constitutional monarch, beloved by his people for his justice and clemency. The governor, or temporary sovereign, was early restrained from disposing of the royal domains during his tenure of offix;e (8 James I. c. 133) ; but the frequent revocations made on the king's majority prove that, in this matter, the law may be one thing and men's actions another. 157. The Mn^s consort. — When James I. wished the oath which was given by his feudal vassals to him- ON THE LAWS, ETC. OF SCOTLAND. li5 self to be sworn to the queen by the successors of prelates and the heirs of all his tenants, a statute had to be made for the purpose (8 James I. c. 109). This i was a new obligation imposed on feudal property. From this statute we may infer that the existing feudal tenants gave an oath of fidelity and allegiance to the queen in the same terms as that given to the king. All the queen-consorts were crowned, but their coronation did not confer any of the rights of sovereignty. It was a mere honorary ceremony and nothing more. 158. The prince of Scotland was a petty sovereign. — The prince of Scotland was endowed with certain high privileges and prerogatives, that is to say, he had lands appropriated to him with the full rights of a sove:^ign in his own domains, e.g. a court, parliament, and officers of his own. Near the end of the fifteenth century his titles were — Duke of Rothesay, Earl of Carrick, Lord of Cunninghame, and Steward of Scotland. In England there were several prin- cipalities, but in Scotland only one. All, or at least the most important, rights and privileges of the prince of Scotland woiold seem to have merged in the king when there was no prince. Thus, by James IV, p. 2. c. 16 (1489), aU the free tenants of the prince, the Duke of Rothesay and Steward of Scot- land, were bound to give suit and service in the king's parliament aye and until the king had a son who should be immediate between the king and them to answer for them in the king's parHament and justice ayres. 116 A COURSE OF LECTURES PAKLIAMENT. 159. Parliament organised. — The great council of the nation was now completely organised. It was composed of the three estates, i.e. of the dignified clergy, the barons, and the representatives of the burgesses ; and no law or great national act could be made or done without their consent. Two exceptions. — (1.) In the reign of James II. a statute was made by the king " with consent of the clergy and barons." This act restricts the persons who could be merchants, and declares that they must be men of substance and good fame, and freemen of burghs and indweUers within the same. This law operated as a monopoly, and might alsb have been dictated by a military spirit, which considered trading as derogatory to a gentleman. (2.) In 1513 a statute was made by the king " with the consent of the lords now in the king's army," and was a release from aU ward, reHef, and marriage due to the king, and was granted in favour of the heirs of those who then might be slain or might die in the king's army (7 James lY . c. 102). This statute, which was in reality an agreement between the king and his tenants, was made a few days before the disastrous battle of Flod- den. Both of these exceptions appear to show that the general idea upon which aU the public statutes were then based was that they were made with the consent of those whose interests were involved, or of those who stood in the character of guardians and protectors of the rest of the community. The notion ON THE LAWS, ETC. OF SCOTLAND. 117 of the public interest as distinct from the interest of those who were entitled to a place in the king's court did not then exist. This higher conception in its modem aspect was of later growth, and, in Scotland at least, was largely developed by the contests which sprung from the reformation of the Church. 160. Attendance was enforced by Jines. — It must never be forgotten that the presence of the king's tenants in his royal court was as imperative as the right to be there was imquestionable. This is not at all surprising, for the great council of the nation was a court or assembly for deciding lawsuits as well as dehberating on matters involving the public welfare. By a statute of 1425 (3 James I. c. 52) all prelates, earls, barons, and freeholders of the king were bound to appear personally in parliament, and not by procu- rators, unless the latter proved a lawftd cause of absence ; for, says the statute, they were bound to give presence in the king's parliament and general council. This enactment clearly shows two things : (1.) attendance in parliament was obligatory on the king's tenants ; and (2.) procurators or proxies might be appointed when a good excuse for absence from parliament could be given. The fine inflicted upon absentees was £10. 161. Bishops and great lords to be specially sv/m- moned, and small freeholders to appoint commissioners who were to elect a common speaker. — A vital altera- tion in the constitution was made by a statute of 7 James I. c. 101 (1427) ; but it was not till 1587 that the representation of coimties was fully esta- blished as the law and practice of the realm. 118 A COUKSE OF LECTURES The statute of James declares that all bishops, abbots, priors, dukes, earls, lords of parliament, and baronets shall be summoned to the king's great council by his special precept. The words "lords of parliament" in this statute refer to the great barons. In the fifteenth century lords of parliament, independent of the tenure of land, were unknown in Scotland, and none had a voice in the great council of the nation except those who were the king's tenants. The king's high officers of state might then, and for long after- wards, speak and give advice in parliament; but, unless they were freeholders of the king, and therefore entitled to seats in parliament in their own right, they coiild not vote on the questions before this high court. This statute also declares that the smaller barons and freeholders were released from personal attendance at the great council of the nation ; and that, at the head court of each shire, and in proportion to the size of each sheriffdom, they were thenceforth to elect com- missioners, who were to have the full power of the shires to hear, treat, and finally determine all causes to be proposed in parhament or general council, and that the conunissioners were to have their expenses paid by those whom they represented. It also enacts that these commissioners were to elect a wise and expert man to be called the common speaker of the parliament, and he, and he alone, was to propose all and sundry needs and causes pertaining to the com- missioners in the parhament or general council. By 14 James II. c. 75 (1457), no tenant of the king holding less than £20 in land yearly was to be con- strained to. appear in parhament unless he was a baron, ON THE LAWS, ETC. OF SCOTLAND. 119, pr was specially commanded by the king's officer or writ. In 1503 another act (6 James IV. c. 78) was passed in terms somewhat similar to the last, but the annual value was raised to a himdred merks, and when the rent was more than that sum absentees were to be fined for non-attendance. 162. Commissioners and head/men of burghs warned to appear at taxations. — A statute of 6 James IV. c. 78 (1503), ordained that commissioners and head- men of burghs should be warned when taxations were to be imposed. This provision unquestionably refers to complaints which had been made by the burghs agaiost taxes being imposed upon them in parUament in the absence of their commissioners, and did liot confer a right on the headmen or magistrates of the burghs to sit in the king's court. Still, as the taxes granted to the king were settled very much by an agreement between the king and his subjects, it may have been found desirable to have the headmen as well as the commissioners of the burghs at the king's court when taxes were to be imposed. If this was the object of the law, as I beheve it was, the commissioners, and not the headmen of the burghs, would alone have the power to vote. There can be no doubt whatever that the right to sit in the kiug's court was an incident of tenure, and the right of the royal burghs to be represented in the parhament was, long before this, frequently acknowledged. It is also worthy of observation that parliament was in those days considered a burden, and somewhat in the same light as attendance on circuit courts now, and the laws which were made for compelling attendance 120 A COURSE OF LECTURES at its meetings were neglected, or complied with as seldom as possible. It was not till a much later date that the representation in parliament became an object of ambition amongst the commons, who did not then have the power they now possess, but were swamped or overawed by the great lords and their followers. All the power, glory, and emolument of the state were then in the hands of the king, and dis- tributed by him amongst his noblemen. 163. The parliament's judicial functions merged in the college of justice. — During this period the parhament exercised judicial functions, both civil and criminal. This was sometimes done in full parliament, and sometimes by a committee or commission chosen from its members. One of these committees was designated as the lords auditors of causes and com- plaints in parhament, and in 1478 was composed of three clerics, three barons, and three burgesses. The lords auditors decided matters of fact and law by way of appeal from the judge ordinary. Here I may give an example of the way ia which parhament intervened in lawsuits, and in which the legislature not only decided disputes, but laid down the law for the first time. A doubt having arisen in the court of session, not the coUege of justice, as to the person who was entitled to the life-rent escheat of a vassal who had been a year and day at the horn, it was referred to parhament, of which the court of session was then a committee (1528), and parhament decided that the life-rent should belong to the immediate vassal (3 James V. c. 32). ON THE LAWS, ETC. OF SCOTLAND. 121 THE ARMY OK MILITIA, 164. Regular weapon-showings held. — Between 1406 and 1542 numerous regulations were made by parliament as to the army, or, since there was no regular standing army, I should rather say, the miKtia. These have reference to the times for holding weapon-showings. At these meetings the armour of the citizens was to be shown to be in accordance with their age and rent or substance ; for aU men, accord- ing to their age and ability, were bound to aid in the defence of the kingdom. The military forces of those days were entirely local, and were embued with that esprit de corps which our great military authorities wish again to see cultivated to the utmost. They were commanded by captains elected, for the several parishes, by the king's conmiissioners, the sheriffe, and territorial authorities (1 James I. c. 18; 2 James I. c. 44 ; 3 James I. c. 60 ; 12 James III. c. 89 ; 6 James V. c. 88 and 91 ; and 2 James V. c. 94). THE CHUECH. 165. The pope head of the Scottish Church. — The pope was in presence of the king acknowledged to be the head of the Scottish Church, and obedience to him was accordingly sworn by the Scottish clergy in 1444. Soon afterwards (in 1471) the diocese of St. Andrews was raised to the dignity of an archbishopric by a buU of the pope ; and in 1492 Glasgow received the same honour. 122 A COURSE OF LECTURES 166. Vacant benefices must not be obtained or purchased from the pope. — As early as 1466 (1 James III. c. 3 and 4) a statute was made by which no commendams or benefices were to be purchased i and, on the preamble that many persons went to Rome to piu-chase benefices contrary to the laws of Scotland, another statute was passed in 1494 (5 James IV. c. 53) commanding that, imder the pain of rebellion, no spiritual or temporal lords without the king's license should have any money sent to them out of the realm. In 1471 it was also enacted (6 James III. c. 43) that no clerks should purchase at Eome any benefice or the office of the pope's collector, and that no higher taxes should be levied for the pope than according to the old laws, that is to say, by Bajmont's RoU, which was made up about 1275 for the collection of the tenth of ecclesiastical benefices for the relief of the Holy Land. The papal usurpations had no bounds, and the pope having claimed the right of giving presentations to aU vacant benefices during the vacancy of any diocese, the parhament repudiated his claim; and, by 11 James III. c. 84, 1481, enacted that the king should present to aU benefices when a see was vacant. James III. was also obliged to assert the rights of the crown against the encroachments of the clergy. Take this as an instance. The abbot of Dunfermline died in 1474. The monks chose Alexander Thomson. as his successor, but the king abrogated the election, promoted the abbot of Paisley to the abbacy of Dun- fermline, and made Robert Shaw the new abbot of Paisley. After a good deal of disputation the pope ultimately confirmed the king's appointment. ON THE LAWS, ETC. OF SCOTLAND. 