With the death of Alexander I. (April 25, 1124) and the accession of his
brother, David I., the deliberate Royal policy of introducing into
Scotland English law and English institutions, as modified by the Norman
rulers, was fulfilled. David, before Alexander's death, was Earl of the
most English part of Lothian, the country held by Scottish kings, and
Cumbria; and resided much at the court of his brother-in-law, Henry I. He
associated, when Earl, with nobles of Anglo-Norman race and language,
such as Moreville, Umfraville, Somerville, Gospatric, Bruce, Balliol, and
others; men with a stake in both countries, England and Scotland. On
coming to the throne, David endowed these men with charters of lands in
Scotland. With him came a cadet of the great Anglo-Breton House of
FitzAlan, who obtained the hereditary office of Seneschal or _Steward_ of
Scotland. His patronymic, FitzAlan, merged in Stewart (later Stuart),
and the family cognizance, the _fesse chequy_ in azure and argent,
represents the Board of Exchequer. The earliest Stewart holdings of land
were mainly in Renfrewshire; those of the Bruces were in Annandale. These
two Anglo-Norman houses between them were to found the Stewart dynasty.
The wife of David, Matilda, widow of Simon de St Liz, was heiress of
Waltheof, sometime the Conqueror's Earl in Northumberland; and to gain,
through that connection, Northumberland for himself was the chief aim of
David's foreign policy,--an aim fertile in contentions.
We have not space to disentangle the intricacies of David's first great
domestic struggles; briefly, there was eternal dispeace caused by the
Celts, headed by claimants to the throne, the MacHeths, representing the
rights of Lulach, the ward of Macbeth. {20} In 1130 the Celts were
defeated, and their leader, Angus, Earl of Moray, fell in fight near the
North Esk in Forfarshire. His brother, Malcolm, by aid of David's Anglo-
Norman friends, was taken and imprisoned in Roxburgh Castle. The result
of this rising was that David declared the great and ancient Celtic
Earldom of Moray--the home of his dynastic Celtic rivals--forfeit to the
Crown. He planted the region with English, Anglo-Norman, and Lowland
landholders, a great step in the anglicisation of his kingdom.
Thereafter, for several centuries, the strength of the Celts lay in the
west in Moidart, Knoydart, Morar, Mamore, Lochaber, and Kintyre, and in
the western islands, which fell into the hands of "the sons of Somerled,"
the Macdonalds.
In 1135-1136, on the death of Henry I., David, backing his own niece,
Matilda, as Queen of England in opposition to Stephen, crossed the Border
in arms, but was bought off. His son Henry received the Honour of
Huntingdom, with the Castle of Carlisle, and a vague promise of
consideration of his claim to Northumberland. In 1138, after a disturbed
interval, David led the whole force of his realm, from Orkney to
Galloway, into Yorkshire. His Anglo-Norman friends, the Balliols and
Bruces, with the Archbishop of York, now opposed him and his son Prince
Henry. On August 22, 1138, at Cowton Moor, near Northallerton, was
fought the great battle, named from the huge English sacred banner, "The
Battle of the Standard."
In a military sense, the fact that here the men-at-arms and knights of
England fought as dismounted infantry, their horses being held apart in
reserve, is notable as preluding to the similar English tactics in their
French wars of the fourteenth and fifteenth centuries.
Thus arrayed, the English received the impetuous charge of the wild
Galloway men, not in armour, who claimed the right to form the van, and
broke through the first line only to die beneath the spears of the
second. But Prince David with his heavy cavalry scattered the force
opposed to him, and stampeded the horses of the English that were held in
reserve. This should have been fatal to the English, but Henry, like
Rupert at Marston Moor, pursued too far, and the discipline of the Scots
was broken by the cry that their King had fallen, and they fled. David
fought his way to Carlisle in a series of rearguard actions, and at
Carlisle was joined by Prince Henry with the remnant of his men-at-arms.
It was no decisive victory for England.
In the following year (1139) David got what he wanted. His son Henry, by
peaceful arrangement, received the Earldom of Northumberland, without the
two strong places, Bamborough and Newcastle.
Through the anarchic weakness of Stephen's reign, Scotland advanced in
strength and civilisation despite a Celtic rising headed by a strange
pretender to the rights of the MacHeths, a "brother Wimund"; but all went
with the death of David's son, Prince Henry, in 1152. Of the prince's
three sons, the eldest, Malcolm, was but ten years old; next came his
brothers William ("the Lion") and little David, Earl of Huntingdon. From
this David's daughters descended the chief claimants to the Scottish
throne in 1292--namely, Balliol, Bruce, and Comyn: the last also was
descended, in the female line, from King Donald Ban, son of Malcolm
Canmore.
