^A # ^0^. r 'f^:Jt ;/ 41^ «e HISTORY OF SCOTLAND LIBRARY THE HISTORY OF SCOTLAND FROM AGRICOLA'S INVASION TO THE EXTINCTION OF THE LAST JACOBITE INSURRECTION BY JOHN HILL BURTON, D.C.L HISTORIOGRAPHER-'rOVAL for SCOTLAND A NEW EDITION, REVISED IN EIGHT VOLUMES VOL. II. WILLIAM BLACKWOOD AND SONS EDINBURGH AND LONDON All Rig-Ills resi'-rt'cd CONTENTS OF SECOND VOLUME. CHAPTER XIV. NARRATIVE TO THE DEATH OF ALEXANDER II. PAGB Influence of the Treaty of Falaise as a formal surrender of inde- pendence — Formal abandonment of its conditions by Richard of England — Ecclesiastical discussions — Assertion of indepen- dence by the Scots Church — Its position towards the king, the Court of Rome, and the Church of England— Dedication of Arbroath Abbey to Thomas ^ Becket — Death of Malcolm — Succession of Alexander II. — Claims on the northern counties of England — Treaty of Newcastle — Absolute estates given to buy off these claims — General division between England and Scotland completed — Attempt to adjust the exact marches — Contests in the outlying districts — Tragedy of the Bishop of Caithness — Questions of the succession — Vestiges of an arrange- ment with the Bruce family — Position of this and other Nor- man houses — Difference of their influence on Lowlanders and Highlanders — The Bysset tragedy arising out of this — Its political consequences — Death of Alexander II., i-ig vi CONTENTS. CHAPTER XV. NARRATIVE DOWN TO THE DEATH OF THE MAID OF NORWAY. Alexander III. — His boyhood — Influence of his mother, Mary de Coucy — His inauguration as monarch, and the peculiar ceremonies of the occasion — Great question of the anointing of the Scots kings — Its connection with the claims of England and of the Court of Rome — Fulfilment of Treaty of Newcastle — Marriage of the young king with an English princess — The question of homage — The rule in Scotland during the minority — Factions of the collaterals looking forward to the succession — Comyns and Durwards— Interference by the English king — The islands, and their connection with Norway — Haco's inva- sion The battle of Largs — Its influence — Increase of terri- torial power — Taxation of the Church — Bagimond's Roll — Ecclesiastical councils — An ecclesiastical code — Tamperings with the records of homage — Hopeful future of the country — Disasters — Death of the king's daughter, the Queen of Nonvay — Death of his son — His own death — Death of the heiress, the Maid of Norway, ..... 20-49 CHAPTER XVI. PROGRESS OF THE NATION TO THE WAR OF INDEPENDENCE. Topography— Boundaries of the countiy— The provinces — Capi- tal towns — Minor territorial divisions — Sheriffs — Thanes — Maarmors — Progress of feudalism — Older laws found in opera- tion when feudalism began — The fictitious codes of old laws — The Regiam Majestatem — Critical literature about it and other early laws— Actual vestiges of the old laws — Local codes, Lothian, Galloway, &c. — Pecuniary mulcts for off"ences — Money value of the citizen — Comparison with the spirit of the Roman jurisprudence — Influence of the spirit of neighbourli- ness and common responsibility — Spirit of fairness and human- ity—Specimens of ancient laws — Ordeals— Battle — Rise and influence of municipalities — Protection to liberty — No Magna Charta, or Charters of the Forest — Such protective concessions not required, ...... 5°'7> CONTENTS. vii CHAPTER XVII. PROGRESS OF THE NATION TO THE WAR OF INDEPENDENCE. {Conlmued.) The germs of Parliament — Its relation to the oldest laws — The assemblages of national councils — Their consent to great national acts — Rise of the burghal corporations — Different grades of corporations — Power and wealth of the corporations — They form a separate Parliament or council — Interior economy of the burghs — Influence on progress of freedom — Relations with foreign municipalities — The burgh franchise — The exclusive privileges — Greatness of Berwick — Town dwell- ings — Rural dwellings— Dwellings of the nobility compared with the ecclesiastical buildings — No Norman castles — Mag- nificence of the remains of Norman churches — Testimonies to the wealth of the country before the breaking out of the war — Commerce, agriculture, and rural economy, . . 78-111 CHAPTER XVIII. THE DISPUTED SUCCESSION. Narrative resumed — Doubts about the death of Queen Margaret — A pretender in Norway burned at the stake — King Edward and his position — Communications opened with him — The preparations for the assemblage at Norham — The assemblage and its elements — The notary public — King Edward's address — The assertion of superiority — The adjournment — Notice to the clergy, nobility, and community to put in any objections they have — How the nobility and clergy had nothing to say, and the community were not listened to — The roll of com- petitors — Exceptional claim of Florence, Count of Holland — All comers heard — The narrowing of the leet — The competi- tors finally limited to Bruce, Baliol, and Comyn — 'Their gene- alogies and claims as descendants of the Earl of Huntingdon — The meetings and discussions — The method of packing a jury for the decision — Adjournment — Doings apart — Examination and removal of records — Return of precedents ordered, li 2-140 viii CONTENTS. CHAPTER XIX. ADJUSTMENT OF THE SUCCESSION. The assemblage resumed — A new claimant : Eric of Norway — The question lying between Baliol and Bruce, and between the distant descendant of the elder and the immediate descen- dant of the younger daughter — Indication of a leaning to the former view — Continued pleadings — Resolution of the question into the shape of litigation for an estate — This encouraged by Edward as Lord Superior — The competitors admit all his claims, and are ready to do homage — Questions of partition and compromise opened and pleaded— Peculiar case put in for the Count of Holland — The judgment in favour of Baliol — Ceremonies of homage — Ceremonies of investiture in Scotland — The new king's unpopularity and danger — Question how far put under restraint — Litigations appealed from him to the English Court — His humiliation — A crisis, . . 141-162 CHAPTER XX. WAR OF INDEPENDENCE TO THE BATTLE OF STIRLING. Edward's quarrel with France— The opportunity for Scotland- Alliance between France and Scotland— The foundation of what is called the Ancient League — Its importance in Euro- pean history — Popular conditions of its adoption on the Scots side — Edward's return and invasion of Scotland— The siege of Berwick— Baliol driven to renounce his allegiance — March northwards— Edinburgh— The removal of the contents of the royal treasury— Scone — Removal of the Stone of Destiny — Its strange history before and after the removal— The Black Rood of Scotland another acquisition— Its history — Edward's circuit and collections of homages — Appearance of Wallace on the scene — What is known of him compared with the legendary history— His capacity as a commander and organiser — How he gathered an army — His victory at Stirling Bridge, . 163-192 CONTENTS. ix CHAPTER XXI. WAR OF INDEPENDENCE TO THE BATTLE OF ROSLIN, National influence of the battle of Stirling — Wallace's dealings with the Hanse Towns — Raids into England on the east and the west — Wallace's personal conduct — Protection to the monks of Hexham — Becomes guardian of the kingdom — Edward's second great invasion — Siege of Dirleton — Battle of Falkirk — Disappearance of Wallace from history — Questions as to his having gone to France and Rome — French and English di- plomacy — France and Scotland balanced against Edward and the Flemings — The question of the independence of Scotland before the Court of Rome — A Papal emissary — His adventures on the border — The curious case laid before the Papal Court by ICing Edward — Active warfare resumed — The siege of Caer- laverock — Its history a type of the sieges of the day — Battle of Roslin, ...... 193-218 CHAPTER XXII. WAR OF INDEPENDENCE TO THE DEATH OF EDWARD. The preparations for final subjugation — The march — The siege of Stirling Castle — Incidents and influence of the -siege — Attempt at a moderate and conciliatory policy — Amnesties — Wallace to be an exception — Notices of his movements — His capture — Carried as a trophy to England — Peculiar policy in the form of his trial — His execution — Its effect on his coun- trymen — Organisation of Scotland — Incorporative union — Re- presentatives of Scotland in a British Parliament — Revisal of the law — The great ordinance of King Edward — Preparations for an international Parliament at Carlisle — The national feel- ing — Edward's ignorance of it — Bruce's flight from London to Scotland — A new chapter in the war opened — Account of Bruce's position and claims — His allies — The slaughter of the Red Comyn — The enthroning of Bruce at Scone — Edward's preparations — His march — His death, . . 219-246 X CONTENTS. CHAPTER XXIII. WAR OF INDEPENDENCE TO BANNOCKBURN. Difficulties of the new king — Political position of the Highlands — Bruce's wanderings and adventures — Acts of personal prow- ess—Popularity—First germs of success— Contest with the Comyns— Assistance of the clergy — Their influence, spiritual and feudal — The oscillations of allegiance — Specimen of a shifting bishop — Siege of Stirling by Bruce — English national pride roused — Eagerness to do battle in Scotland — Collection of a great army — Peculiar conditions of the coming contest as fixed by the engagement to surrender Stirling— The position of the Scots army — Its personal composition — How both adapted to the occasion— The approach of the English hosts — Bnice's personal passage of arms— Randolph's skirmish- Battle of Bannockburn, .... 247-271 CHAPTER XXIV. WAR OF INDEPENDENCE TO THE DEATH OF ROBERT BRUCE. Effect of the battle of Bannockburn — A Parliament, and the adjustment of the succession— The Bruces induced to become leaders of the Irish national party— Cause of the Irish seek- ing them— The question of the independence again before the Papal Court — Adventures of a cardinal emissary sent to Bruce — Recapture of Berwick— Baffled attempts of England to re- cover it — Raid on England— A Parliament— The solemn ad- dress to the Pope, and resolution to hold by independence— A great invasion of Scotland again attempted — Its failure, and the method of it — Revenge taken by raids on England— Suf- ferings of the English people — Disaffection in the north- Aid offered to Scotland— Intervention of the Pope— Invasion of England— The treaty of Northampton — The death of Bruce, 272-30S CHAPTER XXV. NARRATIVE TO THE ACCESSION OF THE HOUSE OF STEWART. Accession of David Bruce — Edward Baliol and his claims — Their harmony with those of the disinherited Norman barons —Edward Baliol's invasion— Battle of Duplin— English in- CONTENTS. XI vasion— Siege of Berwick— Battle of Halidon Hill— Edward Baliol gives homage for Scotland — His successes and reverses — Peculiar method in which Edward III.'s aid was remuner- ated by territory in Scotland — English invasion — Connection of Scotland with France— The field of enterprise there opened to Edward IH. — Consequent relief to Scotland — Gradual ex- pulsion of the English— Sir Andrew Moray's regency — Battle of Colbleen — Departure of Baliol — Demoralising influence of this contest — Portion of southern Scotland retained by Eng- land—The battle of Neville's Cross — Its influence — Capture of King David — Political effects of his captivity — His ran- som, and the sacrifices for it — An English invasion — Desecra- tion of the religious houses — King David in Scotland — His unsatisfactory conduct as a King of Scots— Secret arrangements — Parliament and its proceedings, . . . 