CHAPTER VI.

THE TRIBE IN SCOTLAND.

[Sidenote: Early notices of tribal organisation.]

In investigating the early social state of the Celtic inhabitants of Great Britain, we possess an advantage which does not attach to that of Ireland. For the Pagan period in the latter country we have no information except what is derived from native tradition; but in Britain we possess in addition a few incidental notices by contemporary writers of other countries, both as regards the native population of the Roman province and the Barbarian nations beyond its limits. These notices, few and general as they are, yet indicate the presence of a social organisation very similar to that of Ireland.

When we are told by one Greek writer ‘that its aboriginal tribes inhabit Britain, in their usages still preserving the primitive modes of life, and that they have many kings and princes;’[241] by another, ‘that there are several states amongst them. Forests are their cities; for having enclosed an ample space with felled trees, here they make themselves huts and lodge their cattle;’[242] when Cæsar tells us of the inhabitants of the interior, whom he calls indigenous, that ‘they did not resort to the cultivation of the soil for food, but were dependent upon their cattle and the flesh of animals slain in hunting for their food;’[243] when Solinus reports of the inhabitants of the five Western Isles forming the southern group, that ‘they knew nothing of the cultivation of the ground, but lived upon fish and milk,’ which latter implies the possession of herds of cattle, ‘and that they had one king, who was not allowed to possess property;’[244] when Tacitus speaks ‘of the numerous states beyond the Firth of Forth,’ and describes the great Caledonian army which Agricola encountered at the Mons Granpius as a federation of all the states of the northern population; and when we are told of the two great divisions of them in the third century—the Caledonians and the Mæatæ—‘that they inhabit mountains wild and waterless, and plains desert and marshy; that they live by pasturage and the chase, and that their state is chiefly democratical;’[245]—we can see that they consisted of an aggregation of tribes occupying the land in common, and whose chief possessions consisted of cattle. When these writers add that they had their wives in common, they indicate at least that looser relation between the sexes which usually prevailed before the introduction of Christianity had invested a stricter rule of marriage with its sanction, and which led to a connection through females as being regarded with more favour than that through males.

[Sidenote: The tribe among the Picts.]

When we come down, however, to Christian times, we find the existence of the _Tuath_ both as the tribe and as the tribe territory fully recognised as characterising the social organisation of the population of Gaelic race. The ancient tract, termed the _Amra Choluim Chilli_, of Dallan Forgaill, preserved in the _Liabhar na h-Uidre_, contains repeated references to the _Tuaths_ both in the sense of tribes and of their territories, and as regards the Pictish nation as well as the Dalriadic colony. Thus we are told that Saint Columba ‘illuminated countries and territories’ (_Tir agus Tuatha_), and that from him ‘the _Tuaths_ used to be disciplined.’ Again, when it is said, ‘Through an idolatrous _Tuath_ he meditated criminality,’ which is explained to mean, ‘when going through the _Tuath_ or territories of the idols he would know their criminality towards God,’ it can only refer to the pagan nation of the Picts; and when we are told that ‘he sought seven _Tuaths_, viz., the five _Tuaths_ of Erin, and two _Tuaths_ in Alban,’ the latter must be identified with the territory given him by the Picts, who, according to Bede, inhabited the districts adjacent to Iona. In another passage, when St. Columba is referred to as ‘the son of Fedelimid for whom used to fight or whom used to serve the twenty _Tuaths_,’ the word is probably used in the sense of tribes, and it is still more plainly used in this sense, as existing among the southern Picts, when he is described as ‘the teacher who used to teach the tribes who were around Tai, that is, the name of a river in Alban,’ which can obviously be identified with the river Tay. In another passage they are referred to as the people of the Tay (_Lucht Toi_); and the _Tuaths_ or tribes are indicated as existing both among the Dalriads and the Picts, when he is called ‘the champion who bound new things for the alliance of Conall, that is, the champion of the new things is not here for alliance, that is, for confirming the alliance of Conall, that is, between the _Tuaths_ of Conall within, or at making their alliance with other _Tuaths_ externally.’[246] Conall was the king of Dalriada at the time when St. Columba came over from Ireland to Scotland, and the other _Tuaths_ or tribes which were external to his kingdom can only refer to the neighbouring tribes of the Picts. The undoubted antiquity of this tract gives great value to these incidental references to the existence of the _Tuath_ or tribe, not only among the Scots of Dalriada, where we might expect to meet them, but also among the two great races of the northern and southern Picts, and this is confirmed by other authorities of a later date. Thus, in the tract called ‘The Genealogy of Corca Laidhe,’ referred to in a previous chapter, we read that ‘Irial Glumnar, son of Conall Cearnach, had two sons, viz., Forc and Iboth. Rechtgidh Righdearg led them into Alban. They gained great battles, so that great districts were laid waste in Alban, until the men of Alban submitted to Rechtgidh Righdearg, so that he was king of Erin and Alban; and it was from them sprang the two _Tuaths_ or tribes, _Tuath Forc_ and _Tuath Iboth_ in Alban.’[247] Rechtgidh Righdearg was one of the mythic pagan kings of Ireland, and Irial Glumnar a traditionary hero of the _Cruithnigh_, or Picts of Ulster; but it is a fair inference from it that two _Tuaths_ or tribes bearing the names of Forc and Iboth were known in Scotland, and the name Forc, which is the old form of that of the river Forth, indicates their situation on the northern shore of that river or estuary, that is, among the southern Picts. That a social organisation similar to the Irish tribal system prevailed among the southern Picts, to whom St. Columba’s mission was mainly directed, is confirmed by the Gaelic entries in the Book of Deer, which open with the statement that ‘Columba and Drostan, son of Cosgrach, his pupil, came from Hi, as God had shown them, unto _Abbordoboir_ or Aberdour, and Bede the _Cruthnech_ or Pict, who was _Mormaer_ of Buchan, gave them that town in freedom for ever from _Mormaer_ and _Toisech_;’ thus exactly corresponding to the grant of land to the church of Kells, quoted in a former chapter as free from rent, tribute, hosting, coigny, or any other claim of king or _Toisech_. Where there are _Toisechs_ there are _Tuaths_, and the district of Buchan probably formed a _Mortuath_ like the other districts ruled over by a _Mormaer_, the equivalent in Scotland of the _Ri Mortuath_ of the Irish system.

[Sidenote: The tribe in Dalriada.]

The Scottish kingdom of Dalriada was at this time confined within very narrow limits, and could hardly claim a higher position than that of a _Mortuath_, as we find that it consisted of three tribes, termed, in the tract ‘Of the History of the Men of Alban,’ the three powerfuls in Dalriada. These were the _Cinel Gabran_, the _Cinel Angus_, and the _Cinel Loarn_, who traced their descent from the three sons of Eochaidh—Fergus, Angus, and Loarn—who led the colony from Irish Dalriada. We obtain from this tract some valuable information as to the constitution of these tribes. The _Cinel Gabran_ occupied Kintyre in its old extent, including Knapdale, the district of Cowall, and the islands, that is, of Arran and Bute, and consisted of five hundred and sixty houses. The _Cinel Angusa_ possessed Isla and Jura, and consisted of four hundred and thirty houses. The _Cinel Loarn_ possessed the extensive district of Lorn, extending from Lochleven to the Point of Ashnish, and part of the opposite coast of Morvern, and consisted of four hundred and twenty houses. The districts thus occupied by these tribes surrounded an inner region, extending from the range of mountains called Drumalban to the arms of the sea termed Lochs Craignish and Crinan, consisting of the two districts of Lochaw and Ardskeodnish. This inner region seems to have been left to the older inhabitants of the country, and to have borne the name of _Airgialla_, possibly for the same reason that that name was applied to the extensive region in the heart of Ulster, wrested by the Scots under the three Collas from the Irish Picts.[248] The houses of which these three tribes consisted seemed to have formed groups of twenty houses each, as we are told that their sea muster assigned twice seven benches or seats for rowers to each twenty houses, but the armed muster for the _Sluaged_ or hosting was, for the _Cinel Gabran_ three hundred men, for the _Cinel Angusa_ five hundred men, and for the _Cinel Loarn_ seven hundred men, but one hundred of these were furnished by the people of _Airgialla_.[249]

[Sidenote: The tribe in Galloway.]

The only other districts of modern Scotland in which a Gaelic population remained are those of the Lennox and of Galloway, and in the latter we can trace the remains of the same tribal system. Thus in the year 1276 we find King Alexander the Third confirming a charter by which Neil, Earl of Carrick, granted and confirmed to Roland of Carrick and his heirs the right of being head of their kin in all pleas relating to _kenkenoll_ and the office of bailie, and the leadership of the men of the country under the earl. This shows that the _Cinel_ or tribe, with its head or _Ceannchinel_, had formerly existed among the Gaelic population of Galloway; and the same thing is indicated by some notices of lost charters preserved in the ancient Index published in 1798. Thus there is a charter by David II. to Donald Edzear of the captainship of _Clanmacgowin_, and a charter ‘anent the Clan of _Muintircasduff_,[250] John M‘Kennedy captain thereof;’ this term of Captain being the equivalent of the _Toisech_ of the Irish and Scottish Gael,[251] and the word _Muintir_, or people, being one of the appellations of a tribe.

[Sidenote: Modification of original tribes under foreign influences.]

These indications of the existence of a tribal organisation analogous to that in Ireland among the Celtic population during the period when, with the exception of Saxon Lothian, both king and people were Celtic, comprise in the main the information we are able to gain from the most trustworthy sources available to us; but after the purely Celtic dynasty of kings of Scottish race came to an end in the eleventh century in the person of Malcolm the Second, this tribal system became exposed to powerful external influences, which greatly modified its character, and finally resulted in its disappearance in the eastern districts under feudal forms, and its passing over in the mountainous regions of the north and west into the clanship which was afterwards found there.

[Sidenote: Passing of the Mortuath into the Earldom, and the Tribe into the Thanage.]

Soon after the death of Malcolm the Second the northern districts of Scotland fell under the dominion of the Norwegian Earl of Orkney, while the Celtic _Mormaer_ of Moray reigned in a kingdom the centre of which was at Scone; but when the usurper was expelled by the heir through a female of the ancient line, and Malcolm Ceannmor was established on the throne by the powerful aid of the Angles of Northumberland under their Earl Siward, and the northern districts reverted to his sway on the death of the Norwegian Earl, Saxon influences became predominant; and the new dynasty, still more closely connected with the Saxons through the marriage of its founder with the Saxon Princess Margaret, found its support mainly in the Anglic population of Lothian, which now became the most important province of the extended monarchy. His son Eadgar reigned in reality as a Saxon monarch, and when on his death the kingdom was divided between his brothers Alexander and David, the former consolidated his kingdom north of the Firths of Forth and Clyde upon the basis of Saxon institutions, while the latter ruled over the districts of British Strathclyde and Anglic Lothian as a feudal lord, with Norman sympathies and supported by a powerful following of Norman nobles. During the reigns of Eadgar and Alexander there was a silent advance of Saxon colonisation, and a progressive assimilation of the people to Saxon customs, which led to a Saxon nomenclature being imposed upon their Celtic institutions which found analogous forms in the Saxon laws; and thus in the kingdom of Alexander the First we find the Celtic _Mormaer_ appearing as _Comes_ or Earl, while the name of _Thanus_ or thane was applied to the _Toisech_,[252] and the tribe territory is now termed _Thanagium_ or Thanage. In the British district of Strathclyde the Celtic forms disappeared before the advancing feudalism of David; and when upon the death of his brother he became the first feudal king of all Scotland and its first lawgiver, the constitution of his kingdom was based upon the feudal system; and as its leading principle was that the king was feudal superior of all the territory, and all rights to land emanated from him, all land not given out as feudal holdings was held to be Crown land, and the tribe territories not placed under feudal lords, and now termed Thanages, were regarded as royal demesnes.[253]

When Fordun, therefore, in the forty-third chapter of his fourth book, tells us that ‘of old almost the whole kingdom was divided into Thanages,’ he was not referring to that fabulous state of matters described in a previous chapter, when _Thanes_ were supposed to be governors of provinces, with an _Abthane_ over them as high steward—a state of matters which never existed in Scotland; but, as is evident from the context, to those smaller territories termed _Thanages_ in his own day, and, viewing these _Thanages_ as representing the more ancient _Tuaths_ or tribe territories, he is reporting a genuine tradition of the tribal organisation which preceded the Saxon and feudal forms.

[Sidenote: Distinction of people into free and servile classes.]

The principal fragments of the ancient tribal law which we find still preserved in the subsequent legislation were those relating to the fines paid in compensation for different offences, analogous to those contained in the Irish and Welsh Laws; and these afford us the best indications of the different ranks or grades of society in the old tribal system. We find in Scotland, as in Ireland and Wales, the broad distinction between the free and servile classes. Thus in the laws of King William the Lion there is preserved this fragment of the older system ‘of the law that is callyt weregylt. Of euery thief through all Scotland the weregehede is xxxiiii. ky and one half, whether he be a freeman or a serf (_liber sive servus_).’[254]

[Sidenote: Classes of freemen.]

Of the classes of freemen these laws regarding fines afford us complete information. Among the laws attributed to King David I. is a fragmentary code termed ‘Leges inter Brettos et Scottos.’ It is preserved in Latin, in Norman French, and in the vernacular Scotch. By the Bretti are meant the Britons of Strathclyde, and the term Scotti now comprehended the whole inhabitants of the country north of the Firths of Forth and Clyde. David had ruled over the former as earl during the reign of Alexander the First, and on his accession to the throne seems in this short code to have recognised as law the system of fines which existed among his Celtic subjects both of Gaelic and of British race, and to have included them in a short code applicable to both. It contains the fines paid in compensation for slaughter, termed here _Cro_, a word signifying death; but it is said to be equivalent to the _Galnes_ or _Galanas_ of the Welsh laws, and also to the _Enauch_ or Honor price of the Irish. Another fine for slaughter is called _Kelchyn_, and the fines for ‘Blude drawn’ seem to be the _Saraad_ of the Welsh. They were termed _Bludwyts_ in Saxon and _Fuilrath_ in Gaelic.[255]

The _Cro_ of the King of Scotland is said to be one thousand ‘ky’ or three thousand ‘ore’ or ounces of gold, three ounces being the value of a cow, and his _Kelchyn_ is one hundred ‘ky.’