David had done all that man might do to settle the crown on his grandson
Malcolm; his success meant that standing curse of Scotland, "Woe to the
kingdom whose king is a child,"--when, in a year, David died at Carlisle
(May 24, 1153).
SCOTLAND BECOMES FEUDAL.
The result of the domestic policy of David was to bring all accessible
territory under the social and political system of western Europe, "the
Feudal System." Its principles had been perfectly familiar to Celtic
Scotland, but had rested on a body of traditional customs (as in Homeric
Greece), rather than on written laws and charters signed and sealed.
Among the Celts the local tribe had been, theoretically, the sole source
of property in land. In proportion as they were near of kin to the
recognised tribal chief, families held lands by a tenure of three
generations; but if they managed to acquire abundance of oxen, which they
let out to poorer men for rents in kind and labour, they were apt to turn
the lands which they held only temporarily, "in possession," into real
permanent _property_. The poorer tribesmen paid rent in labour or
"services," also in supplies of food and manure.
The Celtic tenants also paid military service to their superiors. The
remotest kinsmen of each lord of land, poor as they might be, were valued
for their swords, and were billeted on the unfree or servile tenants, who
gave them free quarters.
In the feudal system of western Europe these old traditional customs had
long been modified and stereotyped by written charters. The King gave
gifts of land to his kinsmen or officers, who were bound to be "faithful"
(_fideles_); in return the inferior did homage, while he received
protection. From grade to grade of rank and wealth each inferior did
homage to and received protection from his superior, who was also his
judge. In this process, what had been the Celtic tribe became the new
"thanage"; the Celtic king (_righ_) of the tribe became the thane; the
province or group of tribes (say Moray) became the earldom; the Celtic
Mormaer of the province became the earl; and the Crown appointed _vice-
comites_, sub-earls, that is sheriffs, who administered the King's
justice in the earldom.
But there were regions, notably the west Highlands and isles, where the
new system penetrated slowly and with difficulty through a mountainous
and almost townless land. The law, and written leases, "came slowly up
that way."
Under David, where his rule extended, society was divided broadly into
three classes--Nobles, Free, Unfree. All holders of "a Knight's fee," or
part of one, holding by _free_ service, hereditarily, and by charter,
constituted the _communitas_ of the realm (we are to hear of the
_communitas_ later), and were free, noble, or gentle,--men of coat
armour. The "ignoble," "not noble," men with no charter from the Crown,
or Earl, Thane, or Church, were, if lease-holders, though not "noble,"
still "free." Beneath them were the "unfree" _nativi_, sold or given
with the soil.
The old Celtic landholders were not expropriated, as a rule, except where
Celtic risings, in Galloway and Moray, were put down, and the lands were
left in the King's hands. Often, when we find territorial surnames of
families, "_de_" "of" this place or that,--the lords are really of Celtic
blood with Celtic names; disguised under territorial titles; and finally
disused. But in Galloway and Ayrshire the ruling Celtic name, Kennedy,
remains Celtic, while the true Highlands of the west and northwest
retained their native magnates. Thus the Anglicisation, except in very
rebellious regions, was gradual. There was much less expropriation of
the Celt than disguising of the Celt under new family names and
regulation of the Celt under written charters and leases.
CHURCH LANDS.
David I. was, according to James VI., nearly five centuries later, "a
sair saint for the Crown." He gave Crown-lands in the southern lowlands
to the religious orders with their priories and abbeys; for example,
Holyrood, Melrose, Jedburgh, Kelso, and Dryburgh--centres of learning and
art and of skilled agriculture. Probably the best service of the regular
clergy to the State was its orderliness and attention to agriculture, for
the monasteries did not, as in England, produce many careful chroniclers
and historians.
Each abbey had its lands divided into baronies, captained by a lay
"Church baron" to lead its levies in war. The civil centre of the barony
was the great farm or grange, with its mill, for in the thirteenth
century the Lowlands had water-mills which to the west Highlands were
scarcely known in 1745, when the Highland husbandmen were still using the
primitive hand-quern of two circular stones. Near the mill was a hamlet
of some forty cottages; each head of a family had a holding of eight or
nine acres and pasturage for two cows, and paid a small money rent and
many arduous services to the Abbey.
The tenure of these cottars was, and under lay landlords long remained,
extremely precarious; but the tenure of the "bonnet laird" (_hosbernus_)
was hereditary. Below even the free cottars were the unfree serfs or
_nativi_, who were handed over, with the lands they tilled, to the abbeys
by benefactors: the Church was forward in emancipating these serfs; nor
were lay landlords backward, for the freed man was useful as a spear-man
in war.
