llJl.lt 'l.^l.'l.'l.M' .'(.'l,'l,'l,'li')i >.fj.Ji j'l 'i 'i.'i wi:>V'.'u'>, 'iJv ?/Z5^ s^-^T^^ TO THE RIGHT HONOURABLE JOHN INGLIS, LORD JUSTICE-GENERAL OF SCOTLAND. My Dear Lord Justice-General, * Alloio me to dedicate to you this little hooJc, which owes its existence very much to your Lordship's precept and example. I have the honour to he, Your most obedient Servant, a INNES. Inverleith, Oct. 14, 1872. CONTENTS. I.— INTEODUCTOEY. Lectures delivered first in the Advocates' Library — next before the Juridical Society — Scotch Legal Antiquaries — Sir Thomas Craig — Sir John Skene — Sir George Mackenzie — Dirleton and Stewart — Sir Thomas Hope — Stair — Erskine — Sir James Dalrymple — Lord Haites — Lord Kames — Alexander Wight — Thomas Thomson — Joseph Eobertson — George Chalmers — John Eidd^U — Learned Writers to the Signet — David Erskine — John Eussell — William Tytler — Charles Gordon — Isaac Grant — Samuel Mitchelson — James Anderson — George Home — Walter Eoss — John Davidson — Archibald Swinton — David Wemys — Colin Mackenzie — Sir James Gibson- Craig — Styles of Dallas of St. Martin — Styles selected by the Juridical Society — Disadvantages under which our early Antiquaries laboured — Outline of the sub- jects of the Course — Bolingbroke on the importance of historical study for lawyers, .... n.— CHAETEES. Styles and terms of ancient Charters — Charters commence with David I. — Title of the King— Mode of Address — Scotch Charters founded on Saxon models — Early Charters undated — ^how the period of an undated Charter may be ascertained — sometimes by an inci- Vlll CONTENTS. PAGE dent in contemporary history — sometimes by the name of granter, grantee, witness — Chronology of the Charters of David li. — Charters to Monasteries very elaborate — Charters to Laymen short — Brace's Char- ters — the clauses of a Charter analysed — Style and Title of the Granter — Persons addressed — Dreng — " Goodmen " — Motives inductive of ancient Grants — ^to Laymen — ^to Churchmen — Subjects granted — The qiueguidem clause — The Tenure, modtis tenevdi — Grant of Eegality — Grant of Earldom — Grant in liieram forestam — Mode of constituting the right of Forest — Apparent extent of the right — Eight of Pannage — Grant in liberam warennam — Nature and extent of this right — Grant in liberam iaroniam — What it conveyed : — Territorial rights — Parts and Pertinents : Woods and plains — Meadows and pas- tures — Eoads and Paths — Moors and marshes — in aqids ei stagnis — Fish-stanks or ponds — Vineyards — Parks — Brushwood or jungle — Petaries and turbaries — Coal pits, quarries, stone and lime — Pigeons and dovecots — Wrak, waith and wair — Huntings, hawkings and fishings — Mills, multure dues, sucken — Smithy — brew-housO' — saltworks — Eights seignorial : tenants,, tenandries — Homage, ward, relief — ^Bonds- men, neyf or serf — Marchetse mulierum — Heriot — Eights of Jurisdiction : sac and soc — Thol and them — -Infangthief and outfangthief — Pit and gallows — Courts, issues of Courts, pleas — Bludwite — The Four Points of the Crown — Ordeal : examen agum,ferri calidi et duelli — Eeddendo or faciendo — Different kinds of ser- vices — Tenure by serjeantry — ^Money rent seldom stipu- lated — Origia of the word " sterling" — Blench duties — Valuations of blench terms — ^Authentication of ancient Charters : seldom subscribed by the granter — com- pleted by fixing his seal — Crown writs, how sealed — Affixing of Great Seal implied the presence of the King — The Signature — Charter of Terregles — Sor- ryn — Fachalos ( 1 Frithalos) — The state of society revealed by the Charter — Sale of an Earldom — CONTENTS. ix Grant of Chiefship — OfScers mentioned in Charters — Steward — Constable — Marischal — Justiciar — Chancellor — Chamberlain — Treasurer — Comptroller — ^Lord Privy Seal — Lord President of the Council- Secretary — Lord Clerk Register— King's Advocate — Justice-Clerk — Master of Household— Doorward or Usher — Almoner — Maor, Maormor — Toschach — Thane — List of thanedoms — Bailie — Crowner — Con- stable — Investitures — Spurious Charters, . .29 IIL— PARLIAMENT. Ancient divisions of the Kingdom — Uncertain tenure by the Kings, of Cumbria, G-alloway, Caithness, Moray — Malcolm Canmore — Early differences between the Constitutions of England and Scotland— Eoyal Pro- gresses — Influence of Queen Margaret upon Scotch Customs : Southern Immigration — The Officers of State during the reign of Canmore — Celtic Institutions — Earliest Court in Scotland — The Kings of Scot- land not absolute — Origines Parliamentarise : Alex- ander I. — Malcolm iv. — William the Lion — Alex- ander II. — John BaUiol — William Wallace — ^Robert Bruce — Parliament complete — Similar Constitutions abroad — Parliament in the reign of David ii. and Robert II. — Succession to the Crown — Robert ill. — Records of Parliament in Scots — Taxing the test of supreme power of Parliament : taxation under Mal- colm IV. — ^under William the Lion; — State and Con- stitution of ancient Scotch Burghs — The Court of the Four Burghs the beginning of the Third Estate — Burghs in Parliament — Constitutional Government : Constitution of the Cambuskenneth Parliament — Name of " Parliament " — Commencement of the regu- lar Records of Parliament — ^Powers of Parliament delegated, especially in judicial matters — Parliament held at Perth A.D. 1369 — Lords of the Articles — Court of Session — Parliament of James i. — CONTENTS. FAQE Speaker of Parliament — Attempts at representation — Parliament of James II. — Act in favour of the "Pure pepil that labouris the grunde" — Early Se- derunt of Parliament — Parliament of James ill. — Power of Parliament intrusted to a Committee — Parliament of James IV. — Act for the henefit of Burghs — ^Act for compulsory Education — Act appoint- ing Sang-schools in Burghs — Act establishing and en- dowing Parish Schools — Parliament in the reign of James V. — Eepresentation of the lesser Barons — Par- liament in the reign of Queen Mary and James vi. — Power of Parliament in the reign of Charles i. — The Commonwealth — Scotland represented in the British Parliament — G-rouping of Shires — Grouping of Burghs — The Clergy as one of the Estates of Parliament — Act in regard to the Eepresentation of Burghs — ^Forms of Parliament : Sitting of Parliament — ^Eiding of Par- liament — No debates in Parliament — How measures were carried through Parliament — Life Peerages — Defects in the political Constitution : Officers of State Members of Parliament ex officiis — The Committee of the Articles — Their Election — Usurpation of the power of Parliament — Eevocation of Grants — ^Annexation — Heritable jurisdictions — The Act abolishing them — Excommunication by the Church — Liberty more pro- tected in England than in Scotland — Law of treason — Styles of Parliamentary writs — Payment to Mem- bers of Parliament — ^Language of the Scotch Acts — Notice of some unjust Laws : Commonty — Sea shores — Clan-holding — Trout-fishing — Eights of road and way — Wise legislators in Parliament — Dying out of slavery first in Scotland, . . . . . .92 IV.— THE OLD CHUECH. Secular and regular clergy distinguished — Eegulars : Monks (Cluniacs — Cistercians — Valliscaulium) — Culdees — Canons Eegulars of St. Augustine — Priory of St. CONTENTS. xi Andrews — the Abbey of Scone — ^Benedictines of the unreformed rule of St. Bernard — Abbey of Dunferm- line — Disputes about coal-levels between Dunfermline and Newbattle — Benedictines of Tiron — Abbey of Kelso — Cell of Lesmahago — Great Charter of Kelso — Abbey of Arbroath — Brecbennach — Cluniac Benedic- tines — Abbey of Paisley — Chartulary of Paisley — Pedigree of the Eoyal Stewarts — Abbey of Melrose — Eoyal Charters preserved by this house — Deathbed letter of Robert Bruce — Newbattle Abbey — Cistercians — Knights Templars — Knights of St. John of Jerusa- lem — Heads of Monasteries sat in Parliament — OflBcers of the Monastery — Abbot — Prior — Sub-Prior — Cellarer — Porter — Friars — Dominicans (Friars Preachers) — Franciscans (Friars Minors) — Carmelites — Nunneries — Augustinian Nuns of Sciennes — Nuns of St. Clare — Hospitals — Their intention — Seculars — Government and discipline of the Church — Notice of Statuta HcdesicB Scoticance — Bishoprics in Scotland — Archbishopric of St. Andrews — Suffragans of St. An- drews : Dunkeld, Aberdeen, Moray, Brechin, Dunblane or Stratherne, Eoss, Caithness, Orkney Islands — Arch- bishopric of Glasgow — Archdeaconry of Glasgow pro- per : Deaneries of Eutherglen, Lennox, Lanark, Kyle and Cuninghame, Carrick — Archdeaconry of Teviot- dale : Deaneries of Teviotdale, Peebles, Nithsdale, Anandale — Suffragans of Glasgow : Galloway, Ar- gyle : (Deaneries of Cantyre, Glassary, Lome, Mor- ven), the Isles — How bishops appointed — The Pope's usurpation of patronage of Bishoprics — Constitution of the Chapter of Cathedrals — Dignified Canons : Dean — Archdeacon — Official — Precentor or Can- tor — Song-schools — Chancellor — Treasurer — Numer- ous inferior dignitaries — Eural dean — Prebendaries — Distinction between vicarii stallarii and vicarii parochiales — Property of the Church — Mensal churches^ Common churches — Parson or Eector — Appropria- tion — Impropriation — Great and small Tithes — Other sources of church revenue — Temporality — Spirituality PAOE XU CONTENTS. PAGE — Churcli rentals — Chartularies — Bagimond's Roll — Valuation of benefices — ^Eegisters of Bishoprics — Printed Chartularies of Monasteries — Monastic Regis- ters still in MS. — ^Lost registers — Chartulary — Dis- tinction between rectorial and vicarial Tithes — Valuation of Vicarages — Valuation of Tithes — Settle- ment of Tithes — Church Foundations — CoUegiate Churches — Soltra — Trinity College, Edinburgh — Kirk of Field — EestaJrig — Corstorphine — Crichton — ^Dal- keith — Eoslin — Commendator — Mitred Abbot — Curate — Titular — Grant of ecclesia — Can and conveth — Pleas at DuU — Dedications of churches, . .161 v.— OLD FORMS OF LAW. Institutions common to the whole Anglo-Saxon peoples omitted — Compurgation — Judicium Dei : Ordeal of hot iron, of water, wager of battle — Church and Crown procedure — Jury trial originated in Church courts — Juries in use in England and Scotland about the same time — Jury trial in its infancy — Brieves from the Ayr MS. and Bute MS. — Case of Monachkeneran — Lay process — The King at first judging in person — ^Royal Brieves addressed to the sherifis — Inquests upon the Brieves — ^Early Juries — Appeals — Auditores causwrum et querelarum — Acta dominorum concilii domini regis — Court of Session — Early subjects of controversy — Notice of Brieves for compelling payment of debts — Implement of contracts — ^Brieves of mortancestry, of novel diseisin, of recog- nition, of perambulation, of partition, of ward — Brief de nativis et fugitivis — Brief of emancipation — Brief to compel payment of church rents — Brief against excommunicates and apostates — Brief limiting the jurisdiction of the Church — Brief prohibiting process in Consistorial Court concerning a lay tenement — Brieves concerning Seisin, Terce, Dowry, Tutory — Brief to compel friends to support a pauper — Brief to CONTENTS. xiii PAOB distinguish between aforethocht felony and chaude melee — Brief of right — Brief in re mercatoria — ^Brief ordering inquiry as to the disease of sheep — Brief for putting down cruives — Civil and Church Courts — Jurisdiction of the civU niagistrate maintained by the Scotch Kings — The Consistorial Court — Its extensive jurisdiction — Henryson's Fable, 209 VI.— RURAL OCCUPATION. Early information chiefly from religious houses — Rental of Monastery of Kelso, A.D. 1290 — Teviotdale husbandry — Measures of Land: Oxgate — Husbandland — ^Plough- gate — Crops cultivated — Vehicles used — Roads and bridges — Flocks and herds — ^Wool, the great produce — The Grange or homestead — Inhabitants of the Grange : Native, Neyf or villein — Cottar — Husband- man — Services performed and rent paid — Description of horse-load — Exemption of women from field labour — Siuht equivalent to steel-bow — Kindly tenants of the Abbey — Church vassals, their condition and privi- leges — MUls and brewhouses — ^their rents — Lands granted for support of bridges — Public burdens — Military service from a ploughgate in 1327 — Early contract of lease, A.D. 1312 — Its language — Conditions of the lease — ^Rental of the Bishopric of Aberdeen, A.D. 1511 — Services and rents — ^Rent of a ploughgate in the parish of Clatt — Parish of Fettemear — Con- ditions of Subletting — Rent of a croft — Rent of a mill — Forest of Glenrinnes reserved "to my lord" the Bishop — Good neighbourhood — Improvements by tenants — ^Runrig — ^Rent of the foggage of the forest of Birss — ^Rent in kind for the farm of Dulsak — Rental of the barony of Forbes 1532 — ^Measures of land — Good neighbourhood — Office of " birleymen" — Rent of a ploughgate — Customs — Number of tenants on a ploughgate — Disappearance of the nativi — Rental of the Gordon estates, A.D. 1600 — Holdings in joint XIV CONTENTS. PAOE occupancy — Maill or silver-maill — Ferme — Customs — Mart — Eeek-hen — Ells of cloth — Specimens of rentals — West Highland tenants — ^Eent of a plough- gate in a Highland parish (Kingussie) — Eent of a ploughgate in a Lowland parish (Bellie) — Teinds — Fishings — Cattle and sheep — Leases — Suh-tenancy — Eeport on the Perth forfeited estates, 1762^Classes of Sub-tenants : Bpwman — Steel-bowman — Pendicler — Cottar — Crofter — Dry-house-cottar — Eental of Struan, 1755 — Items of rent — ^Souming — Rouming — Excessive population in the Highlands — Old Extent — Money measures established by this valuation — Money extent of a ploughgate — Where money mea- sures of land most used — Davach of land : a divi- sion chiefly found in the North-Eastern Shires — Terra ecelesiastica — Etymology of Davach — Its ex- tent — The " Aucht-and-forty Dauch of Huntly" — Earliest marks of national taxation — Ploughgate, oxgate, marks of taxation 1 — Money measures of land (poundland, markland, shUlingland, pennyland, farthingland) more likely — Money measures found on the West — The valuation, whether for tax or rent on the West Coast and Isles, in money — The oldest Island rental preserved — ^Valuations in merks or mul- tiples of merks — The rental of the Bishopric of the Isles — Rentals of Orkney and Shetland — No measure of land, agricultural or pastoral, there — Orcadian customs — Attempt to balance agricultural against money divisions — One oxgate=13 acres — 4 oxgates= one pound of Old Extent — 40 shilling land of Old Extent = one ploughgate — 1 merkland = 34| acres, 241 VII.— BOOKS. Plea for the Study of Eecords — Guide books for the study : Diplomata et Numismata Scocise — Kemble's collection of Anglo-Saxon Charters — Thorpe's collec- tion of the Ancient Laws of England — L'Art de CONTENTS. XV PAGE Verifier les Dates — Nicolas's Chronology of History — Chalmers's Caledonia — Origines Parochiales — Scotland in the Middle Ages — E. W. Eohertson's Scotland under her Early Kings — Hailes's Annals — Thomas Innes's Critical Essay — Keith's Catalogue of Scottish Bishops — Crawford's Lives of the Great Officers of State — Chronicles of Melrose and Holyrood — Fordun's Scotichronicon — Barbour's Chronicle — Wyn- toun's Chronicle — Chronicle of Lanercost — Eeeves's Adomnan's Life of St. Columba — His History of the Culdees — The Eegisters of Bishoprics and Monasteries — Joseph Eohertson's Antiquities of the Shires of Aberdeen and Banff — His Inventories of Queen Mary's Jewels — His Statutes and Councils of the Scotch Church — Henry Laing's Scottish Seals — Mr. David Laing on the Eeformed Church and the old Scots poets — Du Cange's Dictionary of Medieval Latin — Acts of the Parliaments of Scotland — General Index to the Acts of Parliament of Scotland — Barrington's Obser- vations on the Statutes — Blount's Ancient Tenures and Jocular Customs of Manors — Oughton upon Con- sistorial Form of Process — White Kennet's Law of Parishes — The Works of Madox, Spelman, etc. — Stubbs's Documents of English Constitutional His- tory — ^English and Scotch Eecord Publications, . .286 APPENDIX. Henryson's Fable, illustrating the Forms of the old Consis- torial Court, 299 Index, 303 LECTFRES ON LEGAL ANTIQUITIES. LECTUEE I. INTRODUCTORY. These Lectures have been twice read, with some variations. On the first occasion my audi- ence consisted chiefly of a few gentlemen of my own profession, who gathered in our Library. be- fore the meeting of the Court in the cold and dark mornings of winter 1868-9, to hear what I could tell them of the antiquities of our law. Two years later, the Juridical Society did me the hon- our to ask me to repeat the course, and were so obliging as to change their evening hour and ac- customed place of meeting, for mid-day in the Advocates' Library, to suit my convenience. Before reading the Lectures at all, I thought fit to circulate a programme or table of contents, A 2 OUR LEGAL ANTIQUARIES. which attracted some attention and criticism. More than one of the heads of the profession took up my project favourably, and suggested subjects deserving of elucidation, which I had omitted. It is to one of these, whose least suggestion com- mands our respect, that I owe perhaps my most important chapter, that on the Parliamentary Con- stitution of Scotland. I hope my readers may think I have been well advised. Rude and un- successful as our early efforts at Parliamentary government were, there are things in the legisla- tion of Scotland of which a Scotchman may well be proud, and even precedents which a learned Englishman may find useful for solving some of the acknowledged difficulties in the working of the great machine — institutions which even the British Parliament might borrow with advantage. We have not had many legal antiquaries in Scotland ; and if you criticise them, you will find that as you go farther back the writers are the more ignorant of the precedents and practice of early times in their own country. I should per- haps except Sir Thomas Craig, whose admirable book, the 'Jus Feodale,' must always be spoken of with respect. But Craig wrote less as a Scotch lawyer, than as a learned student of the civil and canon and feudal law. He quotes cases that happened in his own day and a little before, in Scotland, but he had no care to distinguish the CBAIG — SKENE. 3 history of our law from that of any other feudal nation ; and whenever he makes a general assertion, I think you will find that he draws it from the Eoman law or the book 'De Feudis' — which, united, were in fact the common law— the law of civilized Europe in his time. Quite in an opposite direction was the failing of Sir John Skene, who, being employed to collect the old laws of Scotland, set his wits to make a respectable code of Scotch law, taking the materials wherever he could find them in lawyers' books, whether they were Scotch or English. Skene says very much of his labour in collecting and digest- ing his code, but it never occurred to him that the old laws of a country hitherto unpublished are to be found, or at least can best be tested and proved, in the written transactions of the people. I have tracked him and his manner of working, and I have not observed that he ever quotes an old charter, a brieve, or a step of old court procedure. He was satisfied with transferring to his work whole pages of the rambling note-books of nameless lawyers, and to attribute them to the legislation of fabulous kings from Malcolm Mackenneth down- wards, while he put on his margins references to English books, wishing his reader to believe that these were borrowed from ours. I have never found much satisfaction in con- sulting Sir George Mackenzie's 'Observations on 4 MACKENZIE — HOPE. the Statutes.' That accomplished scholar to whom we owe, I suppose, the first foundation of our noble library, directed his studies for the most part to more congenial pursuits. Neither his studies nor the bent of his mind were very historical, and not at all constitutional. His * Observations on the Statutes,' published in the worst time of our history (1686), are unfortunately suited to that bad time. Books like Dirleton and Stewart (Dirleton's 'Doubts and Questions in Law,' and Stewart's 'Answers') are rather ingenious elucidations of the subtleties of the law than works of legal and historical antiquities. Dirleton, speaking of Sir Thomas Hope, calls him juris nostri peritissi- mus, but qualifies his praise by telling us that he was generally thought of extreme and captious subtlety (nimiae et captiosae subtilitatis) \ but it was the age of such subtlety, and the ingenious writer is himself open to the same blame. You will find some curious speculation in these books with regard to Crown lawyers stretching the royal prerogative— doubly interesting when you reflect that the Lord Advocate of Charles the Second, writing just before the Revolution, is explained and criticised by the Lord Advocate of William and Mary.^ Stewart reproaches Dirleton for taking his notion of prerogative from the Eoman law. ^ Voce Prerogative. DIELETON — STATE. 5 " As to questions," he says, " of state and goyern- ment, the Civil Law is of no use with us." But neither of these ingenious writers thought of solv- ing any doubt or problem by seeking back to the origins and history of law in our country. Ob- serve, that during the time we have yet looked to, there were none of the facilities for study which the modern lawyer possesses. There were no printed Collections of Decisions, no institutional writer had yet ventured to speak of the law of Scotland as a peculiar system, well defined by long series of precedents, and worthy to be called the common law of our country. Thin ms. volumes of ' Practicks,' collected by old lawyers, still passed from hand to hand, and were copied by young students and clerks with more or less accuracy. These were quoted and received as authorities ; and indeed it is matter of admiration how lawyers have in all times admitted any precedents and authorities, as if to save them from the dreaded discussion of principles. At length arose Stair, of whom we Scotsmen speak with some of the superstitious respect which the English show for Littleton and his great Com- mentator, and, I think, with better reason. But the object of Lord Stair was very diflFerent from that of Sir Edward Coke, who was a thorough lawyer, and, be it said— pace tanti viri — nothing 6 ERSKINE. more. Before coming to the bar Dalrymple had regented for ten years at Glasgow, and was deeply imbued with the philosophy and divinity of the schools, as well as with all the learning of the Civil and Canon law. So armed and accomplished, and with the practical experience of a well em- ployed Scotch lawyer, he employed his leisure — his forced leisure — in building up a great fabric of national jurisprudence. His vigorous and well- trained intellect was directed to the philosophy of his youth, to the Divine law and the law of Nature, as the foundations of his system, and, he wished to prove that the decisions of the Scotch Courts were not inconsistent with these. But a very slight attention to his great work will show that he had not bestowed much thought upon the historical foundations — the origin and progress of our pecu- liar law.^ There were, in truth, no materials for such a study in Scotland. If we set aside the books of Skene as we do the fables of Hector Boece, I say there were no materials in Stair's time for a busy lawyer to work out the founda- tions of legal history. I need not say that there was as yet no taste or call for such studies. Unfortunately the taste for historical antiquities had not yet arisen when our second great institu- tionalist produced his well-known work. Erskine 1 ' Stair's Institutes,' ed. Brodie ; Brieve, p. 608. SIR JAMES DALRYMPLE. 7 found the law of Scotland much elaborated since the days of Stair, and settled by printed decisions. These he quotes, and supports his positions with citations from Craig's * Jus Feodale,' Balfour's 'Practicks,' Bankton's 'Institutes,' Karnes's works and Mackenzie's. He had the good fortune and the good sense to use ' Blackstone,' and he made full use of the civil law and civilians, including Grotius. But I suspect he was ignorant of our Scotch history ; and for our peculiar and national law he is content to take it as given by Skene, and admits all Skene's materials as of excellent use towards understanding the history and gradual progress of our law. I do not find that Erskine himself anywhere seeks back to the antique ori- ginal of any branch of Scotch law; and now that we have so much printed of old styles and forms and examples of early litigation, Erskine's few con- tributions to legal antiquities seem to us very trifling. Two Baronets, lawyers, of the great legal name of Dalrymple, have done much to remove the re- proach of want of reasonable research concerning the origines and history of Scotch law. You will excuse me for placing them together, although they lived, the one at the beginning, the other at the end of last century. In two things only do they agree. They were both zealous Presbyterians, and both founded their historical statements upon 8 HAILES. proofs from ancient writs, though I doubt if either of them could actually read an old charter with ease.^ Sir James Dalrymple collected copies of charters which he considered useful for proving that Presbytery was the most ancient form of Christianity; and he threw them into his book in such wild confusion that it is impossible to follow his purpose except from the headings of his chap- ters. His book was published just before the Union (1705). He calls it 'Collections concern- ing the Scottish History preceding 1153, wherein the Sovereignty of the Crown and Independence of the Church are cleared — with an account of the Antiquity and Purity of the Scottish British Church, and the Noveltie of Popery in this King- dom.'' His namesake and kinsman, Sir David Dal- rymple, better known as Lord Hailes, was in some respects the very ideal* of a historical inquirer. His mind was fair and dispassionate, and he reasoned with excellent logic. You will seldom find a mistake in fact or a conclusion not war- ranted by the premisses in Lord Hailes's 'An- nals.' He had some defects, too, and the greatest of them is an unnecessary and repulsive dryness of narrative. You know Dr. Johnson, though 1 Mr. Thomas Thomson always doubted Hailes's ability ^to read charter-hand. HAILES. 9 loving nothing Scotch, admired the accuracy of our Scotch annalist. What he did was of inestim- able value. But surely it was not necessary that an author using the same title which Tacitus gave to his greatest historical work, should make his ' Annals ' little better than a chronicle of kings and queens and battles, and births and deaths — a sort of almanac of history. The second fault which I — a humble follower at such a distance — venture to charge against Lord Hailes, is his slighting of the great subject of Church antiquities — as important a chapter of national history as any ; and I think Lord Hailes would have confessed so much. But the materials were not in his hands. You observe that he wrote chiefly from English chroniclers, and with them, of course, the Church of Scotland is little more than a name, whilst the real materials for Church history were still to be gathered from neglected mss., Chartularies, fragments of Church Books, cases in Church Courts, which had never come in Lord Hailes's way. I am aware that he gives such scraps of Scotch Church history as he found in Fordun, and that he even bestows a dissertation upon the Canons of the Church of Scotland, one copy of which — a very imperfect copy, a mere fragment indeed — he found in the Chartulary of Aberdeen. But these are only proofs how little the Pres- 10 KAMES. bylerian lawyer had thought it worth his while to investigate the history of a superstitious Church, I am unwilling by even these small deductions to appear to lessen the fame of him who was really the first to investigate accurately, and state hon- estly, the early history of our country. We moderns are hardly enough aware how much the Scotch lawyer is indebted to Henry Home, Lord Karnes. His versatile and truly philosophical mind neglected nothing. He enriched the law of Scot- land by his collection of remarkable decisions, by his abridgment of the Statutes, and by a large body of ingenious speculations and criticisms upon law and legal decisions. I think you will find his opinions sagacious, and for the most part sound. They would have had more weight with the pro- fession if written in more technical language, and if he had thought it worth his while to hide the marks of his early philosophical studies. A Scotch lawyer is roused to a little jealousy, if not to laugh- ter, when he reads in a treatise on the law of Pre- scription, that the writer found it "indispensable to examine what the law of Nature, or in other words, common law, dictated on that subject;" or when he begins a commentary on an Act of Parlia- ment concerning procuratories of resignation and precepts of sasine, with words like the following : — " Man, a voluntary agent, governs himself and his WIGHT — THOMSON. 1 1 concerns by his own will, and, in order to fulfil it, he exerts external acts," etc.^ This most ingenious, most suggestive of our legal writers, perceived all the importance of our studies, and in one or two instances he actually dug out an old record and used it. In his in- quiries he had the invaluable assistance of John Davidson, Writer to the Signet, or, as he chose to write himself. Clerk to the Signet, a lawyer following in the footsteps and imitating even the uninviting manner of Lord Hailes. But neither he nor any man then had access to the whole stores of our records, which were indeed unknown to their keepers. If we did not know his unhappy end, we should call Alexander Wight, the author of the 'Law of Elections ' and ' History of Parliament,' the most sensible, dispassionate, and clear-headed of histori- cal lawyers. He had great diflSculties to contend with in writing too early for correct versions of our Acts of Parliament ; and the curious charters ap- pended to his volume lose much of their value by the extreme inaccuracy of the only readings which he could procure. I now come to the best and greatest of our his- torical lawyers, Thomas Thomson. With great sense and sagacity, with ample preliminary study, ' ' Elucidations,' Articles 33, 39. 12 THOMSON. and very uncommoti legal learning, Thomson might have risen to the head of his profession in any of its moi-e trodden paths, but some circumstances of the day — a considerable Kecord movement spread- ing from England to us, and, more than any cir- cumstances, "the strong propensity of nature," — urged him to the study of legal and historical anti- quities. Some of his pleadings while still at the bar are very masterly. I need not remind you of that one which carried the Court in the great Craigengillan marriage case, nor of the dissertation in the case of Cranston v. Gibson (1818), which most of us have on our shelves, titled ' Old Extent,' and the study of which Lord Glehlee said was like reading a lost decade of Livy. In that pleading, regarding a vote in this county, Mr. Thomson laid before the Court the most learned and accurate history of Scotch taxation that has ever been written. No wonder that it cost much time and much reproof for delay. The fines for the delay of that paper — amendes they called them then — amounted to £20. The materials for the paper were to a large extent unprinted, Mr. Thomson will be remembered al- ways by the Scotch lawyer for having rescued our Records from impending decay and ruin, and for having given, in almost a complete series, the body of the legislation of Scotland,' as well as shown the way, in the beginnings of works like the great JOSEPH ROBERTSON. 13 collection of the Chamberlain Eolls, one volume of the 'Eegistrum Magni Sigilli,' and a digested edition of the first century of Scotch Retours. These are noble works, of importance to all the professions of the law, and still serve as examples — such examples as men are slow to follow — of how a system of national Eecords can be turned to great popular use. Mr. Thomson, who was educated for the Church — the Presbyterian Church of Scotland — like his master Hailes had somewhat neglected the study of middle-age Church history; and you will find the same neglect running through the works of all our modern historians, from Pinkerton and Tytler down to our friend Mr. Burton, who eschews superstition of all kinds. We had lately to regret the premature loss of a Record scholar and historical inquirer of quite a different stamp. Mr. Joseph Robertson was as scrupulous about his facts as Lord Hailes, as care- ful and correct in reading and editing as Mr. Thomson. He had, however, with the most catho- lic love of antiquities, a strong feeling of the im- portance of the ecclesiastical element in Scotch history, and his book 'Concilia et Statuta Scotiae' has gone far to supply the short-comings of Hailes and Thomson in Church history, while his * Inven- tories of Queen Mary ' have improved a dry list of 14 WRITERS TO THE SIGNET. the Queen's jewels and clothes into a very pictur- esque and, I think, a very true view of the life of the unhappy Queen. Hitherto, and with only the last remarkable exception, the writers of our legal historj', oi applied history, as we may call it — ^history applied to the investigations of law — have been all Advocates — a profession which has won and kept the fore- most place in the literature as well as in the law of this country. It is an unenvied pre-eminence : for who does not know the long and laborious educa- tion required before the student can enter the pro- fession of an advocate ? who but must see the strain of the intellect, not to mention the natural gifts, re- quired to take any prominent position at the bar ? But the sister profession of Scotch Conveyancers has also had men of historical research, who have adorned the drier work of their peculiar study with some of the legal learning which suits it so well. From the time of Dallas of St. Martin's there has been a succession of learned conveyancersj who have, in- deed, been generally content to feel the position their learning had given them among lawyers, without giving the world the benefit of their studies. John Clerk, in his pleading in the great " Old Extent " case, mentions Mr. D. Erskine, Mr. John Kussell, Mr. William Tytler, Mr. Charles Gordon, Mr. Isaac Grant, and Mr. Samuel Mitchelson, as WEITEES TO THE SIGNET. 15 the most eminent conveyancers of their time — that is, of Lord Eldin's own ; and upon some doubt being thrown on his statement, the great lawyer's junior (afterwards Lord Murray) returns to these names. Can there be, he says, any higher authori- ties in the profession than Mr. D. Erskine and Mr. John Kussell, senior ? ^ few other Writers to the Signet who have left a memory honoured in the profession. James Ander- son, Writer to the Signet, whose literary and patriotic works in- jured, I fear, his professional busi- ness, was the author of several books, occasioned by the proposed Union of the kingdoms, and as- serting the ancient independence of Scotland. He was the compiler of the ' Diplomata et Numismata Scotiae,' a noble collection of Charters and Coins, to which Thomas Euddiman contributed the Latin introduction. George Home of Wedderburn and Paxton was learned, especi- ally in commercial law. He managed the affairs of the Doug- las, Heron and Co. Bank, after its bankruptcy — the most noted bankruptcy, I suppose, in Scot- land previous to the failure of the Western Bank. There is a tradi- tion that it was the general wish of his profession that Mr. Home should be raised to the Bench. I think Sir Walter Scott succeeded him as Clerk of Session. He 1 The first in the above list, Mr. David Erskine, has left the highest reputation as a' feudalist and conveyancer of any man of his time. He was son of John Erskine of Carnock, the author of the ' Institutes,' and I believe he edited that book after his father's death. His mother was , Miss Stirling of Keir, the second wife of the author of the 'Insti- tutes;' of his former marriage with Miss Melville was born Dr. John Erskine, so well remembered as minister of the Greyfriars. Mr. David Erskine was the head of that house weU known for two generations afterwards under the name of Dundas and Wilson, Clerks to the Signet. It is pleasant to trace the trans- mission of personal qualities and professional eminence in the same house. John Russell, senior, was the author of two works—' Forms of the Court of Session and Teinds,' 1768, and the ' Theory of Con- veyancing,' 1788. I wish to add the names of a 16 GEOROE CHALMERS. Almost all these learned conveyancers have avoided publishing the results of their studies, con- tent to let their names be handed down in the tradition of their profession. To this over-modest silence, however, there have been some exceptions, and prominent among these was Mr. Walter Eoss, the author of Lectures on Conveyancing, and especially of a preliminary or specimen Lecture on the narrow subject — though on principles of humanity a very important one — of " Removing of Tenants," which he treated with such learning and research as give importance to any subject. George Chalmers, the author of ' Caledonia,' the enemy of Pinkerton, the champion of the Celts, has contributed some papers to the conveyancer. He managed the ' Mirror.' great estates of the York Build- John Davidson was W.S. and ing Co., — that is, in fact, all the Crown Agent. Hume in his Lee- Forfeited Estates, tures used to mention his Treatise David Wemyss has left the on the Roman Law, discussing tradition of a learned and emi- whether it should be quoted as nent conveyancer. our law. . I know him better Colin Mackenzie was con- fer what I believe is the first sidered a learned conveyancer, coiTCction of the fable of the but withdrew from business when ' Eegiam Majestatem,' where he he became Clerk of Session, tells us, what is no w well known. Sir James Gibson-Craig, though that the "Eegiam Majestatem so eminent and influential in the is a book copied from GlanviU." profession, was, I think, better Davidson was succeeded in his known for his management and business and the office of Crown organization of business than for Agent by Hugh Warrender. any deep study of technical con- Archibald Swinton was an able veyancing. JOHK KIBDELL. 17 done more than any one man for the topography and family history of Scotland. He laboured under the disadvantage of defective scholarship, of which he was quite unconscious ; and he is not more strong in Gaelic and British, I believe, than in Latin. In charter study, where everything de- pends on accuracy of text, he worked with faulty copies, but yet, if he had bestowed the time he wasted on LoUius Urbicus and the Eoman period of our history on the parts of modern Scotland which he left untouched, he might, with his astonishing per- severance, have completed what seems an under- taking too great for one life. Among Scotch legal antiquaries I must not omit the name of John Riddell, who spent a long I have thought that it might have enumerated, until Eussell's be interesting to preserve the books supplied the more modem names of some of those eminent conveyancing required by the last men, who founded houses of law two generations. The happy idea business, where the traditions of of making a selection of styles their conveyancing must have from actual instances of writs continued to guide their succes- used in all the great conveyanc- sors in business. It is very long ing houses is due to the Juridical since the Styles of Dallas of St. Society ; and although some of Martin's could have formed the the efirlier forms inserted in that rule of practice amongst us. work show strange symptoms of After his and Spottiswood's insufficient care, the work, as it subsequent book became anti- now stands, meets, I believe, with quated, the necessary forms and general approbation. It seems styles of writs were no doubt to me that the style of the pre- preserved and handed down in sent day would bear a vigorous the chambers of such men as I pruning. B 18 JOHN KIDDELL. life in searching and noting the contents of charter- chests. I once heard him say — "I assure you that to spend one's time in seeking for a name or date in a bit of crabbed old writing does not improve the reasoning powers." And perhaps it is not in reasoning that Mr. Eiddell excels ; his style too is hardly English; but his two volumes contain a vast mass of new facts on Peerage and Consis- torial Law ; and his collected mss., which our Library owes to the generosity of Lord Lindsay, will be found, no doubt, a treasure to the pedigree- hunter, especially if he loves a little old scandal to season the dish. Using the sources which these men have opened to us, using other materials which the taste created by them has brought before the world, taking my examples and illustrations often from mss., often from printed books of that kind of rarity which the book-fancier holds to be "as good as MS.," I undertake to lay before you, and to strip of their mysterious obscurity, in the first place, some of those early charters, the first writing of our forefathers, records of their first transactions, documents which show how they held their property, how they settled with or fought with their neighbours, what jurisdiction they exercised over their vassals, and all that in a language which, though Latin, is only Saxon Latinized. You will find in those charters OLD CHARTERS. 19 the best explanation of modern conveyancing. We shall get beyond the difficulties which impede the reader of ' Waverley ' when the Baron of Brad- wardine pours out his charter-learning, how the lands of " Bradwardine and TuUy-Veolan had been erected into a free barony by a charter from David the First, cum liberali potestate habendi curias et justicias, cum fossa et furca {lie pit and gallows) et saka et soka, et thol et them, et infangthef et outfangthef, sive hand-habend sive bak-barand." " The peculiar meaning of all . these cabalistical words few or none could explain," says Scott, who had some of the learning of the writer's chamber as well as of the bar. I modestly propose to under- take the task. In connexion with these old charters I once thought of saying something of the manner of giving possession — taking heritable state and seisin — whether per fustem et haculum, by staff and baton, or in the homely form which Bailie Macwheeble would have recognised — per terrae et lapidis tra- ditionem — by giving of earth and stone. In short, I had planned a little discussion on the curious, now forgotten, learning of symbols — the symbolism of feudal investiture. I wished to tell you how King Alexander the Fierce — elder brother of the good King David — invested the Cathedral of Saint An- drews in the cursus apri, — the " bares rayke" Wyn- 20 SYMBOLS OF INVESTITURE. ton calls it — who tells us how at Saint Andrews, the King offered it on the high altar in symbol, and how he gave investiture by such symbols of investiture : " Hya cumly sted of Araby, Sadelyd and brydelyd costlykly, Wyth hys armwrys oflF Turky, That pryncys than oysid generaly, And chesyd mast for thare delyte, Wyth scheld and spere off sylver qwhyt, Wyth mony a precyows fayre Jowele." Or I might tell you a yet older story, which I have always thought to be the very first instance of sym- bolical seisin : — Saint Columba wished to take heri- table state and seisin of his little island of Hy, and resolved it would be best done by the interment there of one of his followers ; but the question was who should die and be buried for this end. Then Oran arose quickly, and thus spoke : — " If you accept me, I am ready for that." •' Oh, Oran," said Columkille, " you shall receive the reward of this." Oran then died, and was buried, and Columba founded the church of Hy close to the grave of Oran. Some of you may know that even yet the cemetery of lona is known by the name of " Relig- Oran." But I fear your patience would fail, as well as my time, if we were to trace our poor seisins back so far. Then you will pass with me into the august pre- sence of an ancient and defunct Parliament. I will PARLIAMENT. 21 try to show you how an unbroken line of Celtic monarchs framed the constijtution of their kingdom on Saxon models. You will see the Three Estates intermingled, taking their places round the throne, in no less hopeful form than the Parliament of Eng- land, before it resolved in its wisdom to divide into two Houses. When bad days had come, and the spirit of Scotland had taken another direction than the constitutional, you will still see convulsive struggles after freedom and good government, and will observe how some men at least in that ano- malous assemblage were wise and good enough to pass the earliest laws that we read of in favour of the poor people that labour the ground — in favour of education of all classes — first the Barons' sons, and, later, the class that required an endowment of parish schools, which endowment was not with- held by poor Scotland. I cannot show you a form of process so ancient as that of the County Courts of England, where, they tell us, in the days of Alfred, the Earl and the Bishop sat side by side, administering justice and directing proceedings, by which suitors obtained the judg- ment of their peers ; but we can get back to that time when civil justice in its infancy was already vigorous enough to support the rights of the Church, and could yet peremptorily limit the jurisdiction of Churchmen seeking to meddle in civil matters. For 22 LAW PROCESS. this purpose I shall report for your special use one entire process, keenly contested on the banks of the Clyde in the year of grace 1233. I will lay before you, too, I may say for the first time, some of those Brieves, which, in this country as well as in Eng- land, are the oldest remaining traces of civil pro- cess, though with us the change of form, the aban- donment of the ancient trial by jury in civil cases, have thrown these writs out of the notice of lawyers. I will detain you but a short time upon the rami- fications of the King's Council, our first Supreme Civil Court of common origin, if not originally identical, with the High Court of Parliament. And then come the committees of Parliament, upon whom the rustic Barons gladly devolved their judicial powers, and you will see how for some generations the Lords of the Council and the Parliamentary Committee, known as the Lords Auditors of Com- plaints and Causes, carried on a concurrent and undistinguishable jurisdiction, until the power and jurisdiction of both were merged in one by the Act which created the Court of Session, and furnished the subject of our fine window up-stairs. All law students must feel the diflSculties which men of our National Church have to encounter in dealing with old Church law and practice, having to speak of the functions, offices, persons of an ecclesiastical system quorum ipsa nomina perdidi- THE OLD CHURCH. 23 mus — whose very names we have forgotten. You will forgive me if, in my endeavours to supply the defect in our books — to join on the old system of Church and Churchman to the modern more simple order of things, and especially to make the legal phraseology intelligible which had to deal with the benefices and properties, the title-deeds, as I may say, of a great hierarchy now defunct, — you will forgive me if, with these objects, I seem to run very elementary. To some of you much that I shall say upon this subject will be the repetition of a well-known lesson ; but those who know it best will agree with me that it is very useful, and that it is not all to be found in any of our text-books. The endeavour to restore to the Reformed Church some adequate living for its clergy, and also to provide from the plunder of the old Church in lay hands some help to the slender resources of the Crown, gave rise to the remarkable undertak- ing of Charles the First to induce, or almost compel, the great holders of the spirituality of the ancient Church to place at his royal disposal, on equitable terms, the whole tithes of Scotland. It was to carry out that great undertaking that the successive Commissions were issued for surrender, valuation, allocation of teinds. I need not tell you that questions relating to teinds are now the great 24 TITHES. questions of the antiquarian lawyer in Scotland. The learning of the bar is no longer exercised in setting up a 40 shilling land of old extent or a £400 Scots of valued rent ; even the antiquity of entails has no longer to be studied — no man values a county franchise now — the fetters of a strict entail are of little value since the Eutherfurd Act — but in teinds there still lurks that mysterious and alluring obscurity that furnishes the best field-days at our bar, and requires the deepest investigation thoroughly to master. I hope the last Lecture to which I have alluded — I mean the history and nomenclature of the old Church — will be found useful here, and that the knowledge of the old possessors, their tenures and varying inter- ests, will help us to comprehend the footing upon which the settlement was intended to be carried through by Charles and his successive Parlia- ments. To myself personally the most interesting sub- ject which I have to bring under your notice is the state of our rural population. I think a notice of the tenures, service, rents, measures of land — the whole system of agricultural life — may be rendered very useful to lawyers on very many occasions of prac- tice. But I shall not hold myself precluded from speaking of the state of the people, their social con- dition, even the signs of their intelligence ; I shall RURAL OCCUPATION. 25 not avoid such matter merely because it may not answer the purpose of a legal argument. Speaking to you as Scotchmen as well as lawyers,, I shall expect your attention to the proofs which I can give you of a steady progress in the agricultural class. I will show you first how the great agricul- turists cultivated their lands chiefly by serfs bound to the soil. We shall observe serfdom gradually disappearing, leaving behind it only the system of heavy services done to the master ; and the gradual conversion of these into money rent marks every- where a great step in agricultural progress. From the thirteenth century, when the serfs must have formed a large proportion of the population, when gifts of serfs, and sales of serfs, and claims of run- away slaves, are of as frequent occurrence as any transactions connected with land — between that cen- tury and the end of the fifteenth, hereditary slavery had ceased among us without any legislative Act, and from 1500 down to 1600, all that sixteenth century, I shall endeavour to present to you a free agricul- tural class, as it is shown in careful rentals — rentals both of Church lands and of great lay lords, — affording a fair specimen of the relations between landlord and tenant over Scotland. In that history of landlords and tenants I must say something on the question of rent, or its equi- valents, of the agricultural divisions of the soil. 26 EUEAL OCCUPATION. oxgate, husband-land, ploughgate, merk-land, penny- land, and our northern designation of Davach. The Lecture which I have headed 'The Vestiges of Early Taxation' serves to call up the subjects of Thomas Thomson's great labour, I trust you will find some progress in the amount of our knowledge since his day ; and no man would have rejoiced more than he, if it shall turn out that we have suc- cessfully brought the ancient valuation to its com- mon and popular equivalent in the agricultural divisions of land, and have proved that a 40 shil- ling land of old extent was nothing more nor less than a ploughgate of land. I will not detain you with more remarks of my own, as it were in apology of our studies, but you will allow me to quote three or four sentences from an author whom you must know if you have sought back into the wells of pure English, as the purest writer between the old heroic times and our slip- shod modern style, I mean Lord Bolingbroke. Bolingbroke is a good authority in this matter ; for he was no dabbler in antiquities, and would have been much disgusted with the dirt and dust of an old charter. Hear him whilst he speaks of our own professional studies, " I might instance," he says, " in other profes- sions the obligation men lie under of applying them- selves to certain parts of history, and I can hardly HISTORICAL STUDY OF LAW. 27 forbear doing it in that of the law, in its nature the noblest and most beneficial to mankind, in its abuse and debasement the most sordid and the most pernicious. "A lawyer now is nothing more, — I speak of ninety-nine in an hundred at least, to use some of Tully's words, — 'nisi leguleius quidam, cautus et acutus, praeco actionum, cantor formularum, auceps syllabarum.' But there have been lawyers that were orators, philosophers, historians ; there have been Bacons and Clarendons, my Lord.