Under David, where his rule extended, society was divided broadly into three classes—Nobles, Free, Unfree. All holders of “a Knight’s fee,” or part of one, holding by free service, hereditarily, and by charter, constituted the communitas of the realm (we are to hear of the communitas later), and were free, noble, or gentle—men of coat armour. The “ignoble,” “not noble,” men with no charter from the Crown, or Earl, Thane, or Church, were, if lease-holders, though not “noble,” still “free.” Beneath them were the “unfree” nativi, sold or given with the soil.
The old Celtic landholders were not expropriated, as a rule, except where Celtic risings, in Galloway and Moray, were put down, and the lands were left in the King’s hands. Often, when we find territorial surnames of families, “de” “of” this place or that—the lords are really of Celtic blood with Celtic names; disguised under territorial titles; and finally disused. But in Galloway and Ayrshire the ruling Celtic name, Kennedy, remains Celtic, while the true Highlands of the west and northwest retained their native magnates. Thus the Anglicisation, except in very rebellious regions, was gradual. There was much less expropriation of the Celt than disguising of the Celt under new family names and regulation of the Celt under written charters and leases.
CHURCH LANDS.
David I. was, according to James VI., nearly five centuries later, “a sair saint for the Crown.” He gave Crown-lands in the southern lowlands to the religious orders with their priories and abbeys; for example, Holyrood, Melrose, Jedburgh, Kelso, and Dryburgh—centres of learning and art and of skilled agriculture. Probably the best service of the regular clergy to the State was its orderliness and attention to agriculture, for the monasteries did not, as in England, produce many careful chroniclers and historians.
Each abbey had its lands divided into baronies, captained by a lay “Church baron” to lead its levies in war. The civil centre of the barony was the great farm or grange, with its mill, for in the thirteenth century the Lowlands had water-mills which to the west Highlands were scarcely known in 1745, when the Highland husbandmen were still using the primitive hand-quern of two circular stones. Near the mill was a hamlet of some forty cottages; each head of a family had a holding of eight or nine acres and pasturage for two cows, and paid a small money rent and many arduous services to the Abbey.
The tenure of these cottars was, and under lay landlords long remained, extremely precarious; but the tenure of the “bonnet laird” (hosbernus) was hereditary. Below even the free cottars were the unfree serfs or nativi, who were handed over, with the lands they tilled, to the abbeys by benefactors: the Church was forward in emancipating these serfs; nor were lay landlords backward, for the freed man was useful as a spear-man in war.
We have only to look at the many now ruined abbeys of the Border to see the extent of civilisation under David I., and the relatively peaceful condition, then, of that region which later became the cockpit of the English wars, and the home of the raiding clans, Scotts, Elliots, and Armstrongs, Bells, Nixons, Robsons, and Croziers.
THE BURGHS.
David and his son and successor, William the Lion, introduced a stable middle and urban class by fostering, confirming, and regulating the rights, privileges, and duties of the already existing free towns. These became burghs, royal, seignorial, or ecclesiastical. In origin the towns may have been settlements that grew up under the shelter of a military castle. Their fairs, markets, rights of trading, internal organisation, and primitive police, were now, mainly under William the Lion, David’s successor, regulated by charters; the burghers obtained the right to elect their own magistrates, and held their own burgh-courts; all was done after the English model. As the State had its “good men” (probi homines), who formed its recognised “community,” so had the borough. Not by any means all dwellers in a burgh were free burghers; these free burghers had to do service in guarding the royal castle—later this was commuted for a payment in money. Though with power to elect their own chief magistrate, the burghers commonly took as Provost the head of some friendly local noble family, in which the office was apt to become practically hereditary. The noble was the leader and protector of the town. As to police, the burghers, each in his turn, provided men to keep watch and ward from curfew bell to cock-crow. Each ward in the town had its own elected Bailie. Each burgh had exclusive rights of trading in its area, and of taking toll on merchants coming within its Octroi. An association of four burghs, Berwick, Roxburgh, Edinburgh, and Stirling, was the root of the existing “Convention of Burghs.”
JUSTICE.
In early societies, justice is, in many respects, an affair to be settled between the kindreds of the plaintiff, so to speak, and the defendant. A man is wounded, killed, robbed, wronged in any way; his kin retaliate on the offender and his kindred. The blood-feud, the taking of blood for blood, endured for centuries in Scotland after the peace of the whole realm became, under David I., “the King’s peace.” Homicides, for example, were very frequently pardoned by Royal grace, but “the pardon was of no avail unless it had been issued with the full knowledge of the kin of the slaughtered man, who otherwise retained their legal right of vengeance on the homicide.” They might accept pecuniary compensation, the blood-fine, or they might not, as in Homer’s time. {27} At all events, under David, offences became offences against the King, not merely against this or that kindred. David introduced the “Judgment of the Country” or Visnet del Pais for the settlement of pleas. Every free man, in his degree, was “tried by his peers,” but the old ordeal by fire and Trial by Combat or duel were not abolished. Nor did “compurgation” cease wholly till Queen Mary’s reign. A powerful man, when accused, was then attended at his trial by hosts of armed backers. Men so unlike each other as Knox, Bothwell, and Lethington took advantage of this usage. All lords had their own Courts, but murder, rape, arson, and robbery could now only be tried in the royal Courts; these were “The Four Pleas of the Crown.”
THE COURTS.
As there was no fixed capital, the King’s Court, in David’s time, followed the King in his annual circuits through his realm, between Dumfries and Inverness. Later, the regions of Scotia (north of Forth), Lothian, and the lawless realm of Galloway, had their Grand Justiciaries, who held the Four Pleas. The other pleas were heard in “Courts of Royalty” and by earls, bishops, abbots, down to the baron, with his “right of pit and gallows.” At such courts, by a law of 1180, the Sheriff of the shire, or an agent of his, ought to be present; so that royal and central justice was extending itself over the minor local courts. But if the sheriff or his sergeant did not attend when summoned, local justice took its course.
The process initiated by David’s son, William the Lion, was very slowly substituting the royal authority, the royal sheriffs of shires, juries, and witnesses, for the wild justice of revenge; and trial by ordeal, and trial by combat. But hereditary jurisdictions of nobles and gentry were not wholly abolished till after the battle of Culloden! Where Abbots held courts, their procedure, in civil cases, was based on laws sanctioned by popes and general councils. But, alas! the Abbot might give just judgment; to execute it, we know from a curious instance, was not within his power, if the offender laughed at a sentence of excommunication.
David and his successors, till the end of