The _Cro_ of the king’s son,—that is, the Tanist of the Irish Laws, or of an Earl of Scotland, who is thus placed in the same rank,—is seven score ‘ky’ and ten ‘ky.’ His _Kelchyn_ is three score ky and six ky and two parts of a cow; and for Blude drawn, nine ky.

The _Cro_ of the son of an Earl, or of a Thane, who is placed in the same rank, is one hundred ky. His _Kelchyn_, forty-four ky and twenty-one pence and two-thirds of a penny; and for Blude drawn, six ky.

The _Cro_ of the son of a Thane is three score ky and six ky and two parts of a cow. His _Kelchyn_ is less by a third than his father’s, and is twenty-nine ky and elevenpence and the third part of a halfpenny; and for Blude drawn, three ky.

The _Cro_ of the nevow or grandson of a Thane, or of ane _Ogethearn_, is forty-four ky and twenty-one pence and two parts of a penny. His _Kelchyn_ is not given, but for Blude drawn it is two ky and two parts of a cow.

We are then told that all these who are lower in the _kyn_ (parentela) are callit _Carlis_ (_rustici_, vilayn), and that the _Cro_ of a _Carl_ is sixteen ky, that he has no _Kelchyn_, and that the ‘Blud’ of a _Carl_ is one cow.

We have also in this code a section ‘Of thaim that are slayn in the peace of the King and other lordis.’

‘Giff ony man be slayn in the peis of our lord the Kyng, til him perteins nine score ky.’

If in the peace of the sone of the King or of an Earl, four score and ten ky.

If in the peace of the son of an Earl or of a Thayn, three score ky.

If in the peace of the son of a Thane, forty ky; and if in the peace of a nevo or grandson of a Thane, twenty ky and two parts of a cow.’[256]

The names of the different ranks here are analogous to the Irish system, where the son of each grade occupied the rank of the next inferior grade.[257] The Earl was the Scottish _Mormaer_, the _Ri Mortuath_ of the Irish. The Thanus or thane was the _Toisech_. The _Ogethearn_ is the Irish word _Ogthighearna_, one of the names applied to the second class of the _Gradflatha_,[258] or those _Aires_ who received stock from a superior _Aire_. They were also called _Oglaochs_. The fines occupy an intermediate place between those of the Irish and of the Welsh Laws, but most resemble the latter; and the distinction between the free and bond classes and the rights of the _kyn_ are clearly indicated from the following addition it made to the account of the _Kelchyn_ fine:—‘If the wife of a freeman (liberi hominis) be slain, her husband shall have the _Kelchyn_, and her kyn shall have the _Cro_ and the _Galnes_. If the wife of a _Carl_ (_rustici_, vileyn) be slain, the lord in whose lands he dwells shall have the _Kelchyn_, and her _kyn_ shall have the _Cro_ and the _Galnes_.’

A fragment has also been preserved giving the _merchet_ or maiden-fee paid to the superior on the marriage of the daughter of a dependant. It is the _Amobr_ or _Gobr merch_ of the Welsh Laws:—‘According to the assize of the land of Scotland, the _merchet_ of every woman, whether she be a serf or mercantile, was one calf or three shillings. If she was the daughter of a freeman who was not lord of a township, her _merchet_ was one cow or six shillings. If the daughter of the son of a thane or of a _ochethiern_, two cows or twelve shillings. If the daughter of an earl, twelve cows.’[259]

The fines which were paid for abstaining from attending the king’s hosting are preserved in the Statutes of Alexander the Second, where the following ‘record was made at St. Johnstoun or Perth before the king be all the “dempsteris” (judices) of Scotland in the seventh year of the king’s reign, or A.D. 1221,‘ after the king had been in hosting at Inverness against Donald Neilson.’ They thus declare that ‘of those that remained away from the host, the king shall have the forfeiture of the erlis if their thanes’ (that is, the earls’ thanes) ‘remained from the host; but how much that forfalture should be was not determined. Of all others which remained at home—that is to say, of the lands of bischopis, abbotis, baronis, knychtis, and thaynis which hold of the king, the king alone ought to have the forfalture; that is to say, of a thane, vi cows and a calf; of an _ochtyern_, xv sheep or vi shillings; but the king tharof shall have but the one half, and the thane or the knycht the other half. Of a _Carl_, a cow and a sheep; and they also are to be divided between the king and the thane or the knycht.’ ‘But when by the leave of the thane or the knicht they remained behind the king, he shall have all the forfalt. For no earl nor sergand of the erlis in the land of any man holding of the king ought to come to raise that default but the Erl of Fyffe, and he shall not come as earl but as the _Mair_ of the king of his rights to be raised within the earldom of Fyffe. Of the _Cairlis_, however, where the king and the earl divide betwixt them, the king and the earl shall have the one half and the thane the other half; but where the thane falls in forfalt it shall be divided between the king and the earl, as in the laws of King William is declared.’[260]

The analogy between this arrangement and the system of fines for withdrawing from hosting contained in the Irish Laws will be apparent at once, and the different grades here given are the same as those in the code of David I., though adapted to a period when the thane appears as the vassal of the king or of the earl, and the _ochtyern_ as the vassal of the thane.

[Sidenote: Ranks of bondmen.]

The different ranks of the bondmen or unfree class have also been preserved in the code of laws termed _Quoniam attachiamenta_. They are there termed native-men (_nativi_), and we are told that there are several kinds of nativity or Bondage (_nativitatis sive bondagii_). For some are native-men of their grandfather and great-grandfather, which is commonly called _de evo et trevo_, whom their lord may claim to be naturally his native-men by narrating their progenitors, if their names are known, as his great-grandfather, his grandfather, and his father, who are challenged, declaring them to have been his native-men in such a township and in such a spot in that township, and to have made and rendered to him and his predecessors servile service in a servile land for many years; and this nativity or bondage may be proved by the kin of him who is challenged or by a good assize.

Another kind of bondage is similar to this, when any stranger receives servile land from any lord doing servile service for that land; and if he dies in that land and his son likewise dies in that land, and afterwards his son lives in the same land and dies there, then his whole posterity to the fourth degree shall be of servile condition to his lord, and his whole posterity may be proved in a similar manner.

The third kind of _nativity_ or bondage is when a freeman, in order to have a lord or the maintenance (_manutenencia_) of any great man, gives himself up to that lord to be his native or bondman (_nativum seu bondum_) in his court by the hair of his forehead; and if he thereafter withdraws himself from his lord, or denies his _nativitie_ to him, his lord may prove him to be his native-man before the justiciary by an assize, challenging him that he in such a day in such a year came to him in his court and gave himself up to be his man; and if any one is adjudged to be the native or bondman to any lord, that lord can seize him by the nose and reduce him to his former servitude, taking from him all his goods to the value of four pence.[261]

These definitions of the different kinds of _nativi_ or bondmen may no doubt apply to a later period than we are now referring to, and be more or less connected with feudal forms, but we may, notwithstanding, infer that they preserve the characteristics of the servile class in Celtic times; for, although the upper classes may in the Lowland districts have been superseded by Saxon or Norman proprietors holding their lands in feudal tenure, the servile occupiers of the soil of Celtic race who were attached to the land would remain and become the villains of the feudal lord; and so we find that wherever they appear in the Chartularies they possess Celtic names.

We see from the above description that their connection with their lord was of two kinds—first, by occupying under him servile land; and second, by placing themselves under him as personal bondmen; and of the former class, they were either natives by descent or strangers who had taken land from him, and the latter became native serfs after four generations. Here we recognise at once the _Sencleithe_ or old adherents of the Irish law, and the _Bond Fuidhir_, who became _Sencleithe_ after four generations. The latter class of personal serfs are the _Mogha_ of the Irish and the _Caeth_ of the Welsh Laws. The Celtic names by which these two classes were known in feudal times have also been preserved to us. Thus, in the Chartulary of Scone, King William the Lion grants a mandate directing that if the abbot of Scone or his sergands shall find in the lands or in the power of others any of the _Cumlawes_ and _Cumherbes_ pertaining to his lands, he may reclaim them;[262] and in the Chartulary of Dunfermline, the foundation charter by King David the First grants that all his serfs and all his _Cumerlache_ from the time of King Edgar shall be restored to the Church wherever they may be found, and the scribe interprets the word _Cumer lache_ by _fugitivi_ on the margin; and in a mandate by the same king to the same effect the title is ‘Of the _fugitivi_ which are called _Cumerlache_.’[263] In the last syllable of the name _Cumherbes_ or _Cumarherbe_ we can recognise the Irish word _Orba_, applied to that part of the tribe territory which had become the private property of the chiefs; and this name was no doubt applied to that class of serfs whose bondage was derived from their possessing servile land. They were the _ascripti glebae_ of feudal times. The term _Cumlawe_ or _Cumarlawe_ is simply a translation of the Latin term _manutenencia_, which characterised the third kind of bondage above described, and whose tie to their master being a personal one, led to their frequently escaping from hard usage and being reclaimed as fugitives.[264] Thus among the laws of King William the Lion we find one declaring that any one who detains a native fugitive man (_nativi fugitivi_) after he has been demanded by his true lord or his bailie, shall restore the said native-man with all his chattels, and shall render to his lord the double of the loss he has sustained.[265]

[Sidenote: Measures of land.]

As in Ireland and Wales, so also in Scotland, the ancient measures of land were closely connected with the tribal system, but here too we find them more greatly affected by external influences than in the two former countries. When we examine the most ancient land-measures of that part of Scotland lying north of the Firths of Forth and Clyde, we do not find the same local varieties which can be traced in the different provinces of Ireland and Wales, but instead, a great and leading difference between those of the eastern and the western districts. In the eastern districts there is a uniform system of land denominations consisting of Davachs, Ploughgates, and Oxgangs, the davach consisting of four ploughgates, and each ploughgate of eight oxgangs; but as soon as we cross the great chain of mountains separating the eastern from the western waters, we find a different system equally uniform. The ploughgates and oxgangs disappear, and in their place we find davachs and penny lands. The portion of land termed a _davach_ is here also called a _Tirung_ or ounce land (_unciata terra_), and each davach or _Tirung_ contains twenty penny lands.

The davach[266] being the only denomination common to both parts of the country, we may infer that it belongs to the old Celtic system of land-measures, and that the others are foreign importations. Now we find in the ancient province of Lothian, which originally formed part of the Anglic kingdom of Northumbria and possessed an Anglic population, the land-measures consisted of Carucates or ploughgates, and Bovates or oxgangs. The oxgang contained thirteen acres, two oxgangs made a husband-land, and eight oxgangs a ploughgate, which thus consisted of 104 acres of arable land. On the other hand, in the islands of Orkney and in the district of Caithness, which were formerly a Norwegian earldom under the king of Norway, we find the land was valued according to a standard of value derived from the weight of silver, the unit being the ounce or _Eyrir_, eight ounces forming the _Mörk_ or pound, and twenty pennings one ounce,[267] and thus the land-measures consisted of _Oers_ or ounce lands, the ounce lands containing either eighteen or twenty penny lands. They seem to have been so called, because under the Norwegian rule each homestead paid one penny as _scat_.

It is therefore a fair inference that, with the Saxon colonisation, the Saxon denominations superseded the older Celtic lesser denominations, as forming the subdivisions of the Davach in the eastern districts, while in the western seaboard and in the islands, which were for a time under Norwegian rule, the Norwegian denominations replaced the Celtic, but in both cases they were adapted to the existing divisions of land, which could not be altered without interfering with the whole framework of society. The Carucate or ploughgate was a term known to the Irish system, and may likewise have existed in Scotland in Celtic times, as it appears in Highland charters under the name of _Arachor_, the Gaelic equivalent of the Latin _Aratrum_,[268] but seems sometimes to have contained 160 acres in place of 104, and consisted of a definite measure of arable land with common pasture;[269] and we find from a charter of a Carucate or ploughgate of land on the Nith, that the common pasture carried 24 cattle and 100 sheep,[270] and the minor terms can probably still be traced in the topography of the districts. We have the words _Ballin_, _Bal_, from _Baile_, a town, entering into many local names in both parts of the country, as well as the word _Teaghlach_ or family, corrupted into Tully and Tilly, as in Tullynessle, Tillymorgan, etc. Then in the east there are the Pits, the old form of which, as appears from the Book of Deer, was _Pette_ or _Pett_. It is there uniformly connected with a personal name, as if it was applied to a single homestead, as in _Pette mac Garnait_, _Pett mac Gobrig_, and _Pett Malduib_, and the affix Pitt seems to have a similar meaning in the old entry in the Chartulary of St. Andrews, where we read of the ‘villula’ or homestead, which is called Pitmokane.[271] In the western districts we find the penny land also entering into the topography, in the form of _Pen_ or Penny, in such names as Pennyghael, Pennycross, Penmollach, while the halfpenny becomes _Leffen_, as in Leffenstrath; and if the group of twenty houses, which we found characterising the early tribe organisation in Dalriada, was the Davach, then we obtain the important identification of these houses or homesteads with the later penny lands. We find notices in the charters connected with this part of the country of the _Shammark_, equal to two penny lands, of Cow lands, probably the Irish _Ballyboe_, and of Horsegangs.[272] When these western districts fell under the rule of the Scottish monarchs, the valuation of land called the Old Extent seems to have been to some extent introduced. In the eastern districts it corresponded so far with the land measures, that the ploughgate was the same as the forty shilling or a three-merk land;[273] but the merk land in the west appears to have had no uniform relation to the penny land, though in Lochaber we find that five penny lands were equal to a forty-shilling land, which seemed to indicate that here also the ploughgate was the fourth part of a Davach, and consisted of five homesteads; on the other hand, we are told that each township in Isla consisted of two and a half merk lands.[274] The state of these districts probably gave the Davachs and penny lands a fluctuating value, which depended more upon the pasture and the stock it carried than on the arable land. There is an old tradition that the Davach was land capable of pasturing 320 cows, and that a merk land was as much land as would graze twelve milch cows, ten yeld cows, including three-year-olds, twelve two-year-olds, twelve year-olds, four horses, four fillies, mares and followers, one hundred sheep, and eighty goats.[275] The two systems of land measure appear to meet in Galloway, as in Carrick we find the measure by Penny lands, which gradually become less frequent as we advance eastward, where we encounter the extent by merks and pounds, with an occasional appearance of a penny land, and of the Bovate or oxgang in Church lands.

