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Scotland as it was and as it is
Chapter II - The Age of Charters


THERE is no more striking illustration of the perfect continuity between things new and old in the establishment of the Feudal System than is to be found in the earliest extant feudal Charters conferring grants of land. In Scotland they begin with the Eleventh Century. For an excellent reason those who have written about them are obliged to begin with at least one much older document. In the end of the Sixth Century Columba, coming from far Iona, seems to have established a Religious House among the north-eastern Picts in that district of Scotland between the Dee and the Spey which was called Buchan. There for several hundred years the little Abbey of Deer continued to carry on the succession of the Old Columbite Church. Somewhere about the close of the Ninth Century, after the union of the Picts and Scots, one of the Monks of this Abbey employed his time and his skill, as so many of his brethren did all over the Christian world, in making an embellished copy of the Gospels on fair vellum. It seems to have been kept in the Monastery as one of its treasures, because nearly two hundred years later than this Latin writing, another Monk could find no more safe and lasting method of recording the benefactions of their ancient House, and the titles by which they held their lands, than by writing the history of them on the broad margins, and on the vacant half-pages, of this old manuscript of the Gospels. This, accordingly, he did in the Celtic tongue, which appears to have been a spoken language in Buchan down to a much later date. Tradition is perhaps nowhere safer than when it is transmitted through the quiet memories of the Cloister, and when these are not distorted by the atmosphere of religious marvel. On secular affairs such memoranda of the donations and grants of Kings and Chiefs, appear to have been accepted in the earlier Middle Ages as the truest evidence to be had respecting the promises of the dead and the obligations of the living. And so it comes to pass that the Celtic jottings in this old Book of Deir acquaint us with a long succession of grants of land made by Celtic "Mormaers" and "Toisechs" to the Abbey during several Centuries, when written Charters were unknown. It is the old story. Lands expressly including "both mountain and field," were given, in exclusive possession, to the Columbite Brethren, sometimes simply named, sometimes still more simply described by childlike indications such as these—"as far as the Birch tree is between the two Alterins." But one essential feature of the gift or grant always is, that the land is to be free from the old Celtic Feudalism—the "exactions" of Mormaer and of Toiseach.

It is impossible to understand the early Charters —their true place in history, in usage, and in law— without reference to those much earlier transactions which had been going on for more than 500 years. Under these, land had been conveyed by and to the same ranks and conditions of men—from the same motives—in exercise of the same powers—and with the same promises and effects. There was no change whatever, except that earliest step in civilisation which comes with the more familiar knowledge of the art of writing, and which substitutes the sure evidence of documents that can be read, for the memories of intention transmitted only through the ear, and recorded only by the breath. That there was no consciousness of any novelty as regarded the nature of the transaction in the minds of those who gave the first Charters in Scotland, is clear from the very form and nature of the Instruments themselves. For in this lies the full explanation of one great peculiarity about them which has often been observed, but the true significance of which has not been always as clearly seen. This peculiarity, is the extreme shortness and simplicity of the earlier Charters. For brevity and conciseness they have been always the wonder and admiration of modern lawyers. But the cause and the meaning of their shortness and simplicity have too much escaped attention. If they had purported to give or to secure anything which had not been well known before, this striking brevity would have been impossible. If they had conveyed new rights and imposed new duties, it would have been necessary, to describe these, and to explain them. But as they neither did nor professed to do anything of the sort—as they were nothing more than a new Form of acknowledgment and security for ancient rights which had been familiar in the actual transactions of life for centuries before—it was not necessary to explain anything. Dominion over, and exclusive possession of, property in land, with all its incidents, had been vested in Kings and Chiefs, and in others under them, in Scotland, as in all other countries, time out of mind. Hence, the earliest feudal Charters could be, and were, actually confined to a few lines on parchment, expressing nothing but the promise and the faith of those who had the actual power to grant, and the name and designation of those who were in a position to accept, all the well-known powers and obligations of Ownership in land.

A very clear proof of the great antiquity of all these possessory rights and powers comes out in the result of a formal inquiry or "inquest" held in the year 1116 respecting the landed property of the ancient See of Glasgow founded by St. Kentigeru in the Seventh Century. That property, as ascertained upon oath before C good men of the country," who conducted the inquest, must have consisted in grants and donations to the first Bishop and his early followers which were then nearly 500 years old. Yet the evidence was so consecutive and conclusive, that the verdict was accepted by numerous and powerful men who had the strongest personal interest in testing it to the last. Possession followed upon it. And this possession did not consist in mere Tithes or in mere Church-dues, but in broad lands, and numerous Manors scattered all over the south of Scotland.' It was not the nature of the thing done, but only the method of recording it that underwent a change in the dawning light of a rising civilisation. The earliest extant Charter of lands in Scotland is by King Duncan, son of Malcolm Canmore, and of the Saxon Queen Margaret (1094-7). It is a grant to a Religious House, the Monks of St. Cuthbert. It specifies the lands by name, and refers to the "service" due therefrom as the essence 'of their value. The extent and nature of that service is simply described as the service previously possessed by a certain Bishop Fodan. All rents and dues at that time necessarily took principally the form of "service," and it was the right of receiving "service" from any given lands that mainly in that age constituted their value. There was no attempt or need to specify what they were, further than by reference to the continuity of enjoyment from a former Owner. It is this definite reference to well-known pre-existing rights that is one of the most striking features of the early Charters, and it was this alone which made it possible for them to be so concise. But no general description of these early Charters of the Eleventh Century can be so striking as the documents themselves. Here, therefore, I give, in extenso, a literal translation of this oldest of Scottish Charters :-

CHARTER OF KING DUNCAN TO THE MONKS OF ST. CUTHBERT. A.D. 1094.

I Dunecan, Son of King Malcolumb, by hereditary right King of Scotland, have given in alms to Saint Cuthbert and to his servants, Tiningeham, Aldeham, Scuchale, Cnolle Hatheruuich, and of Broccesmuthe, all the service which Fodan the Bishop thence had. And these I give in such quittance, with sac and Soc (Jurisdiction), as ever St. Cuthbert has had best from those from whom he holds his alms. And this I have given for myself, and for the soul of my father, for my brothers and for my wife, and for my children. And because I would that this gift should be firm to Saint Cuthbert, I have made my brothers join in the grant. But whosoever would destroy this, or take from the servants of Saint Cuthbert any thing of it, let him bear the curse of GOD, and of Saint Cuthbert and mine. AMEN.

Then follow the rude crosses which the greatest laymen of that age could alone make to indicate their signature—one cross for the King—nine for as many witnesses, and one for the learned Scribe who wrote the Deed, and who added across the uncultured but sacred symbols such syllables as these--"Crux Duncani."

The same general character belongs to all the Charters given by the Scottish Sovereigns during the Eleventh, Twelfth, and Thirteenth Centuries— that is, from the death of Malcolm Canmore, in 1093, to the death of Alexander III., in 1286. Nor must it be supposed that these things were done in a corner—that they were the individual acts of Kings, executed without warrant from the universal sentiment of the nation. In the reign of Davidi. (1124-1153) Charters of land were expressly given with what may be called in modern language the consent of Parliament or Great Council of the nation. In the old Celtic "Scotland" proper, which lay north of the Forth, they had been given in the true Celtic spirit, with the formal assent and concurrence of the Seven Earls, the Chiefs of the Seven great Provinces of the North. But in King David's time, when the Southern Provinces had been added to the Monarchy, they were given "with confirmation of Bishops, Earls and Barons "—to which is sometimes added "with consent of the clergy and people."' All ranks and orders were not only familiar with the nature of such grants in all parts of the Kingdom, but were familiar with nothing else as the only guarantee of peaceful Ownership. And so, no elaboration was required. The Clergy were the only lawyers and the only conveyancers. They wrote concisely, and to the point. Bits of parchment one inch in breadth, and a very few inches in length, were enough to convey great Earldoms and Baronies in the days of David i. Eleven lines on a small parchment conferred the whole of Annandale upon an ancestor of King Robert the Bruce. This Charter is so typical, and stands so early among those conveying lands—not to Churches but to laymen—that I give it also in full translation

CHARTER OF ANANDALE TO ROBERT DE BRUS, A.D. 1124-1130.

