Both the principle of joint proprietary right, and the elective

character of the Senior, were thoroughly recognised in the Imperial

Benefice, at least as late as the eleventh century. The kindred, ending

at the seventh in descent, and never acquiring hereditary right before

the lapse of three generations, chose and presented their Senior to

their lord, their representative fulfilling all the obligations of the

benefice, which, being held by military service, differed in certain

particulars from the older Gavel.[276] Stated military service was

required for a stated portion of land, a well-armed soldier attending

his lord from every benefice, which was always originally of a certain

stated size, the holder of many being answerable for an equivalent

number of men-at-arms, whilst the responsibility in half a benefice

was shared between the Seniors of two such holdings. As the military

feud required the service of a man-at-arms, it followed that the lord

was entitled to provide a substitute whenever such service could not

be rendered through the minority or sex of the heirs; and out of this

right arose the claim of the lord of a military fief to control the

marriage of the heiress, and to act as guardian of the minor, rights

which, in the case of the Gavel, belonged to the kindred. The earlier

system was ruled by a different principle of military service: the

greater the numbers of the family or tribe, the more prominent their

position in battle, the wider the district allotted to them in the

annual distribution of the land; and hence it was the pride of the

German _pagi_, in the days of Tacitus, to contribute a far greater

number of warriors than their necessary quota of “a hundred.” The

earlier principle was still in full force amongst the Celts, every

freeman continuing to carry arms, and to be liable at the call of the

king to attend the yearly assembly of the _Sluagh_ or _Leuchte_--the

Welsh _Lluyd_, the German _Leudes_--if required for a “hosting across

the border;” a custom which was retained side by side with the military

service of the feudal system, under the name of “Scottish service,”

rendering an army thus levied, and armed only with weapons of offence,

more numerous indeed, but far less effective, than the well-equipped

body of mail-clad men-at-arms, who were bound by the tenure of

“knight-service” to follow their lord to the field.

Wherever the adoption of the benefice had introduced the principle of

stated military service, the representatives of the earlier freemen

had invariably sunk into a class of agricultural peasantry, free,

but occupying an intermediate station between the noble and the læt

or serf. The soldier, for instance, amongst the Anglo-Saxons in the

seventh century was exclusively represented by the Thane, whilst the

member of the _folk_ or people was only required to attend the

army in the capacity of a camp follower, unarmed and without either the

duties or responsibilities of a fighting man.[277] No such intermediate

class is traceable amongst the Celts of this period, who had not yet,

apparently, entered upon that stage of society in which the noble rose

out from amongst the ranks of the free, as a member of a distinct and

separate caste. The equivalent of the Anglo-Saxon Ceorl--the Boneddig

or Bonnacht--continued to rank amongst the lesser _Duine-Uasal_

who lived by the sword, and whilst the title of _Churl_ has passed

into an opprobrious epithet in the English language, the candidate

for a Welsh county still esteems it an act of courtesy to address his

constituency as _Boneddigion_ or “gentlemen.” A wide, and in

most cases apparently an all but impassable barrier, separated the

_Duine-Uasal_ from the agricultural population connected with the

land, a class which may be said, in a general way, to have comprised

all who were not connected by blood with the _Duchasach_ of the

district, answering to the _Attach Tuatha_ or _Daer-Clans_

amongst the Irish, and the _Alltudion_ and earlier _Lætic_

population--the _Wealh_--amongst the Welsh and Germans. Captives

and criminals formed the absolutely servile class, for, to judge from

the Welsh laws, the _alien_ enjoyed a certain degree of freedom,

being at liberty to change his residence as long as it was equally in

the power of his lord to remove him from his land; though after a lapse

of three generations in one locality, the fourth in descent acquired a

permanent right to remain in the ancestral dwelling, with a claim to

subsistence in that district from which he was now irremovable. No

fixity of tenure was acquired by such a claim, which was simply a right

to receive every year from the _maor_ or steward of the Tighern

a shifting allotment, representing literally the yearly assignment

of land alluded to in the descriptions of Cæsar and Tacitus; and at

the opening of the fourteenth century the agricultural population

throughout Scotland, as a class, still held their farms by a yearly

tenancy-at-will.[278] By that time, however, the shifting character of

the allotment had probably undergone a certain qualification, for the

earliest law laid down in the first year of the reign of Alexander the

Second seems to have been directed against the unsettled condition of

these _Attach Tuatha_, and their predilection for the listless

indolence of a pastoral life. Every “Bondman” was ordered to plough and

sow the land in the same locality, or _Vill_, he had occupied in

the preceding year; all who had held no land but were in the possession

of five cows or upwards--in other words, of more than a pound--were

bidden to take land from their lord and raise a corn crop for his

benefit; whilst the proprietor of less than that amount of cattle

was to sell his oxen, if he had any, to those who could use them in

tillage, and work as a labourer in digging and sowing, equally for the

benefit of his lord.[279] The dependance of the _Duine-Uasal_ for

their support upon the population thus attached to the soil, ensured

to the latter a certain amount of consideration; for it was on his

“native-men” that the Tighern quartered his kinsmen and retainers, and

from the same agricultural class he levied his rents. The necessity of

a class of this description in such an age was its safeguard, up to a

certain point, from extortion and oppression; they were protected like

a sheep for its fleece, as long as their Tighern was in a condition to

defend them, the want of fixed and settled rights being invariably most

felt when society is in a state of transition.

Such then were the two great classes into which the whole population of

Scotland was at this time divided. Earls, Thanes, Judges, and Ogtierns,

with their respective kindred, composed the _Duchasach_ or

_Duine-Uasal_, the free proprietary of the kingdom, together with

the lesser _Duine-Uasal_ who dedicated their swords to the service

of their Senior, answering to the Welsh _Boneddigion_. Amongst

the numerous burdens which pressed so heavily upon the Irish peasantry

in the Anglo-Irish period, was the payment of a certain sum under

the name of _Bonnacht_, to relieve them from the necessity of

supporting their lord’s retainers; the existence of this custom amongst

the Irish Gael pointing to the manner in which, in a similar state of

society, the lesser _Duine-Uasal_, or _Bonnacht_, amongst the

Scottish Gael were quartered upon the native-men of their respective

districts. Nor must the abbot and his kindred, with _Duine-Uasal_

connected with the _ab-thanage_, be omitted from amongst the

_Duchasach_; whilst as there were “inborn” clergy, who at a

later date were numbered amongst the _Nativi_, and the son of a

chaplain by the laws of William lost his free-right upon the death of

his father, the law of descent which was in force amongst the laity

was evidently in operation amongst the clergy also.[280] No especial

privileges of rank belonged to the ecclesiastical order in early times

amongst the people of Germanic origin; they were assessed according

to their actual birth, and it was an innovation upon ancient custom

amongst the Anglo-Saxons when the priest, “on account of his seven

orders,” was reckoned worthy of _Thane-right_ or nobility. The

earlier custom was still in force apparently amongst the Celts; and as

none beyond a certain limit of the “Founder’s kin” were privileged to

succeed to the abbacy, so the descendants of the married clergy, beyond

a similar limit, would appear to have become attached as dependants to

the abbey lands; forming, probably, those bands of monastic warriors

whose occasional conflicts, recorded in the Irish Annals, seem to

have rivalled in ferocity the tumults of the eastern monks. The

kindred of the sovereign enjoyed the rank and appanages of earls, the

line of Atholl unquestionably, and perhaps that of Fife, branching

off permanently in this manner from the royal stock--just as the

ealdormen of Saxon Mercia towards the close of the tenth century traced

their origin to Ælfhere the kinsman of Edgar. The remaining earls

represented, either the “inborn” descendants of Mormaors appointed

at an earlier period over conquered districts; or the inheritors

of a province from an independent ancestry, who, acknowledging the

superiority of the king of Scots, continued to hold their territories

by hereditary right, resembling the ealdormen of Saxon Northumbria.

Of the earls of Scotia, the majority probably answered to the

former description, though the ancient earls of Strathern may have

represented, either an offshoot from an earlier royal race, or the

descendants of a line of independent princes; whilst amongst the latter

class may be reckoned the forfeited earls of Moray, the earls of

Caithness, and perhaps of Ross, with the lords of Galloway and of the

Oirir-Gael.

The only recognised bond of union was the immemorial tie of kindred,

none being entitled to the privileges of gentle birth who could not

claim a certain degree of relationship to a Tighern or Og-tiern; none

being entitled to a right of subsistence whose kindred had not dwelt

for three generations in the district. Charters were unknown; a shake

of the hand before a witness settled a common bargain--the thirstier

southerns concluded such compacts with a _drink_--whilst the

delivery of a stick, a straw, or a clod of earth, in the presence of a

greater number of witnesses, apparently conveyed a more permanent grant

of land, though length of occupancy alone conferred hereditary right.

On important occasions a greater degree of ceremony was observed, one

of the latest displays of this description occurring in the reign

of Alexander the First, when the king restored to the Priory of St.

Andrews the tract of country known as the _Cursus Apri_, or “the

Boar’s Raik.” The king, in the presence of a vast concourse of people,

led up to the high altar his Arab charger, equipped with housings of

great value, and with a silver lance and shield; the royal saddle and

shield, with a complete suit of Turkish armour, being preserved in

the church of St. Andrews in testimony of the munificent donation.

Notices of such grants after the middle of the eleventh century were

occasionally preserved in writing, as _memoranda_, however, and

not as title-deeds; and instances of such _memoranda_ are to be

found amongst the Irish and Welsh, as well as amongst the Scots, in

the transitional period preceding the introduction of the regular

charter.[281]

The inevitable tendency of such a state of society was to call into

existence a class of lesser _Duine-Uasal_, clinging to the privileges

of gentle birth, and naturally averse to sink to the level of the

agricultural peasantry. The distant kinsman, removed beyond the limit

of the privileged branches of the family, was ever ready to dedicate

his sword to the service of the Senior of his race, and was quartered

upon the peasantry of the district as an _Amas_ or _Bonnach_, a member

of the _Arimannia_ or _Hird_; for he was always certain of a welcome

in an age in which the numbers of such a following, useless except for

purposes of aggression, were the source and evidence of a chieftain’s

power. Expansion thus became a vital necessity, the very numbers of a

kindred, which entailed the obligation, generally ensuring success in

their encroachments on a weaker neighbour; and the same causes that

impelled one German tribe upon another, or precipitated them in one

mighty wave upon the Roman frontier, ensured a normal state of warfare

amongst the Celts. Scotland was, however, in a far less disorganized

condition than Ireland at this period; and though the royal authority

was comparatively of little use in repressing internal warfare amongst

the mountains of _Moravia_ and Argyle, it was of greater power in

the more open districts of Scotland proper, and the south, where the

magnates no longer mustered their followers for “a hosting beyond

the frontier” except at the sovereign’s command. Oppression and

encroachment had taken the place of open warfare, and they were content

to quarter their followers upon a weaker neighbour, and to relieve the

native-men of their own district by moving about from place to place

under pretence of travelling, or of attending upon the royal court,

with a retinue numerous enough to support their own dignity, and

ensure for themselves and followers the necessary hospitality known

as “herbary.” It was to protect themselves against the abuses of such

a system, which was long in full force amidst the mountains of the

north and west, that the lesser barons at a later period entered into

bonds of _Manred_--or of allegiance in return for protection--with

the greater magnates, whose power and dignity were thus enhanced;

such engagements being only the _chartered_ form of the same tie that

united, in an earlier period, the Gallic and Germanic _clientes_ to the

greater confederacies upon whom they were dependant: for wherever the

circumstances of the age called it forth, the principle of clientage

was sure to be developed.[282]

Few material changes had been introduced beyond the Scots water, in

either church or state, when the youngest and greatest of Malcolm

Ceanmore’s sons succeeded his brother upon the throne. Malcolm was

a Gaelic king to the last, and the reforming energy of Margaret was

directed to the court and clergy; she scarcely aimed at effecting any

radical change in the principles of government. During the reigns of

Duncan and of Donald, Scotland must, if anything, have retrograded

rather than advanced, remaining stationary apparently whilst Edgar

was king--to judge from the little that is known of that period--the

disorganized condition of the see of St. Andrews, which was vacant

during the whole of these three reigns, typifying probably the general

state of the kingdom at large. Sufficient occupation was afforded

Alexander by his contest with the church, which was scarcely brought

to a close with his life, and by his northern wars; and though, from

the presence of some of the great feudal officers of the crown, and of

_Vicecomites_, on certain state occasions during his reign, it may

be gathered that his policy was identical with that of his successor,

David may be safely regarded as the first king who practically

introduced into Scotland the novel system of government in church and

state, which was hardly thoroughly established before the opening of

the thirteenth century. Many of the institutions and principles which

had grown into use, more or less, upon the Continent through the

gradual substitution of Roman law for the earlier Teutonic custom, and

which had been adopted by successive sovereigns of Alfred’s race in

the reconstruction of the Anglo-Saxon monarchy, were now substituted

in a similar manner for the earlier laws and customs of Scotland; some

of these changes being carried out at once, whilst in other cases

a considerable time elapsed, after the first introduction of the

principle, before it was thoroughly in operation throughout the country.