[Sidenote: Burdens on the land.]

The burdens upon the land held by the community in Scotland seem to have been principally four. We find them still attaching to the Crown and the Church lands during the twelfth and thirteenth centuries, and they are analogous to those connected with the Irish tribe system. They were _Cain_, _Conveth_, _Feacht_, and _Sluaged_. The two former were fixed payments in kind. The two latter were services to which the possessor of the land was subject. They are rendered in Latin by the words _expeditio_ and _exercitus_. We find these burdens in both of the leading divisions of the country north of the firths. Thus, by a deed dated at Lismore in the year 1251, Sir Ewen, son of Duncan de Erregathil (Argyll), granted to William, bishop of Argyll, fourteen penny lands in Lismore, free of all secular exactions and dues—viz., _Cain_, _Coneveth_, _Feacht_, _Sluaged_, and _Ich_—and of all secular services;[276] and similarly Roger, bishop-elect of St. Andrews, granted between 1188 and 1198, when he was consecrated, the lands of Duf Cuper to the church and canons of St. Andrews, free of ‘_Can_ et _Cuneveth_ et exercitu et auxilio et ab omni servicio et exactione seculari.’[277]

[Sidenote: The _Cain_ or _Can_.]

We find during this period that these dues and services were derived by the king from the Crown lands, and by the superiors from lands not held feudally. Thus King David grants to the monks of Dunfermline the tithe of his whole _Can_ from Fif and Fothrif, likewise the tithe of his _Can_ of Clacmannan, and the half of his tithe of Ergaithel (Argyll) and Kentir in that year, to wit, in which he receives _Can_ from it, and these grants are repeated by his successor Malcolm IV.[278] King David likewise grants to the church of Urchard (Urquhart) the tithe of the _Can de Ergaithel de Muref_, that is, that part of the great province of Ergadia or Ergaithel which belonged to Moray, extending from the Leven to the border of North Argyll.[279] King William confirms to the bishop of Moray the _Cana et Coneveta_ which his predecessors had received from those who held land of the bishops during the time of King David and King Malcolm;[280] and in an agreement in 1225 between the bishop and Walter Cumyn of Badenoch, the bishop frees him from any claim he had for the tithe of the _Can_ of his lord the king from the lands of Badenoch.[281]

In Aberdeenshire we find the Earl of Mar granting to the bishop of St. Andrews the tithe of the ‘redditus’ or _Can_ of his whole lands;[282] and Thomas the Hostiary gives to the canons of Monimusk ten bolls of meal and ten stones of cheese from his lands of Outherheicht, which is afterwards called the _Can_ of Houctireycht.[283]

In Mearns or Kincardine Earl David of Huntingdon grants to the church and canons of St. Andrews the whole _Kan_ and _Kuneveth_, which they were due him, from the lands of Ecclesgirg, and the services which his men of Eccleskirch were bound to render him.[284] Then in the beginning of the thirteenth century the record of a dispute between the bishop of St. Andrews and the abbot of Arbroath is preserved to us in the chartulary of that church, regarding the lands of Fyvy, Tarves, Innerbondy, Munclere, Gamery, Inverugy, and Monedin, and the _Can_ or redditus and _Conevet_ of these lands, which the bishop resigns to the abbot free of every exaction, reserving to himself the ancient ‘redditus’ of Monedin, viz., three shillings and sixpence, and the portion of the _Conevet_ which was wont to be paid at Bencorin or Banchory; and in the same Chartulary there is a grant by King William to the abbey of Arbroath of the ferry and ferrylands of Munros, to be held free ‘ab exercitu et expeditione et operatione et auxilio et ab omnibus consuetudinibus et omni servicio et exactione;’ and the earl of Angus grants them the lands of Portincraig in similar terms, as free ‘ab exercitu et expeditione et exactione multure et ab omnibus auxiliis et geldis et omnibus serviciis et exactionibus;’ the ‘exercitus’ and ‘expeditio’ being the _Sluaged_ and _Feacht_ of the Gaelic charters.[285]

Then in Fife we find in a rental of the earldom a certain _firma_ or rent which is termed _Canus_, with ten shillings of the _Can_ of Abernethy; and in Stratherne we find the bishops of Dunkeld confirming to the canons of Inchaffray the lands of Maderty, which is called _Abthan_, and the freedom from the _Cane_ and _Coneveth_ which the clerics of Dunkeld were wont anciently to receive from these lands.

These notices will be sufficient to show that these Celtic burdens on land prevailed over the whole of the country north of the Firths, on the crown lands and those of the church, and on all lands which had not become the subject of feudal grants.

Passing then to the country south of the Firths, we find them equally prevalent, except in the great Anglic province of Lothian. Thus King David grants to the church of Glasgow the whole tithe of his _Chan_ in the beasts and pigs of Strathegrive and Cuninghame, Kyle and Carrick, in each year, unless the king himself shall go to dwell there and consume his own _Chan_.[286] These districts formed the greater part of the ancient British kingdom of Strathclyde, and this was an appropriate grant to the church of Glasgow, which had been its metropolitan church. Then we find the lords of Galloway granting lands in that district to the canons of Holyrood, free from all ‘_Can_ and _Cuneveht_ and from every exaction, custom, and secular service;’[287] and finally, at a court held by the judges of Galloway at Lanerch in the reign of King William the Lion, in presence of the Lord of Galloway, it was adjudged that ‘when the king ought to receive his _Can_ from Galloway he should issue his breve to the _Mairs_ of Galloway, and the _Mairs_ should go with the royal breve to the debtor of the _Can_ and exact the _Can_ from him. If he fail to pay, the _Mair_ was to take the rod or staff, called the king’s staff, and take a distress for the king’s _Can_, and if the debtor removed the subject of the distress he was to pay for each ten cows fifteen cows, besides a hundred cows _de misericordia_; but if he delivered part of the _Can_, till after the Nativity he was to pay for each cow four shillings of cow-tax, and for each pig sixteen pence, and before the Nativity the debtor was to deliver cows worth forty pence, and if he stated on oath that he had no pigs, he was to pay for each pig seventeen pence.’[288]

This last notice will explain in some degree what the burden termed _Cain_ or _Can_ really was, and how it was exacted. It consisted of a portion of the produce of the land, in grain when it was arable land, and in cattle and pigs when pasture land. It was in fact the outcome of the _Bestighi_ or food-rent of the Irish laws, and the _Gwestva_ of the Welsh laws, paid by every occupier of land to his superior. Over the whole of Scotland, except in Lothian, it was a recognised burden upon the crown lands and upon all land not held by feudal tenure, but it ceased as soon as the possessor of the land was feudally invested. Thus we find in the Moray Chartulary an agreement between the bishop of Moray and Thomas de Thirlestan, who had received a feudal grant of the lands of Abertarff, regarding a half-davach of land, which the bishop asserted belonged to the church, and regarding the tithes of the royal _Can_ payable from the lands of Abertarff before his feudal investiture (_ante infeodationem_). There is a similar agreement between the bishop and James, son of Morgund, regarding certain lands in his fief of Abernethy, and regarding the tithes of the _Can_ which was wont to be paid to the king from these lands before his feudal investiture, and another between the bishop and Gilbert the Hostiary regarding the tithes of the _Can_ which he was wont to pay annually to the king from the lands of Strathbroc and Buleshe before his feudal investiture (_ante infeodationem_).[289] The _Can_ or _Chan_ was so termed from the Gaelic word _Cain_, the primary meaning of which was ‘law.’ It was the equivalent of the Latin word _canon_, and like it was applied to any fixed payment exigible by law.[290]

[Sidenote: Conveth.]

Conveth was the Irish _Coinmhedha_ or Coigny, derived, according to O’Donovan, from _Coinmhe_, which signifies feast or refection. It was the _Dovraeth_ of the Welsh laws, and was founded upon the original right which the leaders in the tribe had to be supported by their followers. It came to signify a night’s meal or refection given by the occupiers of the land to their superior when passing through his territory, which was exigible four times in the year, and when the tribe territory came to be recognised as crown land, it became a fixed food contribution charged upon each ploughgate of land. Thus in the charter by King Malcolm the Fourth, confirming the foundation of the abbey of Scone, he grants to the canons from each ploughgate of the whole land of the church of Scone in each year, at the Feast of All Saints, for their _Coneveth_, one cow and two pigs, and four _Camni_ of meal, and ten threaves of oats, and ten hens and two hundred eggs, and ten bundles of candles, and four pounds of soap, and twenty half meales of cheese.[291]

In the reign of Alexander the Third this word seems to have assumed the form of _Waytinga_, and appears in the Chamberlain Rolls of his reign as a burden upon the Thanages. Thus the Chamberlain renders an account of the _Waytingas_ of Forfar and Glammis, of the _Waytinga_ of one night of Fettercairn, of the _Waytingas_ of four nights in the year of Kinross, and ‘of the rent of cows of two years,’ that is to say, of the _Waytingas_ of two nights in the year of Forfar, forty-eight cows, and of the _Waytinga_ of (one) and a half nights of the Thanage of Glammis, twenty-seven cows.[292]

Another name for this exaction was _Cuidoidhche_, or a night’s portion, corrupted into _Cuddiche_ or _Cuddicke_. It appears under this name mainly in the Highlands and Islands, and was continued as a burden on the lands to a late period. In the rentals of South and North Kintyre for 1505 we find, besides _firma_ or rent, each township charged with a certain amount of meal, cheese, oats, and a mert or cow, _pro le Cuddecht_. A description of the Western Isles written between 1577 and 1595, has preserved a record of these payments. Lewis, a forty pound land, pays yearly 18 score chalders of victuall, 58 score of ky, 32 score of wedderis, and a great quantity of fishe, poultry, and white plaiding by their _Cuidichies_—that is, feasting their master when he pleases to come in the country, each one their night or two nights about, according to their land or labour. In Uist each merk land paid 20 bolls victual, besides other customs which are paid at the landlord’s coming to the Isle to his _Cudicht_; and in Mull each merk land paid yearly 5 bolls bear, 8 bolls meal, 20 stones of cheese, 4 stones of butter, 4 marts, 8 wedders, 2 merks of silver, and 2 dozen of poultrie by _Cuddiche_, whenever their master comes to them. Under the name of _Conyow_ or Coigny it appears in Iona, when, in a contract between the bishop of the Isles and Lauchlan M‘Lean of Dowart, in 1580, the latter becomes bound that he ‘sall suffer na maner of persoun or personis to oppress the saidis landis of Ycolmekill (Iona) and Rosse, or tenantis thaireof or trouble or molest thame in ony sort with ather stenting, _Conyow_, gerig service or ony maner of exactioun.’[293] In Atholl we find the vassals of Strathtay and their tenants ordered as late as in 1719 to pay their _Cudeichs_ according to ancient use and wont. These included two pecks of corn, one threave of straw, and six shillings Scots for maintenance of the superior’s horses and servants who wait on them, out of each twenty shilling land; and in 1720 it is ordered that the accustomed corn and straw and other casualties paid yearly as _Cuddeichs_ out of each merk land be taken up, excepting always the land laboured by the vassals for their own use.

A similar burden under different names emerges in Galloway, when in a charter by David II. to Sir John Heris, knight of the barony of Terreglis, in Dumfriesshire, in which it is declared ‘free of _Sorryn_ and _Fachalos_ unless officers come through it with a robber or with the head of a robber; and if they, the king’s officers, can pass beyond the barony before sunsetting, they shall have nothing for their expenses, and if they cannot pass beyond the barony before sunsetting they shall have hospitality for that night (_hospicium ad hospitandum_),’ etc. _Sorren_ was a tax imposed in Ireland upon the possession of land for the clothing, feeding, and supporting the galloglasses and kernes. It was originally a night’s meal upon land passed through, and _Fachalos_ was probably the Irish _Fechtfele_, which is explained as ‘the first night’s entertainment we receive at each other’s house.’[294]

[Sidenote: Expedition and hosting.]

The _Feacht_ and _Sluaged_ (_expeditio et exercitus_) consisted of a general obligation, originally upon the members of the tribe, and afterwards upon the possessors and occupiers of what had been tribe territory, to follow their superiors and chiefs as well as the _Ardri_ or sovereign in his expeditions and wars. They are usually termed expedition and hosting, and in Scotland the burden was apportioned upon the davach of land. It is probably this burden that is referred to in the Book of Deer, where we are told that the ‘_Mormaer_ and _Toisech_ immolated all the offerings to God and to devotion, and to Saint Columcille and to Peter the Apostle, free from all the burdens, for a portion of four davachs of what would come on the chief tribe residences generally and on the chief churches.’ These obligations seem to have constituted what is called in charters Scottish service (_servitium Scoticanum_), and were of two kinds, internal and external, the one representing the _Feacht_ or expedition, and the other the _Sluaged_ or hosting. We find them distinguished in a charter by Waldevus de Stratheihan to the church of St. Andrews of the lands of Blaregeroge, which are granted ‘free from all exaction and service, internal and external’ (_sine omne exactione et servitio intrinseco et forinseco_);[295] and their connection with the Davach appears very clearly from three Charters, one by Alexander II. to the abbey of Scone of the lands of Magna et Parva Blar, which contains in the reddendo the clause, ‘rendering the external service only which pertains to five davachs of land, that pertaining to the sixth davach being remitted.’[296] In another by the Earl of Stratherne to Willelmus de Moravia, the lands are granted free of ‘every service except the external Scottish service of our lord the king;’[297] and in a third charter by Alexander the Second to the abbey of Arbroath of the lands of Tarvays, consisting of four davachs and a half davach and quarter davach, they are granted ‘rendering the external service in the army which pertains to the said lands.’[298] We have seen that the _Feachtmara_ or sea expedition of each tribe in ancient Dalriada was attached to each twenty houses, corresponding to the twenty penny lands which formed the davach in the west, showing very clearly that even at this early period the Davach was the measure of land by which this burden was regulated.