123 During the reign of James IV. violent disputes arose -with the pope as to ecclesiastics going to Rome, asnd receiving presentations to benefices, and thus depriving the patrons of their church hvings, causing disturbances, and violating the constitu- tion of Scotland. The papal encroachments, and the practice of taking litigations to Eome, were condemned and denounced by the king. In fact, the intolerant bigotry and profound ignorance of the clergy, the exorbitant demands and usurpations of the pope, were urging forward an European ciisis, which was destined to overthrow kingdoms, and shake the Church of Rome to its foundations. Upon this subject I can say nothing more at present, and will therefore ask your attention to the subject of church discipline, which, although it might be considered under the head of crimes, will, I think, be more conveniently disposed of here. I shall confine my observations to heresy. 167. Church discipline : heresy. — ^By Reg. Maj. heretics were to be burned {IV. c. 53); and by an act of James I. 1424, c. 3, or nearly one himdred and fifty years before the Reformation in Germany, it was declared that every bishop was to cause inquiry to be made as to persons holding heretical doctrines; that heretics were to be pimished by the law of the Chxirch; and that the secular power should assist the spiritual in carrying out the sentence. The trial of Dean Forrest, vicar of DoUar, may be taken as illustrative of the offence comprehended under the charge of heresy, and of the incapacity of the ignorant bishops to deal with this offence (Vide Pitsoottie's History, 124 A COURSE OF LECTURES and also Pitcaim's Criminal Trials, 1538-9, p. 214). This trial gave rise to the well-known saying : "Ye are like the bishop of Dunkeld, that knew neither the new nor the old law." James V., as I have already said, was a staunch up- holder of the pope's authority, and, as far as he could, was determined to uproot the new reHgious doctrines which were rapidly spreading among the people. He rigorously enforced the laws against heretics, was him- self present at the burning of some of his own subjects who had been condemned to the stake and had refused to recant, and even went as far as to say that he would not spare his own son from the wrath of the Church. In 1528 Patrick Hamilton was burned at St. Andrews for holding the new religious doctrines. Little is positively known about the circumstances of his trial ; but his opinions were much the same as those soon afterwards adopted throughout Scotland. Then, in 1534, Norman Gourlay was burned for deny- ing the existence of purgatory and asserting that the pope was no bishop, but antichrist, and had no jurisdic- tion in Scotland. Further, in 1538, four of the clergy and one lajonan were burned in Edinburgh as chief heretics and teachers of heresy, and were not allowed the benefit of recantation, — a benefit which was usually accorded to aU, and of which many who were charged with similar offences fully availed themselves. Amongst the charges made against these five wretched men was the crime of being present and eating flesh in Lent at the bridal of the priest or vicar of Tulliebodie. Many persons were also found guilty in 1538-9 of using books which defended doctrines that ON THE LAWS, ETC. OF SCOTLAND. 125 had been condemned as heretical. The using of such books was an offence created by the king's prodama- tion, and shows how completely the civil power was used for the extirpation of opinions which were after- wards adopted as the basis of our civil and religious rights. THE ADMINISTRATION OF JUSTICE. 168. Co-ordinate jurisdiction of the lord chancellor and a convmittee of parliament, and of the king and council. — In 1425 (3 James I. c. 65) it was enacted that the lord chancellor and certain discreet persons of the three estates should be chosen to examine, con- clude, and finally determijie all and sundry complaints, causes, and quarrels then determinable before the king and his council. They were to sit where the king wished them, and their court was called the court of the lords of session. Their jurisdiction was extended in 1457 (14 James II. c. 61) to aU spoliations of tacks and mails, obligations and contracts, debates and other civil actions, which did not concern the fee or heritage ; but, at the same time, the pursuers might bring their actions before the judges-ordinary. By 14 James II. c, 62, the decisions of the lords of session were declared to be final, without any appeal to the king or parliament. Moreover, the court was to be maintained out of the urdaws of the court (3 James I. c. 65, and 14 James II. c. 63) ; for it was then and long afterwards thought that courts, if not profitable, as they often were, should at all events be self- supporting. 126 A COURSE OF LECTURES 169. The Tdng's daily council had ^o-ordinate jurisdiction with the lords of session. — ^Another court was estabKslied in 1503 to dispose of the numerous complaints made to parliament. The statute which authorises this court to be erected empowers the king to choose a council, which should sit continually in Edinburgh, or where the king resides, to decide daily all summonses in civil matters, complaints, and causes as they should occur, and confers upon it the same powers as the lords of session possessed (James IV. c. 58). Thus we have two comrtis co-ordinate to the king's council, for deciding the civil causes which were frequently brought before parliament, established to advance the ends of justice, and reheve the parliament of work for which, in full assembly, there was no time to deal. As early as 1426 a right conception of justice was taking deep root in the minds of our legislators, who were beginning to feel the importance of disposing of complaints according to fixed and acknowledged rules. It was therefore declared (1 James I. c. 83) that those who were chosen to decide the causes and complaints coming before parliament should swear faithftdly and legally to give their decision without favour or hatred, without guile or deceit. 170. The court of the hing and his council. — From what has been already said, it may be perceived that the king and his council exercised judicial powers. This state of things was a remnant of the old con- ceptions as to the king being not only a legislator but a judge, and was ever changing in extent and was almost impossible to define. It is interesting, however,- to ON THE LAWS, ETC. OF SCOTLAND. 127 aotifce that a reported case in 1525 as to a ship belong- ing to Amsterdam, decided by the lords of the council, shews that the king and his council had jurisdiction in cases of a maritime nature. 171. The, college of justice established as the supreme civil court. — The coUege of justice in Scot- land was framed after the model of the parliament of jParis, and was instituted by James V. in 1537. The establishment of this court by the king, and the confirmation thereof by the pope, were sanctioned by parliament in 1540 (7 James Y. c. 48). Its jurisdiction extended to aU civil actions ; and as its decrees were to have the same effect as those of the lords of session, there was no appeal from its decisions to any other or higher tribimal. At its original foundation it consisted of a president and fourteen judges, and of the latter one half were clergymen and the other half laymen. The lord chancellor, if in court, was to preside, and three or four of the great council might be empowered by the king to vote. The quorum was to consist of the president and ten members. Rules of court were to be made, and con- firmed by the king as far as they conformed to reason, justice, and equity. The coUege of justice has been in existence for more than three centuries, and, modified so as to bring it into harmony with modem requirements, it has admirably fulfilled the intentions of its founder. 172. Regulations as to the justiciar's court.-^¥or the regulation of the justiciar's court there were several acts passed in this period, and all of them insist upon the court being held twice a year, namely. 128 A COURSE OF LECTURES 3 James 11. cr 5 (1440) ; 13 James III. c. 98' (14S3) ; and 3 James IV. c. 29 (1491). At its sittings, called justice ayres, the lords, barons, and feeeholders were bound to answer for their vassals and dependentsas often as necessary (3 James V. c. 6, 1528). 173. The sheriff courts. — By 8 James I. c. . 130 (1429), freeholders and their attorneys are ordered tor be present at the sheriff's courts ; by 5 James Vi c. 71 . (1540), all sherifife, stewards, and baUies were to be personally present at three head courts every year, and when they gave no lawful excuse for their absence . they were to be amerced; and by 6 James V. c, 73 . (1540), the deputes of sheriffs and others of the king's officers shall be good and substantial men, for whom their principals shall be responsible. 174. Application for redress to be first made to the , judge-ordinary. — About the beginning of the fifteenth century, the judicial administration of the country seems to have been in a most unsatisfactory condition, and numerous applications for legal redress were made to parliament. This caused a statute to be made in 1424 (2 James I. c. 45) by which all applications should be first made to the ordinary judges, i.e. to the justiciars, sheriflfe, stewards, bailies, and barons, provost and bailies of burghs, who were bound to give justice to aU under pain of punishment, and the poor were to have advocates assigned to them to con- duct their suits. This law did not effectually prevent parliament fi:"om being unnecessarily troubled with questions as to legal redress ; for an act had to be ■ passed in 1475 (8 James III. c. 62) again declaring that all complaints should in the first instance be made to the ordinary judges. ON THE LAWS, ETC. OP SCOTLAND. 129 175. Jwries or assizes. — With regard to juries there are various regulations and customs in the statute book and trials of the period. Thus, jurymen in a criminal trial were sometimes eleven, twelve, thirteen, fifteen, and more in number ; aU jurymen were fined when they did not enter an appearance in terms of their summons ; they were to swear that they had not received any gifbs, 13 James I. c. 138 (1436) ; where there was wiMil or ignorant error by assizers, com- plaiat was to be made to the king and his council, the error reduced, and the assizers punished as laid down in the Regiam Majestatem, 6 James III. c. 47 (1471) ; assizers in. criminal causes were, on their confession of falsehood to the king and his council, to be punished according to law ; and if they denied the charge of false assizers, they were to be tried by a jury of thirty men, and the accused person tried again, 8 James III. c. 63 (1475). These inquiries as to the conduct of juries have long been laid aside, and other means adopted to prevent injustice by the blunders, wilful or otherwise, of a jury. In the time of James III. and James IV. the trial of aU causes by jury still prevailed in the court of the justiciar, and, indeed, in aU the courts of the country, and the lords auditors frequently sent issues to be tried by juries in other courts. For instance, in 1471 the lords auditors sent issues to be tried by the sheriff, or other judge ordinary, before an inquest or jury as to certain nulls being built on the lands of Ballemo or on the lands of the laird of Ruthven. In another case before the lords auditors in 1493, the sheriff and his deputes are charged to summon certain persons of the best K 130 A COURSE OF LECTURES and worthiest of the county, and the least suspected of any prejudice, to the number of thirty, to compear before their lordships in order to pass upon the inquest to see how, &c. Considering how long I have detained you, I shall be as brief upon the laws of this period as perspicuity will allow. LAWS, CIVIL AND CRIMINAL. First — Civil. 176. The Tang and all freeholders may set land in feu farm. — In 1457 it was made lawful for the king, lords, prelates, barons, and freeholders to set their lands in feu farm; and it was declared in 1503 that this right was to be on condition that the power to feu was exercised during life, and that the annual rent was not thereby diminished (14 James II. c. 71, and 6 James IV. c. 91). These two statutes clearly point to the decay of feudalism, and the conversion of military services into money payments. They wotdd also greatly increase the value of land ; for alienation in feu farm was a violation of the feudal system and a frequent ground of forfeiture. 177. Buyers of land to keep the taxiks. — For the safety and favovir of poor people who tilled the ground, and all others who had taken, or should take, leases for a definite period of years, the buyers of land are bound, 6 James II. c. 18 (1449), to keep the tacks in existence before the purchase. • ON THE LAWS, ETC. OF SCOTLAND. 