309-342 CHAPTER XXVI. NARRATIVE TO THE DEATH OF ROBERT III. Accession of Robert the High Steward— Adjustment of the suc- cession—His dynasty called the House of Stewart — Genealo- gical mysteries— Troubles in England — Scotland's profit in tranquillity— Renewal of the league with France— Identity of the interests of the two countries — A body of French knights come to Scotland— What they saw there— A larger body from France, brought by the Admiral John de Vienne — Difference between French and Scots notions of war — Difference between their notions of civil rights — Angry return of the French — Their gift of arms to the Scots— Determina- tion to invade England — A double invasion by the east and the west — The Percys — Douglas — Passage at arms — The bat- tle of Otterburn— Its fame and characteristics— Death of King Robert — His son succeeds— His name changed from John to Robert, with the reason — Battle by two bodies of Highlanders on the North Inch of Perth — Difficulty in explaining it— In- ternal effects of the long contest with England — An English invasion — Battle of Homildon — Richard II. of England, and the question of his seeking refuge in Scotland— Death of Rothe- say, the king's eldest son — Suspicions of foul play— His other son, James, taken by an English force on his way to France — Ascendancy of Albany— Death of King Robert HI., . 343-384 Xil CONTENTS. CHAPTER XXVII. NARRATIVE TO THE DEATH OF JAMES I. Accession of James I., a child, and captive in England — Re- gency of Robert of Albany — Burning of Reseby, an English- man charged with heresy — The Celtic population of the High- lands and their rulers — Final struggle for supremacy between Highlands and Lowlands — The battle of Harlaw — Its histori- cal influence — The invasion of England, called the Fool Raid — Death of Regent Robert, and succession of his son Murdoch — The young King of Scots at the English Court — How trained and tended there — His marriage — The French alliance — Scots auxiliary force sent to France — Their losses, services, and rewards — Return of the king to Scotland — Prerogative no- tions brought with him from England — His dealing with the regent and the house of Albany — Contest with the Highlands — French connection and alliances — England's command of the narrow seas used against royal visitors between France and Scotland — Serious aspect of home politics — Organisation against King James— His unconsciousness of it — The Court at Perth — Murder of King James there, . . . 385-410 CHAPTER XXVIII. JAMES II. Fate of the murderers — An infant king — His coronation at Holy- lood — Plots for his custody — Kidnapped by Crichton — The house of Douglas — The chief brought to Edinburgh and put to death — Effect of this — Secret source of the power of the house — Connection with France — Conflict with the Crown — Influence of the Crichton family — Mary of Gueldres — The Douglas band — Tragedy of the Tutor of Bunby — Slaughter of the Douglas in Stirling Castle — Gathering of the supporters of the house — Preparations for civil war — The tiger Earl of Crawfurd — Battle of Brechin — Great contest with the house of Douglas — Its over- throw for the time — A Parliament, and its dealings with the Douglases, and other matters — Influence of the Wars of the Roses in England — Expedition to retake the territories cap- tured by England— Siege of Roxburgh— Death of the king, 41 1 -435 THE HISTORY OF SCOTLAND. CHAPTER XIV. NARRATIVE TO THE DEATH OF ALEXANDER II. INFLUENCE OF THE TREATY OF FALAISE AS A FORMAL SURRENDER OF INDEPENDENCE — FORMAL ABANDONMENT OF ITS CONDITIONS BY RICHARD OF ENGLAND — ECCLESIASTICAL DISCUSSIONS— ASSERTION OF INDEPENDENCE BY THE SCOTS CHURCH — ITS POSITION TO- WARDS THE KING, THE COURT OF ROME, AND THE CHURCH OF ENG- LAND — DEDICATION OF ARBROATH ABBEY TO THOMAS A BECKET — DEATH OF MALCOLM— SUCCESSION OF ALEXANDER 11. — CLAIMS ON THE NORTHERN COUNTIES OF ENGLAND — TREATY OF NEWCASTLE^ ABSOLUTE ESTATES GIVEN TO BUY OFF THESE CLAIMS — GENERAL DIVISION BETWEEN ENGLAND AND SCOTLAND COMPLETED — ATTEMPT TO ADJUST THE EXACT MARCHES — CONTESTS IN THE OUTLYING DIS- TRICTS — TRAGEDY OF THE BISHOP OF CAITHNESS — QUESTIONS OF THE SUCCESSION — VESTIGES OF AN ARRANGEMENT WITH THE BRUCE FAMILY— POSITION OF THIS AND OTHER NORMAN HOUSES— DIFFER- ENCE OF THEIR INFLUENCE ON LOWLANDERS AND HIGHLANDERS — THE BYSSET TRAGEDY ARISING OUT OF THIS — ITS POLITICAL CON- SEQUENCES — DEATH OF ALEXANDER II. The much-desired infeudation of Scotland was now com- plete, at least on parchment. In the great homage dis- pute, on one side of it at least, a perverse pedantry has depended on ceremonies and writs instead of broad his- torical facts : as if all that a high-spirited people could gain by ages of endurance and contest might be lost by VOL. II. , A 2 NARRATIVE. a slip of parchment. But it is odd that these pedantic reasoners should have overlooked how strongly this trans- action bears against them. If the Scots people really were under feudal subjection to the Norman kings of England, what need to create that condition by a hard bargain with a prisoner? Or, supposing that the condi- tion had really been established, and the King of Scots was a rebel, then the phraseology of the documents would have undoubtedly shown as much, and would have renewed or confirmed the past. What the conditions of the Treaty of Falaise do, however, is to create the new condition of vassal and superior from their date. They explain the opportunity, and certify the use it is put to. We may depend upon it, however, that the English king and his advisers would by no means have been con- tent to rest on pedantries. They would know that what had been lost by one opportunity might be gained by another, and care would have been taken by degrees that Scotland should have had no opportunity of regaining what she had lost. In feudal history such documents merely make the way to possession. Some feudal observ- ance has been neglected, something has been done on which a quarrel may be picked ; and the overlord at last reigns in the vassal's kingdom. Henry could not, per- haps, hope in his lifetime to complete what he had begun ; but when Scotland was a quiet province of Britain, ruled by his successors, the merits of his dexterous policy would be remembered. But this consummation was not to be. In the year 1189 Richard the Lion-hearted became King of England; and one of his first steps was to restore the position of the Scots kingdom by absolutely withdrawing what he de- scribed as the conditions which his father had extorted from William by new deeds, and in consequence of his captivity.^ * " Quietavimus ei omnes pactiones quas bonus pater noster Henri- cus Rex Anglite, per novas Chartas et per captionem suam extorsit." See the discharge at length in the Fcedera (Record edition), i. 50. TREATY OF FALAISE REVOKED, 1189. 3 Richard took an obligation for ten thousand marks as the price of his discharge. But in whatever way we look on the aftair, it savours of his romantic spirit, since the money would only go to help him in his crusading expe- dition to Palestine. The transaction by which the people of Scotland had been brought formally under the same Norman yoke as their English neighbours included their Church, but there was a difference in the formalities of the two transfers. The feudal subjugation was made as distinct and complete as words could make it. For the Church of Scotland, it was to be so far subordinate to the Church of England as It had been during the reigns of King Henry's predeces- sors. Reading the sentence in which the ecclesiastical conditions are regulated along with the carefully-studied clauses for clenching the feudal supremacy, one cannot help suspecting that the draftsmen of the documents, who- ever they were, cared less for the ecclesiastical than the feudal part of the transaction. This impression is not lessened by our finding that there were present and assenting some dignified officers of the Scots Church — the Bishops of St Andrews and Dunkeld, the Abbot of Dunfermline, and the Prior of Coldingham.^ Probably just after the great a Becket affair King Henry was not very anxious to aggrandise the power of the English Church ; and though there were English ecclesiastics who acted as witnesses, they were not, like those of Scotland, made parties. A Papal legate, Cardinal Petroleonis, held an ecclesias- tical conference or council at Northampton in presence of King Henry. In deference to so august a person, the King of Scots was present, Avith the Bishop of St Andrews with the title, " Littera Regis AnjjliDS de Redditione Castrorum, &c. ; et de restitutione omnium libertatum quas habuerunt Reges Scotice ante captionem Regis Willelmi." It was set forth in the celebrated pleading before King Edward, concerning the succession, that this restoration by King Richard was illegal ; he could not dismember the empire of which he was sovereign. — Palgrave's Illustratioiis, 22. * Fcedera (Record edition), i. 30. 4 NARRATIVE. and five other bishops. They were formally required tc conform to the treaty, and acknowledge themselves subor- dinate to the English Church. They denied on the spot that there was any such supremacy over them. The Archbishop of York specially asserted the old claim over Glasgow and Galloway, and appealed to documents in support of it ; but Jocelyn, Bishop of Glasgow, maintained that he was under the direct authority of the Bishop of Rome, and no other prelate could step between them. A\'hile the Scots bishops chose so to assert themselves, the English had no help for it, since they had lost their former opportunity. King Alexander and his bishops had been suppliants to them for the spiritual rite of consecra- tion, having unpleasant doubts whether those who might be called bishops among the Scots Culdees really were commissioned to impart this sacred constitution. But nbw the country had a body of thoroughly attested bishops, who had every element of Catholic legitimacy, and who could laugh at the claims of their English breth- ren to reign over them. It happened, too, that the English policy of dividing authority in the Church by a double primacy was favourable to the Scots Church. Canterbury and York quarrelled for authority over k. The old tradition that Canterbury was supreme in Britain, as the holder of the powers granted to St Augustine, was revived. It was not in this instance asserted as an authority over York, yet it touched that primacy on a tender point. There was more at issue than the mere local adjustment by which the one might be supreme in the north and the other in the south. It was from York that the Scots Church had got its spiritual title, and to York, then, its allegiance as a group of suffragan dioceses was due. The Scots bishops, on their return, sent agents to- Rome. There they managed their business so well that they returned with a bull from Pope Alexander III., which was a thorough triumph to the Scots clergy. In high terms it rebuked the King of England for meddling in matters spiritual by demanding concessions from the Church of Scotland, and forbade York to demand suprem- ECCLESIASTICAL DISPUTES, I174-S2. 5 acy, or the Scots Church to concede obedience, until the questions at issue were decided at Rome.