Scotland under her early kings, Volume 1 (of 2)

by Eben William Robertson

The only tenure known at this period was the Gavel[271] one of the earliest forms of the original allotment, which was enjoyed in common by all within the limit of the immediate kindred—or, in Teutonic phrase, all embraced in the Mæg-borh—a permanent property in such a holding only being acquired by uninterrupted possession for the usual period of “three generations.” No fixed or individual property, in the modern sense of the word, was conveyed by such a tenure in any certain spot of land as long as divisible and inheritable property consisted of money, arms, and ornaments, and the stock and produce of the land; but rather a right of joint-occupancy in the family district or holding, shared by all who could claim a certain degree of kindred with the Senior of the race. The Senior was elective, every member of the kindred who had a right of joint-occupancy also having an equal claim to choose the head of his family; though under ordinary circumstances the precedency seems to have been generally conceded to the actual representative of the original “eldest born.” Seniority conferred privileges, but it also entailed obligations. To every kindred occupant of a lesser holding was assigned a portion of land, the Senior having the preference in the choice of allotments, with a joint right to feed his live stock on the common pasture, and a similar share in the house, barns, and stabling; the possession of the hearth in the “capital messuage” generally being included amongst the prerogatives of seniority. All that was not partitioned out in this manner fell to the share of the Senior, who in return for his privileges was responsible for the whole of his kindred. He was their plegius or security, and their spokesman on all occasions,—or, in the language of the Anglo-Saxon laws, their Borh and Fore-Speca. He asserted their joint rights, he avenged their joint wrongs, and he was answerable in their joint names for the receipts or payments invariably following injuries whether inflicted or received—for community in good or evil was the very soul of the system of kindred—as well as for the due exercise of hospitality whenever the “overlord,” to use the feudal phrase, was entitled, on his Cuairt or Visitation, to demand the “refection,” which was known amongst the Anglo-Saxons as “a night’s feorm.” It may be safely assumed that similar features were exhibited on a greater scale in the thanage, and in the holding belonging to the district judge; the obligation of “refection” in the case of the thane being confined to receiving the king, an earl, or an abbot or bishop, according as he held office under a lay or ecclesiastical superior. To judge from the parallel case of the Welsh nobleman, this was generally on the occasion of the great winter circuit, when the Scottish kings and magnates were accustomed to pass their Christmas amongst their thanes, much as the kings and Jarls of Scandinavia were wont, according to the old Icelandic chronicler, to move about during the winter months amongst their baronage, or Hersirs, who held their lands in a similar manner by the tenure of Veitslo, or provisioning the king. The same rule may be supposed to have been applicable to the earldom; whilst the principle of community of right in the kindred unquestionably extended to ecclesiastical dignitaries amongst the Gael, Tanist and Adbhar abbots—or the successor actually chosen, and all capable of being nominated to the abbacy—being continually met with in the Irish annals.[272] It may be gathered from the ancient Scottish laws that the limit of the immediate kindred extended to the third generation, all who were fourth in descent from a Senior passing from amongst the joint-proprietary, and receiving, apparently, a final allotment; which seems to have been separated permanently from the remainder of the joint-property by certain ceremonies usual on such occasions. On the death of a Senior, a redistribution of the land and offices belonging to the family invariably took place; and it was at this period, probably, that all who were beyond the limit of the immediate kindred received their final allotment. The fourth in descent from a thane, no longer entitled to his share amongst the joint-proprietary, or Tigherns, became an Og-tiern, he and his descendants holding henceforth of the representative of the Senior, by the same tenure as the thane held of the king; the lapse of the necessary period in both cases rendering them irremovable from their respective districts. The Tanist, or next in succession—for the “law of Tanistry” is only another phrase for the law of succession—was appointed at the same time as the Senior, receiving an allotment in proportion to the dignity of his office, and, at this period, generally holding the Toshachdorach, or captaincy of the family,—which, in later days, as the law of succession gradually altered, and the office of Tanist sunk into disuse, seems to have become the especial prerogative of the next in succession; and when the earldom, lordship, or thanage passed out of the original family by female heiresses, was generally confirmed by charter on the heir male, to be held hereditarily under the head of the house. Nor was the Toshach a character confined to the Celtic people alone; for the Mayor of the palace under the early Merovingian sovereigns, who was usually elected at the same time as the king, and was perhaps a member of the same royal race, was known as the Dux Francorum; very much resembling the Gaelic Toshach, and the dignitary whose title appears upon the early British coins under the Latinized form of Tascio.[273]

Many of the features, indeed, displayed in the Celtic Gavel were not in any way peculiar to the Celtic people, but will be found to have very generally existed in every part of western and northern Europe, wherever a portion of the population continued to hold their land by the older system, which was stigmatized as Roturier after the feudal theory of “knight-service” was recognised as the only principle of “gentle tenure.” In the intermediate period, when the earlier system still held its ground side by side with the principles of Roman law, and the shifting allotment to which every member of the Folk or Leod was entitled by “the right of blood” was passing gradually into a fixed and permanent inheritance, length of possession, variously reckoned in different early laws, alone conferred pure allodial property in land amongst the German people—for the chartered grant from the king was thoroughly Roman—whilst throughout the North, long uninfluenced by contact with Imperial Rome, the original principle of descent, which was still traceable in the Germanic nobility of this period, and in the “inborn” right acquired by the lower orders, was in full force; the Bonder growing into the Odal-Bonder, and if his blood was strictly pure, into the Holder, solely after the lapse of the necessary number of descents. Long after the conquest of the ancestral dukedom of the English kings by Philip Augustus of France, the main features of the law of Tanistry, which seemed so strange to the Anglo-Irish lawyers of the seventeenth century, were still familiar to the Normans of the continental duchy. All the family up to the sixth degree were joint proprietors with the Senior of the race in the Tenure-par-Parage, holding by fealty alone, the seventh in descent passing from amongst the privileged kindred and holding by homage, thus becoming “the man” of the head of the family, just as the fourth in descent by Scottish custom became an Og-tiern under the Thane. The difference in the number of descents was simply the result of the introduction of a noble class above the free, and in either case, all who passed beyond the limits of the kindred evidently had an “inborn” right to a fixed and final provision.[274] A similar principle seems to have regulated the holding amongst the continental Angles, which never passed to an heiress until the kindred could furnish no male heir within the necessary limit, extending in this case to the fifth degree. The share-house of the Kentish Gavel (the Bold-getal perhaps of Alfred’s laws), with the hearth reserved, as among the Welsh, for the youngest heir; the allotment of which the name of shifting betokens the original character; and the freedom of the heirs from the consequences of the father’s felony, alluded to in the old Kentish rhymes, “the father to the bough, the son to the plough,”—a freedom which was confirmed, rather than introduced, in Scotland by the laws of William,[275]—closely resemble the characteristics of the Celtic holding: though the preference of the youngest heir in the Welsh and Kentish Gavel, and in the tenure known as Borough-English, discloses the pre-existence of a state of society unknown, apparently, amongst the Gael; whilst the allodial character of the Kentish Gavel seems to have been almost peculiar to that county.

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]