David by the Grace of God, King of Scots, to all his Barons and men and friends, French and English, greeting. Know that I have given and granted to Robert de Brus, Estrahanent, and all the land from the march of Dunegal of Stranit, even to the march of Randulph Meschin. And I will and grant that he hold and have that land and its castle, well and honourably, with all its customs, to wit, with whatever customs Randulph Meschin had in Carduill and in his land of Cumberland, on wtiatever day he had them best and most freely. Witnesses.

It will be observed that in this Charter there is not one word of definition except by explicit reference to previous well-known and established rights. The lands are described by marches which are assumed to admit of no dispute. But all "customs" or services are simply referred to as those which a former Proprietor had enjoyed, at whatever time and under whatever circumstances he had them "best and most freely." No feudal service whatever is provided for in the Charter. Probably this also was left to usage and to the general duties of allegiance.

These earliest, and almost archaic forms of Charter are of the highest interest and importance, because, rude and simple as they are, they contain not only the germs, but the main provisions, and even some of the very words out of which the latest and most elaborate Charters were naturally evolved. First it was their object simply to record; and then, secondly, it became of necessity their object to define. It is impossible to record clearly anything which cannot be defined distinctly. But nothing can be defined distinctly respecting which our own conceptions are vague and hazy, or which is in itself variable—in the sense of depending wholly on arbitrary Will. Hence it was that in the very nature of things Charters tended to the abolition of the old lawless exactions of Celtic Feudalism. They effected this as regards all lands given to the Church by expressly forbidding these exactions altogether. They effected the same object as regards lands granted to laymen by substituting definite and fixed amounts of payment or of service.

But the same necessity for deliberate thought which is one of the great causes, and at the same time one of the great consequences of civilisation, called for another definition in the Charters. What was it that they gave? What, and how much were they intended to secure? When no technical phrases had been yet established, how was property in land to be described? The very simple and childlike expedient of describing the things given as the same with those previously enjoyed by the last Owner, and of adding by way of emphasis that this equality was to be maintained up to the highest level of that enjoyment at its best and fullest—this expedient obviously could not be lasting. It is indeed very curious how long it did survive in various forms of expression, which are easily recognised as relics of the infantile conception which we have seen expressed in the two Charters already given. But the needful definition soon began to grow. It was purely an instinctive and not at all a formal or scientific process. It came in the simple effort to record what was meant by the great Manors and Lordships as well as the smaller estates which had been enjoyed for centuries. Did they mean nothing but the possession of some small area of ground which had been roughly inclosed and brought into cultivation? Did all the rest of the land, which in those early days must have been by far the greater part of the country—wild ground, hogs, woods, natural opens of rough grass, hills, mountains—did all these great areas of country belong to everybody in general and to nobody in particular? Did the fact that these spaces were used—in the only way in which they could be used —as pasture for the cattle and sheep of Bondmen and of followers, and of retainers—of all in fact who lived upon or near the land—did this scattered and indefinite use prevent, preclude or limit the full Ownership of the Chief, or Lord, or Owner? Had any great break or change occurred since the' old centuries when the Celtic Book of Deir had recorded that grants of land included "both Mountain and Field"? Not at all as definite legal problems to be solved, or as questions even consciously propounded, but as a necessity of thought in the mere act of recording that which Charters were intended to convey, these alternative conceptions would be naturally and inevitably encountered.

Accordingly when we look into the Charters the growth of definite ideas, and of definite expressions, is most curious and instructive. In the first extant Charter from King Duncan, as we have seen, there is nothing whatever to express Possession except the words, "have given in alms" the lands whose names follow—with the explanation added," all the service" which a preceding Owner "thence had." The second Charter to Robert de Brus amplifies these expressions a little. Here it is "all the land" within certain known boundaries which is "given and granted," with a further explanation that it is to be "held and had" with its Castle and "all its customs" as held by a predecessor. This is a step in advance, because "all the land" is clearly intended to cover the whole area whether cultivated or waste. But a few years later than King Duncan's Charter, in the reign of King Edgar (1097-1107) we have another Charter even shorter than the first, but in which we see still further progress in explicit definition. It is a grant to the same religious Brotherhood which was specially favoured by the descendants of Queen Margaret, the Monks of St. Cuthbert. Here the words are fuller, although still marvellously concise. The estate is designated by its name, with these words following: "both in lands and in waters, and with all that is adjacent to it—_namely, that land which lies between Horverdene and Cnapdene—to have and to hold freely and quietly, and to be disposed of at the will of the Monks of St. Cuthbert."

The absence of formality—the perfect simplicity with which these expressions are used, indicate clearly that they were nothing more than a mere putting into words of the common understanding of the age, respecting all that was carried in a gift of lands. In this case the waters appertaining to the land are mentioned incidentally as included in the gift. And so in yet another Charter of the same Reign, which is the shortest of all, we have one item specified— which speedily disappeared for ever—namely, the "men" or Bondmen who were resident on the property conveyed.' The words are, "with men, with lands, and waters." And then in another Charter we have light cast—through the same little lattice- windows of expression—on those most interesting of all points connected with the history of the occupation and improvement of land—namely, the condition of the Bondmen, and the conditions under which the reclamation of wilds and wastes was then deliberately undertaken. In this document' the King adds these words:-" I have also given to the Monks twenty-four beasts for reclaiming the same land," and goes on further to explain that by express agreement with the "men" of a certain district he had ordained that they should pay to the Monks half a silver merk yearly for every plough. This is clearly a case of commuted service. If it refers to Bondmen it shows how light that bondage had become when they were consulted and made parties to the arrangement. If they were Freemen it shows the permeating effect of Charters in substituting fixed payments for old but arbitrary exactions.

As we come down in time, during the reign of David I., there is a rapid development of form, and of expression, especially when that Sovereign had to deal with the great Religious Houses of Melros, Kelso, and Holyrood. Probably among the Monks in those parts of the Low Country there were writers of greater skill. There is nothing, however, in those Charters which indicates any novelty whatever in the benefits conferred. On the contrary, there are the same allusions to previous Owners, and to accustomed powers. But there is a steady growth in the direction of greater precision, and of a more complete enumeration of the rights which were universally understood to be involved in Ownership. Some of these depended on local position, such as rights over the wrecks of ships. Fishings assume from the beginning a very definite place, showing how highly they were valued as an appurtenance of certain estates. Moreover, these are often conveyed in limited shares sometimes upon distant streams, and restricted to the sweep of a fixed number of nets. But in these Charters we see the ordinary and standing definition of that which was specially conveyed in grants of land, assuming substantially the form which it retained for centuries. That form arose naturally and necessarily out of the endeavour to enumerate as exhaustively as possible all the kinds and qualities of surface which the land presented almost everywhere in those ages. Thus the Charter of Melros specifies lands to mean "the whole land in wood and plain, in meadows, and in waters, in pastures and moors, in ways and paths, and in all other things."'