131 178. Redemption of reversions. — By 5 James III. c. 27 (1469), it was enacted that rights of reversion affecting land might be redeemed by the first seller from the first buyer, or any other possessor, when reversions were taken and duly registered. 179. Distraint of plough utensils. — By 6 James IV. c. 98 (1503), it is enacted that, where there are other things on the ground, no sheriffs or other officers were to distrain or poind anything belonging to the plough in the time of tilling. 180. Tenants and their lord's debts. — Inasmuch, says 5 James III. c. 36 (1469), as poor tenants are by brieve of distress liable to have all their goods seized for their lord's debts, they shall thenceforth not be obliged to pay more for such debts than their term's mail or rent. 181. Ratification by a married woman. — Doubts having arisen as to the effect of a ratification of a conveyance of land by a married woman who was conjunct fiar, they were put at rest in 1481 by a statute (11 James III. c. 83) declaring that, after she gave her faith to such a deed, she should never be heard against the alienation. 182. Prescription. — ^By two statutes passed in 1469 and 1474 (5 James III. c. 28, and 7 James III. c. 54) it was enacted that aU obligations must be enforced by legal process within forty years, or be prescribed ; if not pursued within forty years, they become void. 183. Intestacy. — The bishops-ordinaries having adopted a rule by which the distribution of the estates of intestate minors became very much at their absolute disposal, the legislature interposed, and enacted 132 A COUESE OF LECTURES that the nearest of kin should have the goods of those minors who died intestate. The ordinaries were the substitutes of the bishops, who, very probably under the guise of rehgion, were endeavouring to obtain fuU control over such estates. 184. Regular and irregular marriages. — The solemnities required in the celebration of a regular marriage are set forth in the canons of Perth, made in 1264. From these canons we learn that marriage was prohibited ujiless three solemn announcements were first made in the church or churches of the parish or parishes where the parties dwelt, and could not be contracted unless before faithful and legal witnesses. The latter part of this law is founded on reason and good sense, but the former is now useless for the object which was intended to be accomplished, and ought therefore to be abolished, and some other means of giving pubhcity substituted in its place. (Vide statute of 1878.) Second — Criminal. 185. Treason. — In 1 424 it was declared that no man should openly or notoriously rebel against the king's person under the pain of forfeiture of life, lands, and goods (1 James I. "c. 3) ; that aU should assist the king to punish rebels under the pain of being charged by the king as favourers (Id. c. 4) ; and that receivers of rebels should suffer forfeiture (Id. c. 37). The acts of 6 James II. c. 14 and 15 (1449) also laid down that rebels should be punished according to the quantity and ON THE LAWS, BTG. OF SCOTLAND. 133 quality of their offence, and their comforters, council- lors, or maintainers punished as principals. It was also solemnly decided ia parliament in 1540 that an heir should suffer forfeiture for treason which was committed by his predecessor. This is another instance of parhament intervening and giving judg- ment upon a point of law in a suit pending in a court of justice. It arose out of a summons for forfeiture because of an ancestor's treason. Whereupon, as we are told, murmurs arose ; parliament was appealed to, and the point decided as I have said ; and it is expressly stated that this was done even although there was no special law, act, or provision of the realm on the subject. In the reign of James V. a charge was brought against Lady Glanuniss for conspiring to take away the king's life by poison, and against her son and her second husband for concealing the offence. She made a noble defence at her trial, and the judges felt ashamed to condemn her ; but, being bent on her destruction as one of the Douglas family, the king was inexorable, and she feU a victim to the king's barbarous cruelty. She was burned ; and her husband, who was also con- demned, was killed in attempting to escape from Edinburgh Castle. Her son was also condemned, but was released in the succeeding reign, and his estates restored to him by the legislature. It is popularly supposed that Lady Glammiss suffered death for witch- craft. An examination of the original documents proves this supposition to be a popular delusion. 186. Wilful burning and rcvpe made treason.- — A statute of 3 James V. c. 8 (1528) enacts that all persons 134 A COURSE OF LECTUEES guilty of wilful burning and fire-raising and ravishing of women should be compelled to give security as for slaughter, and if no security was given, be denounced rebels. 7 James V. c. 118, enacts that burners of com in bams or stacks were to be' justified, i.e. sentenced to death, or be banished for ever, and no remission of the offence was to be granted. 187. Beggars and idle men. — For the first time we come into contact with statutory provisions as to beggars and idlers. Those to be here noticed were made in 1424 and 1503. The former statute declares that no thiggers between fourteen and seventy shall be allowed to beg, unless they have " tokens " from the sheriffs or the council of burghs. Those who went about begging in contravention of this act were to be charged to betake themselves to crafts imder the pain of burning on the cheek and banishment from the country. The latter statute declares that the act of 1424 shall be enforced, and then goes on to state that the sheriff, provost, and bailies were not to allow any to beg, except cruiked folk, sick folk, impotent folk, and weak folk, under pain of one merk for every beggar found within their respective jurisdictions. This enumeration of excepted persons gives a hst of those who were afterwards entitled to parochial rehef. 188. Game. — On the vexed question of game I find a statute in 1424 by which those who slew deer were to be fined 40s. and their maiatainers £10 ; and inquisition was to be made by the justice clerk for such offenders. ON THE LAWS, ETC. OP SCOTLAND. 135 189. Summary. — Let me now sum. up the results of this lecture. First, The nobles have been seen to be exceedingly factious and ungovernable, and the state of the country wretched and deplorable. Second, A period has been reached when the country attained its present limits, and in which one body of law was appKcable to all the king's subjects. Third, The means by which the government was conducted has been further developed, the modifications made in the legis- lature indicated, and the functions of the king and the college of justice explained. Lastly, I have referred to a few of the laws which were made in the period under review, and have noticed one or two illustrative decisions. Looking at the whole, there are two observations which cannot escape the attentive observer of these times : first, the great body of the people — the nation as a whole as opposed to the nobles — ^have be- come a great power in the state ; and second, a great and terrible rehgious crisis is at hand. 136 A COURSE OF LECTURES LEOTUEE IV. FROM THE BEGINNING OP THE REFORMATION OF THE CHURCH TO THE GREAT REVOLUTION (1542-1688). THIRD EPOCH, — Scottish — second period. HISTORICAL SURVEY. 190. Meagre outline given. — To give a history of Scotland does not lie within my province nor the scope' of my design ; for the subject which I have in view is to shew what were the laws and legal institutions of our country at different periods, and I therefore assume an acquaintance with the common facts of Scottish history. I shall therefore not trouble you with more than the merest outline of the chief events of this period. 191. Beign of Mary. — All are familiar with the rejoicings on the return of Mary from France to Scotland; her attachment to the Eoman Cathohc faith ; Damley's murder near Edinburgh ; the queen's disgraceful marriage with BothweU; her abdication^ escape from Lochleven, defeat at Langside, flight to England, long imprisomnent of eighteen years, and death on the scaffold in 1586. ON THE LAWS, ETC. OP SCOTLAND. 137 192. Eeign of James VI. — James VI. may be said to have been king from 1567 to 1625, but he was quite an infant when his mother fled to England. During his minority Mtirray, Lennox, Mar, and Morton were regents. He took the reins of government into his own hands on Morton's death, and a long period of discord amongst the nobles was followed by one of comparative peacefudness. The Gowrie conspiracy, however, is evidence of the calamitous weakness of the monarchy, and of the power, audacity, and reckless- ness of the aristocracy ; and the perpetual feuds and disturbances among the Highland chiefe reveal great anarchy and confusion in the northern regions of the kingdom. The Reformation of the Scottish Church gave rise to many fierce quarrels, and the king was soon taught that the clergy of the new doctrines contended for privileges and immunities as great and as subversive of civil government as those claimed by the priests of Rome. Some of the phases of the Reformation I pass over tUl a later stage of this lectxire. With regard to the lands and great revenues of the old church I may mention that, although they were annexed to the crown, they were speedily and greedily swallowed up by the king's favourites. On Elizabeth's death in 1603, James removed to England ; and the xmion of the crowns of Scotland and England under one sovereign was at last accomplished. The king did much and laboured hard to bring abtut an entire incorporating union of the two countries ; but, in consequence of the national antipathies which had long existed, he did not succeed. As a necessary cou' 1S8 A COXJBSE OF LECTURES sequence of the king's accession to the English throne, it was decided by the English courts, in the celebrated case of the " Postnati," that persons bom in Scotland after the accession of James VI. were entitled to succeed to land situated in England. 193. Reign of Charles I. — Charles I. succeeded his father in 1625. He visited Scotland in 1633 ; and in 1637, by royal proclamation, the liturgy, drawn up under the eye of archbishop Laud for the use of the Church of Scotland, was ordered to be adopted. The attempt to enforce the king's command as to this matter caused serious riots in Edinburgh ; and then, in rapid succession, came the solemn League and Covenant, signed in Scotland in 1638 for the main- tenance of the Presbyterian form of worship, and in opposition to Episcopacy, which had been re-estabhshed by James in 1606 ; the beginning of the Civil War in. 1642 ; the king's defeat at Naseby in 1645 ; and his execution in 1649. These events were followed by the Commonwealth of England; the protectorate of Cromwell in 1654 ; the restoration of the Stuart family in 1660 ; and the defeat of the Scottish Covenanters at the Pentland Hills in 1666 and at Bothwell Bridge in 1679. 194. Reign of Ja/mes VII. — The brief reign of James VII. began in 1685. Shortly after his accession he issued his declaration of toleration, and assertion of absolute sovereign power ; but the estates of the Scottish parhament held he had no such power, declared his forfeiture of the throne, and conferred the crown upon the Prince and Princess of Orange, and their issue ; whom faihng, the Princess Anne and her issue ; and ON THE LAWS, ETC. OF SCOTLAND. 139 whom failing, William and his heirs. Here we have the first steps which led to the exclusion of Roman CathoHc princes from the British throne, and to the Protestantism of the sovereign being made a cardinal doctrine of the British constitution. 195. Regencies. — From 1542 to 1561, and from 1567 to 1578, Scotland was governed by regents, who were invested with all the powers of the sovereign. The regents were chosen by the estates of parHament, and little deference was paid to the wishes of a defunct king in the appointment of those who were elected to this high office. 196. The coronation oath of Jarnes VI. — At the coronation of James VI. on 29th July 1567, the king was about one year old, and a special oath was framed and taken by the earl of Morton on his behalf. This oath contained a promise to maintain rehgion, do justice, punish heretics, and preserve the crown property. On the other hand, the representa- tives of parHament swore that they would give due and lawful homage and obedience to the king. THE KOYAL PKEROGATIVBS. 