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History of Moffat
Chapter VIII

Burghs of Barony and Regality.—Dr. Whltefurde.-Charter of 1662. --Ratification of 1669.—The Burgh's Boundaries.—Mr. Johnstone's Charter of 1839.—Burgh Rights—The Common. lands and their Division—The Douglas Acre, and Market Place —The Ancient Meal-house—The Magistrates—Remarks on certain illegal acts.

WE now come to the period at which Moffat is seen in a more important light. At an early date it had been customary to divide the lands of Scotland into what was called royalty and regality. The right of regalities, according to Chalmers, commenced during the reign of Alexander I., the Bishops and Abbots having full power to hold courts "within their own lands, and were freed from the authority of other jurisdictions." These jurisdictions of the clergy, however, soon became the property of the Barons, who had earnestly longed for possession of them. We find Moffat in the position of a burgh of barony and regality about the year 163, situated within a large barony and regality, termed the barony and regality of Moffat. Dr. Whitefurde, regarding whom we have already spoken, was then denominated Superior, having as his right the full administration of affairs within his own lands; and we find him in 1638, granting to one Janet Porteous, a confirmation of an order regarding land previously given. The Burgh Charter to Moffat, still extant, of date 1662,and which we shall presently quote at length, is not in reality its first, as often supposed, being but a transfer to James Earl of Annandale, of two things which formerly existed—the barony and regality of Moffat, and the burgh of Moffat which stood within it. The following is a translation of those parts of the Charter of 1662, which specially refer to the town:—


"Charles, by the grace of God, &c., to all good men of his whole land, clerical and lay, greeting, know that we have granted to our beloved kinsman and counsellor, James, Earl of Annandale and Hartfell, Viscount of Annand, Lord Johnstone of Lochwoocl, Lochmaben, Moffatdale, and Evandale, and to his heirs male lawfully begotten, or to be begotten of his body, whom failing the heirs female without division begotten hitherto, or to be begotten of the body of the said James ........and to the heirs male lawfully to be begotten of the body of the said eldest female heir, ......bearing the name and arms of Johnstone, which they shall be bound to assume ......whom failing, to the nearest heirs and assignees of the said James...... whomsoever heritably irredeemable....... all and whole the ten pound land of Moffat, with the mill, mill-lands, manor burn, with the woods, fishings, tenants, tenondaries, and services of free tenants, past pendicles and pertinents of the same, together with the advowson, donation, and right of patronage of the church and chaplanries of the same, lying within the lordship and regality of Dalkeith, and Sheriffdom of Dumfries. All and whole that acre of land at the end of the said town of Moffat, called Douglas Aiker, together with the privilege and liberty of regality within the bounds of the said lands together also with the privilege of holding markets weekly on Friday within the said town, and two fairs in the year within the said burgh and bounds of the same, one of them on the eighteenth day of the month of June, during the space of two days in succession, and the other of them on the second day of the month of September, with the power of uplifting and receiving the customs and dues of the said markets and fairs, and to apply the same to the use of the said burgh ......lying within the barony of Moffetdaill, .......Reddendo Clause. And moreover, we . . . . of new give. . . . to the said. . . James. and heirs ....the lands, lordships, barronies, . . . above mentioned .....And we moreover, understanding that it is more expedient that a burgh and town be built and erected within some part and place of the said lands, lordships, and barronies, where the same may be most conveniently had, and where its situation may furnish the greatest easement and advantage to our lieges, therefore, for policy, to be had and exercised within the said town and burgh, so to be founded and erected as follows, and for the further easement and good of our lieges, and also for other causes and considerations moving us, we, of our royal authority and royal power..... have created and erected . . . in favour of the said James, Earl of Annandale, &c., and his heirs and assignees aforesaid, the town and territory commonly called Moffat into one free burgh of barony and regality within the foresaid bounds, to be called in all time coming, the burgh of barony and regality of Moffat, with all the tenements, acres, cottages, houses, buildings, gardens, tofts, and other pertinents within the bounds and territory of the same, that shall be assigned and destined to the same of our said kinsman and Counsellour, James, Earl of Annandale, &c., and his foresaids, and have given .....them the full power .....of chosing, creating, admitting, and iniputting yearly bailios (one or more) within the foresaid burgh; with all and every other free burgesses, clerks, serjeants, adjudicators, and all other- members necessary for the administration and government of the said burgh in all time coining, with power to them of erecting a market cross within the said burgh; and we give and grant to the said burgh of barony and regality errected and built, or to be errected, as has been said, and to the inhabitants of the same, the whole liberties and privileges belonging to a burgh of barony and regality in like manner, and as freely as any burgh of barony and regality has and enjoys the aforesaid within the said Kingdom of Scotland. And we will and ordain that all proclamations, executions, indorsations of horning, inhibitions, and apprisings and other executions whatever, within the said bounds and regality above specified, used or to be used within any burgh of this our kingdom, shall be used at the market cross of our said burgh of 'Moffat in all time coming. And also we for the greater advantage and emolument of the said burgh, and for the increase of the revenue of the said burgh ...... have granted . . . . . . to our foresaid kinsman and counsellour, James, Earl of Annandale and Hartfell, and to his foresaids, a market day to be held weekly on Friday within the said burgh, together with four fairs yearly; whereof the first on the eighteenth day of the month of June, the second on the eighteenth day of the month of July, the third on the second day of September, and the fourth on the ninth day of October, yearly; with as ample privileges, liberties, profits, and immunities of free fairs and markets, as any other burgh of barony and regality within our Kingdom of Scotland has and enjoys, with all the customs and dues of the said fairs and markets, and all other privileges and liberties belonging to the same, according to the laws and customs of this our kingdom of Scotland ......Paying yearly .....for all and whole the said ten pound land of Moffat, with the mill, mill lands and pertinents of the same foresaid; all and whole the ten pound land of Grantown, with the pertinents, together with the advowson, donation, and right of patronage of the churches and chaplainries of the same lying as is fore-said; all and whole the said acre of laud, lying at the end of the said town of Moffat, with the pertinents, called Douglas Aiker, with the privilege of regality, and of holding fairs and markets within the bounds of the same, in the manner above written, only one penny of the money of this Kingdom of Scotland upon the soil of the said lands of the burgh of barony and regality, or any part of the same, if asked .. . . . . . . In -witness of 'which thing we have commanded our great seal to be affixed to this our present Charter..... At our Palace of Whythall, the third day of the month of April, in the year of our Lord, One Thousand Six Hundred and Sixty-two; and of our reign the fourteenth year."