It must always be remembered that the way in which land is used, in respect to agriculture, is a totally different matter from the principle on which land is held, in respect to Ownership. The method of use is one thing; the principle or the condition of tenure is quite another thing. It is a great confusion of thought to confound these two together. Traces and records and survivals in abundance, show that great areas of country were once used by many men in common, and from this it is con- eluded that the Ownership could not have belonged to an individual. But this is altogether erroneous. If the Ownership in the fullest sense had not belonged to individuals in those days, the men who enjoyed the common use of it would not have been allowed to enjoy it long. There were plenty others ready to seize it at a moment's notice, if it were not protected by the powerful Chief or Baron who had the interest of exclusive Ownership to assert and to defend. Just as the Crown promised its protection to him as Owner, so he, and he alone, could afford protection to his men as Users. But the promiscuous use of such lands amongst his Tenants and retainers was a necessity arising out of the nature of things. Wild wastes, and woods and moors, could only be used by and for a number of men, although the Ownership lay in one. Such surfaces were then useless except for pasture or the chase, and as they were without fences or divisions of any kind, separate areas could not be kept for the cattle of separate individuals. In this sense, but in this sense only, they were used in common. But they were so used only by individualised groups of men, whether bond or free, whose tenure was dependent on the tenure of the Lord to whom by Charter it had been given, or in whose hands still more ancient rights of Ownership had by Charter been recognised and confirmed. It was always to him that the native population (nativi) whom he found, or the colonists (coloni) whom he brought, or the Free Tenants whom he invited, owed even one moment's security and peace. The enjoyment which, under him, was common to the Few, was an enjoyment absolutely exclusive of the Many. And the Many were always quite near enough to make them a continual presence in the mind. From across some rough hill, or over some dreary moor, or from beyond some firth or bay of the sea, outsiders, representative of the Many, were always ready to rush in upon the Few who were protected in the exclusive enjoyment of good natural meadows, or of sheltered woods with fine pastoral glades, stocked with sheep, and swine, and cattle. Nothing but the quieting effect of acknowledged power and right, founded on the deeds and on the authority of centuries, could then keep the country in peace, or give time and place for the settlements and improvements of civilisation. Hence the recording work of Charters would have been indeed imperfect if it had not carefully included all the lands which, so far as the plough was concerned, were then wastes and wildernesses, within the area of individual Ownership, for responsibility and defence. It is not too much to say, that if the thoughtless sentiment which is now so often cherished in favour of the common use of land, as distinguished from individual Ownership, had been a sentiment capable of existing in the Eleventh and Twelfth Centuries, Scotland, which was largely desert then, would have been nearly as desert at the present day.

Perhaps it may occur to some, as a distinction, that the Charters I have quoted had all of them reference to parts of the country which are now Lowland, and were settled by the Teutonic races. But this is to pre-date a condition of things which had not then arisen. We have already seen how completely the Highlands proper had been penetrated, through and through, by the power and leadership of those races. We have seen, too, how Feudalism in its very roughest and rudest forms had been long established as the very root and essence of the ties which bound together the Celtic Chiefs and Clans. But in addition to all this we have to remember that in the Eleventh and Twelfth Centuries a great part of Scotland, which was gradually becoming predominantly Teutonic, was still at that time full of Celts, and that the early Charters recorded nothing that had not been long habitually known to them. We have seen that the Book of Deir, written in Buchan in the Twelfth Century, recorded the transactions of many centuries in the Celtic tongue. We hear that when Malcolm Canmore visited the plains or low country of Moray he had to translate the speech of the people to his Saxon Queen. Gaelic seems to have been certainly understood in Aberdeen and Banff so late as the beginning of the Twelfth Century. The whole of the south-west of Scotland, from the Clyde to the Solway, the Province of Galloway, was in those centuries mainly Celtic, and the Charters of King David are often specially addressed to "Galwegians," as well as to French (Normans) and Angles. Down even to the close of the Seventeenth or the beginning of the Eighteenth Century we are told on good authority that even in the County of Fife so many of the poorer classes still used only the Gaelic language that it was an impediment in the employment of them south of the Forth. It is clear, therefore, that in no part of Scotland, and to no one of its component races, were the powers and gifts conveyed by Charter anything but a new form of record for old and familiar facts.

On this point, however, we have one confirmatory circumstance which, if any were needed, would alone have the highest value. I have already referred to the fact that for one hundred years before the Anglo-Normans invaded Celtic Ireland, the native Chiefs and Kings had begun to give grants of land conveyed in the definite form of Charter. In the Latin Charter given by the Irish King of Leinster to the Monastery of Duisk we find fairly begun the same method of enumerating the things and powers conveyed in the possession of land which we have seen also beginning in the corresponding Instruments in Scotland. It was a method of enumeration which became amplified from time to time so as to include complete possession of everything upon, the land which had come to be known as of any value in the use or enjoyment of it. This shows that among the native Celts of Ireland there was nothing new or strange in such kind and such measure of possession. The Irish Charter of the (approximate) date of 1160 gives the definition or enumeration in two separate forms. First, the lands are mentioned by name, and then these words are added, "with all their pertinents in waters, in pastures, in woods"—to which, again, are added in another line, referring to another portion, "with all its former pertinents, in rivers and in meadows and in groves." The second of the only two Latin Charters which remain to us from Irish native Kings, and which is from the King of Limerick, of about nine years' later date (1169), shows a further development of the same kind of enumeration,—for it adds to the other words already quoted these further,—"in fishings and in mills."' Both of these are in the highest degree significant of the individual appropriations connected with land, which in actual life and fact had come to be of use and wont among the Celts of Ireland. If vague Tribal rights had survived in anything, we might have expected to find them in respect to fishings and in respect to Mills—both of which were great sources of wealth in those early days, and one of which— Mills— enabled the proprietor to levy heavy dues on all the cereal produce of large districts of country.

Returning to the progress of Charters in Scotland, there is an interesting difference to be observed between two Charters, both given to ancestors of King Robert the Bruce. I have already quoted one of extreme brevity and simplicity of form, given by David r. to Robert de Brus, of certain lands previously held by a certain Randuiph Meschin. But the same Sovereign gave to the same favourite Knight another more important Charter of the whole of Annandale to be held in Forest. This Charter also is so short and simple as to be interesting in the same point of view—as the mere record of transactions which in themselves were evidently so familiar as to need no elaborate explanation. It runs thus

"David King of Scots to all good men of his whole land, French and English and Galwegians, greeting. Know that I have given and granted to Robert de Brus in fee and heritage, to him and his Heir, the Valley of Anan, in forest, on both sides of the river of Anan as the marches are from the forest of Selkirk as far as his land extends towards Stradwith and towards Clyde, freely and quietly as any other forest of his is best and most freely held. Wherefore I forbid that any one hunt in the aforesaid forest unless by his authority on pain of forfeiture of ten pounds, or that any one go through the aforesaid forest unless by a straight road appointed."' (Witnesses.)

But some fifty years later, in the reign of William the Lion (1165-1214), the grandson of this elder Robert de Brus, obtained from that Sovereign a new Charter of Confirmation for the lands of Annandale, and this second Charter shows a very considerable advance in legal elaboration. Still, we see that it is elaboration of form and nothing more. It is a mere fuller explanation of all that had been meant and implied before. The enumeration is more explicit. The lands are granted "in wood and plain, in meadows and pastures, in moors and marshes, in waters, stanks and mills, in forests and trysts (markets), in hills and harbours, in ways and paths, in fishings and in all other its just appurtenances, as freely, quietly, fully, and honorably as ever his father or he himself most freely, quietly, fully, and honorably held that land of King David my grandfather, or of King Malcolm my brother—excepting the royal rights which belong to my Royalty, to wit, Treasure-trove," etc. And all this was to be held for military service, expressly limited to ten knights, and with special abolition of a burden or exaction which had evidently been customary before—namely, that of" warding" the Royal Castles in the district.

