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]