^ A cardinal, Vivian Tomasi, was appointed legate from Rome to take cognisance of the question. He had other business in hand, for he went to England, Ireland, and the Isle of Man, where he asserted the influence of the Church in a special shape by compelling the king of that island to go through the ceremony of marriage with the mother of his celebrated son, Olave the Black. It is said that, as he passed through England, King Henry refused him a passage northward until he made oath to do nothing in prejudice of the English claims. He transacted busi- ness with a council in Scotland, but nothing of a substan- tial kind appears to have come of their deliberations.^ But there was a more severe contest at hand between the King and the Church, which threatened to throw Scotland into such a sea of troubles as had just been vex- ing England. There was a certain Joannes Scotus, Arch- deacon of St Andrews, the nephew of the Bishop of Aberdeen, and otherwise influential in the Church. On the occurrence of a vacancy in 1178 he was elected Bishop of St Andrews by the chapter. The king having destined this benefice for Hugo, his chaplain, put him in possession of the temporalities, and managed to get him consecrated. Joannes appealed to the Pope, who put the matter into the hands of the legate Allexius. The legate decided in favour of Joannes, and consecrated him as bishop. A battle now began between the temporal and the spiritual arm. The king banished Joannes, and. ^ Registrum Episcopatus Glasg., i. 35 ; Statuta Ecdes. Scot., Pref., xxxvi. ■^ "Nothing more is known of the council than that it renewed many ancient canons and enacted new ones. Some of them appeared to have curtailed the immunities and impaired the revenues of the Cistercians. The monks of Rievaulx, the mother of all the Scottish abbeys of the order, sent a letter to the bishops of Scotland adjuring them to repudiate the statutes which their legate Vivian had made against the brethren of Citeaux, and the dull dry page of the Cister- cian Chronicle of Melrose sparkles into invective against his raoacity ind violence."— Statuta Eccles. Scot., Pref., xxxvii. 6 NARRATIVE. as it would appear, some of his supporters, out of Scot- land, and the legate professed to lay the diocese of St Andrews under interdict. The aftair is spoken of so lightly even by ecclesiastical writers, that it cannot have been considered that the legate could effectually carry out that awful sentence. The Papal Court was again called on to interpose, and the device was adopted of giving power to those who were asserting a spiritual authority over the Scots Church. The Archbishop of York and the Bishop of Durham were invested with legatine powers, enabling them to excommunicate and interdict any per- sons, lay or ecclesiastic, from the king and the bishops downwards. They set to work with threats, and when any one obeyed these he was punished by the civil power. The quarrel was brought to a sudden stop by a change at Rome. Pope Alexander died, and was succeeded by Lucius III., who disliked quarrels with the temporal powers. There was an immediate adjustment, by which Hugo got St Andrews, and his competitor was made Bishop of Dunkeld. It will be easily understood that King William the Lion was no favourite with the ecclesiastical annalists who had to record such transactions. The illustrious Welshman Dubarri, better known as (jiraldus Cambrensis, goes out of his way to characterise him as a tyrant to the Church, and in fact an imitator of the egregious abuses of the Norman tyranny in England. Yet King William did an act that should have endeared his memory to the ecclesi- astical mind, and especially to that portion of it which was then struggling for ecclesiastical supremacy over temporal powers. He founded the great Abbey of Arbroath, en- dowing it with estates and church patronages stretching over distant districts of the country. The broken remains of the great church of the abbey still testify to its magni- ficence. But more remarkable even than the s])lendour of the endowment was the method of its dedication. Usually the memory of saints has been mellowed by antif^uity before they have become the object of such dedications ; but King William devoted his great gift to the memory of Thomas a Becket, whose blood had been ARBROATH ABBEY, 1178. 7 freshly shed. He was killed in 1170, his canonisation was registered three years afterwards, and the Abbey of Arbroath was founded in 1178. One cannot but believe that this peculiar act was done under the influence of some especial policy, though what it exactly was is not clear. The simplest view was to hold that the king desired to obtain a share in the blessings scattered about by so eminent a martyrdom ; and an explanation equally simple, but of another kind, was, that in their early days he and Eecket were friends and companions at the court of King Henry.i The reign of William the Lion lasted down to the year 1 2 14. In its latter years it was again animated by pro- spects of mastering the Northumbrian and Anglo-Cumbrian jirovinces, when King John of England was getting into his troubles. William was able to defeat a design formed by the English king to build a frontier fortress on the English side of the Tweed, and both kings had for some time armies menacing each other on the border, but not coming to blows. His son, Alexander II., who succeeded him, a youth in his seventeenth year, inherited this border contest and its hopes. There was an understanding between the young King of Scots and the league of English barons, the end of which was of course to be the annexation of the northern provinces to Scotland ; indeed they professed to put King Alexander in possession of them. To maintain the acquisi- tion a Scots army infested the district, and King John sent a retaliative force, which penetrated into East Lothian. Again there is, during the years 12 16 and 12 17, the old work of cruelty and devastation on both sides, with no- thing to vary it, until at last the fate of the French invasion put an end to the hopes of acquiring the border provinces for Scotland. So lately as the year 1237, the claims on the Northumbrian districts were discussed between the crowns in a friendly and diplomatic form. The old demand ^ "Ob familiarem amorem inter ipsum et Sanctum Thomam, dura adliuc in curia Regis Henrici esset, contractum." — Chronicon dc Lanercost, II. 8 NARRATIVE, was made by King Alexander; and Henry III. met it by a proposal to give the King of Scots certain manors in Cumberland and Northumberland, not in sovereignty, but in feudal property. The offer was accepted as on the whole advantageous to the Scots king, and a relief to the people from hopeless attempts at conquest in a country now strongly united with the central government of Eng- land. Any reasonable adjustment putting an end to claims on the northern counties was scarcely less a blessing on the English side. The repeated invasions by the Scots shook the country to its heart. It has to be noticed that we have only the English side of the question in all matters of dispute between the two nations, since all the annalists of the period were Englishmen. They have to tell of the King of Scots coming to do homage to the King of Eng- land, as holding estates of him in feudal vassalage ; but the tone of their narratives is as if they spoke of a formi- dable neighbour coming to demand tribute. It is some- what as the historians of the later Empire spoke of the Franks, and as the French chroniclers spoke of the Norse- men. They are rude barbarians, coming in all reverence to the court of the civilised sovereign, yet they are objects of uneasiness and alarm. For the estates and honours given to bribe them they do humble homage, yet their rapacity is not appeased — they are not content with the bribe — and again, in an aggressive humour, are crossing the border and threatening their benefactor. The whole story has a significant resemblance to the attempts of the King of France to buy off and soothe the Norsemen, whose chief professed all due homage in proper form, yet, accord- ing to a common legend, took a sly opportunity to apply his aw^kwardness in court fashions, so as to trip up the para- mount monarch in the course of the ceremony. Apart from the question of bringing up the claims on the northern counties, handing over the estates on the border to the King of Scots kept alive the policy of the English court to have him coming there to do homage for something or other. This was perhaps the more desirable that the honour of Huntingdon had now gone to a col- lateral — the descendants of Prince David, William the ADJUSTMENT OF MARCHES, 1222-37. 9 Lion's brother. The precision of old Anglo-Norman re- cords enables us to know the exact nature of the new hold- ings without letting us see the reasons why some are so different from others. The King of Scots' estates in Cumberland— such as Penrith, Scotby, Sowerby, and others — were held as mere estates in homage, with the proper fealty which the enjoyer of the reality of property had to give for it to the sovereign. This acknowledgment had nominally to be made every year, and the shape in which the King of Scots had to make it was by delivering a falcon at Carlisle Castle. Tyndale and other lands in Northum- berland were held by simple homage, not in property, but in regality or sovereignty, subordinate to the sovereignty of England ; and here the King of Scots did not merely draw rents and profits as a landlord, but administered justice through his Justiciar.^ These English estates of the Scots crown are referred to in subsequent documents as " Tynedale and Penrith." From this period the efforts to extend the Scots fron- tier cease, and the people of the northern counties of Eng- land got quietness for a time, and until they found them- selves as part of England invading the inhabitants of the country whence they were so often invaded. The boundary of the two kingdoms had now an opportunity of becoming distinctly and permanently recognised. A few years earlier, in the year 1222, we have a memorandum of the proceed- ings of a joint commission to measure off the exact line of the marches of the two countries. There were certain knights of Northumberland on the English side ; on the Scots the Justiciary of Lothian, with the Earl of Dunbar ^ Palgrave, Documents illustrating the History of Scotland, 3-6 ; Introd., vi. vii. See also Documents illustrative of the History of Scotland from the Death of King Alexander the Third to the Accession of Robert Brace, "selected and arranged hy the Rev. Joseph Steven- son" (published under the authority of the Lord Clerk Register), 2 vols. The first paper in this collection is an account " of the Rents and profits of the Lands and tenements in Tynedale lately belonging to Alexander, King of Scotland, deceased." It is dated in 1286, the year of his death. This is followed by a long succession of docu- ments relating to the estates of the King of Scotland in the north oi England. lO ALEXANDER II. and other knights. The report of the affair to Henry III. by his chief commissioner preserves the etiquette of equal- ity between the contracting parties. He tells the King of England how they met and exchanged courtesies, and then tried if they could agree in tracing the boundary-line be- tween his kingdom of England and the kingdom of Scot- land. It seems to have been a partial attempt only, to begin at Carham, which is now in England, and end at Howdean, near Jedburgh. Six commissioners were chosen on either side. As the six from Scotland would not con- cur with the view taken by those of England, the joint commission was recast, but again set to work without success. They began at Reddenburn in the parish of Sprouston, a feeder of the Tweed ; but when the English proposed to trace by Hoperiglaw and Whitelaw, the Scots would not follow them ; and the attempt was abandoned, the English commissioners entering a protest that their line was correct — and it certainly, in touching Whitelaw, agreed with the line of the border as now laid down in the Ordnance Survey. Whether there was any further attempt at an exact tracing of the border line may be doubtful, since in later negotiations we find allowance made for a tract called the debatable land. But the record affords evidence that the division between the two countries, as it afterwards remained, had even at that time settled down by usage, since the line which the commissioners are to find is that of the ancient marches.