There was a period in early Frankish history, when the _Comes_ or

_Graphio_ was a royal deputy, answerable for the due collection

of the royal revenue, and exercising over the population, dependant

on the Crown, as fiscal-judge, a jurisdiction which did not extend

over the allodial proprietary. None of these attributes belonged to

the _Count_ of a later era, who, no longer either a fiscal-judge

or a collector of the royal revenue, was simply a greater baron,

enjoying only the title and dignity of his former office. A similar

change was in progress amongst the Anglo-Saxons, for in the reign

of Ini, the king’s ealdorman was the leading judge of the shire,

forfeiting his district for compounding a felony; and in Alfred’s

days, no man of a certain class could pass from one shire to another

without permission from the king’s ealdorman, who was still connected

with the shire as the leading personage in the _Gemote_, and

appealed to, on certain occasions, as an official. In Edward’s laws,

however, and in the laws of subsequent kings, the sovereign addresses

his _Gerefas_ alone, without any allusion to the jurisdiction of

the ealdorman; and though the presence of the bishop and the ealdorman

at the _Shire-Gemote_ was required by Edgar’s law, confirmed by

Canute, the Norman Conquest seems to have found the sheriff, a royal

official, and not the _Earl_--who was a _Duke_ rather than

a _Count_ at this period--the presiding officer in the county

court.[283] It appears to have been one of the leading features of the

policy introduced by Alexander and David, to carry out an alteration of

this character in Scotland, where the Earl and the Thane--the Mormaor

and the Maor--like the Jarl and the _Lenderman_ and _Stallr_

amongst the Northmen, were still invested with the full authority of

royal officials. In the Welsh Commot, which was supposed to be divided

by law, or custom, into twelve _maenols_, only one of these

divisions was the actual property of the _Maer_, who exercised

a joint authority with the _Cynghellwr_ over the whole district,

one-third of the Commot being composed of _Taog-trefs_, occupied

by royal villeins, in other words, being royal _demesne_; and

from the division of the crown lands in Scotland at a later period

into _Thanages_ and _Demesne_, it may be gathered that the

thanage was by this time restricted to the actual property of the

thane, who, no longer exercising authority over the demesne as a royal

official, was simply a hereditary tenant by rent, holding by Scottish

service instead of by knight service. In the same manner, the authority

of the Earl or Mormaor--a character unknown in the principality of

Wales, but who was simply a high steward or _Maer_ on a greater

scale,--appears to have been limited to his actual earldom, the

functions which he had hitherto discharged as a royal deputy devolving

on the _Vicecomes_, an official newly introduced, and directly

dependant on the sovereign; in certain cases standing in the same

relation to the royal thanes and the tenantry on demesne lands, as

the baron by military service did to the knights and tenantry of his

barony. Thus, for instance, the great sheriffdom of Perth was made up,

probably, of all the thanages and demesne lands withdrawn from the

superintendence of the various earls, of whose ancient Mormaordoms the

greater portion is now included in the modern county. In Gowrie there

was an earldom and a regality, both remaining under the jurisdiction of

the sheriff of Scone, as long as they were both retained in the king’s

hands; though, had the earldom been granted away, the authority of the

Vicecomes would have been limited to the regality. In Fife alone the

Earl continued in the thirteenth century to exercise the prerogatives

of a royal Maor; and when Alexander the Second, in accordance with

the original gift of David, issued his writs for assigning one-eighth

of the profits and fines of Fife and Fortrev to Dunfermlyn, one writ

was directed to the sheriff of Fife, the other to Earl Malcolm and his

bailies, directing him to make over to the abbey “the eighth, which

_ye levied with us_ in the county.”[284]

The sheriffdom, however, was introduced by degrees; and in Scottish

Argyle, and in Cantyre and Cowal, the duties which devolved in

_Moravia_ on the Vicecomes of Inverness were still performed by

the Earls of Atholl and Menteith, or the Abbot of Glendochart. David

still addressed his mandate in behalf of the abbey of Dunfermlyn to

“the earl and proprietary of Caithness and the Orkneys;” and when, in

the subsequent reign, Malcolm issued a mandate of the same description

to the Earl of Ross, it was similarly addressed to “Earl Malcolm and

his thanes.” Four centuries elapsed before there was more than one

sheriffdom in ancient _Moravia_--a sure sign of the weakness of

the royal authority in early times in the distant north, when the

earl, if so inclined, was probably a more efficient delegate to carry

out the king’s decrees than the royal Vicecomes of Inverness. Even in

Fife the Sheriff is not traceable before the days of William, David

always addressing, “the bishop, earl, and proprietary of Fife,” and

directing “my judge of that province” to assist at the court of the

Abbot of Dunfermlyn; in the same manner as it was incumbent on the

sheriff, or his substitute, to be present at a later period on similar

occasions.[285] Gradually, however, in all the settled portions of

Scotland, the Vicecomes assumed the prerogative of the royal Maor;

amongst other duties, settling the rents of the demesne lands, much

as his type, the English Sheriff, assessed the _ferms_ levied

upon the royal Hundreds or Wapentakes included in his shire. In both

countries the sheriffdom occasionally became hereditary, until a

statute of Edward the Third fixed a year as the limit of the English

Sheriff’s tenure of office. Permanency, and a certain degree of greater

dignity, seem still to have attached to the Vicecomes in Scotland,

where the equivalent of the lord-lieutenant of an English county is

known at the present day as “lieutenant and _sheriff_ of the

shire,” the acting official being the _sheriff-depute_, the tenure

of whose office is equally permanent.[286]

As it was the policy of the race of Alfred to knit together the whole

of Southern England and the Danelage in the bonds of Commendation, or

_hlaford-socn_, so amongst the first principles of the system of

government introduced by David, it was strictly enacted, that, within

a fortnight after the proclamation of the king’s writ in the royal

_Moot_, every man “should find him a lord,” or forfeit the usual

mulct of eight cows to the king, and remain at the royal mercy until

he had duly commended himself to some responsible person. So necessary

was this enactment considered for insuring the internal peace of the

kingdom, and the practical dependance of its unruly population upon the

sovereign, that it was a royal axiom in the reign of David’s grandson,

William, that any man accused of theft, who could not “find a lord” to

be his surety, was to be at once treated as a convicted felon; though

such must have been the difficulty of enforcing it in the remoter

districts, that four centuries after the first introduction of the

principle, enactments were still occasionally levelled against “the

broken clans” of the Highlands and Borders.[287] Violence and robbery,

the usual crimes of a lawless age, were severely dealt with, and the

sanctity of the _Gryth_ strictly enforced, its “infraction”--in

other words a breach of the peace--being heavily fined, according to

the rank and dignity of the personage whose _gryth_ or peace

was broken. All the district up to a certain limit around the kings

court and person, and all the public highways, were “in pace regis,”

or under the immediate protection of the king; whilst the earldom,

the barony, and the thanage were under the similar protection of

the proprietors, whether lay or clerical, who were entitled to the

privileges of a court. For threatening to strike within the limits of

the royal _gryth_, four cows were paid to the king, one to the

party threatened; the oaths of two “liel men” being required in proof

of the charge. For an actual blow the fine was raised, increasing in

proportion, if blood followed; a drawn dagger was struck through the

hand; and if the weapon were used, and with effect, the guilty hand

was forfeited--a stern enactment, enforced five centuries later by

the Star-Chamber;--whilst if death followed the blow, the full fine

of one hundred and eighty cows was paid to the king, the kindred

receiving that “satisfaction according to the law of Scotland”--the

_cro_ or wergild--from which the victim could no longer hope

to profit.[288] Petty thefts were summarily dealt with; the man

detected _backberand_--with a calf, a sheep, or anything he

could carry on his back--was mulcted of a cow or a sheep by the lord

of the property, was well scourged, and lost an ear, the presence of

two “liel men” being required to carry out the punishment. None were

to be hanged for less than the value of two sheep, each reckoned

at sixteen pence, or an _ore_.[289] The usual form of robbery,

however, was “cattle-lifting,” or the _Creagh_, a relic of that

lawless state of society in which the property of all who were not

connected by the ties of blood, or of intimate alliance, was looked

upon as the lawful spoil of the strongest. The _Creagh_ was on

land what the _Sumorlida_ was by sea; lawful warfare when carried

on under the royal authority, but robbery and piracy if wanting the

sanction of the sovereign power; which, as “the confederacy” was

gradually bound in the firmer bonds of “the kingdom,” was invariably

directed against the Cateran and the Viking, the last relics of that

barbarous independence which claimed the right of private warfare.

The rules laid down in the early Frank and Anglo-Saxon laws for

tracing the perpetrators of a robbery, leave little room for doubt

that, with the Frank and the Saxon, as with the Gael, there was a

time when “lost property” was but another word for stolen cattle.

It was to check the increase of “cattle-lifting,” against which the

ordinary night watches--the _stretward_ or road-guard of the

Conqueror’s laws--were thoroughly inefficient, that the early Frank

kings instituted the Canton, or Hundred, laying the responsibility of

the theft upon the district in which it occurred: and as such robberies

were generally carried out at night, the watch-dog was considered by

David an animal of sufficient importance to justify the enactment of

a special law, and whoever killed him was bound to watch his master’s

house for a year and a day, being answerable during that period for

any losses that might be incurred. It was probably to check this

tendency to night robbery that a law, very much resembling the Norman

regulation of the _Couvre-feu_--which may have been introduced

for a similar reason--was either passed, or confirmed, in the reign of

William, forbidding all but men in authority, or responsible persons,

from leaving their homes after nightfall, except to fetch a priest to

a sick man, to go to the mill, or to do the bidding of their lord; he

who was abroad after dark on an errand of this description being bound

to declare openly the reason of his absence from home. But the measures

of David were not confined to the protection of the watch-dog, and

he laid down rules for the course to be pursued in cases of robbery,

assimilating his regulations to the usages elsewhere in force.[290]

By Anglo-Saxon law, all property above a certain value was to be

bought in open market, and in the presence of _Witnesses_, who

were always men of property and good repute--the Reeve, the Landlord,

the Priest, or other “unlying men” of similar station, who were

chosen for this and other purposes in every _Burh_ and Hundred.

No sale was legal without a _Warranter_, who guaranteed that

the property offered for sale was honestly acquired; and if it was

subsequently claimed within a certain period as stolen goods, the

purchaser was bound to produce his witnesses and the warranter, the

responsibility from that time resting upon the latter. If he failed to

appear the purchase was void, though the oaths of the witnesses cleared

the purchaser from the legal consequences of theft; but if neither

witnesses nor warranter came forward in his behalf, he was at once

condemned as a thief. The name of the warranter was _Getyma_,

whilst the legal process, which was always numbered amongst the

privileges of the Baron’s Court at this period, was known as

_Team_, and was a part of that system which aimed at supplanting

the rude personal independence which answered every accusation by

an appeal to the sword.[291] The equivalent of the _Getyma_

amongst the Welsh was known as the _Mach_, and he seems to

be traceable in the Salic law under the name of _Hamallus_,

the prototype apparently of the Norman _Heimil-borch_, or

_Hemold-borh_--perhaps even of the Anglo-Saxon _Getyma_--the

similarity of the title by which the warranter was known beyond the

Tweed, or rather perhaps beyond the Forth, _Hamehald_, pointing to

the quarter from which the regulations of the _Team_ would appear

to have been introduced, at any rate beyond the “Scots-water.”[292]

In pursuance of this system, of which the germs are earliest found

in force amongst the Franks, David appointed certain places in every

Scottish sheriffdom to which all property “challenged for theft” was to

be brought, and all the warranters in such cases were to be summoned.

Scone, Cluny, Logierait and Dalginch were the places named for Gowrie,

Stormont, Atholl, and Fife; Kintulloch for Strathearn; Forfar and

Dunottar for Angus and the Mearns; and Aberdeen for Mar and Buchan.

