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

by Eben William Robertson

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]