^ The virtual adjustment of the boundaries of the two kmgdoms, bought as it was by England with a price, gave peace for a time on the border, but the reign of the young prince was amply troubled elsewhere. He inherited from his father difiiculties in many shapes as to the outlying provinces, as they might be termed — those to which the King of Scots professed a title which he could rarely make effective. He had not much authority north of the Tay, ^ "Qui rectam perambulationem facerent inter repium vestnim Anglire et regnum Scotiae ; " and again, "quod rectas et antiquas marchias et di visas inter regna prsedicta recognoscerent." — Royal and other Historical Letters illustrative of the Reign of Henry III., Rolls edition, i. 187. THE DISTRICTS, 1230-45. il and the regions beyond the Moray Firth were still in the hands of a representative of the old Maarmors sufficiently strong to make war on the King of Scots. In the West Highlands — the old patrimony of the race of Fergus- there was a ruler whose title came from the conquests of the Norsemen; and the family which predominated in Galloway asserted a sovereign position by overtures for alliance with the King of England. Hiis family had murderous internal disputes ; and when these ended in the supremacy of one branch, its interest in the support of the King of Scots was furthered by its head, Allan of Galloway, becoming Lord High Constable, as the office came to be called, of Scotland. It happened to his pos- terity to have a closer connection with the destinies of Scotland, from his daughter marrying the head of the house of Baliol. Of the untamed condition of the northern district there had been a recent example in the fate of a poor bishop, who was daring enough to attempt to become a spiritual shepherd in distant Caithness. Harold, earl or king of Orkney, had been driven from a settlement in Caithness, which he determined to retake if he could. He arrived with ships and men, and found the new bishop there in- stalled. The bishopric was created by one of the sons of St Margaret, and was therefore an assumption of authority over the northern district by the King of Scots. Whether on this account, or because the bishop attempted to levy " Peter's pence," the earl was savagely enraged ; and find- ing the bishop coming forth from his palace at Scrabster on the west coast, seized him, and horribly mutilated him. It is significant that this narrative comes from the Scan- dinavian side, and would have continued to be doubted, as it had been, were it not confirmed by Pope Innocent III., better informed than the King of Scots about an event in which the Church in Caithness was concerned. He had been told of it, indeed, by the Bishop of Orkney, who would feel an interest more acute than satisfactory in such an affair; and Innocent, writing back in the year 1202, acknowledges the substance of the news: ''We have learnt by your letters that Lombard, a layman, the 12 ALEXANDER II. bearer of these presents, accompanied his earl on an ex- pedition into Caithness ; that there the earl's army stormed a castle, killed almost all who were in it, and took prisoner the Bishop of Caithness ; and this Lombard, as he says, was compelled by some of the earl's soldiery to cut out the bishop's tongue." The Church, having been so success- ful with the great King Henry of England, Avas not likely to spare this petty ruler, and precise articles of penance were laid do\vn for him. For fifteen days he was to walk about conspicuously in his own territories with bare feet, and only clothing enough for decorum, his tongue being tied so as to hang forth from his mouth, while he suffered the active discipline of the rod. He was then within a month to set forth to Jerusalem, and there serve the Cross for three years. When all this, with some minor penalties, was accomplished, he might be received within the bosom of the Church. 1 The Orkney earl, however, was not so easily accessible as the King of England. We know only that the penance was evaded. The affair tended to the consolidation of the dominions of the King of Scots, for it induced William the Lion to march northwards and strike one more of the many blows which at last broke the power of the rulers beyond the Moray Firth. It must have been some time before the year 1240 that an event of national moment occurred, rendered mysteri- ous by the way in which it came to the knowledge of later times, since it is mentioned in none of the usual chronicles, and is only known because, some fifty years afterwards, the person chiefly concerned founded on it for the purpose of accomplishing an object. It was brought up in the dis- cussions about the succession to the crown in 1291 by Robert Bruce, Lord of Annandale. He asserted that Alexander II., despairing of issue, had brought the suc- cession to the crown under the consideration of the pre- lates, nobles, and good men of the country— of a parlia- ment, such as there then was — and that the result was an 1 Orkneyinga Saga, 415 : Epist. Innocent Til. ; and other authori- ties cited in "Two Ancient Records of the Bishopric of Caithness." — Bannatyne Chib, 1S48. THE NORMAN LEADERS, 1230-45. 1 3 arrangement that, if he died childless, Robert Bruce was to succeed him as king, being the nearest male relation.^ The arrangement was not an unlikely one. Bruce was a son of Alexander's cousin - german, the daughter of David, Earl of Huntingdon. He was then the only male descendant of any daughter of Earl David, though others came afterwards and competed for the succession, as we shall see. The family of Bruce was one of the most powerful in the north of England. It is one of the many Norman houses illustrious since the Conquest, but not very easily to be traced further back, though in this instance the eftbrts to stretch the pedigree have been very vigorous.^ The house of Bruce was a fine type of those Norman races in whose hands were the destinies of so many Euro- pean communities. Why they should have been so loved and courted, is one of the mysteries in the history of social influences. What they were at the court of Edward the ^ Bruce asserted that there were those ahve who could testify to the fact ; and although there were many exaggerations and falsehoods in ihe pleadings of the competitors for the crown in 1291, it is diffi- cult absolutely to disbelieve such an assertion. There is no statement of its having been contradicted on the notarial record of the discussion, where it is distinctly minuted (see Foedera, Record edition, i. 777). It is referred to in the fragments, discovered from time to time, of the pleadings and documents connected with the great competition ; but in these, too, there is no trace of a contradiction. The occasion of the affair was, it seems, Alexander's departure to a war in the Isles. In the year 1249 h^ set off on such an expedition, and died on the way. This cannot, however, have been the war referred to by Bruce, for his statement is, that Alexander was in despair of having an heir of his body — desperans de harede de corpore suo ; but when he vient on this expedition he left his son behind him. This son was born in 1241, by his father's second marriage in 1239. — See Sir Francis Pal- grave's Documents and Records illustrating the History of Scotland. 2 Attempts have been made to bring the cradle of their race home to Scotland, in Bruse, a son of the Earl of Orkney by a daughter of an early Malcolm of Scotland, whose descendant went with Rollo to France, and built the Castle of Brix. According to some Norse au- thorities, however, Bmse was a son of Sigurd, Earl of Orkney, by his first wife, while the daughter of Malcolm was his second (see vol. i. p. 321). Few of Uie Norman houses are so well worth tracing back- wards, were there any chance of success in the pursuit 14 ALEXANDER IT. Confessor, they became in the courts of the Scots kings from David downwards.^ In looking to the success of the Normans, both social and political, as a historical problem, it has to be noted that we have no social phenomena in later times with which this one could be measured and compared. Com- ing from the rude north into the centre of Latin civilisa- tion, they at once took up all the civilisation that was around them, and then carried it into higher stages of development. We have no parallel to this in later times. Civilised communities have not found barbarians improv- ing on them. If we were to see exemplified the pheno- menon of the rude sea-rovers transformed after a couple of generations into the courtly Normans, we must suppose some of the barbarous races we have come in contact with in America, Africa, or Australasia, becoming more civilised than ourselves. There was in the case of the Normans a preceding cause, however, aijjjarently necessary to such a phenomenon, but happily wanting in later times. The barbarians were the invaders, not the invaded ; they were from the beginning more powerful physically than the civilised people whom afterwards they were to excel even in civilisation. Though neither was a sudden afifliir like the conquest of England, yet their migration to France, and their migra- tion to Scotland, were things as different from each other as the rough sea-rover is different from the courtly knight 1 Sir Tliomas Gray, in his Chronicle, written early in the fourteenth century, tells how William the Lion brouj^ht with him, when return- ing to Scotland from his captivity, younger sons of the families to whom he was indebted for courtesies, and how he endowed them with lands. We cannot take the passage as precise statistics. We may get more from it by counting it as the shape into which the chronicler put the traditions of the migration of the great Norman houses to .Scotland. In this view the list of names is instructive: " II enprist oil ly en Escoce plusours dez fitz pusnes dez seygnours Deiigleterre qi ly estoient beinuoillauntz, et lour dona lez terres des autres qy ly estoient relxilis. Si estoint ceaux dez Baillolfs, de Brays, de Soulis, et de Moubray, et les Saynclers; lez Hayes. Ics Giffardis, les Rame- says, et Laundels ; les Biseys, les Berkleys, les Walenges, lez Boysis, lez Mountgomeris, lez Vans, lez Colcvyles, lez Frysers, lez Grames, lez Gourlays, et plusours autres." — Scalacronica, 41. THE NORMAN LEADERS, 1230-45. 