197. The sovereignty limited. — The sovereigns of Scotland never had, by their own authority, any con- stitutional power to make laws. Some have asserted that the kings of Scotland had no legal power to refuse to accept the resolutions of the three estates ; and others have held that a majority of each estate was required for the making of a new law ; but, although 140 A COURSE OF LECTURES the king's right of veto in parliament was not finally settled till after the Union, I do not agree with either of these opinions. The legislative power in Scotland was entrusted, from the earliest times, to the king and his tenants-in-chief. In 1584 (8 James VI. c. 129) an act was passed by which the king's royal power over aU estates and subjects within the realm was confirmed. The words are " confirms the royal power and authority over all estates spiritual and temporal within this reahn in the person of the king's majesty our sovereign lord, his heirs and successors." This language, however, applies to the attempted rejection of the jurisdiction of the king and his council as to seditious speeches, and does not apply to an absolute, despotic right to govern the people. Indeed,in 1567 (1 James YI. c. 8) it is expressly laid down that the king shall rule his people according to God's word and the laws of the land. Again, in 1606 (18 James VI. c. 1) it is declared that his majesty, with the advice of his whole estates, ratifies, approves, and perpetually confirms his majesty's sovereign authority, princely power, royal prerogatives, and privileges of his crown, over all estates, persons, and causes whomsoever within his kingdom of Scotland, as absolutely and freely in all respects and considera- tions as ever his majesty or any of his royal progeni- tors kings of Scotland in any time bygone possessed, used, and exercised the same. 198. The sovereign appoints officers of state, privy councillors, and lords of session.— From, the earliest times the Scottish kings were assisted by various officials in the performance of their royal functions. I have ON THE LAWS, ETC. OF SCOTLAND. 141 already referred to several of these state officials, such as the lord chancellor, justiciar, and others. I have now to add that he was also surrounded by a council, which aided him in the discharge of his administrative or executive duties. The frequent references which are made to this body in the statute book show that its duties were exceedingly multifarious. Indeed, in some cases it is declared that no act shall be done by the king or regent imless sanctioned by a council chosen by the estates of parliament, e.g. James VI. parlt. 16. c. 4 (bullion), and 20, c. 14 (resignations and confirmations), and 23, c. 19 (prices of writs) ; Charles I. p. 1. c. 25 (penalties in J. P. court) ; Charles II. p. 2. session 1. c. 15 (price of ale, &c.) ; Charles II. p. 2. s. 1. c. 16 (bridges, &c.) ; James IV. p. 2. c. 12 (councU to king). In 1661 (sess. 1. c. 2) the estates of parhament ac- knowledged that it was an inherent privilege of the crown, and an undoubted part of the royal prerogative of the kings of the reahn, to have the sole choice and appointment of the officers of state and privy council- lors and the nomination of the lords of session as in former times preceding the year 1637. 199. He calls, prorogues, and dissolves pa/rliamient. — By a statute also passed in 1661 (c. 3) it is declared that the power of calling, holding, proroguing, and dissolving parhaments and conventions of estates resides solely in the king and his heirs and successors ; and that no parhament can be kept without the special warrants and presence of the king, or his com- missioners, nor any act or statute thereof binding without his special authority and approbation inter- 142 A COURSE OF LECTURES poned thereto ; and that none impugn or act to the contrary under the pain o£ treason. The rights asserted in this act harmonize with the theory of our constitution from the earliest times. 200. His powers as to peace and war. — I have no hesitation in saying thatj by the constitution of Scot- land, the right of making peace and war,' treaties and leagues with foreign princes and states, belonged to the king conjointly with his estates in parliament. This, as you are aware, was not the law in. England ; and this is one of the points in which a new principle was engrafted on the Scottish constitution by the union of Scotland with the sister country. As every one knows, however, the responsibility for peace or declaring war, and for making foreign treaties, rests upon the shoulders of the Queen's cabinet ministers, who are now virtually and essentially a committee of both Houses of Parlia- ment, and who can hardly do a single act without the support of a majority of both Houses of Parliament, and more especially of the House of Commons, who act as the guardians and defenders of the national resources. Indirectly, therefore, the Lords and Com- mons can put an end to warlike operations ; but the opportunity of exercising this power often arrives too late. The words of the statute of 1661 (c. 5) as to peace and war are to this effect : The estates of parha- ment declare that the power of arms and of making peace and war, or treaties and leagues with foreign princes or estates, doth properly reside in the king's majpsty, his heirs and successors ; and that it was and is their undoubted right, and theirs alone, to have the ON THE LAWS, ETC. OF SCOTLAND. 143 power of raising, in arms, the subjects of the king- dom, and commanding, orderiag, and disbanding or otherwise disposing thereof, and of all strengths, forts, and garrisons within the same, as he shall think fit ; and that the king's subjects shall always be free of the provisions and maintenance of these forts and armies, unless the same shall be concluded in the parHament or convention of estates. Those who violate this act are guilty of high treason. 201. The king and his deputes may decide all causes. — There can be no doubt that the prerogatives of the crown were greatly enlarged on the rest oration of the Stuart dynasty. Thus, e.g. it was declared by the estates of parliament in 1681 (3 Charles II. c. 18) that, notwithstanding jurisdictions and offices may have been bestowed by the king, his sacred majesty might, by himself, or any commanded by him, take cognisance of any case or causes which he pleased. This statute was a dangerous acknowledgment, unj*ecognised in the country for centuries past, wholly despotic in its nature, and fraught with terrible calamities to a free and high-spirited people. PAELIAMBNT. 202. The clergy as suchjmally excluded from parlia- ment. — You will remember that I have already told you that the estates of parHament consisted of the dignified clergy, the greater barons, and the com- missioners of counties and burghs. In consequence, however, of the changes which happened at and sub- 144 A COURSE OF LECTURES sequent to the Keformation, the Church occasionally was not specially represented in the great council of the nation, and at last was completely excluded fronj. all direct representation in the king's parliament. This latter state of matters may be fixed as having taken place on the final establishment of Presby- terianism in the reign of Charles II. When the doctrines of the Reformation were adopted, this exclusion was neither intended nor anticipated. For some time after the supreme authority of the pope in church matters had been overthrown in this country, there was a vacillation between the Presbyterian and Episcopal forms of church government. When Episcopacy was in force the bishops had seats in parlia- ment ; but, by the lay impropriations of the church lands, the prelates were shorn of their former wealth and lustre. Indeed, from the time of the Reformation the episcopal order virtually ceased to have any in- fluence on the affairs of the nation. Still, I ought to say that in. 1597 (15 James VI. c. 235) it was enacted that all pastors and ministers upon whom the king conferred the office, place, title, and dignity of a bishop, abbot, or other prelate was to have a vote in parlia- ment as fully as any ecclesiastical prelate had in any time theretofore. Three years afterwards, the Presbyterian Church passed a resolution that it might be represented in parliament by certain of its members chosen by the king, and that they were to resign their power to the general assembly of the Church every year. 203. Creation of peers. — With regard to the greater barons, the right to sit in parliament became ON THE LAWS, ETC. OF SCOTLAND. 145 leias than ever based on tenure of land, and more oh titles conferred by the sovereign as the fountain of honour. The result of this has been that there is not a single nobleman in Scotland entitled to a seat in parHament by virtue of tenure, that is to say, by his holding land immediately and directly from the crown, and therei is only one Enghsh nobleman who can make even a plausible claim to a seat in the British House of Lords by virtue of his title to a landed estate. One mode of conferring an hereditary peerage was by the king isstiing a writ corhmanding one of his subjects to appear in parlia- ment, and by this summons being followed by the actual presence of such person in the high court of parHament. If he never took his seiat, neither he nor his heirs were entitled to the honours of the peerage. Another mode was by the issuing of royal letters patent conferring the rights of the peerage upon the patentee and his heirs. 204. Peers could nominate proxies. — An act was passed in 1617 (22 James VI. c. 7) declaring that any lord of parUament, who was lawfiilly excused for absence from parliament, might give power to another lord of parliament of the same estate as himself to reason and vote for him. This statute did not extend to com- missioners of shires or burghs. 205. Life peers in Scotland. — That there were life peers in the Scottish parliament is not to be doubted. For example, the earl of Athole was made earl of Strathem for life in 1427 ; the earl of Crawford made duke of Montrose for life in 1489 ; the lord Douglas made duke of Hamilton for life in 1666 ; Sir Walter t ,146 A COURSE OF LECTURES Scott made earl of Tarras for life in 1660 ; and Francis Abercromby made lord Glassford for life in 1685. It ought to be observed that only one of those life peers was a simple commoner. 206. The British House of Lords must either sur- render its appellate jurisdiction or allow judicial life peers to he created. — ^Life peers, except bishops of the English Church, have been, in recent times, declared by the House of Lords to be opposed to the laws now existing as to parliament ; but how far this resolution ought to remain a part of the constitution is extremely doubtfiil, and might, with advantage to the interests of the nation, be again discussed. For my own part, I can see no objection to the highest officials of the state, whether judges of the supreme court, or high executive and military officers, at home or abroad, being placed in the same position as the great dignitaries of the English Church. It is perfectly clear that, if the House of Lords is to continue as the s^preme court of appeal in civil causes, some measures must be adopted to obtain the highest legal talent of the country without compelling the appellate judges to be burdened with the serious responsibilities of the hereditary peerage. The truth is, the legislature must adopt one or other of two courses, namely, it must either legalize life peerages, or agree to the aboHtion of the civil appellate jurisdiction of the House of Lords, and to the establishment of a new and independent court. Considering the historic glory of the House of Lords in relation to the administration of justice, and the confidence placed by the people in the integrity, wisdom, and learning of those who have hitherto ON THE LAWS, ETC. OP SCOTLAND. 147 presided in this august tribunal, I hope that the present jurisdiction will be retained, and that the creation of hfe peerages wiU be sanctioned. (Vide 39 and 40 Vic. c. 59, 1876). 207. The lesser barons. — As eariy as 1427, James I. authorised the • lesser barons to choose representatives to act for them ia parliament ; but this privilege long remained in abeyance. It was not tUl 1587 that the representation of the counties was placed on a satisfactory basis and really became operative. 208. Qualifications of electors and commissioners of counties, and payrmnt of expenses hy counties.