^ There will be none such any more till in some better age, true am- bition or the love of fame prevails over avarice, and till men find leisure and encouragement to prepare themselves for the exercise of the profession by climbing up to the vantage-ground (so my Lord Bacon calls it) of science ; instead of grovelling all their lives below in a mean but gainful application to all the little arts of chicane. " Till this happen, the profession of the law will scarce deserve to be ranked among the learned professions ; and whenever it happens, one of the vantage-grounds to which men must climb is meta- physical, and the other historical knowledge. They must pry into the secret recesses of the human heart, and become well acquainted with the whole moral world, that they may discover the abstract reason 1 His book was addressed to Clarendon's son. 28 HISTORICAL STUDY OF LAW. of all law ; and they must trace the laws of parti- cular states, especially of their own, from the first rough sketches to the more perfect draughts ; from the first causes or occasions that produced them, through all the eflTects, good or bad, that they pro- duced." LECTURE II. CHARTERS. We have no Scotch charter extant so early as the reign of Malcolm Canmore.^ In the reigns of Canmore's sons who preceded David i. we have a very few grants to religious houses, but none to individuals or laymen. The very oldest writ, in the shape of a charter connected with Scotland, is that of Duncan, the son of Malcolm Canmore, the date of which is about 1094. With David i. really begins our body of Scotch charters, and we have a suffi- ^ A.D. 1056-1093. As to the endowment of the little Buehan antiquity of writing with us, the convent, all written in Gaelic, highest authority in England has and without doubt, of the ninth pronounced that there is no trust- and tenth centuries, worthy record of any single event You will find similar narratives of English history previous to the or notices in the venerable Eegis- arrival of Augustine (a.d. 597). ter of the Priory of St. Andrews, We cannot go quite so far back in where gifts of Macbeth and of Scotland, and perhaps we must Lady Macbeth, and of a Pictish limit our assertion of the an- king Brude, perhaps traditionary, tiquity of Scotch writing to the are engrossed in order before the ascertained period of the Book of charters which we now look upon Deer, the margins of which are as of the most venerable anti- covered with narratives of the quity. 30 THE king's style. cient number of his preserved either in the originals, or recorded in the registers of religious houses, to give us an accurate idea of their manner and contents. You will observe that David's charters begin with setting forth his title in the simplest form, " Eex Scottorum,"^ but then they are addressed to all his subjects in Scotland and in Lothian, to Scotsmen and Englishmen ; or like the charter^ of Melrose, to Bishops, Abbots, Earls, Barons, and good men 'of his whole kingdom, French and English and Scots ; or as in Bruce's charter of Anandale,^ to all his Barons and men and friends, French and English ; or to all the good men of his whole land, French and English and Galwegians ;* or as in an old charter of Swinton,^ to his Earls, Barons, Sheriffs, officers, and all his liegemen of his whole land, cleric and laic. I think it is plain that David King of Scots wrote himself King of the whole population, native and foreign, in Scotland proper, be-north Forth, in Lothian, and in Galloway; and that, although he set forth his title so shortly, he claimed the allegi- ance of all the inhabitants of these lands, whether Scots, English, French, or Galwegians. You will find the earliest Scotch deeds without ' ' National mss. of Scotland,' Part I. No. 15. 2 Ihid. No. 17. s Ibid. 19. 4 Ihid. 20. 6 /5^_ 22. EARLY CHARTERS UNDATED. 31 date — without anno domini or anno regni. Occa- sionally, but very rarely, the writer gives a bit of contemporary history to mark the era. The perambulation of bounds and marches between King David and Henry Abbot of Melrose is dated on "Friday, the morrow of the Ascension of our Lord, in the second year after the taking of Stephen of England" ^ — an historical event now almost forgot- ten. Postquam arma suscepi, says one king, — after I assumed arms, — pointing to the king's receiving knighthood. Post devictum Somerledutn — after the defeat of Somerled, and post concordiam cum Somerledo — after the peace made with Somerled, — post adventum Ducis Saxonie — after the arrival of the Duke of Saxony, — mark events of the greatest importance in the writer's opinion. It was not till a considerable time after charters had been introduced into Scotland, that the practice began of marking the date by the year from the nativity of our Saviour, which had been used on the Continent, however, somewhat earlier. The Anglo-Saxon char- ters are, for the most part, devoid of any date ; and following them in style and manner, our earliest Scotch charters are to be chronologised or placed in their true era chiefly by the names of the granter, 1 Stephen was taken at the (daughter of Henry ii. of Eng- battle of Lincohi, on February land, wife of the Emperor Henry 1141, by Maud the Empress iv.) 32 DATING OF CHAKTEES. grantee, and witnesses. It is but an approximation, but in general the names of a bishop or two, or of a great officer of state, joined with the granter, leave little room for error. In a charter of Malcolm the Fourth the date is fixed by a single witness. Wil- liam, Bishop of Moray, is styled, in addition to his episcopal title, "Legate of the Apostolic See." Now, we know that Bishop William of Moray went on a mission from Malcolm the Fourth to the Pope, and returned with the power and title of Legate in 1160. We know also that he died in 1161, so that single witness brings the time to a point. It is more frequently ascertained from the concurrence of several witnesses, and now, when so many Scotch chartularies have been printed, it is not so difficult as it used to be to find an approximate date for any charter with witnesses named. Of the general chro- nology of our records, I have only to remind you that in all the charters and documents of David ii. dated after his return from England, the annus domini is found not to agree with the annus regni, the latter falling short of the former by one year. Some of the charters of David to monasteries and churchmen are elaborately handsome and full of details. Both as to matter and shape, the monkish writers took great pains about their own charters,* ^ e.g. The Great Charters of Holyrood and Kelso : National mss., Part I. Nos. 16 and 32. BRUCE CHARTERS. 33 But charters to laymen, even of the greatest conse- quence, and conveying territories of immense ex- tent and jurisdiction all hut royal, were often extremely short. Brace's first charter of Anandale, the first title of that illustrious family in Scotland, consists of ten lines, and is about the size of a modern letter folded for post. His charter of the same territory to be held in free forest is still smaller, and might well go in a modern post letter without folding,^ and you will observe that all charters in early times are written only on one side. Those little ancient charters contain simple words of gift, and when you can read the hand, which is easier than the writing of some centuries lower down, and can decipher a few simple contractions, there is nothing that requires explanation. I do not mean that these two writs are not worthy of much study from the conveyancer. Observe, the barony does not occur in either charter, and it would seem that a grant of forest was the most extensive and most privileged then in use. But from that time, and during centuries after- wards, charters were increasing in bulk, and the additional matter is often no help to the sense. I propose to take a charter, or rather a composition 1 The writer is not strong in his venetur. But, after all, our old Latin. He writes /ore«io instead charter Latin is not so bad as the of foresta, vallum instead of French, which confounds all vallem, and venatur instead of grammar. C 34 STYLE AND TITLE OF THE GRANTEE. of many charters, at a time when this verbosity had come to its height, and to explain, as shortly as I can, such difficulties in matter or in language as seem to me to require explanation. With this view we will take the order of the clauses as adopted by Mr. Erskine, and indeed as found in the charters themselves. I shall not detain you upon the designation and styles of the granters of early charters, although it is worth while noticing how, from the very begin- ning of our writs, our kings threw themselves free of the absurd magniloquence of the granters of Anglo-Saxon charters, where the petty kings of an English county called themselves King and Basi- leus, not only of their own tribes of Saxons, Angles, or Jutes, but of all the surrounding nations — om- nium nationum circumjacentium. Our king was from the beginning "Kex Scottorum," and never added to his style, whether he acquired an Eng- lish earldom, or gained a surer footing in Gal- loway or the Isles, or enlarged his borders in Lothian. One other remark, and I have done with this point. An assertion of hereditary right in our first received charter has been held to throw a little doubt either upon the hereditary right of the granter, or upon the authenticity of the charter. I allude to the first charter in all Scotch collections, where PERSONS ADDKESSED. 33 Duncan, the son of Malcolm Canmore, styles him- self "constans hereditarie rex Scottorum." And I myself at one time thought the ^phraseology of that assertion a circumstance of suspicion, but I had not then observed that it was a mere copy of the style just before adopted by the English king, William the Conqueror.^ Neither shall I detain you long upon the per- sons or classes to whom early royal charters are addressed. I mentioned already that David the First ad- dressed them to the diflFerent nations over whom he ruled, " To Scots and English, to French and Gal- wegians, in Scotland (Scotland proper, that is, from Forth to Spey) and Lothian," and he and his suc- cessors frequently addressed their charters to the Bishops, Abbots, Earls, Barons, Justiciars, Sheriffs, Prepositi, OflBcers, and to all the good men of his land. One charter is addressed to his Thanes and Drengs in Lothian and Teviotdale.^ I do not know that there is much to explain here. These styles were borrowed almost verbatim from Anglo- Saxon England. Of Thanes I shall 1 National mss., Part I. No. 1. ham, the granter styling himself A very few years before the grant- "WiUelmus dei gratia Rex An- ing of Duncan's charter, there glorum hereditario jure factus." were laid upon the altar at Dur- — Baine's North Durham, ham two charters of gift from the ^ National mss., Part I. No. Conqueror to the monks of Dur- 12. 36 CAUSES OF GRANT. speat hereafter; Dreng, a title almost forgotten, was the name of a class somewhat above villen- age, but yet not free tenants. The class of the «* good-men "—jsroSi homines, does not precisely mean men of morality. Like libefefenentes, the title of probi homines has been a great subject of con- troversy in England, without much fruit from the strife. Without even opening the argument, which you will find at length in Brady, and the writers of his time, I think English lawyers have now agreed that probi homines may be correctly ren- dered either vassals or subjects.^ The common inductive cause for granting char- ters in feudal times was, of course, pro servicio suo. It is often stated that the grant is in reward of service, but most commonly the gift is for service done and to be done, past and future. Along with service is joined homage and fealty — pro homagio et fidditate. Sometimes an old charter runs like a modern conveyance in a marriage-settlement — pro ^ With us prdbus homo has a Earl of Huntly. But a time similar meaning. I have myself came when (I daresay for politi- a series of charters and letters in cal purposes), with the consent of •which the owners of certain lands the Earls, these old vassals of in Moray are styled " Good-man theirs were promoted to a crown of Cotts " — " Good-man of Leu- holding, and then, contemporary chars ; " and that designation with their very first royal char- lasted for a century or two, dur- ter, they are styled by their ing which time the lands were neighbours and the notaries no held of a subject-superior, the longer " Goodman," but " Laird." SUBJECTS GRANTED. 37 mafrimonio contrahendo per Dei gratiam} When the grant was to a religious house, you will find that the motive set forth is the weal of the granter's soul, or of his friends and kindred — pro salute anime mee et sponse mee — and it runs sometimes into a bargain for prayers to be said, not only for the soul of the grantor but of his father and all his predecessors, and even for the welfare of the souls of all his descendants. Walter Fitzalan, the Steward, gave to the monks of Dunfermline twenty acres and a toft for the soul of King Malcolm and his ancestors, and for the souls of the granter's father and mother and his ancestors, and for his own soul, in free alms, reserving a lodging for himself and his heirs — salvo hospitaqio meo et heredibus meis.^ Robert iii. grants to Sir William Inglis the barony of Manor in Peebles for the slaughter of Thomas Struther, Englishman, in a single combat.^ Let us hope that such inductive causes were few on both sides of the Borders ! Next come the subjects granted. You have lands, described by their marches, or by the ten- ure of the former proprietor, or by the value of the land — viginti lihratas terre, that is, lands valued at £20 annually ; sex mercatas terre cum dimidia, lands valued at six and a half merks annually ; 1 Kegistrum Magni Sigilli, p. ^ Registrum de Dunfermelyn. 59 No. 184. ^ Robertson's Index. 38 SUBJECTS GRANTED. denariata terre, lands yielding a penny annually ; sex davatas, six davachs of land ; hovata terre, an oxgate of land ; virgaia terre, a rood of land-^of which words I shall offer some explanation in a subsequent lecture. There are grants too of other subjects, such as the offices of Sheriff, Constable of castles and palaces, Coroner, Thane, and the like. There are grants of fairs — the right of holding a fair ; frequently mills are granted. There are grants of fishings very specific, grants of freedom — of emanci- pation, grant to the men of Galloway of their peculiar laws and liberties, — in short, grants of every descrip- tion of property, office, and privilege.^ In one case, where an earldom is granted, the regality of the earl- dom is reserved. Robert Bruce granted to the monks of Melrose for the weal of his soul, and for the souls of his ancestors and successors kings of Scotland, £100 sterling of annual rents from the farms of Ber- wick, for finding daily for each monk in the refectory a sufficient dish of rice and milk, or almonds, or peas, or other such dish, which was to be called the king^s dish for ever, although we see upon the title of the charter that it came to be called the king's pittance — fitantia ; and the King specially commanded that there should be no reduction of the usual bill of ^ Except, perhaps, the right of for though often a pertinent of sepulture. I do not recollect any land estate, a right of sepulture separate right of burial in a char- may be held by it self, and, it ter, and yet I suppose that may be, would seem, without writ. QUAEQUIDEM CLAUSE. 39 fare, by reason of the addition of this dainty dish.^ Eobert III. when getting near his latter end granted to his Chancellor the Bishop of Aberdeen, a silver cross, in which was contained a part of the wood of the Cross of St. Andrew, and two pictures, one of wool, tapestry of arras, of the offering of the three Kings of Cologne to the blessed Virgin, and another of linen painted with beasts and birds, as also a large missal.^ We come now to the Quaequidem clause, the clause giving the history of the tenure and setting forth by what right the subject came into the hands of the granter. This clause is, however, too often wanting in our old charters. Where it occurs, it sometimes runs que perprius fuerunt A. B. inimici nostri — which formerly belonged to A. B. our enemy, — not setting forth any act or judgment of forfeiture. I have observed some charters in Bruce's time, where the lands given by the King had formerly been in the possession of a Balliol or a Comyn, and that was sufficient account of their coming into the King's hands. You will find, I think, that the greatest number of the charters of King Eobert i. proceed on forfeiture. The fact of a man dwelling in England conirajidem et pacem regis, is set forth as a sufficient ground of granting his lands to another. 1 Liber de Melros. '^ Kegistram Episcopatus Aberdonensis. 40 MODUS TENENDI. In some cases they had fallen to the king by bas- tardy, or propter defectum heredum ; but most fre- quently the charter bears that the lands were resigned by the previous holder purely and simply into the hands of the king. We cannot doubt that in this last case resignation was for the most part made in favour of the new grantee ; but resigna- tions expressly in favorem had not yet come into fashion. We come next to the tenure — modus tenendi — of the subjects granted by these early charters. A grant of regality took as much out of the Crown as the sovereign could give. It was, in fact, investing the grantee in the sovereignty of the terri- tory, and it raised up those formidable jurisdictions which too often set the Crown at defiance. You will find it in its fullest and most objectionable shape in the charter by Kobert Bruce to his nephew, Thomas Randolph, of the Earldom of Moray, where even the ancient free boroughs of the kingdom are included within the King's grant to his favoured tenant in capite; but such inordinate concessions were soon checked by Parliament. A grant of comitatus — of earldom — ^included a grant in liberam baroniam, but all the subjects, pertinents, and jurisdictions conveyed in a grant of earldom or regality were frequently given with more minute specification in the grant of a barony. MODUS TENENM. 41 Grants in liheram forestam having special refer- ence to game and the privileges of what we now call "sport" furnish a multitude of points and terms to be explained as we best can, when we come to the chapter of parts and pertinents, but I would venture only one observation here. In so far as I remember, the right of property precedes the right of forest. The king gives an extensive grant of lands — a great barony, in short, to a powerful and faithful vassal, and then afterwards, frequently at a good interval of time, he improves the vassal's tenure by giving him a right of forest over the same bounds. I do not think we ever had in Scotland the fierce forest laws of the Normans ; but the libera foresta granted to a subject, gave him all the rights which the king en- joyed in his own forests. The specific advantage conferred by a grant in free forest in Scotland, was that it fixed a definite fine — ne quis secet aut venetur — against any one cutting the wood or hunting the deer ; and the forfeiture was ten pounds, the same as the king's. Connected with the grant of forest is the right of pannage — cum pasnagio, sometimes misspelt pad- nagio — that is, the right of feeding swine in the forest at the season of pannage, when the mast of beech and oak are falling or have fallen. A right of warren — a grant in liheram warennam, is held to be of an inferior jurisdiction, as compared 42 MODUS TENENDI. with free forest ; but I cannot state the difference. The charter of warren, like that of forest, prohibits cutting of trees, hunting and hawking, and fishing in lacubus, vivariis, etc. Perhaps the diflference lay in the penalty for trespass.^ Take now a grant in liberam haroniam in fullest form, and, 'rejecting as little as we can for mere sur- plusage and sound, let us see what are the parts, per- tinents, and privileges really granted. Remember that a grant in liberam baroniam, without more, im- plied not only the highest and most privileged tenure of land, but also a great jurisdiction over the inhabi- tants, and all the fees and emoluments that of old made such jurisdictions valued. And now read with me the terms used in a few of these grants to express more specifically the extent of the grant. The grantee is to hold in free barony by all the right marches and bounds : the first charter I refer to says, " as they were in the time of King Alexander of good memory," in boscis et planis (sometimes running in nemore, in virgi^Uis, or in saltibus, fol- lowed by in planis et asperis) — in woods and plains ; ^ The brieve de libera foresta super nostram plenariam foris- in the Bute MS. concludes with facturam, which the Bute MS. the sanction super nostram plen- attaches only to the de libera ariam forisfacturam, while the foresta. I have always considered brieve de libera warenna is with- the Ayr MS. as the most purely out those words of sanction ; the Scotch of our ancient collections latter in the Ayr MS., however, of styles, contains the same sanction — PARTS AND PERTINENTS. 43 planum probably meaning "manurit" land — arable lands. Inpratisei pascuis, which we translate meadows and pastures, but not very accurately. Fratum was a hay meadow.^ Our old Scotch custom gave lawful travellers a right of pasturing their cattle where they stopped at night, except always within prata et segetes — hay-fields and corn-fields I should trans- late it, except that perhaps the word field implies more of cultivation and enclosure than hay hus- bandry of old required. I find in English charters pratum applied to the hay itself, and tenants and bondagers bound to mow and carry the prata to the lord's castle. In viis et semitis— .the liberty of roads and paths — in a grant of barony, has reference to a right of exclusion as well as use. A very curious charter, to which I shall have often to return, declares that an inquest had found that there was no road through the barony of Trauereglys ex- cept two, namely, one per longitudinem, and the other per latitudinem. There may be other causes for a specification of roads and paths, which is almost universal in grants of barony and indeed in almost all considerable grants of territory with us, > We do not readily accept the quad pamfum, because it grows etymologies of Sir Edward Coke, sponte without manurance.— Co. who tells us — dicitur pratum Lit., B. 4. 44 PARTS AND PERTINENTS. but I have not found that it has been relied upon in any of the late discussions as to the property of the soil upon which public or high roads run. In moris et maresiis — in moors and marshes — in aquis et stagnis, about which I find nothing to remark, except that aqua seems to be the run- ning water in distinction from stagnum, which is the pond sometimes for fish, sometimes for mill purposes. In mvariis — in fish-stanks or ponds, but observe, vivarium is sometimes used for parks where game is enclosed.^ Amongst the common pertinents of a landed estate besides the moors and marshes, we find cum bruscis et brueriis, which I take to mean the brush- wood or jungle and heaths — the latter from the French word bruyere. Cum petariis et turbariis — with petaries and tur- baries (for these are English words as well as Latin) denoting the places where peats and turfs are cut. ' This word has heen fruitful of ' abbeys of vineyards, but where mistakes in England, which we the word occurs in Scotch char- have not been slow to foUow. In ters it is safer to print it with a old writing " n" and " u" being ' " u," and to translate it " parks," undistinguishable, it was excus- where it seems to apply to dry able, in writs relating to lands in ground. In far the greater num- the southern counties of England, bar of instances, however, in to read the ambiguous letter " n," vivariis means nothing but fish- because there really were a few ponds, grants to the great southenj PARTS AKD PERTINENTS. 45 In a comparatively modern grant/ by which the king erected the lands of the Bishopric of Moray into the Barony of Spynie, I find a very full list of these parts and pertinents, though some of them must have been placed there ob majorem cautelam. I have noticed the chief of these, and I only remark my omission of coalpits, quarries, stone and lime- stone, and, along with heath, a grant of broom — cum carbonariis, lapicidiis, lapide et calce, genistis. There is a grant there too of pigeons and dove- cots — cum columhis et columhariis ; and a few years subsequently,^ William, Bishop of Moray, grants to John MacCuUoch the lands of CadboU, with nearly the same parts, pertinents, and privileges, and with the addition of wrak, waith, et wair — that is, the right of wreck and waif and sea-weed — the lands of CadboU lying along the shore of the Cromarty Firth. Cum venationibus, aucupationibus, et piscationi- bus — with huntings, hawkings, and fishings. These were rights implied in a barony though often specified among its parts and pertinents, and form- ing subjects of more definite grants in charters of forests. The charters to Melrose and the transac- tions of the monks with some of their neighbours, afford good instances of the arrangements with regard to game. The Lords of Avenel had from the 1 Eegistrum Moraviense, No. 193. " A.D. 1478. 46 PARTS AND PERTINENTS. Crown a gift of free forest in Eskdale, and when the Avenels granted the territory to the abbey they re- served the rights of forest and game, there being still some scruple whether such rights and the occupa- tions that flow from them were suitable for religious men. Therefore the lay lords reserved, in express words, their rights to hart and hind, boar and roe, the eyries of two kinds of hawks, as well as the right to the penalty of trespasses within the forest and the amercement of those convicted. The monks were prohibited from hunting cum moetis et cordis — that is, with a meute or cry of hounds, and (I suppose) nets — such machinery for sport as Horace describes so lovingly.^ They are pro- hibited from setting stamps or traps, except only for wolves, and from taking the nests of hawks ; evea the trees in which the hawks usually built were to be protected, and those in which they had built one year, were not to be felled until it was seen whether they intended to build there again. The Stewarts, 1 At cum tonantis annus hibemus Jovis Imbres nivesque comparat, Aut trudit acris hinc et hinc multa cane Apros in obstantis plagas ; Aut amite levi rara tendit retia Turdis edacibus dolos, Pavidumque leporem et advenam laqueo'gruem Jucunda capiat praemia. Quis non malaram, quas amor curas habet, Haec inter obliviscitur ! — Epod. ii. 35. MILLS. 47 who held a great part of Ayrshire in barony and free forest, granted great territories there to the monks of Melrose, but reserved at first the right of game nearly in the same terms with the Avenels — hoc enim illorum ordini non convenit — for that was not suitable to the monkish profession. But those Cis- tercian monks soon got over the scruple about their Rule, and first the Stewarts, and later the Grahams who inherited from Avenel, conferred at length upon them all the rights of game and forest which they had at first reserved.^ In molendinis — mills, perhaps one of the oldest adjuncts of a barony, — one of the most grievous oppressions of the peasantry. It is often ampli- fied by the addition cum multuris ei sequelis — specifying the multure dues of the baron's mill and the sucken, as we call the population thirled to the mill. These rights are the subject of very frequent transactions. The neighbours fought not only with the miller, who was the universal enemy, but with each other, as to their roume and order of service. One curious point of the service of the sucken was the bringing home of the mill-stones. Considering that there were few or no roads, the simplest arrangement was to thrust a beam or a young tree through the hole of the mill-stone, and then for the whole multitude to wheel it along upon its edge-^ , 1 Liber de Melros, Nos., 39, 41, 72, 72* 196-8. 48 BEEW-HOUSE. an operation of some difficulty and danger in a rough district. Dugdale tells us of the manor of Newbigging in England, where the tenants were bound to four days' reaping in harvest, two days' ploughing, two of harrowing, one of carrying the hay and repairing the mill-stank, and dragging the mill-stones — molas attrahere — and two days' service among the sheep, one for washing, the other shearing ; and yet Daines Barrington (whose book on the English Statutes is generally verj' trustworthy) tells us that mills were never monopolies in England. That is worth in- quiry. It would appear that the smithy — -fdbrina, fahrile — and the brew-house — brasina — were held natural pertinents of an estate in land. I cannot tell if there was any ancient common law right or privilege con- nected with the brew-house. By the tenure under the monks of Kelso, the brewer, or — as I suppose it was even then a lady — the brewster wife, was bound to furnish my lord the abbot with beer at a half- penny a gallon, while to the outside world it cost twice as much. I find in later charters the brasina superseded by the alehouse, which had generally a croft appended to it. I suppose the alehouse was ori- ginally the hostelry for travellers. I need not tell you that in later times it became the scene of relaxa- tion and jollity of the neighbouring gentry, who SALT-WORKS. 49 enjoyed there the freedom from restraint which compensated for simple entertainment, but who drank there claret as well as ale.* A very common pertinent of a barony was a salt-work — salina — sometimes with the grant of firewood from the neighbouring forest, sometimes simply with five or six acres of land. I am not scientific enough to know the reason, but you will find that a great many of these are granted far from the sea — as far up as the tide flows, of which the Carse of Stirling is one instance, where the water can have retained but little salt. The only ancient salina which I know, so well preserved that the structure and modus operandi can still be discerned, is on the estate of Dufi'us, close by the loch of Spynie, where the sea at one time had an entrance, though it is now fresh water. Such are the most important rights of the baron as lord of the soil. "We now come to his rights as feudal superior and lord of the inhabitants. Cum tenentibus, tenandriis — with tenants and ten- andries, seems to give the grantee only the rights of a landlord over a free tenant, though no doubt there were services exacted from the freest tenant 1 The reddendo for an alehouse rentals, often gives the red- and alehouse croft was often a dendo of a fat pig or a litter of quantity of tallow, the produce, sucklings— grWce, a word which perhaps, of the kitchen of the has given rise to some laughable little inn. A mill, even in modern mistakes at the bar. D 50 SERFS. by the lord — service in harvest, carriages, labour on the roads of the barony. The clause runs some- times cum tenandriis liberetenentium, and sometimes cum tenentibus et eorum serviciis. Gum homagiis, wardis, releviis do not seem to me to require explanation. Homage was the honorary observance, ward and relief were the common casu- alties of superiority explained in all books of feudal- ism, and none of these that I have now mentioned have any reference to the lowest class of rural occu- pants, which come next. Gum bondis et bondagiis — with bondmen and their holdings and services. I cannot pretend to distinguish with any accuracy the bondman from the neyf. It is not improbable that the neyf or serf by descent — nativus de stipite — was distinguished from the bond-labourer, but we cannot tell to what extent, or in what manner.^ Then comes the clause cum nativis, or cum hominibus — that is, with natives or neyfs, whose name, both here and in England, points to their ^ It is well known how serfdom North, but the Lords found left its remains still visible till "that the custom was rioi a very recent period in the con- general, and condemned it as a dition of colliers and salters. corruptda and unlawful, and There was an attempt in the end tending to introduce slavery, of the seventeenth century to ex- contrary to the principles of the tend serfdom to fishers as well as Christian religion and the mild- colliers, founding upon a general ness of our Government."— Foun- custom that prevailed in the tainhall, Feb. 16, 1698. SERFS. 5] being regarded as the remains of the native popula- tion obliged by the invaders to become serfs,^ Cum nativis et eoriim sequelis means exactly with neyfs and their followers, just as a horse-dealer now sells a mare with her followers. It implies a transfer of the property of the whole descendants of the neyf for ever, and there were various means used to prevent the race escaping from that thraldom. Both here and in England we have books recording all the members of the servile family,^ indeed of all the de- scendants of all the serfs of some great lord or religious house. The sons were slaves for ever, they and their descendants — but for the freedom which the privilege of free burghs, or which that grand emancipator, the Church, opened to them. Our lawyers do not point to any distinction between the neyf in'gross, the out-and-out slave, and the neyf regardant — that is, astricted to a certain land ; but I have seen transactions for removing slaves from one estate to another, which show, or seem to show, that the difference was known with us also, and that a neyf astricted to the soil might not be moved at the mere will of his lord, even to another estate of 1 A charter of James vi. (8th tenure was to be in feu-ferme. February 1584) grants the lands I suppose the Eannalds before of Bandeith in Stirlingshire to that were kindly tenants and Alexander Eannald, son of John rentaUers of the Crown. Eannald and Elizabeth Alsehin- ^ Kegistrum de Dunfermline; der — veteri nativo et tenenti nos- Kaine's N. Durham. «ro.— E.M.S. xxxvj. 193. The 52 MERCHETA. the same lord. As for the neyf in gross, you will find printed amongst our " National mss." a deed of sale, by which a Berwickshire laird sells to the priory of Coldingham a serf named Turkill Hog, and his sons and daughters ; the whole family fetch- ing the price of three merks. If you think it worth while to look at that deed,^ you will find expressions showing that the sale was made under urgent neces- sity, which, with other circumstances, leads me to infer that it might not have been otherwise warrantable, and that the poor serf was protected by law from capricious sales, Mr. Bradshaw showed me lately, during a visit to Cambridge, a ms. of the fourteenth century, of the nature of a stud-book, which had belonged to the Abbey of Spalding in the fens of Lincolnshire. It gives the pedigree, for several generations, of the serfs on the Abbey estates, their marriages and those of their sons, the names of thie men whom the daughters married, and notes of the fees paid for these marriages — the merchet — which brings me to explain what, with us at least, was the meaning of merchetae mulierum. Mercheta is the older form of the mantagium or marriage-tax, in the charters of Robert i., and not only the servile class, but the free tenants also paid a maritagiiim on the marriage of their daughters. But I cannot say whether the fine paid for the marriage of a 1 Part I. No. 54. MERCHETA, 53 serf's daughter was remitted, if the marriage took place between vassals of the same lord. I fear not, but I see no evidence on the subject. Some learning has been brought to show that, on the Continent, this tax — merclieta mulierum — repre- sented an ancient seignorial right — the jus primae noctis. I have not looked carefully into the French authorities ; but I think there is no evidence of a custom so odious existing in England ; and in Scot- land, I venture to say that there is nothing to ground a suspicion of such aright. The merchet of women with us was simply the tax paid by the dif- ferent classes of bondmen and tenants and vassals, when they gave their daughters in marriage, and thus deprived the lord of their services, to which he was entitled jwre sanguinis. In England we find in some manors a precise fine fixed, which was to be paid even if any son of a villein took orders in the church, and thus secured emancipation. I find in the charter erecting the lands of the Bishopric of Moray into the barony of Spynie already referred to, that the clause of Courts runs " cum herizeMis, Mudwitis et merchetis mulierum " — a strange classification, showing, I think, that the scribe did not know what he wrote. But there is no doubt as to the meaning of the words themselves. Merchetis mulierum I have explained already. Heii- 54 HEEIZELD. zeld or heriot is the best horse or ox — the best animal - — the best aucht — optimum averium of the vassal, which became the property of the lord on his decease. I shall return to Bludwitis, thrust in here so irregu- larly, when I come to speak of the rights of juris- diction which a grant of barony conveyed to the lord. But first let me mention a very old grant, more regular and from a higher authority. In the year 1182, whilst their founder, William the Lion, was still alive, the monks of Arbroath obtained a papal bull confirmatory of all their rights ; and truly Pope Lucius the Third, or his Italian chancellor and Italian scribe, must have written and read with great astonishment the words of that grant which they themselves were confirming. The monks are to be free from all toll and custom — toUonio et consuetudine — through the whole kingdom and all the ports of Scotland, for all goods and merchandise belonging to themselves and their burgesses ; they are to have free court in their land with sac and soc, with thol and them and infangthef, likewise the ordeal — eosamen aquae, ferri calidi ei duelli — and pit and gallows — furca et fossa — and the king's firm peace within the bounds of the abbey. I told you that a barony gave numerous juris- dictions, and I must speak of some of them. What- ever might be the case with the monks of Arbroath SAC — SOC. 55 in the twelfth century, I am not quite sure that the writers to the Signet, in the age of Robert the Bruce, understood the words sac and soc, toll and teme, in- fangthefBXidi outfangthef, any better than the learned and sagacious Bailie MacWheeble, who paraded those words when he wished to magnify the juris- diction of his master, the Baron of Bradwardine.^ They are good Anglo-Saxon, however, and had at one time a definite and well-ascertained meaning. Sac is the abbreviation of sacu, and means placi- tum — a plea, or suit at law, and the jurisdiction or right of judging in litigious suits, Soc again strictly denotes the district included within such a jurisdiction, just as socmen and soc- manni mean the persons within and subject to it. Sir Edward Goke, who despised such little learn- ing, and yet dabbles in it, is certainly mistaken when he connects soc the jurisdiction, with a plough, and runs poetical upon the interesting qualities of the rural population.^ Kemble, a better authority in this matter, gives you the meaning which I have followed, and traces socen to its origin in the right of investigating — cognate, I suppose, to the word seek. •• Such ignorance was not con- not know the meaning of the fined to our country. Kemble words they are confirming. — mentions some Norman charters Codex Diplomaticus, vol. i. p. of English lands which, while they xllii. confirm the privileges, frankly ^ Co. Lit., B. 85-6. state that they — the writers — do 56 THOL — THEM. Tliol has sometimes been supposed to mean ex- emption from toll or custom — the right to keep your toll-money in your own pocket, and certainly that was one of the exemptions of Arbroath I have just quoted. But in the common case I confess I prefer the interpretation which makes thol — the definite, technical privilege — the right of exacting the duty rather than the right of refusing to pay it. In this way I hold it to mean, and to grant to the holder of the charter, the right to exact custom or customary payment for goods passing through his land. Them is explained by Kemble as warranty, a word which has a very great variety of meanings in connexion with jurisdictions and form of process of old. When a man found a borgh — invenit plegium — to pursue or defend, that was one manner of warranty. There were other sorts of it of larger application. But indeed you cannot read the laws of David i. and William the Lion without seeing an attempt to bind the loose and separate parts of society together in some bond of mutual warranty, such as was known in England under the name of frank pkdge, and to such a system this old word Them may apply .^ 1 Something of this nature warrantyasappliedto the recovery we can see in use in Scotland, of stolen goods. The law which where in the time of William the is found in our oldest Mss. is now Lion the law of Claremathen, a chiefly interesting for its informa- name I do not pretend to explain, tion as to the state of the country, indicates a system of pledge or and the attempts to remedy an INFANGTHEr, 57 But let me repeat that these terms, which came to be words of style and put ob majorem cautelam in our Scotch charters, are found in Anglo-Saxon char- ters penturies before the Conquest, and then no doubt they had definite and well-known meanings. They are found in English charters after the Con- quest also, but it would seem that the Anglo-Norman writers who then used them did not understand their meaning, nor were able to handle their grammar.^ We may have been somewhat more fortunate from our preserving a more Saxon form of speech, but I do not pretend that the meaning of these juris- dictions was very clearly understood by the writers of our charters. As to the word Them it is unsatis- factory to us to find the great Sir Edward Coke guessing and stumbling about its meaning like any of our poor selves. If you have time you may read a page of it in Co. Lit. 116, A., the beginning of a very learned chapter of " Villenage." I have never found any claim of the lord, or resistance to such claim, founded upon the meaning of these specific terms of jurisdiction. With us in Scotland, infangthef is a short way of insecurity of property which con- of the Parliaments of Scotland, tinned to mark the Highlands at vol, i. p. 50. least, in spite of the legislature. * I should not venture this re- It is printed as No. 3 of the Laws mark without the authority of of King William the Lion. — Acts Kemble. 58 OUTFANGTHEF. expressing the right to judge and punish a thief caught " with the fang " within the grantee's juris- diction. Outfangthef, which is much less common, gave the same power over a thief caught beyond the jurisdic- tion of the lord, he being followed and caught with the fang. I presume it was necessary that he should be by birth or otherwise subject to the baron's jurisdiction. In both these cases the interest of the lord was not from a pure love of justice. Such a grant gave him a right to the amercements, the escheats, all the goods and chattels which the poor thief could forfeit ; and it was that money con- sideration which made all those rights of baronial jurisdiction so much coveted. When, in later times, Parliament complained of our kings' facility in pardoning, possibly the complaint flowed from the stern demand of justice. But the barons might also grudge the loss of fines, escheats, forfeitures, which were theirs by their charters. Among the points of jurisdiction chiefly deserving of notice was \\\e furca et fossa — the right of pit and gallows, the true mark of a true baron in the ancient time, who had curia vitae et membrorwm — jurisdiction in life and limb. It was not the peculiar taste of our barbarous ancestors : all feudal lords through feudal Europe were equally fond and proud of the right of executing those whom they had first convicted and PIT AND GALLOWS. 69 sentenced to death. The French had the phrase avec haute et basse justice, which meant nothing more than cumfurca et fossa. The gallow-hill is still an object of interest and, I fear, of some pride, near our old baronial mansions ; and I know some where the surrounding ground is full of the remains of the poor wretches who died by the baron's law. Per- haps the fossa — the pit — was for the female thief ; for women sentenced to death were, for the most part, drowned, and I have an old Court book of a regality quite low down in date (c. 1640), where the simple form of record in criminal process was to write in the middle of the page of the Court book the name and offence of the accused, with the names of the assize, and upon the margin to inscribe shortly the words "convickit," "hangit," or " drounit." In the rare cases where it was necessary to record an acquittal, the word on the margin is " clengit." There was nothing peculiar in the form of pro- cess used in Barons' Courts who held their baronies cum placitis et querelis (sometimes the word petitiones occurs). Pleas between man and man were dis- cussed very much as in the higher courts. In criminal cases, where slaughter or theft was alleged, the baron bailie selected from the suitors of the court his fifteen of an assize, before whom was laid the accusation, and an outline of the evidence ; all was accompanied by an assertion of the notoriety 60 BLUDWITES — THE FOUE POINTS. of the fact,* and a strangely iterated assertion — " which thou canst not deny." The last kind of jurisdiction noted in my syllabm is Bludwites. It means the jurisdiction in assaults where there is bloodshed, and where the wite or fine was to the lord of the court. The fine varied one- third as the wound was above or below the breath. Such were the common terms descriptive of juris- dictions which gave the baron the power he loved, accompanied with the emolument of fines, escheats, forfeitures, which perhaps he loved no less. For the most part in grants of barony the Crown reserved its own jurisdiction in what are called the " Points of the Crown" — quatuor puncta coronae — murder, fire- raising, rape, and robbery, but the jurisdiction in these was sometimes granted. For instance, the charter by Robert Bruce to his nephew, of the great Earldom of Moray, granted these ; and the charter by King Eobert ii. to his son David, Earl Palatine of Strathearn, expressly gave him jurisdiction in those points — cumfeodis et forisfactis et cum placitis quatuor punctorum coronae nostrae — with fees and forfeitures, and with the pleas of the four points of our Crown.^ But it was different when the Sovereign bestowed 1 A form of words not un- ^ Eegistrum Magni Sigilli, p. known in the High Court of 85, No. 294, and p. 88, No. 306. Justiciary in former times. OEDEAL — EEDDENDO. 6 1 these jurisdictions upon religious houses. The eccle- siastical judge might not try, at least in the common form of human justice, cases of life and death. To him, therefore, was given the higher and more mys- terious jurisdiction — the direct appeal to heaven by ordeal. The abbots of all our great monasteries had this high jurisdiction. The Abbot of Scone had a specific grant of the island in the Tay, which flowed past his monastery, for the purpose of there holding courts for the trial of accused persons by water, by hot iron, by duel — examen aquae, ferri calidi, et duelli. But such forms of jurisdiction, as they require some explanation, will be better treated in the chapter of Origines Justiciariae, where I have tried to gather together some vestiges of the oldest forms of legal procedure. The Reddendo or Faciendo clause furnishes a few words and customs that are noteworthy. In Eobert the Bruce's time a charter is given of land, to be held for the service of two archers — servicium duorum architenentium, and for giving suit in the Lord's Court — sedam ad curiam nostram ; it was often more de- finite, as reddendo tres sectas curiae ad tria nostra placita c'apitalia. This suit was to make up the necessary gathering required for business, members of assize, witnesses, compurgators, etc. Those holding by such service were suitors — sechtores curiae ; and you find in all records of old court proceedings the 62 KEDDEXDO. commencement is — sectis vocatis — curia legitime affi,r- mata, or when it comes to the time when Scots was used, — "Suits called, the Court lawfully fenced." The reddendo of service means service in war ; servitium debitum et consuetum is the common form, or more specifically servitium in exercitu regis. Servi- tium forinsemm or Scoticanum — service without or within Scotland, corresponded to the old Saxon utwer and inwer. You will find these Saxon words preserved in a charter of the Abbey of Kelso, a.d. 1190.^ Sometimes it is more definite. My own forebears held their lands by a charter of Malcolm iv. for rendering servicium unius militis in castello meo de Elgin. So Robert 11. grants to Patrick Gray a part of the land of Longforgund, faciendo servitium quan^ tum pertinet ad terciam partem servitii unius militis in ewerdtu nostra una cum Scotico servitio de dicta terra debito et consueto — doing therefor the service pertain- ing to the third part of the service of one knight in our army, together with the Scotch service used and wont for the said land. We had no tenures by serjeanty. The name is not known with us, at least not in the English sense. So we have few, if any, of those curious quaint reddenda of English manors which were gathered into a most entertaining volume by Thomas Blount^ a little while ^ Liber S. Marie de Calchou, Antiquitatis, Antient Tenures of No. 252. Land, and Jocular Customs of 1 He calls his book- Fragmenta some Manors. — 1679. REDDENDO. 63 before the Eevolution. Blount tells us of divers manors and lands in Cumberland held by the ser- vice of carnage, that is of blowing a horn when the Scotch were coming. Amongst a multitude of curi- ous and interesting particulars of rural life, he tells us of the Manor of Brayles, where the tenants of the manor must not marry their daughters, nor crown their sons — nee filios coronare, — that is, make their sons priests, without license from the lord ; and upon this, Mr. Blount observes, that it was a common restraint of villenage tenure, to the end the lord might not lose any of his villeins by their enter- ing into holy orders. Unluckily he does not give the original language of this tenure, but it is plain that those whom he calls tenants were moi free tenants. Although the word rent perhaps comes from reddendo, there is little of actual rent, according to our meaning of the word, specified in those old grants of land ; a money rent is a rare case of old, but we find such payments as the following : — An annual rent of four chalders of oatmeal and one pound of pepper. To a religious house we have payments of eight wax candles, each of a pound weight, to be burned around the tomb of Saint Machutus. Then we have ten chalders of good wheat and barley. The land upon which I live myself at Inverleith, which I can trace back by charters into the possession of the Baker of William 64 BLENCH DUTIES. the Lion, paid, in the time of Eobert i., one hundred shillings of sterlings. Some fields beside me are still called "Baxter lands." With regard to this word "sterling," it no doubt meant the coinage of the " Easterlings," as it was the currency of the people who went by that name along the shore of the Baltic and in the trade of the north. It gradually narrowed, however, in meaning, until it came to express pre- cisely the silver penny which was the universal medium of commerce in the north of Europe for many centuries ; and a sum of money or a weight of silver was specifically fixed to be of good and lawful pennies — denariorum, or more commonly, bonorum et legalium sterlingorum. As England rose in wealth and trade, the pennies coined by the English Edwards and Henries became the prevailing cur- rency over the north of Europe. Besides these real payments, we constantly meet with what are so well known as blench duties. Here are a few specimens of this class : — XJnum par calcarium deauratorum — a pair of gilt spurs. Sagittam amplam — a broad arrow. Again — Tres sagittas latas — for Lochindorb, the centre of a wide district used for deer-preserve and hunting. Unum arcum et duodecim sagittas latas— a. bow and twelve broad arrows. Unam falco7iem rubeam et unum nisum — a red falcon BLENCH DUTIES. 65 and an epervier, perhaps a tercel — -for the thanedom of Glamis. TJnum par cyrothecarum albarum vel duos denarios argenti — a pair of white gloves, or two pennies of money. Sometimes they are cyrothecae Parisienses — • Paris gloves. TJnum arcum cum uno circulo pro alaudis — perhaps a mirror for flushing larks, as still used in Italy — for the land of New Park (the Royal Park of Stir- ling). TJnum denarium argenti nomine albae firmae — one penny of silver in the name of blench farm. TJnam libram piperis vel cucumeris — a pound of pepper or cucumber seed.^ ^ The Books of Exchequer af- Item, ane braid arrow ford the following valuations of blench fermis, 9 July 1596. Item, it is statut and ordanit that all schireffis in tym cumming sail pay yeirlie in the Cheker the prices of the blensohefermis eftir following; viz., — Item, ilk pair of gilt spurris, . 