1 5 endowed widi all the attributes of chivalry. One would think that, looking to their history, they might have been deemed dangerous guests. Yet the formidable qualitife-s that made them so, might be in some measure the reason why they were courted. Perhaps there was a feeling that protection was to be found at the hands of that mighty race who were subduing all others unto themselves — such a feeling as induces Oriental governments to attract Euro- pean adventurers to their courts. Supreme in England, and everywhere stretching the boundaries of their power, it may have seemed a wise precaution against the aggran- dising eftbrts of such potent neighbours to give them a stake in the nationality of Scotland. Supposing this to have been the policy which filled Scotland with Norman adventurers, and gave them estates, titles, and offices, it might seem to have been a sad failure at the time when the most eminent of these Normans were competing with each other to sell the independence of the country as the price of wearing its degraded crown. Yet in the end it was the descendant of the earliest and most highly fav- oured of these adventurers that wrested Scotland from the riantagenet kings, and established in the country a per- manent national government. The Normans were by no means popular throughout the country. We have seen that on the death of Malcolm III., their first patron, a change of dynasty was almost effected upon the policy of driving them out. In some places they were long unwelcome. An English chronicler, generally well informed, tells how the wild men of Gallo- way, whom we have seen so eager to be let loose on the Normans at the Battle of the Standard, when they returned home from that affair, put to death all the French and English strangers they could lay hands on. They took the opportunity of the king's captivity to rid themselves at the same time of the representatives of royalty ; but as to these they were content to drive them out of their country.^ It tends to confirm this story, that the Nor- ^ " Statim expulerant a Galueia omnes Ballivos et custodes quos Rex Scotiae eis imposuerat, et omnes Anglicos et Francigenas quos apprehendere poterant interfecerunt." — Benned. Ab. l6 ALEXANDER II. man adventurers were shy of Galloway as a suitable place of settlement, and the absence of names belonging to their race among the early landholders there, has been noticed as conspicuous.^ Among the Irish Celts of the western and central High- lands, on the other hand, this policy of planting Norman settlers appears to have been very' effective. It is a pecu- liarity of these races that they must have leaders — they cling to the institution by a law of their nature ; and if the desired dictator and guide do not come in one shape, they will take him in another. This was a disposition exactly adapted to the Norman feeling of superiority and com- mand. Accordingly, we find that, when these adventurers got themselves established, they rallied round them de- voted clans of followers, who looked up to them as their natural leaders and commanders. An incident occurred in the year 1242 which showed the tendency of such con- nections, and had an important influence on subsequent events. The house of Bysset had great possessions in the Highland country around Loch Ness. In the year 1242 there was a tournament near Haddington, where some of the family of Bysset, with their followers, were present. It so happened that one of them was unhorsed by the young Lord of Athole. Speedily afterwards Athole was slain, and the house in Haddington where he abode was burned: it was probably built of wood, according to the practice of the period. The Byssets could not clear them- selves from this unchivalrous deed. It was, indeed, clearly the doing of their followers ; and Highland history shows us that, in times far later, it was impossible to restrain the vengeance of such followers when insult or injury was done to their leaders. Of any such law of chivalry as that which contemplated conflict without deadly malice, and permitted a victor to live if he could be slain, they could form no conception. A strong feeling set against the Bvssets. Their estates had to be forfeited, and the head of the house escaped alive with great difliculty. The family afterwards pushed their fortunes with the other * Innes's Sketches, 96. THE NORMAN LEADERS, 1230-45. 1 7 Norman houses in Ireland, and their Highland estates went to the Frizelles or Frasers, who founded an influence which became troublesome to the government five hun- dred years afterwards. In the mean time the head of the Byssets found refuge at the court of King Henry HI. Here, as the chroniclers tell us, he maintained that he had a right to appeal against the forfeiture to the English king as lord paramount of Scotland. In all such questions, great or small, it is well known that the raising of a practical point has an immense influence in bringing wide questions of principle to a bear- ing. This eminent leader, pleading his practical griev- ances of condemnation by a sort of ostracism and the for- feiture of his estates, was supposed to have gone far in impressing on the English court the policy of practically asserting the superiority over Scotland. Something was said at the same time about the Scots king encouraging English traitors and enemies of the English king. It is difficult altogether to find sufficient immediate cause for what occurred in 1244, just two years after the affair of the Byssets. A great English force then marched to the border and menaced Scotland, while a Scots army was mustered for the defence of the country. It amounted, if we may believe the chroniclers, to above a hundred thousand men, and passed over the border into English ground. This hostile array on both sides is all the more unwel- come a difficulty, that we are told by the chroniclers how, two years earlier, when King Henry was called abroad, he left his close friend, the King of the Scots, in charge of the border districts, — those very territories which the kings of the Scots had been for centuries striving to bring under their own dominion. It has been supposed that there was some foreign element of anxiety or umbrage to the English king arising out of Alexander's second marriage, when he took to wife Mary de Coucy, a lady who figures more in her son's reign than her husband's. But the alli- ance itself could not have been the direct cause of offence, for it was now five years old, dating in 1239. Whatever may have been the cause of the demonstra- tion, it was insufficient to incite to blows. If the Scots VOL. II. B f8 ALEXANDER II. king was at the head of so large and well found a force as the chroniclers speak of, there was on the other side an element new to an English army, and not, perhaps, one productive of much confidence on the eve of a battle. To put to use the new acquisitions of the English kings, bands of the Irisli were brought over under their native chiefs or kings, and we find King Henry with all solem- nity recording his thanks to some twenty of these, with as near an approach to their proper designations as the Nor- man scribe could accomplish.^ Thus there was no fighting, and the sovereigns came to terms in the " Treaty of Newcastle." In its adjustment, no reference seems to have been made to homage on the part of the King of England, or to possessions south of the border on the part of the King of Scotland ; but each engaged not to abet the enemies of the other, and not to make war on the territories of the other without just pro- vocation. From the tone of the chronicles it might be inferred that King Henry found his army averse to a con- test ; that the spirit of the Englishman prevailed over that of the Norman aggressor ; that there was a friendly feel- ing towards the Scots ; and, in short, that the army could not see a legitimate ground of quarrel. Another consid- eration which may have rendered restraining councils the less unwelcome to the Norman mind is suggested by sub- sequent events. If conquest was the object, AV'ales aftbrded a more likely field for the employment of Henry's army ; and at all events, a cruel war there immediately followed the demonstration on the Scots border. Alexander II. died in the year 1249, in the small barren island of Kerrera, which fronts the Bay of Oban. He was there on an expedition to extend, partly by negotiation, partly by force, the authority of the crown of Scotland over these islands and northern districts, which, so far as they were not in the hands of inde])cndcnt local rulers, held rather of the King of Norway than the King of Scots. Alexander boasted that he would set his standard on the cliffs of Thurso, a threat inferring that it was to wave ' FiL-dera, 7th July 1244. HIS DEATH, 1249. 19 over his enemy's ground rather than his own ; and John, son of Duncan, King of the Isles, was induced to visit and negotiate with the King of Scots, but only after obtaining hostages for his personal safety. But John found in the end that it was his safer policy to hold by Norway, which had still the command of the seas. These incidents, personal to King Alexander II., and his death, belong to trans- actions connected with the completion of Scotland as a separate kingdom so important as to desei-ve a separate narrative. 20 CHAPTER XV. NARRATIVE DOWN TO THE DEATH OF THE MAID OF NORWAY. ai,exandi:k II r. — iiis boyhood — influence of his mother, mary DE COUCY — his inauguration^ AS MONARCH, AND THE PECULIAR CEREMONIES OF THE OCCASION — GREAT QUESTION OF THE ANOINT- ING OF THE SCOTS KINGS— ITS CONNECTION WITH THE CLAIMS OF ENGLAND AND OF THE COURT OF ROME — FULFILMENT OF TREATY OF NEWCASTLE — MARRIAGE OF THE VUUXG KING WITH AN ENG- LISH PRINCESS — THE QUESTION OF HOMAGE — THE RULE IN SCOT- LAND DURING THE MINORITY — FACTIONS OF THE COLLATERALS LOOKING FORWARD TO THE SUCCESSION— COMYNS AND DURWARDS — INTERFERENCE BY THE ENGLISH KING — THE ISLANDS, AND THEIR CONNECTION WITH NORWAY— HACO'S INVASION — THE BATTLE OF LARGS— ITS INFLUENCE— INCREASE OF TERRITORIAL POWER — TAXATION OF THE CHURCH — BAGIMOND'S ROLL— ECCLESIASTICAL COUNCILS — AN ECCLESIASTICAL CODE — TAMI'ERINGS WITH THE RECORDS OF HOMAGE — HOl'EFUL FUTURE OF THE COUNTRY — DIS- ASTERS — DEATH OF THE KING'S DAUGHTER, THE QUEEN OF NORWAY — DEATH OF HIS SON— HIS OWN DEATH — DEATH OF THE HEIRESS, THE MAID OF NORWAY. Alexander II. left a son wlio succeeded him, with the title of Alexander III. He was not eight years old when the succession opened to him. There was no attempt to compete with his claim ; and here was another in- stance, following that of Malcolm IV. at an interval of nearly a century, to show that there was a principle of hereditary stability in the succession to the crown. His mother came of a remarkable stock. Alexander IL's union with Joan of England had been unfruitful, and soon after her death in 1239 he took to wife Mary, daughter of Knguerand de Coucy. This family specially represented THE king's inauguration, 1249. 21 the spirit of chivalry. It was not very ancient, nor did it ever boast of great territories. It was the time when the Knights Templars and other orders were developing here and there into powers of a corporate character, which rivalled those of territorial monarchs. The boastful motto of the De Coucys, expressing their pride in the rank which they maintained in this order or caste, is well known.