^-'Bj 11 James VI. c. 114 (1587) the act of James I. was ratified, and the king's freeholders, who had 40s. a year in land, and actually resided in the county, were ordered to elect two wise men, who were freeholders of the king, had their dwellings in the shire, were possessed of good rents, and well esteemed, to act as commissioners of each shire, and have power to act in place of the shires. The freeholders of the cotinty were to be taxed for the expenses of the com- missioners. In 1661 it was enacted that, besides the 40s. heritors in capite, aU heritors, life-renters, and wadsetters holding of the king, and all others who held then- lands formerly of the bishops or abbots and then of the king, and whose yearly rent amounted to ten chalders of victual, or £1000 Scots (all feu-duties being deducted), should be and were capable of voting in the election of commissioners of parliament, and to be elected commissioners to parliament, "excepting 148 A COURSE OF LECTURES always from tMs act all noblemen and their vassals." The allowance to the commissioners was fixed at £5 Scots a day, and was to be paid by the whole free- holders, heritors, and life-renters holding of the king and prince, according to the value of their lands and rents within the shire ; but noblemen and their vassals were not liable to pay any part of it. In 1681 (3 Charles II. c. 21) it was declared, in reference to the election of commissioners for the counties, that where the lands do not appear to be of 40s. of old extent, the right to vote shall belong to all who are infeft in land which is Hable in public burdens for the king's supplies upon £400 of valued rent, held of the king or prince ; and farther, that Ufe- renters and husbands, in respect of the freeholds of their wives, or as having a right to the life-rent by the law of courtesy, should claim their votes ; and if they did not, the fiar should have a vote. The fiar and life-renter could not both have votes, unless for dis- tinct lands of the holding, extent, and value already mentioned. 209. Exposition of parliament in feudal times. — This last act, perhaps as clearly as any hitherto in the statute book, discloses the grounds upon which the representation in the Scottish parliament was based. Possession of land was the basis of the whole structure, and an essential condition was that it should be held directly from the king. Thus the dignified clergy sat in the feudal parliament as freeholders or barons in ca/pite, and the greater barons also appeared as freeholders of the king, and not tiU afterwards as peers created by the sovereign power. Moreover at ON THE LAWS, ETC. OF SCOTLAND. 149 this time the tenants or vassals of the nobles had no representatives in the king's parhament except their own lords ; and, as I have shewn, were not hable to pay any part of the wages of the commissioners of the lesser barons. The lesser barons, although at one time obhged to attend the king in his great council, were ultimately released from the duty of personal attendance at the king's court, and compelled to elect commissioners to appear in their stead, to whom their whole powers and privileges were committed. This idea is fully carried out in regard to the lands which had belonged to the dignified clergy, and which remained ia the hands of the king, and did not fall into those of the nobles. In the royal burghs, ia other words,- in the burghs which had the right to send commissioners to the king's parliament, the only persons who had a right to vote for the biirgh commissioners were the burgesses, who were obhged to be holders of land within the burgh. Thus it appears that, according to the consti- tution of Scotland in the feudal period, none, either in town or country, except freeholders and burgesses of the king, had any right to sit or be represented in parhament. During the feudal period, and long after it came to an end, the great body of the people in Scotland had no place whatever in the national assembly. 210. The lords of the articles. — The lords of the articles, or, at all events, members of the Scottish legislature exercising functions as committees of parha- ment for the prehminary investigation of matters to 150 A COURSE OF LECTURES be brought before the whole house, take us back to the most ancient records of the kingdom. Thus, in the time of David II., the parliament transferred its powers to certain of its members, and then adjourned ; and the usual course was to adjourn the parliament for a time sufficient to enable the lords of the articles to bring to maturity the measures to be decided upon by the whole parHament. These lords were select committees of parHament, and, at first, were elected by the estates for the better management of business. In the preface of the acts of James I. (1424) it is stated that, after the conven- tion and assembling of the three estates, certain persons were chosen for the determination of the articles laid before them by the king, and leave to go away was given to the rest. A similar preamble amongst the Black Acts, though not in the common editions of 1681 and 1682, is found in a statute of James III. Again, in the acts of James IV. (Black Acts, foHos 84 and 85), the lords of the articles affirmed the desirableness of friendship and alliance with France, Denmark, and Spain; and thereupon power was given to the chancellor and the king's secret councU, afterwards known as the privy council, to carry this expression of opinion into force, and money was voted for an embassy to Denmark. Further, on the recom- mendation of the lords of the articles, and for the proper support of the king in all his full honour and dignity, it was ordained by the parliament that aU gifts, donations, infeftments, &c., since the coronation of James IV. should be abrogated and annulled. Ac- cording to a statute of 11 James VI. c. S7 (1587) aji ON THE LAWS, ETC. OP SCOTLAND. 151 equal number of each estate was to form the committee known as the lords of the articles, the smallest number from each estate being six and the greatest ten. Further, an act of 14 James VI. c. 218 (1594) ordains that, when the parHament is ordered to be proclaimed, a convention shall be appointed, composed of four of each estate, to meet twenty days before the parHament to receive all manner of articles and sup- plications concerning general laws, or touching par- ticular parties. It also provides that his majesty might present such articles as he thought good con- cerning himself, or the commonwealth of the realm, at all times when he thought it expedient. At last, the lords of the articles became the source of intolerable injustice. By Charles II. par. 1. sess. 3. c. 1 (1663), the lords of the articles were, by the manner of their election, subordinated to the will of the king ; and they were consequently abolished by William and Mary, p. 1. s. 2. c. 3 (1690), and the injurious act of 1663 was rescinded. As far as can be gathered from the public records, it appears that these lords of the articles were chosen to prepare and facilitate the progress of public business. Until converted into the instruments of tyranny and oppression at a late period of their existence, they were most useful in carrying on the affairs of the nation, arid in the working of parhamentary institutions in Scotland ; and I venture to think that a similar body would be highly advantageous in our parliaments of the present day. In some form or another, an analogous body will soon require to be appointed for the British House of Commons. 152 A COURSE OF LECTURES I will now endeavour to lay before you the various steps which led to the establishment in Scotland of the Presbyterian form of church government. THE CHUECH. 211. The French and English factions. — It will be remembered that James V. was strongly opposed to the separation of the Scottish Church from the see of Rome. His death, followed by the minority of Mary and the regency of Murray, greatly contributed to the pro- pagation of the reformed doctrines amongst the people. The nobles were divided into two 'hostile camps, and their predilections for France or England determined their attitude towards the Reformation. The partizans of Mary of Lorraine the queen-regent and of the French alliance defended the old Church, and those of the English factions favoured the reformers and their doctrines. Apart from these pohtical factions, but not ; independent of the EngHsh party, stood the great, body of the nation, and especially the inhabitants of large towns. The majority of the townspeople were strongly attached to the Reformation, and really brought it to a successful termination. When the whole strength of the people is put forward ia any cause it becomes irresistible. 212. Many reforrfiers suffered death, and Knox was long in exile. — Amongst the many reformers who suffered at the stake one of the most prominent was Wishart, ■wrho was burned as a heretic at St. Andrews. His death was intimately connected with the assassi- ON THE LAWS, ETC. OF SCOTLAND. 153 nation of Cardinal Beaton in the castle of St. Andrews in 1546, and with John Knox's banishment to the French gaUeys in 1547, and the enforced absence of the great reformer from Scotland till 1559. During the interval, Knox had been several years in Geneva, where Presbyterianism had been established underthe auspices of Calvin. After Knox's return, and tiQ his death, Knox became the central figure in aU ecclesiastical, and in most civil matters, in Scotland. He was a man of whom any nation, or any age, might well be proud. 213. Early reforms contemplated, and the first Covenant signed. — In 1541 an act was passed against the abuses of the clergy, and in 1542 a project was mooted for the translation of the Old and New Testa- ments into the vernacular language. Then in 1549 there was a meeting of the provincial church, and sweeping reforms were agreed upon. Amongst these were the putting away of clerical concubines, resolu- tions to live soberly, not to trade, to reform the manners and rules of the monks and nuns, and for the better administration of the consistorial courts, and a strict inquiry into all charges of heresy. For these reforms there was the greatest need. As yet there was neither disloyalty to the church nor to the crown. The great event which caused a marked difference between the reformers and their opponents was the signing of the first Covenant in 1557. This document contained two resolutions : first, That the book of common prayer should be read every Sunday by the curate if able, and if not able by the best qualified man in each parish ; and second. That there should be a quiet teaching of the Scriptures 154 A COURSE OF LECTURES privately, and afterwards by true ministers. The leaders of the Protestant party then formed them- selves into the body known^ as the Lords of the Congregation, and presented remonstrances to the queen-regent, demanding a reformation of abuses, and the estabhshment of reHgion on the basis of the resolutions of the Covenant. 214. Alliance between the Lords of the Congregation and Queen Elizabeth. — The queen-regent asked for delay, and counselled moderation. Shortly afterwards De Bethun came from France as ambassador, and then began the intrigues of the Guises against the new doctrines, and the Protestant schemes for an alliance with England. In 1559 some of the reformed clergy were called before the privy council at Stirling, and outlawed. In quick succession came the riots of Perth, and afterwards the celebrated wrecking of the cathedrals and monasteries. This was the critical moment of the Scottish Reformation ; and about this time a treaty was concluded between the Lords of the Congregation and Queen Elizabeth for the defence of the ancient rights and liberties of Scotland. The main object of this treaty was the expulsion of the French from Scotland by Elizabeth's assistance. This was soon accomplished. 215. The estates adopt the principles of the Refor- mation. — The queen-regent died in 1560. The estates, having been assembled on the 17th of August 1560, on the 25th, ratified and approved of the Confession of Faith, abjured the pope of Rome, and declared that those who administered, or were present at the administration of, mass were to be punished, for ON THE LAWS, ETC. OF SCOTLAND. 155 the first offence, by the loss of their goods and by- corporal inflictions ; for the second, by banishment ; and for the third, by death. On the demise of her husband Francis II., Queen Mary left France, and arrived in Scotland in Septem- ber 1561. She, as aU. know, was a Roman Catholic ; and, although she never expHcitly ratified the resolu- tions of the estates of 1560, she agreed, by royal proclamation, to allow the rehgion of the nation to remain as it existed on her arrival from France. Thus the power of the pope was overthrown in Scotland, and the reformation of the Scottish Church was virtually established. I will now briefly indicate some of the prominent changes which were effected in the rehgious practice and habits of the nation ; and thus explain the government and doctrines of the Church substituted for those which had been abohshed. 216. Complaints against lay impropriators. — Disputes soon arose as to the temporalities of the Church, and Knox and the Protestant clergy denounced those who had seized upon the Church's patrimony. The lay impropriators were chiefly Pro- testant nobles. Redress was hopeless ; for these nobles kept a firm grasp of the temporalities of the Church, and were not frightened at the threats which the clergy hurled against them. Amongst the objects to which a portion of the Church revenues was intended to be devoted by Knox and his feUow-labourers was the appropriation of the town revenues, and un- . destroyed edifices of the monastic estabHshments, for schools and colleges and such like purposes. This most 156 A COURSE OF LECTURES laudable scheme was defeated by the rapacity of laymen. 