1 rois nobilL Item, for ilk pund of piper, . . . XXX s. Item, for ilk pund of cummyn, . xiij s. iiij d. Item, for ilk pair of glufifis, . Item, for ilk siluer pennie, . Item, ane pair of quhyt spurris, . xx s. iij li. xd. held, ... ij s. Item, for ilk braid arrow, . . xs. Item, ane floren of ) 1 goldin gold, . . ) pistolett. Item, ane myrrour, . xx li. Item, ane halk, . xxli. Item, ane halk gluff, xxx s. Item, ane pund of walx, ... xs. Item, the pryce of ane cowdeche to ane prebendar or chap- lane, . . . xij s. (j d. vsuall 1 pennie monetae, \ ( money. Ane pund of zinziber, xxx s. j wyld duik, . . xiij s. iiij d. j pair of dogge colleris, xl s. 66 REDDENDO. I add a few more reddendos. For the lands of Lochaw, Bruce's charter hound Colin Camphell — the ancestor of the family of Argyll — to find a ship of forty oars for the King's j garlike held, . . xd. jgrewhund, . . xU. j henne, ... xs. j harie nobill, . j fudder of hay, vj li. xiij s. iiij d. j stane of cheis, . xxx s. j laid of hay, . . xx s. j pund of gwme, . x s. j pundof ineenss, iij li. vj s. viij d. j halk huid, . . xiij s. iiij d. j ganzie [cross-bow], . x s. Aae sparue halk, . j ros nobil. j reid mantiU, . . xl li. Joannes Skene, Glericus Eegistri. Table of Conversions of blench duties in use before the Union. Scots. An ox, cow or mart, ^£10 A white plumash feather, A rose noble of gold, A pair of gilt spurs, A stone of wax, A hawk, . A grew hound, . A boar, . A pound of incense, A pair of gloves, A stone of butter, A sparrow-hawk, Conies or rabbits, the pair, . . . 13 A wild duck, . . 13 Kain-lime, per boll, . 12 10 10 13 8 8 6 6 A broad arrow, A goose, . Onions, per barrel, A fresh salmon, A capon, . A pair of doves, A pound of wax, A sheep, . A barrel of salmon, A bow, A kid, . A pound of pepper, A pound of ginger, A wether, Cheese, per stone, A pair of white spurs. Muttons of Eoss, Buchan and Murray, A stone of meal, A hawk's hood, A pound of cummin A horse shoe, . A hen, A long carriage, A cart-load of turfs, A sheer day's work. Capons of Eoss, Buchan and Murray, The head of an arrow, A short carriage. Poultry of Eoss, a piece, . Eggs, per dozen. Scots. ^0 10 10 10 10 6 8 5 10 2 2 2 2 1 10 1 10 1 10 16 8 10 10 10 13 4 13 4 4 4 4 4 4 REDDENDO. 67 service, with sufficient tackle and men, for forty days, besides giving foreign service like the other barons of Argyle.^ For Balmaschennan, Forfar, 600 wains of peats pro duplicatione albefirme. For the barony of Muirhouse, Edinburgh, two falcon-hoods. Abirdalgy and Duplyn, duahus merulis sive speculis. For Gask, duas capellas — chaplets — albarum rosa- rum. For Glensaucht, duas capellas de lentisco — mastic. For Balgony, unam albam pinnam seu plumam, lie quhyt pannasche or quhytfeather. For Birdisfield and Bellisfield, in the barony of Blantyre, an eighth part of a neck-chain of gold, of the weight of a Harry noble. For Ewirland, Cramond Regis, servicium lavacri. The Pultrie lands near Dene, Edinburgh, were held cum officio pultrie Regine (1545). Dewar lands in Glendochart were held in virtue of the custody of a relic of St. Fillan. Sir Andrew Wood of Largo, by charter, 21st August 1513, had the lands of Fawfield and Frost- leys for going once a year on pilgrimage with James iv. and his dearest spouse to the Isle of May if required. 1 Anderson's Diplomata. Inlike dendo to David ii. of a service of manner, Malcolm, son of Turmode one ship of twenty-one oars wheij Maclode, for 8 davochs and 5 required by the King.— Supple- pennylands of Glenelg, paid a red- ment to the Acts of Parliament. 68 SUBSCRIPTION. The reddendo for the barony of Penicuik, was blowing six blasts on a blowing-horn — in comu flatili — on the moor of the burgh of Edinburgh, formerly called Drumselch, at the King's hunt. As reddendo for the barony of Carnwath, two pairs of shoes, each containing half an ell of English cloth, were to be given on Midsummer day to the man who ran fastest from the east end of Carnwath to the Tallow Cross. I have told you that old charters were very frequently without dates, and, until quite modern times, no charters, even of private individuals, were subscribed by the granters. The deed was completed by aflSxing the grantor's seal, and in Crown charters that solemnity was performed in presence of the Chancellor or Keeper of the Seal, and other officers of the Court and great persons (for you will observe that the persons habitually mentioned as witnesses to Crown charters were always personages of some importance). I have only one other observation, under this head, worthy of being laid before you : that in theory, and I believe in practice, from the earliest times the affixing of the great seal marked the presence of the Sovereign himself In later times, however — times when conveyancing had be- come much more complicated, the signature or first step of the process was subscribed by the King's own hand, perhaps at ,a distance from the seals ; CHARTER OF TERREGLES. 69 but all the subsequent steps, passing through the dif- ferent seals to the completion of the gift by affixing the great seal, bore the same date with the signature subscribed by the King himself. A knowledge of these particulars, trifling as they may appear, has furnished the most satisfactory evidence of forgery in a cause celebre in our own time. Such is the trifling help that I am able to give you with the mere words* of charters. But the curious words are the least part of the interest of some of our old charters. I must mention one to you that seems to embody a complete and lively picture of the country which it concerns, and the state of the population at the time. It is a charter^ of King David the Second to Sir John Heris, Knight, granting the lands of Trauereglys (now Terregles), in Dumfriesshire, in free barony, with all the common pertinents and jurisdictions ; and it specifies certain privileges that seem to have been much valued, and which had just been ascertained by an inquest of the best, oldest and most trust- worthy of the whole sheriffdom. We see, by the privileges claimed and ascertained by the verdict of the assize, the disturbed state of the country. One great object was to shut out marauding parties bent upon plunder, and to limit the right of passage, even of the officers of the law. These officers were re- 1 A.D. 1364. (70 CHARTER OP TERREGLES. quired, even when they came carrying a robber to justice, or bringing a robber's head to show the pur- poses of their expedition ; arid even they were not allowed to pass through in the night, but provision was made for the safe custody of the robber or the robber's head during the night of their stay. Now let me read to you an extract from the charter, the whole of which, however, is well worthy of your attention. You will find it in the printed volume of the Register of the Great Seal, page 37. After the common and special pertinents of a barony, the King continues in this manner : — together with all the liberties which we have found by an inquest of the sheriffdom of Dumfries to belong to that barony of right and custom ; first, that it is held of us in free barony, and that there is no road — via — within the barony except two, one through its length, the other across its breadth ; and that the barony is free of " sorryn and fachalos," ^ — unless officers come through it with a robber, or with the ' I commend these words to Still if it were lawful to conjecture your attention. At first I set that in the original charter the word them down for Celtic and hope- sorryn of the Kegister may have less ; but, upon consulting the been written with a final dash, record itself, I do not find the indicating some indefinite termi- matter quite so desperate. We nation, it would not be violent to have not the original charter. suggest that libera de sorryn= The first of the two words is libera de sorrynin. — stood for plainly enough written in the con- free from sorning. The barony is temporary Eegister, and printed to be free from that which we unexceptionably from that source. know to have been the oppression CHAETEE OF TEEEEGLES. 71 head of a robber, and if they, the King's officers, can pass beyond the barony before sun-setting, they shall have nothing for their expenses, and if they cannot pass beyond the barony before sun-setting, they shall have hospitality for that night — hospicium ad hospitandum ; or otherwise the men of the barony shall receive the robber or the robber's head from the said officers, to keep for that night and deliver again to the officers at sunrise, the said officers lodging where they please. Also that no officer of ours — sergiandus noster — nor coroner, ought to; do his office within the barony unless he first come to the cht/mis (the chief dwelling-place) of the lord of the barony, and there present his at- tachments — attachiamenta sua — that is, his warrants, to the constable or bailie of the barony against cer- tain persons ; and if the bailie acknowledge that they are men of his lord and dwelling within the barony, the bailie shall be security for entering them before the justiciar. And if the bailie does not ac- knowledge them to be men of his lord, the crowner or crowner's serjeant shall do his office before wit- nesses of his barony. And if the crowner or of many parts of Scotland, the end-less, etc. So that the sense is masterful quartering of brigands, very near what the old diction- known technically as sorning. aries make it— a pace regia ex- The word printed /acAaZo« is in clusus — an outlaw ; and the inten- theEegister morelike/ri'^AoZos, a tion of the charter is seen to be good Saxon word made up of ^riW, that the land shall be free of protection and los the termination sorners and outlaws, now written less, e.g., god-less. 72 CHAKTEE OF TEEEEGLES. crowner's serjeant shall find one hiding, the lord of the harony shall have his goods, and not we. And if the crowner shall find any one within the barony, and if the bailie of the barony wish to repledge him, our crowner or his officer shall carry that person with his goods to our prison. Also, that the men of that barony are not bound to answer for the support — ad victualia — of the guardian of the country,* or the justiciar or sherifi; But the men of the barony shall be answerable for service in our army. Also that no crowner nor other officer shall make search — ranGiare"^ — within the barony, unless he first find a pledge that that house is culpable — quod ista domus sit culpabilis. And if any one follows his goods with a blood-hound — cum odorinseco — he shall not search without licence of the officer of the. barony. Also that the men of the barony shall not be bound to answer any demand of carriage — carriagio — except our own (i.e. His Majesty's), and that only in our passing through the barony to its boundaries. And that there be paid for each horse for four leagues one penny ; — and then the charter goes on with the usual jurisdictions. ^ Gustos patriae— a, title, 1 in the Shetland Islands— JSancfZ think, of a district ihagistrate, or ransel — to search through a not of the Warden or Guardian parish for stolen goods, also to of Scotland. inquire into every kind of mis- 2 I have not found this word demeanour.— Edmonston's Glos- elsewhere in charters, but it is sary in Jamieson's Scottish Die- perhaps the word we find in use tionary. SALE OF AN EABLDOM. 73 Does not the whole charter raise to your mind a savage state of society ! Every man jealous of his neighbour — no road or path allowed that way if possible — even the officers of law, who have caught their robber, or who are carrying his bloody head in sign of their employment, must not remain there all night, or must be specially watched. The charter receives much light from the legislation of the reign of David ii. I will mention two other charters, standing together in the Roll of Eobert ii., which are of more than usual interest and curiosity. The first was brought prominently forward by Lord Hailes in his Sutherland Case, and formed, indeed, the most important foundation of his pleading. Thomas Flemyng, Earl of Wigton, had reason to be dissatisfied with his possessions in that earldom. The native population were at feud with him, and their native Chiefs led him an uneasy life. It is plain that the world was against him and funds had failed. In these circumstances he was induced, in his great and urgent necessity, to sell his whole earldom for a certain notable sum of money to Sir Archibald of Douglas, knight. Lord of Galloway " be east the Crie." The charter of sale calls the seller Earl of Wigton, but the King's charter, which confirms it, calls him Thomas Fleming formerly Earl of Wigton. As Lord Hailes says, he resumed the " ancient ap- 74 GKANT OF CHIEFSHIP. pellation of the family, and styled himself Thomas Flemyng of Fulwood, dudum comes de Wigton." He grants a charter to the purchaser with the most complete array of parts, pendicles, and jurisdic- tions, of his ancient earldom, and that charter is confirmed by the King.^ It seems certain that by the sale of the earldom lands he had, according to the law of that time, parted with the dignity also. The next charter makes us acquainted with an oflBce scarcely to be found in the law books. In 1372, Robert ii. confirms a charter granted by King Alexander, which again ratified a grant made by Niel Earl of Carrick to Roland of Carrick and his heirs, namely, that the said Roland and his heirs shall be the head of all his race — caput totius progeniei — in all things pertaining to chiefship — Kenkynoll — with the office of baillie of the earl- dom, and the right of leading the men of the earldom on all occasions under the EarP I think I have nearly completed my task as to charter language, but perhaps you will allow me, before leaving this subject, to run over the great officers of State, who appear so frequently in the testing clauses of charters. The Seneschal — seneschdlus, dapifer — Steward — ^ Eegist. Magni Sigilli, p. 114, firmacio Johannis Kennedy.— No. 5. Eegistrum Magni Sigilli, pp. 114, 2 This and another charter on 115, Nos. 5, 6. the same subject are titled Con- OFFICERS OF STATE. Y5 was perhaps the greatest of the officers of the Crown from the days of David i. to the time when the name of Steward was lost in royalty. There is no longer any doubt that the Stewards were originally Fitz- alans. When they first appear among us their family had not yet adopted coat-armour, and when they complied with the fashion they took a bearing suggestive of their office — the fess-checquy, in allu- sion to the chequered table-cloth used for computing the public accounts and all accounts before the intro- duction of Arabic numerals. The Constable — constabularius, — in theory, com- manded the King's army in the "field, and under his cognisance came all ofifences committed within the precincts of the King's Court. Marischal — marescallus — like the Constable dwindled into an office of state and solemnity, though at an early time it must have been an office of importance in the Koyal array. The Justiciar — justiciarius — was the head of the law, the Chief- Justice, in early times not con- fined to criminal matters. From a very early period our kings had two Justiciars, one for Scotland proper — benorth Forth, the other for Lothian. I believe, in theory, they went circuits twice in the year — once on the grass and once on the corn — but it was rare for Scotland to have long enough peace for two yearly circuits. 76 OFFICERS OF STATE. The Chancellor — cancellarius — was usually, but I think not necessarily, Keeper of the Great Seal, and no doubt also, like the Lord Chancellor of England, keeper of his Majesty's conscience — his adviser in all legal matters, his assessor in courts of justice, while the King still held them in person. You will find the Chancellor generally a Churchman, but that was only because the Churchmen had almost a monopoly of legal learning. There are many exceptions, and laymen of the two great families of Gordon and Campbell frequently held the office. The Chamberlain — camerarius — had his name from the royal camera, not the bed-chamber but the treasure-chamber of the King. I think the Cham- berlain was the Treasurer before any other officer appears with that name. The Chamberlain had a peculiar function, as a sort of moderator and mixed judge, presiding in the Court of the Four Burghs. The Treasurer — tJiesaurarius — was introduced by James i., and thenceforward the sheriffs and other officers accounting to the Crown rendered their accounts to him, the Chamberlain remaining to superintend only the burghs.^ The Comptroller — computorum rotulator — was the chief accountant of the domestic expenses of royalty. 1 Of the last three dignitaries, Crawford's very useful book on you will find a pretty full list in the Officers of State. OFFICERS OF STATE. 77 Lord Privy Seal — secreti si^illi custos — intro- duced by James i. Lord President of the Council ; an oiBce of late introduction, when the King was desirous of multi- plying his Officers of State. The Secretary ; an office under diflPerent names — clericus regis — secretarius — clericus noster — often appearing as assistant to the Chancellor ; two officers styled clerici sometimes sign Crown-charters next to him. The Lord Clerk Register — clericus rotulorum et registri — by right of office Clerk of the Supreme Court of Parliament, of the King's Council, and of all royal Courts of Judicature. The King's Advocate — was not so important an officer while Scotland was an independent kingdom. But he was the public prosecutor and adviser and counsel in all Crown cases. The Justice-Clerk — clericus justiciarie — having been at first perhaps an assessor to the High Court, has been beyond time of record the second Judge^ of Justiciary. Master of Household — magister hospitii — one of the offices introduced by James i. The Door-ward or Usher — ostiarius — the Keeper of the palace door ; a very honourable office, giving name to a family of ancient nobility and great power which has left only a tradition of its old 78 MADE, — MAORMOE. grandeur, mixed with some circumstances of super- stition that seized the fancy of Scott and led him, as his manner was, to bring back the old historical name of Durward for one of his most charming romances. The Almoner — elemosinarius — the King's Al- moner. I wish now to add a few words touching offices which we find in Celtic Scotland. Maor is a native Celtic word for an officer, equivalent to our sheriff's officer. We had numer- ous mairdoms or subdivisions of sheriffdoms, and several mairs of fee, that is, hereditary mairs. The sheriffdom of Angus had four bailliaries, — the quar- ters of Dundee, Kirriemuir, Brechin, Arbroath — each having a maor to execute the sheriff's mandates.^ My friend Mr. Skene has handed me an instruc- tive example of maorship from the Craignish papers. It is a precept of Clare Constat by Colin Campbell, * ^ Hereditary maors of Moray and westshire of the same, lying are traced for two centuries. The on both sides ofthe water of Find- Dunbars, who were great lords horn — from every parish a stook in Moray, held as part of of bear, a stook of oats, with the their property the office of mair- cottars' reek hens of every plough ship of the earldom and west- yearly, together with the acre of shire of the same ; along with the land, houses and biggings within whole mair corns, reek hens the town of Damaway, belong- and other casualties and fees of ing to the office of mairship. — the lands of Tarress, Balnaferrie, Eetours, Elgin and Forres, No. and other lands of the earldom 22. MAORMOE — TOSCHACH. 79 son natural to Archibald Earl of Argyll, dominus de GraigniscJie, for infefting the grantee in the lands of Corworanbeg, and also de officio Sergiandriae sen maiori, tenandrie seu halliatus de Craignish — of the oflBce of serjeantry or maorship of the tenandry or bailliary of Craignish — in favour of Donald M'lUechallum vich Donill vich illechallum, dated 18th June 1592. Maormor — the great maor — is an ancient title among the Celts, found in misty and hardly his- torical Irish annals, but now made Scotch history by the Book of Deir. The maormors were the greatest officers of great districts, and it is to them, and not to the Thanes, that Shakespeare, in Mac- beth, should have made young Malcolm address his speech — " Henceforth be Earls !" The Maormors of Moray, Buchan, Mearns, and Angus, were exactly Comites or Counts ; and, when the great change took place about the time of Canmore, they became Earls, and some of their descendants are so still. Another officer well known within the High- land border was the Toschach. The name is some- times written Toscheochdorach, which seems to me, io-norant as I am of Gaelic, to apply to the office rather than to the man. The Gaelic toschach is equivalent to our Scotch thane, and remember that the thane of Scotland is very different from the 80 THANE. English one. With us the thane was the admini- strator or steward of lands, generally the property of the Crown, but not always so, and in all the cases of which we have evidence, the thane sooner or later became hereditary, and also came to pay a fixed instead of a fluctuating rent. The following is a curious bit of early Scotch — half Gaelic — conveyancing, and I hope I may count upon your patience when I describe to you the tenures of two thanedoms. Many years ago I found in the Athol char- ter-chest a set of titles that much interested me. Robert Stewart of Scotland and Lord of Athol, afterwards Eobert ii., by an undated charter, but necessarily before 1371, granted to Ewen Thane of Glentilt — Eugenio Thano de Ghntilt — brother of Ronald of the Isles, the whole thanedom of Glentilt, being three davochs of land, he giving faithful service and paying for the thanedom yearly eleven marks of money. In the middle of the next century, I find a service, in the Court of the Justiciary of the Earl of Athol, of Andrew de Glentilt, as heir to his father, Johannes le Thane de Glentilt. Finlay— i^wztew* — the Thane of Glentilt, son and heir of Andrew, whom I have just mentioned, sold the lands to Stewart of Fothergill. In making up the titles afterwards (about 1502), John Stewart holds the same lands, by resigna- TOSCHACH. 81 tion of Finlay, deceased, who is now called Finlay Toschach, Thane of Glentilt ; and the descendants of Finlay having, like him, turned their Saxon title of Thane into a Gaelic family designation of Toschach, founded a family called Toschach of Monivaird, still remembered, though I think now extinct, in Athol. Or, take another very instructive progress of the titles of a thanedom which I found in a charter-room of a family whom I called Cameron, but who, I found, were known by the natives as MacMartin or Mac- Soirle of Letterfinlay in Lochaber. In 1456, John of Yla, Earl of Ross and Lord of the Isles, grants to his armour-bearer — armigero nostro — Somerled, the son of John, the son of Somerled, a davoch of the lands of Glenny ves, along with the office which is commonly called Toscheachdeora, of all the granter's lands of Lochaber, except the lands pertaining to his foster-child — alumno nostro, Lachlan MacLean of Doward ; to be held with all pertinents and produce — cum omnibus pertinenciis et fertilitatibus — for the lifetime of the grantee, and to his eldest son for five years afterwards — for homage and service, and without mention of other reddendo. Then pass a hundred years, and you have this same family of MacSoirle dealing with another superior. In 1552 I find an agreement in Scots between George Earl of Huntly, Chancellor of F 82 TOSCHACH. Scotland, and Donald MacAlister MacSoirle of Glennyves : MacSoirle is to resign his lands in the Queen's hands in favour of the Chancellor, who is to grant them again to him in feu-ferm for a reddendo of apparently ten merks. There is the usual bond of maintenance on the one hand and service on the other, and Huntly grants a feu- charter, in Latin, as befits the Lord Chancellor, to MacSoirle, by name, dilecto nostra Donaldo Mac- Alister Mc Tosche, and his heirs. You observe the descendants of. the Thane had acquired the name of MacTosche, in popular language, in addition to their other clannish designation of MacSoirle — son of Somerled. I gather from this that the Thane of Lochaber, like the Thane of Glentilt, took a sur- name Mac-tosche from his family office of Thane, and that that surname was in the speech of the country derived from Toschach, which as I have already said is the Gaelic equivalent for Thane. It may be an accidental similarity of reddendo, but it seems to me worth observing, that the thane- dom of Cawdor, when it became hereditary by gift of Eobert Bruce, was to be held as it had been formerly held in the time of King Alexander, but paying a reddendo in earner am regis of twelve marks. The thanedom of Glentilt, when it was feudalized, paid to the Steward, Earl of Athol, eleven marks sterling ; and the Thanedom of Lochaber, when THANEDOMS. 83 Chancellor Gordon turns it into a feudal holding, pays ten marks.^ When speaking of this office of Toschach, it will occur to you that the great Highland name of Macintosh means simply the descendants of the Toschach, and may perhaps be Englished sons of the Thane, even by one like myself, who would not willingly touch the " cat without a glove." It is plain, from the progress of charters I have read to you, that the thanes of Glentilt bearing the name of Toschach, were of the blood of the Lords of the Isles. From the second progress it is also plain that the little sept who once held the thanedom of Lochaber, and were known as the clan Soirle of Glennyvis, and took the name of MacTosche, were also descended of the same great parentage. I think neither of these had any connexion with the Macintosh of Clan Chattan. Mr. Thomson makes the word Thane equi- valent to Seneschal ; and that word or its transla- tion Steward, truly represents the duties and station 1 The following list of Thanages Dounie (Forfar). Kincardine. lay serve to show the districts Durris. Kinclevin. ithin which this office was in use: Edevy. Kinross. Aberlemno. Callendar. Fettircarne. Kintore. Aberluthnot. Cawdor. Formartin. Monyfeith. Abirkerdor. Conveth. Glamis. Morphie. Alyth. Oowie. Glendouachy. Newdosk. Arbuthnot. Crannyk. Glenlivet. Scone. Belhelvie. Dingwall. Glentilt. Tannadice. Boyn. Doune (Banflf). Inverkeilidor. 84 BAILIE — CROWNER. of a thane within his thanedom. Sir Henry Spel- man, with such learning as was open to him, ex- pressed his opinion that the Celtic Tosche is equivalent to Thane, and we shall not be far wrong to conclude that Thane in Scotland and Tosche in the Highlands meant a steward or administrator of lands, generally hereditary, and generally held of the Crown. Ballia is the jurisdiction or territory of a ballivus, but as the King addresses all his administrative oflScers as his bailies, ballia comes to mean any royal jurisdiction. It is written ballivatus in more modern charters. Coronator — coroner or crowner. The name was derived, I think, from this officer having cognizance in the pleas of the Crown — placita coronae. At one time the functions of the crowner were very high, both in England and Scotland, and seem to have been co-extensive with the sheriflFdom. I do not know at what period the coroner's duty in England was restricted to what it is at present. The office went early out of use in Scotland. Last of all, let me speak of Gonstabularia. The Constable or Keeper of the King's Castle had a small territory adjoining the castle, which is often still known as the constabulary in our provincial towns. But for the special reasons that gave the name of constabularia to the shires of Haddington CONSTABULARY. 85 and Linlithgow, being subdivisions of the great sheriflPdom of Edinburgh, I think Mr, Marwick must look into the more ancient charters of our city ; for I have never seen any that explains it.^ Charters naturally lead to investiture, which was often given by peculiar and appropriate symbols. I will conclude this lecture with a few of the more ancient or remarkable of these. The most ancient notice of symbols in our preserved charters, is when King Edgar, the elder brother of King David i., granted to St. Cuthbert and the Church of Durham, for the souls of his father and mother, brother and sisters, the whole land of Swintun, as Liulf held it, with twenty-four cattle, for reclaiming the land ; this gift he offered on the altar of Coldingham — '^ Here are a few of the oflBoes — of keeper of the castle of Ding- which you will find frequently wall — of the hereditary office of mentioned in charters :— A grant constable of the castles and of the hereditary office of keeper palaces of Skibo, Scrabster, and of the castle of Lochdoun — of Dornoch — of the office of constable keeper of the woods and groves and justicer of Brechin — of keeper — nemorum — of Cockburnspath and constable of Beauly — of con- — of keeper of the wraik and wair stable of the castle of Nairn of Coldingham— of keeper of the — of the burgh of Renfrew — castle of Lochmaben — of keeper of Aberdeen — of Haddington — of oftheHermitageof St. Lawrence, the constable of Skibo-mains Dumfriesshire — of hereditary in Caithness— of coroner and for- keeper rohorarii lie Park of ester of the Garioch — ofsergeanty Holyrood-house— of keeper of and crownership of Argyll— of the palace of Falkland— of the coroner of the earldom of Carrie palace of Linlithgow — of the — of coroner of the bailiary of castle of Doune— of keeper and Kyle Stewart — of coroner and captain of the castle of Stirling sheriff of Banff— of coroner and 86 INVESTITURES. idem ecclesie super altare optuli in dotem et donavi. In that case I suppose the symbol of the gift was the charter itself. But there is nothing either in this charter or in the confirmation by his brother, Earl David, though he alludes to the offering on the altar of Coldingham, to fix in what manner the investi- ture was actually given.^ In the reign of Alex- ander II., Robert de Vere, Earl of Oxford, granted to the monks of Melrose four acres of arable land in Old Roxburgh, upon Tweedflat, and the inves- titure was given by offering a wand on the high altar of Melrose — per unam virgam super magnum altare. Of the same reign I have seen copies of a charter, of which I should be glad to see the steward of Annandale — of coroner bearing the Eoyal Banner in the of the regality of St. Andrews — army of Scotland. — National mss., of coroner of the sheriflfdom of Part I. p. xiv. James Viscount Fife — of coroner between the of Dudhope, Lord Scrymgeour, as waters of Dee and Mth — of heir of the ancient Scrymgeours, steward, coroner, and forester of was infeft in 1643 in the lands Strathem,Balquhidder, and Glen- round Dundee, and the office of artney — of coroner and mair-of- constabulary and banner-bearer fee of Eenfrew — lastly of the of the King. — Retours, Porfar, Royal standard-bearer — officium 280. The office which the Scrym- vexillum lie Banner supremi geours held since the time of domini nostri Regis gerendi — an Wallace passed in the next reign ancient and honourable distinc- into the family of Lauderdale, tion. One of the few writs of on the death of John Earl of Wallace, as Guardian, preserved, Dundee without heir-male of his is a grant to Alexander called body. Skirmischur, of lands round ^ National Mss., Part L Nos. Dundee, with the constabulary 4, 12. of the castle, for services done in INVESTITURES. 87 original.^ The charter bears to have been granted in 1227, and it confirms to Alan de Leni the lands of Leni, within the shire of Perth, by resignation in the King's hands, of Margaret de Leni, daughter of Gilbert de Leni, as freely as she held them, by the symbol of a little sword — virtute gladii parvi — which King Culen of old gave to Gillespie More, her predecessor, for his singular service. The lands are said to have come by descent to one of the name of Buchanan, and lastly to Buchanan of Arnprior. The descent of the lands may be correctly given, as also a drawing of the little sword, the symbol of inves- titure, which I have seen, in connexion with one of the copies of the charter ; but our critical age will not receive a charter of Alexander ii. as proof of a feudal investiture by King Culen. We have many instances where the patriotic forger has escaped some of the readiest modes of detection by ascribing the deed which was to dignify his family or burgh to some traditional king of high antiquity, the falsity of whose charter it may not be so easy to expose.^ In some of those instances of the per- petuating of an old fable, it is not necessary to doubt ^ The copy I have used here is Deputy-Keeper of the Kecords from a book of careful transcripts of Scotland, of charters by the late Mr. William ^ We have examples of this in Eobertson, one of the Deputy- early charters of Tain, Montrose, Keepers of the Kecords, now in Perth, the bishopric of Aber- the possession of his grandson, deen, and the Abbey of Dun- George Brown Eobertson, Esq., fermline. 88 INVESTITURES. the genuineness of the existing charter, nor even to question the bona fides of the King or Chancellor who asserts as genuine the old myth. We feel an interest in the famous Emerald charter of Douglas, for the sake both of the giver and receiver. King Robert Bruce gave to his friend, the good Sir James of Douglas, all his lands in free regality, and invested him with a ring, con- taining a stone which is called " emeraude," put by the King's own hand on Douglas's finger, which was to be the manner of taking of seisin for his successors.^ Such symbols of investiture are not unknown in other families. The tradition of the Burnetts asserts an old ivory horn at Crathes to be of this description ; and Mr. Joseph Eobertson fancied it might be held as the symbol for the keep- ing of the forest of the Garioch. In quite another class of royal grants, those regarding ofiices of jurisdiction, there was a sym- bolical delivery somewhat akin to the manner of investiture of churchmen in ecclesiastical offices. Down so late as 1st July 1541, Henry Lord Methven, in the Sheriff-Court of Linlithgow, takes seisin of the office of Sheriff, by receiving the rod of office of the said sheriffdom in token of the 1 The original charter is not John Hamilton of Magdalens, extant, but a transumpt of a Lord - Clerk Eegister, is pre- precept for making the Great served in Lord Home's charter- Seal Charter, attested by Sir chest. INVESTITURES. 89 judicial office, as use is ; and then the noble lord was inducted into actual, corporal, and real posses- sion, by shutting him up in the court-house of the said sheriflfdom in sign of his possession.^ I am indebted to Mr, George B. Robertson, Deputy-Keeper of the Records, for calling my attention to two series of investitures of churchmen, before and after the Reformation, which are in his custody. In the first, of date 8th April 1557, William, Bishop of Aberdeen, collates Master Robert Carnegie, on the presentation of the Queen, to the chanonry and prebend of the church and rectory of Aberdour, vacant by the resignation of a venerable man Master David Carnegie, by placing his episcopal ring on his finger ; and he grants precept to the Dean and Chapter for in- ducting him in the real, actual, and corporal pos- session of the said chanonry and prebend of Aber- dour, by assigning him a stall in the choir and a place in the chapter. The execution of the precept is attested by a docquet in the usual form, under the hand of Alexander Lindsay, notary-public. The next investiture shows us a presentation by James vi., 10th September 1588, addressed to John Erskine of Dun, Superintendent or Commissioner of Angus and Mearns, where the King being in- formed of the qualification, literature, and good 1 Sheriff-Court Books of Linlithgow, 90 INVESTITURES. conversation of Master James Rait, and of his earnest affection to travel in the office of the ministry within the Kirk of God, presents him to the par- sonage and vicarage of Kinnettles, vacant by the decease of Master Andrew Davidson, or by demis- sion of Master James Davidson, and requires the Superintendent to try and examinate the qualifi- cation and literature of the presentee, and if he be found meet, to admit him to the living, receiving the confession of his faith and his oath of fidelity to the King. The collation runs in the name of John by the mercy of God Superintendent of Angus and the Mearns, who directs Master Alexander Kynin- month, or any other minister within his jurisdic- tion — in respect that he, the Superintendent, has tried and examined the presentee, and found him of sufficient qualifications and literature for using of the office of "ane minister" — to give full institution, actual, real, and corporal possession, by delivering the " buik of God in his hands." Hitherto the writs are in the vernacular, but the institution is set forth in a formal Latin instrument, subscribed by a notary- public, declaring how Master Alexander Kynin- month went to the Church of Kinnettles, and there at its pulpit — apud suggestum ejusdem — ^gave state, seisin, institution, and possession of the said church, manse, glebe, houses, fruits, profits, and teinds to Master James Rait, minister, by tradition of the book INVESTITURES. 91 of God's Word, and of earth and stone respectively, as use is — per traditionem verbi dei libri ac terre et lapidis. It is well known that the symbols of investi- ture generally bore some reference to the subject. Seisin was taken of the mill by delivery of clap and hopper, of a house by the key, of fishings by net and coble, of patronage by a psalter and the keys of the church, of jurisdiction by the book of court. In the older burgh usages, burghal subjects were trans- ferred by the bailie taking a penny for in-toll and a penny for ut-toll} Here is the law as it ran in the days of the good King David i. : " Quicunque vendiderit terram suam vel partem terre sue ipse qui vendit erit infra domum et exibit et alius qui emptor est stabit foris et intrabit ; et unus dabit preposito unum de- narium pro exitu terre et alius dabit denarium pro introitu suo et sasina." ^ You will find in some of the remaining relics of the now abolished seisins, the bailie, to give precision to the transaction, describes the ox which he took as his fee — a red ox with a white face, or otherwise, as it might be — a kind of symbol which is not yet forgotten or despised when our modern Sheriff, as bailie of her Majesty, takes the "seisin ox" for investing some earl in his here- ditary domain. 1 Kegistrum Episcopatus Glas- of the Burghs of Scotland, p. 25, guensis, No. 237. No. 52. 2 Ancient Laws and Customs LECTURE III. PARLIAMENT OF SCOTLAND. At the period when we have for the first time assistance from history, we find Scotland made up of several distinct nations recently gathered and to some extent united under one sovereign. Scots, Picts, Cumbrians, Strathclyde men, with, I think, a fringe along the eastern sea-board of the same Teu- tonic settlers who had taken a deeper hold of the fertile plains of England. For my present purpose I do not wish to go farther back than the era of the Norman Conquest of England, and the very point of time when the Norman William won the sovereignty of all Eng- land in a single battle.^ Observe how Scotland was governed. Our kings were the acknowledged rulers of these several territories. Scotland Proper was the country from Forth to Spey, and from the West to the Eastern Sea. Lothian, a section of Saxon North- 1 Battle of Hastings, 14th October 1066. THE PEOPLE AND THEIR SOVEREIGN. 93 umberland (the most powerful and most literate of the Saxon kingdoms of England) had been but recently subjected to the Kings of the Scots. Cum- bria and Galloway in like manner brought their British and Pictish peoples in an uncertain and un- easy subjection. The Scots, properly so called, settled at first on the western shore, the Picts, mostly on the eastern, but had united under monarchs who thus came at the time we are examining to rule all the country we still call Scotland : for it is not necessary for our present purpose to distinguish the temporary settlement of the Norsemen, whose great northern Earldom of Caithness, somewhat later, came under the Scotch kings ; nor Moray, which was either in a chronic state of rebellion, or subject quite as much to the Sigurds and Thorfins of the North, as to the Kings of Scotland, The sovereign of these united or confederate nations, ruling the inhabitants of all that we call Scotland, with some part of English Cumbria, at the era of the Norman Conquest, was Malcolm Canmore, who married at Dunfermline about 1070, a lady of the highest Atheling blood, the Scotch Saint Margaret. Malcolm Canmore, as we might conclude from his name, was a Celt. We know he was son of the " gentle Duncan" — Shakespeare's Duncan — of the old race of the Gaelic monarchs. We know, too, 94 MALCOLM CANMORE. that he understood and spoke Gaelic ; but beyond that excellent accomplishment, he was, like many Highlanders, only half a Celt. His mother was a sister of Siward, Earl of Northumberland, of high Saxon blood, and he owed his crown to the help his Northumbrian cousins gave him against Macbeth. The first point of historical difference affecting our constitution, as compared with that of England, seems to be that the Royal race with us was not changed in all the revolutions which the country underwent. We had no race of Saxons, Woden- descended heroes, trampling out the last embers of the primeval British line ; no Cnuts and Harolds of Danish blood to supplant the Saxons ; no Nor- man lords, at least none coming by right of conquest, and filling the throne of Saxon princes. But, though our reigning family continued unchanged, the upper class of our population was in a state of transition as early as we can pretend to examine it. It was no doubt owing in part to the influence of his noble and pious Saxon wife that the Court of Malcolm Canmore became the refuge of crowds of English exiles, driven from their homes by the oppressive rule of the Normans and the frequent rebellions under the Conqueror and Rufus. In all the revolu- tions of those reigns — again in the disturbed reign of Stephen, and down even under the early Planta- genet Kings, continuous streams of English found it- SOUTHERN IMMIGRATION. 95 convenient to take the protection of the Scotch King. At one time they were Normans disgusted with the government ; at another, Saxons escaping from the insolence of their new masters. Of what- ever race, they were all welcomed according to their desert. Our kings were never left long in repose. When they had no English wars on their hands, a rising of the Galwegians, or a rebellion of the Moray men in favour of some pretender to the throne, a more daring movement of some Norse Jarl, or an attempt at combination among the Highland clans, found them constant occupation in war, and pre- pared them to be grateful for such assistance as the Norman knight and the Saxon franklin, both good men at arms, were ready to give for the common recompense of a grant of lands out of the territory of the rebels, with perhaps a fortallce which they were bound to hold for the king against future in- surrections. Now, with the Saxon queen and these Saxon and Norman lords came southern laws and manners, not violently as by right of conquest, but received as the most approved, most civil policy, coming where there was not much to displace of definite law and customs endeared by long use. The Celtic part of our population had indeed only in part gone through that greatest of revolutions where the bond of 96 GREAT OFFICERS. kinship gives way to local adherence and attach- ment to the soil. But in all southern Scotland, perhaps I may say all south of Spey, even before the period which we are are now considering, we find hardly any traces remaining of a peculiar Scotch or Celtic law distinguishable from the customs of our Teutonic, our Saxon forefathers — the most popular, the freest of constitutions — modified, I will not say spoiled, by the gradual superinduction of the feudal tenures and customs that already prevailed on the Continent and in England. But of whatever stock, Pictish, Scotch, Norman, or Saxon, the great lords of Scotland, the oflScers who surrounded the throne of the successors of Malcolm Canmore, judicial and administrative, did not difiler in name or function from those of Eng- land and other feudal kingdoms. The Chancellor, Chamberlain, Steward, Constable, the Justiciar, all the great oflBcers of the State and of the law, of the French or of the English Court, were repeated with us. In some of the more remote districts indeed, and especially in the more Celtic districts, some of the great lords, and many of the inferior executors of the law, had Celtic titles, showing the remnants of Gaelic customs and speech, but showing also by their infrequency how rapidly that element was disappearing. In Malcolm Canmore's time the great districts of CELTIC INSTITUTIONS. 97 Moray, Buchan, Mar, Mearns, and perhaps Angus, were each ruled by an officer, probably hereditary, called " Maormar ;" but these were soon superseded by the Earls — Comites — Counts, with their ministers and functionaries. One officer in those districts. Latinized Judex, translated into Scotch doomster — Demster — may originally have discharged higher functions than the antiquary associates with the Scotch name of Dempster. Some of the inferior executors of the law had Celtic names long pre- served, as Maor and Toschach. The Scotch Thane was known as the administrator of the King's rents, and his descendants preserved the name when it had become only a title of honour, when the land was their own, and the King drew only a fixed reddendo. Next arises the question, Was there in old Scotland anything equivalent to the County Court, or the Court of the Hundred or Tithing, those founda- tions of the English Constitution, those local gather- ings where neighbours took counsel about local afi'airs or settled dififerences ? I cannot tell. I think there are indications of such assemblies. But it is too much the fashion to draw a marked line of distinction between the Celtic and Teutonic peoples and their customs. Until I see evidence to the con- trary, I will believe that the Celtic institutions — always except their longer attachment to a patri- archal form of society — resembled those of the other G 98 OKIGINES northern nations, though they have left no code or chronicle, nothing but the circle of grey stones on the heath to record their national customs, their manner and form of proceeding.^ We know something of the County Court of England, descendant of the old mcdlus of Germany. We know how the earl and the bishop presided there together, and we can trace much of the most valued institutions of England — trial by jury amongst them — to that source. But in Scotland we cannot get so far back, at least not so accurately. The shape of the earliest Courts with us, of which we have any record, was the Court of the feudal lord, the head court of the barony, drawing its origin and rules from quite a different source. There is no time when we can say that our kings acted or pretended to act by their own authority absolutely. We cannot point to a time in which they did not set forth in all great matters that they acted by the advice and consent of their people assembled for the purpose of giving that advice and consent. Let me now give you some dates and references ^ It would be curious if it should for legislation, for judgment-giv- turn out that these monuments, ing, as well as for burial, for which cur antiquaries of last cen- religious rites and ceremonies and tury named Druids' circles, were solemn contracts— in short, filling places where the old Celtic people the idea and original purpose of met for deliberation and for ad- a church. ministering their common affairs, PAELIAMENTARIiE. 99 to transactions which will serve to mark the progres- sive changes of the National Assembly while still only forming itself into the shape and not yet bear- ing the name of Parliament. Alexander the First^ held an Assembly in 1107, where Turgot was chosen Bishop of St. Andrews by the " King, the clergy, and the people."^ The same King re-founded the Abbey of Scone in 1114 — proborum virorum consilio — the queen, Alexander, nepos regis, two bishops, six earls and others, witness- ing and expressing their consent,^ The next reign, that of David i.,* gives little change to the com- position of the National Assembly. A charter to the Abbey of Dunfermline, between 1124 and 1127, is granted by " our royal authority and power, with the assent of my son Henry and Matilda my wife, and with the confirmation and witnessing of the bishops, earls, and barons of my kingdom," conclud- ing with the general assent — clero etiam acquiescente et populo? And that style is little changed in the numerous charters of this reign. Malcolm iv.® did not materially change that style, A National Council at Perth in 1160, held on the occasion of a conspiracy against the King, records the presence of prelati et proceres regni majores, which 1 A.D. 1106-1124. ^ A.D. 1124-1153. ^ Chron. Mailros. ^ Acts of Parliament, vol. L * Liber de Scon. " a.d. 1153-1165. 100 ORIGINES I read, the chiefs of the clergy and the lay nobles.' He granted several charters, but there is, as I have said, no essential difference in style from those of his grandfather. William the Lion^ also uses nearly the style of his grandfather. But now we begin to have the National Assembly called curia regis, one of which was held at Perth in 1166, in presence of the King, his bishops, and his good subjects — episcoporum et p^oborum hominum suorum.^ An Assembly was held at Stirling in 1180, in which laws were enacted by the King with the " common consent of the prelates, earls, barons, and free ten- ants."* In 1188 the King of Scots, with nearly all the bishops and earls and barons of his country, and with an infinite number of his men — cum in- finita hominum suoriim multitudine — held an Assembly, in which the demand made by the King of England for the tithes of Scotland for the Crusades was re- fused.* In 1190, in an Assembly at Edinburgh, the prelates and nobles of Scotland assessed a tax of 10,000 merks in payment of the King's ransom.^ But I must return to this instance of early taxation. Hitherto I pass over the mention of " Councils" and "Great Councils" — concilium and magnum con- ' Fordun. * Acts of Parliament, vol. i. 2 A.D. 1165-1214. ^ Benedictus Abbas. 2 Acts of Parliament, vol. i. ^ Fordun. PARLTAMENTARI^. 101 cilium, — and also meetings of the Magnates of the land — magnatum, optimatum, procerum, magnatum de concilio — and such phrases, which give us little de- finite information of the constituent members of the assembly.^ Fordun tells us that Alexander ii. was crowned at Scone on the 5th December 1214 (8 Idus Decern- hris, says the Chronicle of Mailros) in the presence of the Earls of Strathern, AthoU, Angus, Menteith and Buchan, together with William Bishop of St. Andrews and others of the Three Estates in great number. The same chronicle says the King held a Parliament in 1215 at Edinburgh, but we must doubt if it went by that name. The word Parliament is first used in England in formal style in 1272, although Matthew Paris speaks of the " Parliamen- tum Runnymede " in 1215. The style of the King's Court, the full Court of the King — curia domini Regis, plena curia regis, colloquium regis, and plenum colloquium — runs through this reign and that of Alex- ander III., who was crowned at Scone in 1249 — coram multitudine presulum prelatorum comitum baronum et militum.^ The Letter of the Community of Scot- land, written to the King of England, counselling the marriage between his son and Margaret, the ^ In 1211 a Great Council was Fordun, but we may reasonably held at Stirling, where the barons doubt whether the votes were voted 10,000 merks, and the taken in the same Assembly, burghs 6000 merks, according to ^ Fordun. 102 OKIGINES Maiden of Norway, runs in the name of the guar- dians, bishops, earls, abbots, priors, and barons of Scotland.^ The Parliament of Brigham was perhaps the first national assembly called by that name. It was held on the l7th of March 1289, on occasion of discussing the marriage of Queen Margaret.^ John Balliol held a Parliament at Scone in 1292, and another at Stirling in 1293;* but the other as- semblies of his counsellors and people were not so styled. In an Assembly at Dunfermline in 1295, the Scotch part of the treaty between John Balliol and Philip, King of France, was ratified by the pre- lates, earls, barons, and other nobles of Scotland, and also " per universitates ac communitates vil- larum regni Scotie." The deed is sealed on the Scotch part by four bishops, four abbots, four earls, eleven barons, and six burghs, viz., Aberdeen, Perth, Striuelin, Edinburgh, Roxburgh, Berwick.* William Wallace, Knight, Guardian of Scotland and leader of its army, grants his charter to the Constable of Dundee in 1298, in name of the King and by consent of the nobles of the realm.