In this Charter we have very nearly in full development all the essential features of grants of land throughout the Middle Ages. They were not all identical in their terms, because the scope and intention of such Instruments were not always the same. But the variations were just of the kind to show that in every case the forms of expression were not merely conventional, but were measured by the different meanings of the Donor in each case. Thus there were Charters which conveyed rights of grazing only, and not of the soil in Ownership. Again, there were grants of grazing without the grants of game, and vice versa, there were grants of game and forest with express reservation of the rights of grazing, which are given separately and to different men. Some of these old records afford us curious glimpses of the condition of the country and of the habits and manners of the time. Thus the Avenels, Lords of Eskdale, had a quarrel with the Monks of Meiros, arising out of the fact that to the Monks they had given by Charter rights of occupation for agriculture and for grazing in a forest over which the Avenels had kept only the exclusive privilege of the chase. The quarrel is composed by a fresh agreement before King Alexander ii. (12141249), whose edict or award goes into great detail— forbids the Avenels to keep any domestic animals on the lands, or in the pursuit of game to break down fences or injure standing corn or cattle. On the other hand the Monks are to leave all Hart and Roe, Wild Boar, etc., and other game to the Superior, whilst a curious clause reveals the value then attached to the sources whence Hawks could be got for the favourite pastime of hawking.The Monks were not to cut down any tree on which Hawks had nests, nor were they to cut any such tree until the intention of the Hawks had been clearly ascertained, that they would not return in the year following. This clause included not only Falcons, but Sparrow-hawks.

This document is of some interest in several ways. More than one of our historians have observed that we hear no complaint in Scotland of any special Forest laws, such as constituted so great a grievance in England during the early Norman Kings. And this is true. There were no such savage penalties attached to the killing of Deer—nor is there any notice of districts of country once settled and then cleared for the purposes of Forest. In this document we see that without any special legislation, but only as a natural and usual incident of property in districts which were naturally covered with woods and real forests, the chase was valued as a pursuit, and game as a means of sustenance, and that special bargains were made in regard to it. On the other hand, we see that it was considered reasonable that mere leases or grants of game should not interfere with the increase of tillage or the necessary enclosure of land for cultivation. This is made still more strikingly apparent by a Charter given to the Abbey of Melros by Walter the Steward of Scotland in the Reign of Alexander ii., in respect to their powers of pasturage and of improvement in the Forest of Ayr. In this document it is especially explained and declared that the Forest rights retained by the Superior were not to limit or restrict the Abbey in respect to the number of cattle they might find it possible to support upon the land, nor in respect to the arable cultivation of any part of them.

But the greatest interest of all attaching to these documents is the evidence they afford of the tendency of all Charters and of all written agreements in that age to make the rights of parties clear, fixed, and definite. It is impossible to exaggerate the importance of this element at that time—all the more because the forms in which it appears are not mere technical forms or the work of skilled lawyers. They are of extreme simplicity, but at the same time of extreme directness. The detail about the Hawks' nests may seem childish to us now. But nothing could better illustrate the spirit in which the respective parties were to act towards each other in the exercise of rights which might conflict. And be it observed, all this was the mere interpretation of a contract which the Avenels had voluntarily entered into by a Charter with the Abbey, so that the edict of the King was not in the nature of a law, but in the nature of a judgment or decision. But it was a decision governed by the great principle which is at the root of all civilised jurisprudence that men must be kept to the fulfilment of their engagements, and that in the interpretation of these, both rights and obligations must be at once strictly, and at the same time equitably, construed.

This was a great period in the history of Scotland —the whole of this Thirteenth Century to the death of Alexander III., the last of the direct descendants -of Malcolm Canmore and Queen Margaret—the last of our Kings who represented the old Celtic Monarchy in the male line. It was a manly, and a simple time—how manly, was soon to be evinced in the great struggle with the two Edwards of England—how simple, is evinced by all of the few documents of the time which have survived, and by the incidental circumstances which so often come out in them. And in nothing was it nobler, or more fruitful in good to come, than in this instinctive desire to record, and to fix, and to place under the highest sanctions, human and divine, all the old notions of right and wrong—all the old traditions of inherited authority and of recognised possession, which had been growing up for centuries, which had become the basis of society, and which needed only to be consciously recognised, and duly embodied in Instruments of legal force. It seems strange and almost incongruous to us, but it did not seem at all incongruous to those old Kings, that they should take a personal part in the minutest detail of this great process of record and of organisation. In their own persons—on foot or on horseback—it was common for them to fix the boundaries of the lands they gave to the Church, by going round the marches, and once across the area thus defined. It takes us back pleasantly to those early days when we read King David saying to the Monks of Melros that he assures to them certain lands "as I myself, and Henry my son, and the Abbot Richard of the same church, have gone through, and gone round them, on Friday the morrow of the ascension of our Lord, the second year, to wit, after that Stephen King of England was taken,"' And this personal perambulation of the marches is in several cases recorded in the Charters. Causes were heard by the King in person; and in the dispute so equitably settled between the Lords of Eskdale and the Monks of that famous Abbey, which was so dear to, and so favoured by the Kings of that dynasty, we can well imagine the mixture of grave and gay—the sense of equity and the sense of fun—with which Alexander ii. must have directed the compromise about the manifest intentions of Falcons and of Sparrow- hawks, in leaving or in keeping to their old nesting trees.

It was in the midst of this rapid process of record, and of consolidation, and of progress, that Scotland suffered the most terrible calamities that can befall a nation—the extinction of an honoured Dynasty,—a disputed succession,—desolating invasions from a foreign army,—and lastly, a long and desperate struggle for national independence. Counting from the death of Alexander iii. to the Battle of Bannockburn, this unsettled and bloody time lasted for twenty-eight years, and if we count to the final Treaty acknowledging the Independence of Scotland, it lasted forty-two years—from 1286 to 1328. As a matter of course there were immense changes made in the holders of landed property in consequence of the contest. Barons, and Knights, and Chiefs who in the dif- ferent divisions, and among the still differing races of the Monarchy, had been loyal to the cause of national unity and independence—these had to be rewarded. Those, on the other hand, who were disloyal to that cause, had to take the consequences of their defeat. It is not too much to say that a very large part of the land of Scotland changed hands, whilst another large part remained indeed in the same families in which it had been for centuries, but was entered for the first time in the great Charter Roll, which recorded under a new and a glorious sanction the ancient inheritances which had been won by services too old and too continuous to be recorded, but which perhaps had been not less important to an earlier condition of society.

This comes out very clearly in the earliest extant Charters connected with my own family. King Robert the Bruce was not likely to forget the loyal Knight of Lochow who had been his close companion throughout his memorable adventures between 1306 when he assumed the Crown, and the great battle in which he vindicated that assumption before the world. The King had good reason to remember Lochow. It was in the precipitous pass at the foot of Ben Cruachan, where that fine mountain falls into the gorge through which the Lake finds its outlet to the Sea, that he had one of the fiercest and most dangerous contests of the war. The Island and Western Clans under the Celtic Chiefs, descended from Somerled, had with their characteristic traditions from the Sea, occupied the Lake' with galleys, and the steep slopes of Cruachan with men. Nothing but personal- strength and courage, seconded by the only strategy which such ground admitted of, brought the little band of Bruce victoriously through that encounter; and so desperate was it at one moment, that the King was as nearly as possible overpowered,—his plaid was torn from his person—the brooch by which it was fastened was carried off, and remains to this day in the possession of the gallant Chief of the Clan Macdougall in the Castle of Dunolly. It was not, however, till after the death of his brave companion in arms, Sir Niel Campbell, who did not long survive the Battle of Bannockburn, dying in 1315, that the family seems to have cared to have that new form of title which consisted in a bit of parchment. The King had given to Sir Niel his own sister, Lady Mary, in marriage, and although the young Knight who succeeded to the Barony of Lochow was not his own nephew, he was the eldest son of his old friend, and the stepson of his sister. Probably it was a pleasure to the King, almost as much as a favour to this brave and impetuous youth, to give a writing under his own hand, "confirming" those ancient possessions in the West which had been so long held, and so bravely risked in his cause. In this case the words must have been more than form which were addressed by "Robert, by the grace of God, King of the Scots, to all good men of his whole land, greeting; "on behalf of his beloved and faithful Cohn, son of Niel Cambel, Knight"—confirming to him "the whole land of Lochow, in one free Barony, by all its righteous metes and marches, in wood and plain, meadows and pastures, muirs and marshes, petaries, ways, paths, and waters, stanks, fish-ponds, and mills, and with the patronage of the churches, in buntings and hawkings, and in all its other liberties, privileges, and just pertinents, as well named, as not named."

