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Scotland in the Middle Ages
Chapter VI - Vestiges of Ancient Law


Ancient, customary, and common law — Celtic law of succession — Celtic marriages — No general change of law — AEstimatio personarum — Ancient law of compensation — Criminal law — Wager of battle — Compurgators — Trial by battle — Trial by fire and water — Law of ordeal — Proof by witnesses gradually admitted — Penalties of theft — Penalty of slaughter — Four pleas of the Crown — Laws of Galloway — Galloway customs — Law of sanctuary — Church girth — Famous sanctuaries — Stow in Wedale — Lesmahago — Inverlethan — Tyningham.

It requires no evidence to convince us that there existed a system of law in Scotland, before the great revolution in the dynasty and institutions of the country that followed the death of Macbeth. Wherever society exists, life and the person must be protected. Wherever there is property, there must be rules for its preservation and transmission. Accordingly, in the most ancient vestiges of the written law of Scotland, we find references to a still earlier common law, Assiza terras — the law of the land — lex Scotiae — evidently of definite provisions and received authority.

It has been very confidently asserted that in Scotland we have not, and never had any Common Law. To answer that monstrous proposition, I need only call your attention to the law of primogeniture. It is certainly no act of Parliament, or ancient ordinance before Parliamentary times, or adoption from the Roman code, to which we owe this foundation of our heritable rights. What excludes sisters from the succession in heritage, whilst they have it in moveables? What gave representation in land from the earliest times, whilst we have only last year adopted it in personal succession? Certainly no written law that can be pointed out in our statute book.

If the assertion had been that there was nothing or but little of local and peculiar in our common law, it might be assented to with less difficulty. I believe Scotland, at the different eras of her history, used the laws of the people cognate to her then dominant race. Whilst under a Celtic sway, her laws were those which have received a certain shape and definiteness, from their longer use and greater cultivation in Ireland; and her customs (the most important part of law) were those maintained in the wilds of Galloway, as long as the Celtic language prevailed there; and which are only now disappearing among the patriarchal tribes of the Highlands. You will not expect me to prove this proposition, which is in itself so likely that it seems to throw the burden of proof upon the controverter of it. The only facts we have, capable of historical record, to prove the existence of a peculiar Celtic law in Scotland, are connected with the institutions of succession and marriage.

The law of succession was according to the law which is called, in Ireland at least, the law of Tanistry — a system which depended upon a descent from a common ancestor, but which selected the man come to years fit for war and council, instead of the infant son or grandson of the last chief, to manage the affairs of the tribe, and who was recognised as the successor, under the name of Tanist, even during the life of the chief. To take one instance, from the ancient history of Moray, a district which long continued to pay respect to its ancestral Maormors. Maolbride is the first known Maormor; he left a son Malcolm, but the office or dignity did not descend upon him, but went to Finlay the brother of Maolbride. After Finlay's death, Malcolm at length succeeded to his father's place ; he was succeeded in turn by his brother Gil-congain. Gilcongain was succeeded by Macbeth, the son of Finlay; and after Macbeth had lost his local dignity and his crown with his life, he was succeeded in the maormorship by Lulach, the son of Gilcongain; the maormorship thus passing, in as many generations, to the brother, nephew, brother, nephew, and cousin-german.

In the competition for the crown of Scotland [. between Bruce and Balliol, where no art of the most dexterous advocate was omitted, Bruce pleaded that as nearer in degree, he should exclude the representative of the elder line; and to illustrate this, he alleged that anciently, in the succession to the king-dom of Scotland, the brother was wont to be preferred to the son of the deceased king; and he cited a number of instances in which this took place. Balliol, while he denied the inference, did not question the truth of the examples; but he alleged that the son, and not the brother, was the nearest in degree. Lord Hailes remarks upon this argument, — "Here Balliol attempted to answer Bruce's argument without understanding it. Bruce supposed an ancestor to be the common stock, and the degrees to be the persons descending from that stock. Hence the king's brother stood in one degree nearer the common stock than the king's son."