^ A letter of the same date to Eric, King of Norway, runs in the name of the guardians and all the community of the realm of Scotland. '■ Supplement to the Acts of ^ Acts of Parliament, vol. i. tlie Parliaments of Scotland. * Ibid. ^ Acts of Parliament, voL i. "> National mss., Part I. PAELIAMENTARl^. 103 The Letter from Torwood to Edward King of England, dated 13th Nov. 1299, runs in the names of William Bishop of St. Andrews, Robert de Bruce Earl of Carrie, John Comyn the son, Guardians of the kingdom of Scotland acting for a mighty Prince, John King of Scotland (by the community of the same realm appointed — per communitatem ejusdem reqni constituti), and for the community of the said kingdom.^ The letter of the ambassadors of Scotland in France sent to the Government of Scot- land, dated at Paris, 25th May 1303, is addressed to venerable and discreet men and their friends, John Comyn, Guardian of the kingdom of Scotland, and the prelates, earls, barons and others, faithful sub- jects of the same kingdom.^ Eobert Bruce,* two years after his coronation, on the I6th March 1308, held 'a Parliament— pfewwm parliamentum — at St. Andrews ; that Parliament dictated a letter to the King of France, styling them- selves the " earls, barons, communities of all the earl- doms, and also the barons of all Argyll and Ynche- gall, and the inhabitants of all the kingdom of Scot- land."*- The clergy seem to have acted separately. The name of Parliament was now common, though perhaps not strictly technical. In 1314, a Parliament held at Cambuskenneth, set forth as 1 Acts of Parliament, vol. i. ' A.D. 1306-1329. i Hid. * Acts of Parliament, vol. i. 104 PARLIAMENT. its constituent members the King, prelates, earls, barons, and other nobles of the kingdom of Scot- land^ — necnon et iota communitas regni} On 26th April 1315, in a very solemn meeting in the parish church of Ayr, the bishops, abbots, priors, deans and archdeacons, and other prelates ; earls, barons, knights, and others of the community — de communitate — of the kingdom, as well cleric as lay, held for deliberating on the defence and security of the kingdom of Scotland, Edward Bruce was de- clared successor in case of Robert i. dying without heirs-male of his body.^ A body of Statutes of Robert's reign, of date 1318, and of which there is an old Scotch version, runs in the name of Robert, " be the grace of God, Kyng of Scottis ... of the consal and the expres consent of the bischopis, abbotis, priouris, erlis, barounis, and other great men, and with the hale communite of the kynrik there gathered in our ful Parliament haldyn at Scone."* The famous Letter by the Scotch barons to the Pope, dated from the Monastery of Arbroath, 6th April 1320, asserting the independence of Scotland, after a long list of their names, ends with " ceterique barones et liberetenentes ac tota communitas regni Scotie."* Finally, in the Parliament at Cambusken- ^ Acts of Parliament, vol. i. ' Ibid. ^ Ibid. * National Mss., Part II. PARLIAMENT, 105 neth, 15th July 1326, held by the King in person, and in the presence of the earls, barons, burgesses, and all other free tenants of his kingdom, the constitu- tion of Scotland was fixed ; an annual revenue was assigned to the King, and all taxes and impositions without the authority of Parliament declared illegal.^ The Parliament was now complete with the King and its Three Estates — clergy, nobles, and commons, — the latter made up of the smaller barons and the representatives of burghs. All the same doubts and questions arise in our study of the Scotch Par- liament that meet us in the infancy of the parliamen- tary constitution of England. For our purpose it is enough to know that the great national Council, as early as we can watch its existence, consisted of the Sovereign ; the bishops and great churchmen ; the earls, barons, and great lay lords ; and a class here, as in England, set down as probi homines, libere- tenentes — immediate vassals of the Crown of inferior station. When David the First's charters, granted in presence of the great Council of the nation, set forth the assent of the bishops and barons, ending with the assertion of general approbation " clero etiam acquiescente et populo," the bishops and prelates might perhaps be taken to speak the assent of the clergy ; but through whom was the assent of 1 National MSS., Part II. 106 SIMILAR CONSTITUTIOKS ABROAD. the people given ? The omnis populus, as it is given in some instances, had no means of express- ing their assent ; it is certainly a mere form of words as regards anything actually done in the Assembly. Assuredly there was as yet no idea of representation de facto, but it must be held a very important form if it recognises even in theory that the consent of the people was necessary for legisla- tive enactment. It is worth noticing that the con- stitution of Parliament, defined in a few words at Cambuskenneth, was not peculiar to Scotland. We have it at the same time in Spain (witness the Cortes of Catalonia, Aragon, and Castille) ; in the States- General of France ; in the Parliament of England, licked into shape in the long and most parliamentary reign of Edward iii. The elements were the same in a^ — King, clergy, nobles, bur- gesses. The difference was, that in the constitu- tional governments of the Continent the Three Estates fell asunder through continual jealousies ; only in our Island did the parliamentary constitution take root and thrive. David 11.,^ who had been taken prisoner at the battle of Durham in 1346, but not indeed held in rigorous durance, was at length to be ransomed in 1357. At a Council held in Edinburgh, 26th Sept., seven bishops of the kingdom gave an obligation 1 A.D. 1329-1371. DAVID II.'S RANSOM. 107 in name of the whole clergy for the King's ransom in 100,000 merks sterling. On the same day, thir^ teen members of the baronage, on behalf of all the earls, nobles — procerum — barons, and the com- munity of the kingdom of Scotland, appointed their procurators, viz., Patrick Earl of March, Thomas Earl of Angus, William Earl of Sutherland, Thomas de Moravia Panetar of Scotland, William de Living- stone and Kobert de Erskine, Knights, to bind all the other earls, nobles, and barons for that ransom of 100,000 merks sterling. Nor were the representatives of the burghs wanting, and I think their names are of sufficient interest to be enumerated. On the same day, Alexander Gyliot, Adam Tore, and John Goldsmith of Edinburgh ; John Mercer, John Gill, and Robert of Gatmilke of Perth ; Laurence of Garuok, Wil- liam Leith, John Crab of Aberdeen ; Mr. John of Somerville and Eobert Kid of Dundee ; Eoger Phipill and Thomas Johnson of Inverkeithen ; Eichard Hendchyld and Eichard Skroger of Crall ; Nicholas, rector of the schools, and David Comyn of Coupar ; Laurence Bell and Adam Kirkintilloch of St. Andrews ; Eichard of Cadyoch and John Clerk of Monros ; John de Burgo and William Sauser of Strivelin ; John Johnson and William de Saulton of Linlithgow ; Adam de Haddington and Adam de Congilton of Haddington ; Simon Poter and Peter 108 EGBERT II. Waofhorne of Dumbarton : Patrick Clark and Patrick Eeder of Rutherglen ; Andrew Adam and Andrew of Pomfret of Lanark ; William of Duncoll and Thomas Lang of Dumfries ; Nicholas Johnson and John Williamson of Peebles, aldermen, mer- chants, and burgesses, appointed Procurators to bind themselves for the fulfilment of the bond. These worthy burgesses afBxed the seals of their good burghs to their obligation, and sixteen of those seals remain attached thereto this day.^ In the Council held at Scone on 6th November of the same year, an Inquest was ordained to value and assess all property for payment of the ransom as well church as feudal lands — except white sheep, horses broken for use, oxen and household furniture — and enacting that no person be exempt from the tax, of whatever condition.^ In the same Assembly, for the King's maintenance, it was ordered that all lands, rents, possessions, and customs granted by him should be recalled to the Crown. Robert the Steward,' now passed to the middle of life, was crowned and anointed King of Scots at Scone — sedente in sede regia super montem de Scon ut est maris. The Acts of this reign, which excited the greatest interest at the time, were those con- nected with the settlement of the succession to the ^ Ancient Laws and Customs ^ Acts of Parliament, vol. i. of the Burghs of Scotland. ' a.d. 1371-90. SUCCESSION TO THE CROWN. 109 Crown, but they are now of less consequence and serve only to mark the change made by feudal lawyers in favour of the strict line of male succes- sion. They mark also the manner in which deeds of the greatest importance were published and in a manner stamped with public assent. One of these, preserving many of the seals of those present, sets forth how the foresaid earls, nobles, and others of the Council consented to the settling of the succes- sion to the Crown on John Efirl of Carrick, eldest son of Eobert ii., and how the King made- all the people, with the clergy — omnem populum cum clero — to be assembled, that in their presence and by their unanimous consent it might be done and pub- lished, so that no one pretend ignorance thereof in future. Then the whole multitude of prelates, earls, and barons — tota muUitudo prelatorum comitum et baro- num — and of others both of the clergy and the people, with unanimous will and consenting accla- mation — et clamore consono — no single one dissent- ing, affirmed and recognised John, the eldest son, true heir of the King. That was in the year 1371, 27th of March, according to the calculation o( the Scotican Church, and the deed is dated at Scone in the time of the coronation. On the 4th of April 1373, the King again holding his Parliament at Scone, and wishing to remove the uncertainty and evils of a succession through females, executed in 110 RECORDS OF PARLIAMENT IN SCOTCH. fact a strict male tailie upon the descendants of both his marriages, and after a fine list of the nobles and knights of Scotland, most of whom sealed the Act, the deed finishes in this way : Immediately there- after the whole multitude of the clergy and people, being assembled in the church of Scone before the high altar, and the deed having been read and ex- plained — alta et publica voce expositis — each person with raised hand, in manner of giving his faith, and in sign of the universal consent of the whole clergy and people, expressed and showed publicly his con- sent and assent.^ To make up for the paucity of constitutional matter in this and the following reign, we have now for the first time original records of proceedings in Parlia- ment written in the vernacular ; so that one reads with certain pleasure, or at least with a confidence of truthfulness, the simple memorials of Parliament, — endeavouring to introduce order among much confusion, to establish a systematic coinage — and a sentence like the following, where the poor sick King is treated at least somewhat familiarly : — " Whare it is deliueryt that the misgouuernance of the reaulme and the defaut of the keypyng of the common law sulde be imput-to the Kyng and his officeris, and tharfore gife it likeis owre lorde the Kynge til excuse his defautes, he may at his lykynge gerr call - - 1 These two deeds are preserved in the General Register House. EARLY TAXATION. Ill his officeris, to the qwhilkis he hes giffyn commission, and accuse thaim in presence of his consail. And thair ansuere herde, the consail sal be redy to iuge their defautes, syn na man aw to be condampnyt qwhil he be callit and accusit."^ I think I have quoted instances enough to show what were the constituent parts of Parliament. I must be excused for travelling over partly the same ground in collecting the earliest cases where Par- liament exercised the right of imposing taxes — the common test, and a very convenient one, of the supreme legislative power vesting in Parliament. Malcolm iv, gave his sisters in marriage to the Counts of Brittany and Holland, apparently soon after his succession. The marriages were made — sub- sidio suorum et auxilio, says Fordun ; and the meaning of the chronicler is, that he obtained the necessary funds for the dowers of the Princesses by the assist- ance of his barons or feudal vassals, by whose advice the marriages were arranged. The word auxilium^ which in that sense we translate aid., might give the idea of a feudal casualty, and I shall not pre- tend to distinguish very accurately between such a levy from feudal vassals for the marriage of the lord's sisters and a parliamentary grant. But you will find that there was something parliamentary in it, for a tax was raised from others than feudal vas^ 1 Acts of Parliament, vol. i. 27tli January 1398. 112 TAXATION UNDER WILLIAM THE tilUS. sals of the Grown ; and the great Churchmen pre- ferred assessing and collecting it themselves within their own bounds. There is evidence to show that the King commanded the Earl of Angus and sundry sheriffs not to enter the lands of the Abbot of Scone for collecting these aids, because the Abbot had obtained a privilege from the King to collect the public aids from his own goods by his own oflScer — de pecuniis suis per proprios ministros suos} The national Assembly had undoubtedly arrived at the common exercise of its chief and discriminating function — the taxation of the country for the expenses of Government — in the next reign, that of William the Lion. The money for the King's ransom from his English prison was to be raised, and the heaVy burden was apparently too great for the feudal vas- sals. You remember how the thing fell out. In a raid into England in 1174, William the Lion was surprised, overpowered, and taken prisoner by the barons of Yorkshire. The prison was severe, and in his impatience to escape from it, William sur- rendered the independence of his kingdom by the treaty of Falaise, doing homage to Henry ii., and giving up at the same time Eoxburgh, Jedburgh, Berwick, Edinburgh, and Stirling — the chief keys and strengths of his kingdom — for the fulfilment of this treaty, 1 Liber de Scon. EARLY TAXATION. 113 Before the death of •Henry ii., William's position and character had much strengthened, and when Eichard Coeur de Lion, on his accession to the throne, sought every means of raising money for his great Crusade, the Scotch King, by offering a sum of 10,000 merks, obtained the restoration of the national independence in the most ample form of grant, and also the surrender of such of his country's castles as were not already in his hands. It was to meet this debt, this large drain, that the pre- lates and nobles of Scotland — prelati et proceres — I use Fordun's' words — mdt at Edinburgh and raised the ^uva^— inter se partitam— not in form and manner assessing the tax; but we know from incidental entries in contemporary writs in the chartularies that it was assessed, and levied from others than feudal vassals — the religious and even the ' Cister- cians, who boasted an exemption from all civil burdens, bearing their share of that national tax. You see the national meeting at Edinburgh was divided into only two orders, or arms, as the Catalonians called them. But the citizens were already of importance, especially where money was wanted. And this brings me to inquire into the early state and constitution of our Scotch burghs — a sub- ject of interest in the history of all nations, but with some circumstances of peculiar interest here. From H 114 THE FOUR BURGHS. the very earliest period of our history, free burghs, with certain privileges of trade and other immunities, had existed in Scotland, and from the days of David i. at least, two combinations of these burghs appear, • — one, from Aberdeen northwards, including all the burghs beyond the Munth, had a confederacy called by the name of " Hanse"-.— a name so well known afterwards in connexion with the great European combination of free cities ; the other, a burghal par- liament called curia quaiuor hurgorum, was composed properly of delegates of the burghs of Berwick, Roxburgh, Edinburgh, and Stirling ; but when any of these were in the hands of the enemy, the Court included others of the southern burghs for making up the Parliament, which was purely burghal though its president was the High Chamberlain of Scot- land. This Parliament of the good towns, which often met at Haddington, was fixed by James ii. in 1454 to assemble at Edinburgh.^ It was of such admitted authority, that it decided all burghal dis- putes and legislated in burghal questions with sove- reign authority.^ ^ Supplement to the Acts of should be consulted — ideo con- Parliament. sulemdum est cum quatuor hurgis ' The English books afford an contra proximum parliamentum instance of the general reeogni- Jdc, et tunc ad judicium. And tion of this Court. In a Parliar this having been done, judgment ment held at Newcastle by Ed- on the appeal was given accord- ward I. in 1292, in a private suit, ingly : " quia compertum est per depending on the law and cus- recordum et veredictum quatuor toms of Scotch burghs, it was burgorum quod lex et consuetudo determined that the four burghs talis est." (Bot. Pari. I. p. 107.) BURGHS IN PARLIAMENT. 115 We can understand that such a confederacy of good towns, having already a recognised judicature and legislature of their own, would be in no haste to make their way into a Parliament of prelates and barons, to divide the responsibility without much share of the honour of legislation. With the burghs, as with the small barons afterwards, seat and vote in Parliament must have been regarded as a burden, and no doubt it was the increase of their wealth and influence that made them sought after. The burghs however came at last to be held as an essential part of Parliament. I would gladly show you the precise occasion on which they took their place and were recognised as one of the Estates of and in the National Council ; and although we cannot point to the exact year or meeting of Par- liament, we shall come very near it. I have already shown you the Scotch burghs voting a large share of a national tax, proving their early wealth and importance. When Balliol was negotiating a treaty of marriage for his son Edward with the daughter of the King of France in 1295, the instrument of agreement was ratified by the prelates and barons, and by certain of the burghs of Scotland. The parties consenting and approving are four bishops, four abbots of monasteries, four earls, eleven barons ; and the seals of six burghs, Aberdeen, Perth, Striueling, Eoxburgh, Edinburgh, and Berwick, are affixed in evidence of consent and 116 BURGHS IN PARLIAMENT. approbation — in sifjnum sui consensus et approbationis,^ which may be held as showing at least the position of the burghs in the body politic, and that in a transaction when the voice of the nation was to be expressed, though the treaty does not bear to have been executed in Parliament. Neither is there any express evidence of the presence of the burghs as a branch of the imperial legislature during the early Parliaments of Bruce, unless we hold as an indication of some change, that the phrase of long use in our old Acts toia com- munitas regni is changed in 1315 for major es com- mumtatis. Biit in the Parliament of that King held at Cambuskenneth on the 15th day of July 1326, when Bruce claimed from his people a revenue to meet the expense of his glorious war and the necessities of the State, which was granted to the monarch by the earls, barons, burgesses and free tenants in full Parliament assembled, the change had taken place — perhaps silently, perhaps gradually, but from henceforth undoubtedly the re- presentatives of the burghs formed the Third Estate, and an essential part of all Parliaments and general councils.^ ^ Acts of Parliament, vol. i. royal burgh tenure is, that the ^ Eobert himself, though so burgh holds inmiediately of the favourable to the burghs, and Crown. But in an extant charter apparently so much beholden to of Bruce, the King granted to Sir them, committed the gravest Hugh de Eoss, son and heir of offences against burghal liberty. the Earl of Boss, the whole You know the very essence of sheriffdom and burgh of Cromarty CONSTITUTIONAL GOVERNMENT. 117 I have already more than once referred to this remarkable Parliament, where we can for the first time ascertain the presence of the representatives of burghs. In it we have the development of what are now considered the fundamental principles of a representative constitution. There is a compact between the King and the Three Estates — a claim of right, redress of grievances — especially abolition of arbitrary taxes — a grant of supplies, and a strict limitation of the grant to its proper purposes. In that notable Act, the Three Estates acknowledge the great merit of the King, and all that he had under- gone for restoring the liberties of all. The grievous burdens of the people through arbitrary taxes are pointed out, and that the King had no maintenance without intolerable grievance and burden of the people. He undertakes to impose no more illegal collectce and mitigate his legal exactions oi prisce and cariagia. On the other hand, the Estates grant him without reserve (National MSS., (says the King), they shall now Part II.) ; and his famous charter hold of the said Earl : " hoc to his nephew, Thomas Kanulph, solum salvo quod de nobis tene- of the Earldom of Moray, granted bant sine medio et nunc de eodem him the royal burghs of Elgin, comite tenent." (Registrum Mo- Eorres, and Nairn. It declared raviense.) It was to remedy this that they should have the same unconstitutional grievance that liberties which they had had in the Parliament in the time of the time of Alexander iii. and David ii. declared it illegal for in Robert's own time, with this the King to interpose any person difference only, that whereas they between him and his vassals.— formerly held of us immediately Acts of Parliament, vol. i. 118 CONSTITUTIONAL GOVERNMENT. the tenth penny of all rents during his life, accord- ing to the Old Extent of lands and rents in the time of Alexander in. of good memory — a gift which they declare shall be null if the King defeats its application to the public service by any remissions granted beforehand. And because certain of the nobles had liberties and privileges — ^regalities and high jurisdictions — which impeded the King's officers in levying taxes within their bounds, all such privi- leged lords undertook to make payment of the tax effeiring to their lands ; which failing, the King's sheriflfs were to distrain. The concluding words are very remarkable : it is consented and agreed between our Lord the King and the community of his realm — inter dominum regem et communitatem regni sui, that on the death of the King the payment of the tenth penny shall stop, and that the thing shall not be drawn into a precedent. The King gave his consent by appending the Great Seal. The other part of the indenture was sealed with the seals of the earls, barons, and other great freeholders — cdiorum majorum liberetenentium — along with the common seals of the burghs of the kingdom, in their own name and the name of the whole com- munity. The Parliament of Scotland was now com- plete in all its parts, — consisting of the clergy, barons, and burgesses of the kingdom. The treaty of Brigeham in 1289 uses the word PAKLIAMENT OF DAVID II. 119 Varliament for meetings of the Scotch legislature, but the first Parliament that really called itself by that name in Scotland was that of John Balliol, assembled at Scone, 9th February 1292 — seventeen years after it had become the word of style for the legislature of England. The parliamentary proceedings of David ii.'s long reign, though often unconstitutional, are singularly instructive to the historical inquirer, partly perhaps because we find now for the first time regular and consecutive records of Parliament which are still extant and of undoubted authenticity. In a Parliament held at Scone on the 27th September 1367, the record bears that, after the Three Estates had met, certain persons were elected by the said estates for holding the Parliament — quedam certe persone elede fuerunt ad parliamentum tenendum, and the rest were allowed to return home on account of the harvest.^ So in the Parliament at Perth in March of the following year, the Three Estates, on account of the inconvenience of the sea- son and the dearness of provisions, elected certain persons to hold Parliament, who were divided into two bodies, one for the general affairs of the king and kingdom, and another, a smaller division, for acting as Judges upon appeals — super judiciis contra- dictis.^ Observe, that though the Parliaments of 1 Acts of Parliament, vol. i. ^ Ihid. 6th March 1368. 120 PARLIAMENT OP DAVID II. England and Scotland thus far seem to have gone on side by side in constitutional progress, there is this one remarkable diflference, that while in Eng- land, prior to the reign of Edward i., the judicial power was eliminated from Parliament — her Judges, trained lawyers, administering over the kingdom the settled and venerated principles of the common law — in Scotland duty was done in another manner, and worse, by some selection or committee of Parliament, In the Parliament held at Perth upon the 18th day of February 1369, the preamble sets forth that there were summoned and called in due and usual manner, the bishops, abbots, priors, earls, barons, and freeholders who hold of our Lord the King in chief, and from each burgh certain burgesses — compearing all those who ought, would and could conveniently attend — but that there were absent certain members, of whom some were lawfully excused, while others absented themselves of contumacy, namely, the Earl of Marr, John of Yle, Gillespie Campbell, and a few of the meaner sort, both clergy and freeholders — eciam pauci de inferioribus cleri et libere- tenerdium. The Eecord then proceeds : seeing this Parliament was ordained to be held chiefly upon certain points concerning the state of the realm and the King, and the manner of the King's living, and upon certain matters touching common LORDS OF ARTICLES. 121 justice, and as it is not and could not be expedient that the whole community — universalis communitas — should assist at a deliberation of such a nature, nor yet be kept in waiting — there were elected certain persons by the general and unanimous consent and assent of the Three Estates for the matters which concerned common justice, to wit, for discussing and determining appeals, petitions, and complaints which ought to be determined in Parliament ; others were elected for treating and deliberating upon certain special and secret affairs of the King and kingdom before they are brought to the knowledge of the said General Council. Then follow the names of those elected. For the first committee there were chosen six of the clergy, ten knights, four smaller barons, and seven burgesses. For the second committee or com- mittee of Articles, four were elected of the clergy, and twelve of the great barons, without men- tion of the smaller barons or burgesses. But there was an addition of " certain other persons whom our Lord the King wished to have there" — a prac- tice borrowed from England. The two committees being thus elected, leave was given to the other members to depart. I will not trouble you with the Statutes of that Parliament, although some of them were of great importance, and one especially 122 COURT OF SESSION. spoke in a tone which had not yet been heard in the Parliaments of England.^ The foundations were now laid of all that was peculiar in the constitution of the Scotch Parliament. In these arrangements you see the origin of that judicial committee which, under various forms and regulations, became a permanent institution until it terminated in the establishment of a separate and Supreme Court of Justice in civil suits in 1532. Here also we see the adoption of that Committee of the Articles which became an essential and remark- able part of the constitution of Parliament. James i? returned from his English imprison- ment in 1424 full of English constitutional ideas. He wished to relieve the small barons from the burden of attending Parliament, provided they sent two or more " wise men " from each shire to represent them, except Clackmannan and Kinross, which were to send one each ; and he enacted that these commissioners of all the shires should choose a wise and expert man, " callit the Common ' Eemembering that it is the statutes or the common form the year 1369, attend to the of law — contra statuta vel corn- words of this short Statute : It munem formam juris ; and if is ordained that no justiciar, any such mandate be presented sheriff, nor other officer of the to him (that is, any mandate con- King execute any mandate ad- trary to the statutes or common dressed to them under whatso- form of law), he shall indorse it, ever seal, great or privy seal, and return it immediately so in- small seal or signet, in prejudice dorsed. — Acts of Parliament, of any party, if it be contrary to vol. i. ^ a.d. 1406-1437. REPRESENTATION. 123 Spekar of the Parliament," — a person evidently intended to defend the privileges of the Commons in Parliament ; and the Commissioners as well as the Speaker were to have their "costages." While the English representation of counties was imitated in this manner, special precepts, after the manner of the English House of Peers, were to be directed to bishops, abbots, priors, dukes, earls, lords of Parlia- ment and banrents — the last class being equivalent, I think, to the milites of the early English legislation. No doubt the separation of the Houses was to follow, but scarcely any of this ordinance took effect. The representative commissioners were not sure of their " costages," and their constituents at home saw no advantage in the measure that could compensate for the expense. That and another attempt at representation failed, and it was not till late in the reign of James vi. that a representation of the smaller barons in counties was effectually carried out. Neither in this reign, nor afterwards, was a Speaker of the Commons known in our Scotch Parliament, though in no legislative assembly could an officer with the original duties of a Speaker have been more wanted. The Parliamentary history of James ii.^ begins in this manner : " Item, the General Council, that is to say, the clergy, barons, and commissars of burghs ;" 1 A.D. 1437-1460. 124 PARLIAMENT OJF JAMES 11. and so through the whole reign the Three Estates are set forth as the essentials of Parliament. It is only affirming what had already been law since the Parliament of Cambuskenneth. We have not much of constitutional progress during this reign. The scribe of Parliamentary proceedings vents his temper upon the dulness of the sederunts — cetera autem presentis Parliamenti sunt nisi Acta tangencia partes; and true it is that Parliament had re- lapsed very much into a court of law. To make up, however, for the want of constitutional enact- ments, we have in this reign some laws affecting, in no common degree, the rural population. James ii. is little known to our historians, but I have met him in the transactions of some northern families in documents which show the young King active and enterprising, administering justice in person, and enjoying the sports of the field far down in the north. On one occasion he is found, directing in person that an allowance should be made to the poor tenants whose farm labours he interrupted for his sport while hunting on the banks of the Findhorn. I believe that I am not attributing too much to the personal influences of the sovereign in a country like Scotland at that time, and it is pleasant to think that this young generous Prince may 'have himself directed a Parliamentary enactment of great consequence, to which I must briefly allude. LABOURERS OP THE GROUND. 125 From the beginning of the fifteenth century a question had been agitated among the lawyers of Europe as to whether the right of a singular succes- sor, for instance a purchaser of land, should prevail against the tenant of the land with a wHtten lease for a term of years. You see it is a great agrarian question, and it was settled in opposite ways in the different Continental schools of law. You will find it in Heineccius, who gives the Dutch form of the dispute — whether Koop geht for heuren, or, Heuren geht for koop. No doubt the sound of the controversy had reached Scotland, and this first question of tenant-right was settled by an Act of seven lines,^ which ordains, " For the safety and favour of the puir pepil that labouris the grunde, that all tenants having tacks for a term of years, shall enjoy their tacks to the ish of their terms, suppose the lords sell or analy their lands." Lord Kames has recorded how generation after generation of Scotch lawyers tried to defeat this beneficent provision, and how at last the equit- able principle prevailed. The scanty proceedings recorded in Parliament show the continued feeling of the burden of Parlia- mentary service. At the same time the judicial duties became constantly more burdensome, and 1 Acts of Parliament, 1449, c. 6, vol. ii. p. 35. 126 SEDERUNT OF PARLIAMENT. while the greater proportion of the domini eledi ad querelas— the Judicial Committee, consisted of church- men and officers of State, it surprises us more to find the sederunts sprinkled with a fair proportion of lay barons and commissioners of burghs. In this reign our Parliamentary records show some care to preserve the names of the persons present in Parliament. I have found in a private charter a document containing a list of members a little older than the sederunts entered in the formal proceedings of Parliament. It is a charter by the King, granted in his Parliament of the Three Estates at Edinburgh on 21st July 1454.^ The sederunt consists of the King, James ii. by the grace of God, the bishops of St. Andrews, Glasgow, Dunkeld, Moray, and Galloway — nobilibus et prepotentibtts dominis — William Earl of Orkney Lord of St. Clare, Chan- cellor of Scotland, James Earl of Moray, George Earl of Caithness, James of Levingstoun, Great Chamberlain of Scotland, William Lord Somyrvile, Thomas Lord Erskyn, Patrick Lord the Grahame, Alexander Lord Montgomery, Patrick Lord Glam- mys, Andrew Lord the Gray, George Lord Lesly, John Lord Lindesay of Byris, Robert Lord Fleming, Eobert Lord Boyd, William Lord Borthwik, Alan 1 1 copied it from the original Mr George Smythe. I fear the in the Athole charter-chest in original is now missing. 1829, in company with the late POWER TO COMMITTEE. ] 27 Lord Cathkert, Patrick Lord Halys, and Robert Lord Lyle, as well as many others of the prelates, nobles — jyroceribtts — and commissioners of burghs, assembled in the said Parliament. I must be allowed to quote one Act of a Par- liament of the reign of James iii.,^ chiefly to show how lightly the rural legislators threw away the power of Parliament when they were tired of the labours of it — little thinking that they were making a precedent which, in some captious ages, might be quoted as a deliberate change of the constitution. The whole power of Parliament is intrusted to a committee chosen 4th May 1471, consisting of thirty-four : eight for the clergy, seventeen for the barons, nine for the burghs, " and the maist parte of thame and al uther lordis, prelatis, barons, and commissaris that plese thame to cal to tham, sal have the ful power and strentht of the hale thre estatis of this realme beand gaderit in this present Parliament, to aviso, determyn, tret, and conclude eftir as thai fynde in thar wysdomys the materis disposit apon al materis concerning the weilfair of our souerane Lord, that ar now opynnit in this present Parliament and unendit and uthir materis that sal occur for the tyme for the weilfair of our souerane Lorde and the commone gud of the realme." The following Act of Parliament gives us a 1 A.D. 1460-1488. ' Acts of Parliament, vol. ii. c. 12, p. 100. 128 PARLIAMENT OF JAMES Til. valuable hint both of the purposes for which Par- liament was assembled and of the parliamentary feeling of the time : — " Our souueran has, with the avise of his hale thre estatis, continewit his parli- ment to the xj day of Januar nixt to cum, with con- tinuation of dais, and commandis and chargis gene- raly, that all prelatis, bischopis, abbotis, prioris, erlis, baronis, frehaldaris, commissaris of borowis, and all that aw presens in our souueran lordis parliament, that thai comper befor his hienes in Edinburgh, the said day, with continuation of dais to avise, trete, and conclude apoun thir materis vndir writtin ; that is to say, apoun the mariage of our souueran lord, the mariage of our lord the prince, and the lord marques, the matter of the treux betuix this realm e and the realme of Ing- land, the mater of the castell and toun of Berwic, the mater of our souuerane lordis chapel, anent Coldingham, the process of forfaltour of the lard of Drummelyour and Edward Hunter, and generaly apoun all uther materis concerning our soueran lord and the gude of the realme : and als our sou- ueran lord has declarit that whatsumeuer prelait or lord that beis absent the said day, sail nocht alanerly be punyst of the raising of the unlaw, hot alsa uther wais as accordis to thaim that dissobeis his command- ment and incurris his indignacioun auddisplesance."^ 1 Acts of Parliament, 1487, vol. ii. p. 180. EDUCATION ACT. 129 Amongst a body of enactments evidently in- tended for the benefit of the burghs in the reign of James iv., it is declared that the commissioners and head men of burghs be warned when taxes or contri- butions are given that they may vote as one of the Three Estates of the realm.^ In a similar cluster of burgh legislation, so late as the time of Mary, the Queen and Parliament being of " will rather to augment the privileges of burghs than to diminish them," enacted that nothing shall be concluded upon peace and war, or general taxations, without five or six of the principal provosts, aldermen, and bailies of burghs being warned thereto.^ It was in the reign of James iv. — the most ac- complished of our Scotch kings, Ariosto's hero — that the remarkable Act was passed ordaining that all barons and freeholders send their sons to grammar schools at eight or nine years of age, and keep them there till they have " perfect Latin," and thereafter to the schools of " art and jure " for three years.* That Act was passed in 1496. In 1579 an Act was passed ordaining that sang- schools be provided in burghs for the instruction of the youth in music* In 1621 there is an Act exempting colleges and schools from payment of a 1 Acts of Parliament, 1503, a. ^Ih. 1496, c. 3, ii. 238. 39, vol. ii. 245. * lb. 1579, c. 58, vol. iii. 174. 2 Ih. 1563, c. 20, vol. ii. 543. 130 JAMES V. taxation.^ In 1633 the Parliament of Charles i. great-great-grandson of James iv. — a Parliament of Scotch barons and burgesses— ratified an Act of the Privy Council, dated 1616, declaring that every " plough or husband-land, according to the worth," should be taxed for the maintenance and establishment of parish schools.^ I do not pre- tend to have made extensive search upon the sub- ject, but I think there is no similar law so early in any other country, and I call your attention to these statutes to vindicate in some degree the parliamen- tary intelligence of Scotland. The first — that in favour of the poor tenants — was almost defeated by the lawyers of the day, but at length it did prevail. The other Acts may not indeed have produced great results in education, but they show that some minds were at work with liberal forecast for the welfare of the country, at a time when it is com- monly supposed that all public men and courtiers were alike selfish and factious. The beginning of James the Fifth's reign,^ after Albany was secluded from power, was under the Queen — Margaret of England, who was not a prudent or successful administrator of her son's kingdom. Parliament was now in its full proportions. In the General Council held at Perth, after the fatal Field 1 Acts of Parliament, 1621, ^ Ih. 1633, c. 5, vol. v. 21. c. 2, vol. iv. 600. 3 A.D. 1513-1542. PAELIAMBNT OF JAMBS V. 131 of Flodden, which numhered eighteen for the clergy — of whom six were hishops ; thirty-four for the barons — of whom ten were earls and ten of the rank of knights, there is hardly any representation of the burgesses, but then no tax was imposed.^ In the Parliament held at Edinburgh, November 1516, which confirmed the sentence of divorce of Albany from his wife Catherine Sinclair, there is recorded the presence of the prelates, barons and commissars of burghs " representing the thrie estatis of the realme ;"^ and in the Parliament held at Edinburgh, l6th November 1524,' in which the King himself, now about twelve years old, presided, there were present for the clergy seventeen — of whom eight were bishops and the rest lords of houses of regulars ; for the barons fifteen, of whom seven were earls and eight commissioners of burghs. Two days after the meeting of Parlia- ment, they proceeded to the election of Lords of Articles, of whom four were chosen from the clergy, who were all bishops ; four from the barons, all earls ; and four from the commissioners of burghs. Next were chosen the members of the Judicial Committee — domini ad causas — of whom six were for the clergy; six for the barons — all great barons ; and four of the commissioners of burghs, some 1 Acts of Parliament, 1513, vol. ^ Ibid. vol. ii. p. 283. ii. p. 281. 3 75, p, 285. 132 PARLIAMENT OF JAMES V. , of whom, however, seem to have been churchmen. Lastly, there were chosen on the Secret Council two bishops and two great lords, with the Queen's grace to direct all matters, and it was declared that nothing be done without their advice thereto. In that Parliament John Duke of Albany is declared to have lost his office of tutory, and the boy King is now to govern his realm, lieges and subjects in time to come by the advice of the Queen- Mother and Lords of his Council ; and the Queen is to have the keeping of his person. It was a reforming Parliament, and the greatest of the reforms projected was that " there be chosen cer- tain famous lords and persons of the Three Estates that have best knowledge and experience, who shall sit upon the Session, and begin the same incontinent, and thereafter continue and minister justice evenly to all parties, both poor and rich, without feud, favour, or affection, keeping the order of the table, notwithstanding any request of the King or Queen." There is a similar measure for the constant administration of justice in criminali- bus, and for police throughout the realm. There are provisions for inbringing of the King's property and the Queen's dower. After that auspicious Parlia- ment, the next, which was held at Edinburgh, in February 1524, gives us an early indication of dis- sension in Parliattient and the .caase thereof. Tfa« PARLIAMENT OF JAMES V. 133 Parliament had been summoned to meet on 15th February;^ and then assembled, apparently, only the Bishop of Sodor, Lord Forbes, William Scott of Balwery, Mr. John Campbell of Lundie, John Stirling of Keir, and James Colville of Ochiltree, appointed by special commission of the King to hold Parlia- ment, a.long with Andrew Dalmahoy, sergeant, and John Anderson, doomster. The suits being called and the Court fenced, the said Commissioners created and appointed William Forbes of Corsinda, deputy of the Earl Marischal, John Sterling of Keir, deputy of the Lord Constable, for exercis- ing their offices in Parliament. The sederunt consisted of fifteen of the clergy, of whom six were bishops ; nineteen of the barons, of whom eleven were earls ; and four commissioners of burghs. On the 25th February — that is, ten days after the formal opening of Parliament — the Three Estates chose the Lords of Articles ; and we have them on record — six for the clergy; six for the barons ; and six for the burghs ; and no sooner are the elections recorded than the Kegister of Parlia- ment is crowded with protests against elections. The Queen, as of right, led the way ; and no doubt the sister of Henry viii. made herself heard in that tur- bulent assembly, protesting that she desired always 1 AQts of Parliament, vol. ii. p. 288. 134 PARLIAMENT OF JAMES V. unity and concord amongst all the lords, and no differences to be amongst them ; and if they did otherwise it should be laid to their charge, and not to hers. On the Queen's side, the Abbot of Scone pro- tested, that since he had sworn to take the Queen's part, he would not go against his oath; and the Earl of Arran, and Gawin Archbishop of Glasgow, protested " siclik." It does not appear very par- liamentary in our view ; but, on the other side, we do not find more of constitutionalism. The Bishop of Ross protested against everything that should be done in this Parliament in prejudice to the King and country, and in that protest all the Lords of Articles joined. The Earl of Eglinton, the Earl of Arran again, and the bishop-elect of Eoss, each protested that the Lords of Articles had not been duly elected, and that those should be Lords of the Articles whom they themselves had severally voted for. It was a strange shape of a national Parliament ; and yet, in this assembly, so full of jarring elements, the Lords of Articles went on to elect for -the Secret Council, " to steir, execute, and put furth the King's authority," four bishops for the spirituality, and four lords for the temporalty of the party opposed to the Queen. In the next Parliament, held at Edinburgh in EEPKESENTATION. 135 July 1525, the young King being again present, we find appearing for the clergy twenty persons, of whom eight were bishops and ten abbots, with the dean of Glasgow and the secretary Mr. Patrick Hepburne ; for the barons, twenty-four persons, of whom ten were earls, nine lords and five smaller barons ; and for the burghs, eight commissioners. It is worth noting that the clerks who wrote down the sederunt have now got a formal style of separat- ing the barons into three classes, first, the earls and great barons ; secondly, the lords-^meaning nobles of second class ; and thirdly, the smaller barons, or commisssioners for them, who about this time, even in Scotland, are called " squires," but whom we do not hesitate to call Lairds, though they included men of such consequence as the Laird of Luss and the Thane of Cawdor. Hitherto, I think, there are no Officers of State sitting in Parliament on that title ; but we have, amongst the commissioners of burghs, Mr. Adam Otter- burne, a member, I think, for Edinburgh, who was then King's advocate, and Mr. Patrick Hepburne who was secretary. That Parliament contained about an average number for the time. The attendance of the lesser barons and of the burgh members was small, and we cannot but observe, that in an Assembly whose proceedings must have almost amounted to a riot, the Parliament 136 REPRESENTATION, did yet enact some careful and well-considered laws. Notwithstanding the Act of James i. to which I have already referred, no representatives of the lesser barons were actually returned to Parliament; and Acts were passed for more than a century after, to relieve the small barons of parliamentary attend- ance, successively raising the limit below which they should not be obliged to give personal presence. The project of representation was renewed in 1567, when it was ordered that the barons of each shire should elect commissioners to represent them in Parlia- ment, and that the barons be stented for their expenses.^ In 1585 the principle of representation is further elaborated, when the Act^ taking notice how necessary it is that the King and Estates should be well informed of the needs of all subjects, ^ Item of law and reason the maist qualifiit and ■wyis baronis baronis of this realme aucht to within the schire to be commis- haif voit in parliament as ane saris for the haill schire, and part of the nobilitie and for that the sheref or his deputis tak sauftie of nowmer at ilk parlia- foure or sex baronis, being pre- ment that ane precept of par- sent for the tyme and extent liament be direct to the sheriff the baronis of the hale schire of the schire and his deputis alsweill thame that beis absent chargeing thame to direct thair as present to mak the saidis precept chargeing the baronis Oommissaris expenses. — ^Acts of of his schire be oppin procla- Parliament, 1567, c. 33, vol. iii. matioun to compeir within the p. 40. tolbuytht thairof And thair ^ lUd. 1585, c. 74, vol. ii. to cheise ane or twa of the p. 422. KEPRESBNTATION. 137 specially the commons of the realm, appoints that all freeholders of the King under the degree of pre- lates and lords of Parliament, elect commissioners to Parliament annually for each shire, but that none have vote but such as have forty-shilling land in free tenandry held of the King, and have their usual dwelling within the shire. Lastly, in 1587, the King ratifies in plain Parliament the preced- ing Acts, ordains Commissioners to be elected at the first head court after Michaelmas yearly, and their names to be notified to the director of the Chancellary by the Commissioners of the preceding year. The Act also declares that the Commissioners authorized with sufficient commissions, which must be sealed and subscribed by at least six of the barons and freeholders of the shire, shall be equal in number to the Commissioners of burghs on the Articles, and have vote in Parliaments and General Councils in time coming.^ From the period of this last Act at least, the representatives of the small barons or freeholders formed a considerable propor- tion of every Parliament, where they were classed and entered as a separate estate, though by the theory of the constitution as received by our old lawyers they formed a portion of the baronage. The remainder of the parliamentary history of Scotland during its separate national existence is 1 Acts of Parliament, 1587, c. 120, vol. iii. p. 509. 138 THE COMMONWEALTH, to be learned from the popular historians. The period of Queen Mary — which is the period also of the Reformation — ^has been written by our ablest writers, and from all points of view. The reign of James vi. may be said to have been written by him- self. After his accession to the English throne, the King persuaded himself that he had reigned ab- solutely and despotically in Scotland. But that was not so. His real despotism began when he was able to use the wealth and power of the English throne as left to him by Queen Elizabeth and her able servants, in reducing the endless factions and conspiracies of the poOrer country. From James's time the history of Scotland became necessarily in- volved with that of England, and English historians are thenceforward the authorities for Scotch events and changes. Upon the accession of Charles i. the general discontent, as well as the feeling of the power of Parliament, had spread from Eng- land, and during that reign the fulness of the sederunts contrasts remarkably with the latter part of James's reign. The chief event deserving the name of a consti- tutional change took place in a time which is not regarded as a constitutional period. Cromwell was the first statesman who brought forward a well-con- sidered scheme of the parliamentary representa- tion of the three nations, and he also fixed the pro- SHIRES GROUPED. 139 portion between the county and burgh representa- tion of Scotland. Under his direction the whole number of members who were to represent Scot- land in the united Parliament were thirty ; for the counties twenty, and for the burghs ten. The shires and burghs of Scotland were then for the first time grouped. In Oliver's second Parliament of the three nations, which met 27th July 1654, four hundred members were summoned for England, thirty for Scotland, and thirty for Ireland. There were twenty members sent from Scotland to represent the shires, of which the smaller and less populous were grouped. Sutherland, Boss, and Cromarty returned one mem- ber ; Forfar and Kincardine, one member ; Fife and Kinross, one member; Linlithgow, Stirling, and Clackmannan, one member ; Dumbarton, Argyle, and Bute, one member ; Ayr and Eenfrew, one member ; Selkirk and Peebles, one member ; Ork- ney, Shetland, and Caithness, one member ; Elgin and Nairn, one member. There were ten members sent to represent the burghs : — Edinburgh returned two members ; the Inverness group of burghs, namely, Dornoch, Tain, Inverness, Dingwall, Nairn, Elgin, and Forres, one member; the Aberdeenburghs, namely, Banfi^, CuUen, and Aberdeen, one member; the Forfar burghs, namely, Forfar, Dundee, Arbroath, Montrose, and 140 BURGHS GEOUPED. Brechin, one member ; the Stirling burghs, namely, Linlithgow, Queensferry, Perth, Culross, and Stir- ling, one member; the Fife burghs, namely, St. Andrews, Dysart, Kirkcaldy, Cupar, Anstruther- Easter, Pittenweem, Crail, Dunfermline, Kinghorn, Anstruther- Wester, Inverkeithing, Kilrenny, and Burntisland, one member ; the Glasgow burghs, namely, Lanark, Glasgow, Kutherglen, Rothesay, Eenfrew, Ayr, Irvine, and Dumbarton, one mem- ber ; the Dumfries burghs, namely, Dumfries, Sanquhar, Lochmaben, Annan, Wigton, Kirkcud- bright, Whithorn, and Galloway, one member ; thie Lauder burghs, namely, Peebles, Selkirk, Jed- burgh, Lauder, North Berwick, Dunbar, and Had- dington, one member. The grouping of the burghs, the election of deputies for the shires and burghs who should take part in the measures for a Union and represent Scotland, form the subject of a few pages of an Appendix lately made to the Acts of Parliament, headed, " The Government of Scotland during the Commonwealth."