Inverness was named for Ross and Moray, whilst Stirling was the place

appointed for transactions in which “the men beyond the Forth” were

implicated; for though in modern times this description would apply to

the northern Scots, when Scone was the capital and Gowrie the heart

of the kingdom, “all beyond the Scots-water” meant the inhabitants of

the Lothians, Cumbria, and Galloway. Just as amongst the Franks forty

days were allowed the accused to collect his evidence within Ardennes

and the Loire, eighty if the parties required dwelt beyond these

limits;--the time varying amongst the Anglo-Saxons from one week to

four, according to the distance of the shire from which the evidence

was summoned, six weeks and a day being allowed for all “beyond

sea,”--so if the warranter was within the limits of _Scotia_ the

challenged party was bound to produce him in a fortnight, an additional

month being allowed if he dwelt beyond the borders: and as it is

obvious that there must occasionally have been considerable difficulty

in procuring the attendance of a reluctant _Hamehald_, his lord

was bound to enforce his attendance under penalty of forfeiting one

hundred cows, the recusant himself being mulcted in three times the

value of the challenged property, whilst he who failed his warranter

was proclaimed an outlaw. Every assistance in the search was to be

given by the Vicecomes and his officers--the Sheriff of Inverness being

answerable for the whole of _Moravia_, whilst the Earl of Atholl,

or the Abbot of Glendochart, were responsible for Scottish Argyle, and

the Earl of Menteith for Cantyre and Cowal, the sheriffdom being as

yet unknown throughout the territories of the _Oirir-Gael_.[293]

Considerable light is thrown by these regulations upon the comparative

dependance of different parts of Scotland upon the crown during the

reign of David; and as they are not extended to the Lothians, which

remained under the jurisdiction of the Northumbrian ealdormen for

nearly a century after similar rules appear in the Anglo-Saxon codes,

it may be inferred from this silence, not that the law was not enforced

throughout southern Scotland, but that the _Team_ was a familiar

process to the population between Forth and Tweed, at the time when

David first extended its provisions over the rest of his kingdom.

Very stringent rules were either enforced, or confirmed, in a

subsequent reign for all cases in which a priest was called as

warranter. The necessity of open dealing in all transactions connected

with property was enforced upon the clergy by rendering it unlawful

for a priest to receive gift or tithe except in the presence of “good

and true men”--the _Witnesses_ probably of a bargain between

laymen--and he could not be summoned as a warranter without the

testimony of “three leal men,” evidently the witnesses in question.

If he named the donor, when the gift was challenged, and produced his

three witnesses, the responsibility was shifted upon the person named,

who, in addition to any other penalties, was bound to make good the

value of the gift to the priest; and if the latter stated that the

claimed property was his own, or, if cattle, reared by himself, his

assertion was to be corroborated by the oaths of “three leal men;”

and to guard against all undue influence, their credibility was to be

vouched for by the lord of the Vill. It was not from any suspicion of

the ecclesiastical body that the law required their evidence to be thus

corroborated on such occasions, but rather from a perfect appreciation

of the practice, not confined to cattle-lifters, of compounding for a

course of evil doing by dedicating a portion of ill-gotten gains to

the church. Hence the necessity of the lord of the Vill vouching for

the credibility of the witnesses, thus becoming responsible for the

penalties of their perjury; for the priest who was capable of receiving

stolen goods would have scarcely hesitated at exercising the influence

of his sacred character amongst ignorant, or unscrupulous, parishioners

in order to clear himself from the consequences of his offence.[294]

The strictest regulations, however, would have been of little avail

without securing the co-operation of the magnates of the land, whose

right to hold a court with the privileges of “pit and gallows,”

which in this reign carried with it jurisdiction in cases of theft

and homicide, must have rendered such co-operation absolutely

essential. Undue leniency towards offending relatives or dependants,

and occasionally connivance in a _Creagh_ for a share of the

spoil--for a gift might purchase immunity from the overlord as well

as absolution from the priest--must have been of only too frequent

occurrence in an age in which escape from the gallows was so likely an

event, evidently through a fellow feeling with the criminal, that the

very first law in the collection ascribed to David, whilst ensuring

the actual offender against a second hanging for the same offence,

visited the consequences of his escape upon the officiating party as

a crime of more than ordinary magnitude. Hence, as it was incumbent

upon every freeman to seek the protection of a lord, it was equally

necessary that such protection should be restrained within just and

proper limits; and for “selling a thief” for money, friendship, or any

other consideration whatever, a mulct of a hundred cows was levied upon

an earl, or upon any magnate enjoying the rights and privileges of an

earl--a description probably embracing the greater barons, the officers

of state, the higher clergy, and subsequently the lords of Galloway,

Argyle, and the Isles. The fine was reduced to thirty-four cows in the

case of personages of lesser dignity; whilst if a thief escaped from

prison, the lord of the prison was bound to clear himself from all

complicity by the oaths of three Thanes and twenty-seven “good men and

true;” the triple oath, in other words, of three Thanedoms or Baronies.

The complicity of “the Baronage” in offences of this description was,

but too often, a fruitful source of disorder; and in the subsequent

reigns, the practice of taking money for “remission of judgment” was

punished by withdrawing from “the lord,” found guilty of such an

abuse, all further right of “holding a court:” and if, in return for

a gift or rent of any description, he granted his protection to a man

accused of crime, who was proved by the verdict of “the good men of the

country” to be neither liegeman nor native-man of his protector, he

was condemned for so doing to be “at the king’s mercy.”[295] Laws and

enactments, however, are of little avail unless the lawmaker has the

power of enforcing them, and long after the rule of the House of Atholl

had passed away, the Scottish magnates, though capable of exercising

their “rights of regality” in a very summary manner, were only too apt

to overlook, if not to connive at, the excesses of an useful follower;

though a true idea of the state of Scotland under the later successors

of David would scarcely be gathered from confounding it with the state

of the same country in the fourteenth, perhaps even in the following

century; during which period the kingdom, at any rate in its more

settled and civilized quarters, had decidedly retrograded rather than

advanced from its condition in the thirteenth century.

Amongst the regulations either introduced, or confirmed, by David, at

any rate beyond the Scots-water, the system of the _Voisinage_,

or _Visnet_, holds a prominent place; through which the older

forms of trial were gradually supplanted by the verdict of “the good

men and true” of the neighbourhood. Two principles seem to have lain at

the root of the whole system of justice--compurgation, and the ordeal.

As individuality was unrecognized, or helpless, the testimony of a

single witness was, except under certain circumstances, inadmissible;

though the oath of a man of rank, or of a churchman, after the church

had acquired worldly station, outweighed the oath of an inferior,

and seems often to have been reckoned according to the proportion of

their wergilds. Thus, amongst the Anglo-Saxons, two thanes appear

to have answered to twelve compurgators of lesser note; five thanes

to the triple oath of thirty in Wessex, though the number of the

triple oath varied in Wessex, Mercia, and the Danelage; and a similar

principle is traceable in the laws of the kindred Old Saxons of the

Continent.[296] _Compurgation_ was originally the duty of the

kin, and the nearest relatives who received, or paid, the wergild were

bound to come forward to take oath in behalf of any member of the

brotherhood, every accusation being thus supported or repelled. The

number of compurgators varied according to the importance of the case,

judgment going against the party whose kin declined to come forward, or

who failed in obtaining the required number. The accusation frequently

had to be repelled by a number of compurgators doubling the amount of

those who supported the charge; and on some occasions, to judge from

the custom of the Imperial Benefice, each party went on increasing

in number until the greater _tourbe_, the most numerous body of

compurgators, carried the day; or else a final appeal seems to have

been made to the ordeal.[297] Witnesses, in the modern sense of the

word, are seldom or never alluded to; had they been examined, and borne

testimony against a man, as at present, they would have legally had

to “bear the feud” of his kindred--a danger actually provided against

by one of William’s laws. In an age in which the duty of revenge was

amongst the paramount obligations of the family tie, the kindred, in

such a case, were only too ready to wreak their vengeance on all

through whom their kinsman suffered; an offence which was visited with

the highest fine for a breach of “the kings peace,” except the victim’s

kindred had consented to the deed--had, in other words, declined “to

bear the feud.” The extent to which the blood-feud was acknowledged, at

this period, may be gathered from a proviso in the same law, that even

if the king had “granted grace” to the offending parties, his pardon

was of no avail unless it had been issued with the full knowledge of

the kindred of the slaughtered man, who otherwise retained their legal

right of vengeance on the homicide.[298] The liability of the kindred,

however, must have enabled the jurisprudence of the age, in ordinary

cases, to dispense with witnesses. The responsibility of the theft, or

homicide, was thrown upon the district; and if the responsible parties

failed to shift it elsewhere, the law visited them with the penalty.

Publicity was the test of innocence, secresy of guilty intent. In

the olden time, all who crossed the _mark_ openly were welcomed

as guests, safe and secure in the protection of the whole people,

amongst whom they were sacred characters; but he who failed to give

due notice of his approach, was slain at once as a foe or a thief; and

in later days, the magnate travelling through the royal forest might

always strike a deer or two if he first sounded his horn, to give due

notice to the forester of his intention. He who slew his foe in open

strife, proclaimed the deed, and told where the body lay--sometimes

even if he left his weapon sticking in the wound--was never reckoned

as a murderer, simply bearing the feud with his kindred, or paying

the wergild; whilst by Old Saxon law, a _murderer_ was fined

nine times the ordinary mulct, his kinsmen only paying one-third of

the usual wergild as their share of the fine, and being released from

all consequences of the feud; evidently on the principle of their

ignorance of the _secret_ intentions of the murderer.[299] So, at

a later date, it was the duty of the man who claimed his own cattle,

or “impounded” that of another for debt, to proclaim it openly in the

neighbourhood; when his neighbour, thus made aware of his intentions,

might stop him if in the wrong, and assist or clear him on oath if

right. Thus, publicity was necessary in all the transactions of social

life; and as its neglect was assumed to imply a guilty purpose, and the

kin, or the neighbourhood, was the joint security for all its members,

it would naturally become a legal axiom of the age, that the kinsmen,

or neighbours, were responsible that such publicity had been complied

with, and liable to pay the penalty of any neglect.

For all who doubted their ability to muster the requisite number

of compurgators--but too often, it is to be feared, for the

friendless--the ordeal was the last resource; either water, cold

or boiling; hot iron; or the wager of battle.[300] In primitive

societies the sword has ever been the freeman’s last appeal--still

remaining so where they congregate in numbers sufficient to constitute

a separate state--and the early Germans looked upon every other

mode of settling a disputed question as a novel and unheard of

method of proceeding.[301] Many of the rights which have long been

made over to the state were in early times supposed to be vested in

every _full-born_ member of the community, continuing until a

comparatively recent period, to be more or less enjoyed by the great

and privileged; and it must have been the aim of the early lawgiver to

control and regulate rights which he could not supersede; just as in

Scotland the royal official directed the judgment of the Barons’ Court

long before he superseded its jurisdiction. As long as the constituted

authorities were too weak, or too feebly supported, to retain the

sword of justice in their own hands, it is evident that it remained

in the power of every free kindred to execute the vengeance which the

laws allowed; and when the suit had not been compounded, or the feud

appeased, the criminal, instead of being “left for execution,” was

simply handed over to the _legal_ vengeance of his enemies; just

as amongst the Israelites of old it was not from the official, but

from the avenger of kindred blood, that the unintentional homicide

fled to the city of refuge. Men, under certain circumstances, were

allowed “to take the law into their own hands;” the thief caught by the

“sequela clamoris viciniæ”--the hue and cry of the neighbourhood--with

the stolen cattle in his possession, was hung without ceremony; and

in their rules for tracing stolen cattle, the men of London-burh were

bidden to be foremost, not in delivering the thief to justice, but in

taking prompt and summary vengeance on him. The regulations in the

Anglo-Saxon laws for clearing the man slain for a thief, show that

the well-known proverb about “Jeddart justice,” has been scarcely

exaggerated--“Hang first and try afterwards.”[302] The wager of battle

naturally arose out of such a state of society, when the “ultima ratio

regum,” with other royal prerogatives, was regarded as the right of

every full-born freeman; and the same arguments, which are now used to

palliate warfare between states, might then have been urged in favour

of the freeman’s last appeal. _Disseisin_, when the freeman was

dispossessed of his property, was simply invasion on a lesser scale;

and as long as the central authority was inefficient to rectify the

wrong, and reinstate the rightful owner, all that it could promise

was “non-intervention,”--open lists for the combat, and death to all

who interfered; whilst in doubtful charges affecting a man’s life, it

was quite in accordance with the rude justice of the age, that, as a

last resource, the accused might defend his head with his hand. The

challenger faced the west, the challenged party the east, and he who

was defeated lost all “right” for ever; though, if he “craved” his

life, he might live as a “recreant,” a _craven_ who “recanted”

the perjury he had sworn to; so that most brave men must have fought

to the death. Compurgation, which passed into the English law as “the

wager of law,” and was not quite forgotten in the Perthshire highlands

in the early part of the seventeenth century, was probably one of the

first compromises of the ancient “wager of battle”--perhaps suggested

by the softening influence of Christianity[303]--the same number of

the kindred who formed the _Wer-borh_, or cleared their kinsman

on oath, having, perhaps, in early times, like the second in a duel of

the seventeenth century, stood beside him occasionally in the actual

combat, or kept the ground during its progress--one of the latest

instances in Scotland of such a combat on a great scale being, perhaps,

the well-known contest on the North Inch of Perth.[304]

