II. THE ‘REGIAM MAJESTATEM.’
Further traces of tribal custom are mentioned in the treatise entitled ‘Regiam majestatem’[201] apart from the remarkable addition to it, which also appears again as a separate document, under the heading ‘Leges inter Brettos et Scotos.’
Scotch version of Glanville.
The ‘Regiam Majestatem’ itself may be regarded as a version of Glanville’s well-known treatise on English law, applied with alterations and adaptations to Scotland by a Scotch writer conversant with local custom, and probably dating between A.D. 1200 and 1230.[202]
As in the laws of King David and his successors, so in the body of this treatise, references to ancient usages occur with occasional survivals of untranslated Gaelic words which seem to refer them back to Celtic tribal custom.
Celtic survivals here and there.
Thus, in Lib. II. s. ix, in reference to the modes by which nativi might obtain freedom, a specially Scotch addition is made, to the effect that if a lord has carnal intercourse with the betrothed wife of his servus, and this is proved by the visinage, the servus is thereupon released from the servitude of his lord; and then follows the phrase ‘nec aliud enache habebit a domino suo nisi recuperationem libertatis.’ This untranslated Gaelic word enache has already been met with in the enec-lann of the Irish ‘honour-price,’ and we shall find it used again when we come to the customs of the Bretts and Scots.
So, in Lib. IV. c. 7, in cases of rape the woman (according to the text of Glanville) is to make it known to men in good position (probi homines) or to the ‘prepositus of the hundred.’ In this Scotch treatise the writer inserts instead of the words ‘prepositus of the hundred’ ‘vicecomitatus vel le toshederach.’ The Gaelic Toshach or chieftain of a district is much in evidence in the marginal records of the ‘Book of Deer.’[203]
Again, in IV. 12, in a passage not found in Glanville, the theft of a calf or ram or whatever can be carried off on the back is described in the local words ‘berthinsak seu yburthananseca.’
In the same chapter is inserted the already quoted clause from the Assize of King William as to the wergeld of a thief who has been allowed to escape.
De unoquoque fure per totam Scociam est wargeld triginta vacce et una juvenca sive fuerit liber sive servus.
In IV. xxiii. a pledge is mentioned ‘quod vocatur culrach.’
Cro and galnes of person killed paid to the parentes.
In IV. xxx. of the treatise it is stated that if a person on horseback rides over some one going before him so as to kill him, he must render for the dead man so killed ‘cro et galnes’ as if he killed him with his own hands; and it goes on to say that if the rider treads a man to death by riding over him when backing his horse (as it would not then presumably be his fault) he is to pay nothing but ‘the fourth foot of the horse,’ which satisfaction the parentes of the man killed ought to accept.
The mention in this treatise of cro and galnes payable to parentes of the slain seems to imply that the customs relating to payments for homicide were generally in force throughout Scotland and not confined to any particular district. The words ‘cro and galnes,’ apparently meaning the wergeld, meet us again in the document relating to the customs of the Bretts and Scots.
The final clause (IV. liv.) describes the ‘merchet’ of women ‘according to the assize of Scotland.’ It begins by stating that the merchet of a woman, quecunque mulier fuerit, sive nobilis, sive serva, sive mercenaria, is ‘una juvenca vel tres solidi’ with 3d. as rectum servientis. Surely a female slave is here intended.
Merchet of several grades of women.
This seems to be the minimum ‘merchet,’ for the clause proceeds:—
And if she be the daughter of a freeman and not of the lord of the town (dominus ville) her merchet shall be one cow or six shillings and ‘rectum servientis’ 6d. Likewise the merchet [of the daughter] of a thane’s son or ochethiern two cows or twelve shillings and ‘rectum servientis’ 12d.
Likewise the merchet of the daughter of an earl (comes); and that of a queen; twelve cows and ‘rectum servientis’ two solidi.
This clause regarding the ‘merchet’ is useful as giving a scale of values in cows and shillings.
juvenca = 3 shillings. cow = 6 shillings.
And the merchet scale:
| Mulier { | nobilis [?] | } throughout Scotland | ½ | cow. |
| serva | ||||
| mercenaria | ||||
| Daughter of a liber | 1 | ” | ||
| ” of a thane’s son or ochethiern | 2 | cows. | ||
| ” of an earl or of a queen | 12 | ” | ||
Value the cow six Norman shillings: at 1:12 = stater.
The solidus of this document can hardly be any other than the Anglo-Norman silver shilling of 12 pence of 32 wheat-grains, i.e. 384 w.g. The cow equalled six of these shillings or 2304 w.g. At the Anglo-Norman ratio of 1:12 the value of the cow would thus be 192 wheat-grains: that is, exactly the normal ox-unit of two gold solidi of Imperial standard.
This curious result is not only interesting as one more instance of the tenacity of custom in retaining the traditional gold value of the animal used as the unit of payments when made in cattle, but also useful for our present purpose as affording a valuable proof that the Scotch compiler of the ‘Regiam Majestatem’ in appending the important clauses relating to the customs of the Bretts and Scots which follow closely upon this merchet clause was adding to his work a quite independent document, probably of much earlier date.
Value of the cow in the next document three ores, or at 1:8 = stater.
In this added document while the payments are again stated in cows, the value of the cow is reckoned, not in shillings, but in ores, which the figures, when examined, show to be ores of 16 pence. This reckoning in ores of 16 pence suggests a Norse or Danish influence. For, although the Anglo-Norman reckoning in shillings of 12 pence ultimately conquered and became the prevalent reckoning in the Scotch statutes, there was no doubt a period when the reckoning in ores of 16 pence was in use in Danish England, probably including Northumbria.
This is shown by a law, probably of Cnut’s,[204] which enacted as follows:—
Et ipsi qui portus custodiunt efficiant per overhirnessam meam ut omne pondus sit marcatum ad pondus quo pecunia mea recipitur, et eorum singulum signetur ita quod xv ore libram faciant.
Those who have charge of the towns (portus) shall secure that under penalties every weight shall be marked at the weight by which my money is received, and let each of them be marked so that fifteen ores shall make a pound.
The ores of this law, as we shall see, were evidently ores of 16 pence, or 512 wheat-grains (16 × 32), for fifteen of such ores made the Saxon and Anglo-Norman pound of 240 pence, or 7680 wheat-grains.
Danish ratio of 1:8.
The fact that the ore of the document describing the customs of the Bretts and Scots was the same ore as that in use with both Danes and English in Danish England and probably Northumbria about A.D. 1000 is an important one. For in this document the value of the cow of the Bretts and Scots is stated to be three ores, i.e. 1536 wheat-grains of silver, and at the Scandinavian ratio of 1:8 the gold value of the cow would therefore be once more 192 wheat-grains or two gold solidi of Imperial standard. That the Danish ratio was 1:8 as in the Scandinavian laws we shall find to be involved in the Anglo-Danish compacts making Danes and English ‘equally dear,’ while as late as A.D. 1192 the Abbey of Kelso compounded for payments to the Pope at the same ratio, two solidi of sterlings (24d. of 32 wheat-grains), or 768 wheat-grains of silver being paid for the gold solidus of 96 wheat-grains.[205]
Laws of the Bretts and Scots belong to time of Danish influence.
We may therefore consider that the document relating to the Bretts and Scots belongs to the period of Danish influence, and is of much earlier date than the work to which it was appended by the Scotch editor of Glanville.