217. Popery condemned by the general assemlilyj civil war, and Murray appointed regent.^ — ^At a general assembly of the Church' in 1565, resolutions were adopted against popery and the celebration of mass, and in favour of establishing the true religion, and of a certain amount of church attendance being made compulsory by act of parliament, and of the ecclesiastical revenues being handed over to the Church. These were presented to the queen, and the answer was that she would allow freedom of conscience to aU, and wished it for herself, and declined to comply with the request as to the church property. The truth is, the queen was taking steps to oppose the national wishes by force. The Protestant party there- fore flew J;o arms, defeated the queen's forces, and appointed the earl of Murray regent for the kingdom. 218. The Protestant religion established by law. — By 1 James VI. c. 3 (1567) the pope's authority in Scot- land was abolished, and all acts of parliament made contrary to God's Word and the maintenance of idolatry were annulled, and the confession of the reformed faith and doctrine was placed on the statute book of Scot- land. The mass was also aboHshed, and all who heard or said the same were liable to punishment : 1 James VI. c. 5. Thus, what was done by the estates of parliament in 1560 was ratified by the legislature of 1567, and the Protestant religion was firmly estab- lished in Scotland according to law. 219. The doctrines, discipline, and form of worship. —In the first Book of Discipline approved of, ON THE LAWS, ETC. OF SCOTLAND. 157 published in 1578, the system of Presbyterianism, comprehending sessions, presbyteries, provincial synods, and general assemblies, will be found. A Protestant assembly was held in Scotland in 1559. It declared thstt the high dignitaries of the old church were simply ministers of the new ; that super- intendents were to be appointed to act as a kind of executive of the assembly and synods ; that there ought to be one rule for all the clergy ; and that no one who was not elected by the people, and examined and admitted by the superintendent, could be nominated to a kirk. A printed liturgy or prayer book for pubhc worship was sanctioned by the Reformed Chtirch in 1557. This liturgy stood in marked contrast to the Roman Catholic breviary by its rejection of the pontificate as a divine hierarchy, of the real presence, of the spiritual efficacy of the sacraments, of the power of absolution, of purgatory, and of the effective intervention of the saints. There was also another liturgy, known as the Geneva or Knox's, published in 1560. This second Uturgy (edition 1565) was sanctioned by the chtirch authorities in Scotland and also by Calvin ; and in the year 1564 ministers were exhorted to use it. The Geneva Uturgy can be traced here and there in the country for a century, and then disappears from pubhc use in the churches. 219. Episcopaxiy held unscriptural, and Presby- terianism established in 1592. — At a convention, called a general council, held in Leith in 1572, archbishops and bishops were to be allowed to remain in the Church tin the majority of the king, or till an alteration was 158 A COURSE OF LECTURES made by parliament, but they were to be subject to the general assemblies ; and even the regular clergy, e.g. the abbots, were to be maintaiued in the Reformed Church. But the Protestants were alarmed by the terrible massacre of St. Bartholomew ifi. October 1572. A general assembly was therefore immediately held iri which a rigid enforcement of the laws against papists was demanded, and great popular zeal was aroused in favour of Protestantism. Hitherto there was not a single word in the statute book as to any change in the ordinary government of the Church. Even in 1 572 parhament decided that the true kirk was to be maintained by lawful archbishops, bishops, superintendents, by ministers and readers, and by a combination of dioceses and provinces. Knox died in 1572, and was succeeded by John Craig and Andrew Melville as the leaders of the Reforma- tion. It was not till 1574 that the general assembly resolved that bishops should be placed on the same footing as superintendents ; nor till 1580 that the ofl&ce of bishop, as exercised in Scotland, was held to be unscriptural, and that, for the office • of pastor, a bishop must be re-admitted to the Church by the assembly, and whoever should act in contravention of this finding was to be excommunicated. Then came the second Book of Discipline, completed in 1581, and called the King's Confession, which had the defence and support of King James VI. for its practical object. The legislature was now ripe for an entire change of church government, and conse- quently, in 1592, abolished Episcopacy in Scotland, and estabhshed Presbyterianism. ON THE LAWS, ETC. OF SCOTLAND. 159 220. King James VI. and his clergy. — For a con- siderable time, the attacks made from the ptdpit upon the king, the court, the nobles, and private individuals were a source of great complaint, and had almost become unbearable. The claims of clerical inde- pendence were exorbitant and incompatible with civil government. The disputes on these points were partially arranged at a general assembly held in 1597, when it was declared to be lawful for the king to propose remedies for matters affecting the external government of the Church ; that none of the king's laws were to be reproved till a remedy was sought in the Church courts ; that no man's name should be mentioned in the pulpit unless his sins were notorious ; that every summons from a Church court should state the cause and crime alleged ; and that, in all the principal towns, the ministers were to be chosen with the consent of the congregation and the king. James was deterinined to subdue the High Church party in Scotland, and gained an easy victory. A general assembly of the Church was proposed to be held in Aberdeen, but it was prohibited by royal proclama- tion. Several persons were apprehended for dis- obedience to the king's conmiands, and some of them were tried by the secret council. The prisoners objected to the jurisdiction of the king's council on the ground that the matters charged against them were spiritual, but they were banished for life from the king's dominions as guilty of high treason. Another case arose out of words spoken in the pulpit by Andrew Melville against King James 160 A COURSE OF LECTURES and Queen Elizabeth. Melville called Elizabetli an atheist. He was summoned before the privy council, declined its jurisdiction at the instigation of the Church courts, but was found guilty, and fled across the border. The Church then made a vain protesta- • tion that, for words spoken in the pulpit, the speaker was not liable to be punished by a civil, but only by an ecclesiastical court. 221. James VI. hent on establishing Episcopaoyi—^ James continued to press forward his own notions: of church government upon Scotland, and in 1606 Episco- pacy was established. General assembhes were to be authorised by the king, and no act of discipline, or other ecclesiastical right, was to be valid, unless, sanctioned by the bishops ; and the act of 1567 was repealed. A general assembly was afterwards held in Perth in 1618. Five articles were there agreed upon: first, kneeling at the sacrament; second, commimion in private houses only in cases of sickness ; third, private, baptism on necessary cause ; fourth, confirmation of children of eight years old by a bishop ; and fifth, the/ order for keeping hohdays. These articles received; the sanction of the estates of parhament in 1621 ; and in the reign of Charles I. an agreement or sub- , mission as to the appropriation of the ecclesiastical property in lay hands was ratified by the estates, in 1633. 222. The Episcopal Church constituted hy royal warrant. — The canons and constitution ecclesiastical for the government of the Church of Scotland were given forth to the public under the hand of King ON THE LAWS, ETC. OF SCOTLAND. 161 Charles I. by a royal warrant issued in 1636. They contained a complete code of ecclesiastical law, and were issued by the king without official consultation with the pohtical or ecclesiastical representatives of the nation. This warrant, which is without parallel in the history of Europe, astonished and alarmed our forefathers, and roused them to a just wrath and indignation against the king's tyrannical conduct as a flagrant attack upon their civU and religious liberties. 223. The popular indignation against the royal proclamation of 1638. — A proclamation, dated the 20th day of December 1638, was issued to enforce the new book under the pain of being put to the horn, i.e. of outlawry. Legal suspensions of the threatened writs of homing followed, and virtually succeeded in the civil courts ; great mobs assembled in Edinburgh, and large numbers crowded into the metropolis ; pro- clamations were issued ordering strangers to leave the city, and threatening the removal of the king's council and the supreme courts of justice ; but the people crowded to Edinburgh, and four tables or committees were formed, representing the nobles, lesser barons, burgesses, and clergy, in support of the popular cause. The king issued another proclamation commanding j obedience to his church service, and the committees issued a counter-proclamation full of fierce denimcia- tions, and asserted that their object was to maintain their religion, laws, liberties, and king. 224. Behellion followed, and the act of 1606 repealed. — ^Eebellion followed both in Scotland and England. The Scottish Covenanters began to organize themselves; and negotiations were tried and failed. 162 A COURSE OF LECTURES Charles I. then attempted to carry out his religious ideas by force, but ultimately authorised the duke of Hamilton to grant free general church assemblies and free parHaments, and abandon the service book, canons, court of high commission, and the articles of Perth. A general assembly was accordingly held in November 1638 ; but Episcopacy being attacked, and laymen appearing in the assembly, the king's commissioner resolved not to countenance it. Still business went on there without him, and the act of 1606 establishing Episcopacy was repealed, and the Covenant was ordered to be signed by ministers of the universities, colleges, and schools, by aU scholars on taking their degrees, and by aU ministers of the kirk and kingdom. These proceedings were approved of by the parliament of 1640. 225. The Westminster Assembly. — The Westminster Assembly was constituted by an ordinance of the Lords and Commons of England on 12th June 1643. Its object was to abolish bishops and other dignitaries in the Church, and settle the Reformed religion. It consisted of a hundred and twenty-one clergymen, with ten peers and twenty members of the House of Commons as lay assessors. Certain Scottish commissioners were also invited to attend, and were present, but declined to vote. The Assembly passed these resolutions : 1. That the Reformed Protestant Church in Scotland should be preserved; and 2. That prelacy, super- stition, heresy, and schism should be extirpated. The majority of the parliament, by which this Assembly was authorised, were determined not to allow any Church organization to domineer over the civil govern- ON THE LAWS, ETC. OF SCOTLAND. 163 ment, and consequently the claim which was set up for the divine origin of Presbyterian Church govern- ment was strenuously resisted ; and in the parlia- mentary ordinances of the 14th March 1646, the parliament was made supreme, and the Church subordinated to the civil power. 226. The Westminster Confession of Faith, &c. — Amongst the finits of the Westminster Assembly were the Westminster Confession of Faith and the Larger and Shorter Catechisms. This Confession fixed, for the first time, the canonical or acknowledged books of Scripture ; and the Catechisms are sufficiently weU known to aU of you without any observations from me as to their contents. 