We have only to look at the many now ruined abbeys of the Border to see
the extent of civilisation under David I., and the relatively peaceful
condition, then, of that region which later became the cockpit of the
English wars, and the home of the raiding clans, Scotts, Elliots, and
Armstrongs, Bells, Nixons, Robsons, and Croziers.
THE BURGHS.
David and his son and successor, William the Lion, introduced a stable
middle and urban class by fostering, confirming, and regulating the
rights, privileges, and duties of the already existing free towns. These
became _burghs_, royal, seignorial, or ecclesiastical. In origin the
towns may have been settlements that grew up under the shelter of a
military castle. Their fairs, markets, rights of trading, internal
organisation, and primitive police, were now, mainly under William the
Lion, David's successor, regulated by charters; the burghers obtained the
right to elect their own magistrates, and held their own burgh-courts;
all was done after the English model. As the State had its "good men"
(_probi homines_), who formed its recognised "community," so had the
borough. Not by any means all dwellers in a burgh were free burghers;
these free burghers had to do service in guarding the royal castle--later
this was commuted for a payment in money. Though with power to elect
their own chief magistrate, the burghers commonly took as Provost the
head of some friendly local noble family, in which the office was apt to
become practically hereditary. The noble was the leader and protector of
the town. As to police, the burghers, each in his turn, provided men to
keep watch and ward from curfew bell to cock-crow. Each ward in the town
had its own elected Bailie. Each burgh had exclusive rights of trading
in its area, and of taking toll on merchants coming within its _Octroi_.
An association of four burghs, Berwick, Roxburgh, Edinburgh, and
Stirling, was the root of the existing "Convention of Burghs."
JUSTICE.
In early societies, justice is, in many respects, an affair to be settled
between the kindreds of the plaintiff, so to speak, and the defendant. A
man is wounded, killed, robbed, wronged in any way; his kin retaliate on
the offender and _his_ kindred. The blood-feud, the taking of blood for
blood, endured for centuries in Scotland after the peace of the whole
realm became, under David I., "the King's peace." Homicides, for
example, were very frequently pardoned by Royal grace, but "the pardon
was of no avail unless it had been issued with the full knowledge of the
kin of the slaughtered man, who otherwise retained their _legal_ right of
vengeance on the homicide." They might accept pecuniary compensation,
the blood-fine, or they might not, as in Homer's time. {27} At all
events, under David, offences became offences against the King, not
merely against this or that kindred. David introduced the "Judgment of
the Country" or _Visnet del Pais_ for the settlement of pleas. Every
free man, in his degree, was "tried by his peers," but the old ordeal by
fire and Trial by Combat or duel were not abolished. Nor did
"compurgation" cease wholly till Queen Mary's reign. A powerful man,
when accused, was then attended at his trial by hosts of armed backers.
Men so unlike each other as Knox, Bothwell, and Lethington took advantage
of this usage. All lords had their own Courts, but murder, rape, arson,
and robbery could now only be tried in the royal Courts; these were "The
Four Pleas of the Crown."
THE COURTS.
As there was no fixed capital, the King's Court, in David's time,
followed the King in his annual circuits through his realm, between
Dumfries and Inverness. Later, the regions of Scotia (north of Forth),
Lothian, and the lawless realm of Galloway, had their Grand Justiciaries,
who held the Four Pleas. The other pleas were heard in "Courts of
Royalty" and by earls, bishops, abbots, down to the baron, with his
"right of pit and gallows." At such courts, by a law of 1180, the
Sheriff of the shire, or an agent of his, ought to be present; so that
royal and central justice was extending itself over the minor local
courts. But if the sheriff or his sergeant did not attend when summoned,
local justice took its course.
The process initiated by David's son, William the Lion, was very slowly
substituting the royal authority, the royal sheriffs of shires, juries,
and witnesses, for the wild justice of revenge; and trial by ordeal, and
trial by combat. But hereditary jurisdictions of nobles and gentry were
not wholly abolished till after the battle of Culloden! Where Abbots
held courts, their procedure, in civil cases, was based on laws
sanctioned by popes and general councils. But, alas! the Abbot might
give just judgment; to execute it, we know from a curious instance, was
not within his power, if the offender laughed at a sentence of
excommunication.
David and his successors, till the end of the thirteenth century, made
Scotland a more civilised and kept it a much less disturbed country than
it was to remain during the long war of Independence, while the beautiful
abbeys with their churches and schools attested a high stage of art and
education.