^ This family had brilliant alliances. Enguerand had for his brother-in-law the Emperor Otho IV. And now his daughter was a queen. She was a woman with a will of her own, and helped by her activity and influence to pro- tect her son from the dangers around him, and to shape the policy of the rule that had to be exercised in his name. If we are to adopt what we are told by Walter Bower, \vriting nearly two hundred years afterwards, we find the royal boy crowned at Scone with great pomp, the dignified clergy and great feudatories of the crown attending. Mantled, sceptred, and crowned, he was seated on the mysterious Stone of Destiny, in front of the altar, at the east end of the church of Scone. Then occurred a pecu- liar episode. A venerable, white-bearded man of the Highland tribes, clad in a scarlet cloak, came forward, and recited in his own tongue the genealogy of the young king. When repeated in modern books, this incident looks like a dramatic decoration ; but those acquainted with such writers as Bower will feel that he would not have recorded it without strong reasons for believing in it. It was not an incident congenial to historical ideas in his day and among his class. The Celt had then sunk far down in the scale of estimation ; and to the Lowland churchman of the fifteenth century the Highland seer was as unlikely a participator in state ceremonials as the Indian medicine- man might be to the New-Englander of the eighteenth century. It is the oddity of the aftair that seems to have struck the chronicler ; and, on the whole, it is likely to l^e more accurate than the other specialties described by him.^ '^ " Roi ne suis, ne prince aiissi ; Je suis le Sieur de Courcy." • There can be no doubt that the description (Scotichron., x, 2, 22 ALEXANDER III. Perhaps the secret why the chronicler is so picturesque and circumstantial about the coronation of the young king is, because it came to be connected with some curi- ous questions about the inauguration of a king of Scots. There stands on record a courteous letter to King Henry of England by Pope Innocent IV., professing to be an answer to Henry's earnest recjuest that the Pope would take steps to prohibit the anointing and crowning of the young King of Scots, because he was the Hege vassal of the King of England. The Pope tells him not to be sur- prised at the refusal of such a request, as there was no precedent for compliance with it. At the same time, the King of England might be assured that the Court of Rome would take no steps likely to interfere with the royal dignity of a sovereign.^ It is at first sight difficult to understand how Henry could expect his request to be of any use, for Innocent's letter is dated in 1251. The young king was crowned, according to the chronicles, on the 13th of July 1249, six days after liis father's death. Skene's edit., 294) applies to a Highlander. He is '^ quidam Scotus vene7-abilis . . . guamvis Silvester et montamis hotusle (amen pro tnoJo suo tndutus." He speaks matcrna lingua, and there is an at- tempt to report tlie commencement of his address, thus : " Benach de Ke Albanne Alexander, Mac Alexander, Mac Vleiham Mac Henri Mac David, &c., quod ita so7iat Latiiie, Salve Rex Albanorum Alex- ander Fili Alexandri Filii Williehni," &c. The genealogy is carried l)ack into remote fabulous ages; and this portion of the ejiisode i.- less credible than the rest, as there is reason to Ijelieve that thest very ancient genealogies of the kings of Scots were the creation of the chronicler's own day. Scone is near the Highlands, and the appear- ance there of a mountaineer could not be very wonderful at any time, or, indeed, worth notice. In this instance, however, it forced itsell on the chronicler's notice by the important and unusual function per- formed. The story suggests the probability that the Celts still retained a stronger position in the country than the ordinary annals give them, because these were written in later times, when the Celt had become a creature to be hunted olT the earth. Had we earlier authentic chronicles, we would doubtless know mere of the steps by which the ]jredoniinanl race of the Dalriadic Scots sank into what they after- wards became. It is observable that Lord Hailcs does not stoop to mention the episode of the Highland sennachie. Highlanders had not become fasliionable in his age. ^ Fcedera (Record edition), i. 277. THE king's inauguration, 1249. 23 But was this a coronation of the solemn kind which King Henry desired to defeat ? Was King Alexander crowned and anointed with the ceremonies authorised at Rome? The anointing of kings, according to the tradi- tion of the scriptural usage, was one of the influences made available for diplomatic purposes by the Court of Rome. Many kings were strong enough to hold their own without it, yet it gave a tone of respectability and solemnity to the rule of those who got it, and thence was much coveted. Its extension in any new direction was ever a matter of grave consideration, in which the im- portance of admitting a new member among the ecclesi- astically sanctioned monarchs must be weighed against the displeasure and jealousy of those already included. Properly, indeed, to be anointed was the sole privilege of the Emperor, as holding civil jurisdiction over the Chris- tian world co-ordinate with the Pope's spiritual jurisdic- tion. But other monarchs came to be more powerful than the Emperor. So the kings of England and France were admitted to the privilege, along with the King of Jerusalem, whose position gave him peculiar claims. I'here are traces of the anointing having been twice re- quested for Alexander II., and twice refused ; and it does not appear to have been conceded to Alexander III. That a crown came to be used when a king of Scots was inaugurated, is shovvn by the appearance of such an article from time to time as a valuable piece of property. But it appears that a full coronation, in the ecclesiastical sense of the term, was not conceded to any king of Scotland earlier than David, son of Robert the Bruce. ^ It is cer- tain that in the great pleadings held before King Edward I., when he asserted his claim as Lord Paramount of Scotland, it was put as a material point that the King of Scots was never anointed. Indeed it was said that the ^ See in the Notes on the Preface to the Statuta Ecclesias Scoti- canre, p. xlviii. et seq., a very curious critical examination of the accounts of the inauguration of the kings of Scots, tending to the conclusion that the phraseology of the chroniclers is influenced by their sense of the imperfectness of the ceremony, as wanting the ecclesiastical element. 24 ALEXANDER III. ceremony of his installation was less solemn than that of the Prince of Wales, who was decorated with a garland, and placed on his throne by bishops.^ After the young king's inauguration, the next step was to give effect to a condition in the Treaty of Newcastle, by which he was to become the husband of the English princess Margaret. King Henry took care that this should not be long delayed, and they were married at York on Christmas-day in the year 125 1. The Arch- bishop of York performed the ceremony, and had the responsibility of entertaining the illustrious guests. The King of England was there, so was Mary de Coucy, the mother of the young king, with a great foreign attend- ance ; and few affairs in that age were surrounded with more lustre than the marriage of these two children. We have it on the authority of the English chronicler, Matthew Paris, that the young king went through the form of homage for his English estates, Penrith and Tyndale ; that Henry demanded of him homage for Scotland also, and tliat he made answer that this affair, on which he had not consulted with his proper advisers, the notables of his realm, was too important to be dis- cussed on a festive occasion like the present. Further, that King Henry, unwilling to disturb the harmony of the meeting, pressed the matter no further, but kept his own counsel. This is briefly told by Matthew as if it were a small matter, and his authority for it as an actual occur- ^ Chronicles of St Albans, Rishanger, 339. It was argued from this that Wales was a fief of the English crown, a grade higher than Scotland in feudal dignity. If King Henry's protest against the anointing was concocted with an intention to assert a claim as lord paramount over the minor king, it is significant that he made no actual attempt to assert such a posi- tion. Nothing was more firmly fixed in feudal practice at that period than that the superior held the fief during the vassal's minority. Henry never exercised this right of a superior, and in any other shaj^e than the letter of Innocent there is no vestige of his having professed such a right. Indeed he took up a position quite inconsistent with the functions and position of a lord paramount. It fell to him, as we shall see, to interfere a good deal in the affairs of the country, and in doing so he styled himself " Principal Councillor to the illustrious King of Scotland." QUESTION OF HOMAGE, 1257. 2$ rence must just go for what it is wortli.^ It may be said, however, that King Henry had far more likely opportu- nities for pushing the question of the feudal superiority, but that his whole line of ostensible conduct was that of one who sought to influence the Government of Scotland as the father-in-law of the boy-king, rather than of one desirous of accomplishing the subjection of the country. Any attempt to go into the details of the manner in which the country was ruled during this king's minority must of necessity become confused, because it is filled with intrigues and counterplots and efforts of personal ambition, while neither can the actors nor the policy they pursued be brought out so distinctly as to enable us to take an interest in them. A boy on the throne, with no brother or other near heir, was a condition which naturally stimulated collateral relations to take up a position for prompt action should an opening occur. It happened that there was a cluster of such collateral relations, all ambitious Norman barons, with possessions both in England and Scotland. Their several genealogical stand- inss will have to be noticed afterwards when their claims come up in a practical shape. Meanwhile the most powerful among them was a member of the great family of Comyn, who held many honours and large estates. Op- posite to this influence stood that of Durward the Jus- ticiar. He was married to an illegitimate daughter of Alexander II. He was accused of an intrigue of an ex- tremely significant character in the possible fruit it might bear if successful : this was a negotiation with the Pope to legitimate his wife, and make her the next heir to the throne. That he tried to accomplish such a project will be seen more than once coming up in the disputes about the succession to the crown which became so momentous to the country. Durward's party, which was favoured by England, seized the Castle of Edinburgh, and, according to their own phraseology, "hberated" their young sovereign from sub- jection to the Comyns. Just after this event, in the year 1255, King Henry, who had sent emissary after emis- ^ Edit. 1644 (by Wats), p. 555, Giles's translation, ii. 469. 