Compurgation and ordeal seem to have been as familiar to the Celts as

to the Teutons, until by degrees the system known of old in English

law as the “Jugement del Pais,” superseded all the earlier methods of

trial. Amongst the early Germans, a leading magnate, or prince, was

chosen in the yearly meeting to judge the people, making the tour of

the whole confederacy, with a hundred _comites_ to assist and

support him in his decisions; the _Vergobreith_ amongst the Gauls

being a very similar character, though, from the peculiar separative

principle of Gallic policy, the Druids supplied the place of the

Comites, the exposition of the law being one of the prerogatives of

the sacred caste. Every freeman, therefore, was tried in the open

_Mall_, or court, of his own district by a judge, in whose

appointment he was supposed to have a voice; and in the presence of his

equals, or of the class to which all legal and religious obligations

were deputed. For his family, his _Hird_ or followers, his

_Lœts_ and serfs--for all who were in his _mund_ or under

his protection--he was himself the judge; and as the class of Comites

increased in numbers, a greater body of freemen was transferred, so

to say, from the jurisdiction of the public to that of the private

judge, thus exhibiting the spectacle of a free population living, in

a certain sense, according to different laws. This is nowhere better

exemplified than in the case of Sweden in the eleventh and twelfth

centuries, when the whole of the Bonders, or allodial proprietary,

were under the jurisdiction of their chosen _Lagaman_, none of

“the king’s men” having a right to enter the Bonders’ Court without

their permission, where, when the king was present, the Lagaman sat

on a raised seat opposite the royal throne, on the footing of all

but equality.[305] A similar spectacle may have been exhibited, in a

certain stage of society, wherever a kingdom arose out of a number of

small allodial communities; but after the various members of the Frank

confederacy were united in one kingdom, under the race of Merovic,

the different laws acknowledged in the historical period were, not

allodial and royal, but Salic and Roman--a distinction generally

observable wherever a people of Teutonic race settled as conquerors

in the Roman provinces. Amongst the Burgundians, indeed, where the

Roman and his conqueror were on a footing of comparative equality, two

royal officials administered justice in the same court, each people

being judged by a Count of their own race, and according to the laws

of Gundobald, or the code of Rome; but with the Franks, amongst whom

the Roman was an inferior, there was but one official, the Graphio, or

Judex Fiscalis, whose authority extended, though in a different degree,

over both races. The Roman was judged solely by the royal official,

who was bidden when in doubt “to read the Roman law;”[306] but in all

cases in which the Frank was tried by the old Salic law, the official,

whether _Missus_ or Fiscal judge, simply pronounced the sentence,

the real judges of the cause being the _Scabini_. Originally

seven in number, latterly twelve, the Scabini were always chosen by

the Graphio, or the Missus, from amongst the “Meliores Pagenses,” or

leading proprietary of the district in which the cause was tried;

and in cases of doubt reference was made, not to a written code, but

to “nostrum placitum generale,” representing the whole community in

general _Mall_ or meeting; just as the Scabini represented the

“proportio visnetæ,” or the chosen portion of proprietors acting in the

name of the whole neighbourhood. The same principle was extended to

every lesser court, whether public or private; three _Sagibarones_

pronounced judgment in the court of the Canton; and when Sigwald

the priest, and Dodilo the noble--representing respectively the

ecclesiastical and lay element, as in the association of the Bishop

with the Ealdorman in the old Anglo-Saxon Shire-gemote--sat as Missi,

or deputies, of Hincmar in the archi-episcopal court of Rheims,

the judgment was pronounced by eight Scabini chosen from amongst

the leading Frank-tenantry of the archbishop.[307] This difference

between the Roman and the Teutonic systems is even yet recognisable in

English law--all questions falling within the province of the great

official, who derives his origin from the institutions of Rome, the

Chancellor, being settled by the fiat of the royal official alone; but

whenever the freeman is put on his trial for life or liberty, his fate

is still decided by “the Jugement del Pais,” the verdict of his own

_Visnet_ or neighbourhood--unless for some sufficient reason the

_venue_ is changed to another _Visnet_ or neighbourhood--the

presiding judge simply passing sentence according to the verdict thus

given; though in modern times the jury, and not the judge, leave the

court. Every Germanic people seems to have clung with tenacity to

this principle, and after the law of the Benefice, mostly founded on

the Roman Code, had replaced allodialism in Eastern Germany, it is

still recognizable in the stipulation that no man should be deprived

of his Benefice--for the jus Beneficiale had now replaced allodial

right--except “by the judgment of his peers”--the identical principle

maintained by the Anglo-Norman barons against the encroachments, not of

the Norman William, but of the Angevin Henry and his sons.[308]

There is not a trace of any similar institution amongst the earlier

Anglo-Saxons, as far as it is possible to judge from the collection

of laws in force in Wessex and Saxon Mercia during the reign of

Alfred. The king’s Ealdorman or his junior--the Vicarius, not the

Vicecomes--presided in the ancient Folk-mote, which was held in every

shire or district under an Ealdorman; and as every freeholder was bound

to be present at a meeting of this description, justice appears to have

been administered according to the ancient custom, in the presence

of the whole free population; though not by a Lagaman chosen by the

people, but by an official appointed by the crown. A solitary passage

in the laws of Athelstan seems to point to the exercise of judicial

functions by the “Meliores Pagenses” in the reign of Alfred’s grandson;

for in cases of manslaughter and fire-raising, if the accused was found

guilty, it was “to stand within the doom of _the Senior men of the

Burgh_ whether he should have his life or not.” The principle was in

full force, during the reign of Ethelred, amongst the Anglo-Danes of

the Mercian confederacy, twelve of the Senior Thanes binding themselves

to administer true justice with the Reeve in the Gemote; unanimity

in their verdict being aimed at by fining the dissentient minority,

when two-thirds of their number had agreed, the whole amount of the

sum which each had deposited as a _wed_--the decision of the majority

carrying the verdict, continuing to be a feature distinguishing the

Scottish from the English jury at the present day.[309] No innovation

appears to have been introduced amongst the Gaelic people upon the

older custom of assembling the whole free population of the district,

confederacy, or kingdom, in annual or occasional meetings, which in the

settled parts of the country were by this time probably represented by

the assemblages of the thanedom, the earldom, and the great meeting in

which the sovereign presided in person; for it is still possible to

trace the existence of district, provincial, and royal judges, who

must have had a part assigned to them in each separate assemblage of

this description. Four “Courts” are alluded to in the Welsh laws, but

the free proprietary had probably little to do with the courts of the

Breyr and of the Tawg-tref--the Baron’s and the Villein Court--their

attendance being only required at the courts of the _Cymmud_ and of the

king--for the earldom was unknown in Wales--where, in the absence of

the sovereign, the _Effeiriad_, the _Distyn_ and the _Brawddwr-Llys_

presided; or the royal chaplain (the equivalent perhaps of the

Scandinavian _Hird-Bishop_), the high-steward as president of all the

_Maers_, and the court judge as senior of all the _Cynghellwrs_.[310]

It was in a great assembly of the whole free population of the united

people that “the laws of Aodh the Fair,” involving, probably, the right

of his descendants to the throne, were recognised in the reign of the

first Donald; a similar assemblage under Constantine the Second, on

the Moot Hill of Scone, appears to have ratified, or assented to, the

ecclesiastical constitution of the Scottish church of that period; and

it was in great meetings of a similar description, and at the same

place, that it was “the custom of the Scots” to choose their kings,

or rather perhaps to confirm the selection of their Seniors.[311] The

affairs of a province, or _Mormaordom_, appear to have been regulated

in a similar assemblage on a smaller scale; and a description of such a

meeting in the olden time will be found in the Registry of the Priory

of St. Andrews, part of the property of the priory having been held

by a verdict given in a general assembly of the province. When Sir

Robert Burgoin encroached upon the lands of Kirkinnis an appeal was

at once made to king David, who despatched his messengers throughout

the united district of Fife and Fotheriff to convene the people of

the province. The place of meeting is not mentioned; but thither came

Earl Constantine of Fife, “a discreet and eloquent man,” at this time

Justiciary of Scotland, with “the Satraps, Satellites, and Hosting” of

the county; or the free proprietary who held under the Mormaor, with

their kinsmen, and the followers who would have been known amongst

the Northmen as _Thingmen_. The presence of the Bishop is not alluded

to, but thither came his _Hosting_, or all the Frank-tenantry of the

broad lands restored by Alexander to the church, under the captaincy

of Budadh and Slogodadh--_Toshachs_ or leaders apparently of the

military contingent due from the church-lands in the province--and

under the presidency of Macbeth, Thane of Falkland, probably the

Maor, Baillie, or _Vidame_ of the bishop. When the whole community

of the province was assembled, three arbiters were chosen to try the

case,--Earl Constantine as justiciary; Maldonaeth Mac Machedach, “a

good and discreet judge,” the _Brehon_ probably of the province; and

Dugal Mac Moccha, on account of his venerable age,--the number of

the arbiters exactly coinciding with the number of judges in a Welsh

court. The cause was conducted on the principle of compurgation--in

earlier times it would have been decided by battle--the abbot in legal

phrase “swearing _se sexta manu_;” or, in other words, Abbot Dubtach

and five of his clergy testified, by an oath sworn on the altar, to

the boundaries in dispute. As no notice is taken of the defence, it

is impossible to say whether Sir Robert failed in producing his twelve

compurgators--for he would have been bound to “lay twelve hands”

on the altar--or whether the oaths of his “jury” were disbelieved;

the arbiters, deferring to Dugal from his experience and “knowledge

of law,” pronounced in favour of the Culdees; and a notice of the

transaction, entered in the Registry of the Priory of St. Andrews,

attested the right of that foundation to the property in question, as

heirs of the Culdees of Kirkinnis.[312]

Such was the legal process, during the earlier portion of David’s

reign, for settling the numerous cases of disputed boundaries, which,

by the same king’s subsequent regulations, were decided by the

“perambulation” of the “good men and true” of the neighbourhood, and

in the presence of the royal _Missi_, or other notabilities,

appointed as “unlying witnesses” of the proceeding. There is no trace

at this period of the Vicecomes in Fifeshire, though he existed in

other quarters beyond the Forth; nor of the “Jugement del Pais,” by

which the arbiters chosen in public _Moot_ were replaced by the

good men and true of the country, appointed by the royal official.

As the division of power, so remarkable amongst the Gauls in the

days of Cæsar, was still traceable in the delegation of authority to

two officials, so the restriction of all judicial functions to the

Druids would almost appear to have survived, in a certain sense, in

the limitation of similar functions to their representatives, the

Cynghellwrs, Brehons, or Deempsters. Thus the _Hereban_ levied

during the reign of the second Alexander upon all who failed to attend

the _Hosting_ against Donald Mac Niel, was settled at Perth, on

the second Thursday in Lent, “by all the Judges of _Scotia_;”

condemnation was pronounced against Gillescop Mahohegan on “the

Tuesday before St. Denis” at Edinburgh, “by all the united Judges of

Galloway and Scotland;” the “Judges of Galloway” assessed the fine for

a breach of the king’s peace; and when the king crossed the borders

of a province in his great circuit, all the Judges of the district

were still bound, in the reign of William, to be in attendance upon

the royal court until it reached the frontiers of another province.

Pure blood and property qualified the Teuton to be chosen as a

_Scabinus_, but the Celtic Judge seems to have been selected from

a family of _Brehons_.[313]

It was probably, then, upon a system acknowledging the usual Ordeals

of water and iron, the Wager of battle, and Compurgation “by oath

sworn on the altar, according to the custom of Scotland,” and in which

justice was generally administered by the district, provincial, or

royal judge, whether inheriting his office, nominated by the crown,

or chosen as arbiter in the public _Moot_, that David introduced

the “Jugement del Pais” or _Visnet_; which must have, ere long,

replaced the judgment of the earlier Brehon, or Deempster, by the

verdict of “the good men of the country,” or the leading proprietary

of the neighbourhood. Henceforth judgment was to be given by “the

free-tenants, suitors of the Court,” sentence only being pronounced

according to their verdict by the Judge, Sheriff, Alderman, or Bailiff,

who was bound to leave the Court during their deliberation; and in

process of time, the representative of the ancient president of the

Gaelic Court of justice sunk so low, that the holder of the office

of Deempster, which had long been shifted upon the lowest official

of the law, no longer appeared at all in Court, except to pronounce

that sentence of death which he himself was bound to execute--he

was the _Hangman_. Every man, whether Earl, Baron, Vavassor,

or Burgess, was entitled to be tried by his Peers, though one of

lesser standing might be judged by the verdict of his superiors.