I have said that the law of marriage was viewed as one of the peculiarities of the Celtic race, but there is nothing more likely to mislead us in a subject necessarily of much obscurity than to found upon the loose practice of a half savage people, a theory of a definite system of law. The system of hand-fasting, we may judge from its very name, was not peculiar to the Highlands at the time when we know it in operation, and we have no evidence or approach to proof that it or any other peculiar customs of marriage were recognised in Celtic Scotland after the introduction of Christianity had given one rule of marriage and legitimacy to the whole Christian world (unless we are obliged to except England).

When the Anglicising policy of the descendants of Malcolm Canmore had everywhere throughout Scotland thrust aside the ancient race, the institutions and laws of Saxon England rapidly spread over our country. There are some indications, however, that on the whole these were not much opposed to the old usages of the old people. Let it be remembered that that was a peaceful revolution, at least not effected by open war or conquest. If there had been any fundamental change introduced in the rights or laws of the people, it must have given rise, if not to disputes, at least to a general expression of resentment amongst the parties suffering by the change (for all changes of law produce suffering to some party), but in the recorded transactions and chronicles of that time we do not find a trace of any violent or general alteration of law, except in the matter of succession, which I have already alluded to; a change which ought in fact to be treated as part of the great feudal system then introduced, and spreading rapidly over all Britain.

At the earliest period, then, of which we have • information of an authentic kind, the laws and institutions of Scotland did not differ materially from those of the other northern nations of Europe. Even that vestige of an earlier age which I have' pointed to, the preference of the brother to the son in succession, amongst the patriarchal clans, was, as I have already shown you, of frequent occurrence in Saxon England, and we cannot doubt that it must have taken place amongst all rude peoples, where the law was not yet strong enough to support a young and untried heir.

The system of the estimation or valuation of persons according to their class, and in connection with it, the adoption of pecuniary penalties and compensation for crimes, prevailed with us as with the other northern nations. We find a price or value set upon every one according to his degree, and different amounts of injury taxed with minute and affected precision.
In a fragment which I conceive to be the oldest written portion of the laws of Scotland, and which was known and proscribed as barbarous by Edward I. in 1305, we have some details of this system. The chapter is called "The Laws of the Brets and Scots." Unfortunately, our earliest version of it is in Norman French. The system of compensation prescribed in it, commences at the top of society. The estimation, or appraising as we should say in vulgar parlance, of the king of Scots, was a thousand cows, or three thousand of the coin called ores, each of which was equal to sixteen pennies. The king's son, or an earl, was estimated at seven score cows and ten. An earl's son, or a thane, at a hundred cows. The son of a thane, at sixty-six cows and two-thirds. The nephew of a thane, or an oget-theyrn was estimated at forty-four cows, and 21 2/3d — and, says the law, all lower in the parentage are to be considered as villeins — translated in the Latin version "rustici" and in the Scotch, "carlis;" the estimate of a villein was sixteen cows. The estimate of a married woman is less by a third part than that of her husband. If unmarried, it is equal to that of her brother.

The compensation prescribed for drawing blood is graduated with equal minuteness:— "The blude of the hede of ane erl or of a kingis sone is ix ky. Item the blude of the sone of ane erl or of a thayn is vi ky. Item the blude of the sone of a thayn is iii ky. Item the blude of the nevo of a thayn is twa ky and twapert a kow. Item the blude of a carl, a kow."

I have not troubled you with the ancient Scotch terms applicable to these laws of compensation. Some of them are more or less intelligible to the Celtic scholar; but I cannot venture to speak of etymologies from that language, of which I am entirely ignorant. There is no reason to doubt, from the similarity of the laws, that the terms Cro, galnis, and enach, are nearly equivalent to the Wers, wites, and Bots, of the old English law.