^ Of course, during the Common- wealth, there was but one House of Parliament, of which Peers were sometimes members. A large pro- portion of the members sent to represent Scotland, were either oflScers of the English army, or officials of Cromwell's Scotch Government. 1 Vol. vi. Part ii. FORMS OF PARLIAMENT. 141 The clergy, as one of the Estates in Parliament, are sometimes called Prelati, and at other times a list of their sederunt leaves the impression that there was some representation in their members ; but all that is very uncertain. The bishops, and also the heads of the regular religious houses, were un- doubtedly required to attend, and came within the term prelates ; but so did all the clergy whose bene- fices were above a certain amount — perhaps forty pounds. Many other clergymen of inferior station and income appear in the lists of sederunts of Par- liament, whose title I do not pretpnd to explain. The bishops disappeared from Parliament after the famous Glasgow assembly of 1638, and did not appear again till the Eestoration ; from which time till the Revolution the bishops alone filled the place of the first estate — the clergy. For some time after the Eeformation, abbots and priors, nominally heads of regular houses, continue to sit amongst the clergy ; but in a short time the name and title cease to describe the "Lords of erection," who, in feeling and interest, were in no way distinguished from the lay barons. At first each of the royal burghs was required to send at least two representatives to Parliament, and, though the number actually attending was in general small, it was not till 1619 that they were relieved of apart of the burden. From that- time. 142 FORMS OF PARLIAMENT. by an Act of the Convention of Burghs passed, it would seem, without the sanction of Parliament, one member only was to be returned for each burgh except Edinburgh, which continued to send two representatives. After the Eestoration, the forms of Parliament were fixed by an Act dated 13th May 1662, which is referred to as authoritative during that reign. It prescribes fines for absence, and also for coming late, and enacts that none be admitted but the " ordinar " members of Parliament, that is, the archbishops and bishops, noblemen, officers of State, commissioners from shires and burghs, the Clerk Register, and the deputes and servants employed by him to serve in the House. Admittance, however, without vote or voice, is allowed to the eldest sons of noblemen, to the senators of the College of Justice, to the Marischal, to the Lyon's ushers, to the justice deputes, to the King's agent, to one servant of the Lord Chancellor, two of the Constable, two of the Marischalj and to one of the Advocate, The nobility and clergy occupied the " benches," the officers of State sat upon the steps of the throne, the commissioners of shires and burghs upon the " furmes " appointed for them, the eldest sons of noblemen upon the lower benches of the lower steps of the throne, also called benches. The Lords of Session sat at a table between the throne and SITTING OF PARLIAMENT. 143 the commissioners for burghs, none being allowed to sit at the clerk's table save the Clerk Register and those employed by him in the service of the House. Any others allowed to enter must sit at the far end of the seats of the commissioners from shires and burghs. It was ordered that in all debates no member offer to interrupt another nor direct his " discourse " to any but the Lord Chancellor or President ; that all reflections be forborne ; that no man offer at one diet and in one business, to speak oftener than twice ; finally, that no member of Parliament leave the House until the meeting be dissolved.^ The Parliament in theory sat all together — the Three Estates in one chamber — and no doubt there was at every meeting of Parliament a solemn and very gorgeous assemblage of all the members. In later days the members met in the King's palace at Holyrood ; and the riding of Parliament from Holy- rood to the Tolbooth was the great solemnity and show of the season. That was the occasion — I speak of those latter times from James vi. downwards — of disputes and protests concerning precedency and right of place and vote in Parliament, a subject occupying more than any other the attention of our nobility and their lawyers for a century or two. But whatever were the theory, it is certain that from 1 Acts of Parliament, 1662, vol. vii. 371. 144 KO DEBATES. the time of David ii. till the great Eebellion in England had roused some parliamentary feeling in Scotland, our Parliament really cannot be said to have sat at all. It assembled only to adjourn, and met again finally only to receive and adopt the reports of its committees. During all these centuries — from the fourteenth to the beginning of the seven- teenth century — I am not aware that an Article — as we should say now a Bill — was brought in and dis- cussed, opposed, supported, voted upon, in Parlia- ment — I mean in open and plain Parliament. It seems to me that the accident of the Three Estates meeting in one chamber, as the Three Estates had met in England of old, was but a small part of the cause which destroyed freedom of discussion and prevented the growth of what may be called parlia- mentary feeling in Scotland for centuries. The time was not parliamentary. No one thought of making a party in Parliament. No one looked there for redress of grievances. During all that time — for three cen- turies — when a party were displeased with the conduct of the existing Government, they did not attack its favourite measure or minister in Parliament, nor try to pass a vote of want of confidence in the Govern- ment. The leaders of the Opposition in Scotland took another way of righting themselves — they laid a trap for the young King, and carried him off to Stirling or St. Andrews, as the case might be, surrounded him LIFK PEERAGES. 145 with their armed followers, Douglases or Ruthvens, Homes or Hamiltons, and then summoned a Parlia- ment of their own friends, which they took care to declare B.free Parliament. In that Parliament they proceeded to carry on the Government, and always in the first place to pass a long series of forfeitures of the estates of the opposite party .^ I do not remember anything at all peculiar in the peerage tenures of Scotland, except the creation of peerages for life. These existed from an early period with us. Walter Steward, Earl of Athole, second son of Robert ii., had a grant of the earldom palatine of Stratherne for life? David Lindsay, Earl of Craw- ford, who had lost by a parliamentary forfeiture the hereditary dukedom of Montrose, was restored to the King's favour, and had a grant of the same duke- dom ■pro toto tempore vitce suoe? James iii.'s second son, James Duke of Ross, Chancellor of Scotland and Archbishop of St. Andrews, resigned the estates he had received of the royal patrimony, re- serving only the messuages which gave him his title of honour ad vitam.^ Remember he was in orders. William Lord Douglas, married to Anne Duchess of 1 The Kaid of Euthven and ^ Earldom of Stratherne, 23d others are well known. The July 1427. Gowry attack on King James vi. ^ Dukedom of Montrose, at Perth, in 1600, seems to have 1489. been an unsuccessful raid of the * Dukedom of Boss, 1503. same character. K 146 OFFICERS OF STATE. Hamilton, was created Duke of Hamilton for life} Sir Walter Scott of Haychester, on his marriage with Mary Countess of Buccleuch,.was created Earl of Tarras for his life only? Francis Abercromby, husband of Anne Baroness Sempill, was created Lord Glassford^/- his life only? While these examples show the competency and the convenience of life peerages, they mark also that they were not the rule but the exception. No soldier nor lawyer, no public officer for service to the State, was rewarded with a life peerage, which was only bestowed to suit the private arrangements of great families already noble. In the Scotch Parliament the great Officers of State sat in right of their offices. Their number had given rise to such discontent that in I6l7 it was limited to eight. This was certainly a very con- venient practice, and might well be used as an ex- ample in our British Parliament, where every impedi- ment seems to be thrown in the way of ministers of the Crown holding seats — to the great interrup- tion of public business. The Committee of the Articles was at first, and might have continued, a convenient machinery for preparing business ; but its purpose was perverted so as to control the deliberations of Parliament, and 1 Dukedom of Hamilton, 12th ^ Earl Tarras, 4th Sept. 1660. October 1660. ^ Lord Glassford, 25th July 1685. LORDS OP THE ARTICLES. 147 then followed the most shameless abuse and open fraud in the elections of the Lords of the Arti- cles. So careless were our forefathers of their parliamentary privileges, that the Committee of Articles appointed in 1535 were authorized to make Acts with the whole power of Parliament, and they used that power by even imposing a tax. In later and even worse times the election of the Lords of Articles became the great job and juggle of the session. It went through many phases and culminated at last under Charles i.,^ when it was fixed that the bishops should choose eight lay peers, these lay peers elect eight' bishops, and these sixteen elected eight commissioners of shires and eight of burghs. That brought the Parliament to its last degradation — meeting only on two days of the session, the first and the last^the first to choose the Lords of the Articles, and the last to give their sanc- tion to what they proposed. At the beginning of the Civil War, the Lords of the Articles were abolished ; and although the pommittee was revived in the same form after the Kestoration, its power and that of Parliament itself was soon suppressed, when an Act was passed " That whatever the King and Council should order respecting all ecclesiastical matters, meetings, and persons, should have the force of law." The remainder of the reign of Charles ii. 1 A.D. 1633. 148 HERITABLE JURISDICTIONS. and of that of James vii. knew no government but the sword. I have already told you that the Three Estates sat in one chamber — the King often pre- sent, overawing in part all the Estates— and that there was no Speaker to guard the liberties of the Commons, who were of small account in that assembly. Such were some of the defects or peculiarities of the Parliament of Scotland in its shape and form of proceeding, but there were defects in the con- stitution of the country of still greater influence. The King's prerogative of revoking all grants made during his minority was a tremendous engine for unsettling the tenure and right of property in Scot- laud. The terror of Revocation indeed seems to have done much to hasten the fate of Queen Mary and that of Charles i. Mixed up with the pre- rogative of Revocation was the Statute of Annex- ation, which declared all grants of Crown lands of a certain class to be incurably null and void. Not the least considerable of the defects of the constitution of Scotland, was the excessive number of regalities and private jurisdictions among us. These heritable jurisdictions, perhaps more fatal to political liberty than to justice between man and man, destroyed the independence of the Commons. They were not confined to offices con- nected with land ; the Justice-General, the Lord EXCOMMUNICATION. 149 High Constable, hereditary sheriflFs of counties, each jealously defended his own jurisdiction against all the others and against the Crown. The public prosecutor, the State tax-gatherer, could not set his foot within a well-chartered jurisdiction of regality. All Scotsmen know that the Act of Union did not deal with those heritable jurisdictions. They con- tinued to distress the country for forty years, and were at last removed by the Act 20 George ii. c. 43, after the suppression of the rising in 1745. It is well known that the union of the two king- doms, at first so unpopular, seemed for half a century to have failed in the desired effect of promoting the prosperity of Scotland. Men who have studied the modern history of our country sometimes point to the abolition of heritable jurisdictions as the event which crowned the Union, and put an end to the principles which had so nearly triumphed in '45. Before the Reformation, the Church, by excom- munications, of her own authority, might legally strip a subject of all his civil rights in Scotland — a power which was reserved in England to the plainly unconstitutional Courts of Star-Chamber and High Commission. In everything the freedom of the subject was less protected with us than in England. We had no habeas corpus nor anything equivalent to it. The practice of judicial torture continued with us 150 LAW OF TREASON. after it had virtually ceased in England, but only for a short time ; and the power of putting the dead to trial for treason, borrowed from the law of Eome, was not abolished till after the Union. Of the treason law of England, imported by the Act of Union, our lawyers used to speak with admiration, perhaps more than it deserved. No doubt the definition of what shall be deemed trea- son was a great step^ — a great improvement upon our vague law, which permitted lesing making, and everything that a King's Advocate chose to call the crimen Icesce Majestatis, to amount to that crime. On the other hand, we had not, till the Union, invented the refined cruelty of punishing the posterity of traitors — what the English call the " corruption of blood." These were some of the defects in Parlia- ment and in our national institutions, and we must acknowledge that there was not constitutional feeling enough in Scotland to remedy or counteract them till they were all swept away by the fortunate Union with the freer nation. You will find a few styles for summoning a Parliament, of proxies in Parliament, and other parliamentary writs, prefixed to the first volume of the Acts of the Parliaments of Scotland. The style of mandate to the sheriffs under one of the early Jameses runs — " We command you to summon all bishops, abbots, priors, earls, barons, and other free » 25 Ed. HI. 1350. STYLES OP PAELIAMENTAEY WRITS, 151 tenants of your sheriffdom, and from each burgh three or four of the most sufficient burgesses to com- pear before us in our said Parliament with the other prelates, nobles, and commissioners of burghs, to treat, agree, and determine, concerning the welfare of our kingdom and of the republic." Since those styles were printed, I found in the Burgh Charter- Chest of Stirling a letter of James vi., folded and addressed simply like a common letter of corre- spondence, and dated at Holyrood, 1st April 1589, desiring the magistrates to send their commis- sioners "instructit with their best advice anent the premisses," namely, his marriage, the quieting of the State, etc. The Parliament is summoned for the 24th of April, or twenty-three days after the date of the letter. As in England, from an early time — I can- not say how early — the Commissioners for the shires and burghs were paid for their attendance. The amount was long uncertain and variable ; but by Act 1661, c. 35, it was fixed at five pound Scots for each day of attendance and of journey to and fro. For the Commissioners of the shires the expenses were far greater than the allowance covered. The clothes, long ago, of a gentleman going to Court and Parliament cost many of them a year's rent ; and the foot-mantle and horse trappings for "riding the Parliament " — that is, for the display from Holyrood to the Tol- 152 PAYMENT TO MEMBERS. booth — were as gorgeous as a love of personal finery and a noble emulation could suggest.^ ^ I am indebted to my friend Captain E. Dunbar for the fol- lowing accounts of Parliamen- tary expenses, ■wMch he found, I think, in the Hempriggs Char- ter-chest : — The Laird of Mcintosh his de- pursements for the shyr of Invemes at the Parliament in anno 1681. Item, for 52 sitting dayes in Par- liament and 16 dayes comeing and going, at 5 lb. Scotts per day, is . . J340 Item, mor for ane consultation with the Lord Advocate, 36 5 Item, mor to Mr. David Thores and his servants, . 21 15 Item, mor given in with the commis- sion to the Clerk- Kegister, . . 13 6 8 Item, mor for the testificat of the dyettis of the Par- liament sitting, . 14 10 Item, mor to Mr. Thomas Gordon for keeping the counsell in mynd from dissjoyning of the shyr of In- vemes with that of Eoss in the ex- cyse, . . . 8 14 Item, his expenses for his foot- mantle and fumitur thereof and other expens for the shyr of Inverness at the Par- liament in anno 1685. Item, for 10 eUs fyn black velvat at 16 lb. eU, is . ^160 Item, for 5j ells broad black kyligo, 6 15 Item, for silk and working the knapes and fren- zies, . . . 26 Item, to David De- noon for makeing the foot - mantle and mounteing the same, . . 24 Item, for his part given in to the Clerk Eegister, with the Commis- sion, . . . 20 Item, for 55 sitting dayes in Parlia- ment, and 16 dayes coming and goeingat£5scotts per day, . . 365 Item, for the testifi- cat of the dyetts of the Parliament sitting, . . 13 6 8 It is to be remem- bered that the Laird of Mcln- LANGUAGE OF SCOTCH ACTS. 153 I have sought in old charter-chests for such payments of parliamentary expenses ; and among them all — and they are not of infrequent occur- rence — I have found none of earlier date than 1587. Now, I cannot help connecting the practice which then began — of making payments to Commissioners for attending Parliament — with the custom which began about that time, of representatives of the smaller barons — the freeholders — taking their place in Parliament. The poor laird who had found his desire to serve his country in Parliament not strong enough to prevail against the burden of a journey to Edinburgh, with some expenses in the capital, found he could go as the paid representative of his neigh- bour lairds without such serious inconvenience ; and hence the appearance of Commissioners for the barons, along with the Commissioners of burghs.^ In the language of its Acts, the Parliament of Scotland has kept apart from England since an early period. At first the statutes of both countries were in Latin, the only clerkly language. The first statute of the Parliament of England in French tosh, when the nie as other shyres Parliament first did, being . . 13 6 8 sat, after calling . the rolls of Par- The soume of all is ^1051 19 liament, did pro- L. McIntoshe, test for the shyre's of Torcastell. precedency, and depursedane gau- ^ A.ct. Pari. vol. iv. 1593, p. 6. 154 UNJUST LAWS. is the Statutum de Scaccario, 51 Henry in, 1266 — two hundred years after the Normans ruled in England ; and the Statutes continue French till the time of Kichard iii., in 1483, In Scotland we never had French used in Acts of Parliament. They were framed in Latin till the end of the fourteenth century. The first time when the parliamentary proceedings are in Scots is in the Council General of Robert in. 1398 ; and of that Parliament fortunately we have an original record, well preserved — a fine specimen of our early written language, I do not suppose that any cruelty or injustice was ever premeditated by the legislature or the Government — that there was any intention to favour the rich at the expense of the poor, but there are things in the history of our law that I cannot help censuring — the more because I believe the evil was for the most part attributable to the straining of the law by lawyers. The books tell us what impedi- ments the humane law in favour of the " puir pepil that labours the grunde " had to encounter from the practising lawyers of the day.^ I think as little humanity has been shown in the divisions of com- mons. Looking over our country, the land held in common was of vast extent. In truth the arable — the cultivated land of Scotland, the land early appro- ' Karnes and Walter Eoss. COMMONTr, 155 priated and held by charter, is a narrow strip on the river bank or beside the sea. The inland, the upland, the moor, the mountain, were really not occupied at all for agricultural purposes, or served only to keep the poor and their cattle from starving. They were not thought of when charters were made and lands feudalized. Now, as cultivation increased, the tend- ency in the agricultural mind was to occupy these wide commons, and our lawyers lent themselves to appropriate the poor man's grazing ground to the neighbouring baron. They pointed to his charter with its clause of pal-ts and pertinents, with its general clause of mosses and moors — clauses taken from the style book, not with any reference to the territory conveyed in that charter; and although the charter was hundreds of years old, and the lord had never possessed any of the common, when it came to be divided, the lord got the whole that was allocated to the estate, and the poor cottar none. The poor had no lawyers ! Something of the same kind, I think, is taking place now by lawyers extending the meaning of words used in charters. I am afraid the grant cum piscariis has been pushed lately beyond its original meaning ; and the question still so fresh, of the right to sea-shore has been determined somewhat harshly against the poor fisher seeking for bait, while the interest of the Crown has been made a pretext to 156 SEA SHORES, annoy both the proprietor of the soil and the poor commons, who used to be considered the proper enjoyers of the Crown property. These are perhaps the necessary, or at least the natural consequences of increasing wealth and popu- lation, whilst the soil does not increase ; and I must go back for my great grievance to the time when wide territories that had long been held without charter first were sought to be held by parchment tenure. That was not a mere change in law and land tenures — it was part of a great revolution in society. Mr. Maine lays it down, and*tr.uly, that the greatest revolution in the history of any people is when the patriarchal or tribe association is changed into the connexion arising from land — the territorial, if you will — the patriotic bond, instead of the patriarchal. The misfortune was, that in Scotland all such changes told against the poor. A clan in the High- lands before the fifteenth century lived in patri- archal fashion. The clansmen looked to the chief as their leader and father, but what we should call the common people of the clan held their crofts and pastures from father to son, from generation to generation, by a right as indefeasible as the chief's. No doubt the clansmen followed their chief to battle ; no doubt they did service in peace — ploughing and reaping the lands around his castle as well as their own ; biit it was a free service, and CLAN-HOLDINGS. 157 some land they had of their own. The power of the chief, from its very nature, depended on the good will of the whole tribe — for who was to enforce a tyrannical order ? But a time came when lawyers discovered that the lands of the tribe could not be held or vindicated, or perhaps could not have money raised upon them without writ, and then came the feudal investiture. The Crown-charter was taken, of course, to the chief who got the whole land of the tribe in barony. And in the charters of the lands of a great clan the Crown-charter bestowed upon the chief all the rights of jurisdiction, civil and criminal, with pit and gallows, instead of his old patriarchal authority. It was an immense advantage, speaking merely commercially, to the lord. He could now raise money upon the security of his seisin, could provide for his family, could, if need be, sell the lands which he had thus acquired in property. But it was not so advantageous for the poor clansmen, who had never thought of writ- ings to bind their patriarchal head, and who now found themselves with no title of property, often without any written leases or rentals. They became altogether dependent on the will of the laird, and fell a long way below the position which they had held before the lands were feudalized. That, I think, was the most flagrant injustice inflicted by lawyers carrying out to the letter the doctrines of 158 TROUT-FISHING. feudalism, which they assumed were the same with the old patriarchal occupation. Other and smaller rights of the people have been encroached upon by la\Vyers stretching a writ- ten title beyond its meaning. Amongst these per- haps some of us may hold the law as now settled in the matter of trout-fishing. Craig, a great feudalist, allows an exclusive right of the feudal proprietor in all fishing, even trout-fishing, where practised lucri causa, but distinguishes the trout-fishing which is pursued only for recreation ; this distinction, how- ever, has been lost sight of in modern times, and the most innocent and cheapest of sports wrested from the poor. One popular question was for- tunate enough to come into Court only after the modern restoration of jury trials, and after the minds of our educated classes had come to appre- ciate the poor man, and I think there is now no danger of the people being deprived of their old rights of road and way. Let us hope that these rights may be vindicated with moderation and with- out encroaching on the rights of property. In England the paths to villages and churches, with styles through the hedges, contrast with the stone walls and the threatening placards that confine the wanderer through Scotland to the dusty high-road. Who were the leading men who did the real business of Parliament in that mixed assemblage of SLAVERY. 159 clergy and laity, barons and burgesses, we cannot even guess. Lord Hailes, in one of his reports, tells us that the Acts of the Parliament 1621 were drawn by the President, Lord Haddington, but it can hardly have been customary for an Officer of State in so laborious a situation to frame and digest the laws enacted in Parliament. We have not the pleasant memoranda and notes of proceedings in Parliament till a late date, but the Acts to which I have referred show that there must have been in that assemblage, strangely constituted as it was, men of great wisdom and goodness, who must have led the opinion of Parliament, and probably framed those brief, terse statutes which shame the legislation of a' later wordy age. Last of all, let me mention that great peaceful, silent revolution which has never found its way into the pages of our historians. The servile labour of the agricultural class, which had prevailed all over Europe, died out first in Scotland ! The last claim of neyfsJiip or serfdom proved in a Scotch Court was in 1364. In that or the following cen- tury the institution must have died out ; and when our case of the negro claiming freedom came to be judged, the fifteen judges of Scotland had forgotten that our law ever admitted of slavery.^ Not so in the English case where the same 1 Knight's Case, Jan. 15, 1778. 160 SLAVERY. point was tried. The justices of the King's Bench — Sir John Holt among them — held that " one may be a villeyn in England." Justice Powell said, "The villein is an inheritance, but the law says nothing of a negro." ^ And all English lawyers who still took Sir Edward Coke's law for law and his- tory, not to say gospel, and who denied that his law could ever become obsolete, must have approved that opinion. But, spite of Sir Edward Coke and the Court of King's Bench, neyfship had died out in England. I think it is now admitted that there were no neyfs in England after Queen Elizabeth's reign. Serfs and serfdom continued in France down to the great French Revolution, and even later in Germany.^ ^ Smith v. Browne, 2 Salk ^ De Tocqueville, L^Ancien 666. Regime et la Sevolution. LECTURE IV. THE OLD CHURCH. In order to lay before you a useful outline of the Church in Scotland as it was before the Reforma- tion, my present lecture will be extremely elemen- tar}',- and to those of you who have studied the subject with good help will appear superficial ; but to others, and perhaps the larger number, it may serve to open a new path and furnish such know- ledge of our old Church establishment as you will not find in print. The greatest mistake in church history, and yet with us the most common, is to confound the regular and secular clergy — the parson with the monk — the cathedral with the monastery. The regular clergy — regular means living secundum ' reguhm, that is, under the rule of some religious order and in a monastery or house of religion where that rule was enforced — are to be divided into monks and friars. The monks were of far greater importance than the friars. Your time L 162 EEGULARS — CULDEES. will not permit me, nor is it necessary, to enumer- ate the monasteries of Scotland, but I must warn you against the vulgar error of throwing all houses of monks into one class. Monks and monasteries had existed in the Christian Church from remote antiquity. St. Benedict founded his great order in the sixth century at Monte Cassino, in the kingdom of Naples, which branched off into Cluniac — Tyronensian — Cistercian — Valliscaulium. The Culdees were monks of Irish origin, some houses of their order remaining in Ireland till the Reformation. They were professed followers of St. Columba, but it is a mistake to call all Columbites Culdees. The Culdees had become lax in their observance of rule and had married and appropriated the possession of the monasteries to their own families. In some cases the superior threw off all Church ties, and, having taken his place in the country as a temporal baron, handed down the territory of his monastery to his family as hereditary property.^ Sir James Dalrymple and other zealous Pres- byterians of last century, finding that the Culdees had broken the rule and their vow, were willing to ^ The Abernethies tanded like manner did the M'Nabs and down to their family the pro- some families of Abbe connected perty and even the name of with the Culdees of Brechin, their secularized monastery ; in CANONS OF ST. AUSTIN, 163 receive them as an anti-monastic body. They found or imagined that they found something of primitive apostolic manners in the lapsarian Culdees, and actually adopted them as Presbyterian brethren. But the Culdees would not have accepted such fellowship. They were undoubtedly Prelatists and Episcopalians as well as Romanists, however erring. They were the council and chapter of election of the Bishop of St. Andrews originally, that is, before the summary ejection of King David ; and they continued to be the chapter of election of the bishops of Brechin for a century afterwards — indeed to a time within the period of record. Monasteries of their order had also existed at Dunkeld, Scone, St. Serf's Isle in Lochleven, and Monymusk in Mar. The Canons Regular of the rule of St. Augustine (a.d. 1050) differed from monks in nothing but name. They were favourites of David i., and in most places were chosen to take the place of Culdees as chapters of cathedrals. There were great houses of the Canons Regular of St. Augustine at St. Andrews, Holyrood, Scone, Cambuskenneth, Jedburgh. The head of each of these great houses was an abbot, except at St. Andrews where the head of the house had the style of prior. St. Andrews was founded by Alexander i. This priory of canons, forming the Chapter of the Bishopric of St. Andrews, soon took its place as the first in rank of the religious 164 SCONE — DUNEERMLINE. houses of Scotland ; and its prior, with the ring and mitre of a bishop, had rank and place in Parlia- ment above the abbots and all other prelates of the regular Church. They had property, not only throughout their own diocese, which extended al- most from the English border to Aberdeen, but also in Mar and beyond the Grampians. The Register of this house, first of Culdees, then of Augustinian canons, is invaluable to the early historian of our country, and especially to the student of Church history. The Abbey of Scone was long connected with the coronation of our kings, and though his- torically venerable, had no great possessions. The fatal chair, which, alas ! the learning of Mr. Skene has reduced to a common red sandstone of the dis- trict, gives a mysterious importance to this place in the mythical period of Scotch history. The Benedictine monks of the original unre- formed rule of St. Bernard had a noble monastery at Dunfermline, which, from several circumstances, was one of the most interesting of our old abbeys. Its collected charters help largely to show us the origin and pedigree of our ancient monarchs. This Benedictine house was founded by the saintly Mar- garet, and it long continued to be a royal house — many of the princes of the Eoyal family of Scot- land choosing it as their burial-place. Some of the English chroniclers speak of the buildings of the COAL — KELSO. 165 abbey as magnificent and spacious enough to re- ceive the Courts and followers of two kings. The monks possessed great territories round the abbey and town of Dunfermline ; also a large strip of the ' shore of Fife opposite to Lothian, including King- horn, Kirkcaldy, Burntisland ; and on this side of the Firth, Musselburgh and Inveresk. I observe that perhaps the earliest disputes about coal-levels were between the monks of Dunfermline, who had. coal upon their lands of Inveresk, and the monks of Newbattle, who had coal on the higher level round their abbey and Dalkeith. Pinkie — I dare- say you know the fine old house — was the dwell- ing of the abbots when they chose to live in Lothian and near the Court. The Benedictines of Tyrone had the two great and wealthy monasteries of Kelso and Arbroath. Kelso, the first of the sainted David's monas- teries, was, I think, the richest abbey in Scotland. Its founder first placed it at Selkirk — which, from its name, must have been an early religious house — but the French monks, of the order of St. Bene- dict, were dissatisfied with the position so high on the banks of the Ettrick ; and upon David's acces- sion he removed it from Selkirk, " a place unsuitable for an abbey," and established it at the "church of the Blessed Virgin, on the banks of Tweed, be- side Koxburgh, in the place called Calkou," Their 166 LESMAHAGO — ARBROATH. territories of MoUe, Sprouston, Home, Lamden, Greenlaw, Keith, Mackerstoun, Maccuswell and Gordon, were chiefly on the Tweed and Teviot and in the Merse. We are indebted to the monks of Kelso for our earliest accurate knowledge regarding the occupation of land, its tenancy and cultivation. A fine rental of this abbey is preserved so early as 1290. A cell of Kelso was Lesmahago — the church of St. Machutus — famous for its sanctuary. There is still preserved at Floors a very venerable specimen of the accomplishments of the monks of Kelso — the great charter of Malcolm iv., granted to the abbey in 1159, and which has been photo- graphed by Sir Henry James for the Scotch collec- tion of NationalMss. The Abbey of Kelso was perhaps second in importance to the Priory of St. Andrews ; and the abbot of Kelso takes place in Parliament and Council next to the prior of St. Andrews. .Arbroath Abbey, the great religious house of Angus, and the greatest north of the Tay, if not of the Forth, had lands through the whole county of Angus, and churches through all the north. In a single reign, that of its founder, William the Lion, there were bestowed upon Arbroath, besides a goodly roll of lands and baronies, forests and fishings, thirty-four parish churches. It was to this abbey that the custody of the Brecbennach, the sacred banner of St. Columba, was intrusted. PAISLEY — MELROSE. 167 The Cluniac Benedictines had the Abbey of Paisley, a foundation of the Stuarts before they bore the name, when that great Norman family were but lately settled in Scotland, whither they brought with them a colony of monks, who served to connect them with their original seats in Eng- land and Wales. The abbey had lands round Paisley, in Lochwinnoch, Kilpatrick, Monktown, DalmoUan, and Inverwick on the east coast. The chartulary of Paisley is interesting as containing the earliest record extant of a form of ecclesiastical procedure of which I must speak hereafter ; and secondly, as supplying the materials which enabled George Chalmers to prove the descent of the Royal Stewarts from the Norman Fitzalans, instead of from Hector Boece's imaginary pedigree of Ban- quo's thanes of Lochaber. The Cistercians, the greatest and perhaps the most useful branch of the Benedictine stock, had many houses among us. I will only name Melrose, Newbattle, Coupar- Angus. The historical Melrose, like others of our monas- teries, was founded upon an ancient prehistoric reli- gious house. The territory of the abbey was much scattered. The monks had lands upon their own river and round their monastery, and at Berwick, Peebles, Roxburgh, besides great districts in Teviot- dale. They had, too, immense grants of pastures in Eskdale, Kyle and Carrick, Haddington and the 168 NEWBATTLE. Lammermoors, and were the growers of the finest wool shipped from Scotland, In their chartulary we find everywhere strict rules for the protection of agriculture, and evidence of the good husbandry of the abbey. The monks had wheaten bread on holidays. We are indebted, to this religious house for our finest collection of original writs and seals — the writs comprising more than 100 royal charters from David i. to Kobert Bruce, and the seals col- lecting the Church and baronial heraldry of Scot- land from the introduction of heraldic bearings. You will also find in the chartulary much infor- mation regarding our ancient laws and forms of legal procedure ; and not the least interesting document in the collection is the deathbed letter of Kobert Bruce, bequeathing to his son the care and protection of that favoured house, where he destined his own heart to be buried. Newbattle Abbey was founded by the great benefactor of Scotch churches, David i., in 1140. Like Kelso, it was an extensive sheep-owner, and though not one of the most richly endowed monas- teries in Scotland, it possessed great estates in Edinburgh, Haddington, Linlithgow, Peebles, and Stirling. The monks of Newbattle were probably the first workers of coal in Scotland ; digging the coal from rude surface pits before mining was used. The Cistercians enjoyed a general exemption from KNIGHTS TEMPLAES. 169 payment of national taxes — a privilege confirmed by many Popes. I do not know how it was in other countries, but in Scotland I find the rich order ever asserting their right to be exempted from paying taxes ; still, however, paying under the most care- ful protests that their doing so should be no pre- cedent for future imposition. The Knights Templars, a military monastic order taking its name from the Temple of Jerusalem which they were bound to defend as well as succour pilgrims, spread over all Europe after the loss of the Holy City, and acquired many settlements in Scotland. The suppression of the Templars took place in 1312, when their houses and property passed, for the most part, to the Knights of St. John of Jerusalem, who held a great number of houses with small forts and small estates scattered everywhere. Their chief house or preceptory was at Torphichen, the Preceptor of which was generally styled Lord of St. John of Jerusalem. The family of Sandilands of Calder, at the Refor- mation, obtained a charter erecting the lands of the Order in Scotland into a temporal lordship in their favour, with the title of Lord Torphichen. All these orders which I have mentioned, monks, Austin canons, military monks — I mean the Templars and Knights of St. John — and some others of less importance, were entitled to acquire pro- 170 OFFICERS OF THE MONASTERY. perty, not only in the houses and establishments for their own residence, but in lands and heritages of every kind. And undoubtedly they used their right; for a very large proportion of the soil of Scotland — it must be remembered too, the richest and best managed — belonged to them at the era of the Reformation. The heads of the numerous monasteries sat in Parliament as prelates, many of them wearing the mitre and insignia of bishops, and taking rank next to the earls as members of the National Assembly. I have not time to describe the different officers of the monastery, but I must warn you that their names do not always express the duties of the office. Next to the abbot came the prior and sub- prior, whose rank is expressed in their names. The cellarer had other duties besides those of the cellar, being often the accountant of the house as well as its cashier. The porter had a higher duty than his name implies. He was the distributor of the alms of the convent; for the poor were supplied and alms distributed ad portam monasterii. The other great division of the Regulars — the clergy living, as I have said, under a definite rule — were the Friars, who came among us at a later period. They were in truth a much later brood of the great Church militant of Rome, and reached Scotland in the good time of our Alexanders, in the FfilABS. 171 thirteenth century. The friars professed poverty, practised mendicancy, and could not by law acquire or hold land or heritage, except their church and place of dwelling — a rule, however, which was ex- tended to include spacious and often tasteful gardens. They were active beggars, and some of them were renowned as popular preachers a little before the Reformation. Contrary to the custom of monks, their settlements were always in towns, among the busy haunts of men. They had no vows of seclusion or solitude. I will now mention the names of the chief orders of these brethren. The Dominicans, insti- tuted at Toulouse in 12] 5 by St. Dominic — honoured by having the power of the inquisition intrusted to their hands — were known generally as fratres prcB- dicatores — friars preachers (preaching being part of their rule), or black friars from their dress. Their house at Edinburgh was very spacious, and fre- quently used for great national assemblies of the Church. I think their house and gardens at Glas- gow were used for the foundation of the University. The Franciscans, named from their founder St. Francis of Assisi, who instituted the order in the Papal States in 1210, were known as Minorites or friars minor, or grey friars from their habit. In old writs their superiors named are often described as custodes — wardens. 172 NUNNEKIES. The Carmelites, named from Mount Carmel where they were first established by Berthold Count of Limoges in 1165, were known as white friars from their dress. There were few nunneries in Scotland, and none of great extent or consequence. They were classed according to their Rule like the monks. Those whose transactions I have most frequently seen recorded are the Cistercian nuns of Cold- stream, Haddington, and North Berwick — the last of which came to be a sort of appanage of the family of Home — and Elcho in the Carse of Gowrie. We have honourable cause for remembering the Augus- tinian nuns of the Sciennes, near Edinburgh, which was excepted from the general denunciation by our great satirist at the Beformation. In his satire of the Papingo, Lindsay makes " Chastity " flee to the nunnery of the Sciennes : — " There has she fund ane convent yet unthrall To Dame Sensuale, nor with riches abusit, So quietlye those ladyis bene inclusit." A little house at Aberdour, across our firth, be- longed to the nuns of St. Clare, a branch of Fran- ciscans, of whom I have seen some charters ; and there are also some records preserved of the Cis- tercian nunnery of Manuel on the Avon. Hospitals, often very slenderly endowed, were very numerous. At the gates of towns, at the HOSPITALS. 173 river-side where a boat was placed — beside the ferry, on the mountain pass — were hospitals for the reception of the poor and pilgrims, for the safety of travellers, for the sick, especially for those afflicted with the scourge of leprosy. They are called kospitale — spital — domus Dei — maison Dieu — Lazar-house — domus leprosorum. The foundation consisted generally of a maintenance for two or three brethren, who devoted themselves to the ser- vice of the sick and poor. The government of the old Church was strictly episcopal. Each diocese was subjected in spiritual matters to its own bishop by a law at least as defi- nite as that which gave authority to the civil magis- trate in his own province. Of the higher organiza- tion of Church councils, provincial councils, general or national councils, I shall not say anything here, as the late Joseph Kobertson has filled that blank in the history of Scotland with his Statuta Ecclesice ScoticancB. In Catholic times — I mean for about four cen- turies before the Keformation — there were thirteen bishops and bishoprics in Scotland. I. The Bishop of St. Andrews, once known as Episcopus Scotorum, and for a long time con- sidered the first in rank, was made Archbishop of St. Andrews by Papal authority in 1474. The Chapter of St. Andrews consisted of regulars, at first 174 BISHOPRICS. Culdees, and later, canons of St. Augustine. The diocese was divided by the Firth of Forth into the archdeaconries of St. Andrews Proper and Lothian — the former comprehending the rural deaneries of Fife, Fothrif, Gowrie, Angus, Mearns; and Lothian, consisting of the rural deaneries of Lothian or Had- dington, Linlithgow, and the Merse. The suflfra- gans of St. Andrews were eight, which I will mention in the order of their supposed antiquity : — 1. Dunkeld was a bishopric of very early foun- dation, and held in reverence for possessing the bones of St. Columba. It possessed property and jurisdiction from the Firth of Forth across the Island — including lona. By the original founda- tion the chapter consisted of Culdees, but latterly of secular or parochial clergy.^ It was divided into the rural deaneries of AthoU and Drumalbane ; Angus ; Fife, Fothrif and Stratherne ; South of the Forth. This bishopric and its possessions followed Columba from Icolmkill to Inchcolm — Insula Sancti ColumbcB. 2. The bishopric of Aberdeen,- founded in the twelfth century at the mouth of the Don, now called Old Aberdeen, consisted at first of three rural deaneries : Mar, Buchan, Garviauch ; latterly five : Aberdeen, Mar, Garviauch, Buchan, Boyne. 3. The bishopric of Moray, founded before the 1 Abbot Milne, first President of the Court of Session, wrote its history. BISHOPRICS. 175 time of David i., extended from sea to sea. At first the diocese had no defined bishop's seat, but after being successively changed to Birny, Kineddor and Spynie, it was at last permanently fixed in the church of the Holy Trinity beside Elgin in 1224. The diocese was divided into four rural deaneries : Elgin, Inverness, Strathspey, Strathbogy. 4. Brechin, an abbey of Culdees originally, was erected into a little bishopric by David i. in the middle of the twelfth century. 5. The bishopric of Dunblane or Stratherne had at one time a chapter of Regulars. It was the only bishopric in Scotland founded by a subject, of which the Earls of Stratherne long continued patrons. 6. The bishopric of Ross, or as it is sometimes called, Eosemarknie from its see, was founded or restored by David i. early in the twelfth century. 7. The bishopric of Caithness, which included the whole northern peninsula, anciently the earldom of Caithness, now Sutherland and Caithness, had its see at Dornoch. The date of its foundation is not known, but it existed in the beginning of the twelfth century. 8. The bishopric of the Orkney Islands, includ- ing Zetland, was originally a Norwegian diocese, and continued subject to the Archbishops of Dron- theim till the definite transference of the sovereignty of those isles was made to Scotland under James in. 176 BISHOPRICS. in 1468, when the ecclesiastical jurisdiction followed. The cathedral, as everybody knows, was the Church of St. Magnus at Kirkwall. Next turn to the province of Glasgow : II. The Church of Kentigern of mythical an- tiquity at Glasgow, and certainly a very ancient bishopric, became the see of an archbishop by papal grant in the year 1491, seventeen years later than St. Andrews. Glasgow was divided into two archdeaconries, Glasgow proper and Teviotdale ; the former com- prehending the rural deaneries of Eutherglen, Lennox, Lanark, Kyle and Cuninghame, Carrick. Teviotdale included the deaneries of Teviotdale, Peebles, Nithsdale, Anandale. The suffragans of the western Archbishopric were three : — 1. The bishopric of Galloway, the very ancient foundation of the Scotch apostle St. Ninian, had a chapter of Regulars, and was divided into three deaneries, the names of which are now almost for- gotten : Desnes, Fames, Rinnes. The last is still a popularly known district. 2. Argyle, the bishops of which were called also the bishops of Lismore, from their see in that island, was cut out of the ancient diocese of Dunkeld in the end of the twelfth century ; the Bishop of Dunkeld reserving to himself his episcopal connexion with the island of lona BISHOPS. 177 alone. It contained four deaneries : Cantyre, Glassary, Lome, Morven, 3. The bishopric of the Isles has gone through many changes ; of old the episcopus imularum was Bishop of Man and all the Western Isles, including Bute and Arran, and I think Cantyre, which was popularly reputed and called an island. This bishopric was a suflFragan of the see of Drontheim in Norway. More lately the Southern Isles (Sudrey) were combined with Man, giving rise to the modern title of " Sodor and Man" — still the name of an English bishopric — but last of all the Hebrides or Western Islands, including Bute and Arran, formed a diocese by themselves, the bishop of which was a suffragan of Glasgow. In this last stage, the see was fixed at the church of lona, which had long passed away from the Columbites, and was revived as a house of Cluniac monks about the time of William the Lion.^ All the remaining buildings of lona are subsequent to the Cluniac establishment tbere. The right of appointing bishops lay of old in the chapter or council of the bishop. The royal wish must always have influenced, but only of late years when the rank and wealth of bishoprics had much ^ The preceding division of Middle Ages," being, I believe, bishoprics into deaneries is the only printed work where such taken from a chapter of old a division is to be found, geography in "Scotland in the M 178 CHAPTERS. increased, was it expressed in the peremptory, form still known in England as conge d'elire — ^granting permission to elect a person designated by the sovereign. The King had a more formidable rival in the appointment of bishops. The Pope, under various pretexts, was continually endeavouring to engross the patronage of our bishoprics ; and, when it came to be virtually admitted that an elec- tion or presentation was not eflfectual till confirmed by Eome, that object was not far from gained. The Pope had another hold, for it was la,id down as law, and received as such at Rome, that the Pope had the absolute disposition of the benefice of every churchman who died at Eome. Whether by reason of confirmation or by direct grants, the drain of money to Rome was enormous. The rapacity of the Eoman officials was however quite unconcealed and open. The capitulum, chapter or council of a cathedral, by law the electing body of the bishop — the little Parliament of the cathedral and diocese, whose consent was necessary to all important acts of the bishop — consisted sometimes of certain secular or parochial clergymen holding benefices within the diocese, sometimes of a body of regulars, monks or canons. I have already mentioned the bishoprics that we know to have had such chapters of regulars, but other dioceses may have had such regular chap- CANONS — DEAN. 179 ters at a time beyond the reach of record. The constitution of our cathedrals was often borrowed from some English authority. Thus Glasgow sent to ascertain the usages of Sarum, and Moray formed its own chapter constitution after the model of Lincoln ; and these were imitated by others. The canons or prebendaries of a cathedral were of no certain number. We find them from ten to twenty, according to endowments. Some of them were simple canons, deriving their style and title from the benefice or prebend — prehemja, the living. Others, again, held oflSces in the cathedral, and sat in the chapter-house and the choir, in the stalls appropriated for their several dignities. I will name some of the dignified canons — the dignitaries of the cathedral and chapter-house. The Dean — decanus, was properly the head of the chapter, and chief person in the cathedral — the bishop not necessarily having the first seat and vote, but in some instances sitting in a lower stall in virtue of some benefice or canonry which he held. The dean had great power, and directed and controlled all the canons, chaplains, and other officers within the cathedral. Such power and duty often brought him in collision with the bishop, and very often the dean maintained the right of supremacy within the cathedral, but never asserting independence or equality with the bishop as to the 180 THE DEAN. rest of the diocese. The dean, presiding in the chapter, determined all questions touching the chapter and all appeals of the canons, corrected and punished all excesses of canons, vicars, and clerks of the cathedral. He had the induction and installation of new prebendaries, and the admission of all the clergy of the second form of the choir. In absence of the bishop he was bound to cele- brate mass on the great festivals of the Church. It was the dean's office also to see and correct books, vestments, and other ornaments in the pre- bendal churches, which were exempt from the power and jurisdiction of the archdeacon and rural deans. The reverence due to the dean is thus laid down for the guidance of the clergy of Moray : — All persons, members of the choir, great and small, shall bow to him in his stall on entering or leaving church. None of the choir, great or small, must be absent from the city for a single night without his leave. When he enters or passes through the choir or chapter-house, all members of the choir are bound to rise. Vespers and matins shall not commence before his coming, or message of his not coming. The sprinkling of holy water, and the procession and collect in Lent at compline, shall wait for his arrival or message to the contrary. The Archdeacon was archidiaconus (SidKovo P. 87. 