26 ALEXANDER III. sary into Scotland, thought it necessary to come himself, attended by a considerable force. He met the young king at Roxburgh, and before he turned southwards ad- justed the government of Scotland to his satisfaction. The seizure of Edinburgh Castle, however, had set a pre- cedent often followed in Scots history — that of kidnap- ping a monarch and ruling in his name. The party of the Comyns w^as strengthened by the arrival in Scotland of the king's mother with her second husband, John de Brienne, son of " the King of Jerusalem." The party were strong enough to seize the king at Kinross, and along with him they got possession of a movable, then but of recent appearance, but gradually becoming a symbol of important powers — the Great Seal of the king- dom. This was in 1257. Soon afterwards the Comyns lost their leader, the Earl of Monteith. Whether from this event or not, a regency was formed, which did not look so dangerous as to demand the interference of King Henry, who seems for some years to have let the country alone. In the year 1260, in critical domestic circum- stances, the young king and queen visited the court of King Henry ; and here, in the same year, a daughter was born to them, named Margaret, and destined to be an important personage in Scots history. Three years afterwards there was a memorable invasion of Scotland by the King of Norway. It was the conclud- ing act in the career of the Norsemen or Danes in Scot- land, and affords an op])ortunity for resuming the history of their connection with those outlying provinces which finally became incorporated into Scotland. We have seen how the Norsemen had established a central power in Dublin, so strong that it appeared likely to become the capital of a great sea- empire in the north. We have seen that the prospect of an empire on the waters gradu- ally faded as the descendants of those who lived and fought upon tl>e sea peopled the British Isles and other habitable districts of the north. The chief of the " Osi- men " in the south-east of Ireland gradually merged into a dynasty of monarchs. I'hey were called the Hy Ivar, or descendants of Ivar, carried back by the dynastic spirit THE NORSEMEN AND THE ISLES, 1100-1263. 2/ of the Irish annahsts to an ancestry in " the royal race of LochUn." The Hy Ivar had their relations from time to time with the chiefs of Scandinavian origin nearer Scot- land, but all chance of a united Norse empire stronger than the power of the kingdom of Scotland was at an end. In Irish history, the supremacy of the Ostmen comes to an end in a notable historical climax. In the great battle of Clontarf in 1 1 13, when the mighty Brian Eoroom, the hero- king of the old Celtic race, was killed, his cause prevailed, and Ireland was entirely restored to the command of the native Irish sovereign, Dermot Mac Malnembo. It is a peculiarity, however, of battles in Ireland, that while in the heroic narrative of the historian they have suddenly made an empire out of chaos, there is no perceptible difter- ence in the actual condition of the country ; and the Ost- men appear to have held after the battle their old position, and to have retained it until the invasion of Ireland by men of the same race from England.^ Coming nearer to the Scots kings' dominions, we find at the beginning of the twelfth century the great Mag- nus Barefoot reigning supreme in Man and the islands of the west. He was a monarch of sufficient power to hold diplomatic relations with the King of Scots, and a ^ The most valuable commentary on the history of Ireland during this period, and on the relation of the Irish " Ostmen " to the other Scandinavian colonists in the British Isles, is in the late Dr Henthorn Todd's Introduction to 'The War of the Gaedhil with the Gaill.' His general conclusion is thus given: "The Norsemen of Ireland were not seriously affected in their position by the victory of Clontarf. They retained their hold of the great seaports, and the Irish annals for some time continue to record the usual amount of conflict between them and the native tribes. We read, however, of but few new inva- sions ; and the design of forming in Ireland a Scandinavian kingdom, which seems to have influenced such men as Sigurd of Orkney and the Viking Brodan, was certainly abandoned. The national distinc- tion between the Irish and the Danes, however, continued until after the Anglo-Norman invasion ; the Danes then, in several places, sided with the native chieftains, but in many instances they appear to have recognised in the new-comers a common origin. In the seaport towns especially, a common interest produced alliances by which the peculiarities of the two races were at length softened down, and both were at length confounded by the Irish under the same generic name of Gaill, or foreigners." — P. cxcix. 28 ALEXANDER III. very formidable neighbour. It is told in the Sagas that he claimed the Mull of Kintyre as one of his islands, and in a spirit of menacing jocularity had one of his vessels dragged across the isthmus of Tarbert, he sitting at the helm.^ The inhabitants of these islands appear to have been still, and to have continued for generations after- wards, a wealthy community, like all the others that retained any remnant of the enriching influences of the sea-rovers of old.^ Magnus was afterwards killed in an effort to restore the Norse influence in Ireland. He left his son Sigurd as ruler of the Isles ; but when he went to succeed his father as King of Norway the colony broke up again into separate independencies, the respective histories of which cannot be pursued to any instructive effect. There was a general division of the whole into Nordureyer or Norderies, and Sudurcycr or Suderies, the northern and southern division. The dividing-line was at the Point of ^ Munch, Chron. Man, 66. ^ The following passage is from a book of small bulk, but full of learning and intelligence, the Geographical Illustrations of Scottish History, by David Macpherson (Isles) : "Under the government of these Norwegian princes the Isles appear to have been very flourish- ing. They were crowded with people ; the arts were cultivated, and manufactures were carried to a degree of perfection which was then thought excellence. This comparatively advanced state of society in these remote isles may be ascribed partly to the influence and instruc- tions of the Irish clergy, who were established all over the island be- fore the arrival of the Norwegians, and possessed as much learning as was in those ages to be found in any part of Europe, except Constan- tinople and Rome ; and partly to the arrival of great numbers of the provincial Britons flying to them as an asylum when their country was ravaged by the Saxons, and cari7ing with them the remains of the science, manufactures, and wealth introduced among them by their Roman masters. Neither were the Norwegians themselves in those ages destitute of a considerable portion of learning and of skill in the useful arts, in navigation, fisheries, and manufactures ; nor were they in any respect such barbarians as those who know them only by the declamations of the early English writers may be apt to suppose them. The principal source of their wealth was piracy, then esteemed an honourable profession, in the exercise of which these islanders laid all the maritime countries of the west part of Europe under heavy contributions." THE NORSEMEN AND THE ISLES, 1 100-1263. 29 of Ardnamurchan, the most westerly promontory of the mainland of Scotland, so that lona was included in the Suderies.^ About the close of the twelfth century, a chief or king named Somerled is found exercising a wide but undefined authority both in the Islands and that part of the western mainland which formed the territory of the ancestors of the Scots kings.'"' He was the husband of the daughter of Olave, who had succeeded to power as the representa- tive of the race displaced for a time by the visitation of Magnus and the succession of his son. Of Somerled's own origin there is no distinct account. He is said to have been of Celtic family, and the power to which he raised himself is supposed to have brought the Celts of these districts under the paternal influence of rulers of their own race, by a reaction or a successful revolt against the Norse oppressors, such as that which the Irish claimed from the battle of Clontarf. For this, however, there seems to be no authority, and he was probably an able and successful Viking.^ Somerled, as we have seen, pa- tronised the pretender to the Maarmorship of Ross, and invaded Scotland in his behalf. Through conflicts of various kinds he became to be, if not the sovereign of the 1 Hence the English bishopric of Sodorand Man — Sodor being the southern division of the Scots Hebrides, and not then part of any- English diocese. In its earlier days the bishopric would be under the primacy of Drontheim. The Bishop of Sodor and Man has no seat in tlie House of Lords, owing, as it is commonly said, to Man not Laving become au English possession when bishops began to sit as lords by tenure. ■■^ The latest sea-fight in the old Viking spirit in the neighbourhood of the Scots coast is connected with his career. It was fought in the year 11 56 with Godred, who represented the reigning authority in Man itself, while Somerled commanded in the other islands. — Chron. Man, A.D. 1156. ^ In the Sagas a " Sumarlad " is mentioned as a brother of Einar and Eruse, the two competitors for power in Orkney, mentioned above (vol. i. p. 321). — Munch, Norske Folks Historic, b. 649. The name occurs among the colonists of Greenland — ibid., 363. It has been derived from old Norse, meaning "a summer stranger," as if it pointed to an unwelcome visitor appearing occasionally at the season most appropriate for Viking expeditions. 30 AI EXANDER III. Isles and of Argyle, certainly the holder of the chief power over these districts. Altogether, however, both in his origin and the position he attained, he holds a shadowy place in history. The death of Somharlid, a son-in-law of King Olave of Man, is told with great distinctness. He appeared in the Firth of Clyde with a fleet of a hundred and sixty vessels, having projected the subju- gation of all Scotland ; but at Renfrew the divine venge- ance overtook him, through the hands of a small body of men, and he was slain with a countless number of his fol- lowers; but this occurred in the year 1164, a period later than that of the shadowy Somerled of tradition.^ His re- nown has come chiefly from the houses he founded. The Islands and Argyle, according to Highland story, were separated and inherited by his three sons, and afterwards subdivided among their descendants. If this be true, then the result of the ambition and ability of this chief of unknown origin was not to supersede but to break up the empire of the Norsemen. The traditions of nearly all the clans in the West Highlands and Isles cany back the ancestry of their chiefs to this mysterious Somerled. It was only natural that as the Scots kings increased in strength they should be desirous to annex these dis- tricts. ^V'hen it was maintained that the absorption of the Isles and Argyle was only the recovery of the oldest possessions of the crown, it can be said that the same excuse for aggression has been made in countless other instances, ancient and modern, with far feebler justifica- tion ; for these were in reality the cradle of Scots royalty, and the eastern districts, which were the strength of the kingdom, were recent acquisitions. Accordingly, there was a pressure on the power of these western chiefs. Argyle became nominally a Scots shire, with a Sheriff representing the crown. Demands were made here and there of the chiefs to acknowledge feudal tenure on the Scots crown, and it was in an expedition to push these requisitions that Alexander II. died at Kerrera. Of all the old Scandinavian empire near Scotland, ^ Chron. Man, A.D. 1102-64. BATTLE OF LARGS, 1263. 