This Charter, as if to make things doubly sure, was ratified by an Act of Parliament in favour of James, Earl of Annandale, in 1669. To illustrate the illegality of subsequent proceedings, we may state that that Act is still in force. The wording of the Ratification is similar in effect to that of the Charter, with the following slight variation. After stating that Moffat is already created a Burgh of Barony, &c., it goes on to say, "with the hail lands, tennements, aikers, cottages, houses, bigings, yeards, tofts, crofts, and other pertinents, within the bounds and territorie thereof mentioned within the said Charter, and all lyandit and boundit in manner therein spit Holden by his M„tie, and his heirs, successors in frie heritage, frie barronie, lordship, and earidome for over. And altering such of the foresaid lands, banonnies, and others above written, which formerly held waird to ane taxt, wail for payment of the taxt deuties therein spelt for the manage sua oft as the samen likes, and of the taxt deuties therein speit for the lands during the tymo of the wail and nouentnie thereof and for relief of the samen with the other privileges and liberties at length mentioned in the said Charter, &c" Herein we see Moffat installed into a comparatively comfortable position. It has but now doffed its humbler garb and shaded its lovelier aspect, its lanes and by-paths are indicative of a little bustle, but those deeds which could alone prove its identity and its claims to importance have long slumbered in the musty "and unfrequented storehouse of Archaeology." It was believed that upon the abolition of the rights of lords of regalities the burgh rights of Moffat were annulled, and the town itself destined no longer to be recognised as a burgh. The following passage, however, contradicts the supposition, as it speaks only of the abolition of the rights of lords of regalities, and makes no mention of the abolition of the burgh rights of Moffat: "That the following jurisdictions, claimed by George, Marquis of Annandale, may be rated at the sum underwnitten, viz.—The heritable office of Lordship and jurisdiction of the regality of Moffat at the sum of £800 sterling; and the heritable jurisdiction of Stewart of the Stewartry of Annandale at £2200 stg.; total, £3000 sterling."* This sum was paid to the Marquis on the 20th November, 1748. It is fortunate it was satisfactorily proven that the burgh rights of Moffat were not annulled at the date specified. Through the interposition of some private and influential men, and the efforts of the proprietors of the Moffat Times of 1857, by giving proof to that effect, the burgh's boundaries and common lands were placed on the Ordnance Map. The fact of the burgh's boundaries, &c., having been thus laid down on the map may appear trivial, or at least be estimated by parties unacquainted with the subject of less importance than it really was. In 1856 it was intended to adopt the General Police and Improvement Act, but wa fortunately not (lone till a subsequent period-1864 (of which we speak elsewhere)—for had it been adopted while it was yet a matter of uncertainty whether or not Moffat was a burgh, it would have been of little or no avail, as it contains "two distinct modes of procedure, one for burghs, and another for towns that are not burghs." The Act of Parliament of 1669, ratifying the Charter of 1662, has already been quoted, and being still in force, the rights and privileges of Moffat as a burgh must of necessity exist. To enable a second entail of the Annandale estates to be made, James, Earl of Hopetoun, created trustees for that purpose, who were "invested in the said estates by an instrument of sasine, dated 25th March, 1819. A part of that document is the same as a part of the Charter granted to Mr. Hope Johnstone of date 20th December, 1839, and in it all the rights and privileges of Moffat as a burgh exist, preserved in full force.