But beyond necessary inference, the simple brevity of these old Charters leaves much to be understood, and it is sometimes only by pure accident and by incidental allusions in later Instruments that we find out how purely they were very often Instruments of mere record and recognition in respect to facts, to rights, and to powers which were then of very ancient standing. This comes out very strikingly in a later Charter granted by David ii., son and successor of Robert the Bruce, to another member of the Cambel family in 1368. In this document we have an express reference to rights which had been acquired by the Celtic Chiefs, under their own system, and by their own pre-eminence among their own people: for this Charter confirms and secures to Gillespie (Archibald) Cambel "all the liberties and customs" which had belonged to a progenitor, who is designated by his Celtic patronymic of Duncan Mac Duine. Now this Duncan appears to have flourished about 150 years earlier, in the reign of Alexander ii., and he is expressly referred to as having been then already in possession of all the "liberties and customs" of the Barony of Lochow, as well as of others not specified. But this is not all— it is not even the most significant part of the reference. For in the use, in a formal Charter, of the name "Mac Duine," we have clear historic evidence of the truth of much older traditions. We are carried back to times when this patronymic of Mac Duine must have arisen among the Dairiadic Celts (who were a conquering and colonising colony from the "Scots" of Ireland) in the period between the Fifth and the Seventh Centuries.

From the War of Independence and the death of King Robert the Bruce, in 1329, we are in the full light of history, and are in possession of an uninterrupted series of Charters for the space of 500 years down to our own time. There is a perfect continuity of character, and a complete universality of application to every part and Province of the Kingdom. There was no distinction whatever between the Lowlands and the Highlands. The only Celtic race which in the Fourteenth Century was still noticed as representing a separate portion of the Kingdom, was the Gaiwegians—the people of the south-western country of Galloway. The Gaelic population of the Highlands were not only included in the "Scots," but were the first owners of the name. The earliest and the most despotic of all the forms of native Feudalism had been developed and had long been firmly established among them. Even the more civilised form of written Charters had been adopted by the more civilised Lords of the Isles, and the Mackenzies, Macleans, and Mackintoshes had accepted and submitted to the new order of things which confirmed, but at the same time regulated their powers.' Accordingly there is not the smallest difference between the Charters granted in different parts of the Kingdom from the Tweed to the Thurso, and from the mountains of Applecross to the headlands of Buchan. And no wonder—for everywhere almost the Celts had been the original population, and the very names of the lands disposed of were often as purely Celtic in the Lowlands as they could be in any part of the Highlands. Many of these have long ago entirely disappeared, and it is not without surprise that in many of the earliest Charters of lands in districts which have long been purely Teutonic, we meet with crowds of names as purely Gaelic as the existing names in the centre of the counties of Argyll and Inverness.

We see the same absolute unconsciousness on the part of the Sovereigns that they were doing or giving anything that was new when they gave grants of land anywhere—in any and in every portion of their Kingdom. The whole Valley of Douglas, sixteen miles in length from Tinto to Cairntable, was conveyed to the good and brave Sir James Douglas by Robert the Bruce in a Charter in the briefest form. The wild coasts and mountains of Gareloch on the mainland opposite to Skye had been already disposed of in precisely a similar form by Bruce's predecessor, Alexander iii., in 1272, to a Celtic Chief, who, again, had previously held under Charter from the Celtic Earl of Ross. And when, • little later, Charters became more extended in form, and purported to specify a little more expressly that which they conveyed, it almost seems as if all the resources of language were exhausted to enumerate and include complete rights of possession and disposal, of every kind and degree, over every kind and description of land embraced within the ancient and well-known boundaries of the Lordship or of the estate. This came as a matter of course everywhere, but perhaps in the very nature of things it would have been less possible even to conceive of any exception as regards what is called CC land in the Highlands than in the Lowlands. Nowhere, indeed, in these Islands, have there ever been lands in the state of "Prairie"—that is to say, great areas of virgin soil, unencumbered with wood, and ready for the plough, without any process of reclamation. Everywhere in Scotland the largest part of the country was covered with natural forests, and with dense scrubby woods, which are even more difficult to clear and to eradicate; whilst elsewhere little but moors and bogs varied the surface under conditions even more intractable for agricultural operations. But in the Highlands, if Charters had given nothing under the full rights of individual Ownership, except the cultivated or even the cultivable land, there would have been nothing given at all. That which in England would have gone under the name of waste was practically the whole surface of the country. Accordingly, in no Instrument of the Middle Ages is there the smallest consciousness even shown that such distinctions could be drawn, or that such a question could emerge.

On the other hand there arose, as I have already shown, an instinctive desire to record and to specify, and to define, all that by immemorial usage, and the habits and conditions of life in that age, had been held, used, and enjoyed, as of the essence of the Ownership of land. "With all its just pertinents" are the simple words usually added in the earliest Charters to the name of the property conveyed. And when these "just pertinents" came to be set forth at length, and separately named, they are always so named, not as novelties, but expressly as the items of ancient usage. The most elaborate enumeration I have observed is one contained in a Charter of Confirmation granted by King Robert the Bruce to Malcolm Earl of Lennox, and dated July 141 1321.1 But this Malcolm was the fourth Earl who had been then in possession of that great Earldom, the larger part of which was at that time purely Celtic, and the Charter, as usual, refers to it and to its "just pertinents," as enjoyed from a former age. Theenumeration is only remarkable as containing such curious expressions as "infangandthefe and outfangandthefe," and as including such details as the "Eyries of Birds," along with the more substantial advantages then arising from the escheats and fines attaching to feudal dues and to the Baronial Courts in the exercise of criminal jurisdiction. To the subject of the Courts of Heritable Jurisdiction I shall return in a later Chapter, only observing here that in this as in other things the early Charters were only granting under definite and legal sanction the irregular but very ancient powers of jurisdiction which were inseparable from the immense and supreme authority exercised by early Chiefs and Leaders among all the Aryan races.

There is, indeed, one remarkable addition to the list of enumerated items, which appears to have been first inserted in the later years of King Robert the Bruce. That addition consists in such words as these (for there is some variation), with its tenants and tenandries, and service of free tenants," to which again are added, in some cases, such further words as these, "with all the native men of the same," that is, the Bondmen. Before the close of the century in which King Robert the Bruce died, about 1390, this last item dropped out of the account. The Bondmen had either disappeared, or had become so unimportant as not to be worth separate mention. On the other hand, "tenandries, tenants, and services of free tenants," survived through centuries, becoming the regular conventional phrase under which all the holdings, farms, and revenues of an estate were included, whether these revenues were derived from sub-feus, or from leases, or from yearly holdings, or from other forms of tenure which are now lost or are indistinguishable.