Among laws deriving their remote origin from a society where the lands were not individual property, but held in common, we should seek in vain for any early provisions concerning the inheritance or the transmission of land. Transactions and contracts were also unknown, or so simple that they had not yet required the attention of the lawgiver. Hence the preponderance in those early codes, of laws regarding crimes, over those more subtle distinctions which the complicated relations of commerce demand. Our oldest laws are full of provisions regarding the proof and punishment of theft and murder. The murderer taken red-hand (layun-darg in Gaelic), or the thief caught with the fang or bak-berand or hand-habend, was "justified," we may believe, without any unnecessary and inconvenient delays of process. It was where the matter was not quite so plain; where an accusation was brought and denied, that the peculiarities, as we consider them, of the old law appear. If we may trust to the eras of our published laws, it would seem that in the reign of David I., a man accused of theft might clear himself, either by doing battle, or by the purgation of twelve leal men.

[Gif ony appelis ony man in the Kingis court or in ony othir court of thyft it sall be in the lykyng of hym as beis appelyt, quhether he wil bataile or to tak purgacioun of xii leil men with clengying of a hyrdman.]

You will observe that there is nothing here said of the evidence of witnesses on either side. By our old law, indeed, little use was made of that kind of evidence. If the accused denied, he did not call witnesses cognisant of the facts; but was bound to find compurgators to swear for him, that they believed him guiltless — men of the vicinage, and knowing the character of the parties accusing and accused.

The number of compurgators, which varied from one to thirty, seems to have been determined by the nature of the crime and the characters both of the accuser and the accused. When goods were stolen from the poor and weak, who had no help of man, but were under the king's protection, if one man swore upon the holy altar, as the use was in Scotland, and before worthy witnesses, that he knew the thief, and named him, the individual so accused was bound to restore the goods if he could not establish his innocence.

If it could be proved by two "leil" men that an individual had violated the king's peace in gyrth, he was at once punished according to the nature of his crime.

In William's reign, if a man habit and repute a thief was pursued by the suit of one barony and could find no borch, he was hanged.

Twenty-four leil men were necessary to "clenge a man anent the king," and if he was "appealed" of felony or of life or limb, the compurgators must be found in the sheriffdom where the crime was perpetrated. If a priest was adduced in warrant for theft, and declared that the thing challenged was reared by himself, he was bound to prove that by the oaths of three worthy men approved by the lords of the town. A lord, from whose prison a thief had escaped, was obliged to clear himself of being accessory to the theft's escape by twenty-seven men and three thanes.

In the case of burgesses the law of acquittance was a little different. If a burgess was prosecuted by the provost for breaking of assize, and in complaints between an uplandman and a burgess that might be settled by oath, the law prescribed "clenging by six hand." If a burgess was challenged for theft by an uplandman, or if he was challenged to do battle after the age of fighting, he was to clenge him by the oath of twelve of the neighbourhood. A man accused of theft might choose purgation of twelve leil men with clenging of a hyrdman," or to do battle.

When there was as yet no trust reposed in the evidence of witnesses, if the accused or the defender failed in bringing his sufficient band of compurgators, his last resource was in the "judicium Dei," where the theory of the law trusted to the direct intervention of the Deity to decide the rights of parties. The first and most usual mode of this appeal was the judicial combat, or wager of battle; and solemn laws and rules were made for its mode of procedure; and courts and reverend churchmen and judges and monarchs sat to witness the combat, where the strong man overcame the weak and still forced themselves to believe that God decided the cause.

In the earliest of our laws, restrictions were introduced in the application of trial by battle. Churchmen were specially exempted from it, which had not always been the case; and men above sixty might decline the combat. Burgesses had privileges with regard to it. The burgesses of king's burghs might claim combat against those of burghs dependent on subjects, but could not in their turn be obliged to grant them the combat. Knights and free tenants might do battle by proxy. Those of foul kin were bound to fight in person.

After the judgment was pronounced ordaining  trial by battle, or by the other ordeals of fire or water, it was no longer open to compound the cause for a penalty; and any lord of a court lending himself to such a transaction forfeited his court.

During the judicial combat the strictest silence was preserved. The judges of Galloway enacted, that he who should speak in the place where battle was waged, after silence was proclaimed, should forfeit ten cows to the king; and that if any one should interfere with his hand, even to the extent of making a signal, he should be in the king's "mer-eiament of lyf and lym."

