[308] Canc, vol. 1, p. 236. Magn. Chart. II., s. 39, 52. No freeman was to be dispossessed of his freehold, liberties, or customs, “nisi per legale judicium parium suorum vel per legem terræ.” The former still continues to be the privilege of the “Majores Barones,” or House of Lords, the latter belongs to the “Minores Barones,” or the rest of “the Community.” Had not the old “judicium per pares” been superseded in the case of “the Community” by the “Jugement del Pais,” the Pares would now be counted by millions!
[309] Leg. Ath., iv. 6. Eth., iii. 3, 13. The Folk-mote was probably the meeting of the whole people in early times, but after a king’s Ealdorman presided at it, it was surely only a meeting of the Folk under his special jurisdiction. It is last alluded to in the laws of Athelstan, being replaced probably by the biennial Shire-gemote provided by Edgar’s laws, in which the Bishop and the Ealdorman were the leading personages (Edg. ii., 5. C.S. 18). These Moots had nothing whatever to do with the government of the kingdom, which was vested in the king and his Witan,—his Court or Privy Council, not his Parliament; for the voice of “the Community” was unheard in the Witanagemote. Self-government up to a certain point is traceable in the institutions of this period, but not beyond it. The Londoners might choose their Tything-men and manage their own affairs, but the right to do so was laid down in “the ordinance which the Bishops and Reeves belonging to London ordained;” the Reeves being appointed by the Crown, and Bishops, Reeves, and Ealdormen being answerable for holding the Frith “as I and my Witan have commanded” (Ath. v. 11). It is in vain to attempt to trace the germs of the English parliamentary system in the Anglo-Saxon Witan. Our modern Parliament was gradually developed out of the right, acknowledged by “Norman feudalism,” of the whole community of freeholders to gather round the sovereign. The Majores Barones still exercise the right, once belonging to the whole community, of assembling in person; the lesser barons, and the rest of the community, whether in burgh or upland, assemble by their representatives, chosen originally by “the Reeve;” but from the reign of Henry IV. (who appears to have finally carried out the intentions of his grandfather, after a lapse of thirty years), by all freemen of a certain standing. The government of a king and his Witan—his Court or Privy Council—could only have been developed in course of time into, either a powerful but irresponsible despotism, or a feeble monarchy torn by the dissensions of a few powerful magnates contending for the real power. Such was the phase it assumed in England, unless the history of that period is gravely in error.
[310] Wootton, l. 4. Triad 85.
[311] Malcolm IV., according to John of Hexham, was chosen in an assembly of this description, or rather, as amongst the Germans in the days of Tacitus, the assembly ratified the choice of their Seniors. “Tollens igitur omnis populus terræ Malcholmum ... apud Scotiam, sicut consuetudo illius nationis ... constituerat regem pro David avo suo.” J. Hex. 1154.
[312] Reg. Prior. St. And., p. 117. This meeting must have taken place early in the reign of David, as the signature of Earl Constantine is soon replaced in the charters of the period by that of Earl Gillemichael.
[313] Stat. Alex., II., 2–3. Assize Will. 26. Vide also Will. 22.
[314] Assize David, 4–8, 12, 24, 25, 35. If the law about Mortancestrie and Novel Disseisin is correctly ascribed to David, it would be not a little remarkable, for the change was only introduced into the English law by Henry the Second, according to the highest testimony, Glanville (l. 1, c. 11–21, quoted by Blackstone). Such changes generally travelled northwards, and will be found in England before they took root in Scotland. Thus the attempt of James I. to establish a representative system amongst the lesser freeholders in Scotland is surely traceable to his residence in England, where a similar system was actually established by Henry IV. The regulation ascribed to David, however, is not identical with “the Grand Assize,” which was constituted by appointing four knights in every sheriffdom, who were to choose twelve others. By the Scottish law such questions were to be decided by the ordinary “Assize of the good country of twelve men.” By Welsh law all questions relating to succession to property were to be decided by the Henduriad Gwlad—the senior Gwrdha, or good men of the country—the judge pronouncing according to their decision, which was known as Dedfryd Gwlad, or the verdict of the country (Wootton, l. 2, c. 10). Whether this regulation was original, or derived from the principle introduced by Henry II., I cannot say.
[315] Amongst the Fragmenta, Act. Parl. Scot., vol. 1, p. 383, s. 29, is one which lays down the rules for the judicial combat, adding that in cases of Disseisin it was optional for the parties to choose the Wager of battle or the Verdict of the good country, either course to be decisive. It is difficult to determine whether this must be regarded as a fragment of Galloway law, or as one of those retrogressions which were incidental to the state of Scottish society after the English wars. The Quon. Attach., 35, 36, however, allude to the Breve de Disseisin et de Mortancestrie as the only familiar legal process, which would appear to place the fragment in question amongst the Galloway laws.
[316] As the founders of the Norman kingdoms southward of the Alps were ignorant of the hereditary feud; as no charters are traceable in the Norman duchy until many years after the Conquest; and as the charters by which the Anglo-Normans held their English possessions were unquestionably framed upon the Anglo-Saxon model; it would appear as if such documents, familiar to the Anglo-Saxons, were comparatively unknown to, or unused by, their conquerors. In the thirteenth century, when Earl Warenne was called upon to produce the title by which he held his lands, he laid his sword upon the table; nor can the few remaining holders of lands, which their ancestors possessed at the date of Domesday, show any other title than that of the great Earl. Yet are we generally told that the Normans oppressed the Anglo-Saxons by the introduction of novel feudal tenures. Sac and Soc, Tol and Team, Infangthief and Outfangthief, were scarcely brought from Normandy.
[317] The charters will be found in the Introduction to “Robertson’s Index.” The witnesses, all of whom have Saxon or Danish names, are sometimes supposed to represent the Scottish Court; and the total absence of all Gaelic names is assumed as a proof of the total exclusion of the native race from the court and councils of their sovereign. But this total absence is in itself suspicious. Where are the Gaelic Earls who were invariably the first to attest the great charters of Alexander and David? In the Foundation Charter of Dunfermlyn, David confirms the grants of his father Malcolm, his mother Margaret, and of his brothers Duncan, Edgar, Ethelred, and Alexander; all of which must have been made according to “ancient custom,” or the charters, would have been forthcoming in the Dunfermlyn Registry; and as the sole known charters of Duncan and Edgar are connected with Durham, whilst their grants made beyond the Forth were not confirmed by any written document, it would appear as if these Durham charters had been written and witnessed at Durham, and that no argument can be drawn from the names of the attesting witnesses about the composition of the Scottish Court. The title of “Basileus Scottorum,” applied to Edgar, will never be found in any Scottish charter, but it occurs frequently in Anglo-Saxon documents. It was the policy of the Scottish kings of that period to keep up a connection with Durham; and it must be always recollected that there was less difference between the Angles separated by the Tweed, than between the Angles and Anglo-Danes separated by the Tees. The chosen standard of David—the Dragon of Wessex—speaks volumes of the pretensions which the sons of Margaret were very ready to keep alive amongst a population, which was not included in the Domesday survey.