Such, then, were the burdens connected with the ancient tribal organisation as depicted in the Irish and Welsh Laws which we find still attached to the thanages, as well as to all the crown and church lands not held on a feudal tenure. They consisted of, first, a share of the produce of the land and the stock, of the personal services of certain of the tenants, and of various fines, which were all included in the general term of _Cain_; secondly, of rights of entertainment and support for a certain number of nights in the year, under the name of _Coinmhedha_ or _Coneveth_, _Cuidoidhche_ or _Cuddechie_, _Waytinga_, _Sorren_, and _Fachalos_, and assessed on homesteads or penny lands in the west, twenty of which made a davach; and on Carucates or ploughlands in the east, four of which constituted the davach; thirdly, of the _Feacht_ or expedition,—the burden of joining in expeditions within the kingdom or territory; and fourthly, of the _Sluaged_ or Scottish service of hosting,—that is, the burden of attending the king’s army or host when assembled for the defence of the kingdom or for hostile invasion; and of all these burdens the various grades connected with the land had their _Cuid_ or share in definite proportions.

[Sidenote: Assimilation to feudal forms.]

These old Celtic tenures, however, became gradually more and more assimilated to feudal forms as the kingdom with its mixed population assumed more the aspect of a feudal monarchy, and its kings adapted the customs of their subjects of different race to the model of those of the feudal law. In this progress of adaptation we can trace two distinct stages,—one when the crown lands came to be considered as held upon a distinct tenure termed in England fee-farm, in Scotland feu-farm, and in Latin charters _feodifirma_; and again, when the War of Independence which followed on the death of the last of the kings of the race of Malcolm Ceannmor and the contest between the houses of Bruce and Baliol led to numerous confiscations of the land held by their partisans on both sides, and to the general conversion of the crown grants into feudal tenures for military service.

[Sidenote: Tenure in feu-farm.]

The tenure of crown lands in _feodifirma_, or feu-farm, appears in England as early as the reign of King John, and must have then been already well established, as one of the stipulations in the articles of the Barons which led to the great charter of liberties or Magna Charta, and repeated in the latter, is, that if any one holds of the king _per feodifirmam_, or on _sokage_ or burgage tenure, and of another for military service, the king is not to have the custody of the heir or of his land who holds of another in fee by reason of his fee-farm, sokage, or burgage holding of the king, nor shall he have the custody of the latter unless the fee-farm owes military service;[299] and in Scotland it was evidently recognised as a tenure holding of the Crown in the reigns of William the Lion and of Alexander the Second. The tenure in feu-farm or _feodifirma_ was in fact an intermediate tenure between those who had merely the usufruct of land the right of property in which still remained with the granter, and those who held land as his vassal by a formal feudal grant for military service. Of the two words of which the name is composed, _Firma_—derived from the Saxon _feorm_—was the share of the produce of the land paid by a tenant to his landlord by way of rent; and to hold land _ad firmam_ or _in firma_ was equivalent to the modern leasehold tenure: it was constituted by a lease and completed by possession, and the tenant was called _firmarius_; but _feodum_ is the feudal fief granted by charter and completed by seisin or infeftment. The tenure _in feodifirma_, therefore, was a feudal grant of land, not for military service, but for a _firma_ or permanent rent, and was equally constituted by charter and seisin. Such lands were held _ad feodifirmam_, the annual payment was the _feodifirma_, and the holder was called _feodifirmarius_. These grants were supposed to resemble the Roman _Emphyteusis_, and the form still exists in Scotland in our modern feu-charter, in which the same expressions are used. In these the land is conveyed ‘in feu-farm, to be held in feu-farm fee and heritage for ever,’ for payment of an annual ‘feu-duty,’ and the granter is called the ‘feuar.’ It is, however, essentially a feudal holding, and differs from a mere tenancy by lease in this—that in the former the _dominium utile_ of the land is conveyed by charter to the vassal, while in the latter the usufruct of the land is solely given, and the property of the soil remains with the granter.[300]

[Sidenote: Ranks of society on Crown lands.]

When the thanage came to be considered as crown land it assumed an appearance, with its thane holding it under the Crown and paying a share of the produce as _Cain_, which was so analogous to that of the feu-farm holding, that when feudal forms became more generally adopted it almost unavoidably passed over into the latter; and it is at this stage of the history of the thanage, when it was universally recognised as a feu-farm holding, that the very important description of the tenure of crown lands given us by Fordun in his Chronicle, to which we have already adverted, more directly applies. We must now examine this description more in detail.

Fordun divides the possessors and occupiers of the crown lands into three classes, beginning his description with the lowest class, and proceeding through the different ranks till he reaches the Thane; but it will be more convenient for our purpose to invert the order in which he describes them. He introduces his description by stating that the kings were accustomed of old to give to their soldiers more or less of their lands in feu-farm a thanage or portion of some province, of which, however, he gave to each as it pleased him. Then follow the three classes. The highest he terms _principes_, _thani_, and _milites_. To these, who were few in number, he gave the land in perpetuity, but under the burden of a certain annual payment to the king. The word _principes_ here, probably, means the earls of those ancient earldoms who represented the old _Mormaers_, and whose demesne was held to have been originally part of the crown land.[301] The _thani_ represented the older _Toschachs_, and here we find the _Toschachs_ or thanes holding the demesne of the thanage of the king in feu-farm, and paying an annual feu-duty, first in kind, and retaining its original name of _Cain_, but afterwards commuted to a money payment. Accordingly, in the laws of William the Lion and of Alexander the Second we find them in the position of crown vassals holding of the king _in capite_. Thus in an assize held at Perth by King William the Lion there were present the bishops, abbots, earls, barons, thanes, and whole community or estates of the kingdom. Again, a law passed in A.D. 1220, regarding persons absenting themselves from the king’s army, mentions those belonging to the lands of bishops, abbots, barons, knights, and thanes who hold of the king.[302] By _milites_, Fordun here means those who held a portion of the thanage termed a tenement or tenandry, either direct from the king, or, as was more usual, under the thane or lord as a sub-vassal, as distinguished from the demesne.[303] These formed the class termed freeholders or _libere tenentes_, and were bound to yield certain services as suit and service in the court of the overlord and Scottish service to the king. This class is frequently alluded to in the laws both of William the Lion and of Alexander the Second. Thus in a statute of King William the Lion in 1180, regarding the holding of barony courts, it is provided that neither bishops nor abbots, nor earls nor barons, nor any freeholders (_libere tenentes_) shall hold courts unless the king’s sheriff is summoned, etc. Again, in a statute regarding justice and sheriff moots, we have barons, knights (_milites_), and freeholders (_libere tenentes_) classed together; and a statute regarding the mode of citation refers to persons cited to attend the moots of the justiciary shiref, baron, vavasour (that is, of one holding of a baron), or of any freeholder (_libere tenentis_) that has a court. Then a declaration regarding the freedom of the Church is made by King William at Scone, with the common consent and deliberation of the prelates, earls, barons, and freeholders (_libere tenentium_); and finally there is a statute by the same king that the earls, barons, and freeholders (_libere tenentes_) of the realm shall keep peace and justice among their serfs, and that they shall live as lords from their lands, rents, and dues, and not as husbandmen or sheep-farmers, wasting their property and the country with a multitude of sheep and beasts, thereby troubling God’s people with penury, poverty, and destruction; this curious statute showing not only the position of the _libere tenentes_ as proprietors, but that there was a tendency even at this early period to withdraw land from culture and convert it into pasture land.[304] Then in the Statutes of Alexander the Second there is one _de modo duelli secundum conditionem personarum_, in which reference is made to the _miles_ or knight, or son of a knight, or any _libere tenens_ or freeholder in _feodo militari_ or knight’s fee. Again, in another law, the king statutes that if any _miles_ or knight shall be indicted by inquest, he shall pass through an assize of good and leil knights, or of freeholders of heritage (_libere tenentium hereditarie_);[305] and their position is clearly indicated by a provision in the Quoniam attachiamenta, that any freeholder (_libere tenens_) whose tenement is by his infeftment free from all service, shall fall to a lady by reason of her terce, and unwittingly did service to her, shall not be liable in similar service to his superior.[306] This view of the position of the _libere tenentes_ as freeholders holding land under the thane or baron as sub-vassals of the Crown, is corroborated by a few charters which may be noticed. Thus Robertus de Keth, lord of the same and of the barony of Troup and Marischall of Scotland, grants certain lands within the barony of Troup to his son John de Keth, with the bondmen, bondages, native-men, and their followers, but reserving to himself the superiority and service of the freeholders (_libere tenentium_) of the lands of Achorthi, Curvi, and Hayninghill, lying within the barony of Troup. Again, Morgund, son of Albe, grants to his son Michael one davach of his land of Carncors in Buchan, to be held of himself in fee and heritage for ever, as freely as any freeman (_liber homo_) can grant land; and Alexander Cumyn, Earl of Buchan, grants to Fergus, son of John de Fothes, the tenement of Fothes, with its bondmen, bondages, native-men, and their followers, to be held of himself and his heirs in fee and heritage for ever, as freely as any freeman (_liber homo_) can hold (_tenet_) any tenement of any earl or baron within the kingdom, rendering such form in service to the king as pertains to their lands, and a half-pound of wax to us and our heirs in lieu of all secular service or demand which we can exact in future.[307]. This class appears to be meant by the _Ogethearn_ of the old laws, who ranked next after the thane.[308]

The second of Fordun’s groups consists of those whom he terms _liberi et generosi_, who held portions of land either for ten or for twenty years or during life, with remainder to one or two heirs. These were the tenants in the modern sense of the term. The former were the _liberi firmarii_ of the statutes, or free farmers, and the latter the kindlie tenants or tacksmen, who were usually near relations of the lord of the land, and when they had a liferent possession of land, occupied an intermediate position between the _libere tenentes_ or freeholders and the _firmarii_ or farmers, and may in fact be classed with either.[309] We find in this group a resemblance to the _Ceile_ or tenants of the Irish Laws in two respects. First, in the steelbow tenancy, by which many of these tenants held their land, and were sometimes called steelbow-men. By this tenure the landlord provided the stock and implements called steelbow goods, which were transferred to the tenant on valuation; and he was bound on the termination of his lease to return stock and implements to the same value, while the rent paid for the land was higher in proportion to the value of the steelbow goods. Secondly, the smallest possession held by a free farmer appears to have been two bovates or oxgangs of land, or the fourth of a ploughgate, called in some parts of the country a husband-land; and we find that in the north of Scotland the name of _Rath_ was given to this portion of land, a name which in the Irish Laws signified the homestead, which formed the lowest single tenancy. Thus William, son of Bernard, grants to the monks of Arbroath ‘two bovates of land, which are called _Rath_ (_que vocantur Rathe_), of the territory of Katerlyn (in Kincardineshire), with the right to pasture twenty beasts and four horses on the common pasture of Katerlyn; and the same person grants to the monks two other bovates of land in the territory of Katerlyn, consisting of seven acres of land adjoining their land which is called _Rathe_, on the north, and nineteen acres of land adjoining these seven acres on the seaside towards the east, under that culture which is termed _Treiglas_, thus making up the twenty-six acres of which a husbandland consisted.’[310] The word _Rath_ enters largely into the topography of Scotland, under the forms of _Rait_, as in Logierait; _Ra_, as in Ramorny; _Rothy_, as in Rothiemay and Rothiemurchus, anciently _Rathmorchus_.

The last of Fordun’s groups consists of those termed _Agricolœ_ or husbandmen, holding land from year to year for rent (_ad firmam_). They are distinguished from the _liberi_ or freemen, and belonged to the class of holders of servile tenements termed in the laws _Rustici_. This class of servile tenants seems to form the object of the first laws made by Alexander the Second on his accession in A.D. 1214. They are issued at Scone, with the common council of his earls, for the profit of the country, and provide that the ‘_Rustici_ in those places and townships in which they were the previous year shall exercise their agriculture and not neglect their own profit, but shall begin to plough and sow their lands with all diligence fifteen days before the Feast of the Purification (second of February); and that those _Agrestes_ who have more than four cows shall take land from their lord and plough and sow it, to provide sustenance for them and theirs; and those who have less than five cows may not use them in ploughing, but shall labour the land with hands and feet, trenching and sowing as much as is necessary for the sustenance of them and theirs. Those that have oxen shall sell them to those that have land to plough and sow. Earls not allowing those who have such lands on their earldoms to do so shall forfeit eight cows to the king; and if any one holding of the king shall neglect to do so, he shall forfeit eight cows to the king. If he hold of an earl, he shall give the earl eight cows. If he be a serf, his lord shall take from him one cow and one sheep, and thenceforth shall force him who will not do it of free will; and the king adds the following warning to them to take heed that that does not happen to them which is taught in parables. He who will not plough in winter owing to severe cold shall beg in summer, and it shall not be given him, but rather according to the judgment of the apostle—Let them labour with their hands, working what is good, that they may have to give to those who are in necessity.’[311]

The thanage then consisted, like all baronies, of two parts, demesne and that part given off as freeholds (_libera tenementa_) or tenandries. The demesne was held by the Thane of the king in feu-farm, and cultivated by the servile class, the bondmen and native-men, and the tenandries were either held of him in fee and heritage by the sub-vassals called freeholders or _libere tenentes_, or occupied by the kindlie tenants and free farmers.

Such was their position prior to the death of Alexander the Third, the last king of the old dynasty, and a similar description would apply to those thanages which did not form part of the crown lands, but were held under earls of the ancient earldoms north of the Forth as part of their demesne,[312] or of the Church.