But through all mere developments of wording, and redundancies of expression, that which is of most interest in all those Charters is the undying witness which they bear to the one original idea of abolishing all the old indefinite and arbitrary exactions of Celtic Feudalism, as it had become established everywhere before the days of written documents. Certain definite amounts of military service were commonly provided for in the earlier centuries; but this provision is always followed by words declaring it to be in full satisfaction and substitution "for every other service or custom or exaction." Among the instruments published in The Book of Grant there is one highly illustrative of the fear which had arisen of demands or dues of this nature which were indefinite. A certain Knight, Sir Gilbert of Glenkerny, who held his lands by Charter from the Earldom of Strathearn, had been induced by friendship or political sympathy to serve personally, and with his following in the wars of the disputed succession, under Malise, who then held that Earldom. But this service had not been due under his Charter. In June 1306, therefore, fearing that his actual service might be construed as having been feudal service, he procured from the Earl Malise a Deed of acknowledgment as to the true nature of the assistance he had rendered. In this new Charter Earl Malise formally declares that neither he nor any of his heirs should ever claim or pretend that such service should be pleaded as consuetudinary, or should be quoted as affecting in any way the original conditions of Sir Gilbert's tenure.

But as the great Earldoms and Baronies of the Thirteenth and Fourteenth Centuries became broken up into smaller Estates, the practice became general to commute all military services into fixed amounts of money. It was an inevitable result of advancing civilisation and of settled government that the importance of many civil obligations became much more prominent than those connected with perpetual fighting. Society ceased to think continually of bows and arrows and of coats of mail. It wished to enjoy life, and not merely, to defend or to secure it. In connection with this change a new form of expression and new conditions of tenure came into use. Lands held under Charter for a fixed annual sum of Feu-duty were said to be given and held "in Feu-farm"-----that is to say, the tenure was that of Feu, or Fee, but subject to an annual payment, which came under the old designation of "Ferm"—or Rent, from the Latin "Firma."' In a very large number of cases, soon becoming the great majority, the annual payment being measured in a fixed amount of produce, either became purely nominal, or at least was very small; whilst still later the fashion set in of making the grants virtually free—with nothing left of the ancient Servitudes except some Token, often highly poetic and even sentimental. It was frequently specified that these Tokens were to be offered at and on the altar of some Church dedicated to a Patron Saint, or on some one or other of the great festivals of the Catholic Church. The nature of these Tokens is sometimes very whimsical—such as a few pounds of wax, or a little cumin. Sometimes they are purely emblematic—as in the case of an Arrow. Sometimes they breathe that common love of Nature which ever increases with the advance of civilisation. The presentation of a red rose is a common Token; whilst in one Charter we have the beautiful expression of a tender reverence in the reservation of a chaplet of roses, not red, but white, which was to be presented to the Superior every year on the Feast of St. John the Baptist.

It may perhaps surprise some persons to be told that in Scotland at least we are still in "The Age of Charters." Not only are almost all Estates held on tenures dating back to Charters of the oldest form, but new Charters are being granted every day which, both in form and in substance, are the lineal descendants and the living representatives of the Instruments which were executed eight hundred years ago. They constitute the favourite tenure of all land acquired for the purposes of building and of residence. Most of the Towns in Scotland, and almost all the rich and comfortable villas which spangle the shores and estuaries of our great rivers, are built upon the tenure conveyed in Feu-Charters. In these Instruments the continuity of phrases from the earliest times is remarkable. The ceremonies once necessary for the giving of Possession—the symbolical acts such as handing over actual bits and portions of the soil—all these have been abolished—although some of them survived until a few years ago. But the fundamental principles, and some of the dominant expressions, are the same. The Proprietor hands over to the new Owner—the Vassal in ancient and still legal language,—the Feuar in modern parlance—the designated area of land "in feu-farm, fee, and heritage for ever," for payment of the Feu-duty, and for performance of the other stipulations which follow. Next, the Proprietor binds himself to free and relieve his new Feuar of all feudal dues and casualties which may be payable to the Over-Lord, or the Superior from whom the ultimate Title may have come—and this "for all time coming." Lastly—and this is very curious—the Proprietor, who now becomes only the Superior of the Feuar, binds himself to accept one fixed payment at some certain definite interval of years, in lieu of all the old customary feudal fines and "casualties." This fixed payment generally consists in a double Feu-duty for one year, at intervals of from nineteen to twenty-five years. The doctrine of the law is that every Feu so granted constitutes full and free Ownership, and that all restrictions and restraints upon it must be very clearly and distinctly provided for in the written words of the Charter. Moreover, there is a presumption against even express restrictions where these have not been continuously and. consistently enforced. Some decisions adverse to the enforcement of certain restrictions on Feuars in particular cases, have been hailed by ignorant writers as happy limitations upon over-strained rights of Property. But those decisions have all been, on the contrary, founded on the very opposite doctrine of the rights of Ownership construed in the very highest sense. It is the Feuar who has now become the possessor and representative of these rights: and the doctrine of the Courts is that no restraint upon them can be allowed which does not rest on the clearest evidence of deliberate contract, and of acknowledged obligation. In this as in other matters the spirit of Judicial interpretation in enforcing the strictest rights of property, has laid the best and the only secure foundation of popular rights. The number of Feuars has increased enormously. Popular sympathies are with them, and the Courts of Law, when insisting on the completeness of their Ownership, subject only to stipulations the most definite and express, have been insisting on the same principle of unrestricted and undivided Ownership which also ruled the case of the largest Baronies and Earldoms. Thus the most ancient presumptions of law which have affected great Estates for many centuries have equally in our own days established the most popular of all the tenures of land in Scotland. Not only are feus taken more and more largely by all ranks and classes, but the Feu-duties which they pay for the "Fee-farm" are among the most favourite investments for various Charitable and Public Funds. Thus the fundamental principles of the first written Feudal Charters have not only lain at the root of the civilisation of Scotland for 800 years, but have lent themselves without one break in a perfect continuity to the latest developments of modern life.

It is not unimportant to remember that the early age of Charters for the tenure of land was also the early age of Charters for the tenure of Municipal Privilege. Moreover there is the same clear evidence in this case as in the other, that the first grants of Municipal Privilege were acts of confirmation and of record rather than acts of original institution. There are references to Burghal communities of a much earlier date, and it has even been contended that in the southern parts of the Kingdom some of them had survived from Roman times. It is at least certain that through the same invaluable channel of the Latin Church the memory and the tradition of them had never been extinguished. When, therefore, the Kings of the Canmore dynasty gave Charters to some Burghs in the most Anglo-Saxon parts of Scotland, there are the same express references to older times which in the case of land Charters refer us back to liberties and possessions which had been of old. There are indeed some instances in which new Towns or favourite villages were for the first time erected into Royal Burghs; but the 'date of existing Charters is no indication in itself of such an origin. Thus in the case of Dundee, one of the most important of the old Scotch Burghs, the Charter granted by Robert the Bruce in 1327 was the result of a special inquiry' which had been instituted by that Sovereign in 1325, into the rights and liberties of the Burgh in the times of his predecessors on the throne of Scotland, and these rights and liberties having been ascertained, were confirmed, and were definitely recorded in the new form of Instrument which had risen into the highest rank of legal value.

