IV. RECOGNITION OF THE FOURTH AND NINTH DEGREES OF KINDRED IN SCOTLAND.
In the foregoing sections no distinct reference has been made to the recognition of the fourth and ninth degrees of kindred. It would be misleading to pass from the Scottish evidence without allusion to the subject.
Strongly influenced as custom in Scotland must have been by both Cymric and Gaelic as well as Norse and Danish traditions, it would be strange if no trace were left in Scotland of so marked a feature of tribal policy.
The nine degrees of kindred.
It will be enough, however, to refer the reader to the interesting chapter on ‘The Kin’ in the second volume of Mr. Robertson’s ‘Scotland under her early Kings,’ in which he alludes to ‘the words in which the Northern St. Margaret is supposed to have formally renounced her kindred (“al my Kun I forsake to the nithe Kne”), and to the “nine degrees of kindred” within which all connected with the Earl of Fife might claim the privileges of the Clan Mac Duff.
And after what we have seen of the way in which the Norse leysing rose by steps of four generations into increasing freedom as a kindred grew up around him, it may be worth while to recall attention once more to the reverse process by which the nativus or villanus under later law became attached to the land.
The fourth generation fixes the status of nativi.
Among the fragments of Scotch laws collected under the heading ‘Quoniam attachiamenta’[209] is the clause ‘De brevi de nativis’ which may be translated as follows:—
There are different kinds of nativi or bondmen. For some are nativi de avo et proavo which is vulgarly called de evo et trevo, whom he [the lord] will claim to be his nativi naturally, by beginning to narrate their ancestors, if their names are known, to wit, of his great-grandfather, grandfather, and father, who are convicted by his saying that they all are his nativi in such and such a villa of his, and in a certain place within the said villa on servile land, and that they rendered and did to him and his ancestors servile service for many days and years, and this “nativitas,” or bondage, can be proved through the parents of the convicted one, if they are alive, or per bonam assisam.
Likewise, there is another kind of bondage, similar to this, where some stranger shall have taken some servile land from some lord doing servile service for the same land, and if he die on the same land, and his son likewise, and afterwards his son shall have lived and died on the same land, then all his posterity [i.e. his great-grandsons] shall be at the fourth grade altogether in servile condition to his lord, and his whole posterity can be proved in the same way.
There is a third kind of nativitas, or bondage, where some freeman, pro dominio habendo vel manutenencia [i.e. for protection or maintenance] from some magnate, gives himself up to that lord as his nativus or bondman in his court by the front hair of his head (per crines anteriores capitis sui).
Whatever may have been the date and origin of these remarkable clauses, they are valuable as showing how tribal tradition became hardened in course of time into Feudal law, and how, the transition from tribal to Feudal principles having been accomplished, what is known everywhere by the name of ‘serfdom,’ became domiciled in Scotland.