-----

Footnote 1:

De toto regno, de insula Manniæ et de omnibus aliis insulis ad dictum regnum Scotiæ pertinentibus necnon et de Tyndallia et de Penereth cum aliis omnibus juribus et libertatibus ad dictum dominum Regem Scotiæ spectantibus.—Rym. _Fœd._ ii. p. 266.

Footnote 2:

For this sketch of the attempts of the Scottish kings to obtain possession of these northern provinces, Hailes’s _Annals_ and Vol. I. of this work may be consulted.

Footnote 3:

Rymer’s _Fœdera_; Palgrave, _Records_, vol. i. pp. ii. 1.

Footnote 4:

Dominus autem rex, circa festum S. Michaelis (A.D. 1211) rediens inde cum manu valida, Malcolmum comitem de Fyfe Moraviæ custodem dereliquit.... Erat enim tunc temporis ipse (Willelmus Cumyn Comes de Buchan) Custos Moraviæ.—_Scotichron._ B. viii. c. lxxvi.

Footnote 5:

It is thus described by Dio in the reign of the Emperor Severus.

Footnote 6:

Adamnan, _Vit. Columbæ_.

Footnote 7:

Provinciis septentrionalium Pictorum, hoc est, eis quæ arduis atque horrentibus montium jugis ab australibus eorum sunt regionibus sequestratæ. Namque ipsi australes Picti, qui intra eosdem montes habent sedes.—_Hist. Ec._ lib. iii. cap. iv.

Footnote 8:

De situ Albaniæ quæ in se figuram hominis habet.—_Chron. Picts and Scots_, p. 135.

Footnote 9:

Brevis Descriptio regni Scotiæ.—_Ib_. 214.

Footnote 10:

Fordun’s _Chronicle of Scotland_, B. ii. cc. vii. and viii. vol. ii. pp. 36-7.

Footnote 11:

Coadunatus autem erat iste nefandus exercitus de Normannis, Germanis, Anglis, de Northymbranis et Cumbris, de Teswetadala, de Lodonea, de Pictis, qui vulgo Galleweienses dicuntur, et Scottis.—Ric. Hagustald. _ad an_. 1138.

Footnote 12:

Fordun’s _Chron._ vol. i. App. I.

Footnote 13:

Qui duce Reuda de Hibernia progressi vel amicitia vel ferro sibimet inter eos sedes quas hactenus habent, vindicarent.—_Bede_, i. c. 1.

Footnote 14:

Dicto namque Kentegerno pluribusque successoribus suis pie religionis perseverantia ad Deum transmigratis, diverse seditiones circumquaque insurgentes, non solum Ecclesiam et ejus possessiones destruxerunt, verum etiam totam regionem vastantes, ejus habitatores exilio tradiderunt. Sic ergo omnibus bonis exterminatis, magnis temporum intervallis transactis, diverse tribus diversarum nationem ex diversis partibus affluentes, desertam regionem prefatam habitaverunt; sed dispari genere et dissimili lingua et vario more viventes, haud facile [inter] sese consentientes, gentilitatem potius quam fidei cultum tenuere. Quos infelices dampnate habitationis habitatores, more pecudum irrationabiliter degentes, dignatus est Dominus, Qui neminem vult perire, propitiatione Sua visitare; tempore enim Henrici Regis Anglie, Alexandro Scotorum rege in Scotia regnante, misit eis Deus David, predicti Regis Scotie germanum, in principem et ducem; qui eorum impudica et scelerosa contagia corrigeret, et animi nobilitate et inflexibili severitate contumeliosam eorum contumatiam refrenaret.—Haddan and Stubbs, _Councils_, vol. ii. part i. p. 17.

Footnote 15:

This chronicle was printed from the Book of Aberpergwm in the _Myvyrian Archæology_, vol. ii., and reprinted, with a translation, in the _Archæologia Cambrensis_, vol. ix., Third Series, but its authority is very doubtful.

Footnote 16:

When Kentigern was preaching to the pagan people at Hoddam, in Dumfriesshire, the chief point of his sermon was to show them that their god Woden had been a mere man.—See Paper on Early Frisian Settlements, _Proceedings Ant. Scot._, vol. iv. p. 169.

Footnote 17:

Fourth Report of Hist. MSS. Com., App. p. 493.

Footnote 18:

_Chart. Scon_, p. 24.

Footnote 19:

Fordun, _Chron._ (Annals, IV.) ed. 1872, vol. ii. p. 251.

Footnote 20:

The names Dubhgall and Finngall must not be confounded, as is usually done, with the Christian names Dubhgal and Fingal, which belong to a large class of names ending with the syllable _gal_, signifying _valour_.

Footnote 21:

There is no foundation for the usual statement that the Sudreys meant merely the islands south of the Point of Ardnamurchan, which is contradicted by the language of the Sagas.

Footnote 22:

This is Munch’s opinion. See his _Chronicle of Man_, preface, p. xviii.

Footnote 23:

_Annals of the Four Masters_, vol. i. p. 634.

Footnote 24:

Dasent, _Saga of Burnt Njal_, vol. ii. pp. 12, 39, 40.

Footnote 25:

Goffraig Meranach ri Gall mortuus est.—_An. Ult._ _ad an_. 1095.

Atbath don mhortladh chetna (of the same pestilence died) Gofraidh Meranach tighearna Gall Athacliath agus na ninnsidh.—_Annals of the Four Masters_, vol. ii. p. 950.

Footnote 26:

_Chron. Picts and Scots_, p. 170.

Footnote 27:

See translation of _Book of Clanranald_ in the Appendix, No. I.

Footnote 28:

_Ib_.

Footnote 29:

_Chron. of Man_, _ad an_. 1140.

Footnote 30:

_Ib_.

Footnote 31:

_Ib_.

Footnote 32:

The author is indebted to W. M. Hennessey, Esq., of the Public Record Office, Dublin, for a copy of this poem, collated with one in his own possession. It is printed in the Appendix, No. II., along with a translation by Mr. Hennessey.

Footnote 33:

_Ise in Manannan sin robai i n-arainn ocus as friaside adberar Emain Ablach_. It was this Manannan that resided in Arann, and this is the place which is called Eamania of the apple-trees.—_Yellow Book of Lecain, Atlantis_, vol. iv. p. 228.

Footnote 34:

Principes Insularum.—_Chron. Manniæ._

Footnote 35:

_Chron. Manniæ_, _ad an_.

Footnote 36:

See _Act. Parl._, vol. i. p. 424.

Footnote 37:

Puis est treitez et acordez de mettre quatre poire des Justices en la terre Descoce et pur ce que les choses soient mesnees de meillur array et plus a honur et au profite de nostre seignur le Roy et al aisement du poeple est assentu que en LOENEYS soient deux Justices, cest asavoir monsieur Johan del Isle et monsieur Adam de Gurdon. En GA[LO]WAY monsieur Roger de Kirkpatrick et monsieur Wautier de Burghdone. Et pur LES TERRES DELA LA MER DESCOCE, cest asavoir ENTRE LA RIVERE DE FORTH ET LES MONTZ monsieur Robert de KETH et monsieur William Inge. Et pur LES TERRES DELA LES MONTZ Monsieur Reynaud le Chien et Monsieur Johan de Vaux du Counte de Northumber.—_Act. Parl. Scot._, vol. i. p. 120.

Footnote 38:

Fordun’s _Chron._, vol. ii. p. 38.

Footnote 39:

Bede tells us (B. i. c. 12) that the Picts and Scots were termed transmarine nations, not because they came from beyond Britain, but because they belonged to that remote part of Britain beyond the two firths. The word Transmarine Scotland is adopted as a convenient term for Scotland beyond the Firths of Forth and Clyde.

Footnote 40:

Defunctus est Palladius in Campo Girgin, in loco qui dicitur Forddun.—Colgan, _Tr. Th._ p. 13.

Footnote 41:

_Book of Rights_, pp. 17 and 49.

Footnote 42:

When the Pictish Chronicle tells us that the Norwegians were cut off in _Sraith-herne_ or Stratherne, the Irish Annals narrate the same event as a slaughter by the men of Fortren.—_Chron. Picts and Scots_, pp. 9. and 362.

Footnote 43:

Across the Stockfurde into Ros.—_Wyntoun._

Footnote 44:

_Chron. Picts and Scots_, p. 136.

Footnote 45:

693 _Bruidhe mac Bile Rex Fortrend moritur_.

739 _Tolarcan mac Drostan rex Athfhotla a bathadh la h’Angus_ (drowned by Angus).—_Tigh. Ib._ pp. 75, 76.

Footnote 46:

1020 Findlaec mac Ruaidri Mormaer Moreb.—_Tigh._ Findlaec mac Ruadri Ri Alban.—_An. Ult._

Footnote 47:

Et si ille qui calumpniatus est de catallo furato vel rapto vocat warentum suum aliquem hominem manentem inter Spey et Forth vel inter Drumalban et Forth habeat ab illo die quo calumpniatus fuerit xv. dies ad producendum warentum suum qui infra dictas divisas maneat ad locum sicut Rex David constituit in comitatu ubi calumpnia tus fuerit. Et si quis ultra illas divisas velut in Moravia vel in Ros vel in Katenes vel in Ergadia vel in Kentyre vocaverit warentos habeat omnes warentos illos quos habere debuit ab ultimo die quindecem dierum predictorum in unam mensem ad locum ubi ipse qui calumpniatus est de catallo furato vel rapto cum catallo adductus erit. Et si calumpniatus venerit pro warento suo qui maneat vel in Moravia vel in Ros vel in Katenes vel in _Ergadia que pertinet ad Moraviam_ nec illum habere poterit tunc veniat ad vicecomitem de Invirnisse, etc....

Item si calumpniatus vocaverit warentum aliquem in _Ergadia que pertinet ad Scotiam_ tunc veniat ad Comitem Atholie vel ad Abbatem de Clendrochard, etc.—_Act. Parl._ vol. i. p. 372.

Dominus Rex pro pace et stabilitate regni sui observanda statuit et ordinavit quod de terris subscriptis fient videlicet De _terra Comitis de Ros in Nort Argail_.—_Ib_. _ad an_. 1292, vol. i. p. 447.

Footnote 48:

The term Scotti Picti is here evidently a rendering of the name of _Gwyddyl Ffichti_, by which the Picts were known to the Welsh, and the allusion to their return from Ireland refers to the tradition of their settlement as given by Bede.

Footnote 49:

Reeves’s _Adamnan_, p. 397.

Footnote 50:

_Orkneyinga Saga_, p. 181.

Footnote 51:

_Chron. Picts and Scots_, p. 363.

Footnote 52:

_Ib._ p. 9.

Footnote 53:

_Chron. Picts and Scots_, p. 77.

Footnote 54:

See vol. i. p. 387, note 5. _War of the Gaedhil with the Gaill_, p. 153.

Footnote 55:

Olaf Tryggvesson’s Saga. _Collect. de reb. Alb._, p. 333.

Footnote 56:

_Chron. Picts and Scots_, 77, 78, and 367.

Footnote 57:

_Saxon Chron._ _ad an_. 1031. See also vol. i. p. 397, note 22.

Footnote 58:

Anderson’s _Orkneyinga Saga_, p. 28, note. The author has no doubt that Munch’s conjecture is correct. The expression ‘where Scotland and England meet’ must not be too strictly construed, but it evidently places the locality on the southern frontier of Scotland. That Gallgaedhel is geographically Galloway appears from this, that the deaths of Roland and Allan, Lords of Galloway, which took place in 1199 and 1234, are recorded in the Irish Annals under the title of _Ri Gallgaedhel_.

Footnote 59:

1040 Donnchad rex Scotiæ in autumno occiditur a duce suo Macbethad mac Finnlaech, cui succesit in regnum.—(Marianus Scotus.) _Chron. Picts and Scots_, p. 65.

Footnote 60:

_Collect. de reb. Alb._, pp. 345, 346.

Footnote 61:

_Col. de Reb. Alb._, p. 346.

Footnote 62:

Bower says of Alexander I.—‘Quod patruus suus comes de Gowry dedit sibi ad donum, ut moris est in baptismo, terras de Lyff et Invergowry’ (_Scotichron._ B. v. chap. xxxvi.), which shows that during the life of Malcolm III. one of his brothers possessed Gowry. Then we find that Madach, who ruled over Atholl as earl in the reign of Alexander I. and David I., was the son of Melmare, brother of Malcolm III., and his son Edelradus is designated in a charter of Admore in Kinross-shire ‘Abbas de Dunkelden et insuper comes de Fife’ (_Chart. St. Andrews_, p. 115), thus uniting the possession of the abbacy of Dunkeld, the patrimony of this royal family, with the earldom of Fife.

Footnote 63:

_Chron. Picts and Scots_, pp. 370, 372.

Footnote 64:

_Dobharcu_, of which Dobharcon is the genitive form, signifies literally water-dog, and is the name usually given to an otter.

Footnote 65:

The words _agus ise Mormaer agus ise Toisech_. This has been translated as if it meant that Mondac was both Mormaer and Toisech, while Comgall is left without a designation, but the above is the obvious meaning.

Footnote 66:

In the above notice from the Book of Deer the reader is referred to the edition of it printed for the Spalding Club under the able care of the late Dr. John Stuart. The facts they disclose are given here merely, and the explanation must be reserved to a subsequent chapter.

Footnote 67:

_Chart. Scon_, p. 2.

Footnote 68:

Ailred De bello apud Standardum, printed in appendix to Fordun, _Chron._, vol. i. p. 443.

Footnote 69:

_Orkneyinga Saga_, p. 86.