Damages, or the amount of injuries sustained, were to be assessed

by men of credit--_fide-digni_, the “unlying witnesses” of

Athelstan’s Laws; and in challenge of battle, the sum deposited was

to be estimated, not according to the claim of the challenger, but

by “the assize of the good country,” the “body of the defender”

being reckoned as one-third of the amount; whilst if a man accused

of theft could prove, to the satisfaction of a similar jury, that

the complainant had never possessed as much property as he charged

the accused with stealing, the latter was to be at once acquitted by

their verdict. Jurisdiction in the four greater causes known as “the

Crown-pleas”--murder, rape, robbery, and fire-raising--was removed

from the lesser Courts, no Alderman or Baron’s Bailiff being permitted

to try such cases unless by special mandate of the Justiciary or “his

attorney;” and it was ordered, that in every county a royal _Moot_

was to be held “within forty days,” or six week’s after the issue of

the king’s writ, which was to be attended by the Bishop, the Earl, the

Vicecomes, and by every free proprietor who was “Lord of a Vill.” All

direct appeals to the king were prohibited, except in cases connected

with the Crown-pleas, or where the officials in a lesser Court had

failed to do their duty; and if the last law, ascribed to David, is

not misplaced, all questions connected with property and inheritance

were to be referred to the decision of “the assize of the good

country.” The heir, no longer chosen according to the Law of Tanistry,

by the kindred, was to be declared successor by the voice of “the good

men of the neighbourhood;” whilst the claimant of property held by

another--he who urged that he had been unjustly _disseised_--was

not to support his claim by an appeal to the sword, but to submit it to

the verdict of a similar jury.[314] The older system, however, appears

to have been reluctantly abandoned, or at any rate to have died out

very gradually; and in Galloway, which, after its closer union with

the rest of Scotland, retained its peculiar code until the days of the

first Edward and Robert Bruce, the was the exception and not the rule,

none being judged according to its provisions except they refused the

older law, and claimed _Visnet_. The Ordeal, the Wager of battle,

and the Wager of Law, long held their ground side by side with the

Verdict of the “good men and true,” for most of the ordinary trials of

“Common Pleas;” and it seems doubtful even if in other quarters besides

Galloway it were not open to the contending parties, at a much later

period, to choose between the “Jugement del Pais,” and the misnamed

“Judgment of God.”[315]

Another of the innovations upon “ancient custom,” traceable apparently

to the reigns of Alexander and David, though more particularly to

the reign of the latter king, was the introduction of the written

charter as the necessary evidence of the right to freehold property.

It was long before any of the northern nations attached importance to

the written documents, which were at the basis of the whole system

of free rights, or property, held by Roman law. He who was freed “by

tablet” ranked merely as a Roman citizen, reckoned at half the value

of the man freed in open Court “by casting the _denarius_;” and

when the horn of the Graphio summoned the _Voisinage_ around

the body of the murdered man, or when the suspended shield of the

Centenarius marked the spot where the _Mall_ was to be held, the

parchment _writ_ would have been unheeded by the Frank living by

Salic Law, or despised as an unmeaning formula of _the Roman_.

Liability was transferred, or responsibility was shifted, by casting

a small stick into the lap, or by throwing a handful of earth, in

open _Mall_, or before witnesses; and allodial right was alone

acquired by undisputed possession for a term of years, or by descent.

The earliest application of the Roman principle appears in the royal

grant equivalent to the Franc-Alleu-noble--the permanent alienation

of a certain portion of the Fiscal or Folk-land, in which, by ancient

custom, the king, or the community, held a life interest alone: a

similar process, some centuries later, converting the Benefice into

the hereditary Feud, held by written charter. The royal grant of

_Bocland_ had long been familiar to the Anglo-Saxons as the sole

known form of permanent property; but the Benefice, rather than the

chartered Feud, was its equivalent amongst the Normans in the earlier

part of the eleventh century; and when they adopted the Charter after

the Conquest, it was always in the old Anglo-Saxon form, which can

scarcely be supposed to have been brought from the Continental Duchy;

and it was accordingly in this form that it penetrated subsequently

into Scotland.[316]

It is only from indirect evidence that it can be gathered that the

Charter became necessary, to prove the existence of freehold right,

from the time of David. The charters ascribed to Duncan II., and Edgar,

were connected with the Saxon Church of Durham. They were attested,

apparently, by witnesses of Saxon, or Danish, descent, connected

probably with the diocese--Ligulf of Bamborough, for example--and drawn

up by Saxon monks after the manner of their own country; so that they

afford no proof whatever of the existence, or the necessity, of public,

much less of private, documents of this description beyond the Forth

at the opening of the twelfth century; and when Alexander restored

to the Church the lands which had lapsed to the kings of Scotland,

as hereditary abbots of St. Andrews, the re-grant was completed with

all the studied ceremonial and display of “ancient custom.”[317] A

different course, indeed, was adopted at Scone; when, for the first

time, perhaps, was displayed the unwonted spectacle of six Gaelic

Mormaors affixing crosses to the signatures, which some clerkly scribe

had attached to a written document, confirming a munificent donation

of lands and privileges to the royal foundation: but no private

charters can be traced to an earlier date than the reign of David, who

appears to have first introduced them into his principality of Scottish

Cumbria. No law or enactment of any description has been left on the

subject; but a statute of William, by which all who were found guilty

of forging a royal charter were to be placed “at the king’s mercy”--the

forgery of a similar grant from a subject being also punishable, but

as a minor offence--affords the surest evidence of the necessity of a

charter, at that period, in proof of freehold rights.[318] The habit

of forging such evidence must have arisen out of the necessity of a

written title-deed, a similar necessity accounting for the multiplicity

of such forgeries in southern Britain; where a legend was occasionally

framed for a similar purpose, or a saint appeared in a vision to afford

miraculous, but suspicious, testimony about the extent and privileges

of his ancient patrimony. Henceforth the Charter marked the Freeholder,

or the member of the Community of the Realm; and whilst in southern

Britain knight-service was the test of gentle birth, the holder by

free socage, and the Kentish Gaveller, being only classed amongst the

yeomanry, in Scotland a similar test was afforded by the Charter; and

in the reign of Alexander II., all who were knights, sons of knights,

or holders of any portion of a knight’s fee, and all who held their

lands by free service, or by “fie-de-hauberc,” hereditarily and by

charter, ranked, with their sons, as men of free and gentle birth, who

could appear in the lists by their champion; the churl-born tenant of

land, the man of ignoble birth, and all who had neither free tenement,

nor free parentage, being bound to appear in person. It was from the

former class that the “good men and true” were chosen to perform the

duties of the _Voisinage_, and before the middle of the thirteenth

century none could be sworn to hold inquest touching “the life or limbs

of a land or _grass_ holding man,” except, “good men and true,

freeholders by charter.”[319]

It can scarcely, then, be doubted that David was the originator of

that important change by which a fixed title to land was acquired,

produceable when necessary in proof of ownership--a change which, in

connection with the formal perambulation of boundaries, in the presence

of “the good men and true,” must have done much to put a stop to

those constant disputes about proprietorship, which had hitherto been

settled by the sword. David is often represented, in modern times, as

the exterminator of his fellow-countrymen, granting their lands to

foreigners, and driving out the native Scottish race, or enslaving them

beneath the yoke of alien masters--a course that could have hardly

earned the character ascribed to him by his friend and biographer

Ailred, “he was beloved by his own people the Scots, and feared by the

men of Galloway.” It would be nearer the truth, perhaps, to describe

him as the great confirmer of proprietary right throughout the settled

portion of his kingdom; and it still seems possible to point out the

method which was adopted to carry out his purpose. By a law of a much

later period it was decided that the freeholder was not bound to

produce his charter to his overlord more than once, after which it

was to be returned to him immediately. It may be gathered, from this

regulation, that there were occasions on which the land-holder might be

required to prove his title to ownership; and the kings of Scotland,

at a later period, are sometimes found amongst the Western Highlands

demanding charters, and confiscating the property, or rather the

freehold rights, of all who could not produce the necessary title-deed.

Thus, at the opening of the fourteenth century, every Vicecomes was

commanded to attend “our council,” with the other magnates of the

realm, and to warn his bailies, amongst other duties, “to summon all

who have, without license, entered upon lands alienated after the death

of our predecessor Alexander, to show their right to do so”--a right

which could only be proved by a written document. How such a title

was originally acquired may be gathered from the example of Eogan,

Thane of Rothenec, who appeared at Inverness on the Monday before St.

Andrew’s Day, in the year 1262, and in the presence of the Bishop of

Ross, the Justiciary of Scotland, and the Sheriff of Elgin, proved to

the satisfaction of the good men and true of the neighbourhood, that

the lands of Mefth, with a house in Elgin Castle, which had been given

by William to Yothre Mac Gillies, had been held uninterruptedly by

Eogan and Angus, son and grandson of the first recipient of the grant;

passing from the last-named Angus to his son Eogan, the actual Thane

of Rothenec, who was thus the fourth in descent from the original

holder. The written and attested verdict of the good men and true,

formed, from this time forward, the chartered title-deed of the lands

of Mefth; and it may be conjectured that, at the first introduction of

the Charter, all who claimed the right of freehold proprietorship were

bound to attend the royal _Moot_, and prove to the satisfaction of

the good men and true, the necessary qualification of three descents

of ownership. He who was thus qualified could claim a charter as his

title from the king, earl, thane, or ecclesiastical superior, of whom

he held his lands; whilst in the case of all who failed in proving

the necessary qualification, it would remain in the power of their

overlord, either to confirm their proprietorship by the wished-for

title, or to enter upon the land as lapsed “demesne.”[320]

From this period two classes of Freeholders, besides the Earls and

greater Barons, may be traced in Scotland, who may be compared

to the Vavassors or Mesné tenants of the corresponding era in

Southern Britain; the holders by knight-service, who grew into the

_Lairds_, or lesser Barons, of a later age; and the holders by

Scottish service, who were, with few exceptions, confined to the

northward of the Forth.[321] The latter were the Thanes, who, on the

occasion of the festivities at York in 1251, when Paris notices the

presence of more than sixty Scottish knights, were also in attendance

upon their youthful sovereign, at least in equal numbers.[322] The

lowest amongst the Freeholders appears to have been the proprietor of

half a plough-land--the eighth part of a _Davoch_ or of a _Fief

de Hauberk_--containing fifty-two Scottish acres; the holder of

that amount of land, by free service, and by charter, answering to

the proprietor of the Half-holding, wherever the Imperial Law of the

Benefice was acknowledged, who, though widely changed in character, is

still known in the United Kingdom as “the forty shilling freeholder.”