Among the common privileges and prerogatives of jurisdiction granted to the greater monasteries, was a right of trial by fire and water. The earliest charter of the abbey of Scone by Alexander I. (and we have few earlier in Scotland), confers such a jurisdiction, and I believe the place in which the actual ordeal was held, was the little island in Tay, which lies midway between the abbey and the bridge of Perth. We find nowhere the details of the application of the ordeal of hot iron in Scotland. It was considered as somewhat the more honourable of the two; and by the laws of England, parties declining combat by reason of age or maiming, were to purge themselves by hot iron, if free men, and by the ordeal of water, if of servile rank. This last among other barbarities was revived when, to the disgrace of humanity and of an age that called itself c civilized, our courts of justice were occupied with the discovery and punishment of witches. I do not know if the results then are to be taken as any test of the old system of trial and torture. In many instances the poor wretches, persecuted to madness, not only admitted the whole of the charge against them, but went beyond what the imaginations of their accusers could conceive, and disclosed hellish mysteries and impossible horrors as taking place in their own presence or in their own persons.

David I. saw the abuses to which such a system of trial was liable, and, in one instance, he provided that his own judge should always be present in the court of the Abbot of Dunfermline, to see that justice was duly administered. It is extremely probable that he passed a general law to the same effect, though it has not been preserved to us. In 1180 a statute of William the Lion enacted, that "na baron have leyff to hald court of lyf and lym, as of jugement of bataile or of watir, or of het yrn, bot gif the scheriff or his serjand be thereat, to see gif justice be truly kepit thar, as it aw to be."

But all ordeals were falling into disrepute at the earliest time when we can mark our law in operation. A statute of King William enacted, that if one were accused by a certain number of persons of repute, he should underlie the ordeal of water; but if, in addition to those accusers, three witnesses could "be found to speak to the fact, he was not to undergo the ordeal, either of fire or water, "but hastily to be hangit." [Quha sa ever efter lentyrn nixt efter the deliverans of oure Lord the King be chalangit of thyft or that he has gevin thyft-bote and that may be tayntit on hym be the greyff of the towne and thre othir lele men he sale be tane and underly the law of wattir. And gif forsuth anent the samyn thar may be witnessing of thre lele men of eld to-gidder with the forsaid witness thruch na batal sal he pas na to wattir na yet to yrn bot hastily he sal be hangit. Alsua leffull it is to na man to take redemp-cion for thyft efter dome gevyn of wattir or of batal.—Assize R. Willelmi, a.d. 1181.]

In 1230 a statute of Alexander II. was passed which has been twisted ingeniously in some of our old law manuscripts, to import an entire abolition of the ordeals of fire and water. [The King Alysandir has statut that gif ony man chalangis ony othir man of thyft or of reyflake & the defendour wil put him on a gud & leil assise & the assise sal mak him clene quhit sal he be & the followar sal be in the amercyment of the King or of the Erl or of the baron gif it be of thyft. And gif the defendour be foul thar sal be done on hym rychtuis dome. And it is to wyt that fra this tym furth thar sal be no jugement done (on him) thruch dykpot na yrn.—Star tuta R. Alexandri II., a.d. 1230.]