There is, indeed, connected with this subject, one very curious indication of the tendency of that age towards the making of clear definitions in respect to rights which had previously rested on usage only. This indication is afforded in one of the earliest examples which have come down to us of legislation in Scotland. It is a short Act passed in the reign of William the Lion, in favour of what was then called the "freedom" or the "liberty" of Burghs. Popular "freedom" did not then consist in what we understand by the word now. On the contrary, a "liberty" then meant always, as applied to Burghs, some exclusive privilege in the form of a trade- monopoly. It cannot be too often repeated that the system which we now call Protection was the system on which all our great trading communities were founded, and in which they were brought up and nursed. It was not the class 'of landowners, but the class of traders and mechanics, who invented the close restrictions upon the freedom of industry which were for centuries considered the very foundation of all possible prosperity in Burghs. It would, indeed, be more accurate to say that they were not invented by any one, or by any section of the community, for they were, like all the other laws of a rising people, in harmony with the general sentiments and instincts of the time. One of the earliest of those restrictions was upon free trade in wool and in skins. Even in those early centuries the trade in wool had become the most valuable of all domestic industries; and consequently one of the earliest "liberties" accorded to the Burgesses of chartered Towns was the right of prohibiting all men but themselves from engaging in this trade within their own boundaries. And this did not mean the boundaries of their own Town. It meant the boundaries of some large territory lying round about, which for this purpose was annexed to the Burgh as the area over which the monopoly was to prevail. It is in connection with this idea of popular "freedoms" and rights that we have William the Lion enacting in his Parliament or Great Council of the nation, about the year 1214, that all the landowners, great and small, clerical or lay, within those Burghal areas of monopoly should be absolutely subject to it, to such an extent that they were not to be free to dispose otherwise of the most valuable produce of their own estates. Nothing could be more precise than this record and definition of what usage appears to have established in connection with these Burghal "freedoms." "No Prelate nor Churchman, Earl, Baron, or secular person, shall presume to buy Wool, Skins, Hides, or such like merchandise, but that they shall sell the same to merchants of Burghs within whose shiredom and liberty the owner and seller of such merchandise does dwell."' In the case of the Burgh of Dundee this privilege was found by the "trusty and faithful men," to whom the inquiry was committed by King Robert I., to have extended over the whole "Sheriffdom of Forfar," and in the new Charter accordingly the same wide boundaries of monopoly are expressly confirmed.'

In these strange and almost grotesque provisions of the earliest extant laws and Charters of the Scottish Monarchy, in favour of Trade monopolies in the hands of Burghs, we have a very clear refutation of that most vulgar of all historical errors which attributes the doctrines then legally established to the exclusive and selfish interests of one particular class, and that class the Owners of land. We have, indeed, very little knowledge in detail as to how the Great Councils of the nation were then summoned, or how they were composed in the reign of William the Lion. In all probability there was but little formality either as to the one or as to the other. There is not even uniformity in the few words of preamble with which those short and simple laws were passed. They are enacted sometimes with consent "of Bishops, Abbots, Earls, Barons, and Thanes, and all the community of the Kynryk" (kingdom); sometimes, more shortly, "by counsel of his Kynryk" only—sometimes "by counsel of the community." But that which we really do know does not depend on these archaic prefatory forms. It depends on the persistent memory of the Scottish people that this was the happiest the formative time—in their national history—the time to which later documents all referred as the highest fountain of authority and of legal tradition the time when all the races and all the classes of the growing nation were being moulded into one government and one people.

The very absence of detailed information as to the manner in which these old laws were enacted, speaks volumes as to their real nature and origin. They were the mere outward expression of ideas and opinions which had long been universally accepted. And crude and rude as we may now think the provisions for Protection and monopoly in matters of Trade, it is probable that they did really promote and foster the beginnings of commerce, and did certainly determine the seat of them in particular localities. That they did this at the immediate cost of some loss to the owners and farmers of land is certain. This is proved, and it is all that can be proved, by the doctrines of Free Trade. Nor is it probable that this cost was wholly unknown to those classes at the time. The prohibition of direct sale to foreign merchants indicates clearly enough that if they had not been prohibited, such foreign merchants would have visited the country, and would have given higher prices than the merchants of Berwick or Dundee. But the general sense of all classes seems to have been instinctively in favour of Protection—on the simple ground that it was assumed to be a national object to establish and to encourage, even at some cost, native merchants, and native mercantile communities. Probably this assumption was made without argument or conscious reasoning of any kind, and almost certainly without any attempt to calculate what the extra cost might be to the other classes of society. It is certain, however, that the spirit of monopoly thus planted in the Burghs was continued and developed in these communities until it almost stifled the commerce which it aimed at protecting. The Trade-Guilds became most tyrannically exclusive, and it was not until almost our own time that the evils attending them became obvious to all.

It was most fortunate, and in some respects most singular, that no similar spirit, and no similar legislation, arose in our early history in respect to dealings in land. The blunder is very gross indeed which confounds property in anything with monopoly in dealing or exchange. They are not only different, but they are the antithesis of each other. Monopoly consists in the exclusion or limitation of Free Exchange. But Free Exchange depends absolutely on Free Possession. Men cannot exchange with each other freely anything which they do not possess fully. They cannot give to another that which they do not hold themselves. Therefore, that recording and defining process, in respect to the fulness of Ownership, which we have seen to be the basis of all written Charters, was the essential preliminary and condition of Free Exchange in respect to land. In acknowledging, and in giving a legal form to rights of possession which had been long acquired, our early laws made those rights easily transferable from one man to another. And on such transfers there was no restriction. The idea of Entails was of much later date. In the early centuries of the Scottish Monarchy the right of alienation was recognised as co-extensive with the right of possession. Moreover, this universal right of alienation corresponded with an equally universal right of acquisition. It was a right which had no limits as regarded any particular classes of men, whether distinguished from others by birth, or (as in the case of traders) by pursuits and avocations. All men who owned land could dispose of it, not to particular classes only, but to all other men who could buy it. In this respect the Feudalism of our Island avoided that element of monopoly which was developed in the Teutonic Feudalism of Germany. In Prussia, for example, particular areas of land could only be bought and sold among certain restricted breeds of men. One set of acres belonged to and could only be held by the Peasant class—another set of acres belonged to, and could only be held by the class of Nobles. Free exchange in Land was rendered impossible by these barriers of monopoly, properly so called. Some years ago ignorant men were calling in this country for some imitation of the land reforms of the great Prussian ministers Stein and Hardenberg. They did not know that one main object of those reforms was to establish in Prussia that very system of full property,

of undivided Ownership,—and therefore of free exchangeability, which had been established here for centuries, and was indeed of immemorial antiquity. The German statesmen were driven by the utter ruin which restrictions on the full and free Ownership of land were bringing on the country, to aim at and ultimately to effect the complete abolition of all such restrictions. But they were brought to see this not without a struggle. They clung for a time to the artificial Protection of Peasants' land —for the sake of keeping up the military population. But once they had entered on the path of enfranchisement they found that they could not halt short of the only conclusion to which it logically and practically led. The bondage of men to the soil had to be abandoned, and the correlative bondage of the soil to one class of men, had to be abandoned also. Two other correlatives had to be substituted for these: one was—fall and unrestricted Ownership; the other was the free transfer or saleability of that Ownership to men of all classes and degrees. All this had been effected in Scotland more than 500 years before. Bondage to the soil had been killed out with Serfdom. Ownership had been redeemed from arbitrary exactions—had been made as full and definite, and undivided, as words could make it. It had been conveyed in forms which lent themselves to easy transfer, and to the security of a multitude of subordinate transactions. This was the recording work—in so far as they did any work at all —of the early Charters. Those who held them immediately began to alienate, to sell, to sub-feu, to lease, and. in many complicated forms to dispose of, to other men, that Ownership which is the essential basis of Free Exchange of every kind and of every name.