To enter into the wide subject of the burgh rights of Moffat would occupy too much space for a work such as this, therefore we shall curtail the information laid at our disposal, and for the present speak of the ancient Common of Moffat. Proprietors of land by Royal grant in or of Moffat had two distinct privileges, first, the exclusive right of the private land conferred by the Charter, and second, a right of pasturage on the public lands or commonty, to the extent of a specified number of soums of cattle, and controlled by the private possession of land within the "territorio do Moffat," as referred to in a preceding chapter. If This tract of land termed Moffat was divided into two seetions—pub]ic and private possession, and was in length five miles, while in breadth it measured two. This Common was by the Court of Session ordained to be divided towards the close of 1770, the various proprietors in lieu of their right of pasturage receiving shares. The Marquis of Annandale, who possessed three-fourths of the adjoining lands and who held the superiority of the whole, received a vast extent of land by the division, while the proprietor of Grantoun became the fortunate possessor of an extensive piece of pasture land. Parties who had gained the right of feu on the adjoining lands from the Marquis, obtained a grant of land varying from five to fifty acres along the old Edinburgh Road, which has since been cultivated and built upon. It is an unaccountably strange fact that this premature disposition of the property invoked the displeasure of not a few of the inhabitants of Moffat upon the head of its principal proprietor—the anger of parties whose former rights to this Common land had been either disregarded or annulled in 1770. In a document from which we have already quoted we find "a tract of ground was reserved undivided for the feuars to turn their cows into during the winter, and for the purpose of a fair-steadiug on which to show stock." This at first appears to have reference to what we have just alluded. The peculiarity consists, however, in the concluding part of the passage, "of late years the kind superior has this undivided tract wholly in his possession, consisting of about thirty acres." t This can, in truth, have no connection with the division of ground on the old Edinburgh Road in lieu of former possession. And we fear the writer must have, during his investigation, been seeing through a mist, and thus blinded, was incapable of discerning the exact features of the case. In those days when every remnant of feudalism has been abolished, and the "good old days of might are gone," we cannot imagine that such enlightened illegality and oppression should be committed and withstood. Nor have we such a low estimation of that dignified superiority which has ever been the characteristic feature of our history, as to endorse those sentiments which visibly unfold the grave characters of injustice and oppression. These thirty acres referred to may have been the original property of the superior, who, upon the disposition of this common land, in 1770, granted it in loan for the use of the fenars till more ample accommodation was provided, thereby causing it to become a matter of privilege, and not a matter of right to the inhabitants, at the same time reserving his title to dispose of it in future times as he deemed fit.