The title given to this law in the Ayr MS. is, "Deletio legis fosse et ferri et institutio visneti," and it supports that title by a curious misreading of the law. The statute of Alexander only gave the accused the choice of putting himself upon an assize, and declared, that one who has already been acquitted by an assize shall not for the same offence be required to undergo the ordeals. When judgment by assize or jury was introduced we cannot tell, nor when the custom of ordeal was abolished. The laws I have quoted to you seem to mark it in a state of transition. In certain civil causes of the greatest importance, the proof, even in the time of David, was by an assize of twelve good men (assisa bonce patrice). That took place in pleadings under brieves of mortancestry and novel diseisin. [It is statut that breiffis of Mortancestre & new dyssesing neirr mair sal be impleydit be challange of the party askand hot allanerly be an assyse of the gud cuntre & nane othir ways, and na challangis lyis thar to for quhi tha xii the quhilkis ar chosyn of the gud men of the cuntre till an assise sal say allanerly thar entent and thar veredyk eftir the poyntis and the artikyllis of bayth the breiffis and eftir that as that assyse pronouncis in veredyk rycht sa that dome sal be geyffin to the partiis.—Assize R. David, 35.] At least as early, the Church courts of Scotland were in the use of taking and recording in writing the evidence of witnesses; and assizes of sworn men were used as the rude machinery for trying other civil causes. It would set at defiance all our notions of the sense of men, and the value of experience, if any country, having in some points admitted proof by witnesses, could long have adhered to a settlement of questions the most important to mankind, by the ordeals of fire or water, or still more to that law which really declared the strong hand to be always in the right.

The penalties of theft were not with us so heavy as in England; but the compounding of theft or protection of a thief were very carefully guarded against. By the ancient law of Berthynsak, summary procedure was established with a thief caught with his burden, such as a sheep or a calf, but you will observe there was there no capital punishment. [Of byrthynsak that is to say of the thyft of a calf or of a ram or how mekil as a man may ber on his bak thar is no court to be haldyn bot he that is lord of the land quhar the theyff is tane on swilk maner sall haf the scheip or the calf to the forfalt. And the theiff aw to be weil dungen or hys er to be schorn. And that to be done thar sal be gotten twa lele men. Na man aw to be hingit for les price than for twa scheip of the quhilkis ilkane is worth xvi d.—Assize R. Willelmi,]

Another statute of undoubted antiquity, although its precise date cannot be fixed, prescribes the gradations of punishment for different degrees of theft. [Giff ony be tane with the laff of a halpenny in brugh he aw throu the toun to be dungyn. And fra a halpenny vorth to iiij. penijs he aw to be mare sairly dungyn. And for a payr of shone of iiij. penijs he aw to be put on the cuk stull and eftir that led to the bed of the toune, & thar he sal forsuer the toune. And fra iiij. penijs til viij. penijs & a ferthing he sal be put upon the cuk stull and eftir that led to the hed of the toune and thar he at tuk hym aw to cut his eyr of. And fra viij. penijs and a ferthing to xvi. penijs and an obolus he sal be set upone the cuk stull and eftir that led to the hed of the toune and ther he at tuk hym aw to cut his othir ear of. And efter that gif he be tane with viij penijs and a ferding he that takis him sal hing him. Item for xxxij penijs. j obolus he that takis a man may hing him. — Fragmenta Collecta 42.]

If a thief took refuge in "Gyrth," or sanctuary, he could lose neither life nor limb, but enjoyed the king's peace. Nevertheless, he was bound to restore as much as he stole; to make amends to the king according to the law, and to swear on the holy relics or the book of the Evangel, "that fra that time furthwartis, never mair he sal do reyflake na thyft."

While, as I mentioned, a value was set upon every man, and by that rule, a fine could be imposed for injury done to his person, and much more for his slaughter, — at the same time, undoubtedly the legal and strict punishment of murder was death. We cannot discover from the imperfect relics of our ancient code of customary law, how this seeming inconsistency was reconciled. It is at least exceedingly probable that it lay with the kindred and friends of the murdered man to abstain from prosecuting to the utmost those accused of his death, where their feelings of indignation and vengeance could be solaced with a pecuniary compensation. The law had not yet pervaded all society; and public justice was scarcely separated in men's minds from private revenge.

It was not the estimation of the person alone that, by those old laws, ruled the amount of the penalty for slaughter. That, indeed, was the assythment paid to the kindred of the slaughtered man, but another penalty was due if the peace of the king or other lord had been violated by the shedding of his blood. The person guilty of the slaughter of a man within a place where the king's peace was proclaimed, forfeited nine score cows. The manslayer within the peace of an earl or king's son, incurred a forfeit of four score and ten cows; and so progressively in the lower degrees of rank.

