[278] Chron. Lanercost. 1268.
[279] Stat. Alex. II. 1. It shows how stationary—or rather retrograde—was the condition of Scotland in consequence of the disastrous English wars, and the weakness of the sovereign authority at a later period, that in the reign of James I., two hundred years after Alexander endeavoured to settle the agricultural population, a statute was passed to prohibit the lords spiritual and temporal from removing from their lands “colonos et husbandos pro anno futuro,” unless they required the land “ad usos suos proprios.”—Act. Jac. I., 1429; Act. Par. Scot. vol. 2, p. 17.
[280] Reg. Morav. No. 76. Assize Wil. 28.
[281] Reg. St. And. quoted by Pinkerton, Inquiry, Appendix 7, pt. 2 s. 3. Such were the Irish Charters in the Book of Kells (Miscell., I A S, vol. 1, No. x., p. 127), the Welsh in the Book of Llandaff, and the Memoranda in the Reg. Prior. St. And., p. 113, et seq.
[282] Assize Dav. 26–28. For examples of Manred, Vide Col. de Reb. Alb., passim. The word is often written Man-rent, but the tie had nothing to do with Rent or any species of tenure. The red is simply a termination, as in gossip-red, gemein-red, equivalent to the modern ry in such words as infantry, cavalry.
[283] Ini, 36·50. Edg. II. 5. C.S. 18. The Vicarius seems to have been the original deputy of the Frank Graphio, and the Gingra, or junior, of the king’s Ealdorman, Alf. 38. Both were replaced by the royal Vicecomes and Gerefa; amongst the Franks probably when the Comes became a hereditary noble instead of an official.
[284] Stat. Alex. II. 5. Reg. Dunf., No. 79. Amongst the privileges of the Earls of Fife was numbered the Lex Clan Macduff, by which “when ony man-slayer being within the ninth degree of kin and bluid to Macduffe, sumtime Earle of Fife, came to that croce (the cross of Macduff ‘above the Newburgh beside Lundoris’), and gave nine kye and ane colpindach, he was free of the slauchter committed be him.” It saved the life of Hugh de Arbuthnot as late as 1421 (Innes’s Sketches of early Scottish History, p. 215, note 1). It was probably a relic of the old “right” once belonging to every Mormaor or Oirrigh, of retaining all his kindred in his mund; for amongst the rights of the Welsh Brenhin were all causes appertaining to the crown, king, or royal family. Another right belonging to the Welsh king was the patronage of all the abbeys, which, though not retained by the Earls of Fife, was certainly vested in those of Strathearn.
[285] Assize Wil. 3, 4. Reg. Dunf., Nos. 13, 23, 43, 45, 56. I have rendered Probi homines by Proprietary. Probus has passed into the French language as Preux; probus homo, as Preud-homme. They are continually found in the Frank laws and capitularies as Meliores pagenses, the class furnishing the Scabini, the Mediocres of some of the other early laws. In burghs they were the class from which echevins, bailies, and aldermen were chosen. They represented the leading members of all that part of the communitas which was not comprised in the clergy, greater barons, and royal officials, answering very much to the class from which in modern times—whether in burgh or upland—the grand jury, magistrates, and members of Parliament are supposed to be chosen. Amongst the old Saxons the Scepenbar man—he who was qualified to be chosen for a Scabinus—was required to be “probus, prudens, indigena, ingenuus, et quatuor avis natus, liber et opulentus;” in other words, the qualifications for a Probus homo were supposed to be birth, property, and character. In the old Scottish laws the probus homo is always rendered “good man”—and the gude-man is still the equivalent of “the master” in a certain class—the probus homo et fidelis, “the good man and true,” being a man of a class superior to the simple fidelis or “leal man.” The good equally appears in his equivalents amongst the Welsh,—the Gwr dha “bonus homo;” and amongst the Spaniards—the Hidalgo, “fijos d’algo,” or “filius boni hominis.” Amongst the Northmen he appears seemingly as the Danneman, and amongst the Irish Gael as the Saoi. The Scabinus derived his name from the same source as the Scop; both were Makers—to use the old English word answering exactly to ποιητης—and in times when an unwritten code was preserved in the memory by such verses as “the father to the bough, the son to the plough;” by a sort of memoria technica like the Welsh Triads; or by a quaint system of question and answer, as is traceable amongst the Irish; the qualifications to constitute a good “law maker” may have often produced a good “maker” of poetry.
[286] 14 Edwd. III., Stat. 1, c. 7. In Scotland the same tendency to act by deputy is observable as on the Continent, and the Lord Justice Clerk and Lord Clerk Registrar—the deputies of the Justiciary and Registrar—appear in the place of their principals, just as in the case of the sheriff-depute.
[287] Assize Dav. 18. Will. 6.