227. The Commonwealth opposed to ecclesiastical supremacy: restoration of the Stuart dynasty. — A general assembly was attempted to be held in 1653 ; but Monk, Cromwell's lieutenant-general, would not allow it to transact business. He was told that the assembly was held by the laws of God and the land ; but he peremptorily dissolved it, and ordered its mem- bers to depart fi-om Edinburgh. The Commonwealth was swept away almost on Cromwell's death, and the Stuarts were restored to the British throne in the person of Charles II. 228. Episcopacy again established, and the Presby- terian clergy persecuted. — Soon after the accession of Charles II. James Sharp was sent to London as the representative of the Scottish Presbyterians; and, after remaining some time in England, came back to Scotland as archbishop of St. Andrews. His return was followed by the act of 1661 for the restoration 164 A COUESE OF LECTURES of the ancient government of the Church by arch- bishops and bishops. About the same time, the Covenant was solemnly burned by the hangman ; and in 1662 the oaths to the League and Covenant were declared unlawful, and against the fundamental laws of the realm. Afterwards an act was passed prohibiting Presby- terian ministers from exercising their ecclesiastical functions, and declaring the churches of recusants to be vacant. Three htmdred and fifty of the clergy abandoned their benefices rather than surrender their reHgious convictions. 229. Laws against non-conformists. — In 1663 a statute was made against absentees from regular worship in the parish chiu-ches, and fines were imposed for absence. The Court of High Commission, which was instituted for the punishment of aU offences against the ecclesiastical regulations of parliament or the privy coimcil, was restored. In 1670 an act was passed against conventicles, or unlicensed places of worship ; and writs of intercommuning were raised in 1676 against those who held intercourse with persons who had broken the laws as to conventicles, and heavy penalties were imposed on the offenders. The Cove- nanters made great preparations to prevent those writs from being enforced, and they defeated Graham of Claverhouse. The rebellion increasing, the Duke of Monmouth was sent by the government against them. The duke defeated them on 24th June 1679, and Hack- ston and CargUl, two leaders of the Cameronians, were tried and executed in Edinburgh. Revolting cruelties were, at this period, inflicted upon the Covenanters. ON THE LAWS, ETC. OF SCOTLAND. 165 230. Ja/mes VII. and his grcmts of indulgence. — After James VII. who was a Eoman Catholic, ascended the throne, the Scottish parliament re-enacted the test acts, and was sternly opposed to the Covenanters. But in 1688, a full and effective indulgence was granted by the king to the moderate Presbyterians, and to all, whether papists or quakers, who apphed to the king's grace for toleration. This offer of indul- gence did not stop the persecution of the conventiclers ; and Renwick, the head of the Cameronians, was put to death in 1688. 231. The revolution of 1688.— The downfall of James VII. was at hand. The great body of the people of Scotland were Presbyterians, and would have nothing to do with the king, or his proclamation which was both illegal and arbitrary. The Scottish parha- ment therefore declared that the king had forfeited his right to the throne, and then bestowed the crown upon the Prince and Princess of Orange. 232. Concluding rcTnarhs on the progress of the Reformation. — These deductions are, I think, fair and reasonable : First, The Church of Scotland is a national institution, and derives its authority as a national establishment from the supreme legislative power of the country. Second, As a national institution, it is subject to the legislature, and may be altered in its constitution, and even abolished, by the supreme council of the nation. Third, Its revenues, so far as derived from national funds or resources, may be with- drawn and appropriated to other purposes. Fourth, As the Church was endowed for the propagation of rehgion, piety, and charity, so, on the other hand, if 166 A COURSE OF LECTURES it shoTold ever be disendowed, its revenues should be directed to really kindred and national objects, such as education and the like. Lastly, As the freedom of individual thought is the chief corner-stone of the Eeformation, and its best justification, it ought never to be forgotten that this is the fundamental doctrine of religious Hberty and toleration ; and that, whatever may be the difference in rehgious opinions or practices, neither the state, nor any corporate body, nor any individual, ought to impose religious opinions or observances upon another. The cardinal doctrine of rehgious as well as of civil freedom is, that every , one ought to be free to do or think what he pleases, provided he does not interfere with the like freedom of others. The administration of justice, which continued, during the period under consideration, very much in the same condition as we left it in my last lecture, must now engage our attention. THE ADMINISTRATION OP JUSTICE. 233. The College of Justice : the judges not to take ■ bribes, and to be properly qualified. — Certain acknow- ledged abuses required to be swept away. It was therefore declared in 1579 by 6 James VI. c. 93 (1st), that no lord of session by himself, his wife, or servants, should take any bribe, goods, or gear from the pursuer or defender, under the pain of deprivation, iofamy, and escheat of movables, and that the offender's person should be at the king's will ; and (2nd) that the king ON THE LAWS, ETC. OF SCOTLAND. 167 should nominate, as lords, men fearing God, able and having sufficient hvings of their own, and who should be tried by a number of the lords ; and, in case the person presented should not be found qualified, the lords might refuse to approve of him, and the king should present another. A statute was also passed in 1592, 6 James VI. p. 12. c. 132, in sirmlar terms as to the persons to be elected, and further that the lords should not be less than twenty-five years of age. 234. They were not to judge in their friends' causes. — By 6 James VI. p. 14. c. 212 (1594) it was enacted that no lord of session, ordinary or extraordinary, might sit or vote ia any cause in which the pursuer or defender was either his father or brother or son. This statute was afterwards extended to all degrees of affinity, and to all cases ia which the lords were uncles or nephews of the litigants : 3 Charles II. c. 13. 235. The nobile officium. — By 1 James VI. c. 18 (1567), it is declared, ia answer to an appUcation made by the senators of the CoUege of Justice, that, notwithstanding any confirmation by the king, or grant of parhament past thereupon, the CoUege of Justice should be competent to decide ia actions for the reduction of infeftments. Thus, this court, like the supreme court of the United States, was invested with a most extraorclinary appellate jurisdiction, and, in a manner, placed above the legislature. It has always claimed a certain degree of legislation; but it is difficult to see how it could lawfully exercise any authority which was not given to it by the supreme power either expressly or by implication. . 168 A COUBSE OF LECTUEBS 236. The Comt superseded by €rormdVs civil tribumd, and re-established by ChoA'les H.-^During the Gdmmonwealth the Court of Session was abolished, and was superseded by the civil tribunal established by Cromwell. This court had four Englishmen and three Scotchmen as judges; and, although the pro- ceedings of the new court were ratified in 1661, it' was made lawful for any one, who had been injured by it, to bririg any decision under the review of the Court of Session, within a year of the re-establishment of^ the Court of Session, or, if the party injured was a minor, of his majority: 1 Charles II. c. 12. 237. Matrimonial causes relegated to the Court of Session. — It will be remembered that, during the exis- tence of Roman CathoHcism iu Scotland, churchmen exercised an extensive jurisdiction in civil matters and especially in matrimonial causes. In the reign of Queen Mary a temporary court was erected in the place of the consistorial court of the bishops, but it did not long con- tinue in existence. The want, created by the abohtion of Episcopal jurisdiction in this matter, was supplied by 20 James VI. c. 6 (1609), whereby it was declared that the lords of session should be the king's great con- sistory, and a supreme commission was granted to them : in all consistorial causes. As may be seen fitim the reports as to actions for divorce in Scotland, this juris- diction is retained by the Court of Session to the present day. 238. Constitution of the Court of Justiciary under James VI. — By 11 James VI. c. 81 (1587) the justice general, or his majesty under the quarter seal, was to appoint eight deputes from the lords of session or ON THE LAWS, ETC. OF SCOTLAND. 169 experienced advocates; two for each quarter of the reahn, with a depute from the treasurer and another from the justice clerk ; and, in order to prepare for the justice courts, the king, with the advice of the chancellor, treasurer, and justice clerk, was to give commission to honourable men in each shire, with four of the council of each burgh within itself, who should be the king's justices, and should have power to take up indictments by themselves, or by a sworn inquest of sworn men, of greater crimes, and either to apprehend the persons delated, -or deliver them in person to the crowners every month that he may secure them to the next ayre ; and for lesser crimes, to do justice them- selves, and for that end to meet fom- times a year. Further precepts were to be sent to the crowners and sheriffe and officers of arms for the said moviag assizes, and each assizer was to appear under pain of a fine of £10. 239. Remodelled to the existing form by Charles II. — During the reign of Charles II. the justice deputes were suppressed, and five lords of session were added to the justice general and justice clerk. The court thus constituted was to form the Court of Justiciary ; four judges, except on circuits, were to be a quorum, and in the vacation of the session three ; and aU the judges were ordered to meet in Edinburgh in July yearly: Charles II. p. 2. s. 3. c. 18, and Charles II. p. 3. c. 22. With slight modifications this high court of criminal justice, as thus constituted, has existed for upwards of two hundred years. Kecently, it has been suggested that the circuits might almost be abolished, or, at 170 A COURSE OF LECTURES least, that the jurisdiction now exercised on circuit might to a great extent be entrusted to the inferior tribunals. Perhaps, the best way of arriving at a satisfactory result would be to restrict the jurisdiction of the High Court of Justiciary to the pleas of the crown, and relegate all other serious offences to the sheriffs. 240. The jurisdiction of the Court of Admiralty. — The court of the lord high admiral was a sovereign judicatory, and is mentioned in the statutes of James VI. in. regard to its rights and procedure : James VI. par. 12. c. 157 ; lb. p. 18. c. 10, and lb. p. 22. c. 15. Its powers were ratified by Charles II. p. 3. c. 16, and its jurisdiction minutely described. The lord high admiral had civil and criminal jurisdiction on the high seas and the navigable rivers, and the sole and exclusive jurisdiction of aU maritime causes, foreign or domestic, civil or criminal. 241. The jurisdiction of justices of the peace. — In the reign of James VI. justices of the peace were introduced into the legal system of Scotland. They had long before existed in England. Their duties are extensive and multifarious, being chiefly concerned with the keeping and the maintenance of peace, and dififiising goodwill amongst neighbours. Thus far they have exercised a beneficial influence on the community. Amongst the matters entrusted to them were the fixing of fees or wages for servants, prices for craftsmen, the punishment of idle persons and Egyptians and their resetters, supervision of highways, injuries to trees, ON THE LAWS, ETC. OF SCOTLAND. 171 brewing ale, appointing visitors for ale houses, and the punishment of drunkards, cursers, and swearers, or mockers of piety ; and, in all heinous crimes, the apprehension and bailment of offenders, the examina- tion of witnesses, the handing over of the charges to the quarter sessions or other criminal courts ; and the making of lists of the poor, and the appointment of overseers of those who needed parochial relief Here I may be allowed to make a few observations on some features of the administration of justice, for which I have not hitherto had a more suitable opportunity. 242. Abuses in the Court of Session, and yet Ho appeal to parliament till after the Union. — It is to be feared that, during this period, the administration of justice was far from being pure. In the reign of Charles II. there was a clear case made out against the Duke of Lauderdale for tampering with the administration of justice in fartherance of his personal aims. The duke was an extraordinary lord of session, and wishing a Mend of his to succeed in a suit before the court, he sat and voted at the giving of judgment. The defeated Htigant appealed to parHament; the advocates for the appellant were suspended by the Court on the ground that no such appeal could be brought ; a great number of the Scottish bar supported the appeal ; and the contest lasted for two years, arid ended in 1676 by a compromise. That an appeal could ibe made to the British parliament was aflBrmatively .