224 JURY TRIALS. swear to all the details of the squabhle, although using only a dozen lines for the purpose. They also tell what is worth your attention, that the barons on that jury agreed with the burgess jurors in all things ; and the said burgesses and barons say upon their oath that Richard, the survivor of the fray, was a true man— Jidelem in omnibus ; but the other, Adam, was a thief — et defamatum, a phrase which, I suppose, we may translate habit and repute. This was only, you see, the report of a proof upon oath. There may have been a verdict and judg- ment separate, but if the jury were required to give a precise verdict, it would seem to be one of " not guilty."' Next, the King issued his mandate to his sheriffs and bailies of Lanark, to ascertain the tenure of Adam of Liverance — I suppose it is here a surname, but derived from the duties of his office, which con- sisted in delivering food, drink, etc., in the King's household, and specially clothes, hence called liveries — in the land of Paduinam, which he holds of the King in chief, and what service he ought to pay to the King therefor, together with the extent — extenta, which Thomas de Normanvil holds from him. Charters were ordered to be produced, and the trial took place at Lanark, by men of the baronies and burgesses : and the jury find that Adam was bound to pay to the '^ Acts of Parliament, i. p. 88. EARLY JURIES. 225 King the service of two archers and of one suffi- cient servant on horseback for making all manner of liverance, which ought to be made in the King's Court to the grooms a,nd the dogs — in which service did serve six persons named, who received nothing from the King except their food. Further, when ward, relief, or marriage fell, it belonged to the King ; and further, the extent of the whole land is 13 merks — meaning, I think, of the land held by- Thomas de Normanvil/ The next is a remarkable inquest. It is called a new inquest — nova inquisitio, and was taken evidently on the allegation that the previous inquest was fraudu- lent. Here are the words of the twelve jurymen — who being all sworn, said in their verdict that the inquest taken formerly about the said lands of Hopkelchoc by Sir Gilbert Eraser, Sheriff of Peebles, was faith- fully and reasonably made, and by reasonable per- sons, and not suspected in any way in that matter ; and that they all swore faithfully, but they certified that two of the jury said that a person open to sus- picion — una persona suspecta, was upon that first in- quest, namely, one of the tenants of the party. The next writ is by Alexander iii., addressed to Alexander de Montfort, Sheriff of Elgin, command- ing him to make diligent and faithful inquest, by good, true, and free men of the country, that is of 1 Acts of Parliament, a.d. 1259, i. p. 88. P 226 EARLY JURIES. his rural sheriflFdom, and by the best and most faith- ful of the burgesses of Elgin, concerning a right which Robert Spink, the crossbowman — Spine, balis- tarius — claims to have, by reason of Margaret, his wife, to the King's garden of Elgin, and to the lands belonging to the same garden. It is dated 13th August, the thirteenth year of the King's reign, that is 1261. The inquest takes place on Saturday next before the decollation of St. John the Baptist — the decolla- tion, you know, is the 29th August — in the year 1261, in the full court of the Sheriff, Alexander de Montfort. The jury consists of twelve men, half barons, half burgesses, but intermixed apparently without design of giving precedence to the barons. Two of the jury are thanes, and I observe that they are placed first, before the Provost of Elgin. The assize find that the ancestors of the said Margaret, during all their lives, possessed the said garden and land in peace, and died vest and seized, as of fee and heritage — ut de feodo et hereditate — and their service therefor was to find cabbages and garlic — olera et allia, for the King's kitchen, when the King stayed in the castle of Elgin ; and if it happened that the King brought any falcon or goss-hawk there, the ancestors of the said Margaret were to receive one penny a day for the food of the goss- hawk, and twopence for the food of each gerfalcon. EARLY JURIES. 227 and should have a chalder of oatmeal annually for taking care of the birds — for which cause, say the jury, the said garden and the said land ought to descend to the said Margaret and her heirs, as of fee and heritage, according to the law of the land — secundum assisam terre, according to what the wit- nesses had sworn. You will observe in this case that the verdict is against the King, or against some of his officers, who wanted to oust Margaret and her husband.^ Here is another brief of the same reign, nearly of the same date : Alexander King of Scots, to Eimer de Maxwell, Sheriff, and his bailies of Peebles. We command you to make inquiry by good and faithful, free and lawful men of the country — per prolog, fideles, liberos et legdes homines pairie, whether Robert Cruik keeps by force our petary of Wal- tamshope from the burgesses of Peebles, which they allege was given to them by our father and our- selves, and whether the said Robert has ploughed, or in any other manner occupied our land, and the common pasture of our said burgesses. It is a good issue, and the jurymen confine themselves nearly to it, returning this verdict. They say upon their oath that the burgesses cut their peats in the petary of Waltamshope, and that the said Robert violently cut and broke the said peats, and impeded 1 Acts of Parliament, a.d. 1262, vol. i. p. 90. 228 EARLY JURIES. them from carrying them away ; and that he took one horse with heather, and still detains the price of the horse, which is four shillings, and the price of the heather, which is one penny, as his escheat, say- ing that it is his escheat, hecause they had pulled the said heather in his common. And the said burgesses took the price of the said horse and heather to borch and ipledge-^ad vadium et ad ptegium, that they could not have them, because he said it was his escheat. Further, the jury said that the same Robert Cruik had built his hall where the men of our lord the King used to common, and also ploughed upon the common of Peebles. As Clerk of Court, I should have no difliculty in writing out the verdict " for the pursuers." Another interesting document of the same kind, is the brief and retour of the inquest concerning the succession of Dugald of Lennox, which carries back to the reign of Alexander iii., a very simple and accurate form of jury trial.^ Even from the Justiciar, as well as from all inferior courts, lay an appeal or falsing of dome to the Supreme Court or King's Council, which gradually grew, you know, into a yet greater juris- diction, as the Court of Parliament. It has been asserted by a high authority that Parliament, as a court of justice, had only an appellate, and no * Chartulary of Paisley, p. 191. APPEALS. 229 original jurisdiction. In later times, when we have a full record of the proceedings of Parliament, the judicial work was performed entirely by a com- mittee elected for the purpose — eledi ad causas et querelas — auditores causarum et querelarum,^ and a considerable body of the causes tried in that com- mittee during the reigns of James iii. and James IV., is preserved and published in the same shape with the Acts of the Parliaments of Scotland. It happened with us as in England, that although Parliament was looked to as the great judicial body of the kingdom, yet a Court of high authority continued to sit and act under the name of the King's Council, and for a considerable time appeals were heard and lawsuits determined by both these Courts — the judicial Committee of Parliament and the King's Council sitting at the same time — ap- parently often in the same chamber, and with the same clerks and oflScers of court. The actual judges were no doubt often the same, and I have seen traces of processes taken from the King's Council to the Parliament. A separate volume is printed of the proceed- ings of the Council and their judgments in civil cases during the reigns of James iii. and iv.,^ under the title of Acta Dominorum Concilii domini regis. 1 A.D. 1460-94. '^ A.D. 1478-1495. 230 COUKT OF SESSION. These concurrent jurisdictions and the want of trained lawyers in either Court, with the uncertain times of the sittings of both, led to the establish- ment of the Court of Session in 1532, which, be- ginning with great unpopularity, and deserving the condemnation that it met with at the time, has lived down that censure, and has become the worthy rival of the learned judicatures of England in their purest time. It is well known, says Daines Barrington,' that there is no legal argument which has such force in our courts of law as those which are drawn from the words of ancient writs, and that the Registrum brevium is therefore looked upon to be the very foundation of the common-law ; and he quotes for his authority Sir Edward Coke, who supposes that the Eegister of Writs is the most ancient book in the English law. Even without that, we cannot but look with in- terest upon these writs, which show us the earliest subjects of controversy, arid the original manner of obtaining redress in the King's Courts. Seen by the light of these original brieves, with their verdicts attached to them, we can better appreciate the value of those collections found in our old MS. law books, headed " Brevia," written as styles for use — styles, that is, for the royal precepts to form the foun- ^ Barrington, p. 126. BRIEVES. 231 dation of civil suits, and bring them into court. Our collections of styles of Breda have not been printed. Mr. Dickson has been good enough to make fine copies for me of the two most im- portant ancient collections from the Ayr and the Bute Mss. You will not expect me, in a lecture like the present, to give you a detailed account of these writs, the foundation of all civil process of old ; but let me try to convey to you some idea of the subjects about which men went to law in the old time ; and then see with what precision and in what nice terms the various proceedings are set forth. I pass by the common actions for compelling payment of debts, for compelling implement of contracts — the brieves of mortancestry, of novel diseisin, of recognition, of perambulation, brieves of partition, of ward ; and I come to one that was in constant demand, the brief de nativis et fugitivis, and you have the whole law to be drawn from the words of this brief. It runs in the name of the King, addressed to justiciars, sheriffs, provosts, and their bailies, commanding them that wherever the bailies or attorneys of I. de B., the bearer of the present writ, shall find his native and fugitive men — nativos et fugitivos homines — outwith the king's lordship, burghs and wards, who ought to be his. 232 BRIEVES. of law and reason — qui sui esse dehent de jure et ratione — of his lands, or of the land of K., that they shall have the said natives for inhabiting the said lands, and no one is to withhold them upon the King's full forfeiture. Observe, first, that the natives were to be nativi sui, or nativi de terra sua, as the English lawyers have it, neyfs in gross^ or nei/fs regardant, slaves to their master, or serfs bound to the soil. Secondly, the King's writ does not infringe the protection given by his own domains, his own royal burghs, or wardlands within which no man might seize fugitives on a general warrant. The next brief is not a commencement of law pleadings ; it is rather a stop to all such. It is a style of a royal writ, however, in common use. The King in the simplest terms declares that he has made R., who was his slave and native man — servus et nativus homo noster — a Jree man, a " Frank," as the emancipated villein in England loved to call himself. In the time of these venerable styles church- men still looked to the State and to the King's courts for recovering their rights, and even for enforcing the jurisdiction of the Church, In one of them the King commands his justiciars, sheriffs, and other officers to compel payment to church- men of the rents, duties, etc. — de redditibus cams, etc. BRIEVES. 233 In another the King commands his officers to imprison those in their bailiaries and burghs who have been for forty days or more under the greater excommunication by sentence of the bishop or official, despising the keys of Holy Mother Church, and to compel them to satisfy God and the Church. Another brief of the King commanded his civil officers to seize and to deliver over to their ecclesiastical superiors apostatizing members of religious fraternities. But while thus stretching out the civil arm to enforce the jurisdiction of the Church, our sove- reigns drew the line and boundary of that juris- diction. One brief, addressed to archdeacon or dean, prohibits them from entertaining in their courts a plea respecting a lay fee held of the King in capite, seeing that that belongs to the King's Court ; and a similar writ is directed to an abbot. The next writ is addressed to a bishop or his commissary ; and the King writes thus : " A. has complained to us that B. prosecutes him in the Con- sistorial Court before you, concerning a lay tene- ment — super hico tenemento — for which he does forinsec service — the cognition of which ought to pertain to our royal Court — wherefore we com- mand, etc. Next, in a similar cause, a writ is addressed to the lieges to compel the contu- macious prosecutor in the court of Christianity 234 . BRIEVES. to desist from his prosecution by distraining of goods, etc. We find all the initiatives of giving and taking and recovering seisin, of fixing the amount of dowry, terce and tutory, and we have others not now so well known. The King addresses his writ to the relatives and friends of B., commanding them to relieve him in the poverty into which he has fallen, and to free him from the fine which he incurred for the death of a certain person imputed to him ; " each of you according to that belongs to you — quantum ad eadem pertinet, as was the custom in the time of King David." Again the King commands his sherifi' to make inquiry whether A., the bearer of the present writ, from the inconsiderate heat of anger, and not by murthir nor forethod felony, killed B., and whether B. gave occasion to his death, and how far, and what were the circumstances. That and most of the brieves addressed to the sheriff were for making inquisition per bonos etfideles patrie non suspectos., and the first duty of the sheriff was to proclaim the writ in his court, and then to empannel an assize for trying it, and for making answers to the points of the brief I shall now lay before you the steps of procedure, which are minutely described in the brief of right PROCESS. 235 ■ — perhaps at one time the most common of all the brieves. First, within burgh, the brief is presented to the bailies in full court, which is opened in such manner that a small piece of the seal shall stick at the tag of the brief, so as to mark its authenticity. When the brief is formally read, the bailies shall order their Serjeant and a witness to go to the dwell- ing-house of the wrong-doer, and summon him to appear before the bailies on a day named, and to answer to the charge contained in the brieve. No other excuse for the defender's absence from Court on the day specified will be accepted, than that he is bedridden, or engaged in the King's service, or going to a fair ; and if absent from any other cause, the pursuer will ask the Court to give judgment in his favour. If the defender appears in Court on the day specified, the pursuer's counsel will challenge him thus : Thou defender who stands there, the pursuer who stands here says to thee, and I for his part, that thou unjustly deforces one rood of land [it is most minutely described], as the said brief of the King more fully bears. The defender shall answer : My Lord Bailie, the defender who stands here denies every word of the charge, and all the right of the said pursuer in the said subjects. The defender shall then ask sight of the brief, to be advised in the premises. 236 PROCESS. and on receiving it, he shall leave the Court and seek counsel. When he appears again in Court, he should as before deny the right of the pursuer, state his exceptions either to the brief or to the right of the pursuer, or he may demand to see the ground in dispute, or he may put off till a day and term to call his warrant. One brief in re mercatoria is remarkable, and it would be very important, historically, if we could fix more precisely its date. The King, addressing the great customers of a burgh, commands that any merchant arriving at their ports who can prove by letters of cocquet that they have paid the due custom in England, shall not be obliged to pay a second custom, and that so long as Scotch merchants have similar privilege in English ports. Take next two brieves in rural matters. By the first, which is entitled against " scabbeid sheep," the King directs the sheriff to inquire as to the existence of the disease called " pilsoucht " among sheep, and to slay forthwith those infected — to stamp out the pestilence, as we should say, and to allow none to be moved beyond their own pasture without special license. Another writ is a style of a royal precept for speedy justice against unfair fishing of salmon. It is general and summary enough. The King sets forth the destruction of fish by cruives through- out the kingdom, and commands the sheriff to CIVIL AND CHURCH COURTS, 237 destroy forthwith all cruives upon waters within his sheriffdom, and to permit none of them to be repaired. Everything was in favour of the band of lawyers — experienced, learned, zealous, not only for their own court, but to maintain the superiority of the spiritual power in everything. Everything was in their favour but one. Our Scotch kings, from William the Lion to Alexander in., maintained vigorously the jurisdiction of the civil magistrate, and even when that great race had gone, and when public feeling, as well as the prosperity of Scot- land, had been much lowered by continual war, some of our Stewart kings still acted upon the old tradition. I take an instance from a private charter-chest in the reign of James iv. A dispute had arisen between the Bishop ,of Moray and the Eoses of Kilravock about certain marches, which was submitted to arbitration ; and it would appear that the Bishop was proceeding to enforce the de- creet-arbitral in the ecclesiastical Court, when the King interfered in this manner : He sends a man- date to his sheriffs of the county, setting forth that the King was informed that the reverend father in God, Andrew, Bishop of Moray, tends by censure of Holy Kirk, and by force, to compel the opposite party to consent to the perambulating of the lands by certain pretended commissioners, without any 238 CIVIL AND CHURCH COUETS. brieves cognisable of the King's chapel, notwith- standing that the lands of the lay party were held of the Crown, and the sheriffs are ordered to cause the Bishop to desist and cease from such ecclesiastical procedure, and from any attempt to perambulate the lands except by brieves of per- ambulation of the King's chapel, under all the highest pains and charge that may follow. Nevertheless the Bishop, at his own hand, and in contraire to the command of the King's letters, persisted in acting In his own Court ; whereupon the King sends more peremptory order to the Bishop himself to cease from all troubling of the Boses, and from impediment making to them in brooking of their old heritage of Kilravock. Consider the amount of business arising from the proper jurisdiction of the ecclesiastical Court. The Bishop's official was the only judge in matters of status — legitimacy, bastardy, divorce. He was kind enough to take charge of the affairs of widows, orphans, and all personcs miserabiles — all questions of slander, all disputes between churchmen, the whole management of Notaries Public, questions arising upon covenant where the covenant was sanctioned by an oath (and vvhat covenant of old wanted that sanction ?), the large class of business connected wills, testaments, probates, executry — in a word,, of all moveable succession, and perhaps of succession CIVIL AND CHURCH COURTS. 239 in heritage, for there was a time when Scotch heri- tage could be left by will. In addition to all these you must take into account the business brought into their Courts by consent of parties, and add to that all the influence of all the notaries, the largest class of " men of business," as we call them, and who were all churchmen or dependents of church- men, and so preferring the ecclesiastical courts. I say, when you consider all this, you need not be surprised that the business in the OflScials' Courts of Glasgow, St Andrews, Edinburgh, was larger and of more importance than the business transacted in all the Sheriff Courts, where there were, you know, no lawyers, and greater also than the King's Council or the Judicial Committee of Parliament, with its occasional sittings, could ever have trans- acted. I told you that the Consistorial Court took care of the cases not only of the widow and the orphan, but of all the miserabiles personcB — all the poor who could not buy the help of lawyers. That is the foundation of jurisdiction in a fable of Henry- son's, which, with your leave, I mean to tell you, as the best account we have of the jurisdiction and form of process in the Consistorial Court. You know Eobert Henryson held office as teacher of the Abbey School in the great Monastery of Dun- 240 CIVIL AND CHURCH COURTS. fermline. He was not a churchman, or at least not in orders ; hut when you have listened to my fahle, you will not doubt that he had had some experience in the Consistorial Court. My fable is called « The Tale of the Dog, the Sheep, and the Wolf." i 1 See Appendix. LECTURE VI. RURAL OCCUPATION. The earliest information we have of rural matters is from the Registers of the great religious houses ; for the monastery was the great cultivator of lands as well as improver of the arts ; and the very oldest connected description of rural tenancy, rents and culture, is from a rental of Kelso, of 1290. The date is worth noting, because it shows us that the state of things described in the rental must have been put in shape and methodized before the end of that prosperous time, the reigns of the Alexanders. The monks had immense territories, which they still for the most part held in their own hands, in dominicOf and cultivated from their several granges. Their lands were measured in plough- gates, husband-lands, and oxgates, where the land was arable, and by the number of sheep maintained, where pasture. The oxgate, or what effeired to the cultivation of one ox, " where pleucb and scythe may gang," was thirteen acres, in the Merse and Teviotdale. The Jmsbandm or cultivator who kept Q 242 KELSO RENTAL. two oxen for the common plough and possessed two oxgates, had of course twenty-six acres, and that amount was called a husband-land. Four husbandi — neighbours — I think generally joint tenants — working their common plough, their whole posses- sion was a ploughgate ; that is, the quantity of land tilled by eight oxen, or 104 acres. These joint tenants were bound to keep good neighbourhood, and the rules were strictly enforced. On their land in the valley the monks reared oats, barley, and wheat, as their successors do. They got hay from their pasture-lands by haining (as we say) a portion of natural grass on marsh or meadow. You will observe that made a late hay harvest compared with our sown grass — for the ballad of " Chevy Chase " tells us the famous battle " Fell upon the Lammas tide When marchmen win their hay," They had waggons for their harvest, and wains of some sort for bringing peats from the moss and over-sea commodities from Berwick, which implies that there were roads passable for such carriages ; but indeed we have evidence of the existence of such roads in that country a good deal earlier, as early as the time of William the Lion ; and it is worth noting the mention of king's high roads in the time of the Alexanders, through all Scotland, from Berwick to Inverness, although it may be KELSO RENTAL. 243 doubted whether these were in all cases roads for wheel- carriages, or not rather in many cases only for horses, whether for saddle or pack-horses. At the date of the rental the monks had large flocks of sheep, as much as a thousand ewes upon one farm ; and there are careful provisions for shifting their pasture ground in summer and winter. Wool was the great produce of their estates, convertible into money. It does not seem that they sold either corn, sheep and cattle, or the remaining produce, the fish of their river. These particulars are gathered of a state of occupancy previously. But to come to the period of the " Rotulus reddituum " ^ itself, we find the •' grange," or farm-stead of the abbey, the chief house in each barony or estate. In it were gathered the cattle, implements, stores needed for the cultivation of their domain lands or mains, the nativi, serfs or carles who cultivated it, and their women and families. Some monk of the abbey occasionally looked after the grange, but the proper steward was a lay brother, or conversus, who dwelt there, and rendered his accounts to the cellarer of the monas- tery. Of the inhabitants of the grange the lowest in the scale was the naiivus, neyf or villein of the English law, who was transferred like the land which 1 A.D. 1290. 244 TBVIOTDALE HUSBANDRY. he laboured, and might be caught and brought back if he attempted to escape, like a runaway ox or sheep. Outside the grange, but near it, dwelt the cottars, cottarii, a class a good deal above that which we call cottars, for each occupant had from one to nine acres of land along with his cottage, for which they paid rent, although perhaps that word was un- known ; but they paid, nevertheless, some money and services in seed-time and harvest. Beyond the mains and the hamlet, or cottar town, lived each in his separate farm-stead — the husbandi, or husbandmen, holding each a definite quantity of land called a husband-land, and, as I have already said, four of these united their oxen to work the common plough of the ploughgate. As a fair speci- men of the footing on which the husbandmen held their land, I will tell you the rent and services due on the barony of Bolden. The monks had there twenty-eight husband-lands, that is, seven ploughgates, each paying 6s. 8d., or half a mark of money rent : four days' reaping in harvest — the husband with his wife and all their family ; one day carrying peats : the service of a man and horse to and from Berwick once a year. A horse-load was three bolls of corn, or two bolls of salt, or one and a half bolls of coals, or somewhat less in winter when the ways were bad. The husband- man was further bound to plough an acre and a KENT AND SERVICE. 245 half, and to give a day's harrowing with one horse ; to find a man at sheep-washing and one for sheep- shearing; to serve with a waggon one day for carrying home the harvest. All were bound, as primary duty, to carry the abbot's wool to the abbey, and to find carriages across the moor to Lesmahago. The service, and I daresay the rent also, were heavy enough ; but then, as in England still, the Church was a fair and merciful land- lord. It is worthy of remark that no farm service is imposed on women except harvest work, and also that all services at the period of the rental were in process of being commuted for money-rent — a remarkable step of progress. The writer of the Rental speaks of the vestiges of an ancient practice which he calls stuht, plainly equivalent to our ancient practice of steel-bow} The rental which I have been using was the title by which the abbey levied its rents, and by which its husbandmen or tenants held their lands. They were the kindly tenants of the Church lords, and had many privileges, as well as a certain fixity of tenure. ^ A custom described by Lord back to Anglo-Saxon times, and Stair as "goods set with lands even its name is not peculiar to upon these terms, that the like Scotland, but is found in the number of goods shall be restored eisern vieh of Germany, and the at the issue of the tack." I hede de fer—bestia ferri — in think the practice can be traced French and old Latin. 246 ABBEY VASSALS. A tenant of a superior class held his land by charter and seisin ; he held it in perpetuity, and could not be ejected. His tenement was small, and he gave services and a rent by no means elusory — sometimes paying for half a plough eight shillings of money-rent. Above these, again, the great Church vassals held a place only second to the barons and freeholders of the Crown. Their tenure was in a manner baronial, though holding of the abbey. They held their lands free of all predial service, and had the abbot's license to hold courts of bloodwit and byrtliensak — assault with bloodshed, and theft which the thief could carry off on his shoulder, and petty causes. They had " merchet " for the marriage of their vassals' daughters, and paid to the abbot merchet for the marriage of their own. In the very earliest of the charters of the abbey, long before the Rental that I have been quoting to you, we find grants concerning mills, minute regu- lations for order and precedency at the mill, and a strict thirlage established. At the period of the Eental the mill of Bolden, with its thirlage, was rented at eight merks yearly. Four brewing-houses were let for ten shillings each, and were bound to supply ale to the abbey at the rate of a gallon and a half for a penny. Each fire-house of the barony paid a hen at Christmas, which was worth a halfpenny. Although a money rent is more apt to mislead BRIDGES — PUBLIC BURDENS. 247 US than payments in produce and services, yet it is worth noting that the lands of Abbots-Selkirk, a plough and a half of land, had given ten merks of silver rent. Alexander ii. granted to the monks the land held by Richard, son of Edwin, on both banks of the Ettrick, for the maintenance of the bridge, which may have been of timber ;^ and such a grant serves to mark the civilisation and progress of the period. There are other bridges noticed over smaller streams, some of them in the middle of the thirteenth century, stated to be of stone^ and all of them calculated for the passage of heavy waggons and carts. An inquisition held at Bolden in 1327, for de- termining the boundaries of the ploughgate of land in Priestfield, found that it was part of the territory of Bolden, and was given to be held by four hus- bandmen, and that it was wont to find one man at arms, who ought to be the captain of thirty bowmen — architenentium — found from the barony of Bolden, for the king's army.^ As with Priestfield and its barony of Bolden, the other tenants and vassals of the abbey were no doubt bound to relieve the monks of the military and other public services. The wealthy abbey and its monks, themselves employed in agriculture, and enlightened land- 1 Kelso, No. 395. ^ Kelso, No. 471. 248 EARLY LEASE. holders, have probably left us the best specimen of the tenures, rents, services, and general condition of the agricultural classes of the best period of our national prosperity — for Scotland had never been so prosperous as under William the Lion and the two Alexanders ; but we find marks of some methodical arrangement of estates and rules of cul- tivation soon after the date of the Kelso Eental. The earliest lease of lands approaching to what we call an agricultural leafee that I know, is a con- tract between the Abbot of Scone and the Hays of Leys — neighbouring lairds, not properly of the class of cultivators or agricultural tenants. The lease is more remarkable as containing perhaps our oldest specimen of Scots in interlined glossings or translations of its terms ; but it is also of some im- portance for our present purpose. The date is 1312 — two years, you see, before Bannockburn. The abbot sets the lands of Balgarvie with all their pertinents, and by the same boundaries by which husbandmen — husbandi — used to hold them inferme. The lease is for thirty years, the rent at first two marks, rising a mark per annum for six years, six marks from the sixth to the twelfth year, eight marks from the twelfth to the twentieth year, and ten marks from the twentieth to the thirtieth year. The Hays themselves are to give smt—facere sectam LEASE OF BALGAEVIE. 249 — in the three head Courts of the abbot yearly ; and their husbandi, the re,al cultivators of the soil, to give suit at all the abbot's Courts in the barony of Scone. The Hays are bound to the mill of the abbot, and to pay the twenty-fourth measure for multure, besides knaveship. The husbandmen and their cottars are to pay the sixteenth measure of all kinds of corn for multure like the other hus- bandmen and natives — husbandi et nativi — of the abbey, and to take their share in the making and upholding of the mill. The Hays are to do the king's military service, and to bear all the other burdens of the land during their term. They and their men dwelling on the land are to have fuel from the common for their own use only, and which they may neither give away nor sell. Small quarrels emerging between the Hays and their men are to be decided among themselves ; but greater disputes, such as belong to the lord, are to be reserved for the abbot's Court. The covenant concludes with two remarkable provisions : — (1.) That if it should happen that the King revoke his gift of the land from the abbey, the Hays and their husbandmen shall quit without payment of their rent of the year of their quitting; (2.) The Hays are to make suitable buildings for themselves and their husband- men, which are to be so left at the end of their 250 RENTAL OF BISHOPEIO OF ABERDEEN. term. There is here no prohibition of sub-letting, as we find in similar covenants, which prohibit sub-tenancy — exceptis cottariis. The next Rental I have noted is that of the Bishopric of Aberdeen, dated 1511 — perhaps the most intelligible and consistent of these old rentals, but I have no time to describe it. A large part of the Bishopric's revenue seems to have been derived from the parish of Clatt, situated in the western extremity of the Garioch. The conditions on which Eobert Blak held the haugh of Bolgie are very instructive, and might furnish a lesson to many a landlord in our own time. He pays only twenty shillings for a ploughgate of land, and it is declared that he obtains it at such a low rate because the lands have but lately been reduced to culture. He is bound, however, to build three outsets, which must be inhabited by himself or his depend- ants within a time specified, and, failing in that condition, he loses his tenure. The lands of Clatt were divided into ten tenements, each consisting of little less than three ploughgates of land. The number of tenants was about forty, so that each tenant held on an average about five oxgates of land. Most farms were held by several tenants in joint tenancy. The average rent of a ploughgate may be thus stated : — £3, 7s. 9d. in silver maill, the grassum generally one year's rent; Is. 8d. for ABERDEEN RENTAL. 251 bondage (pro bondagio, meaning commuted services), one firlot of oats, one firlot of malt, one firlot of meal, a quarter of a mart, one mutton, a quarter of a kid, five capons, seven domestic fowls, four muir fowls, along with a pig from the mill, and two stones of cheese from one pastoral holding. Fethirnyr, another division of the lands of this Bishopric, shows the conditions under which sub- letting was permitted on this great estate. A crofter was bound to build one rood of the fold for every cow which he had in the town of his master. The tenants were answerable for the conduct of their crofters in the grazing of their cows, and in other things that belonged to good neighbourhood. There were fourteen crofters or sub-tenants on this hold- ing, besides the tenants proper. The average rent payable by each crofter is 9s. 9d. in silver maill, one firlot of barley, ten fowls. No grassum ap- pears to have been exacted from these small holders, and so we may safely infer that they were tenants at will. A profitable source of revenue in this barony were the mills, which paid a rent often as high as £4 each. As an example of the tastes of the clergy, overlords, we find that the forest of Glenrinnes was not let out like Keithbeg, of which it was a part, but was reserved, along with its foggage, " to my lord" — no doubt for my lord's rural enjoy- 252 ABERDEEN RENTAL. ment or sport. The tenants were bound to build houses on their farms ; and in two cases they were allowed to retain and apply part of the rent for that object. A very common service which was performed by the tenants in the district of Birss was the carriage of wood, indicating the abund- ance of wood in that quarter. Good neighbour- hood is stipulated on the part of the tenant, under forfeiture of his right. This was rendered more necessary by the system of common and joint hold- ings — running, we may believe, often into " runrig," that fertile source of quarrels among cultivators of the soil. The foggage of the Bishop's forest of Birss, that is, I suppose, both its pasture and game, is let along with a good many farms adjoining to a neighbouring gentleman, at a rent which was probably below the value. We should judge so, if from nothing else, from the circumstance of the tack being set with the solemn consent of the chapter ; but this might apply to other questionable terms of the lease, which was granted for nineteen years — apparently much longer than the country practice, and which included sub-tenants and as- signees.-' A curious item in these payments in kind is the return made from the farm of Dulsak. Finlay Reauch, the tenant, pays evidently at his entry a grassum of 26s. 8d., and a rent in silver maill of ' The tenant was a kinsman of the Bishop — Elphinston of Selmys. ABERDEEN RENTAL. 253 26s. 8d. ; besides, he is bound to furnish four dozen plates, four dozen dishes, four dozen salvers, eight lie chargers, and four great basins.. These utensils he is bound to manufacture of dry wood, and not of green wood, under pain of the forfeiture of his right. Mr. Eeauch evidently exercised the trade of a mugger. His wares were turned, but not the " beechen bowl ": — they were probably of birch or plane. I fear the old manufacture is extinct. On the lands of Fetternear (on Don side) the meadow and hay — pratum etfenum — are reserved to the bishop, and the tenants of the lordship are bound to guard them from all animals, whether their own or others, from Easter to Michaelmas ; and when the hay was cut, they were to win it and cock it, and my lord was to pay only for the cutting of it. The forest and fishing of Fetternear were reserved for the bishop in like manner. The fish- ing reserved would go to show that the cruives on Don were not an absolute impediment to the salmon in those days. The bishop was lord of the forestry of Birss, from which he drew some money rents and a little corn ; but some part of the parish was then, as now, covered with growth of natural wood ; and the bishop has from many of the farms six loads of wood, ses onera lignorum^ which, I think, means logs 1 Horace used the same word (I Ep. xiv. 42). 254 FORBES RENTAL, or billets for the fire. The tenant of the foggage of the forest pays four bolls of nuts, small hazel nuts, which are still produced in those glens, and are much in request at all the village fairs. The next definite description that I have met with of rural tenures is after no long interval. There is preserved in Lord Forbes's charter-room a rental of the old Forbes property made up in the year 1532.'^ The land here also is divided into ploughs, each of eight oxen. The ploughgate of land is sometimes let to four tenants, each of whom contributed the work of his pair of oxen to the common plough. These joint tenants were bound to keep good fieighhourhood, that is, to perform their respective shares of the farm labour at the sight of umpires called " birleymen," chosen by themselves. Let me say something of this rural officer chosen by the people. I think he is not yet extinct in some Northern districts — ^not forgotten anywhere in Scotland. The birleymen were the arbiters — the referees in rural differences — between tenants of the same estate. The settlement of the rights of outgoing and incoming tenants, of the value of meliorations, and all such matters, was in their hands for the most part ; and in the old time, to dispute the award of the birleyman left a stain on a man's character. The rent is sometimes in money, ^ Forbes Rental, 1532. FORBES RENTAL, 255 but more frequently in victual. The Castle-hill of Druminnor — a plough of land — a situation not favoured by climate, if I remember — ^is let to four tenants for forty bolls victual. The farm of Buthny, in the parish of Forbes — one plough — is let for thirty-eight bolls victual. One plough of Kirktown of Forbes — you will find the terra ecclesiastica often the best land — was let to two tenants at a rent of twenty-seven bolls one firlot common victual, and four bolls wheat. Sillavathie, containing two ploughs, and let to three tenants, is rented at fifty bolls of victual. Four ploughs at Carndard are let for a money-rent of £8, 18s. 8d. One plough of Cushny is let for a money-rent of £2, 4s. 8d. In the parish of Forbes, the farm of Logic, containing two ploughs, and divided among four tenants, is rented £6, 13s. 4d. Stralouing, two ploughs, is rented at £8, with a grassum of £8. In addition to these rents, whether payable in kind or in money, there were somewhat heavy custom dues, a wedder or two, many capons and poultry, leits of peats, and for the mill, swine, swine and geese, and certain services, such as three days' ploughing of all the strength. You will find over the whole rental that the average rent in victual is 32 bolls for every ploughgate, and the average rent where in money varies from £2 to £3. Let me observe that in this rental there is no 256 GORDON RENTAL, 1600. appearance of a servile class. The nativi had before this time, all through Scotland, been enfranchised or absorbed into the free population. Like other ancient possessions, they were still found in the lord's charters, but the last process which I have met with for claiming a neyf, was in the Court of the Sheriff of Banffshire in 1364, when Alexander, Bishop of Moray, having sued out a brief from the King's chapel, obtained the verdict of an assize, finding that Kobert, Nevyn, and Donald were the natives and liege men of the said Lord Bishop and the Church of Moray, and his property.^ After another considerable interval, we have a very minute account of the management, tenures, and rents and customs of the great estates of the noble family of Gordon in the northern counties.^ Beginning at the Enzie on the Banff coast, the Gor- don territory at that time, went in a broad stripe through Strathbolgy, Strathspey, Badenoch, and Lochaber to the west sea. This rental shows us the agricultural holdings — very often about two plough- gates each — set to eight tenants in joint occupancy, each holding two oxgangs, and contributing two oxen to the common plough. The payments, like the labour, were in common. 1 Eegistrum Moraviense, p. 161. villains in one 2^atwo Eahendo. In England the lord could not ^ (jordon Kental, a.d. 1600, prosecute for more than two Spalding Club. GORDON RENTAL, 1600. 257 A very small sum was paid in money, distinguished as maill or siker-maill. Next come certain bolls of oatmeal and bear, which is always distinguished as ferme — that is, the real and solid part of the rent, producing on a barony of moderate extent such a quantity of oatmeal and bear fit for malting as to require distinct barns for holding the lord's share. Under the head of "customs" are included several commodities in small quantities. These are gene- rally a mart or ox to be killed at Martinmas, two or three wedders or muttons, as many lambs, grice or young pigs, geese, capons and poultry, chickens, eggs, and almost universally the ancient tax of a reek hen, or a hen for every fire-house. A very little tallow is paid from the alehouse of the barony, and there are customs of butter and cheese in very small quantities. Besides these commodities for the kit- chen, the low-country farms often pay a few ells of cloth, not of wooly but linen cloth of three-quarters broad for my lady's napery. I observe it might be commuted at ten shillings an ell. Let me give you a few specimens of the rental. The farm of Wttingstone in the parish of Dunbe- nane in Strathbogy was set for five years from 1600. It consisted of two ploughs, and was held by three tenants, one of whom held eight oxgangs, and, the other two each four oxgangs. They paid a ferme victual of 4 chalders, 8 bolls, and 12 bolls custom 258 WEST HIGHLAND TENANTS. meal, 4 wedders, 2 dozen chickens, a reek hen. for every fire-house, and a leit of. peats. Take another farm. Kirktown of Cabrach, measuring one plough of land, was set for a money- rent of 40 pounds maill and 2 stone of butter ; no ferme is payable from this tenancy, and the Cabrach is still better adapted for dairy than corn culti- vation. Now to notice a much wilder country. In Lochaber the tenancy is measured in marklands. Mamoir in Lochaber measures 40 marklands, and every markland pays to my lord " tua markis." The land is possessed by Allan Macolduy. I suppose he is the head of the clan Cameron — the Locheil of his day. Gargavach consists of 40 marklands, but it pays only 40 marks. Glenavis is a ten markland, and pays only ten marks ; but I think these rents cannot be taken as the value of the holdings, but probably as some remainder of an old compact between the Gordons apd Camerons. In Badenoch we have again the measurement by ploughs. Kingussie Beig was four ploughs, and paid yearly £5, 6s. 8d. of money maill ; and of custom two marts, two wedders, eight poultry, each tenant (the number not given) paying a kid or a lamb, with " areadge and careadge " and due service. I observe through all the lordship . of Badenoch HUNTLY AND ENZIE. 259' a small money-rent, which I told you was not the case so commonly in the low country. Even now the harvest is very uncertain in Badenoch, and the landlord chose to have the cattle produce in money, except such marts as he could consume himself. The most prominent items in the rental of the lordships of Huntlie and Enzie are the silver maill and 'ferm victual, — Huntly paying yearly in silver main a sum of £1777, 3s. and of ferme 'victual 2385 bolls. Enzie, making a return yearly of £462, 16s. 8d. in silver maill, and of ferme victual 968 bolls, 2 firlots, 2^ pecks.. From the lordship of Badenoch, a rent of £261, 2s. lOd. was obtained,, while only 173 bolls of ferme victual seems to have been paid, and that from one parish only, Skearalvey. A large quantity of bear was paid in multure in the lordship of Badenoch, and stands a fair comparison with that derived from the lordship of Huntly — the former returning 185 bolls 2^ pecks ; the latter 218 bolls, 3 firlots. Wheat is to be found only once in this rental. It formed a small item in the return made as ferme victual by the lordship of Enzie. Badenoch being a pastoral country, makes a great return in marts, the number being 92f . Huntly comes next, its number being being 42f, and Enzie last, the number being 21^. Huntly again makes a return of 1671 g^'yse — the other lordships making no re- turn in this species of revenue. Capons, geese. 260 HIGHLAND AND LOWLAND. poultry, chickens, and eggs also form a consider- able item in the revenue, more especially in the lordship of Huntly. In the lordship of Enzie a quantity of brew tallow was paid. This duty seems to have been specially exigible from alehouses, one- of which appears to have been attached to every farm in this lordship. But to enable you to judge more definitely of the diflFerence in rents between a Highland and a Low- land country, I shall take as good specimens the parishes of Kingussie and Bellie. In the parish of Kingussie there are altogether 23 holdings, each generally held by several joint- tenants. There are 73 ploughgates, 4 mills, with their crofts, and the return is as follows : — Maills in money, . £110. Multer, . 73 bolls 2 firlots Ferme, . 173 bolls. Teynd, . 8 bolls. Marts, . . • 331 Mutton, , 33^ weddersi Lambs or kids, 22. Capons, . 12. Poultry, • ■ 146. Butter, . 1 stone. Cheese, , , 2 stones. You may take a rough average of the rent of KINGUSSIE AND BELLIE. 261 this parish per ploughgate — the ploughgate being the work of 8 oxen, that is equal to eight times 13 acres Scotch, or 104 acres. Taking the average, then, in the parish of Kin- gussie, every ploughgate paid as follows : — £1, Is. Id. of silver maill ; one boll of multure ; two bolls, one firlot of ferme ; two pecks of teind ;^ half a mart ; a third of a lamb ; one-sixth of a capon ; two poultry fowls ; also a small portion of butter and cheese, and everywhere " areadge and careadge and due service," which I can only explain as the carriage required for my lord's house, and the agricultural service at seed-time and harvest. Turning now to the parish of Bellie, which is in the lowest part of the lordship of Enzie, I have summed the whole of the farms, and the diflFerent items exigible from the tenants in the name of rent, and I find there are about thirty ploughgates in this parish, and the aggregate rent may thus be stated : — Silver Maill, . . £72. Ferme victual, . 590 bolls, 2 fir., 3 pecks. Multer bear, . 39 bolls, 2 firlots. Marts, . . 8f. ^ Here you will observe a small! veying to him the whole parson- payment under the name of age and vicarage teinds of his teinds. I do not know the state estate at a fixed rent, and he of the Gordon investitures at that levied the amount, no doubt, time, but I suppose the Earl of somewhat increased from the Huntly had a tack of teinds, con- tenants, but commuted or fixed. 262 PARISH OF BELLIE. Muttons, 54|. Lambs, 39i. Swine, 4. Capons, . 259. Geese, 44^. Poultry, 283. Chickens, 136. Eggs, . . 1044. Tallow, 17 stones. Custom linen. 141 ells, 5 nails Salmon, 40 barrels. You will keep in view that in this parish the rent is not derived from land alone — ^by far the largest item of silver maill being that derived from the fishing, and that the mills, of which there are six, with their respective crofts, and the alehouses, ten in number, contribute a proportion of the cus- tom exactions. By taking, again, the average rent of a plough- gate, including the rent paid for mills and alehouses, the result may approximately bQ thus stated : — £2, 8s. of silver maill; twenty bolls of ferme victual ; one boll and a half of multer bear ; one-third of a mart ; two wedders ; one swine ; eight capons ; one goose ; nine poultry fowls ; four chickens ; thirty eggs ; half a stone of butter ; three ells of custom linen ; one barrel of salmon. BELLTE. 