The Quarter-holding of two _ox-gangs_, or twenty-six Scottish

acres, answering to the Anglo-Saxon _Virgate_ or quarter-hyde,

and known in many parts of Scotland as the _Husband-land_, gave

no pretensions originally to freehold rights.[323] Scottish service

was probably most popular in early times with the native Scots, for it

accorded best with their custom of planting the junior branches of the

family upon the land, liable to rent, as well as to general military

service--a system which may have also had its attractions in the eyes

of the greater Barons, who held their own lands by knight-service of

the Crown--but it died out gradually in the more settled portions of

the kingdom; and, in the case of certain well-known families, the

charters can still be produced by which the ancestral Thanedom was

converted into a Barony. The earlier system was traceable in the

Highlands as late as the opening of the seventeenth century, when

the proprietors were divided into Lords, Lairds--greater and lesser

Barons--and royal Bailies of lands, the latter holding in fee-farm,

and answering to the Thanes of an earlier period.[324] The patronymic,

as distinguished from the surname, still lingered in the same quarter,

where the _Tighern_ was known for his descent, rather than from

his property, though the custom was even then fast giving way; and at

the present time, in no part of the United Kingdom is the territorial

appellation so generally used as in the Scottish Highlands, where

“the Laird” is often better known by the name of his property than

by his own surname. A similar change had been in progress in ancient

_Scotia_ long before it penetrated to the wilds of _Moravia_

and Argyle; and after the introduction of the charter, when the

privileges of free and gentle birth, hitherto attached to a certain

degree of relationship to a thane, were transferred to the chartered

freehold, the freeholder, whether of native or foreign origin,

gradually became known from his barony or freehold; and as none but the

greater Norman barons were distinguished, as at present, by a separate

surname, the property itself supplied a designation for its owner. Thus

by degrees the whole of the freehold proprietary, without distinction

of race, relinquishing the shifting patronymic which had hitherto

belonged as much to the Saxon and the Northman as to the Gael, adopted

surnames from those chartered properties, which ensured to them the

privileges of free and gentle birth, which had formerly attached to

descent.[325]

If David may be looked upon as the regulator of the “Two Estates,”--the

Clergy, and the Baronage and Freeholders connected with the land,--he

may be regarded as the founder of the “Third Estate” in Scotland, the

actual creator of the free population connected with the towns. An

intramural population was an anomaly amongst the people of the North,

and in their older codes no provision was made for a free proprietary

dwelling in towns, land, and land only, being connected with freedom

and hereditary right. It is only in the old Burgundian code that the

craftsman connected with the city is mentioned, and he was placed by

the regulations of Gundobald upon a servile footing. It scarcely admits

of a doubt, indeed, that a civic population, for which no provision was

made in any Germanic code, must have lived, whether free or servile, by

Roman law, retaining probably their original institutions, after they

survived the first fury of the storm, without much interference from

their conquerors; nor would the privileges subsequently belonging to

free towns have been of much moment, had there not been a time when all

such communities were neither free nor privileged. Britain, however,

was peculiarly situated, no Roman population remaining to preserve

the civilized institutions of imperial despotism, side by side with

the rude, but free, traditions of their Anglo-Saxon conquerors--most

fortunately for the liberties of England--and as no regulations for a

free civic proprietary are traceable in the earlier Anglo-Saxon laws,

it may be doubted whether any such proprietary existed. The shattered

remnants of the old Roman cities of the island became the property of

the owners of the district in which they were situated--petty kings and

Ealdormen originally, like Hrofa and Cissa, who gave their names to

Hrofa’s _ceaster_ and Cissa’s _ceaster_, _Rochester_ and _Chichester_;

and latterly the sovereign of one of the greater states, or the

nobleman to whom he entrusted the district--the population remaining

probably on a _Lœtic_ or dependant footing, the Teutonic element

entering very little into its composition in early times. The British

_town_, according to Cæsar, was a portion of the forest separated from

the rest by a bank and ditch, the Briton in time of danger securing his

cattle and family within the precincts of this “circumvallation;” and

as amongst several of the Germanic tribes the same word _Wic_ meant _a

grove_, _a temple_, and _a town_, it may be surmised that the original

_Wick_ was a portion of the forest similarly encircled with a bank and

ditch, and used as a temple for the gods, and a place of security in

times of danger, instead of the caves which, in the days of Tacitus,

appear to have been used, for places of concealment rather than for

defence. London-_wic_ and other British towns may have occasionally

supplied the place of such earlier and ruder “places of strength,”

the resident population remaining on a dependant footing, and the

freeholders of the vicinity not habitually dwelling within the walls,

but sheltering themselves behind them in times of danger; for the _Tun_

of the Gesithcundman was scarcely capable of defence, and the Ceorl’s

_Hedge_ was only calculated to keep out cattle. Such seems to have been

the case at the time of the Danish wars, when the walls were seldom of

a more formidable construction than a strong wooden palisade, and were

easily broken through at the great battle of York. As soon as he had

saved the monarchy, Alfred directed his attention, as much to remedying

this defect, as to reviving letters amongst his subjects, or building

ships to protect the coast, constantly impressing the necessity of

building _Burhs_ upon his Reeves and Ealdormen, and providing skilled

artificers--a sure test of the ignorance of such arts amongst his

own people--to carry out his projects. London-_wic_, plundered and

ruined by the Danes, arose from its ashes as London-_burh_, and was

made over--_geset_ or let--by Alfred to his daughter’s husband, the

Mercian Ealdorman. The history of the next reign, after Edward was

once securely seated on his throne, is one continual record of the

progress of _Burh_-building and _Hlaford-socn_--or Commendation--the

_Burh-bote_, a permanent obligation attached to all property held of

the crown, whether church-land or thegn-land, binding the churchman or

thegn to keep in repair the _Burh_ with which his land was connected,

such associations being entered into for defence, not for trade; and it

would be a grave error to mistake the Anglo-Danish confederacy of “the

Five Burghs,” or the men of London-Burgh in the days of Athelstane--the

_Burh-Thegns_ as they are often called--whose Bishops and Reeves were

bound to keep the peace, as ordered by the king and his Witan, for

mercantile or trading communities. The rules laid down by the London

Reeves and Bishops at this period will be found to relate to tracing

stolen cattle, and keeping their “Hirdmen” in order; but it is vain

to look for the regulations about trades and craftsmen, which will be

found invariably in later Burghal laws.[326]

Amongst the innovations introduced by the Normans, it may be read in

the Saxon Chronicle how “they wrought castles throughout the land,”

novelties to the people of the country, who seem to have retained

much of that old Germanic aversion to castles which is traceable in

the Frison law against building stone walls above a certain height;

and accordingly from this time the Scots no longer swept the country

in their invasions to the gates of Durham, but were stopped at Werk,

Norham, and other feudal strongholds which they were obliged to invest,

or if they advanced further into the country, to blockade. The royal

castle was now attached to the royal burgh, and its garrison provided

by the knights who held their lands by the tenure of castle-guard; the

neighbouring gentry probably, differing little from the thegns who in

earlier times had been bound to keep the burgh in repair. The name of

Burgher henceforth undoubtedly belonged only to the actual possessors

of property within the walls, the bulk of whom had probably from the

earliest period of their location within burgh formed the commercial

part--the Twyhyndmen, as the Upland thegns were the Twelfhyndmen--of

the community. It was the Anglo-Norman Burgh, with its feudal castle,

and its civic population distinct and separate from the garrison,

which was the model of the burghs established, or confirmed, by David

beyond the Tweed. It may be doubted whether any free communities

engaged in commerce, and occupying walled towns, were in existence

much before this reign even in the Lothians, though the germs of such

societies may have existed at Scone, Edinburgh, Stirling, and other

places, which were of a certain importance at that early period. Had

there been burghs or walled towns in any part of Saxon Northumbria

before the close of the eleventh century, the invading Scots would

have surely been checked before they reached the gates of Durham;

the unopposed incursion of the Second Constantine as far as the Tees

marking apparently the non-existence, in that quarter, of any walled

town in the middle of the tenth century, capable of arresting the

progress of a hostile force. As the sees of Glasgow and St. Andrews

may be regarded as the models left by David for the regulation of the

other Scottish bishoprics, so the _Hanse_ or community of the

Four Burghs of Roxburgh, Berwick, Edinburgh, and Stirling, was the

leading commercial association of the same reign, all other burghs as

they grew into existence conforming to its rules and ordinances; and as

the _Hanse_ was composed of four burghs, so each Burgh seems to

have been originally divided into four Wards--in strict accordance with

the theory which divided in a similar way the great rural association

of the shire into four quarters. Over every Ward was placed a Bailie,

a type of the rural “Mair of the Quarter,” and sometimes known, like

the President of the Frison Quarter, as the _Ferthyngman_; the

leading personage being the Burgh-Reeve, or Provost, annually chosen,

with the Bailies and Bedells, by the community of the Burghers in the

first Burgh-Moot held after Michaelmas.[327] Complete self-government,

indeed, was conferred, from the outset, upon the Scottish Burghers

by a sovereign who was desirous of attracting such a class to his

kingdom; and the enlightened policy of David, together with the state

of peace and prosperity which he secured for the whole of the North

of England, as well as for the settled portion of his own kingdom,

soon filled the walled towns, which rapidly sprung up on every side,

with a crowd of willing settlers from Southern Britain and Flanders,

who were guaranteed the enjoyment of even more than the usual freedom

and privileges under the royal protection. They were to be judged

by their own chosen magistrates, by “the verdict of their peers”--a

privilege shared, indeed, with every Scottish freeholder--and according

to the laws and assize of the Burgh, sanctioned by the community, and

regulated by the Provost and twelve leading men. As in the case of the

Baron’s Court, the crown pleas were withdrawn from the jurisdiction of

the Provost and Bailies, but the royal justiciary, or his deputy, sat

in the Burgh-Court; the verdict was given by the “good men and true”

of the community; and no summons made by a royal serjeant was valid,

unless he was accompanied by the Town Bedell. Every burgher was bound

to possess at least one rood of land in the burgh, for which he paid

five pence yearly to the king; and to swear fealty to the sovereign,

the magistrates, and the community of the burgh--for the tie which

bound the burgher was the old fealty of the _Leud_, not the homage

of the _Antrustion_ with its attendant obligations; he plighted

his troth with his hand upon the Sacred Volume, not placed between

the hands of his overlord “after the Frank custom.” In this, and in

other points, burgage-tenure much resembled the tenures of socage, and

of gavelkind, which approached the earlier allodial custom, looked

upon in later times as _Roturier_; but from Merchet, Heriot,

and other exactions which had passed, with the principles of service

and dependance, into many of the tenures of the age, the Scottish

Burgher was exempt; as well as from the wardship which was attached to

knight-service. The heir, if a minor, remained with his “chattels” in

the custody of his mother’s relatives, the father’s kindred taking the

charge of the “heritage;” this heritage being strictly entailed upon

the heir, who could stop those deathbed transfers of property which

were occasionally suggested by designing personages, whether lay or

clerical. Under certain circumstances, such as the fear of starvation,

even the Allod might be parted with; and similarly the “Capital

Messuage” might be sold, or the property alienated, if the heir was

either unwilling, or unable, to relieve his father’s necessities, or

to pay his father’s debts; the Burghal Code justifying this exception

from the ordinary rule by the admission that “nede has na law.” Twelve

witnesses were required for the purchase of a burgage tenement, the

twelve next door neighbours apparently, who stood in the place of the

kindred of earlier times--the occupants of the four houses on either

side and of the four immediately opposite; and if the tenement was held

without dispute for a year and a day--the period which also seems,

from time immemorial, to have conferred the right of participating

in the privileges of “the neighbourhood” in the rural districts--it

became the absolute property of the purchaser, unless the former

owner could show that he was a minor, or beyond sea, at the time of

the purchase. The perfect freedom of burgage tenure was ensured by

the provision that “If any man’s _thryll_, baron’s or knight’s,

comes to the burgh and buys a burgage, and dwells in his burgage a

twelvemonth and a day, without challenge of his lord or his baillie,

he shall be ever more free as a burgess within that king’s burgh, and

enjoy the freedom of that burgh;” an enactment, not so much aimed at

encouraging fugitive native-men from the rural districts to settle in

the towns, as against a previous state of society which still exists in

Russia--or existed lately--in which the bondman might rise to wealth

and station as a citizen, without shaking off the thraldom which bound

him to his original proprietor. As, after the enfranchisement of towns,

the undisputed possession of a burgage tenement for a year and a day

conferred the proprietorship of a freehold, it necessarily carried with

it, like the gift of arms at an earlier period, the indisputable rights

of a freeholder.[328]