^decided after the Union. 172 A COURSE OF LECTURES 243. Torture used, and the emi of Gowrie exhvmfd^ and declared a traitor. — During this period, although advocates were allowed to appear in court for prisoners charged with treason, the thumb-screw and the boots were not unknown as instrumelits of torture for the purpose of eliciting confessions or disclosures of guilt. Towards the earl of Gowrie, who was concerned in a conspiracy against James VI., a strange and revolting proceedure was adopted. He was taken from his grave, laid before parKament, adjudged a traitor, and his estates were forfeited. I am thankful that Mac-, kenzie and HaUes both say that this barbarous , and inhuman exposure of a dead man's body was not required by the laws of our country, and can only be , accounted for by the intense hatred which James VI. felt against the house of Ruthven. 244. Letters of jvre and sword. — ^A curious custom long existed in Scotland, authorised by the king or the supreme court, under the title of Letters of fire and sword. These were issued against a pubhc enemy, or against some great offender, at the instance of a private person who could not otherwise get relief They were frequently used against the chiefs of the north, and terrible havoc and devastation were perpetrated under their sanction. Of these, let two instances suffice. In 1583 James V. issued a mandate against the Clan Chattan, in which he charged the lieges to invade the Clan " to their utter destruction by slaughter, burning, drowning, and otherways, and leave no Uving creature of the Clan except priests, women, and bairns." The massacre of Glencoe wiU serve for another example. The massacre of the ON THE LAWS, ETC. OF SCOTLAND. 173 Macdonalds at Glencoe was a disgraceful act of tyranny, oppression, and treachery. It must ever cast a dark shadow on the glorious name of WilHam III. These Letters may be looked upon as a remnant of the old right of private vengeance. 2'45. Register of deeds as to land. — Closely con- nected with the administration of justice is the admirable system of registration in Scotland for all deeds affecting land. It was introduced in the reign of James VI. and has continued till this day to the entire satisfaction of the Scottish people. Vide 22 James VI. c. 16 (1617) ; Charles II. par. 2. sess. 1. c. 3 (1669). It was extended to burghs by Charles II. p. 2. s. 3. c. 16. As to crown charters, vide 23 James VI. c. 24 (1621) ; and as to minute books, vide Charles II. p. 2. s. 3. c. 7 ; and lb. p. 2. s. 3. c. 16. The leading principle of the system is that, unless registered, no deed affecting the right to land shall injure a third person who has registered his conveyance, mortgage, or other right, in the pubhc records kept for the purpose. Thus, although a conveyance to land is granted on one day, and another on a subsequent day, yet, if the latter is registered first, it will be preferred in law to the one first executed. At the same time, although the first deed would be null and void as to a third party, it would not be so as to the grantor and his heirs. Vide William & Mary, par. 1. sess. 6. c. 18 (1694). 246. System should be adopted in England. — The want of this kind of pubhc register has been severely felt in England. The remedies proposed are aU defective 174 A COUKSE OF LECTURES in principle, and will never be effective until the law im- peratively insists on a complete record of all transactions as to land, or, at least, gives some tangible advantage to landowners, heritable mortgagees, and others, who submit to public registration in order to enable the pubhc to know what rights and obHgations attach to particular lands, houses, and tenements. I wiU. now mention the most important civil and criminal laws passed between 1542 and 1688. LAWS, CIVIL AND CRIMINAL. First — Civil. 247. Lands may he entailed. — In 1685 (1 James VII. c. 22) an act was passed by which it was declared to be lawful to entail lands and estates, and to sub- stitute heirs in entails with such provisions and conditions as the owners thought fit, and to restrict the rights of the actual possessor of such lands in such manner as to make it unlawful to the heirs of entail to sell, alienate, or dispone the lands or any part there- of, or contract debt, or do any other deed whereby the same might be appraised, adjudged, or evicted from the other substitutes of the entail, or the succession finistrated or interrupted; declaring all such deeds to be in themselves null and void. If the terms of this act were not strictly observed, neither creditors nor singular successors, who had contracted hook fide with the person who stood infeft in the entailed estate, were to be injured. The fines and casualties due to the king and the superior were not to be affected by such entails. ON THE LAWS, ETC. OF SCOTLAND. 175 No serious attempt has been made till recent times to abrogate tHs law. Whatever may have once been the policy of the nation, there is not now any valid reason for protecting land to a particular series of heirs for all ages in such a manner as to compel bon4 fide creditors to lose debts due from persons who have the ostensible means of paying what they owed. The laws as to landed and personal property should be assimilated as nearly as possible. 248. The consent of the superior required where land held by ward and relief. — With regard to the feuing of land by sub- vassals in violation of their lord's rights, an act was passed m. 1606 in explanation of an act of James II. which ordained that it should not be lawful to any vassal of any earl, lord, prelate, baron, or other freeholder, possessing lands under the feudal burdens of ward or relief, to feu his lands without the special consent of his superior, or the confirmation of the latter : 14 James VI. c. 12. This act was afterwards extended to the lands held by feudal tenure from the king and prince : Charles I. p. 1. c. 16. Both statutes were swept away by the abolition of feudalism. 249. Forfeiture of land for unpaid feu-duties. — It was also enacted in 1579 that feuars who did not pay their feu-duties for two years should lose their feus. But a liberal interpretation was given to this statute by the judges, who always allowed the amount due to be tendered in court : 15 James VI. c. 245. 250. Terce excluded by special provision. — By 3 Charles II. c. 10 (1681), it was ordained that, in all time thereafter, where a particular provision should be 176 A COURSE OF LECTUEES granted by a husband in favour of a wife, she was debarred from all terce, unless it should be expressly reserved in the writ by which she had right to the special provision. 251. The interest of strange^ executors in personalty, — In consequence of the ignorance of great numbers of the people as to the effect of making a will or testament in favour of strangers, even although such persons were never intended by the testator to get any part of their personal estates, but merely to act for behoof of their relations in the management and realization thereof, it was enacted in 1617 (22 James VI. c. 14) that strangers who were appointed execu- tors shoiild hold the funds under their charge for the; wife, children, and next of kin, according to the division observed by the laws of the realm ; and, unless a legacy was given to them by the testator, they should never be entitled to more than one- third of the testator's free personalty. This was a step in the right direction. Subsequently executors did not get even the one-third which they were allowed to retain under this act. 252. The quot to commissaries abolished. — The quot, as it was called, or one-fourth of the free residue of the deceased's personal estate, payable to commissaries on the confirmation of the executors, was finally abohshed by WiLham III. par. 1. sess. 9. c. 14 ; and, in lieu thereof, fair and reasonable fees were to be paid for the future. 253. Reduction of deeds hy minors. — It appears from a statute of 1681 that great abuses were practised against minors under twenty-one years of age by causing them to subscribe bonds for borrowed money, ON THE LAWS, ETC. OF SCOTLAND. 177 contracts of alienation of their lands, dispositions, discharges, arid other writs of importance, and to ratify the same by an oath, whereby they were deprived of the benefit of reduction. It was therefore enacted that no such oath should be exacted ; and, in case of contravention, the Contracts were to be null and void, the exaction of the oath mfamous, arid the writ reducible at the instance of any person related to the minor : 3 Charles II. c. 19. 254. Usury. — In all civilized states, provision had always been made against the circumvention of the young and inexperienced against the cunning and deceit of others, and even against their own imprudence. Nay more, the principle of protection was carried, in former times, much further, and notably in the case of usury, or the payment of a rate of interest greater than was allowed by law. The laws against usury have been abrogated as contrary to the just principles of commercial dealing, and aU persons of full age may now agree to pay interest at any rate they please for the money which they borrow. In the reign of James VI. however, the rate of interest was fixed at ten per cent, and aU deeds by which a higher rate was exacted were null and void : 11 James VI. c. 52 ; lb. p. 14. c. 222; lb. p. 15. c. 247; lb. p. 16. c. 7; lb. p. 23. c. 28; and Charles II. p. 1. s. 1, c. 62. 255. Bankruptcy and fraudulent alienations. — Against fraiidtxlent bankrupts a statute was made in 1621 (23 James VI. c. 18). Strange to say it was a ratification of an act of the lords of council and session. The preamble refers to the frequency of men obtaining the property of others without any intention to pay 178 A COURSE OF LECTURES for the same, and afterwards disposing of their means and property to their friends. It is then declared that all ahenations, dispositions, assignations, and translations whatsoever, made by the debtor of any of his lands, tiends, reversions, actions, debts, or goods whatsoever, to any conjunct or confident person with- out true, just, and necessary cause, and without a just price really paid, the same being made after the con- tracting of lawful debts with true creditors, to have been from the beginning, and to be in all time there- after null, and of no avail, force, or effect, at the instance of the true and just creditor, by way of action, exception, or reply, without further declarator. This statute also lays down that bon^ fide purchasers from the interposed person shall be good. It then states the manner in which proof of a fraud is to be shewn, and the responsibility of the interposed person to the bankrupt's creditors for any sum he might receive for the rights or property conveyed to bim by the bankrupt. This act is admirably drawn, and reminds me of the praise so justly bestowed by Lord Bacon on the old Scottish acts of parHament, an honourable characteristic which, I fear, was lost in the lord chancellor's own age, and, with few exceptions, has rarely distinguished the statutes of modern times. The explanation of this lies in the fact that this and other ancient statutes were drawn by experienced lawyers, and were not altered by those who did not know what the existing law was when changes were proposed to be made. ON THE LAWS, ETC. OF SCOTLAND. 179 256. Prescription. — According to the civil law, and, indeed, the laws of almost aU countries, claims are not enforceable legally for ever. This principle has been incorporated into the law of Scotland, and certain rules, varying with the subject matter, have been fixed as the periods within which legal rights are lost or prescribed. Forty years as to land. — Without giving you the precise words of the act of 1617, I may say that the effect of the law of prescription as to land in the reign of James VI. is that, if a person and his pre- decessors possess land for forty years, without inter- ruption, and by virtue of being heritably seized there- in, they shall not be dispossessed of such property by any other person claiming right to the same, except on the ground of falsehood or of reversions incor- porated into their rights : 22 James VI. c. 12. Seven years as to cautionary obligations. — By a law passed in 1695 (c. 5) as to principals and cautioners, it is declared that cautionary obligations expire at the end of seven years. Three years as to ordinary debts. — The triennial prescription established in 1579 has reference to ordinary debts, and is good law now, and stands thus : That all actions of debt for house mails, men's ordinaries, servants' fees (wages), merchants' accounts, and other the like debts that are not founded upon written obligations, be pursued within three years, otherwise the creditor shall have no action, unless he prove his claim, by the writ or the oath of the party : ^ James VI.