Footnote 70:

Compare the subscriptions to the Scone charter, ‘Ego Alexander Dei Gratia Rex Scotorum propria manu mea hec confirmo ... ego Sibilla Dei Gratia Regina Scottorum propria manu hec confirmo, ego Gregorius episcopus, etc., confirmo, ego Cormacus episcopus, etc., confirmo, ego Beth comes similiter, ego Gospatricius Dolfini assensum prebeo, ego Mallus comes assensum prebeo, ego Madach comes assensum prebeo, ego Rothri comes assensum prebeo, ego Gartnach comes assensum prebeo, ego Dufagan comes assensum prebeo (_Chart. Scon_, p. 2), with the following Saxon charters:—‘Ego Æthelbalth (Mercensium Rex) hanc donationem meam subscripsi. Ego Uuor Episcopus consensi et subscripsi. Piot abbas. Uuilfirth comes. Sigibed comes. Oba comes. Beorcol comes. Heardberht frater Regis Eadberht comes, etc. Or another in 823—‘Ego Eagbertus Rex Anglorum hanc donationem meam, etc., confirmavi et subscripsi. Ego Ætheluulf Rex consensi et subscripsi. Ego Uulfred Archiepiscopus consensi et subscripsi. Ego Wigthegn Episcopus consensi et subscripsi. Ego Ealhstan Episcopus consensi et subscripsi. Ego Bearnmod Episcopus consensi et subscripsi. Ego Wulfhard Dux consensi et subscripsi. Ego Monuede Dux consensi et subscripsi. Ego Osmod Dux consensi et subscripsi. Ego Dudda Dux consensi et subscripsi, etc.—Palgrave, _Rise and Progress of the English Commonwealth_, vol. ii. pp. ccxix. ccxx.

Footnote 71:

_Chart. of Dunfermlin_, p. 4.

Footnote 72:

_Ib_. p. 16.

Footnote 73:

_Chart. of St. Andrews_, pp. 116, 117.

Footnote 74:

Mr. Robertson, in his valuable work of _Scotland under her Early Kings_, considers that Beth in the Scone charter is written by a clerical error for Heth, that he is the same person with the Ed and Head of David’s charters, and was Earl of Moray, and father of that Angus, Earl of Moray, defeated and slain in 1130 (vol. i. pp. 104, 190). This opinion is mainly grounded on the fact that Wimund, when he claimed to be the son of Angus, called himself Malcolm MacHeth, but Beth appears in the same form in a subsequent charter in the Scone chartulary (p. 4), and an identification, which requires us to suppose that the name has been miswritten in two charters, is not admissible. Moreover, it is not likely that an Earl of Moray should witness the foundation-charter of a monastery erected as a thank-offering for the defeat of the men of Moray in that year. As the great province of Fif consisted of the two old districts of Fyfe and Fothrithi, it is not impossible that there may at first have been an Earl connected with each, and that Beth, occupying here the leading place in which the subsequent Earls of Fife are invariably found, may have been earl along with Edelrad, and that the latter is the Ed who, along with Constantin, witnesses the earliest charter of King David, as there is a circumflex through the d of Ed, which implies that some letters after it have been omitted. This would account for Constantin appearing in the charter of Edelrad as if he were his contemporary. It may be observed that the Admore which Edelrad grants was in Fothrif, while Constantin appears in connection with Kirkcaldy in Fife, and that the name of the Thane of Falkland being Macbeath, shows that the name Beath was also connected with Fife. Head may certainly have been the Earl of Moray who preceded Angus, and gave his name to the family of MacHeth.

Footnote 75:

See charter by Alexander the Second to Earl Malcolm of Fife, son of Duncan, Earl of Fife, of the comitatus de Fyfe. ‘Sicut Comes Duncanus frater suus comitatem illum tenuit ... Sicut carta regis David de predicto comitatu facta comiti Duncano patri ejus.’—_National MSS._ vol. i. p. 28.

Footnote 76:

Fordun, _Chron._ (Annals, III.) vol. ii. p. 251; and see note, p. 430.

Footnote 77:

‘Ingibiorg, the mother of the earls,’ married Melkolf, king of Scotland, who was called Langhals. Their son was Dungad, king of Scotland, the father of William, who was a good man. His son was William the Noble, whom all the Scots wished to take for their king.—_Collect. de Reb. Alb._ 40, p. 346.

Footnote 78:

Wyntoun, _Chron._ B. vii. c. vii.

Footnote 79:

Memorandum quod Comes de Holand processit de sorore domini Regis Willelmi ut cognitum est per anticos regni Scotie quod totus comitatus de Ros, collatus fuit in maritagio cum predicta sorore domini Regis Willelmi et predictus comitatus elongatus fuit a predicto comite de Holand sine aliqua ratione et sine merito suo vel antecessorum suorum ut injuste sicut recognitum est.—Palgrave, _Documents and Records_, p. 20.

Footnote 80:

The principal act of Gilchrist’s life was the foundation of the Priory of Monimusk, and Thomas, the Doorward, confirms the grant by his grandfather and his mother. His son Alan declares, in 1257, that Morgund and his son Duncan were illegitimate, and in 1291 the Earl of Mar complains that when William the Lion restored the Earldom to Morgund, ‘deficiebant tres centum librate terre.’—_Ant. Ab. and Banff_, vol. iv. p. 151.

Footnote 81:

This deed has hitherto been known only by its being printed by Selden in his _Titles of Honour_; but the document from which he printed was found among his papers, and is now in the library at Lincoln’s Inn. See Appendix No. IV. for an account of this charter.

Footnote 82:

Fordun, _Chron._ (Annals, XXX.) vol. ii. p. 276.

Footnote 83:

_Chart. of Paisley_, p. 167. The expressions used here imply that David held the earldom only for a time. The first mention of another earl of Lennox is in 1193, when Eth, son of the earl of Lennox, witnesses a charter in the _Liber de Melrose_, vol. i. p. 22, and that his name was Aluin appears from the _Chartulary of Glasgow_, vol. i. p. 86, where we find, between 1208 and 1214, a charter by Alewinus comes de Levenax filius et heres Alewini comitis de Levenax.

Footnote 84:

Fordun, _Chron._ (Annals, XXIX.), p. 276.

Footnote 85:

Willelmi Rishanger _Chronica et Annales_, Master of the Rolls Series, p. 344. The words ‘de chef mes’ are erroneously translated by the editor ‘of chief of the house,’ instead of ‘chief messuage.’

Footnote 86:

Rishanger, _Chronica_, pp. 355, 356, 357.

Footnote 87:

The decision is thus given in the arguments adduced by Baliol in support of the position that the kingdom was not partible. Printed by Palgrave (_Doc._, p. 40), unfortunately the document is very imperfect, but it appears to place the old Celtic earldom in the same category with the offices of seneschals, marischals, constables, and foresters:—

‘Ausi la Countee de Asheles demora a Isabele la einzne ... puisne n y aveit vivaunt Isabel l einzne soir e le isseue de li. E fet ... lavandit Isabel en pleyn Parlament devaunt le Rey Alexaundre fiz ... son counseil q ele ne deveit ceo par ... er por ceo qe Countee nest pas partable ... qe plus ... es ce ... vynt.... Escoce Seneschaucie Mareschaucie Conestablerie Foresterie. e ... einzne ... al isseue ... einznesce autres offices e baillies semblable qe sount de la coroune.’

Footnote 88:

Pro dolor! Patricius de Athedle filius Thomæ de Galwedia et comitis de Adthedle, juvenis egregius et quantum ad humanam oppinionem omni curiali sapientia et facescia imbutus, apud Hadingtone in hospitio suo de nocte postquam se sopori dedisset, per consilium quorundam malignancium nequiter perimitur, cum duobus sociis suis.... Post cujus tamen obitum, David de Hastinges accepit ejus comitatum provenientem sibi ex parte uxoris sue, que erat matertera juvenis occisi.—_Chron. Mel._

Footnote 89:

The history of these ancient earldoms is very inaccurately given by the Peerage-writers, and none more so than that of the earldom of Caithness. These errors will be found corrected in Appendix No. V.

Footnote 90:

Palgrave, _Documents_, pp. 14, 15.

Footnote 91:

Vol. i. p. 483.

Footnote 92:

Vol. i. p. 486.

Footnote 93:

See charter by David II., confirming in 1368 to Archibald Campbell, son of Colin, the lands of Craignish, Melfort, and others, with all the liberties thereof, as freely as Duncan Mac Duine, progenitor of the said Archibald Campbell, enjoyed the same in the barony of Lochaw, or other lands belonging to him.—_His. Com._, 4 Report, p. 40. The first Campbell on record is Gillespie Campbell in 1266, and this Duncan was his grandfather.

Footnote 94:

Rymer’s _Fœdera_, vol. i. p. 257.

Footnote 95:

Fordun, _Chron._, ed. 1874, vol. ii. p. 289, and note p. 436.

Footnote 96:

Quo tempore septem Comites Scotiae, viz. de Bowan, de Meneteth, de Stradeherne, de Lewenes, de Ros, de Athel, de Mar, ac Johannes filius Johannis Comyn de Badenau, collecto exercitu valido in valle Annandie, feria secunda Paschæ Angliam ingressi, vastabant omnia cæde et incendio, et non parcentes ætati vel sexui venientes Carleolum urbem, ipsam obsidione cinxerunt.—Willelmi Rishanger _Chronica_, p. 156.

Footnote 97:

Willelmi Rishanger _Chronica_, pp. 159, 160.

Footnote 98:

Rymer’s _Fœdera_, ii. p. 471.

Footnote 99:

_Chron. Picts and Scots_, p. 291.

Footnote 100:

Fordun, _Chronicle_, vol. ii. p. 177.

Footnote 101:

_Regiam Majestatem_, p. i.

Footnote 102:

This word _feodofirma_, called feu-farm in Scotland and fee-farm in England, is usually understood as meaning what is inconsistently called a hereditary lease, but it was not so at least in Scotland. It was a grant of the _feodum_ or fee of the estate, and not merely of the usufruct, burdened with an annual payment of a _firma_ or _census_, instead of military service.—See Fordun, vol. ii. p. 414 note.

Footnote 103:

This subject will be more fully discussed in a subsequent chapter.

Footnote 104:

_Chart. Aberdeen_, vol. i. p. 55.

Footnote 105:

Dominus Rex pro pace et stabilitate regni sui observandus statuit et ordinavit quod de terris subscriptis fient [vicecomitatus] videlicet. De terra comitis de Ros in Nort Argail, Terra de Glenc[elg] Terra Regis de Skey et Lodoux, octo davaux de terra [Garmoran] Egge et Rumme Guiste et Barrich cum minutis insulis et vocetur vicecomitatus de Skey.

De terris Kinnebathyn Ardemuirich Bothelve, Terra Alexandri de Argadia, Terra Johannis de Glenurwy, Terra Gilberti Mc[Nauchton] Terra Malcolmi M‘Ivyr Terra Dugalli de Cragins Terra Johannis McGilcrist Terra Magistri Radulphi de Dunde, Terra Gileskel M‘Lachl[an] Terra Comitis de Meneteth de Knapedal, Terra Anegus filii Dovenaldi Insularum et Terra Colini Cambel et vocetur vicecomitatus de [Lorn].

De terris de Kentyr cum omnibus tenentibus terras in eadem. Terra Lochmani McKilcolim McErewer Terra Enegus McErewer, Terra de ... Insula de Boot, Terra Domini Thomæ Cambel, et Terra Dunkani Duf et vocetur vicecomitatus de Kentyr.—_Acta Parl._ vol. i. p. 447.

Footnote 106:

The account of these supposed colonies in all their subsequent elaboration will be found in the _Annals of the Four Masters_, and in Keating’s _History of Ireland_, which contains a very accurate representation of the Irish legends in regard to them.

Footnote 107:

These names have a meaning connected with land, and probably personify the different kinds of tenure by which the land was held. _Er_ means noble; _Orba_, inheritance; _Fearann_, land in general; and _Feargna_, chieftainship.

Footnote 108:

The word meant is _Lediaith_. In Welsh, identity of language was implied by _Cyfiaith_, dialectic difference by _Lediaith_, and difference of language by _Anghyviaith_.

Footnote 109:

_Chron. Picts and Scots_, pp. 47, 48.

Footnote 110:

In referring to the Cymric legends it is necessary to be careful as to the source from which they are derived. The literature of Wales has been unfortunately tainted to a large extent by spurious documents professing to be old, but in the main the creation of the eighteenth century, when a school of Welsh antiquaries existed, desirous of reproducing what they considered a sort of mystic Druidism supposed to have been handed down from pagan times by a successor of Baedi, and who were little scrupulous as to the means by which they promoted their object. Among the documents emerging from this school were the so-called Historical Triads, which the author rejects as spurious. A valuable and interesting work, the _Mabinogion_, by Lady Charlotte Guest, containing the ancient Welsh prose tales preserved in the Red Book of Hergest, unfortunately includes one of these spurious pieces, the Hanes Taliessin, among the genuine tales. The author announced in his _Four Ancient Books of Wales_ that this tale, though included in those said to be taken from the Red Book of Hergest, is not to be found in that MS., and is certainly a manufacture of the last century; while more spurious poems, attributed to Taliessin but not to be found in the Book of Taliessin, have been introduced into it, though not forming a part of it. He regrets to see that this spurious document is still included in the new edition of the _Mabinogion_ among the tales said to be taken from the Red Book of Hergest, as if the imposture had never been detected. It shows how difficult it is to purge the early historical literature of any country of such spurious matter when once it has been accepted as genuine.

Footnote 111:

_Four Ancient Books of Wales_, vol. i. p. 276.

Footnote 112:

Gildas, _Hist._ c. 25.

Footnote 113:

Nennius, _Hist._ c. 42.

Footnote 114:

Nennius, c. 56.

Footnote 115:

This document is printed with a translation in the _The Four Ancient Books of Wales_, vol. ii. p. 455.

Footnote 116:

See _Four Ancient Books of Wales_, vol. i. c. x., Cumbria, or the Men of the North, for a fuller account of these traditionary origins.

Footnote 117:

The modern Welsh antiquaries in general regard the Picts as belonging to the Cymric race and speaking a Welsh dialect, but in this they run counter to their own early traditions, for both in their old poems and in prose documents there is a consensus as to their being a foreign race to the Cymry, and belonging to the people termed by them Gwyddyl.

In the poems they are usually termed Brithwyr and Peithwyr, but also Gwyddyl Ffichti; thus the early Pictish inhabitants of Bernicia are thus alluded to—

Five chiefs then will he Of the Gwyddyl Ffichti, Of a sinner’s disposition, Of the race of the knife. _Four Ancient Books of Wales_, vol. i. p. 432.