Every fortnight a _Moot_ was held within the burgh, at which every

burgher within the walls was bound to be present--in winter, before

_Undern_, or nine o’clock in the morning; and at _Midmorn_ during the

summer--a greater Burgh-moot being assembled at Michaelmas, Christmas,

and Easter, at which the presence of every upland burgher was also

required, their absence being punished by the highest fine levied--the

full forfeiture--as the burgher who dwelt without the walls was excused

attendance upon the lesser moots. The general Burgh-moot was evidently

a relic of the time before the separation of the Castle from the Burgh,

when the upland thegns were bound, under heavy penalty, to meet three

times a-year to fulfil the duties of their tenure; the lesser moots,

and the general regulations of the burgh having been probably left

very much to the _Twyhyndmen_ who dwelt within the walls. A watch was

established for the security of the town; and at the stroke of a staff

upon the door, an inmate was bound to come forth from every burgher’s

house, and, armed with two weapons, to join in keeping watch and ward

over the sleeping burgh from _couvre-feu_ to _cockcrow_, the houses

of widows alone being exempted from this duty. The trades were under

the general superintendence of the _Probi homines_, or leading men of

the burgh, and some of their regulations are remarkable. The baker

whose bread was not made and placed openly, in the window, for sale,

was fined “full forfeiture,” and his bread confiscated for the use of

the poor--a somewhat questionable method of disposing of it, if the

law was to punish its adulteration. The provision dealer was obliged

to sell all that was in his house beyond the value of fourpence,

if required, on the plea that it was public property--an enactment

levelled, probably, against hoarding provisions in a time of scarcity

for private use, or for profit; for when famines were of frequent

occurrence, the dealer in the necessaries of life might be tempted to

speculate in his neighbours need. The dignity of the magistracy was

kept up by prohibiting any Provost, Bailie, or Bedell, from making

bread, or brewing ale, for sale; and of the burgherhood, by excluding

from its privileges every dyer, butcher, or tanner, who worked at his

calling with his own hands. If he aspired to become a member of the

guild, the business was to be deputed to other hands, whom he was only

to superintend as “a master.” Cloth appears to have been the staple

product of the time, and wool was as jealously guarded as in England,

none but a burgher being allowed to buy it, for the purposes of dying,

or cloth-making. An occasional difficulty with “the hands,” as at

present, appears to have arisen, though from different causes; but the

age was less scrupulous, and the _Kemester_, or wool-comber, who tried

to escape to the Upland, might at once be committed to the town-jail,

on the plea that there was work to be done. The runaway was not

invariably a fugitive from the rural districts. It was a hard age for

the dependant classes wherever they were; and the “bondman in-burgh”

may at times have cast many a wistful glance towards the blue hills in

the distance. Monopoly and exclusive dealing were only in accordance

with the spirit and policy of the age; and must inevitably have arisen

in every quarter, when it was enacted that every sale and purchase

should be made “in port,” and in the presence of witnesses chosen “in

burgh;” which must, of course, have concentrated all the traffic of

the district connected with the burgh in the hands of the resident

population. The subdivision of the Hundred was unknown in Scotland,

and accordingly such privileges occasionally extended over the whole

County or Sheriffdom; as in Edinburgh, and as in the case of Perth;

where, perhaps in consequence of this wide monopoly, the unprivileged

trader from other quarters was allowed to retail cloth during the

summer, from Ascension Day to the 1st of August; though ordinarily

the privileges of the burgh were only suspended during Fair-time. The

Fair was in some respects a sort of regulated Saturnalia; none but the

outlaw, the traitor, and the malefactor whose crime was of too deep a

dye to admit of sanctuary, could be taken during its continuance; all

else, whether debtors, runaways, or minor offenders of any description,

being free from arrest, except they broke “the peace of the Fair,”

when they were tried and punished, not by the ordinary magistrates of

the burgh, but in a temporary Court, known universally as the Court

of _Pies-poudrees_, or _Dusty-feet_. The Dustyfoot was the travelling

pedlar, or merchant as he was called in Scotland, the original of the

modern Haberdasher--or “man with a _Havresac_;” and as, in Fair-time,

the _Stallenger_, or trader who sold from a temporary stall, or booth,

could claim “_lot and cavyl_”--share and share--with the more dignified

Burgher, with whom for the time he was upon an equality, it would have

been contrary to the true northern principle of justice if he had been

liable to be tried and punished in a strange Court, and by any other

verdict than that of “his Peers,” the Community, for the time being,

of the Fair. The Dustyfoot probably came by land, and only entered the

burgh for traffic during Fair-time; but the sea, or the river, bore

the vessel of the foreign trader to the burgh at all times, though,

except when it was otherwise provided, as at Perth during summer time,

the burghers alone could dispose of the traders’ wares, only salt or

herrings being sold on board ship. All disputes between a foreign

trader and a burgher were to be settled before the third flood of the

tide.[329]

No Burgh was complete without a Hospital--no royal Burgh without a

Castle. Leprosy was the disease of the age--a never-ceasing plague,

entailed by unwholesome food, a want of vegetables, and the salted meat

and fish, which formed invariably the winter diet, not a little aided

by uncleanliness. Every one struck with leprosy within the walls was

to be removed at once to the _Spittal_; and if he had nothing of

his own, a collection of twenty shillings--a considerable sum for the

time--was to be raised for his support. If the pauper was not cured by

the time the money was spent, he was probably dismissed as incurable,

and classed amongst the confirmed lepers, who were forbidden to enter

any town, but were allowed to sit at the gate and beg. By the Law of

Scotland it was allowable to give “Herbary” to a stranger for one night

without question, but if he stayed beyond that period the host was

answerable for the guest, and bound to produce him before the proper

officer. Even this relic of the unstinted hospitality of early times

was dispensed with in the case of this dreaded disease; and he who

sheltered a leper within the walls was liable to the heaviest fine

inflicted, “the full forfeiture.” Similar arrangements were once in

force in every burgh; as in London, for instance, where the _Spittal

Fields_ were the open meadows around the Hospital for Lepers, who

were allowed to ask for alms at the _Cripples Gate_, a spot which

the charitable may have sought out, but which a larger class must, most

assuredly, have shunned.[330]

The royal burgh was under the rule of its chosen magistrates, but the

royal castle was under the charge of the Constable appointed by the

king, this office often becoming hereditary in the family on which

it was originally conferred. Forty days were fixed as the period of

service on castle-guard, which, like everything else towards the

decline of the Feudal system, was gradually compounded for by a money

payment to the Constable; who, in other words, performed the service

with his own retainers, and exacted the usual fine, or its equivalent,

for the non-attendance of the party bound by the tenure of his land to

undertake such service. This custom, however, had scarcely grown into

general use in the reign of David, for it was one of the provisions

of Magna Charta that no Constable should summon a knight to perform

castle-guard whilst he was serving in the king’s army, nor exact the

fine for non-attendance when he was ready to perform the service in

person, or by proper substitute. Freedom from arrest was one of the

privileges attached to castle-guard, as well as to service in the

king’s “host,” lasting, like the similar privilege of Parliament, which

still exists, for the whole period of service; the same exemption being

extended to all who were in attendance on their duties in the county,

or who were sent to the burgh to buy provisions for their lord. The

Bailie of the castle was empowered to borrow of a burgher goods to the

amount of forty pence, and for a period not exceeding forty days; but

it was at the option of the lender to increase the amount of the loan

beyond that sum, or to defer the time of payment beyond the forty days.

At Easter, Whitsuntide, and Christmas, a “castellan” was entitled to

demand from a burgher pigs, geese, or chickens, “for the king’s need;”

but if the burgher could close his door no entry might be forced--his

house was his castle, according to the well-known English saying--but

the castellan might catch and kill any of the burgher’s stock that

he found beyond bounds, paying the price at which the neighbourhood

assessed the articles. The probable object of both these regulations

was to ensure the garrison a fair supply of necessaries without

entailing too heavy a burden upon the townsmen. In all disputes, if

a castellan complained of wrong, he was to claim his right in the

Court of the Burgh; and if the burgher considered himself aggrieved he

was to carry his plaint to the Castle gate. On these occasions there

appears to have been a mixed jury, as in the trial of an alien at the

present day, “the peers” of each party furnishing a portion; such at

least seems to have been the case in the following trial in the castle

of Dumfries for the homicide of a burgher, the party charged with the

offence being an Upland-man, probably on castle-guard, as he was tried

in the place appointed for appeals against a castellan. Adam, the

miller of Dumfries, meeting Richard, son of Robert Elias’s son, in the

churchyard of St. Fabian and St. Sebastian in the castle, abused him as

a thief, “because he was a Galloway man”--a species of reasoning still

sometimes current in cases of unpopular nationality. On the following

Thursday, when Adam was standing in the doorway of a house, a woman

called out to him that Richard was coming up the street, warning him

to be on his guard. “My knife is as sharp as his,” replied the miller;

attacking Richard at once, who drew his sword and struck Adam with the

flat side of the weapon. The miller closed his arm upon the sword, and

in disengaging it sharply, Richard inflicted a mortal wound upon his

assailant, exclaiming, on seeing the catastrophe, “you caused your own

death.” All the Burghers testified on oath that Richard was a man of

good repute, but that Adam was a rogue; and the “Barons” concurring, an

unanimous verdict of acquittal was pronounced. Barons and Burghers both

seem to have been concerned in this trial, which affords a very fair

specimen of the lawless manners of the age, and of the advantages of

the “jugement del pais” over the earlier system expressed in the legal

axiom “buy the spear or bear it”--pay the _were_ or stand the

feud.[331]

Such were the leading regulations of David’s community of Burghs. They

correspond closely with the ancient customs of Newcastle, to which

indeed allusion is made in the Burghal Code, the English community

having been consulted apparently upon the law of inheritance;[332] and

there can be little doubt that the Anglo-Norman Burgh, itself in most

respects a confirmation of the Anglo-Saxon, except where the custom

of Borough-English existed, was the model for the burghs introduced

by David throughout the land. In imitation of their sovereign, the

greater magnates, lay and ecclesiastical, occasionally enfranchised

their towns, or founded burghs, filling them with a class of freemen

on a footing with the royal burghers, though the latter were reckoned

higher in the social scale, and were privileged to decline the

challenge of a member of a lesser burgh; just as the _Scepenbar_

man, who could count his “four ancestors and his _hant-gemahl_,”

was entitled to refuse the challenge of his equal in position who

was not his equal in blood.[333] The royal burghs generally retained

their ascendancy, though not invariably; for in spite of the jealous

rivalry of Dunbarton and Rutherglen, upon the margin of her own fair

river, the great episcopal city of Glasgow has long been acknowledged

the undisputed mistress of the western waters. The original burghers,

as a class, were, with few exceptions, of foreign origin, emigrants

from southern Britain, and not unfrequently Flemings; as in Berwick,

where the Flemings long dwelt apart as a separate guild.[334] It was

long before the native element entered largely amongst the privileged

civic population, clinging to Scottish customs and to the rural

districts, especially in the distant North, where the towns must have

long stood out like commercial garrisons in a disaffected, and not

unfrequently a hostile, country. Not the least amongst the many changes

introduced by the burgher class beyond the Forth was the diffusion of

the language hitherto only spoken to the southward of that river, a

Teutonic dialect spreading over the country, as in Ireland, with the

gradual preponderance of the intramural population, a similar result

being traceable in France, though under exactly opposite circumstances;

for the language spoken in towns, where men congregate together in

large numbers, will always prevail over the dialects of a rural and

scattered population. It would be difficult to overestimate the utility

of the burgher class to the Scotland of that period, or its influence

in promoting the amelioration and prosperity of the country. The

increase it brought to the revenue, though perhaps one of its greatest

advantages in the opinion of the age, was comparatively of secondary

importance. The invariable tendency of such a class has always been

to favour peace, order, and civilization, as long as it has occupied

its natural position; for it is only when a burgherhood has become

over-powerful that it has afforded as frequent examples as a nobility,

or an _autocracy_, of the inability of human nature in any

condition to withstand the evil influences of unlimited power. Such was

not the case in Britain, where the burgherhood has never occupied the

same position as the great communities of Flanders, of Germany, or of

Northern Italy. It would be of little use to speculate upon what might

have happened had England remained under the rule of a feeble, or an

“unkindly” king--of Edgar Atheling or Harold--with her great provincial

_Jarls_, like the Dukes of Franee, distracting the country with

their contentions for power. Great burgher communities might have

arisen, especially in the Danelage, where the Socmen, representatives

of the _Land-agende_ men, or Odal-Bonders, of an earlier period,

were exactly the class to form a martial burgherhood; but such a future

was not to be. In neither England nor Scotland has the civic class

ever been the sole depositary of the ancient northern principles of

self-government, as on the Continent; where the _Echevin_, the

representative of the ancient _Scepenbar_ Freeholder, who could

alone pass judgment upon his equal, has for centuries been confined

to the towns. It may be read in the Capitularies of the Carlovingian

era, how it was offered to the ancestry of the French nobility to

declare the law they would live by, and their choice was destined to

be unfortunate; for wherever the hand of Imperial Rome is traceable,

it has sown the seeds of future despotism. In every part of Britain,

however, there was but one law for Baron and for Burgher, framed upon

the principles of the free north; and much as we may be indebted to

the civic portion of our “Third Estate,” the institutions of which

we are so justly proud, were not preserved by their intervention.