263 You will remember that we calculated £1, Is. Id. to be the average rent of a ploughgate of land in Kingussie, whereas in the parish of Bellie the same measure of land paid £2, 8s. This difference in rents between the two parishes can only be accounted for by supposing that the patriarchal relation be- tween the chief and his clansmen counted more in Kingussie than in Bellie, or that the two districts were in different states of agricultural iniprovement and occupation ; or, again, that the lands of Bellie were twice as productive as those of Kingussie — which is the most probable reason for the difference of rents. The fishings of Bellie pay a rent of £323 in silver maill. One does not expect to find the fishings of a small north country parish yield four and a half times more in silver maill than the revenue derivable from the land. But the cruives of Spey are in Bellie, In all that vast estate reaching from sea to sea, and across ranges of mountains — now everywhere pastured by sheep and cattle — there is no payment of wool or woollen cloth, nor of hides or skins, nor any amount of sheep and cattle, beyond the occasional mart or wedder for the lord's table. In fact there were at that time no cattle or sheep reared in large flocks and herds in our Highlands. The space and pasture were the same as we know them now, but the thousands and millions of sheep 264 CATTLE AND SHEEP. which graze them now had not yet taken possession. The first introduction of large flocks of sheep into the Highlands was in the last quarter of last cen- tury. Gough the antiquary, writing in 1780, says that Mr. Loch's plans for introducing sheep had been " attended with some success," and that the sheep promised to thrive very well in the High- lands. But at this time — 1600 — there was nothing but the petty flock of sheep or herd of a few milk-cows grazed close round the farm-house, and folded nightly for fear of the wolf or more cunning depre- dators. You will observe in this rental, over a wide district of the north, and sufficiently low in the scale of cultivation, we find no difference of degree or rank except indeed what arises from the size of the farm, and except where we run into the country held in the old patriarchal manner by the chiefs of clans. I have told you elsewhere of the injustice wrought by turning these chiefs into feudal barons. Here I think they seem to have consented to hold their own possessions under the new lords for a rent. The lordship of Lochaber, as I have already told you, is thus rentalled : every markland pays to my lord two merks, and the forty markland of Maormor is noted as possessed by Allan Cameron, Macconel dhui. BKUMMOND ESTATES. 265 The length of lease is generally five or six years. In cases where the old wadset was redeemed, a lease was granted of the lands for nineteen years. I need not tell you that the nineteen years' tack, now so common, was intended to define a twenty years' possession, and to avoid questions ahout the moving of the tenant, and the right to the way- going crop. With these short leases of five or six years was joined a system of grassum, or what the English would call ^ fine for renewal. The rental of the Gordon estates indicates rather than expresses that the land was mostly cultivated by recognised sub-tenants. But it tells us nothing of the different ranks and classes of these. We learn something of this at a later period from another source. After the storm of last cen- tury had banished some of the great proprietors of Highland districts, and their estates had come to the Crown, it became necessary to inquire into the state of the population. It happened that, in 1762, the factor upon the Drumraond estates in Perthshire had made some extensive clearances, removing and ejecting the inhabitants of the glens. This produced a remonstrance from the poor people, who had influence enough to have their case considered, and the factor was required to make a report upon 266 DRUMMOND ESTATES. the condition of the agricultural people and their tenures. It gives additional interest to the cor- respondence between Mr. Campbell and the com- missioners on the annexed estates that Lord Kames, himself no mean agriculturist, took an active part in it. I have not time for the details of that cor- respondence, but the factor's report gives us definite information of the following classes of inhabitants. After the tenants holding by lease, and the common class of sub-tenants, he enumerates : — 1. A Bowman, whom he calls a hired servant of the tacksman. But we know better from other parts of the country that the bowman was, or I may say still is, a person who farms for a season the tenant's milk-cows, and the pasture to maintain them. 2. The Perth factor next mentions Steel-bowman, a class of tenants who received stock and cattle along with their farm. The practice is still well known in other districts, and I do not think it necessary to dwell upon it. The system of steel- bow could only come into use when the agricultural tenant, as a rule, had no capital. 3. A Pendicler, according to the factor, is one who has a certain small quantity of grass and corn land. The tenure is sometimes from the proprietor, sometimes from the tenant, and accordingly he pays' his rent to his landlord. STRUAN POPULATION. ^67 4. The Colter paid for his cottage and bit of land in services and a little money. He had no work cat- tle. The tacksman under whom he sat ploughed and harrowed his ground, and carted his dung to the field, and for the most part carried home his peats. 5. The Crofter nearly resembles the cottar, but his arable land does not change like the cottar's, who was moved about at the pleasure of the tacksman. So too the crofter dififers from the pendicler, for the crofter's cattle are herded and pastured along with those of the tacksman, at least in summer and harvest. A dry-house Cottar is one that has neither corn, land, nor pasture — nothing but his cottage and kail-yard. Let us add to the statement of the Perth factor some information derived from a report on another Highland estate similarly situated. The estate of Eobertson of Struan, forfeited after the '45, lies, you' know, all around Loch Eannoch, a district separate and then almost inaccessible for all but a Highlander. A rental of that estate was made up in 1755, from which we have some important re- sults. There were on the estate 138 tenants in all. The aggregate rent payable in money was £448, giving an average you see of about £2 (but you will observe that now the factor counts in sterling money). 268 STRUAN. The other payments in name of rent were : — 39 wedders ; 87 pecks of corn ; 46 thraves of straw ;^ 12 stones of cheese ; 6 stones of butter ; 12 veals ; 80 long carriages ; 288 loads of peats ; 9 days of casting and leading peats. All which customs and carriages are stated by the factor to be convertible into money at £26, 7s. He values the wedder at 3s. 4d.; the veal at 3s. 4d.; a thrave of straw at Is. lOd. ; a load of peats at three half- pennies, each long carriage at Is. lOd. ; each hen and cock at 3^-d. From the factor's report we gather that most of the inhabitants had a right of common pasture, and that there were constant quarrels about the number kept by each, which the baron-bailie referred to the adjudication of the birleymen of the district — you see how far the Saxon institution had penetrated into the Highlands — who fixed the number of cattle and sheep in proportion to the soumes (soum — a cow's grass, or equivalent) : thus, a cow is one" soume ; a horse or mare is two soumes ; six (big) sheep counting one soume ; a three-year-old cow at May-day to be regarded as a big cow at the Martinmas following; a three-year-old horse or filly at May-day to enter to be one soume, and if kept after the Michaelmas following to be two soumes. Every two-year-old wedder to be looked '■ Thrave = 24 sheaves. SOUMING AND KOUMING. 269 upon as a big sheep at the Martinmas follow- ing.! I think it appears plainly that a large part of the population of the Highlands had no written tenures, and it suited the factors of those days — the Bailie Macwheebles of the time — to represent and to treat those immemorial occupants and dwel- lers on the land as holding at the absolute will of the first chief who was knowing enough to obtain a Crdwn-charter. I am afraid it results also that the population, at least of the Struan glens, far exceeded what the country could support with its own produce, or honestly. The power of the chief or laird was measured by the number of men he could turn out under arms, and he had every inducement to maintain the full number of dwellings and inhabitants. In sum- mer the people of the glen might exist upon the produce of their pasture lands, and there was a little corn for the beginning of winter, but for the rest of the year they must necessarily have sought ^ I copy from the old Statisti- district, parish, or estate, having cal Account of Bedrule a good been thereby entitled to soum or explanation of souming and pasture on the outfield in sum- rouming : — mer, in proportion to the number " It seems probable that the and kinds of cattle he was thus land outfield in many places was able to roum or fodder in winter occupied in common by the pro- by means of his share of infield. prietors or tenants in a certain land." 270 OLD EXTENT. sustenance elsewhere. They could not dig — to beg they were ashamed. There was a third alternative, they left their glens and lifted. We find in these rentals indications of the Old Extent and its relation to the actual rent and value of the land. A plough of land consisted of 8 oxgates or 104 acres. This we found to be the measure in the Merse and Teviotdale, and it applies very well to the shires of Aberdeen, Banff, and Moray. Now a ploughgate of land is found to have been r entailed in the old extent (which is nothing else but a rental of the times of the Alexanders) at three marks or forty shillings, a,nd in this I think we have the foundation of the old county qualifi- cation throughout Scotland. A proprietor of a ploughgate held of the Crown had a vote for a mem- ber of Parliament, and that is expressed in parlia- mentary language to be a forty-shilling land of old extent. Observe the forty-shiUing land is the same as a three markland ; but knowing that a forty-shilling or three markland is a ploughgate averaging 104 acres, we find that a markland ought to be on an average 34f acres. The money measure of land established by the old extent of the Alexanders over all Scotland,, or DESIGNATIONS OF LANDS. 271 else some other money valuation and measure of land, was for some reason more used and longer preserved on the Western coast than in the more agricultural part of Scotland. I have shown you how, at the very turning of the declivity from east to west, in the great Gordon territory, and just where wind and water shears, you come from land designated by ploughgates and oxgangs to lands designated in merklands. Various reasons will sug- gest themselves for the difference. Among others it may seem that some agricultural enterprise was already at work by which arable land was increas- ing in great arable districts, and when such im- provements had rendered the old rental of Scotland no longer available, the landlords and tenants were driven to a measurement available in all situations, and suiting itself to the amount of cultivation. A Davach is somewhat more diflBcult of explana- tion. It was a measure of land known chiefly over the north-eastern counties. In the earliest char- ters of the bishopric of Moray, a very great num- ber of the parishes of the diocese are described as haying a terra ecclesiastica or kirkland of half a davach in extent. I have tried to ascertain the extent and average value of these church lands, but without success. In a cultivated country, long subsequent rents or valuations helped but little to ascertain a term of ancient measurement. I wish I 272 DAVACH. could submit an etymology for the word satisfactory to you or to myself. But it has happened here as in other cases, my Gaelic oracles give no certain sound in the matter. My friend the Eev, Dr. Eeeves has spared no trouble, and has brought into the field two great Celtic scholars, Mr. Stokes and Mr. Hennessy. I myself naturally lean much on Mr. Skene, but whether the word ' davach' has reference to some certain number of oxen for pasturing the land or for tilling it, or finally to be paid as rent for it — or whether it means a vat or certain liquid measure by which the produce of the field or the lord's proportion of the produce is to be measured — I am not yet in a position to assert with any con- fidence. So situated, I beg to leave here the etymology, and to give you in a few words instances that seem to me to settle the meaning and extent of the word * davach.' On the 4th October 1381, in a court of Adam Bishop of Aberdeen, held at the Chapel Mount of St. Thomas the Martyr, beside the canonry of Aber- deen, for the production of charters of tenants claiming to hold from the Lord Bishop and the church of Aberdeen^ — one of the tenants, Bernard de Cargill, undertook to produce his charter show- ing how he held the lands of Cloveth from the Bishop and the church of Aberdeen. > Aberd. Eeg., vol. i. p. 135. BAVACH. 273 The Bishop's lands of Cloveth, which had been given by Malcolm Canmore in dower to the church, according to the evidences and registers of the church, are entered in these registers as half a Bavach. In the Bishop of Aberdeen's rental, dated 1511, the same lands of Cloveth are entered as two ploughs. It seems to follow that the lands of Cloveth, of the extent of half a Davach, consisted of two ploughs, and that a whole Davach would be equal to four ploughs. Such is the guidance of record. That the understanding of the country was the same, appears from a MS. account of the Scottish bishops, pre- served in the library at Slaines, and which, though without date, can be ascribed without much doubt to the year 1726. That MS., evidently the work of an intelligent churchman of the district,^ contains this account of the valley of Huntly : " Strath- bogie^ was of old divided into forty-eight Davachs, each containing as much as four ploughs could till in a year." The " Aucht-and-forty Dauch of Huntly " is still spoken of in the north, and by the natives of the district with affectionate remembrance.^ 1 Antiquities, Shires, vol. iv. ^ Antiquities, Shires, vol. ii. 164. 460. We are indebted for its ^ At farmers' meetings in our publication to the late Joseph own time a favourite toast was Robertson. " The auld aucht-and-forty I " S 274 MAEKS OP ANCIENT TAXATION. We have now little of the old interest in Old Extent, hut it may he well to remember that a cen- tury ago, and down to the year 1832, territorial taxation was the basis of our elective franchise, and that claims and objections to that qualification called forth the greatest exertions in our courts, and also helped to raise among us a race of men of business thoroughly learned in election law, and in feudalism and all the legal antiquities which enter into it. In seeking for evidence of an ancient taxation of Scotland, Mr. Thomson thought that the earliest marks of it were to be found in the terms carrucata terrcB, hovata feme, which are met with in writs of the twelfth century (Mr, Thomson says, the eleventh century), but I am unable to follow my master in that supposition. These measures — ploughland, ox- gate, seem to me to be the natural divisions which would be adopted as soon as agriculture was intro- duced or any transactions took place regarding occupation of land, I cannot connect them — the ploughgate, the oxgate of land — by any necessary link — with taxation. It may be somewhat different with the money designations librata, marcata, denariata terras — these seem to explain at any rate a fixing of money value and perhaps of money payments, to definite portions of lands, but were these payments of the nature of a tax, or were they of a methodized rental ? We MONEY DENOMINATIONS OF THE WEST, 275 have them hack so old that they can scarcely have been prepared for the allocation of any general national tax known in our history. But whether these money measures, which have stuck so fast in the memory of the people, were extent or valuation with the view to tax — or valuation or appraising for the purpose of claiming a rent, is a difficult question, and now only of historical importance. As a problem of history — perhaps the oldest problem of our history — it would be of great interest to ascertain when and by what authority, by what masters — political masters, or territorial — the western half of Scotland, the wildest shores of our Highlands, and the wildest islands, were measured and valued in marklands, shillinglands, pennylands, farthinglands, long before money — coined silver — was generally used or known as an element of rent, on the other side — the agricultural side of Scotland. The popular belief (opposed to Mr. Thomson's theory) is, that these are marks of an ancient terri- torial rental, not connected with national taxation. The people attribute them to the mysterious great lords, whom they know only by name — the Somerleds and Torquils, whom, so far as I know, they believe also to have been their own leaders and patriarchs. I do not like to build upon tradition, but this popular belief may be in part correct, if we examine it by the light of history. The northern chiefs, the pirate 276 RENT OR TAX. Jarls and Kings, who swarmed down our west coast in the eleventh and twelfth centuries, and who were absolute masters of the Western Isles — choosing Isla, the most fertile, for their dwelling-place — while cousins or brothers of theirs, or at any rate men of the same lineage and customs, grasped the northern islands of Orkney and Shetland — those Norse chiefs were indeed the territorial lords of those wild and wide possessions, and as such had an interest, if they had intelligence and knowledge of affairs enough, to lead them to establish fixed rentals of their lands. But then those great landlords were also independ- ent princes, hardly acknowledging any sovereignty in their own Norse Kings, and certainly none in the King who ruled Lothian, Fife, and Forfar, and claimed some shadowy authority over the mountains and islands of the west. Now while these lords necessarily levied rents on which to live, they required also payments in respect of their position as princes. Every warlike expedi- tion, every piratical cruise — and both enterprises came as often as summer came — required a fleet of galleys or birlins to be manned and provisioned, and some valuation, or arithmetical arrangements for apportioning these burdens with some degree of fairness. In this way, the rental of the territorial lord might serve the purpose of a stent-roU for poli- tical assessment, and indeed it could hardly fail, that MONEY RENTS AND TAXES. 277 the divisions, marked deliberately and probably fairly, to pay so much rent, should be used when it was necessary for the same territory to levy taxes, or payments equivalent to taxation. Let us not dispute, then, vi^hether that old valua- tion of western Scotland was for rent or for taxes. So far as taxes are known in a very primitive state of society the valuation probably served both pur- poses. Why the rents in those old Norse possessions, both on the West Coast and Islands, and in the northern islands of Orkney and Shetland, should have been fixed in money instead of produce, opens a wide inquiry, which I will not even enter upon here ; but from the earliest period in which we have any light concerning their customs, it was the practice amongst all those lands of the Norsemen ; we find it even existing to this day in a land now so agricultural as Caithness, formerly, you know, a great possession of the northern Jarls. I wish you to remember that the great high road of northern commerce — of trade, of pilgrimage and crusade, of piratical adventure, of war — flowed down the Baltic, and poured in full stream upon our shores and islands, bringing with it a knowledge of money — a received coinage and currency which is necessary for war and plunder, no less than for peaceful commerce. 278 33 s. 4d. The earliest of those island rentals preserved, is one of 26th August 1507, which is among the Rolls of the Great Chamberlain of Scotland.^ The diflFer- ent subjects are merely mentioned by name (distin- guished, however, by the islands in which they lie), and the valuation is expressed in marks, or pounds, shillings, and pence. In one part of this great rental which I analysed more particularly, I was struck with the very great number of farms or possessions set down as of thirty-three shillings and four pence value, while some are entered at l6s. 8d. and others at 8s. 4d. I at one time thought that these multiples which do not correspond either with our pound or with our mark coinage, pointed to some money standard of the North, which might yet be found by the diligent student. But I have learned better from an Islay friend, who has the advantage of studying these curiosities of tenure on his own ground. He pointed out to me that the merk and its aliquot parts were the real foundations of all that money measurement, and in this manner : — There are still some tenements designated ten merklands, and there probably were many of old. These, divided into two, gave five merklands — again divided, gave two and a half merklands. But two and a half merks are the 33*. Ad., de quo queritur — the commonest designation in the great rental. 1 KoU 339. RENT OK TAX. 279 That halved gives the l6s. 8d. land — divided again, the 8s, 4d. land, both of which are found in the rental of 1507. In those western regions there are also found 50s. lands and 25s. lands, but my teacher points out that these also are probably founded upon the mark, as the unit of the arithmetic — thus, 2^ marks are equal to 33s. 4d., and if a farm of this rent were divided into two, each half is 16s. Bd, — again halved Bs. 4d. Now, if to a 2^ merkland there were joined one-half of another land of that rent, the lands so joined would bear a rent of 3f marks, or more simply, a 50s, land^-this halved, a 25s. land, and so on. The rental of the Bishopric of the Isles prepared about the time of the Keformation is comparatively insignificant. Very few subjects are valued, and all that I have observed worth your notice is, that the lands named from money measures are always rent- ailed at that amount ; as, for instance, the twenty- pound land of Icolmkill, £20 — the twenty-four penny land in Uist called Ungenab, 24d. This rental does not contain any statement of customs, or any pay- ment in kind. You must not suppose that in this inquiry I have passed over the curious rentals of the northern islands ; but I am sorry to say that they add to the difficulties rather than remove them. There are 280 ORCADIAN CUSTOMS. rentals preserved, and even published, of the north- ern islands of Orkney and Shetland, most careful and minute, and going as far back as 1497- Many of them show the valuation in actual progress and the fixing of rents going on, with generally from four to five years' tenure. But it is extremely diffi- cult to gefr^t the principles of taxation. It seems plain that the same collector levied pro rege and pro episcopo. There are no agricultural measures of ploughgate and oxgate, nor of soums' grazing. The measures are merhland, pennyland, farthingland, and urisland. The ure or ore, you remember, is a coin not unknown in our own old laws ; but who can explain the dififerent payments of stent, and scat, and mail, and cost, and flesh, and wattel, and forcops! This last I have fancied to mean grassum. For- tunately there are some zealous Orcadians working on the antiquities of their country, and we must look to them for the explanation of these various payments as well as of the measures by hismar and leispund^ smA. fathoms of peats, and spans and barrels of butter. I only mention them now to show you the family resemblance between the manner of designating tenements by money valuations in the two great districts where the Norsemen have left traces of their administration — the Hebrides and the Orkneys ; and also to show you the early pro- 1 These are manvers or implements of weighing rather than weights. EQUIVALENT OF 40S. LAND. 281 pensity to break down the payments of the tenant, as if to cheat him into the idea of paying less, be- cause the payments were levied under the names of money-rent, ferm, multure, teinds, customs, cain — which I take to be something equivalent to the multitude of payments exacted from the poor tenants of Orkney and Zetland. Having a whole country occupied by an agri- cultural population who defined their tenements in oxgangs, husbandlands, ploughgates, with only the memory of an ancient measure and valuation in money values — poundlands, shillinglands, etc., down to penny and farthinglands — used for a long period for apportioning the public burdens — taxes and others — but in our time, only for fixing a par- liamentary franchise — a forty-sMllingland of old ex- tent — and finding the other side of Scotland with its lands measured and still named from denomi- nations of money — merklands, half and quarter merklands, — I thought it very interesting to try to ascertain the equivalents in the two kinds of valua- tion ; and I am happy to say I find that fixed authoritatively — I mean by the proper tribunal — 300 years ago, though I think it has not been noticed by any of our constitutional writers. It had escaped the notice of Mr. Thomas Thomson. In 1580-1 a tax was imposed for the expenses of putting down what was called the rebellion of 282 EQUIVALENTS. the Maxwells and the troubles of the Borders. The Acts'^ imposing the tax are conditional, confused, and altogether a very discreditable piece of legis- lation ; but one part is clear enough, that the tem- poral lands of all Scotland were assessed at the rate of 6s. 8d. on the poundland of Old Extent ; and that Lords of Erection of the temporality of the Church, though first liable, were to have relief against their feuars and vassals, the real proprietors of the lands of which they were superiors. Now at that time, Adam Bothwell, a very well known man (the Bishop of Orkney, who married Mary to Bothwell in the hall of the abbey 15th May 1567), was Commendator of Holyrood Abbey, with an erection of its temporalities into a lordship. When my lord Commendator was called on by the tax-gatherer for the sura of tax efi'eiring to his barony of Broughton — a very extensive barony in this neighbourhood, including not only Broughton, Warriston, Pilrig, on one side, but Liberton, St. Leonards, Pittendreich, Saughton, and Saughton- hall, and lands all the way to Linlithgow, on the other — the soil as various as you can imagine — my lord claimed relief from his feuars at the rate which he himself was bound to pay, namely, a half merk for every poundland of old extent. But the memory of Old Extent was then vague and indistinct, and a * Acta of Parliament, vol. iii. pp. 192, 189. ACRES AND OXGAITS. 283 dispute arose between the Lord of Erection and the feuars about the meaning and value, of a poundland of Old Extent. The case came to be argued in the Court of Exchequer on 11th May 1585, and a full account of the proceedings is preserved, and of an elaborate judgment pronounced by the Lords Auditors of Exchequer, who, regarding this as a leading case, with all solemnity " Find, decern and declare that 13 acres of the complainer's lands, lying within the barony of Broughtoun, extendis and sail extend to ane oxgait of land, and that four oxgait of the saids lands extendis and sail extend to ane pund land of auld extent in all tyme to cum " — thus ruling that a forty- shillingland of Old Extent is equal to eight oxgaits, or in other words, one plough-land, and that indiscriminately over the best land of Lothian and some of the poorest. I told you before that, notwithstanding local variations and accidental exceptions, an oxgait in the south of Scotland — at any rate all through the Merse and Lothian — measured thirteen acres, and if there were any doubt it should be removed by this authoritative decision ; and so much for oxgaits and ploughgates. But here we have, /or the first time, the old agricultural measurement of oxgates and plough- gates brought face to face, and weighed in the balance — with the technical money measurement then and now known as £ s. d. of Old Extent. It seems from 284 EQUIVALENT, * the peculiar phraseology of the judgment, it was meant to settle from thenceforth that the forty shil- ling land of old extent was to be held neither less nor more than a ploughgate of land, or 104 acres. Consequently one merkland should contain 34| acres of arable land. Another point or set of points connected with old measures and valuations of lands on both sides of Scotland was, I hope, cleared to your satisfac- tion, and it rewards you for some laborious investi- gation and attention to dry figures, if we have really settled beyond reasonable doubt what is an oxgait, a husbandland, a ploughgate, and — more mysterious than these — what is the davach of the north ! When I say these hitherto disputed measures are now ascertained, I must not be held to the letter. From the principle and very names of these mea- sures — perhaps connected with the labour of o^en, perhaps with their pasture — the amount may vary in lands more than commonly difficult to labour — or more than commonly unproductive of food ; but these are exceptions which do not touch the general rule. Perhaps these are the most practically useful of the matters which our little course of study has enabled us to make clear ; but a few years ago, quite within my own memory, it would have been POINTS SETTLED. 285 considered a still greater triumph — a greater rescu- ing out of the obscurity of ages — to have fixed, as I hope we have done, what was the real meaning and intention of a 40s. land of old extent — the primitive foundation of our electoral franchise.^ I think we have ascertained, with no great research, that a 403. land of Old Extent was neither more nor less than a ploughgate of 104 acres. But it was not for working out and settling points like these — it was not even for satisfying a rational curiosity about the antiquities of our country, that I proposed this short course of lectures to men of your profession and standing. I thought it a worthy object of your study if I could guide you to know the original shape and first meaning of our laws and forms of process. I have endeavoured to show you these in their very earliest state, to lay bare the roots of our national institutions, and I trust you have received some pleasure in the search. It is one that might be carried on with still increas- ing pleasure, and for those of you who think of prosecuting it I have suggested a few books that may facilitate your studies. * It may be necessary to remind who stand publicly infeft of a 40s. some of my readers that the Act land of old extent, holden of the 1681, cap. 21, provides that none King or Prince, or in ^400 of shall vote at elections but those valued rent. LECTURE VII. BOOKS. If you have observed, or if you look back on our little course, you will see that hardly any of my Lectures are founded on printed books. I do not say that I have shut out from myself, or from your knowledge, the speculation of greater masters. I hope it is far otherwise ; but those things which were in print I held to be already your property, at any rate vestri juris. Men living in a legal at- mosphere, and domiciled in our noble Library, must soon become aware of what scholars, in all ages, have done for our science. But scholars and authors in this country have, in my opinion, some- what erred in neglecting the sources and very foundations of our law and constitution. I thought some light might be derived from sources which they had overlooked, and you will judge whether our study of charters — whether those brieves which we disinterred, after their sleep of many ages — have not given you some new and striking lights EECOEDS. 287 upon the foundation of legal process in our country, and upon the foundation of property itself, I told you honestly that my account of the ancient Church among us, its officers, its property, its jurisdiction, was not to be found, so far as I knew, in printed books. Other legal antiquities, such as the process about the lands of Monach- keneran, may be in print indeed, but where it lies as little known as in the most difficult MS. I think no books could tell us those things which we made out from our own calculations of the measures of land and the meaning of the terms expressing its measurements. Having spent my own life among records, I have ventured to introduce you to that novel study, and my success must be judged from the interest which you feel in it. I hope you will not allow the petty difficulty of reading old hand to deter you from continuing our course and diving even into the penetralia of charter and record. Even independent of those deeper studies which are necessary for mastering any worthy object, a Scotch lawyer ought not to be ignorant of the shape and form of all our records. Mr. Dickson will lay before you the very Ordinance, signed with the royal hand, under which the Court of Session now sits. He will exhibit to you tall presses crowded with the Register of the Great Seal — that founda- 288 Anderson's diplomata. tion of land rights of which we are proud, not without some cause. Gentlemen, these ohjects of intelligent curiosity are now as open as can be desired to the whole world. For purposes of study, not only are fees abolished, but you have a staff of learned record scholars ready to help your in- telligent inquiries. I tell you there is more of history, more of the history of the Scotch people, their institutions, their laws and customs, to be found in that room — that noble room where Mr. Dickson spends his days in the footsteps of Thomas Thomson, than in all libraries besides. And yet how few of you have visited and studied in that room ! It is in this sense that I just now quoted to you the lines of Lucretius — " Juvat integros accedere fontes atque haurire, juvatque novos decerpere flores." But that you may follow out those studies with greater profit and pleasure, I will point out a few books to help and direct — mostly the works of men who have travelled the same road before you, and perhaps without your advantages — books that may be like the grammars and dictionaries of your new language. A fitting commencement of your charter studies will be the great work of James Anderson, the " Diplomata et Numismata Scotise." I think you are all aware of the purpose for which that great collection was made — for proving and setting KEMBLE — THOEPE. 289 forth with due parade the proofs of the antiquity and independent royalty of Scotland, at a time when that was still necessary ; for the Union was ap- proaching, and there were some men found in England unworthy enough to propose dealing with Scotland as an old feudal dependant, instead of an ancient and always independent neighbour. The country took up Anderson's work, and Parliament voted it such supplies as the Scotch Parliament could then give. Anderson was for- tunate in the assistance he received from Thomas Buddiman. The apparatus for this great collection of coins and charters — I mean the preliminary dis- sertations — are very valuable ; and the lists of per- sons and places, composed when all our chartularies were still in manuscript, are wonderful proofs of industry, and, in general, very accurate. A similar collection of Anglo-Saxon Charters by John M. Kemble, published in six or eight volumes octavo, will be found a very useful help in charter study. I have borrowed more from Kemble's Introduction than from any one printed book. With all his ready and confident assertion, you will find him generally very trustworthy. I have traced him through some of the greatest col- lections of Anglo-Saxon charters in England, and have admired his laborious accuracy. Benjamin Thorpe's collection of the Ancient T 290 l'aRT DE viKIFlEE LES DATES. Laws of England is an indispensable book for any man wbo sets himself to study the ancient laws of Scotland. Thorpe is now facih princeps of Anglo- Saxon scholars, and his only defect as an editor is, that he is somewhat grudging of expressing his own opinions, especially when he has only a conjecture to offer. His book, in two volumes octavo, with its glossary, is a ready repertory of English legal antiquities. Mr. Thorpe has also edited a volume of Anglo-Saxon charters. For helps in general, let me mention the most wonderful book in our department of study — L'Art de verifier les Dates, the greatest work of the Bene- dictines of St. Maur — a book supplying all helps for chronology so fully as to amount almost to history. A little book by Sir Harris Nicolas, which he calls the Chronology of History, taken entirely from the great French work, except as regards the personal chronology of our own sovereigns, should be on your table. At the end of my copy I have filled in a few pages with the regnal years of our Scotch kings. I need hardly tell you of the mass of topo- graphical and family history contained in the huge volumes of George Chalmers. Disfigured as it is with almost every fault in plan, manner, and execu- tion, the work is yet the great repertory of all that kind of learning for Scotland. E. W. KOBERTSON — T. INNES. 291 The Origines Parochiales Scotiae puts for- ward something of the same design not quite so ambitiously. You will find in it a great deal of parochial, local, and also some pedigree information for the dioceses of Glasgow, Argyle, the Isles, Eoss, Caithness, and Orkney. I did not intend that it should come below the Reformation, but it was diflScult to draw a line when interesting materials turned up. You will find, I think, some useful short notes of ancient topography prefixed to a book called Scotland in the Middle Ages. Mr. E. W. Robertson, in a book named Scot- land under her Early Kings, has some very valuable dissertations upon points of prehistoric antiquity. I think my friend Mr. Robertson is not so studious of our national antiquities as of Teutonic antiquities generally. His history is to Scotch history some- what like what Sir Thomas Craig's book is to Scotch law. Lord Hailes's Annals must be open before you in all study of ancient law or history of Scotland. The only book which Thomas Innes left in print was the Critical Essay on the Ancient Inhabi- tants of the Northern parts of Britain. He was, as Mr. Joseph Robertson says, the first labourer in that field, and the- "Essay" has great merit in careful research and honesty. The works which he left in MS. are to my mind more valuable, but none of thetti 292 CHRONICLES. were in a state which he thought fit to meet the public eye. Some little volumes of his ms. Notes, now in the hands of Mr. Laing, will one day be turned to account, and may supersede Keith's Cata- logue of the Scottish Bishops, which is chiefly drawn from T. Innes's ms. notes, still extant. Though sadly imperfect, Keith is a necessary tool for the charter student. So is, in a less degree, Craw- ford's Lives of the Great Officers of State. Of mere chronicles we have the Chronicle of Melrose, the Chronicle of Holyrood, Fordun's Scotichronicon, which Mr. Skene is now editing in a worthy manner, specially distinguishing the work of Fordun from that of his Continuators. Barbour is something better than a chronicler, but he has some of the merits of one. I tried an experiment in editing his Bruce for the Spalding Club, in establishing a uniform spelling, such as I thought the Archdeacon of Aberdeen himself would have used if he had felt the propriety of spelling uniformly. Wyntoun's Chronicle had been edited on a differ- ent principle, but carefully and scholarly, by David MacPherson. His index is curious and valuable. He has also done something for old Scotch geo- graphy in a little quarto volume with a map. It might serve as a foundation for a good Scotch geography. CHARTULARIES. 293 The Scotichronicon and the Chronicle of Laner- cost contain some new facts. Our oldest written history, Adomnan's Life of St. Columba, has been edited with all learning and aflfectionate zeal for the memory of the old Saint, by Dr. Reeves, the greatest historical scholar of the Celts — ^himself a Saxon. Dr. Eeeves has also given us a summary — a very conclusive summary — of the history of the Culdees. A great many chartularies have been printed for the diflferent literary clubs of Scotland. The regis- ters of three bishoprics, Glasgow, Moray, Aber- deen, and books of register of nearly all the great monasteries of Scotland, carefully printed, are now accessible in all our libraries, and contain in them- selves — ^it is not too much to say^they contain a fuller history of ancient Scotland than ever has been written. No doubt the registrar of the bishopric was chiefly taken up with the property, the benefices, the honour and glory of his own cathedral; no doubt the monk who wrote the chartulary of his abbey was most careful to engross the charters of kings and magnates which were the titles of their broad lands ; but they did more, they recorded their transactions with their neighbours, peaceful or con- tentious, the dealings with their tenants and vassals, the mighty industries which they conducted, the churches they built — all the incidents that in- 294 THOMAS THOMSON— DAVID LAING. terested the most intelligent class of society are to be found in them. Any one of our poorest chartularies would furnish texts for lectures for several sessions in the lower Advocates' Library. I mentioned to you before some of the works of Mr. Joseph Eobertson. I think I told you of his five or six volumes of County Collections for the Spalding Club. The index to these Is now printed, and completes the great repertory for northern county history. I am sure I have spoken to you already of Mr. Eobertson's two great works, his edi- tion of the Inventories of Queen Mary's Jewels, and his Statutes and Councils of the Scotch Church — two works unmatched for fulness and richness of lear^ing and illustration. I thought of giving you a list of the works of my great master, Thomas Thomson ; but I find a full and accurate account, furnished by Mr. Laing, at the end of a memoir of his life,^ and I will not repeat what I have there said. There are none of his works which will not well repay your study. For all that concerns heraldry, you will find two volumes of Ancient Scottish Seals, by Mr. Henry Laing, very useful.- Mr. David Laing, whom I quote so often, is, I am sure, known to most of you as the learned Lib- rarian. But he has filled some shelves with his own ^ Memoir of Thomas Thomson, p. 244. DU CANOE — SCOTCH ACTS. 295 books — all useful, all most accurate. There are two departments in which he stands above competition. He is a zealous Presbyterian, and not less a hearty Scot. His edition of Knox — no easy work — is ex- cellent ; but if the reader of Knox wants to supple- ment his reading with a knowledge of the later Scotch Reformed Church, where is he to find the history of all the "godly bands," and covenants, and the counter-covenants, but in the works of Mr. Laing ! His editions of our old Scots poets — his Dunbar, Lindsay, Henryson — contrast advan- tageously with those of the scholars of the last genera- tion, who really knew little of the old Scots language. For the mere language of charters we have no guide so good and so full as Du Cange. I use a little edition by Adelung, which embodies Carpen- tier's Supplement, — there is also a convenient abridgment in one volume, published by the Abbe Migne ; but the book in its glory is to be seen in the last quarto Paris edition which stands over the fireplace in our catalogue-room. Big and ex- haustive as it seems to be, I need not tell you that a Frenchman can never be a satisfactory guide to Scotch charters, but the Supplementum Scoticum to Du Gauge's Dictionary is yet to be written. All that Sir John Skene did in his little book De Verboruui Significatione, was known and used by Du Cange, and it is mortifying to say that some of the worst errors in that grand Dictionary of Middle- 296 ENGLISH AUTHORITIES. age Europe are those copied from our countryman's hasty, ill-considered work. I have told you already of the great national work, the Acts of the Parliaments of Scotland, the foundation, of course, of all history and law of the country ; but I wish to direct your attention to some circumstances which make the first volume of that collection more than a mere gathering of old laws and Acts of Parliament, The apparatus placed at the beginning of that volume contains a selection of what we thought most curious and valuable of ancient charters, of old forms of process, of vestiges of prehistoric legislation — of great inventories of the muniments and records of the kingdom before they were lost or destroyed. That edition, which is only now finished, embraces, at the end of Vol. VI. Part II., the documents of the Government of Scotland during the time of Cromwell and the Commonwealth. There will also be soon published a General Index of the Acts of the Parliaments of Scotland, full of our law and history from David I. to the Union, a.d. 1124 to 1707. Amongst English books one of the most pleasing to read, and, I believe, a book of great accuracy, is the Honourable Daines Barrington's Observa- tions on the Statutes, a goodly quarto. Thomas Blount's Ancient Tenures and Jocular Customs of Manors, you will find a very entertain- ing and instructive book. SCOTCH RECOED PUBLICATIONS. 297 Oughton upon Consistorial Form of Process is full of the curiosity of the old subject, and with great precision and legal learning. On a subject which we Scotsmen must take help from England to study, you will find valuable assistance in the works of White Kennet, who studied the law of parishes, of tithes, of rectorial and vicarial rights, of impropriations and appropria- tions, and has left us the results in a great many volumes of very pleasant and popular reading. He wrote about the beginning of last century. The works of Madox — his Firma Burgi, his Formulare Angllcanum, his History of the Exchequer, are very useful upon subjects where the law and custom of England are almost identical with our own. Sir Henry Spelman, Hickes, Skinner, Lye, Fleetwood's Cronicon Pretiosum — an attempt to fix the value of money at different periods — Sir Henry Ellis (especially his Dissertation upon Domesday Book), Dugdale's Origines Judiciales, Cowell's Dic- tionary, not for its politics, the Regisirum omnium Brevium, London 1595, Stubbs's Documents of English Constitutional History, should at least be known and accessible to the student of Scots law and history. I need only mention the Record publications of our own country since the time when Mr, Thomson introduced the study of records. Besides the Acts 298 ENGLISH KECOKD PUBLICATIONS. of Parliament, he published two volumes of Judi- cial Proceedings — the oldest reports of law cases we have, for they are of the middle of the 15th century. These are not so well known as they should be. The Registrum Magni Sigilli is a careful print of the Great Seal Register, from the reign of Robert i. to that of Robert iii. T\ie Retours con- densed in three volumes, down to the year 1700, are already very well known to the profession of the Law, and extremely useful. It may not be so well known that Mr. Lindsay has made some pro- gress in continuing the series upon a still more condensed plan. The Chamberlain Rolls, that is, the Public Accounts of Scotland from 1326 to 1453, a mine of vast richness, has hardly been worked at all by our historians. It is a poor apology that it is difficult reading, and that the difficulty does not disappear when the original MS. rolls are turned into print. A great series of the most authentic materials of the law and history of England has been produced in our own time with admirable care and correct- ness under the direction of the Master of the Rolls. To Sir Thomas Duffus Hardy and his assistants in Chancery Lane it is owing that the historical student of England can never again be left to the guidance of rash speculation or reckless mis-state- ments. So much done for a neighbouring country is not without its effect upon ours. APPENDIX. The fable to which I allude at page 240, and which I read to my class in illustration of the forms of the old Consistorial Court, is one of Henryson's, which has had the good fortune to be com- mented on by Lord HaUes, edited by Mr. D. Laing, and illus- trated by Lord Neaves. Henryson calls it the Tale of the Dog, the Sheep, and the "Wolf. A false Dog schemed to defraud a simple Sheep, who, he alleged, owed him a loaf worth five shillings. The innocent Sheep was the common victim. Pleading poverty, the pursuer prosecuted in the Consistorial Court, where a fraudful Wolf was judge, that time, and bore authority and jurisdiction, who sent out a summons in com- mon style. "I, Maister Wolf, partless of fraud and gyle. Under the pains of high suspension, Of great cursing and interdiction. Sir Sheep I charge thee straitlie to compear And answer to a Dog before me here." The Sheep appears, but without advocate, and answers, " de- clining " the judge and all the members of the Court as his known enemies, and with reason, for, said he, — You " Sir Wolf— with tuskis ravenous — Has slain full many kinismen of mine; Therefore as judge suspect I you decline." And the corbie whom they had made apparitor, pykit had full mony sheep's eyn. 300 APPENDIX, " The fox was Clerk and notar in the cause, The Gled — the Graep (hawk and vulture) at the bar could stand * As Advocates expert into the laws The Dogis plea together took on hand, Who were confederate straitly in a band Against the sheep to procure the sentence, Though it was false — they had no conscience. And shortly of this Court the members all, Both Assessories, Clerk and Advocate, To me and mine are enemies mortal, And aye have been, as many shepherds wot." The Sheep's exception is regularly submitted to arbiters — the Bear and the Badger — who hold a long disputation, seeking de- crees and glosses of the law, and revolving many volumes, the Codex and Digests new and old : "As trew judges, I beshrew them that lie." The arbiters, swearing fuU plain, the sentence gave, and pro- cess fulminate against the Sheep, who had no appeal from that sentence. The Sheep, again brought before the Wolf, without advocate, humbly takes his trial, and Tod Lourie (the Fox) vreites the pro- ceedings as clerk. " And thus the plea unto the end they speed. This cursed Court corrupted all for meed, Against good faith, law, and eke conscience. For this false dog pronounced the sentence." The Sheep — dreading their execution, sold the wool from his back, then bought the loaf, and to the Dog made payment, as it commanded was — ^naked and bare then to the field could pass. The moral likens the Sheep to poor commons that daily are oppressed by tyrannous false men — " In hope this present life shall ever last." " The wolf is like a sheriff stout Who buys a forfeit at the kingis hand, APPENDIX. 301 And has with him a cursed Assize about, And dytes all the poor men up on land." The Raven is lite a false crowner, who has a porteous of the indictment, and, when he comes in Court, scrapes out John and writes in Will or Wat, and takes bribes on both hands. The " Tod " and the Grled need no commentary. But for the Sheep, the poet overheard his moan and repeats it. It is all against the common sin of covetousness, which has exiled from the world love, loyalty, and law. " The poor is peeled, the lord may do no miss ; Now is he blyth with usury most may win ; Gentrice is slain, and piety is ago, Alas, good Lord ! why suffers thou it so ! Thou suffers this even for our great offence. We poor people as now may 5o no more But pray to Thee, since that we are oppressed. Into this earth, grant us in heaven rest ! " Although the example of legal oppression is taken from the Church Court (perhaps levelled at some notorious Archdeacon of the time), the moralist gives no preference to the lay process — to the " Sheriff stout," even with his Assize or jury, Henryson had no reason for painting the Consistorial Court but that he was best acquainted with consistorial process. He took no thought of the feud that had raged so long in England between the Church Courts and the common lawyers. The moralist aimed wider, — at the oppression of the poor by the rich and powerful, at the baseness and venality of lawyers ; he cared not to distinguish— all lawyers alike. Lawyers were noit in good odour in his country then ! INDEX. Abbot: head of the monastery, 170; specially summoned to Parlia- ment, 123 ; mitred, his privileges, 203. Abbots-Selkirk ; rent in silver of, 247. Abercromby, Francis, created Lord Glassford/or life, 146. Aberdalgy, reddendo for, 67. Aberdeen ; Bishop of : Robert m.'s grant to, 39; bishopric of; founda- tion charter, spurious, 87 ; rural deaneries, 174; rental, 250-4; con- federacy of free burghs from, northward, 114; charters of the friars still in MS., 192 ; register of the Collegiate C!hurch of St. Nicho- las in MS., 192; University of, register printed, 191. Aberdeenshire, extent of a plough- gate, 270 ; Robertson's Antiquities, 293. Aberlot, vicar of, his income, 196. Absolute ; our Kings ruled at no time absolutely, 98. Acts of Parliament, 294-5 ; The General Index, 295. Adcymnan's Life of St. Cohimia, Rev. Dr. Reeves's, 292. Advocate, King's, 77. Advocates' Library : Lectures read in, 1 ; founded by Sir George Mackenzie, 4; MSS. of John Riddell presented to, 18. " Aforethocht" felony : brief distin- guishing it from chaudee mdee, 234. Agricultural measures of land; where found, 271 ; balanced with money measures, 281-4. Agriculture : outline of the Lecture, 24-5 ; Act in favour of the labour- ers of the ground, 125 ; best in- formation from the Kelso rental, 247-8. Aid (Auxilivmi), 111 ; lands held of the Church free of, 218. Alehouse ; superseded the brewhouse, 48 ; originally the hostelry, ib. ; reddendo for, ib. Almonds, Bruce's dish to the monks of Melrose, 38. Almoner, The, his ofiSce, 78. Anandale, Bruce's first charter, 33. Anandale ; rural deanery, 176. Ancient Laws of England, Thorpe's collection, 289, 290. Ancient Tenures, Blount's, 295. Anderson, James, W.S. ; his patriotic works, 15 ; Diplomata et Numis- mata Scocice, 288-9. Anekol, witness in an ancient jury trial, 218. Anglo-Saxon charters ; Scotch char- ters founded on, 31 ; Kemble's collection, 289. Angus, ruled by a Maormor, 97 ; four baUliaries of, each ruled by a Maor, 78. Angus, rural deanery of, 174. Annexation, Statute of, 148. Antiquaries, Legal ; small number, 2 ; hst of, 2-18. Antiquities, Legal, materials for the study of, 6, 9. 