And in one poem the epithet of _Anghyfiaeth_, that is, speaking a language different from the Cymric, is clearly applied to them (_ib_. p. 433 and note). Thus in the Triads of Arthur, which are genuine, they are included in the three foreign races called ‘Three oppressions came into this island, and did not go out of it.’ The second is ‘the oppression of the Gwyddyl Ffichti, and they did not again go out of it.’ The third was the oppression of the Saxons (_ib_., vol. ii. p. 465). In order to avoid the force of this, the term Gwyddyl Ffichti is usually translated Irish Picts, and supposed to refer to those in Ireland only; but the epithet Gwyddyl was certainly used in the larger sense of the race wherever found, and it is clear from all the passages that the same people are referred to who are known as the Picts of Britain. If they had been termed Cymry Ffichti, would this school of Welsh antiquarians have tolerated an assertion that they were not of the Cymric race?

Footnote 118:

Angles and Galwydel, Let them make their war.— _Four Ancient Books of Wales_, vol. i. p. 284.

Footnote 119:

Nemedius, inter posteros ejus McCailin Moir agus MacLeoid.—MS. 1467. See also _Ulster Archæological Journal_, vol. ix. p. 319.

Footnote 120:

They will be found in Lady Ferguson’s excellent little work, _The Story of the Irish before the Conquest_, and in Mr. Standish O’Grady’s interesting work just published, _The History of Ireland_, vol. i. _Heroic Period_. The interest of this latter work is, in the author’s opinion, greatly detracted from by his having unfortunately adopted a practice, which cannot be too strongly deprecated, of spelling Irish proper names phonetically. There is nothing gained by it, as the form of the name has quite as barbarous an appearance as when the proper orthography is retained, the identity of the persons meant is lost, it is misleading as there is no uniform pronunciation of these names by those who speak the vernacular Gaelic, and the travesty of the Irish names is equally offensive to good taste and to sound judgment. In other respects this little work has great merits.

Footnote 121:

_Chronicle of the Picts and Scots_, pp. 24, 45, 318, 322.

Footnote 122:

_Annals of the Four Masters_, vol. i. p. 49.

Footnote 123:

Genealach Corca Laidhe.—_Miscellany of the Celtic Society_, p. 10.

Footnote 124:

_Ranta on Athcliath cochele ittir Cond. c. Cathach agus Mogh Nuadhad_ cui nomen erat Eogan.—_Ad an._ 165.

Footnote 125:

Bede, _Ec. Hist._, lib. iii. cap. iii.

Footnote 126:

_Annals of the Four Masters_, vol. i. p. 113.

Footnote 127:

_Indarba Ullad a h-Erend a Manand la Cormac hui Cond. As de ba Cormac Ulfada dia ro cuir Ul. a fadh_.—_Ad an._ 254.

Footnote 128:

Genealach Corca Laidhe.—_Misc. Celtic Soc._, pp. 4, 5.

Footnote 129:

_Ib_. p. 67.

Footnote 130:

_Ibid_. p. 5.

Footnote 131:

See _Annals of the Four Masters_, under dates, and Keating’s _History of Ireland_. Tighernac under 322, 326, 332.

Footnote 132:

Cormac’s Glossary, edited for the Irish Arch. Society by Mr. Whitley Stokes, p. 111.

Footnote 133:

_Annals of the Four Masters._

Footnote 134:

_Tribes and Customs of Hy Fiachrach_, p. 19.

Footnote 135:

From the Book of Leinster. The substance is given in O’Curry’s _Lectures on the MS. Materials_, p. 287.

Footnote 136:

Dean of Lismore’s Book, p. 157.

Footnote 137:

This poem is preserved in McFirbis’ _Book of Genealogies_, p. 410, where the prose tales will also be found. The original of the poem is printed in the Appendix No. VI.

Footnote 138:

McFirbis, in his Genealogical MS., says—‘This account I found among the Books of Fardorough McFirbis, who was a sennachaidhe well acquainted in Alban and much frequented it.’ He lived about 1560.

Footnote 139:

Fergus filius Eric ipse fuit primus qui de semine Chonare suscepit regnum Alban.—_Chron. Picts and Scots_, p. 130.

Footnote 140:

_Chron. Picts and Scots_, p. 18.

Footnote 141:

_Stat. Acc._ (1791-99), vol. xiv. p. 602.

Footnote 142:

Cath a sreith in terra Circin inter Pictones invicem in quo cecidit Bruidhi mac Mailchon.—_Tigh. Chron. Picts and Scots_, p. 76.

Footnote 143:

_Chron. of the Picts and Scots_, pp. 320 and 526.

Footnote 144:

O’Curry, _MS. Materials of Ancient Irish History_, p. 319. The story of the children of Uisneach, from which the quotations are here made, will be found in the _Transactions_ of the Gaelic Society of Dublin.

Footnote 145:

The old Gaelic names of the leading physical features of the Highlands have been so perverted by the numerous guide-books to which the attraction of the country to tourists has given rise, that the older forms well known some thirty years ago are almost gone. The writers of these books seem to have invented an orthography of their own, which they suppose to represent Gaelic words, but are neither one thing nor another. One of their most successful inventions is that of the _Cuchullin_ hills in Skye.

Footnote 146:

A translation from the oldest copy of it will be found in the introduction to the Dean of Lismore’s Book, p. lxxxvii.

Footnote 147:

_Ib_., p. lxxxviii. note.

Footnote 148:

_Chronicles of the Picts and Scots_, p. 319.

Footnote 149:

Cormac’s Glossary, edited by Mr. Whitley Stokes, p. 72.

Footnote 150:

The form of this name as we find it in St. Berchan’s prophecy is identical with that of Erin or Ireland.—See _Chron. Picts and Scots_, pp. 84, 88, and 98.

Footnote 151:

_Chron. Picts and Scots_, p. 165.

Footnote 152:

Fordun’s _Chronicle_, ed. 1874, vol. i. pp. 227, 430.

Footnote 153:

There is a charter by Malcolm the Fourth to the canons of Scone, ‘in principale sede regni nostri fundata,’ in which he conveys to them the titles ‘de quatuor maneriis meis de Gouerin scilicet de Scon, et de Cubert et de Fergrund et de Stratherdel.’—_Chr. of Scone_, p. 6.

Footnote 154:

_Chron. Picts and Scots_, pp. 9 and 21.

Footnote 155:

_Ancient Laws and Institutes of England_, edited by Benjamin Thorpe, 1840.

_Ancient Laws and Institutes of Wales_, edited by Aneurin Owen, 1841.

Footnote 156:

_Ancient Laws of Ireland_, vol. i., vol. ii., vol. iii.

Footnote 157:

See _Acts of the Parliaments of Scotland_, edited by Cosmo Innes, vol. i.

Footnote 158:

Sir Henry Maine, in his _Early History of Institutions_, considers that the unit was the Finé or sept, several of which united to form a tribe; but it will be shown that the Tuath or tribe preceded the Finé or clan.

Footnote 159:

See the author’s Introduction to the Dean of Lismore’s Book, pp. xvii. and xviii.

Footnote 160:

The legendary history of Ireland contains traces of the higher position of the female.

Footnote 161:

_The Book of Rights_, printed by the Celtic Society, p. 174.

Footnote 162:

_Brehon Laws_, vol. iv. p. 341.

Footnote 163:

The influence of the Church in this respect is recognised in the Welsh laws.

Footnote 164:

This account of the ranks in the tribe is taken from the _Crithgabhlach Brehon Laws_, vol. iv. p. 299.

Footnote 165:

Quoted in Sir H. S. Maine’s _Early History of Institutions_, p. 114.

Footnote 166:

_Ibid._ vol. ii. p. 345.

Footnote 167:

_Ibid_. iv. p. 321.

Footnote 168:

Maine, vol. iv. p. 337.

Footnote 169:

_Ibid_. iv. p. 331.

Footnote 170:

_Ibid_. iv. p. 373.

Footnote 171:

See _Collectanea de Rebus Hibernicis_, vol. i., No. III., and Appendix to the _Battle of Maghrath_.

Footnote 172:

_Ancient Laws of Ireland_, vol. iv., _Crithgablach_.

Footnote 173:

_Tribes and Customs of Hy Many_, p. 13.

Footnote 174:

_Early History of Institutions_, p. 23.

Footnote 175:

Cormac’s _Glossary_, voce _Clethac_, p. 29. Mr. O’Curry gives the following illustration:—A fine of three Cumals, or twenty-one cows, might be paid thus:—

10 Ri Seoit = 10 cows. 16 Samaisc = 8 cows. 12 Seoitgabla = 3 cows.

Footnote 176:

Published by Celtic Society, p. 107.

Footnote 177:

_Annals of the Four Masters_, i. p. 53.

Footnote 178:

_War of the Gaedhil with Gaill_, p. 49.

Footnote 179:

_Irish Topographical Poems_, p. 9.

Footnote 180:

_Irish Topographical Poems_, p. 1.

Footnote 181:

_Miscellany of the Celtic Society_, p. 49.

Footnote 182:

_Tribes and Customs of Hy Fiachraich_, p. 453.

Footnote 183:

Mr. O’Donovan explains _Duthaidh_ as a tract of country hereditary in some family; _Duthchas_ as a hereditary estate or patrimonial inheritance; _Duthchasach_ an inheritor or hereditary proprietor.—_Ib_. p. 149.

Footnote 184:

_Tribes and Customs of Hy Fiachriach_, pp. 149-159.

Footnote 185:

_Customs of Hy Many_, preface, p. 4.

Footnote 186:

_Customs of the Hy Many_, Preface, p. 19.

Footnote 187:

_Chorographical Description of West Connaught_, p. 368. The beekeepers were important functionaries, as honey supplied at that time the place of sugar.

Footnote 188:

_Ib_. p. 139.

Footnote 189:

_Cat. Stowe MSS._ vol. i. p. 168.

Footnote 190:

Reeves, _Arch. of Down and Connor_, pp. 330, 345.

Footnote 191:

Letter of Sir John Davis, _Coll. de Rebus Hibernicis_, vol. i. pp. 140, 152.

Footnote 192:

Book of Kells, _Irish Arch. Misc._, vol. i. pp. 139, 143.

Footnote 193:

_Ancient Laws of Ireland_, vol. iv. p. 349.

Footnote 194:

There is an elaborate account of the position of the _Ceile_ in the _Ancient Laws_, vol. ii.; but the position of the _Daor Ceile_ is shortly and clearly given in Cormac’s _Glossary_, voce _Aicillne_, p. 13.

Footnote 195:

_Ancient Laws_, vol. iv. pp. 39, 287.

Footnote 196:

_Ancient Laws_, vol. iii. p. 11; vol. iv. pp. 39, 43.

Footnote 197:

_Ib_. vol. iv. p. 321.

Footnote 198:

_Ancient Laws_, vol. iv. p. 283. The word _Gabail_ has retained its technical meaning here in Scotch Gaelic, where it signifies a farm or lease, and _Gabbailtaiche_ is a tacksman or superior farmer.

Footnote 199:

_Ancient Laws_, vol. i. p. 261.

Footnote 200:

_Ibid_. vol. i. p. 275.

Footnote 201:

_Ancient Laws of Ireland_, vol. iii. pp. 330-35.

Footnote 202:

_Ibid_. vol. ii. p. 163.

Footnote 203:

O’Donovan’s Supplement to O’Reilly’s _Irish Dictionary_.

Footnote 204:

_Ancient Laws of Ireland_, vol. i. p. 183.

Footnote 205:

_Ib_. p. 259.

Footnote 206:

_Ib_. p. 273.

Footnote 207:

_Ancient Laws of Ireland_, vol. iv. p. 43.

Footnote 208:

_Ibid_. p. 286.

Footnote 209:

_Ancient Laws of Ireland_, vol. ii. p. 269.

Footnote 210:

_Ancient Laws of Ireland_, vol. ii. pp. 279, 281.

Footnote 211:

_Ancient Laws of Ireland_, vol. ii. pp. 209, 211.

Footnote 212:

_Ib_. pp. 223-5.

Footnote 213:

_Ancient Laws of Ireland_, vol. iii. p. 309.

Footnote 214:

_Ancient Laws of Ireland_, vol. iv. pp. 325, 326.

Footnote 215:

_Ancient Laws of Ireland_, vol. iv. pp. 373, 375.

Footnote 216:

_Ancient Laws of Ireland_, vol. iii. pp. 495, 497.

Footnote 217:

The word _Lite_ is translated in the Brehon Laws ‘stirabout,’ but this is a term unknown out of Ireland, and the Scotch correlative ‘porridge’ has been substituted.

Footnote 218:

_Ancient Laws of Ireland_, vol. ii. pp. 147-193.

Footnote 219:

Genealach Corca Laidhe, _Miscellany of the Celtic Society_, pp. 31, 49.

Footnote 220:

_Genealogies, Tribes, and Customs of Hy Fiachraich_, pp. 6-11.

Footnote 221:

_Description of West Connaught_, p. 127.

Footnote 222:

Reeves’s _Eccles. Antiquities of Down and Connor_, pp. 332, 345.

Footnote 223:

Reeves’s _Down and Connor_, p. 348.

Footnote 224:

_Collect. de Reb. Hib._, vol. i. pp. 164, 169.

Footnote 225:

_Ancient Laws of Wales_, p. 86.

Footnote 226:

_Ancient Laws of Wales_, pp. 84, 268.

Footnote 227:

_Ancient Laws of Wales_, 82, 5, 6; 697, 5.

Footnote 228:

_Ancient Laws of Wales_, pp. 96, 97. It is not quite clear whether the length of an _Erw_ is thirty times its breadth, or thirty times the long yoke. In the latter case the _Erw_ would contain only 1706 square yards, or rather more than the third of an acre.

Footnote 229:

_Ancient Laws of Wales_, p. 81.

Footnote 230:

_Ib_., p. 263.

Footnote 231:

_Ancient Laws of Wales_, p. 375.