It is well that in the days of old there were other parties engaged

in the struggle; for where is the example that history can furnish

of a contest for liberty successfully carried out by an unassisted

Burgherhood?[335]

The Court was not forgotten in the reforming zeal of David, and

following up the innovations, which seem to have been first introduced

by Alexander, he assimilated the Scottish Court to the Anglo-Norman

model, with which both brothers must have been familiar. It must not

be supposed, however, that before this period a Court was unknown in

Scotland; but it was probably of a primitive character, even after

the innovations of Queen Margaret. Howel Dha is supposed to have laid

down certain regulations, about the middle of the tenth century,

for his Court in Wales; and without putting faith in the apocryphal

ordinances ascribed to Malcolm the Second, it may be safely assumed

that Scotland, in the eleventh century, was at least as far advanced

in this respect as Wales in the tenth. Fordun, who gives to Crinan the

title of Abthane of Dull and Seneschal of the Isles, describes the

Abthane as the Head of all the royal Thanes; and though the title is

evidently an error, the office may have been a reality, for it would

have been simply identical with that of the Welsh Distyn, the Lord

High Steward or Seneschal. In every Scottish Earldom the Seneschal was

next in authority to the Earl--his Deputy or Maor, who appeared in his

place at the greater Shire Moots appointed by William; and Crinan may

have filled such an office under the king. The feature most worthy

of remark, however, in the constitution of the Welsh Court, was the

rank and position of the royal attendants, the highest alone--the

Distyn--being on a footing with the Chief, and the royal officials of

the Commot; while only the leading Court officials were on a level with

the Breyr, or noble proprietor; and the other members of the household

ranked only just above the Boneddig, or Lesser Freeman. Dignity of the

highest description, therefore, was not attached at this period to

service about the royal person; and the classes from which the Welsh

king chose his courtiers and attendants were the lesser freemen, and

the dependants known as _Mab aillts_, rather than the noble class

which furnished the Maors and Cynghellwrs.[336]

It must not be imagined that this was a Welsh or a Celtic peculiarity,

for there was a time when the _Hird_, or Court, of the Frank kings

was of a yet more primitive description, the attendants in the Hird

being all on a servile footing, known as _Scalcs_, and chosen most

probably from the subordinate race. The Household appears to have been

under the superintendence of the _Sene-scalc_--perhaps the Senior

Slave--the Stable under the _March-scalc_, officials who seem

to be traceable amongst the Anglo-Saxons in the _Wealh-gerefa_

and the royal _Horswealh_, the latter raised by his office to

the footing of a _Ceorl_.[337] Totally unconnected with the

servile classes, and in the absence of the sovereign exercising royal

authority over the whole kingdom, as well as over the Household, was

the Deputy, the “Dux et Major Domus regni Francorum,” more familiarly

known as the _Maire du Palais_, whose original Teutonic title was

probably the _Stallr_. The office was originally elective, the

Franks choosing the Deputy as well as the actual sovereign; and it

must in some respects have resembled that of the Celtic _Tascio_.

It latterly became hereditary, as is well known, in the family of

Pepin and Charles Martel, who monopolized the office in Austrasia and

Neustrasia, until they exchanged the title of Maire du Palais for

that of king. No other great official besides the Stallr is traceable

in the Norwegian Court, for which, at the opening of the eleventh

century, Olive the Saint framed regulations, which must have been

adopted for the usages of other Courts of the same period; though the

use of the word _Hus-Carles_, both there and in England, may point

to the gradual replacement of the _scalc_ by the freeman about

the royal person. The progress of Roman innovation soon necessitated

the presence of officials whom the simpler institutions of the north

ignored; and to receive the offerings of the fiscal tenantry, made in

lieu of the _feorm_, _veitzslo_ or actual support afforded to

the sovereign and his retinue, a _Camera_, or treasure-chamber,

was required; the leading _Camerarius_, or Chamberlain, the Lord

High Treasurer of the age, becoming, as purse-bearer, a most important

member of the Court. The charter next became a necessary document

to attest the possession of proprietary right; and accordingly, in

the early part of the ninth century, it was ordered in the Frank

Capitularies, “that there should be chosen everywhere good and true

Chancellors, to write public charters before the Comes, Scabini,

and Vicarii.”[338] Much more, then, was it necessary that a similar

official should be in attendance at the fountain-head of all chartered

grants, and consequently the royal _Cancellarius_ became another

most important attendant upon the royal person, the clerkly attributes

required for the Chancellorship naturally placing it in the hands of

the clergy. Most of these changes were probably introduced amongst

the Franks after their king had been converted into the _Kaiser_

of the West; and as the old Allodial Stallr disappeared with the

institutions of which he was a part, the office, which raised a

subject to such a dangerous proximity to the throne, seems to have been

divided between his subordinates. His leadership in war fell to the

share of the _Constable_, the commander of the royal armies, in

the absence of the king, whose name is derived from the same title of

Stallr, held by a Comes, or Graphio, instead of by the _Heretoga_

of the whole kingdom. The _Mareschal_ had not yet arrived at

the leadership of the army; his duties were still connected with the

horse, but they had increased in dignity with the growing importance

of the _Chevalerie_; for though not the head of the army, the

representative of the royal farrier had become the captain and leader

of the _Chivalry_ of the age. The judicial functions of the

Stallr were performed by the _Grand Justiciary_, the President of

the royal Courts of Law; whilst the _Seneschal_, who, though he

retained his servile name, had, like the Mareschal, long discarded his

servile origin, rose to the office of “Maire du Palais;” and in France

he was also supreme over all the justiciaries. In Germany the Stallr

was unknown, the Dukes of the Alamanni, Bavarians, and Saxons, having

themselves been originally, in some sort, the Stallrs or Deputies of

the king of the Franks; and by the time that the Empire passed to the

eastward of the Rhine, the Court had become thoroughly Romanized,

the Allodial Stallr never forming any part of it. His functions

were accordingly divided between his two leading subordinates, the

Seneschal and the Mareschal, the former being the _Pfaltz Graf_,

or Count Palatine, and representing the Maire du Palais; whilst the

Mareschal was the _Heretoga_, and leader of the host. Together

with the three Chancellors and the Chamberlain, they were the first to

give their votes at the election of a _Kaiser_, whom they were

bound to accompany to Rome; and, in later times, with the subsequent

addition of the Grand Butler, they were known as the seven Electors,

monopolizing amongst themselves the sole choice of the Emperor.

Little can be said of the composition of the Anglo-Saxon Court after

the establishment of the sole monarchy by the race of Alfred, though it

was scarcely framed at first upon the Roman model, resembling rather

that of Wales or Norway, or the Teutonic _Hird_, after the freeman

rather than the noble had replaced the _scalc_. A nearer advance

towards the usages of the Feudal era is disclosed in a charter of the

Confessor’s reign, attested apparently by the royal court, the great

_Jarls_ or Dukes being the leading witnesses amongst the laity;

and next to them in importance the Stallr, known under his Latin title

of “Regiæ procurator Aulæ,” probably the Constable. The _Aulicus_

seems to be the next official--he may have been the Chamberlain--and

the _Palatinus_, perhaps the Pfaltz Graf, or Seneschal of the

Household; followed by the _Chancellor_, whose office was deemed

at this time of scarcely sufficient importance to be held by one of the

higher clergy. The _Butlers_ of the king and queen, with three

_Stewards_, close the list; two of the latter being attached to

the king, whilst the other was in attendance upon the queen.[339]

The Justiciary and the great Feudal functionary, whose name is still

identified with military command, are missed from the Court of the

Confessor; the Anglo-Saxons were not a race of horsemen--chivalry and

the Mareschal came in with the Normans.

Some of these officials may have been introduced into the Scottish

Court by Margaret, but with the exception of the Constable, the

Justiciary, and the Chancellor, who appear in the time of Alexander,

none of the great Feudal dignitaries who were in constant attendance

upon the royal court in the middle ages are to be met with in the few

existing charters which date before the reign of David. The earliest

Constable on record was Edward, son of Siward, who fully justified the

confidence of Alexander and David on the field of Stickathrow, the

office--of which the jurisdiction, like that of the ancient Stallr,

extended over all the country within a certain distance of the royal

person--after the death of Edward, becoming hereditary in the great

Norman family of De Moreville. Alan, son of Flahald, was another

noble of the same race, who, like most of the actual followers of the

Conqueror, crossed the Channel before the general use of surnames had

arisen amongst the Normans, and upon his son, Walter, David conferred

the hereditary Seneschalship of the realm; his descendants, it need

hardly be added, deriving their name of Stewart from the dignity thus

acquired by their ancestor. Neither the Chamberlain nor the Mareschal

held their offices by a similar hereditary tenure; the former in the

capacity of royal treasurer, exercising supreme sway over the Third

Estate, who paid the largest ordinary contributions into the treasury;

holding his “Courts of Eyre” or circuits, and presiding in the great

assembly of the burghs; whilst the Mareschal was the supreme judge

and referee in Courts of Honour and of Chivalry. The Justiciary and

the Chancellor completed the six greater dignitaries of the Scottish

Feudal Court, Constantine, Earl of Fife, being Justiciary at the

opening of David’s reign, the only Gaelic Earl who appears at that

time amongst the leading courtiers holding office. Service about the

royal person was scarcely yet regarded as befitting the great Gaelic

Mormaors, and as the Court henceforth was in reality the Supreme

Council of the kingdom, the preponderance of the Feudal element in the

direction of affairs was quickly developed.

Such were the leading features of David’s civil policy; the state of

the Scottish Church, and the changes introduced during the course of

this reign, will be the subject of the ensuing chapter. The influence

of David upon his native country has been compared to that of Alfred

upon England, and of Charlemagne upon a wider sphere, but in some

respects it was of a different character. Alfred was the saviour of

the Anglo-Saxon race from complete subjection to the Danes, and though

he can scarcely be called a king of England, he was the real founder

of the monarchy. Within the limits of his ancestral dominions, and

of the rescued principality of English Mercia, he was the reviver of

letters; the creator of a navy; the reformer of the army, upon which

he expended a third of his revenue; and, as the builder of walled

towns, he may in a certain sense be regarded as the originator of a

burgherhood; but, like Charlemagne, he was a collector and not a maker

of laws, the constitutional institutions which have been attributed

to him belonging, unquestionably, to other periods. His was a policy

of defence not of aggrandisement--not even of amalgamation beyond the

limits of the Anglo-Saxon race--of defence by sea and on land; of

renovation rather than of innovation, for it was not an era for the

development of great constitutional changes. But David was a mighty

innovator, scarcely reviving anything except bishoprics; and even

in his ecclesiastical policy, in all other respects, he was equally

an innovator. He instituted a feudal court, a feudal nobility, and

feudal tenures, governing the country upon feudal principles; for

the great dignitaries of the court, in his time, were not merely the

holders of honorary offices, but the actual ministers of the crown. He

introduced the charter into general use, confirming proprietary right

throughout the kingdom, the earls and freeholders by ancient Scottish

tenure, henceforth standing, side by side, with the new noblesse and

their vavassors, until all difference insensibly disappeared. He

created a burgherhood, and laid down a novel Code of Law, by which

the earlier system was gradually superseded by the principle still

acknowledged--“the verdict of the neighbourhood.” Augustus found Rome

brick and left her marble; but David found Scotland built of wattles

and left her framed in granite, castles and monasteries studding

the land in every direction. He found her a pastoral country, and

before the close of his reign she is described as the granary of

her neighbours; and though the expressions of Ailred are probably

exaggerated, as an exporting country she must have made considerable

progress in agriculture. England may trace the germs of her monarchy

to Alfred, and of the union of her people under one sovereign, though

it was certainly not consummated in Alfred’s time. First amongst the

Cæsars of the Western Empire stands Charlemagne, scarcely, however, the

originator of the mighty results of that revival which still continue

to influence the continent of Europe. But of feudal and historical

Scotland; of the Scotland which counts Edinburgh amongst her fairest

cities, and Glasgow, as well as Perth and Aberdeen; of the familiar

Scotland of Bruce and of the Stewarts, David was unquestionably the

creator. With the close of the eleventh century ancient Gaelic Alban

gradually fades into the background, and before the middle of the

twelfth, modern Scotland has already risen into existence.

CHAPTER X.

THE CHURCH.

At some remote and long-forgotten period, Christianity was first

preached amongst the Provincials of Britain; and it became the

established religion of the Romanized portion of the island after

the great revolution effected by Constantine. Three British bishops

accordingly sat at the Council of Arles, as representatives of the

three Imperial provinces; and the presence of a similar deputation

from the island is occasionally noticed in the accounts of other

important councils. After the Faith had reached Britain from the

neighbouring coasts of Gaul, it appears to have passed across the

western Channel into Ireland--for there were believers in that country

at the beginning of the fifth century;[340] although, from the success

attending the labours of St. Patrick amongst the leading clans of the

north and west, the conversion of the whole island has been generally

attributed to the preaching of that celebrated missionary. From the

date usually ascribed to the arrival of Patrick in Ireland, it is not

improbable that his mission to that country was connected with one of

the visits of Germanus and his companions to the neighbouring island

of Britain.[341] The progress of the Pelagian heresy in the country

of which its originator was a native, had excited the alarm of the

orthodox Britons, who craved the assistance of their brethren in Gaul

to aid them in eradicating the evil, and at a council which was held

by the heads of the Gallican Church, Germanus and Lupus, the bishops

of Auxerre and Troyes, were commissioned to cross the Channel, and

refute the doctrines of the arch-heretic Pelagius; whilst about the

same time, the notice of Celestine, Bishop of Rome, being attracted

towards the state of the West, he dispatched Palladius, the Deacon, to

exercise episcopal functions amongst the Irish believers in the name

of Christ.[342] The actions of Palladius have long been consigned

to oblivion, but the name of Patrick is still venerated as the great

Apostle of the Truth to Ireland.[343]