It was no doubt with a laudable intention that the sovereign, in the profuse distribution of rights of jurisdiction to subjects in Scotland, reserved what were long called the four pleas of the Crown — murder, rape, fire-raising, and robbery. It was intended that at least those great crimes and their punishment should be removed in some degree from private influence. At a later time, and under a different system of penalties, it became a point of economical policy to preserve for the impoverished Crown a jurisdiction which afforded so large an income, by the fines and escheats of the justiciar's court.

There was only one province of the Scotch king's dominions that we find asserting peculiar customary laws. We know little of the early history of the district now called Galloway. It had scarcely come under the confirmed dominion of the kings of Scotland in the reign of Malcolm Canmore. We have seen the rude insubordination of its people, under his son David at the Battle of the Standard. The native lords were still too powerful for the distant authority of the sovereign. William the Lion had a code of laws for its government (assisa mea de Galweia), and judges for administering them. They met at several places, and we have still records of a few of their decisions, some of which are remarkable. [At Dumfries it was iugit be the iugis of Galoway that gif ony Galoway man be convickyt ouder be batal or be ony other way of the kingis pece brokin the king sal haf of hym xij** ky and iii gatharionis or for ilk gatharion ix ky the quhilk ar in numer xxx and vij. Na Galoway man aw to haf visnet but gif he refuse the law of Galoway and ask visnet. Item thar the samyn day be the samyn iuges it was iugit that gif ony in the palice quhar that batal is wagit quhair pece sulde be haldin hapins for to spek outan thaim that ar to keip the palice the king sal haf of hym x ky in forfalt. And gif ony man puttis his hand to or makys a takyn with his hand he sal be in the kingis merciament of lyf and.lym. — Assize R. Willelmi.] Among other places, the judges of Galloway are found at Lanark prescribing rules to the Mairs of the province regarding the mode of collecting the King's kane.

For long after that time, Galloway continued to be governed according to its own peculiar laws. In : the reign of Robert Bruce, its people had not yet acquired, nor perhaps desired, the right of trial by jury, but practised the mode of purgation and acquittance according to their ancient laws — those very laws of the Brets and Scots which Edward in vain endeavoured to abolish. As late as 1385, Archibald Douglas, lord of Galloway, while undertaking in Parliament to further the execution of justice within his territory, protested for the liberty of the law of Galloway in all points.

At a time when the punishment of crime, and the compensation even for accidental damage, depended on the feelings or caprice of individuals, it was the highest humanity to interpose between the wretch fleeing from vengeance and justice, and his pursuer armed with the powers of the law, but stimulated by private motives. And here the Church raised its arm in mercy. It had, indeed, from the earliest time of Christianity, been held sacrilege to violate a church with bloodshed; but it was a subsequent invention to proclaim for it a right of sanctuary ; to declare that persons fleeing to the Church, or to certain boundaries surrounding it, should for a time at least, and under certain conditions, be safe from all persecution. Much doubt has been expressed regarding the constitution and privileges of the church sanctuaries of Scotland. Without going into the very curious Teutonic antiquities of the subject, or speculating upon the times when among our forefathers, as in Judaea of old, places of refuge were anxiously provided " that the slayer may flee thither which killeth any person unawares" — "that the manslayer die not until he stand before the congregation in judgment"—I would observe, that by the canon, and the more ancient ecclesiastical law, all churches were held to afford protection to criminals for a limited period, sufficient to admit of a composition of the offence, or, at any rate, to give time for the first heat of resentment to pass over before the injured party could seek redress. In several English churches there was a stone seat beside the altar, where those fleeing to the peace of the Church were held guarded by all its sanctity. One of these still remains at Beverley, another at Hexham. To violate the protection of the frith-stol— the seat of peace, or of the fertre—the shrine of relics, behind the altar, was not, like other offences, to be compensated by a pecuniary penalty : it was bot-leas, beyond compensation. [There is an English notice of a breach of sanctuary and its punishment by ecclesiastical authority in 1312. The bishop of Durham heard with dismay that certain children of evil had incurred excommunication by withdrawing from the church of the Carmelites of Newcastle, some who had fled thither imploring church protection for the safety of their lives; and afterwards, when the guilty person is discovered, namely, Nicholas le Prorter—he is sentenced to appear bare-headed and bare-foot, wearing only a linen robe, at the door of the church of St. Nicholas of Newcastle, every Sunday for a whole year, and there to be publicly scourged (fustigatus) by the curate, in presence of the assembled congregation, and from thence scourged to the church of the Carmelites, all the way confessing his fault. Moreover, he is to have the same penance at the church of St. Nicholas and the cathedral church of Durham, on three days of Whitsun week.]