There never was in Scotland any restriction either as regarded the classes of men to whom Charters were given, or as regards the classes to whom derivative tenures could be sold or granted. To the Burghs themselves valuable lands were sometimes granted by these Charters as well as various dues and lordships over landed property. These constitute to this day, portions of the "Common Good" of various Burghs, and such estates have been managed by the respective Corporations on precisely the same principles on which land has been managed by other Owners.

We must look back then on the Age of the first Charters as having laid the foundations of national progress on the firm ground of ancient rights and obligations so clearly and accurately defined as thereby to be made the subjects of Free Exchange. The exceptional privileges given to popular Bodies, constituting in their hands exclusive trade monopolies, were at least accessible to as many as could place themselves in the position of Burgesses by residence or otherwise. They were, at all events, in accordance with the national sentiment of the time, and the Charters under which they were formally secured took their place among the Institutions which welded together the various classes and interests of the State.

All of these classes and interests had been taught and drilled to feel and to act together in and by the War of Independence. The Clergy had taken an early and an honourable part. A convocation of the Church, held at Dundee, had been the earliest public Body to espouse the cause of Bruce. The Towns and Burghs had co-operated in hostility to the scattered English garrisons. A mere handful of Knights had indeed begun the war, but each small success had rallied others to the standard, and in so far as popular sentiment was operative at all in those times, it spread by contagion among the military classes without distinction of origin or of race. Almost all parts of the Kingdom sent their contingents to the little army which won the day at Bannockburn. Of the four Divisions or "Battles" into which that army was arranged, the one which Bruce himself commanded was composed of the men of Carrick, of Argyll, and of the Isles. These must have been almost purely Celtic, yet we hear nothing of the peculiar, impetuous, but undisciplined and unsteady methods of fighting which afterwards became so celebrated as characteristic of the Highland Clans. Indeed from the position assigned to them by the King, round his own person, and held as a Reserve, it is clear that they must have been considered among the very best and most highly disciplined troops at his disposal. It would almost seem as if the military genius of that remarkable man, and the necessities of rigid discipline which his long and arduous contest imposed upon him, had enabled him to anticipate these modern days when Highland regiments have been not only the most dashing, but the steadiest and most enduring among the battalions of the British army. For, of this amalgamating power exercised by Bruce, we have another example which is too little remembered. Bannockburn, as one of the Decisive Battles of the World, has obliterated the memory of another battle, which, as a feat of arms, was hardly less memorable. It is almost forgotten now that, eight years after Bannockburn, in 1322, King Robert invaded England, and again routed Edward ii. in a pitched battle in his own Kingdom, in the heart of Yorkshire. In this battle of Byland Abbey, it is recorded that the critical operation of the day, in the carrying of a steep hill, was committed by Bruce to the same Western and Celtic soldiers who had been under his own special command at Bannockburn, and to whom, in the heat of this new day, he had recourse to carry the high and craggy ridge which looks down on the Yale of Pickering. The nature of this manoeuvre, executed under the good Lord James Douglas, is specially likened by the historian to that by which the King had defeated the Chief of Lorne on the steep sides of Ben Cruachan in 1307.

We must read all these events together. They show the complete amalgamation between all parts of the Scottish nation which had been going on for a long period, and which is not one whit more conspicuous in the Charters than in the military and political transactions of that age. Neither in the tenure of land, nor in rank and service on the field of battle, was there the slightest difference made in those grandest days of our history between the Lowlands and the Highlands. In accepting the new written grants, which were given by King Robert to all who stood by him in his struggle, the Highland Chiefs of Argyll, of Kintyre, and of the Isles, stood on exactly the same footing as the great Earls of Ross and of Moray, of Lennox and Strathern, or as his own family had stood for some generations with reference to Annandale and Carrick. His Charters, like those of his predecessors, and those of his successors, were nothing more than the sign and seal set by a new Authority upon a long continuity of Leadership, and upon a long continuity, of Possession of which that Leadership had been the real origin, and of which it had always been the real title and guarantee. During centuries of a growing civilisation, that Leadership had supplied whatever elements there were of Authority, of Security, and of acknowledged Obligation, in the nascent organisation of the State. Those who held that Leadership had originally won it by superior qualities of head and hand; and through many rough and troublous generations they never could have kept it except by a continuity of powers as hereditary as the continuity of names.

Nor at any time during the five or six hundred years between the dawn of Celtic history in Scotland and the date of these new Charters, had these leaders of the Clans and of the people rendered a better or a nobler service to the country than in that which secured to them those new confirmations of old rights from King Robert the Bruce and from his descendants. Men are apt to speak very thoughtlessly now of the origin of property which has been acquired by the sword—as if the sword represented nothing but brute force and predatory violence. They forget that military service and military success have often required the very highest faculties of Head and Heart and Hand. And never, perhaps, has this been more true than of the service which was rendered to the Bruce by the Chiefs and Barons who fought with him. The contest in which that Sovereign won the independence of his native country against all the Chivalry of England with no small aid from the Chivalry of France, was a contest memorable for all time. Perhaps we can hardly realise fully now all the qualities of courage, tenacity, and patriotism which were exhibited by those who stood by The Bruce during all the vicissitudes, discouragements, and almost despairs of that deadly struggle. And when at last the fate of Scotland came to be decided on that famous field in the narrow valley of the Bannock, we can hardly realise how stout the hearts must have been which clustered round the Standard of the "Bored Stone." It is said that the English cavalry alone exceeded in number the whole army of the Bruce. Their furious charges had to be met by a maneuvre of the infantry with pikes, that seems to have anticipated the formation of squares with the front rank kneeling, against which the French cavalry "stormed themselves away" at Waterloo..

It is impossible, even now, after the lapse of more than 570 years, to read any account of that battle—or still more to visit the field,—without emotion. For we must remember all the political and social questions which depended on it. For good or for evil, tremendous issues follow on the gain or on the loss of national independence. Where there is an inferior people—or a people which has travelled far on a wrong road—it may often be well that they should be conquered. The mixture of a stronger race, and the bringing in of better laws, may be the best of all results. But where the seeds of a strong national civilisation, of a strong national character, and of intellectual wealth have been deeply sown in any human soil, the preservation of it from conquest, and from invasion, and from foreign rule, is the essential condition of its yielding its due contribution to the progress of the world. Who, then, can compute or reckon up the debt which Scotland owes to the few and gallant men who, inspired by a splendid courage and a noble faith, stood by The Bruce in the War of Independence, and on June 24, 1314, saw the armies of the invader flying down the Carse of Stirling? Some of these men were the descendants of ancestors who had held the same relative place, and had rendered the same relative service in all the older contests which had built up the Kingdom and the Nation—which had united under one Crown the divided dominions of the Picts and Scots—which had secured the Lothians for Scotland, and had established the boundaries of the Kingdom at the Tweed.

Never, perhaps, has there been a more honourable origin for the tenure of land, than that which was consecrated afresh by the Charters of the Fourteenth and following Centuries in the hands of those Chiefs in Scotland who had then already won and had already held them for many generations. In some cases the same lands are to this day owned by lineal descendants of the men who fought with Bruce. In others, derivative tenures coming from those Charters as their legal source, have been the subject of inheritance, of exchange, and of sale during the course of five hundred years. And during all these centuries it can be shown that the successive holders have continued to be the leaders of the nation in the ever opening and widening fields of action on which all the triumphs of an advancing civilisation have been won. In their hands was vested the only power which in those rough ages could maintain any civil peace or political organisation. It was they who introduced the Anglo-Saxon culture,—and endowed the Latin Clergy,—and brought in the Roman Law; and it was, as we shall see, through their wise and gradual legislation that agricultural husbandry was raised to the dignity of a Profession, and was provided with that legal security which could alone enable it to become an Art.


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