304 INDEX. Antiquities of the Shires of Aherdeen and Banff, Joseph Eobertaon's, 293. Annals of Scot'Mnd, Hailes's, 291. Apostates, brief against, 233. Appeals ; Committee of Parliament for, 119-122; made to the Supreme Courts, 228, 229. Appropriation, meaning of, 185. Aquis, in, rights to waters in a grant of barony, 44 — Aqua mean- ing running water, ib. Aragon, Constitution of the Cortes of, 106. Arbroath, Abbey of; the Barons' Letter to the Pope dated, 104; a house of the Benedictines of Tyrone, 165 ; account of the house, ] 66 ; disputes with its churches, 194-5 ; chartulary printed, 191 ; vicar, his income, 196. Archdeacon, 181-2. Archdeaconries, 174-6. Argyll, bishopric of, 176 ; bishops sometimes called of Lismore, ib.; deaneries of, 177. Arrow, price of, 65-6; head of, valued, ib. Articles, Lords of ; their origin, 119- 122 ; election, 146-7 ; usurp the power of Parliament, ib. Athole, Earl of, earldom of Strath- erne granted to him /or Ufe, 145. Athole, deanery of, 174. Auxilium, translated aid, 111. Ayr MS. the most Scotch of the ancient styles, 42 ; brieves from, 214. Ayr, Master of the Schools of, 214 ; National Assembly in the parish church of, 104. Badenoch, rental of, 258-9. Bagimond's EoU, historical mistakes about, 189. Bailie, his office, 84. Balgarvie, lands of, lease of, 248-9. Balgony, reddendo for, 67. Ballia or Ballivatus, meaning of, 84. Balmaschennan, reddendo for, 67. Balmerino, chartulary printed, 191. Banohory-Teman, vicarage of, valua- tion of, 197. Banff, vicarage of the church valued, 197-8. Banffshire, nativi claimed last in the Sheriff-Court of, 256 ; plough of land, 270 ; Robertson's Anti- quities of the Shire, 293. Banrents, specially summoned to Parliament, 123 ; who they were, ib. Baptism, dues on, 186. Barbour's Chronicle, 292. Barons ; their Letter to the Pope, 104 ; regard seat in Parliament as a burden, 115; relieved of at- tendance in Parliament, 122. Baron-bailie, refers tenant-quarrels to the birleyman, 268. Barons' Courts, process used in, 59. Barony, no grant of, in Bruce's char- ters, 33 ; grant in libera/m haro- niam, 42 ; head court of, the old- est in Scotland, 98. Barrington's Observations mi the Statutes, 295.. Barr, vicar of, his income, 196. Beauly, register of, lost, 192. BeUie, rental of, 261-2 ; rent of a ploughgate in the parish, 262. Benedictines : of St. Bernard, 164 ; their religious house, ib. ; of St. Maur, authors of L'Art de v&rifier les Dates, 290 ; of Tyrone, 165— their houses, 165-6. Benefice ; what it implied, 183 ; valuations of, 189. Bemham, De, Bishop David, churches dedicated by, 207-8. Berwick, one of the "Four Burghs," 114; high-roads from, to Inver- ness, 242. Birleyman, office of, 254; baron- INDEX. 305 bailie refers disputes to him, 268. Birss, forest of, rent of the foggage, 252. Bishops ; specially summoned to Parliament, 123 ; their disappear- ance from Parliament, 141 ; how- appointed, 177 ; Keith's Catalogue, 291. Bishoprics, list of, 173-7 ; usurpation of the patronage, 178 ; chartu- laries, 188-90; foundation, 200; registers, 292-3. Black Priars, the Dominicans, 171. Blantyre, reddendo for lauds in, 67. Blench duties, 64-8. " Blood, corruption of," 150. Blount's Ancient Tenures and Jocular Customs of Manors, 295. Bludwites, jurisdiction in, 60. Boar, value of, 66. Bolden, barony of, rents and services on, 244, 246. Bolingbroke, Lord, on the historical study of law, 26-7. Bolton, vicar of, his portion, 199. Bondman, grant of a barony cum iondis et bondagiis, 50. V. Native. Books recommended for the study of Records, 288-296. Bow, value of, 66. Bowman, a sub-tenant, 266. Boyne, rural deanery of, 174. Brechbennach, custody of, 166. Brechin, bishopric of, 175 ; an abbey of Culdees originally, i6. Brew-houses ; pertinents of landed estates, 48 ; superseded by the alehouse, ih. ; rents paid for, 246. Bridges, land granted for the support of, 247. Brieves ; oldest traces of civil pro- cess, 22 ; extant at the time of the Alexanders, 213; collection, in the Ayr and Bute MSS., 214 ; to whom addressed, 222-3 ; matters of which they treat, 223 ; royal, 222-237. Brigham, Treaty of, term Pairlia- memt first used in, 102, 118-19. Broom, grant of lands cumgenestis, 45. Brude, King, noticed in the char- tulary of St. Andrew's, 29. Brushwood (cam bru^is) pertinent of a landed estate, 44. Buchau, ruled by a " Maormor," 97 ; rural deanery of, 174. Burgesses, names of those bound for the ransom of David n., 107-8. Burghs ; royal burghs granted to Thomas Bandolph in capite, 40 ; President of the Court of the Pour Burghs, 76 ; grant an obliga- tion for the ransom of David n., 107-8; their constitution, 113; Parliament of the Four Burghs, 114; form T>ird Estate, 115-6; were they the Third Estate in the early Parliaments of Bruce ? 116 ; regard representation as a burden, 115; royal, holding of vassals, 1 16-7 ; such tenure declared illegal, 117 ; Acts in their favour by James iv. and Queen Mary, 129; grouped by Cromwell, 139 ; ten commissioners for them in the British Parliament, ih. ; to send two commissioners, 141 ; after- wards only one, 142 ; commis- sioners sitting on "furmes," 142 ; commissioners paid for attendance in Parliament, 151-3. Burton, Mr., noticed, 13. Bute MS., brieves from, 214. Butter, stone of, value of, 66. Byrthensak, court of, 246. Caithness, bishopric of, 175 ; Caith- ness-shire, uncertain tenure of, 93; money measures of land, 277. Caledonia, George Chalmers's, 290. U 806 INDEX. Cambuskenneth, Abbey of; famous Parliament held at, 103 — the burghs represented in that Parlia- ment, 116 — its constitutionalism, 117-8 ; a house of the Canons of St. Austin, 163 ; chartulary printed, 191. Campbells, frequently Chancellors, 76. Can, meaning of the word, 204. Canmore, Malcolm, F. King Malcolm Canmore. Canons of the cathedral, 179; two classes, % Canons Begnlar of St. Augustine, 163 ; their houses, i&. Cantor, his office, 181. Cantyre, deanery of, 177. Capon, value of, 66. Capons of Boss, Buchan and Moray valued, 66. Camwath, reddendo for, 68. Carriage, long and short, valued, 66. Carrie, Earl of, grant of chiefship by, 74 ; his brother witness in a jury trial, 219. Carrie, dean of, a judge in an early trial by jury, 214 ; rural deanery of, 176. Carmelites, an order of friars, 172. CastUIe, constitution of the Cortes, 106. Catalonia, constitution of the Cortes of, 106. Cathedral ; constitution of, 178 — sometimes borrowed from Eng- land, 179; dignitaries, 179— minor dignitaries, 182 — often styled after their country prebend, 184; vicars, distinguished from those of the parish, 184. Cattle, herds of, belonging to the monks of Kelso, 243 ; few, in the Highlands, 263-4. Causes and Complaints, Auditors of, a Committee of Parliament, 229. Cawdor, thanedom of, reddendo for, 82. Cellarer, his duties, 170. Celtic law, early disappearance of, 96. Celtic officers in the time of Canmore, 97. Celtic suitors, 206. Chalmers, George; his contribution to topography, 17 ; to family history i6. ; his Caledonia, 290. Chamberlain, an early officer in Scotland, 96 ; President of the burghal Parliament, 114; his office, 76; Bolls, edited by Thomas Thomson, 13. Chancellor, an office in Scotland in the time of David I., 96; his office, 76 ; Chancellor of the diocese; his office, 182. Chaplains, churches served by, 200. Chapter, constitution of the, 178. Chapter-house, dignitaries of, 179. Charter, oldest Scotch, 29, 35 ; bad Latin of French charters, 33 ; Lec- ture on, 29-91 ; old charters brief, 33; styles of the granters, 34; persons addressed, 35 ; causes of grant, 36-37 ; subjects granted, 37-39 ; Qucequidem clause, 39 ; Modus tenendi, 40 ; Faciendo clause, 61-8 ; how authenticated, 68 ; spurious charters, 87 ; extend- ing the meaning of their words, 155 ; royal, preserved by the monks of Melrose, 168 ; no written tenures in the Highlands, 269. Chartularies ; their importance, 188 ; described, 188-192 ; printed, 191 ; still in MS., 192; lost, 192-3; lay, 193. Cheese, stone of, value of, 66. Chief; injury to the clansman by his lauds being feudalized, 156-7 ; how his power was measured, 269; advantage to him by the change of patriarchal to feudal holding, ib. INDEX. 307 Chiefahip, grant of, 74. Chronicles, list of, 291-2. Chronology: Records of David II. misdated, 32. Chronology of History, Sir Harris Nicholas's, 290 ; L'Art de verifier les Dates, 290. Church; history of, neglected by historians, 9, 13; defect supplied by Joseph Robertson, 13 ; outline of the Lecture, 22-3; Druids' circles filling the original idea of a church, 98; brief limiting its jurisdiction, 233 ; excommunica- tion by it, 149 ; Lecture on the Old Church, 161-208 ; government, 173; property, 184-8; chartu- laries described, 188-193; valua- tions of benefices, 189; founda- tion of churches, 200, 201 ; grant of an ecclesM, 204 ; dedication of churches by Bishop David de Bernham, 207-8; brief, compell- ing payment of church rents, 232 ; Church, vassals of, 246. Church Courts ; procedures different from those of Civil Courts, 212; extensive jurisdiction, 238 ; juries originated, 283. Churchman, the Chancellor generally, 76. Cistercians; of the order of St. Bene- dict, 162; their houses, 167; ex- empted from taxes, 168-9. Civil and Church Courts ; procedures in, 237-240. Clackmannanshire, to be represented by one Commissioner only, 122. Clansmen ; their holdings feudalized, 156-7 ; injury to them by change of tenure. Claremathen, law of, for recovering stolen goods, 56. Clatt, rent of a ploughgate in, 250-1. Clergy, the first of the Three Estates, 141 ; sat on the " Benches '' in Parliament, 142 ; Seculars and Regulars distinguished, 161. Cloth, eUs of, paid as customs in the Highlands, 257. Clerk of Register, his ofiice, 77. Cluniacs ; of the order of St. Bene- dict, 162 ; their religious house, 167. Coal; early dispute, 165; first workers, 168. Coalpits, grant of lands cum car- bonariis, 45. Coke, Sir Edward, quoted, 5, 43. Coldstream, nunnery, 172 ; register still in MS., 192. CoUegiate churches ; when founded, 201-2; members secular, 201. Colliers, till recently " astricted," 50. Commendators ; who they were, 202. Commissioners to Shires and Burghs, 151-3. Committees of Parliament, 22, 119- 122 ; whole power of Parliament intrusted to a Committee, 127. Common churches, 184. Commons, unjust divisions of, 154-5. Complaints and Causes, Auditors of, 22. Comptroller, his office, 76. Compurgation : witnessing to char- acter, 210. Compurgators in a disputed case ; their number, 210. Concilia et Statuta Scotice, Joseph Robertson's, 13. Conies, pair of, valued, 66. Consistorial Court ; its extensive jur- isdiction, 238-9; Henryson's Fable illustrating old forms, 239-240, 297-300. Consistorial Form of Process, Ough- ton's, 295. Constable, his office, 38, 75 ; an early officer in Scotland, 96. Constabulary, grants of, 38, 84. Constitution of Scotland compared 308 INDEX, with England's, 94; defects in the former, 148. Constitutional Government in the reign of Robert i., 117-8; on the Continent in the 14th century; causes of its failure there, 1 06. Contracts, brief, concerning, 231. Contumacy, how punished, 220. Conveth, meaning of, 205. Conveyancers, learned, list of, 14-16. Comage, lands held for blowing a horn, 63. " Corruption of the blood," imported by the Act of Union, 150. Corstorphine, coUegiate church of, 201. " Costagea;" Commissioners of Shires and " Speakers " to be paid, 123. Cottar; a subtenant, 267 ; dryhouse cottar, ib. ; deprived of his right in Commons, 155, 244; extent of his holding, ib. Councils of the Church, list to be found in the Statuta Ecclesue, 173. Coupar- Angus, register still in MS., 192. Court, earliest, in Scotland, 98. Courts ; appeal, 228 ; civil and ecclesiastical Courts — their juris- diction, 237-240. Court of the "Four Burghs," 114. Court of Session ; its origin and in- stitution, 119-122, 132, 230. Cow, estimated at, 66. " Cowdeohe," price of, 65. Craig, Sir Thomas, as a feudalist, 2. Craignish papers, example of Maor- ship from, 78. Crail, register of, still in MS., 192. Crawford, Earl of ; grant to him of the Dukedom of Montrose for life, 145. Crawford's Lives of the Great Officers of State, 292. Criohton, collegiate church of, 201. Croft, rent of 251. Crofter, a sub-tenant, 267. Cromarty, sherififdom and biirgh of, holding of a subject, 1 16. Cromwell ; his government of Scot- land, 139 ; unites England and Scotland, ib.; Scotland represented in the British Parliament, ib. Crops in Teviotdale, 242, Cross-bow, value of, 66. ' Crossraguel, register of, lost, 192. Crown, "the Four Points," 60; deeds regulating succession to the Crown, 108-9 ; procedure in Church and Crown Courts different, 212, Crowner ; his office, 84. Culdees, monks of Irish origin ; rise and progress of the order, 162-3 Reeves's History of them, 292 their religious houses, 163 Brechin, a Culdee abbey, origi- nally, 175. Cumbria, uncertain tenure of, 93. Cumin seed, pound of, value of, 65-6. Cuningham, Dean, judge in an early jury trial, 214 ; rural deanery of, 176. Curate, meaning of the word, 203. Customs; on the Forbes estates, 255 ; on the Gordon estates, 257 ; on the Struan estate, 268 ; their money value, ib. Dalkeith, collegiate church of, 201, Dallas's Styles, 14. Dalrymple, Sir James, on the " Scot- tish British Church," 8. Dating, early charters without dates, 30-1 ; how the date may be ascertained, 31 ; the annus domi- ni introduced, ib. ; annus domini and annus regni differ in charters of David ii., 32 ; L'Art de vSrifier les Dates, 290 ; Nicholas's Chro- nology of History, 290. Davach of land ; division found chiefly in the north-eastern shires, 271 ; etymology of the word, 271- INDEX. 309 272; extent of, 272-3 ; "Aucht- and-forty dauch of Huntly," 273. David, Earl, notice of his holding the earldom of Lennox, 218. Davidson, John, W.S., learned Con- veyancer, 11, 16. Dean, chief dignitary in the cathe- dra], 179-180. Deaneries, rural, 174-6. Debates in Parliament, 143-4. Debts, brief for compelling payment of, 231. Decisions, collections of, 5 ; Karnes's Semarhable Decisions, 10. "Declaration," contained in early jury trial, 214-220. Deer, Book of, oldest writing con- nected with Scotland, 29. Desnes, deanery of, 176. Dewar lands, in Glendochart, red- dendo for, 67. Diplomata et Numismata Scocice, 15, 288-9. Dirleton's Doubts and Questions, 4. Dog collars, pair of, valued, 65. Dominicans, account of, 171. Doomster (latinized Jtidex), his ofSce, 97. Doorward or usher, his office, 77. Dornoch, see of the bishopric of Caithness, 175. Doubts and Qitestions in Law, Dirle- ton's, 4. Douglas, Wilham Lord, created Duke of Hamilton for life, 145-6. Douglas, Sir Archibald of; sale of the earldom of Wigton to him, 73. Douglases of Lochleven; their char- tulary, 193. Doves, pair of, valued, 66. Dovecots, grant of land cum colum- hariis, 45, Dowry, brief of, 234. Drengs, who they were, 36. Drontheim, bishopric of the Isles, its Buifragan, 177. Druid's Circles, filling the original idea of a church ? 98. Drumalbane, rural deanery of, 174. Drummond Estates, Factor's Eeport, 265-7 ; different classes of sub- tenants mentioned, 266-7. Dry burgh, chartulary printed, 191. Du Cange's Dictionary of Mediceval Latin, 294. Duck, wild, valued, 65-6. Dugald, son of Earl of Alwin, wit- ness in the case of Monachkeneran, 216. Dukes, specially summoned to Parlia- ment, 123. Dull, pleas at, 206-7. Dulsak, rent of, 252. Dumfries, Castle of, inquest at, 223. Dunblane, bishopric of, 175. Dundrennan, register of, lost, 1 92. Dunfermline, Abbey of ; Walter Fitzalan's grant to, 37; founda- tion charter, spurious, 87 ; a house of the Benedictines of St. Ber- nard, 164; account of it, ib.; char- tulary printed, 191 ; Grammar School of the burgh originally a " sang-schule," 182. Dunkeld, originally a monastery of the Culdees, 163 ; bishopric of, 174 ; rural deaneries, ib. Duplin, reddendo for, 67. Earl, specially summoned to Parlia- ment, 123. Earldom, grant of, 38, 40 ; sale of, 73. Easterlings, " sterling " their coinage, 64. Edinburgh, Parliament of the Pour Burghs to meet at, 114; one of the Burghs composing the burghal Parliament, 114. Education Acts, 129-30. Edward in. ; Parliamentary reign of, 106 ; letter from Tor wood to him, ib. 310 INDEX. Eggs ; estimated per dozen, 66. Eglisgrig, dedication of the Churcli St. Cyrious's, 207. Elcho, nunnery of, 172. Eketions, Law of, Wight's, 11. Election ; Acts for sending Commis- sioners to Parliament, 122, 136-7. Elgin, burgh of ; holding of a sub- ject superior, 117; inquest con- cerning the King's garden at, 225, 226 ; rural deanery of, 1 75. Emancipation, grant of, 38 ; brief of, 232. Emerald Charter, 88. Encroachments on the rights of the people, 154-8. England, liberty of the subject in, 149 ; neyfship in, 160. English Acts of Parliament, language of, 153-4. Enzie, rental of, 259. Episcopacy ; government of the old Church episcopal, 173. Erskine, David, learned Conveyancer, 14-5. Erskine, John, author of the InstU tvte, 6. Ethy, vicar of, his income, 197. Ewirland, Cramond Kegis, reddendo for, 67. Excommunicates, brief against, 233. Excommunication, 149. Fable, Henryson's, illustrating the forms of process in the Consis- torial Court, 239-240, 297-300. Eachalos (? Erithalos), meaning of, 70-1. Eaciendo clause, 61-8. Eail, register of, lost, 192. Fairs, grants of, 38. Falaise, treaty of, the independence of Scotland surrendered by the, 112. Falkirk, vicar of, his portion, 199. Family history, Chalmers's service to, 17. Fang, thief caught with, 210. Fames, deanery of, 176. Fatal Okair of Scone, Mr. Skene's history of, 164. Fawfield, reddendo for, 67. Feather, white plumash, value of, 66. Fergus, son of Cuningham, witness in a disputed case, 218. Ferm : rent in oatmeal and bear, 257. Ferae, register of, lost, 192. Fetternear, forest and fishing of, 253 ; hay and meadow of, jJ. Feudal ; injury to the cottar by the feudalizing of lands, 155. Fife, rural deanery of, 174. Findhorn, James ii. hunting on the banks of, 124. Fishers ; recent attempt to ' 'astrict " them, 50 ; the law against seeking for bait, 155. Fishings, grants of, 38; grant of land cum piscationUms, 45 ; clause cum piscariis unjustly extended, 155 ; brief for putting down cruives, 236-7 ; large rent paid for the fishing of BeUie, 263. Pish-stanks, rights in vivariis in a grant in liberam baroniam, 44. Fitz Alan, Walter, his grant to Dun- fermline, 37. Fitz Alans; Stewarts descended from, 75, 167. Fitz Hugh, Alexander, witness in an early jury trial, 215. Flocks possessed by the monks of Kelso, 243. Florin of gold, value of, 65. Foggage of Birss, rent of, 252-3. Forbes, rental, 254-6. 'FoTdvm.'aScoticJironicon, by Mr. Skene, 292. Forest; the most extensive right in the time of Bruce, 33 ; right of property precedes that of forest, 41 ; grants in free forest, 41 ; the forest laws of the Normans not known in Scotland, 41 ; rent of INDEX. 311 the foggfige of the forest of Birss, 252-3 ; the foggage of the forest of Glenrinnes, reserved "to my lord" the bishop, 251. Forfeiture, Bruoe's charters proceed on, 39. Forms of Parliament, 142-3. Forres, burgh j holding of a subject, 117. Forth, David l. King benorth, 30; justiciar for Scotland proper be- north, 75. Fothrif, rural deanery of, 174. FoulesJ dedication of St. Meman's, 207. France; constitution similar to Scot- land in the 14th century, 106; serfdom till the great Revolution, 160 ; States-general, their con- stitution, 106. Franciscan friars, 171. Fraser, Sir Gilbert, Sheriff of Peebles, inquest by, 225. Friars ; account of, 170-1 ; their chief orders, 171-2; Franciscans, known as Minors, 171 ; Domini- cans, as Preachers, 171 ; chartu- lary of the friars at Glasgow printed, 191. Frostleys, reddendo for, 67. Fugitivis et nativis, de, brief, 231. Funeral dues, a source of church revenue, 186. Furniture, household, exempted from taxation, 1,08. Fyvie, vicarage of, valuation of, 198. Gaelic, spoken by Malcolm Can- more, 94. Galloway ; bishopric of, 176 ; its deaneries, ib. ; David i. King in GaUoway, 30 ; grant to the Gal- wegians of their peculiar laws and liberties, 38 ; uncertain tenure of GaUoway, by the kings, 93. Gallows, grant of a barony cum furca, 58. Game, provisions regarding, in the charters of Melrose, 45-6. Gamrie, valuation of, vicarage of, 198. Garden, King's ; inquest concern- ing, 226. Garlic head, a blench duty valued, 66. Garviauch, rural deanery of, 174. Gask, reddendo for, 67. Gaskel, Thomas, a witness in an early jury trial, 215. Germany, serfdom in, till recently, 160. Gibson-Craig, Sir James, as a Con- veyancer, 16. Gilbert, son of Samuel, defendant in the case of Monaohkeneran, 214- 220. GUbethoc, witness in an early jury trial, 218. Gilon, witness in a disputed case, 218. Ginger, pound of, valued at, 66. Glamis, thanedom of, reddendo for, 65. Glasgow ; archbishopric, 176 ; arch- deaconries, ih.; rural deaneries ; suffragans, ib. ; constitution of the cathedral borrowed from Sarum, 179 ; College Church, chartulary printed, 191 ; University, regis- ter of, printed, 191; Assembly of 1638, 141. Glassary, deanery of, 177. Glassf ord. Lord, Francis Abercromby created /or life, 146. Glenelg, reddendo for eight davochs and five pennylands of, 67. Glenluce, register of, lost, 192. Glenrinnes, forest of, reserved to my lord the bishop, 251. Glensaucht, reddendo for, 67. Glentilt ; thane of, progress of titles showing how he became Toschach of Monivaird, 80-1 ; thanedom of, reddendo for, 82. 312 INDEX. Oloves, pair of, valued, 65-6. " Goodman," holding of a, 36. Gordon, Charles, W.S., a learned Conveyancer, 14. Gordon, frequently a Chancellor, 76. Gordon rental, 256-265 ; holdings, in joint occupancy, 256. Goose, valued, 66. Goverument, change of, how effected, 144. Gowrie, rural deanery of, 174. Grammar Schools, origin of, 181-2. Grange of the abbey, 243 ; inhabi- tants of, ib. Grant, Isaac, a learned Writer to the Signet, 14. Great Officers of State, Crawford's, 291. r. Officers of State. Great Seal, affixing of, implied the presence of the sovereign, 68; Keeper of, usually the Chancellor, 76. Grey Eriars, Eranciscans known as, 171. Greyhound, valued, 66. Grouping of shires and burghs by Cromwell, 139. Gum, pound of, valued, 66. Habeas Cosptrs, not known in Scot- land before the Union, 149. Haddington, nunnery of, 172 ; rural deanery of, 174. Hailes, Lord, as a historical inquirer, 8 ; Annals of Scotland, 9, 291 ; neglected Church history, ib. Hay, "fudder'' and load of, valued, 66. Hayning — hay cut from pasture laud, 242. Hamer, church of, to be served by a chaplain, 200. Hamilton, Duke of, Lord Douglas created, for Ufe, 145-6. Hanse, a confederacy of free burghs heyoad. ihe Munth, 114. Hawk, value of, 65-6. Hawk-glove, value of, 65. Hawk-hood, value of, 66. Hawkings, grant of land cum aucii- pationibxis, 45. Hays of Leys, early contract of lease between, them and Abbot of Scone, 248. Heaths (cum bruerm) a pertinent of an estate, 44. Hen, valued, 66. Henryson's Eable, Ulustrating pro- cedure in the Consistorial Courts, 239-240, 297-300. Heraldry, 294. Herds, owned by the monks of Kelso, 243. Hereditary right, asserted in the earliest Scotch charter extant, 34-5. Heriot (herizeld), grant of a barony cum herezeldis, 53. Heritable jurisdictions fatal to poli- tical liberty, 148 ; Act abolishing them, 149. Hides, no payment of, in the Gordon rental, 263. Highland parish, rent of, 260. Highlands, excessive population in the, 269-270. Highlanders ; how they lost their holdings, 156-7 ; tenants at will, 269. Hilarius, a witness in an early jury trial, 218. History of law, Bolingbroke on the importance of, 26-8. Hohn Cultram, register of, still in MS., 192. Holyrood, Abbey of ; a house of the Canons St. Austin, 163 ; beautiful charter, 32 ; chartulary, printed, 191 ; portions of vicars of their churches, 199 ; chronicle, 292. Homage, grant of a barony cum Twmagiis, 50. Home of Wedderburn, George, a learned Conveyancer, 15, INDEX. 313 Hope, Sir Thomas, described as juris nostri per'dissimm, 4. Hopkelohoo, lauds of, a new inquest coueeming, 225. Horses, exempted from taxation, 108. Horse-load, description of, 244. Horse-shoe, valued, 66. Hospitals, their intention, 172-3. Hot iron, ordeal of, 210. House, made of wattles, notice of, 215. Household, Master of the, 77. Hunting, grant of laud cum venatio- nibiis, 45. Hiintly, rental of, 259 ; the " aucht- and-forty dauoh," 273. ' Husbandland, extent of, 241-2. Husbandmen, their holdings, 244. Immigration from England, 94-5. Impropriation explained, 185. Impropriators, the Lords of Erection, 185. Incense, pound of, value of, 66. InchafiFray, chartulary of, printed, 191. Inchcolm ; bishopric of Dunkeld fol- lowed Columba to, 174 ; char- tulary stiU in MS., 192. Iridex, to the Acts of Parliament, 295. Infangthef, jurisdiction in, 57-8. Inglia, Sir William ; grant to In'Tn of the barony of Manor, 37. Innes, Thomas, his Critical Essay, 291-2. Inquests ; for assessing all property, 108 ; taken by order of Alexander II. and Alexander in., 222-8; a new inquest, 225 ; inquest regard- ing the death of Adam the miller, 223-4 ; inquest by Alexander de Montfort, Sheriff of Elgin, 225-6-- the jury half barons, half bur- gesses, 226 ; concerning the petary of Waltamshope, 227-8. Inventories of Queen Mary's Jewels, 293-4. Inverkething, vicar of, his income, 196. Inverness, rural deanery of, 173 ; vicar of, his income, 194-5 ; high- roads to, 242. Investiture, 19, 20, 85-91. lona, Island of, seisin taken of, by Columba, 20 ; the see of the bishopric of the Isles, 177. Isles; bishopric of 177; changes it imderwent, ib. ; suffragan of the see of Drontheim, ib. ; rental of the bishopric, 279 ; oldest rental of the, 278-9 ; measures of land, in, ih. ; merk, the foundation of valuations, j5. Jedburgh ; Abbey of, a house of the canons of St. Austin, 163 ; Gram- mar School of, the burgh origi- nally a "sang-schuil," 182. Judicial combat, 210 ; in use in the time of David i., i6. JvdiXmm Dei — appeal to Divine reve- lation, 210. Jungle (cum bruscis) a pertinent of an estate, 44. Juridical Society, Lectures read be- fore, 1 ; Styles hj the Society, 17. Jurisdiction of the civil magistrate upheld by the Scotch King, 237-S. Jury, trial by, in its infancy, 213; in England in the reign of Henry III., ib. ; in Scotland about the same time, ib. ; originated in church courts, 213; an early case foreshadowing a jury trial, 214- 220 ; number of jurors, 223 ; jurors probably witnesses too in the cause, 223 ; early trials, 223-8 ; in an early case the barons said to agree with the burgesses, 224; jurymen on an inquest, half- barons, half-burgesses, 226, Justice-Clerk, his office, 77. Justice-Deputes, in Parliament, 142. Justiciar ; his office, 75 ; two justi- 314 INDEX. ciars in Scotland, ib.; an early officer in Scotland, 96 ; appeal from, 228. Kain-lime, boll of, valued, 65. Karnes, Lord, his contributions to Scotch law, 10. Keith's Catalogue of Scottish Bishops, 292. .Kelso, Abbey of; charter still pre- served, 32, 166 ; house of the Bene- dictines of Tyrone, 165 ; account of the Abbey, 165-6; chartulary printed, 191 — supplying the best information on rural matters, 241 ; monks great cultivators of land, ib. ; held their lands in dominico, ib. J kindly tenants of, 245-6 ; rental, 243-248. Kemble's collection of Anglo-Scaon charters, 289. Kennet's Law of Parishes, 295-6. Kid, valued, 66.. Kilrimund, Holy Trinity at, dedica- tion of, 208. Kilwinning, register of, lost, 192. Kindly tenants of the Abbey of Kelso, 245. King Malcolm Canmore, no charters of his reign extant, 29 ; King of united Scotland, 93 ; spoke Gaelic, 94. King Duncan, oldest writ a charter of, 29. King Alexander I. (the Merce), his investment to the cathedral of St. Andrews, 19-20 ; National Assem- bly in his time, 99. King David i., charters begin in his reign, 29 ; his title, 30 ; King benorth Forth, and in Lothian and Galloway, 30 ; claimed allegiance of Soots, English, French, and Gal- wegians, ib. ; his beautiful charters to monasteries, 32 ; persons to whom his charters are addressed, 35 ; the National Assembly in his reign, 99 ; free burghs in Scotland from his days, 114 ; all bishoprics founded before his death, 200 ; wager of battle or compurgation optional in his time, 211; how his decisions were recorded, 221. King Malcolm iv.. National Council under him, 99 ; taxation in his reign. 111 ; his great, charter to Kelso BtUl preserved, 166. King William the Lyon, National Council in his reign, 100 ; taxa- tion imposed for his ransom, 112- 113; how proof was ascertained in his reign, 122. King Alexander n.; National Council under him, 101 ; inquests made by his order, 222-5 ; grants of land for support of bridges, 247. King Alexander in. ; National As- sembly, 101-2; monasteries found- ed before his death, 200 ; inquests taken by his order, 225-8; high roads in his time, 242. King John Balliol, Parliament in his time, 102 ; Parliament first called itself by that name, 119. King Robert i. ; his first charter of Anandale, 33; grants the "King's" dish to the monks of Melrose, 38 ; his charters proceeding on forfei- ture, 39 ; grants the earldom of Moray in regality, 40 ; Parliament under him, 103 ; Scotch version of his Statutes, 104; his uncon- stitutional Acts, 116-7; the burghs not represented in his earliest Parliaments, 116 ; but formed the Third Estate in 1326, ib. ; hU death-bed letter preserved by the monks of Melrose, 168. King David ii., his records misdated, 32; money subscribed by the Estates for his ransom, 107 ; de- clared illegal for a royal burgh to hold of a subject, 117 ; import- ance of his Parliaments, 119-122. INDEX. 315 King Kobert ll. ; records of Parlia- ment in Scotch, 110. King Robert in., grants the barony of Manor to Sir Wm. Inglis, 37 ; hia grant to the Bishop of Aber- deen, 38; his coronation, 108; the first Act of Parliament in Scots, 110. King James i. ; his constitutional ideas, 122 ; eoUegiate churches founded between his reign and that of James iv., 201-2. King James ir. ; his parliamentary history, 123 ; hunting on the banks of the Pindhorn, 124; his Act in favour of the labourers of the ground, 125. King James m., power of Parlia- ment intrusted to a committee, 127. King James rv.. Education Act, 129; Acts in favour of burghs, 129. King James v., Parliaments of, 130-5; Act establishing the Court of Ses- sion, 132. King James Yi., representation esta- blished in his reign, 123-137 ; his parliamentary history, 138. King Charles I. ; commissions for surrender of teinds, 23 ; Act estab- lishing pariah schools, 130; par- liamentary feeling spread in his reign, 138. Kings; styles of English and Scotch, 341. Kings, Early, Scotland under her, 291. King's agent, in Parliament, 142. King's Council, notice of, 22 ; acta dominorum comilii, 229. King's Court, partition between it and Church Courts, 212. " King's Dish ;" grant to the monks of Melrose, 38. Kingussie, rent of, 260 ; rent of a ploughgate, 4, 261. Kinroas-shire, to send one commis- sioner to Parliament, 122. Kirk of Field Collegiate Church, 201. Kirkland (terra eeclesiastiea), half a davach, 271. Kirktown of Cabraoh, rent of, 258. Kirkwall, St. Magnus's, the cathe- dral of the bishopric of Orkney, 176. Knights Templars : their origin, 169 ; their chief house, ib. Kyle, rural deanery of, 176. Labouebrs of the ground. Act in favour of, 125. Laird ; his tenure, 36 ; how his power was measured, 269. Laing, Mr. David, on the Reformed Church, and the Scots poets, 294-5. Lanark, rural deanery of, 176. Land ; measures of land, in Merse and Teviotdale, 241 ; earliest in- formation touching rural matters derived from religious houses, 241 ; lecture on early occupation of land, 241-285; measures of land, on the Forbes property, 254 ; on the Gordon estates, 256, 258 ; pasture on the infield and outfield, 269. Lanercost, Chronicle of, 292. Language of the English and Scotch Acts of Parliament, 153-4. Latin of Scotch and French char- ters, 33. Law, old forms of, 209-240. Laws, Ancient, collection of, by Ben- jamin Thorpe, 289-290. Laws, unjust, 154-8. Lawyers, attempting to defeat the Act in favour of the labourers of the ground, 125; straining clauses in charters, 155. Lay Courts, procedure in, 221-2. Lease, contract of, 248 ; language and conditions, 248-9. Leases on the Gordon estates, 265. Leni charter, spurious, 87. Lennox, Dugald of, inquest concern- ing his succession, 228. 316 INDEX. Lennox, earldom of, held by Earl David, 218. Lennox, rural deanery of, 176. Lesmabago, a cell of Kelso, 166. Liberty, lesa protected in Scotland than England, 149. Limestone ; grant of lands cum lapide et calce, 45. Lincluden, register of, lost, 192. Lincoln, constitution of the Cathe- dral of Moray formed after, 179. Lindores, chartulary of, printed, 191. Lindsay, Lord, presented mss. of John Eiddell to thei Advocates' Library, 18. Linlithgow ; rural deanery, 174 ; St. Michael's Church, dedication of, 207. Lismore, Bishop of, Bishop of Argyle sometimes styled, 176. Liveranoe, Adam of, a royal mandate to ascertain his tenure, 224. Liveries, origin of the word, 224. Lochaber ; Thane of, progress of titles showing how he assumed the surname of MacTosche, 81-2 ; thanedom of, reddendo for, 82-3 ; rent of farms in, 258 ; measures of land in, ib. Lochaw, reddendo for, 66-7. Loohindorb, reddendo for, 64. Lords of Erection : appropiiators or impropriators? 185-6. Lords of Parliament, specially sum- moned to Parliament, 123. Lome, deanery of, 177. Losceresoh, dedication of the church, of, 208. Lothian ; David i. King in Lothian, 30 ; a Justiciar for, 75 ; arch- deaconry of, 174; rural dean- eries, ib. Lowland parish, rent of, 261. Lunan, vicar of, his income, 196. Lyon's Usher, in Parliament, 142. MacBeth, noticed with Lady Mac- Beth in the register of Priory of St. Andrews, 29. Macintosh, V. Toschach, 81-2. Mackenneth, Malcolm, laws ascribed to, 3. Mackenzie, Sir George, not a his- torical nor constitutional lawyer, 4. Mackenzie, Colin, a learned Writer to the Signet, 16. ■Maill, rent in money, 257. Mair of fee, several in Scotland, 78. Mairdoms, numerous, 78. Malcolm Beg, witness in the case of Monachkeneran, 217. Manor, barony of, granted for the slaughter of an Englishman, 37. Mantle, red, value, 66. Manuel, nunnery of, 172. Maor, his oflSce, 78 ; one in each of the four bailiaries of Angus, 78. Maormor, his office, 79 ; superseded by comes or count, 79, 97 ; in Moray, Buchan, Mar, Meams and perhaps Angus, in the time of Canmore, 97. Maorship, example of, from the Craignish papers, 78. Mar; rural deanery of, 174; earldom of, ruled by a " Maormor " in the reign of Canmore, 97. Marchynche, St. John and St. Mod- rust's Church, dedication of, 208. Margaret, Queen, her influence on Scotch customs, 94. Marischal, his office, 75 ; in Parlia- ment, 142. Mark, foundation of money valua- tions in the Isles, 278-9. Markland, equal to 34|- acres, 270, 284 ; was the measure connected with national taxation, 275-6. Marriage ; dues on, 186 ; Tax on, 52-3. Marshes, rights in maresiis conveyed in a grant in liheram baroniam, 43. Mart, valued, 66 ; kUled at Martin- mas, 257. INDEX. 317 Mary, Queen; Act in favour of Burghs in her reign, 129; his- tories of, 138 ; Inventories of her Jewels, 13, 293-4. Maxwell, Eimer de, Sheriflf of Peebles ; inquest before him con- cerning the petary of Waltams- hope, 227-8. Meadows, conveyed in a grant in libe- ram baroniam, 43. Meal, stone of, valued, 66. Mearns, The ; ruled in the time of Canmore by a Maormor, 97 ; rural deanery of, 174. ' Mediceval Latin, Dictionary of, 294. Melrose, Abbey of ; provisions re- garding game in the charters, 45-6 ; a house of the Cistercians, 167 ; account of the Abbey, 167-8 ; chartulary printed, 191; chroni- cle, 292. Mensal churches, 184. Merchandise : brief in re merccUoria, 236. Mercheta mulierum, a marriage- tax, 52-3. Merse, The; rural deanery, 174; measures of land, 241 ; extent of a plough of land, 270. Meute, a cry of hounds, 46. Middle Ages, Scotland in the, 291. Midlothian, collegiate churches in, 201. Milk, Brace's grant of a dish of rice and milk to the monks of Melrose, 38. Mills; frequently granted, 38 ; grant of lands cum molendinie, 47 ; right, a grievous oppression, ib.; no monopolies in England, 48 ; red- dendos for mills, 49, 246, 251; bringing home the mill-stone, 47-8. Mirror, valued, 65. Mitehelson, Samuel, a learned Con- veyancer, 14. Mitred abbot, his privileges, 203. Modvs tenendi clause, 40. Monachkeneran, dispute regarding the lands of, foreshadowing trial by jury, 214-220. Monastery ; officers of, 170 ; heads in Parliament, ib. ; chartularies, 188-193 ; chartularies preserved, 191 ; printed, ih. ; still in Ms., 192; foundation, 200; monks great cultivators of lands, 241; improvers of the arts, ib. ; registers recom- mended for the study of Records, 292-3. Money extent of a ploughgate, 270. Money measures of land ; where most used, 270 ; marks of national taxa- tion, 275-6 ; balanced with agri- cultural measixres, 281-4. Monivaird, Toschach of, formerly known as Thane of Glentilt, 80-1. Monks; diflferent houses of, 162; their chief orders, 162-170. Mont-Lothian, church, to be served by a chaplain, 200. Moutfort, Alexander de, Sheriff of Elgin, takes inquest, 225-6. Montrose ; dukedom of, granted to the Earl of Crauf ord for life, ] 45 ; charter of the burgh spurious, 87. Monymusk, a house of the Culdees, 163. Moors, rights in maris conveyed in a grant in liberam baroniam, 44. Moray; Bishop of, lord of eight baronies, 187 ; dispute between him and Rose of Kilravock, 237-8 ; last process for claiming a neyf by Alexander, Bishop, 256; bishopric, account of, 174-5; rural deaneries, 175 ; cathedral, its constitution, 179; earldom, granted in regality to Thomas Randolph, 40 ; uncer- tain tenure of, by the kings, 93 ; ruled in Canmore's time by a Maormor, 97 ; ploughgate in, 270. Mortancestry, brief of, 231. Morton chartulary, 193. Morven, deanery of, 177. 318 IKDBX. Mugger, trade of, '253. Muirhouse, barony, reddendo for, 67. Multure dues, grant of lands cum multuris, 47. Muuth, confederacy- of free burghs beyond, 114. Muttons of Eoss, Buchan, and Moray valued, 66. Naibk, royal burgh, holding of a subject, 117. National Assembly or Council ; under Alexander i., 99 ; under Malcolm IV., 99 ; under William the Lyon, 100 ; under Alexander ii. and Alexander III., 101-2. V. Parlia- ment. Native, neyf or villein ; grant of a barony ewm nativis, 50 ; neyf in gross, 51, 232 ; deed of sale of neyf in gross, 52, 232 ; neyf regardant, ib. ; brief touching natives and fugitives, 231-2 ; neyf or villein, the lowest of the inha- bitants of the Grange, 243 ; dis- appearance of neyfs before 1532, 256 ; last process for claiming a neyf, 159, 256. Neighbourhood, rules "for keeping good, 242, 251-2, 254. Nemias, •witness in the case of Monachkeneran, 218. Newabbey, register of, lost, 193. Newbattle Abbey; a Cistercian house, 167; account of, 168; chartulary printed, 191. New Park (Stirling), reddendo for, 65. Neyf, V. Native. Nicolas, Sir Harris ; his Chronology of History, 290. Nigg, vicar of, his income, 195-6. Nithsdale, rural deanery of, 176. Nobility in Parliament, 142 ; eldest sons of Peers in Parliament, ib. Norsemen ; money measures of land in their Scotch possessions, 277. North Berwick, nunnery of, 172 ; chartulary printed, 191. Novel Diseisin, brief of, 231. NumisTnata Scotios, 288-9. Nunneries, 172. Oblations, source of Church re- venue, 186. Observations on the Statutes, Daines Barrington's, 295. Offerings, a source of Church revenue, 186. Officers of State, list of, 74-8 ; not different from those of England, 96; in Parliament, 142, J 46; in Scotland in the reign of David I., 222. V. Great Officers of State. Offices mentioned in charters, 85. Official, The, 181 ; his jurisdiction, 238-9. Old Extent; Thomas Thomson on, 12 ; 40s. land =104 acres or one plonghgate, 270, 284. Old forms of Law, Lecture on, 209- 240. Onions, per barrel, valued, 66. Orcadian customs, 280-1. Ordeal, jurisdiction of, 61, 210. Origines Parochiales Scotice, 291. Orkney, bishopric of, 175; cathedral, 176 ; money measures of land, 277-280 ; rentals, 279-280. Oughton's Consistorial Form of Pro- cess, 295. Outfangthef, jurisdiction in, 58. Ox, valued, 66. Oxgate = 13 acres, 241, 284 ; four oxgates = one pound of Old Ex- tent, 284. Paditinam, tenure of, 224-5. Paisley Abbey; house of Cluniao Benedictines, 167 ; account of the abbey, ib, ; chartulary very in- teresting, 167 ; printed, 191 ; monks, the pursuers in an early jury trial, 214-220. INDEX. 319 Pannage, right of, 41. Pariah ; vicars, distinguished from those of the cathedral, 184 ; Parish schools. Act establishing, 130. Parishes, White Kennet's Law of, 295-6 ; Origines Parochiales, 291. Parliament, Wight's History of, 11 ; Outline of Lecture on, 21 ; Lec- ture, 92-160 ; the word first form- ally used in England in 1272, 101 ; Parliament of Brigham, the first national assembly called by that name, 102, 118-9; under John BaUiol, 102 ; under Robert I., 103 — name common in his reign, 103 ; complete, 105 ; held at Cambuskenneth, — its constitu- tion, 105 ; similar constitutions abroad, 106 ; constituent parts of Parliament, 99-111 ; Records in Scots, 110 ; imposing taxes, 111 ; Parliament of the Four Burghs to meet at Edinburgh, 114 ; burghs, the Third Estate, 115; burghs, not an Estate in the early Parlia- ments of Bruce, 116 ; importance of the Parliaments of David n., 119-122 ; small barons relieved from attendance, 122; persons specially summoned, 123 ; clergy as the First Estate, 141 ; persons admitted, but not allowed to vote, 142 ; forma of Parliament, 142-3 ; the places where the members sat, 142-3; rules for debate, 143; sitting of Parliament, 143 ; riding of Parliament, ib. ; summons, 150 ; proxies, 151 ; heads of monasteries in Parliament, 170 ; appeals, 228-9 ; Auditors of Causes and Complaints, committee of Parlia- ment, 229. V. National As- sembly. Parson or rector, 184. Partition, brief of, 231. Pastures, in a grant in liberam baro- niam, 43. Paths, roads and paths in a grant of barony, 43. Pauper, brief for supporting, 234. Payment to Commissioners of Shires and Burghs, 151-3. Peas, grant of a dish to the monks of Melrose, 38. Peebles, rural deanery of, 176. Peerages for life, 145-6. Peerage and Cousistorial Law, Rid- dell's, 18. Pendicler, sub-tenant, 267. Penicuik, reddendo for, 68. Penny, silver, valued, 65. Pennyland, where found, 275-6. People (^o^ZiJs),howthey were repre- sented in the National CounoU, 106. Pepper, pound of, valued, 66. Perambulation, brief of, 231. Perth, charter of the burgh, spuri- ous, 87. Petary, cum petariia, pertinent of land, 44; petary of Waltamshope, inquest concerning, 227-8. Picts, settled on the eastern shore, 93. Pigeons, grant of lands cum columbis, 46. Pinkerton, neglected Church history, 13. Pit, grant of a barony cum fossa, 58. Pittance, King's, to the monks of Melrose, 38. Plains, conveyed in a grant of barony, 43. Planum, means arable land, 43. Pleas at Dull, 206-7. Ploughgate ; extent of, 242 ; mili- tary service for, 247 ; rent of, in silver, 247 ; rent of, in the parish of Clatt, 250-1 ; rent, on the Forbes property, 255 ; rent, in a Lowland parish, 262 ; rent, in a Highland parish, 261 ; money extent of, 270; coimected with taxation? 274. ' ' Points of the Crown," reserved in grants of barony, 60. 320 INDEX, Pond {stagnilm), used for fish or mill purposes, 44. Poor, deprived of their rights in Commons, 155 ; brief for support- ing a pauper, 234. Popes ; usurped the patronage of bishoprics, 178 ; disposed of the benefices of churchmen who died at Eome, ib. Porter of the monastery, his duties, 170. Portmuoch, St. Stephen and St. Moan's Church of, dedication of, 208. Poultry lands, near Edinburgh, red- dendo for, 67. Poultry of Koss, estimated, 66. Poundlaud, where found, 275-6. "Practicks;" MS. volumes of deci- sions collected by lawyers, 5. Pratum, a hay meadow, 43. Prebend, the meaning of the word, 183. Prebendary, 179, 183. Pyecentor of the cathedral ; his duty, 181. Prelates in Parliament, 170. Prerogative, Crown lawyers stretch- ing, 4. Prescription, founded on in the case of Monachkeneran, 215-6. President of the Council ; his office, 77. Primogeniture, right of, in the ear- liest Scotch charter, 34-5. Priors, specially summoned to Parlia- ment, 123 ; prior and sub-prior, officers of the Cathedral, 170. Privilege ; persons admitted, but not allowed a vote In Parliament, 142. Privy Seal, the, his office, 77. Probi Homines ; who they were, 36. Process, forms of, 21, 22; earliest, 209. Procuration, meaning of, 196. Progresses, royal, 95. Property, right of, precedes that of forest, 41. Provostries, list of, 201-2. Proxies in Parliament, 150. Quaequidem clause in the charter, 39. Quarry; grant of lands cvam lapicidiis, 45. Qtieen Mary^s Jewels, Inventories of, 13, 293-4. V. Mary, Queen. Rabbits, pair of, valued, 66. Randolph, Thomas, receives earldom of Moray in regality, 40. Rathel, witness in the case of Mon- achkeneran, 218. Recognition, brief of, 231. Records ; rescued from decay by Thomas Thomson, 13 ; plea for the study, 286-8 ; books recom- mended, 288-296 ; publications, English and Scotch, 296. Rector or parson of a church, 184. Rectorial tithes, 186 ; distinguished from vicarial tithes, 193-196. Reddendo clause, 61-8. Red-handed, homicide taken, 210. Reek hen, paid as custom, 257. Reeves's, Rev. Dr., Adomnan^s lAfe of St. Colmriba, 293 ; history of the Culdees, ib. Reformation, Abbots and Priors in Parliament after, 141 ; excommuni- cation before, 149. Regality, extent of the grant, 40. Regiam Majestatem, first proved by John Davidson to be copied from GlanvUl, 16. Registrmn Magni Sigilli, edited by Thomas Thomson, 13. Regular and secular clergy, distin- guished, 161. Relief, grant of a barony cum re- leviis, 50. " Relig-Oran,'' origin of the name, 20. INDEX. 321 Religious Houses; trial by ordeal given to, 61, 210; earliest in- formation of rural matters from abbeys, 241. "Removing of Tenants," by Walter Ross, 16. Rent ; rarely stipulated in old grants of land, 63 ; oldest information concerning, 241 ; small taoney rent paid in Badenoch, 258-9; money' valuation in the West for rent or tax, 277. Rental; of Abbey of Kelso, 243-8 ; of bishopric of Aberdeen, 250-4 ; of Forbes property, 254-6 ; of Gor- don estates, 256-265 ; of Struan estates, 267-9 ; of the Isles, 278-9 ; of bishopric of the Isles, 279 ; of Orkney and Shetland, 279-280. Representation; James i. attempts to introduce, 122, 123; Acts in favour of, 123, 136, 137; estab- lished in the reign of James vi., 123, 137 ; 20 commissioners for shires and 10 for burghs in the British Parliament, 139; burghs required to send each two commis- sioners, 141 ; afterwards one only, 142. Residence, prebendary bound to, 183. Restennet, charters of, in MS., 192. Ressin, witness in the case of Mon- achkeneran, 218. Restalrig, coUegiate church of, 201. Restoration, bishops in Parliament from, till the Revolution, 141. Retours, edited by Thomas Thom- son, 13. Revocation, the King's prerogative of revoking all grants, 148. Revolution ; the clergy no longer an estate, 141. Rice, Bruce's grant of a dish of rice and milk to the monks of Melrose, 38. RiddeU, John ; his Peerage and Con- sistorial Law, 18 ; his MS. presented to the Advocates' Library, ib. Riding of Parliament, 143. Right, brief of, steps of procedure, 234-6. Riunes, deanery of, 176. Roads, in a grant in libercm, baro- mam, 43; right of, encroached upon, 158 ; highroads in the time of William the Lyon and the Alexanders, 242. Robertson, E. W., Scotland under her Early Kings, 291. Robertson, Joseph ; Antiqaities of the Shires of Aberdeen and Banff ; Inventories of Queen Mary's Jewels; Statutes and Councils of the Scotch Church, 13, 293-4. Rome; disposal of the benefices of churchmen who died there, 178. Rose of Kilravock's dispute with the Bishop of Moray, 237-8. Rosemarknie, bishopric of Ross some- times called, 175. Rose-noble of gold, value of, 66. Roslin, collegiate church of, 201. Ross, Duke of, received his title of honour ad vitam, 145. Ross, Walter, a, learned Writer to the Signet, 16. Ross, bishopric of, 175 ; sometimes called Rosemarknie, ib. Rossinclerach, church of, dedicated, 208. Rotheric Beg of Carrie, witness in the case of Monachkeneran, 218. Rouming, explained, 269. Roxburgh, one of the burghs com- posing curia quatuor burgorum,, 114. Rnddiman, Thomas, wrote the preface to Anderson's Diplomata, 289. " Runrig," 252. Rural clergyman distinguished from cathedral vicar, 84. Rural dean; his jurisdiction, 183. Rural occupation. Lecture on, 241- 285 ; earliest information from religious houses, 241. 322 INDEX. Russell, John, a learned Conveyancer, 14-5. Riitherglen, rural deanery of, 176. Sac, jurisdiction in, 55. St. Andrews; Bishop of, David, churches dedicated by him, 208 ; bishopric, 173-4 ; archdeaconries, rural deaneries, iJ>.; suffragans, 174-6 ; register of the bishopric, lost, 190 ; cathedral invested by Alexander i., 20 ; Priory, a house of the canons of St. Austin, 163 — account of, 163-4 ; register of the Priory printed, 191 ; MacBeth and Pictish King Brude, noticed in the register, 29; archdeaconry of, 174 ; rural deaneries, ib. ; Uni- versity, register not printed, 191. St. Clare, nuns of, branch of Fran- ciscans, 172. St. Columba, taking seisin of lona, 20. St. Cuthbert's, vicar of, 199. St. GUes' College Kirk, chartulary printed, 191. St. Mary's Isle, register of, lost, 193. St. Serfs Isle in Lochleven, a house of the Culdees, 163. Salic law, the Crown settled on the heirs-male of Robert ii., 109-10. Salmon, a fresh, valued, 66 ; barrel valued, 66 ; brief for putting down cruives, 236-7. Salters, till recently "astricted," 50. Salt- work, a pertinent of a barony, 49. Sandilands of Calder, temporal lords of Torphichen at the Refor- mation, 169. " Sang schuils," Act establishing, 129 ; origin of, 181. Sarum, constitution of Cathedral of Glasgow formed after, 172. Schools ; Acts for establishing, 129- 130; schools of Ayr, Master of, judge in the case of Monachken- eran, 214. Sciennes, Edinburgh, nuns of, 172. Scone, Abbey of; inquest at, for as- sessing all property, 108 ; corona- tion of Robert iii.at,108-9; a mon- astery of the Culdees, 163 — after- wards of the canons of St. Austin, 163 ; chartulary printed, 191 ; monks, had the jurisdiction of ordeal, 211 ; early contract of lease between the Abbot and the Hays of Leys, 248. Scouin, St. Memma's Church of, dedication of, 208. Scots language ; version of the Sta- tutes of Robert i. in Scots, 104 ; Records of Parliament in Scots, 110; language of the Acts of Parliament, 153-4; oldest speci- men of Scots, 248. Scotland ; made up of several na- tions, 92 ; Proper, boundaries of, 92; constitution, different from that of England, 94 ; earliest court, 98 ; liberty of the subject, 149 ; divided into sheriffdoms, 222 ; Scotland vmder' her Early Kings, 291 ; Scotland in the Middle Ages, 291 ; Statutes and Councils of the Scotch Church, 294. Scots, settled in the West, 93. Scott of Haychester, Sir Walter, cre- ated Earl of Tarras for life, 146. Sealing of charters, 68-9. Seals, preserved by the monks of Melrose, 168. Seals, Ancient Scottish (Henry Laing), 294. Seashore, encroached on, 155. Secretary of State, 77. Secular and regular clergy distin- guished, 161 ; the secular clergy, 173-184; seculars members of col- legiate churches, 201. Sederunt of Parliament, an early 126-7. INDEX. 323 Seisin, manner of giving, 19-20; brief of, 234. V. Investiture. Senators of the College of Justice, in Parliament, 142. Serfs; colliers and salters till recently "astrioted," 50; attempt to "as- trict " fishers, ib. ; description of serfs, 50-1 ; serfdom died out first in Scotland, 159; brief of, 231-2; brief enfranchising a serf, 232. V. Native. Serjeantry, tenure by, 62. Services on the barony of Bolden, 244. Session, Court of, origin and estab- lishment, 119-122. Sheep, a, valued, 66 ; white sheep exempted from taxation, 108 ; brief as to disease of sheep, 236 ; flocks of sheep belonging to the monks of Kelso, 243 ; small num- ber of sheep in the Highlands, 263-4. Sheer day's work, estimated, 66. Sheriffdoms, Scotland divided into, 222. Shetland, money measures of land in, 277. ShiHingland, tax or rent connected with, 275-6. 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