That the Church thus protected fugitives among ourselves, we learn from the ancient canons of the Scotican councils; where, among the list of misdeeds against which the Church enjoined excommunication, after the laying of violent hands upon parents and priests, is denounced "the open taking of thieves out of the protection of the Church." But though all were equally sacred by the canon, it would seem that the superior sanctity of some churches, from the relics presented there, or the reverence of their patron saints, afforded a surer asylum, and thus attracted fugitives to their shrines rather than to the altars of common parish churches. We must not be surprised that in rough times even Holy Mother Church was not always able to afford protection to her suppliants against the avenger of red-hand; and it was to strengthen her authority, and to support what in the circumstances of society was a salutary refuge against rash vengeance, that the Sovereign at times granted his sanction to particular ecclesiastical asylums.

The most celebrated, and probably the most ancient of these sanctuaries, was that of the church of Wedale, a parish which is now called by the name of its village, "the Stow." There is a very ancient tradition, that King Arthur brought with him from Jerusalem an image of the Virgin, "fragments of which,"says a writer in the eleventh century, "are still preserved at Wedale in great veneration." About the beginning of his reign, King William issued a precept to the ministers of the church of Wedale, and to the guardians of its "peace," enjoining them " not to detain the men of the Abbot of Kelso who had taken refuge there, nor their goods, inasmuch as the Abbot was willing < to do to them, and for them, all reason and justice."

In the year 1144, David I. granted the Church of Lesmahago as a cell to Kelso, and by the same charter conferred upon it the secular privilege of sanctuary in these terms — "Whoso, for escaping peril of life or limb, flees to the said cell, or comes within the four crosses that stand around it; of reverence to God and St. Machutus, I grant him my firm peace." To incur the censure and vengeance of the Church was sufficiently formidable; but to break "the king's peace" brought with it something of more definite punishment. It was not the mere mysterious divinity that doth hedge a king: "The king's peace" was a privilege which attached to the sovereign's court and castle, but which he could confer on other places and persons, and which at once raised greatly the penalty of misdeeds committed in regard to them. By our most ancient law, the penalty of raising the hand to strike within the king's girth was four cows to the king, and one to him whom the offender would have struck; and, as I have already mentioned, for slaying a man "in the peace of our lord the king," the forfeit was nine score cows to the king, besides the assythment or composition to the kin of him slain "after the assise of the land."

In granting the same privilege to Inverlethan, Malcolm IV. ordains, "that the said church, in which my son's body rested the first night after his decease, shall have a right of sanctuary in all its territory, as fully as Wedale or Tyningham; and that none dare to violate its peace ' and mine,' on pain of forfeiture of life and limb.'' Of the sanctuary of Tyningham, thus mentioned as of almost equal celebrity with Wedale, we have but little further information.

The Scotch law of sanctuary or girth was early ascertained with much precision, and carefully guarded from the danger of encouraging crime by affording an easy immunity to fugitives. In later times, and during a period of intolerable misrule, among other temporary enactments for the suppression of homicide, the Parliament of Scotland enacted that whoever took the protection of the Church for homicide should be required to come out and undergo an assize, that it might be found whether it was committed of "forethought felony," or in "chaudemelle;" in case it should be found of chaudemelle, he was to be restored to the sanctuary, and the sheriff was directed " to give him security to that effect before requiring him to leave it."


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