[318] Assize Will. 8.
[319] Stat Alex. II. 8, 15. The two classes were “Miles vel filius militis, vel aliquis libere tenens in feodo militari, vel aliquis alius terram suam aliquo modo tenens per cartam in feodo, per liberum servitium, vel per fie de hauberk, vel eorum filii;” and “Firmarii de rusticis nati, vel qui in vili prosapia fuerint sive rustici, vel aliqui alii qui liberum tenementum non habent, nec libertatem prosapiæ.”
[320] Quon Attach. 18. Act. Parl. Scot., p. 91–92. So when it was proved to the satisfaction of a similar jury that Crane, his son Sweyn, and his grandson Simon, had held, uninterruptedly, the office of Janitor of Montrose Castle, with the lands attached to it (originally a grant of William to Crane), the five daughters of Simon—the fourth in descent—were pronounced heiresses in fee.—Ib., p. 90. The invariable three descents appear to have conferred hereditary right.
[321] A Thane of Haddington is the sole instance that I am aware of in the Lothians; and yet the Scottish Thane is often derived from a Saxon original! For “Scottish Service,” Vide ch. viii. p. 208, note. As Scotus as much meant a Gael as Flandrensis meant a Fleming, or Galweiensis a native of Galloway, the great Border clan of Scott must have been settlers from beyond the Forth.
[322] Mat. Par. ad an. 1251, p. 554.
[323] Appendix D.
[324] Col. de Reb. Alb., p. 35, No. viii.
[325] I allude to names like Mac Caillin More, Vich Alaister More, Mac Connuil Dhuy, and others distinct from surnames. In Appendix R I have given my reasons at greater length for doubting the theory which assumes that the first holder of a charter was always a foreign settler, and that every territorial name—every name with a de—necessarily implies a foreign descent. De Ergadia, de Insulis, de Carrick, de Galloway, de Strathbogie, de Atholia, de Abernethy, de Ogilvy, and many others, attest the contrary.
[326] Asser. in Mon. Hist. Brit., vol. 1, p. 474, 492, 493. Also Appendix F. Defence seems everywhere to have been the original bond of union in burghs—defence against the Moors, for instance, in Spain; but where the Goth and the Roman had dwelt, in a certain sense, on an equality long before they amalgamated, an intramural population, with Roman traditions and Roman law, must have existed many a year before it was recognised as a separate “Estate” in return for defending towns against the infidel. In the great German Burghs the Traders were originally a separate class from the Burghers, and the distinction is still traceable in those regulations of the Scottish burghs which denied admittance to the Guild privileges to all who worked at certain trades with their own hands. What was the previous condition of the Traders—what their state before their town became a Burh with privileged defenders, amongst whom they were gradually enrolled? At the best, it must have resembled that of other Fiscalini, and few “full-born” Teutons could have entered willingly into such communities until they went as free and privileged defenders of a Burh, rather than as members of a class which they looked upon as inferior and unprivileged. Their arms and their free rights they carried with them—the one was identical with the other in the olden time—becoming free members of a civic, as they had previously been of a rural association, and following such civic occupations as were not considered derogatory to the dignity of a Freeman. Germanic law long ignored written documents, and the customs of the Burgh were mostly in accordance with that older allodial system which the progress of Roman innovation stamped as Roturier. Men possessed property in land long before it was secured by written documents, and many a burgh had been in the enjoyment of rights and privileges by unwritten law long before it was thought necessary to obtain the sanction of a feudal charter, which must no more be regarded as necessarily creating a new burgh, than as necessarily introducing a foreign settler into Scotland, and eradicating a native proprietor. In both cases the charter was often only confirmatory of pre-existing rights. But it would be erroneous to imagine that the Teutonic Burghs ever existed as independent associations against “the tyranny of the noble class.” Some notice of such a state of society, had it existed, would surely be traceable in the regulations of the Carlovingian era. It was this very class, lay or ecclesiastical, who joined with the sovereign in building Burghs for defence, or introducing free burghers into towns which had hitherto been unfree and comparatively defenceless. The spirit of antagonism arose with the increasing power of the greater burghs. In England the Burgh arose out of the necessities of the Danish invasion; and if a Teutonic element existed previously amongst the resident intramural population, it was scarcely on the footing of Burgh-Thegns. There is no word in the Anglo-Saxon language expressive of a free and trading community associated within walls. The Burh was originally the place of strength, and the inhabitants of Bebba’s Burh were surely not traders. Wic is a very vague word, and Ceaster unquestionably of Roman origin. The latter is the word most often found in the translation of Beda—as in London-Ceaster, and Eofer-wic-ceaster—and as the Wealh remained at the basis of the population in the rural districts, a similar element probably supplied the bulk of the inhabitants of the Ceaster before its conversion into a Burh introduced the Teutonic Burh-Thegn.
[327] Leg. Burg 70, 71. The Hanse was simply that kindred association, known as the Hant-Gemahl, without which no Teuton seems in early times to have been entitled to “free right.” (Appendix F.) The Northerns carried with them into the Burh their old customs, this association amongst the number. A Hanse seems strictly to have been an association of four; there were four classes of towns in the great Hanseatic League, of which Hamburg, Bremen, Lubeck, and Cologne were “the Four Burghs.” When Roxburgh and Berwick fell into the hands of the English, Lanark and Linlithgow were added to complete the necessary number of four Scottish Burghs. The Northern Burgh seems to have been simply the reproduction of the rural system within the walls, the Burgh-Thanes, or probi homines, of London, who chose their Tything-men and Hynden-men—representing the Tuns-men of the country districts—who also chose their Head-borough and Hundred’s Ealdor. Neither originally chose their Gerefa. I cannot look upon the Northern Burgh as simply a repetition of the Roman city, or the Roman city, with its Roman customs, enfranchised, and its citizens, living by Roman law, converted into burghers. The Hanse was scarcely Roman, but it was a necessary ingredient in the free right of every “full-born” Teuton. “Bare is back without brother behind it,” says the old northern proverb. The Echevin was a thoroughly Teutonic personage, the Scabinus, or Scepen, of the rural district; and wherever such features are traceable “in-burgh,” I must look upon the original burghers, not as a trading class enfranchised, but rather as a class of free Teutons introduced above the traders for defence—carrying arms for the defence of the country being the mark of freedom—and introducing with them the free allodial customs of the rural districts. The Anglo-Saxon Burgher, and the member of the great Hanseatic Burghs of northern Germany, were thoroughly Teutonic personages, owing little, if anything, directly to Rome and her municipal institutions, in early times, I should imagine.