Footnote 232:

_Myvyrian Arch._, vol. iii. p. 298, No. 80.

Footnote 233:

_Ib_., pp. 88, 96, 573.

Footnote 234:

_Welsh Laws_, 394, 699.

Footnote 235:

_Four Ancient Books of Wales_, vol. ii. p. 461.

Footnote 236:

_Ancient Laws_, p. 266.

Footnote 237:

_Ancient Laws_, p. 605. The form of the figure has been slightly altered, in order to bring it to the same form as that shown in the Irish system.

Footnote 238:

_Ancient Laws_, pp. 198, 199.

Footnote 239:

_Ancient Laws_, p. 95.

Footnote 240:

_Ib_., p. 98.

Footnote 241:

Diodorus Siculus, lib. v. c. 21.

Footnote 242:

Strabo, lib. iv.

Footnote 243:

Cæsar, _De Bello Gallico_, v. 12.

Footnote 244:

Solinus, c. 22.

Footnote 245:

Xifiline, lib. lxxvi. s. 12-16.

Footnote 246:

These passages are taken from the edition of the _Amra Choluim Chilli_, with a translation by Mr. O’Beirne Crowe.

Footnote 247:

_Miscellany of the Celtic Society_, p. 61.

Footnote 248:

The word _Gialla_ means a hostage, and the Irish district is said to have been so named because the hostages of the conquered people were fettered with golden fetters.

Footnote 249:

_Chronicles of Picts and Scots_, pp. 308-314. The numbers are given as stated in the tract, but seem not quite correct. Thus there is an enumeration of the houses of the Cinel Angusa in connection with the lands occupied by them, which amount to 330 in place of 430, and the armed muster is not in proportion to the size of the tribe as shown by the number of houses. It is probable those of the Cinel Gabran and Cinel Angusa have been transposed, and that the 500 belongs to the former, the 300 to the latter.

Footnote 250:

_Hist. MSS. Rep._ v., p. 613; Robertson’s _Index_, pp. 39, 57.

Footnote 251:

‘Taisius (_Toisech_) apud nos idem est sensu literali ac Capitaneus seu precipuus dux.’—O’Flaherty, _Ogygia_.

Footnote 252:

‘Thanus apud priscos Scotos sive Hybernos dicitur Tosche.’—_Regiam Majestatem_, B. iv. c. 31; note by Sir John Skene.

Footnote 253:

Domania regis et Thanagia regis idem significant. Ass. reg. Da. c. Statuit Dominus, 38.—Skene, _De Verborum Significatione_.

Si vero in dominicis vel Thanagiis domini regis, etc. Stat. Alex. II.—_Acts of Parliament_, i. 399.

Footnote 254:

_Acts of Parliament_, i. p. 375.

Footnote 255:

‘Abstractione sanguinis que dicitur Bludwytys.’—_Chart. of Lennox_, p. 44. ‘Bludwytys que Scotice dicitur _fuilrath_.’—_Ib_. p. 45.

Footnote 256:

_Acts of Parliament_, vol. i. p. 663.

Footnote 257:

Thus the son of an _Aire forgall_ was an _Aire ard_.—_Brehon Laws_, vol. i. p. 77.

Footnote 258:

_Brehon Laws_, vol. i. p. 49; Petrie’s _Antiquities of Tarahill_, p. 199; _Chron. of Picts and Scots_, p. 319.

Footnote 259:

_Acts of Parl._, vol. i. p. 640.

Footnote 260:

_Acts of Parliament_, vol. i. p. 398.

Footnote 261:

_Acts of Parliament_, vol. i. p. 655.

Footnote 262:

_Liber de Scon_, p. 24.

Footnote 263:

_Chart. Dunf._, pp. 6, 17. The two classes are mentioned in a charter by Thomas, Earl of Mar, in 1359, of the lands of Rotheneyk, ‘cum nativis et fugitivis dictarum terrarum.’—_Ant. Aberd. and Banff_, vol. iv. p. 716.

Footnote 264:

These names seem to be derived from the verb _Cum_, tene, retine; and in the one case _forba_ or _orba_, terra, and in the other _lamh_, manus, with or without the preposition _ar_, upon. The word _Cum_ is no doubt the root of the Irish _Cumal_, the primary meaning of which was a female slave.

Footnote 265:

_Acts of Parl._, vol. i. p. 381.

Footnote 266:

The word Davach has been supposed to be derived from _Damh_ an ox, and _Achadh_ or _Ach_ a field, and thus to mean oxgang; but the Book of Deer shows this to be false etymology. The word there in its oldest form is _Dabach_, and the last syllable is inflected (forming in gen. pl. _acc_, dual _Dabeg_), which it could not be if it meant _Ach_ a field. The word is also applied in Ireland to the largest liquid measure, and appears in this sense in the old Irish Glosses, ‘Caba, _i.e_. Cavea, _Dabhach_, genitive _Dabhca_’ (p. 63).

Footnote 267:

Dasent’s _Saga of Burnt Njal_.

Footnote 268:

_Chart. of Lennox_, pp. 34, 36, 38. Mr. W. Fraser, in his first report on the Montrose papers, notes a charter by Alexander of Dunhon to Sir Patrick of Graham of three quarters of a carucate of land of Akeacloy nether, _which in Scotch is called Arachor_ (_Hist. MSS. Rep. I._ 166); but in his second report quotes two charters by the Earl of Lennox confirming to Sir David of Graham the half-carucate of land of Strathblahane, where the church called Arathor in the one charter and Letharathor in the other was built, but these charters have obviously been misread. It was not the church but the land conveyed that was called _Arathor_ or _Letharathor_, that is, carucate or half-carucate (_ib_. iv. 386).

Footnote 269:

_Antiq. Aberdeen and Banff_, vol. iv. p. 690, where a dimidia carucata, or half-ploughgate, is said to contain ‘quater xx acras cum crofto habiente vii acras et communi pastura.’ In the Chartulary of Arbroath we have ‘una carrucata terræ mensurata et arabilis cum commune pastura,’ p. 7.

Footnote 270:

_Charters of Holyrood_, p. 44.

Footnote 271:

_Chart. of St. Andrews_, p. 114.

Footnote 272:

‘The tenants, particularly of arable farms, have but small possessions, only the fourth part of a farm, or what is called here a Horsegang’ (_Stat. Acc. of Kilmartin_, viii. 97). In the Craignish papers it is termed a quarter or Horsegang, and an eight shilling and eight-penny land.

Footnote 273:

_Scotch Legal Antiquities_, by Cosmo Innes, p. 270. Mr. Innes was the first to discover this important analogy.

Footnote 274:

_Origines Parochiales_, vol. ii. part i. pp. 177, 191. Appendix III.

Footnote 275:

Information derived from the late Colonel Macdonell of Glengarry, who had an accurate knowledge of Highland traditions. In the _Stat. Acc._ of Saddel it is stated that the average stock of a merk land is 4 horses, 12 milch cows with their followers, and 40 sheep with theirs (vol. xii. p. 477).

Footnote 276:

_Reg. Mag. Sig._, lib. xiv. No. 389.

Footnote 277:

_Chart. of St. Andrews_, p. 45.

Footnote 278:

_Chartulary of Dunfermline._

Footnote 279:

_Antiquities of Aberdeen and Banff_, vol. ii. p. 273.

Footnote 280:

_Chartulary of Moray_, p. 8.

Footnote 281:

_Ib._ p. 83.

Footnote 282:

_Antiq. of Aberdeen and Banff_, vol. ii. pp. 17, 22.

Footnote 283:

_Antiquities of Aberdeen and Banff_, vol. i. p. 174.

Footnote 284:

_Chartulary of St. Andrews_, p. 238.

Footnote 285:

_Chartulary of Arbroath_, pp. 12, 35.

Footnote 286:

_Chartulary of Glasgow_, p. 12.

Footnote 287:

_Chartulary of Holyrood_, p. 61.

Footnote 288:

_Acts of Parl._, vol. i. p. 378.

Footnote 289:

_Chart. of Moray_, pp. 23, 76, 80.

Footnote 290:

Craig arrives at the true meaning when he says, ‘Meo quidem judicio melius a _canone_ deducetur, cum idem prope significet. _Canon_ enim in jure præstationem annuam sive pensitationem innuit, unde canon frumentarius et canon metallicus.... Est itaque _Cana_ idem quod _Canica_, sive _Canon_, sive certa præstatio annua, quæ nunquam naturam feudi per se, neque speciem tenendriæ immutat, ut nulla alia præstatio annua, nisi exprimatur tenenda in feudifirma.’—_Jus feudale_, pp. 79, 28.

Footnote 291:

_Liber Ecclesie de Scon_, p. 7.

Footnote 292:

_Chamberlain Rolls_, pp. 6, 50. There is a blank in the record.

Footnote 293:

Appendix III., Athole Papers. _Collect. de Rebus Albanicis_, p. 16.

Footnote 294:

Innes’s _Legal Antiquities_, p. 70; Ware’s _Antiquitates Hibernicæ_, p. 209; O’Curry, _Lectures on the Manners and Customs of the Ancient Irish_, vol. iii. p. 495, note; _Ulster Archæol. Journal_, vol. iv. p. 241. Mr. Innes’s attempt to explain these terms will show how essential an acquaintance with the ancient Irish laws is to the interpretation of our ancient Scotch customs.

Footnote 295:

_Chart. of St. Andrews_, p. 277.

Footnote 296:

Faciendo forinsecum servitium tantum quod pertinet ad quinque davachas terræ, servitium vero pertinens ad sextam davacham de Blar dictis canonicis remisimus.—_Liber Ecclesie de Scon_, p. 42.

Footnote 297:

Aliquod servitium nisi forinsecum servitium Scoticanum domini regis.—_Chart. of Moray_, p. 470.

Footnote 298:

Faciendo forinsecum servitium in exercitu quod pertinet ad predictas terras.—_Chart. of Arb._, p. 74.

Footnote 299:

Stubbs’s _Select Charters_, pp. 284, 293.

Footnote 300:

This more detailed explanation seems necessary, as the term is often used loosely, as if the feu-farm holding was a mere tenancy. See the author’s edition of Fordun, vol. ii. p. 415, for a fuller discussion of this.

Footnote 301:

The seven earls appear, according to Fordun, at the coronation of King Alexander the Second, and in the same year he passes some laws, apparently with consent of these earls, regarding the land. In the first the expression is, ‘Rex cum communi consilio comitum suorum.’ In the second, ‘Rex et _principes_ ejus.’ By Fordun they are usually called _magnates et proceres_.

Footnote 302:

_Acts of Parliament_, vol. i. p. 377. Two popular errors have prevailed with regard to the true character and position of the thanes. By the oldest of these they were regarded as the governors of provinces, having over them an _abthane_ or chief governor. Fordun seems the inventor of this, and to it belongs his mythic character Macduff, thane of Fife; but it is inconsistent with the account he subsequently gives of the tenure of the crown lands, and although it has received the sanction of Mr. Hill Burton, it has been justly discarded by such historians as George Chalmers, Joseph Robertson, Cosmo Innes, and John Stuart. The later theory, that the thanes were something entirely different from the English thane, and were merely crown officers or stewards appointed to levy the crown dues, has unfortunately received the powerful sanction of these writers, but the author has never been able to accept the theory. It appears to him a partial and incomplete view, and inconsistent with the facts recorded regarding them. Sir John Skene states his position correctly when he says, ‘Thanus was ane freeholder holding his lands of the king.’—_De Verborum Sig._, sub voce. The reader is referred to the author’s edition of Fordun, vol. ii. p. 414, for a discussion on this point.

Footnote 303:

‘Milites, _Leg. Malc. Mab._, c. 2, and generalie in the auld lawes of this realme, are called freehalders, haldand their landes of barons in chief.’—Skene, _De Verborum Sig._, sub voce.

Footnote 304:

_Acts of Parliament_, vol. i. pp. 375, 377, 380, 382.

Footnote 305:

_Ib_. vol. i. pp. 400, 403.

Footnote 306:

_Ib_. p. 652.

Footnote 307:

_Ant. Ab. and Banff_, s. 492, iii. 112, iv. 116. The same loose notions have prevailed of the position of the _libere tenentes_ as of the thanes, and therefore it has been necessary to treat of both somewhat at length. _Libere tenentes_ are usually translated ‘free tenants,’ just as _tenant du Roi_, in Ragman Roll, is usually translated ‘king’s tenant,’ as if they were tenants in the modern sense of the term, from the unfortunate propensity to render a word in one language by its phonetic equivalent in another, though the meaning may be different; but the true rendering of the one is ‘freeholders,’ and of the other, ‘holding of the king _in capite_.’ Ware defines the _libere tenentes_ in Ireland as those _qui prædia habebunt, ad hæredes transmittenda_ (_Ant. Hib._, 209); and Craig gives a very clear account of these in Scotland (_Jus feudale_, 87. 6; 248. 28; 362. 42). According to Cowell, ‘Freehold frank tenement, _liberum tenementum_, is that land or tenement which a man holdeth in fee, feetail, or at least for term of life.’ Freeholders in the ancient law of Scotland were called _milites_; and tenement or tenementum, he says, ‘signifies, most properly, a house or homestall, but more largely either for a house or land that a man holdeth of another, and joined with the adjective Frank, it contains lands, houses, and offices, wherein we have estate for term of life or in fee.’

Footnote 308:

Ochiern, ‘Ogitharius,’ is ane name of dignitie and of ane freehalder.—Skene, _De Verborum Sig._

Footnote 309:

See Erskine’s _Institutes_, vol. i. p. 370, for a good account of the rentallers or kindlie tenants.

Footnote 310:

_Chart. of Arbroath_, pp. 44, 88. The word _terra_, here translated land, means usually arable land only. Treiglas is probably _Traighghlais_ or sea-shore, from Traigh, strand; and Glas, an old word for the sea.

Footnote 311:

_Acts of Parliament_, vol. i. p. 397.

Footnote 312:

Quod rex debet habere forisfactum _comitum si thani eorum_ remanserunt ab exercitu, etc.—_Acts of Parliament_, vol. vi. p. 398.