It will be no small matter of interest, we question not, to those of our readers who are inhabitants of Moffat, to become acquainted with the early incidents of their markets and market-place, both of which are referred to in the Charter of 1662, and in the "Ratification" of 1669, the market-place being denominated as the "Douglas Aiker." In the Charter of 1662, already quoted, we find—" All and whole, that acre of land at the end of the town of Moffat, called Douglas Aiker, with the privilege and liberty of regality within the bounds of the said lands, and privilege of holding markets weekly upon Friday within the said town; and two fairs in the year, within the said burgh, and bounds thereof" While all the "privileges and liberties at length mentioned within the said Charter," are by the "Ratification" preserved in full force. The situation of the market-place corresponds with subsequent descriptions of the Douglas "Aiker" referred to in the Charter, which, combined with the fact, that there is no other place in Moffat of such appearance as the Douglas Aiker, and that the institution of markets is in the same clause, in fact, joined to the passage with reference to the grant of the "acre of land at the end of the town," gives us the full impression that the old market place and the Douglas Acre are one and the same thing. The following may satisfy our readers as to the position of the Douglas Acre or Market place. In a Charter of feu farm of the old meal-house of Moffat, granted by the then existing Superior, to one John Grahame, of date March 22nd, and May 6th, 1742, written to prevent the forfeiture of the feu by an evident disregard to specified conditions, we find:—" Further that the said John Grahame and his foresaids shall be obliged to famish ane Meal-house for the use of the publick mereata, in the town of MofIat, in that place where the foresaid Meal-house hereby conveyed is situate?' In a disposition of the house next to and east of the old meal-house in question, to one James Beattie, of date 1747, a sketch of the boundaries of the house is given, of which the following is the substance :-" All and hail that big old stone house in the town of Moffat, one end thereof adjoining the house presently possessed by Jno. Johnston, wigmaker in Moffat; and to the meal-house and back yeard, and the oyr end thereof fronting to the Mercate street of Moffat." The exact situation of the Moffat Market-Place or Dougles Aiker is herein determined—namely, in front of the two houses of which we have now spoken.

As regards the illegality of certain acts to which in a preceding passage we alluded, the same is manifest in records of the subsequent actions of men in authority, or in other worth lairds, or others who held the superiority of Moflt. When it was elevated to the position of a burgh of barony and regality, and by such rendered capable of discarding its rustic guise' for one of more cultivated hues and business-like polish, he who received the original grant and a subsequent confirmation of the same—James, Earl of Annandale—had impressed upon him certain ideas, which he was bound to see developed or carried into effect. By no means the least of these duties which he was obliged to perform was the election yearly of bailies to represent the inhabitants, in direct accordance with the specifications of the Charter of 1662, as it invests the holder of the gift with the "full power . . . of choosing, creating, admitting, and imputting yearly baffles (one or morn) within the foresaid burgh," the same with the remainent privileges having been confirmed by the "Ratification" of 1669; and though mentioned in the Charter as a "power," it was none the less a duty. In compliance with this enactment, the baffles for many years were elected, but such manifestations were destined to be mere allurements. The good appearances were vain and idle, and subsequent years saw the election of bailies disregarded. This took place many years prior to the exertions which were made to secure the insertion of the burgh's boundaries in the Ordnance Map (even in the time of Mr. Hope Johnstone) and was put forward as an argument why such notice of the burgh should be taken in correspondences, which took place on the subject at the time. The good of such public officers in such cases is manifest, inasmuch as in the event of the non-election of magistrates, the burgh's boundaries may be neglected and ultimately forgotten, which would not be were suitable men put into office, provided they regarded the interests of parties concerned, and the fulfilment of duties imposed upon them. It matters not upon whom the responsibility of the non-fulfilment of those injunctions to which we have alluded rests, the point for consideration is those actions palpable enough in themselves, which indicated an evident disregard of certain laws, and which for sometime caused dissatisfaction needlessly to prevail amongst those parties, who had a claim upon those in authority for protection, and a right to exact the complete accomplishment of those duties, which were incumbent upon their superiors; by the various enactments referred to. The superiors in former days possessed the properties and derived the complete pecuniary good accruing from them; and while those in inferior positions served them, they were in duty bound to recognise certain claims, and do all possible for the advancement and improvement of the people within their jurisdictions. Parties who are at the helm of power, even in modem times, and are in high positions, disregard the humble claims and conveniences of a humbler grade, and sometimes trust to their superiority covering the injustice of their actions. Such, we fancy, would be benefited by consulting the splendid sentiment of Tennyson.

"Howe'er it be, it seems to me,
'I'ie only noble to be good;
Kind hearts are more than coronets,
And simple faith than Norman blood."

The election of bailies is now recognised in full force, though probably chiefly in keeping with the specifications of the General Police and Improvement Act, however recently adopted, to which we shall presently refer.

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