3 1 commanded from the sea rather than from the land, the Orkneys and the other islands stretching northwards were the most entire remnant — the portion least likely, vmder existing conditions, to fall to the King of Scots. The Norse "community there was still wealthy and powerful. Of the wealth of the Western Isles, then pro- bably decaying, we have only casual vestiges ; but the old Orkney Earldom has left a noble testimony to its afflu- ence in the great cathedral of St Magnus. It is the becoming rival of the two cathedrals on the mainland of Norway, Trondheim and Stavanger. Of the earliest form of Gothic — the Norman — it is the finest specimen in Scot- land, and, excepting the cathedral of Glasgow, it is the largest Gothic church in Scotland brought to completion according to its original design. These islands were beyond the hope of the King of Scots in his efforts to press out the chiefs, either indepen- dent or holding rather of Norway than himself, who ruled so close to his dominions. It appears that he desired to adjust all questions between Norway and Scotland by diplomacy, and that two Scots ambassadors were sent to the court of King Haco. The mission ended in mis- understandings and recrimination. From the Norse side of the disputes, it is told how the Earl of Ross, and other potentates on the mainland of Scotland, had made a ferocious descent on the Isle of Skye. A climax of ferocity not uncommon among such accusations was brought to adorn this one, that it was the delight of the invaders to pick up here and there an infant on the point of a spear, and shake the shaft until the victim dropped down near to the hand, and permitted a close inspection of its dying agonies. It was reported to the court of Norway that these and other things were but the symp- toms of a project in Scotland for the seizure of the Norse dominions in the British seas. Hence it appeared in what follows that King Haco was preparing rather to protect his own than to injure his neighbour.^ Norway at last determined to put to a great issue the ^ Munch, Chron. Man, 1 10. 32 ALEXANDER III. question of keeping as dependencies all the islands and the western districts on the mainland over which Norse chiefs had held rule. In the winter of 1262, King Haco issued warrants for a conscription for this purpose overall his dominions. He was a despotic king, and well obeyed. In the summer his mighty fleet assembled at Bergen. There his son Magnus offered to command the expedition ; but the old king, though, as the chronicle says, he had reigned six-and-forty winters, would not depute so critical a command, and left his son regent of his kingdom. The fleet sailed to the Orkney Islands, where of course it was at home. Ere he left these friendly islands there came a portent that might have disturbed a less resolute leader. At Ronaldsvo there fell a great darkness, so that there was only a thin bright ring instead of the round sun. It has been calculated that there must have been an eclipse of the sun, which at twenty-four minutes past one on the 5th of Au- gust was annular at Ronaldsvo. ■■■ The fleet sailed on to Caithness, which was filled with Norsemen, not very tightly ruled by the Scots king, nor much devoted to him. Here there does not appear to have been any one who professed to represent the crown of Norway; but when he passed southward among the islands, the king had to deal with persons distracted by cruel difticulties. In the first place, they aimed at a sepa- rate authority, independent of any superior. If they were to have a master, they were all too conscious of the near- ness and increasing power of the King of the Scots; but here was for the moment another master at their doors, with utterly overwhelming power at his command. Some of them had been invested with estates on the mainland. ^\'hen the King of Scots had come to terms with any of them, he generally secured the fulfilment of the bargain by bringing hostages to the mainland.^ Among those now secured was the King John wlio had held treaty with ' Arch. Scot., iii. 364 : the calculation was made by Sir David Brewster. * See in Arch. Scot., iii. 367, items of account for the maintenance of these hostages. BATTLE OF LARGS, 1263. 33 Alexander II. According to the Norse accounts, he flatly refused to aid Haco, because he had sworn allegiance to the Scots king, of whom he held more land than of the King of Norway. Haco sailed southward by the Lewis, and at Skye was joined by his son-in-law Magnus, King of Man. In passing still southward he levied on the lords of Cantyre and Isla, who tendered him submission, a purvey of a thousand cattle ; and if he received them, it is clear that these districts must have been well grazed. In the Norwegian account of the expedition we read of many descents on the west coast by detached parties, occasionally penetrating to some distance inland. One of these was a feat so eccentric and original that it must not be passed over. A detachment or squadron of sixty ships, commanded by Magnus of Man, sailed up Loch Long. There they found that the narrow isthmus of Tarbet, quite flat, and only three miles across, separated them from Loch Lomond. They dragged some galleys over this impediment, and launched them on Loch Lo- mond. Along the broad eastern end of that lake stretches the district of the Lennox, one of the most fruitful in Scot- land. This was fresh ground for pillage, and not likely to be guarded against marauders coming from so unlikely a direction. The climax of the great expedition is reached when the main fleet of 160 vessels, sweeping round the Mull of Can- tyre, casts anchor between Arran and the coast of Ayrshire. According to the Norwegian accounts, the Scots sent nego- tiators who would have been content to retain the main- land and the islands enclosed by it, Arran, Bute, and the Cumbraes, leaving the outer archipelago to Norway. The proud master of that great force, however, would give up nothing coming \vithin his claims; and then it was observed that the Scots became shy of further treating, because winter was coming, and that a force was gradually collect- ing on the heights overlooking the Ayrshire coast. That winter was propitious to Scotland. It was of the kind that at the present day would be recorded as disas- trous to shipping on the western coast. Storm followed storm, breaking up the mighty fleet of Haco, by vessels VOL. II. C 34 ALEXANDER III. running foul of each other, or getting stranded or water- logged, or dashed against the rocky shores. One of these disasters brought a crisis. Some galleys were stranded on the coast near the village of Largs. Their crews, when they got on shore, naturally met a hostile reception. The fleet sent assistance ; but as more assistance was sent, still more was needed, as the hostile Scots were increasing in numbers. At last Haco resolved to do battle, and landed a force. According to the Norse accounts, they fought gallantly, but were overwhelmed by numbers. This is probable ; but at the same time there does not appear to have been what could be culled an army on the Scots side. There seems to have been little more than the old gather- ing of the country to resist an incursion of the Northmen, though perhaps there was more to defend, and better defenders, than there might have been centuries earlier. There were, according to the Norse account, fifteen hun- dred mounted and mailed men-at-arms among the Scots. That any national preparation for defence had been made, however, seems improbable from all that comes to us on the Scots side. The disaster to the Norwegians, when their fate compelled them to fight on shore, appears in the Scots chronicles as the battle of Largs, fought on the 2d of October in the year 1263 ; and it is not wonderful that the chroniclers, writing long afterwards, exult over it as a great victory. The shattered remnant of the Norse fleet had to work round the Mull of Cantyre, and then along the west coast, still tormented and suffering losses by foul weather, until they reached the Orkneys. There old King Haco died, on the 12th of December 1263. In death the old Norse king was true to the spirit of his race, though Christianity had released the victim of un- violent d6ath from the dismal eternity to which the old Norse creed consigned him. When he felt the hand of sickness on him he went to the church of St Magnus, then newly built, and one of the wonders of the age, and walked round the shrine of its martyred founder. Indeed, in all things he did his best to follow the precepts of his spiritual advisers ; but the legends of old battle-fields got the better of the legends of the saints. He had read to him first the BATTLE OF LARGS, 1263. 35 Bible, then the Lives of the Saints ; but at last he demanded to have read to him day and night, while he was awake, the chronicles of the Norwegian kings, from Haldan the Black downwards. Throughout the information we possess of Haco's expe- dition, it is clear that little preparation was made by the Government to meet it. There is no notice of any muster of the crown vassals. We hear of no naval encounters, although Scotland possessed ships. It is probable that these were insufficient to operate to any good effect against the mighty sea force of Haco, and that the best to be done with them was to keep them out of danger. Largs was indeed not a spot where a deliberate invasion of the country could well be expected, since it is extremely ill suited for troops forming in strength after landing. Elsewhere to the right and the left there might perhaps have been found navigable sea coming up at high tides to level ground ; but here there is a narrow strip, with bluffs running right up from it. Troops marching along the strip in either direction would be flanked from the higher ground for many miles ; and the alternative of passing through any of the narrow clefts which pierce the range of hills would have been still more perilous. We hear in the earlier accounts of no connnander to the Scots force, nor is it recorded that any of the great feudatories of the crown were present. This silence is made emphatic by the eminence given to the rank and splendid equipments of Sir Pierce Curry, the only man whose name can be absolutely identified on the Scots side at the battle of Largs. The force seems, indeed, to have been a miscellaneous gathering of the peasantry, and as such it affords a forecast of that armed power which the country afterwards showed itself so capable of ani- mating into life in time of need.^ ^ In the absence of any other detailed account of this expedition, it is necessary either to pass it rapidly by as an unexplained incident, or to found on a little book called "The Norwegian Account of Haco's Expedition against Scotland, A.D. 1263, now first published in the original Islantic from the Flateyan and Frisian MSS., with a literal English version and notes by the Rev. James Johnston. A.M." 1782. 36 ALEXANDER III. It was natural that an event such as the battle of Largs should in the popular chronicles of later times find a place with the ravages of the Norse invaders of four hundred years earlier. The fulness of the narrative, due to the later date of the events, only served to give emphasis and distinctness to a class of historical events too vague in the announcements of the older inroads. Here indeed was the last of the outrages from the Viking freebooters. As it was the last, so it was the greatest, and it met a fate that for ever kept the coast of Scotland safe from the inroads of the sea-robber. Many monuments on the west coast belonging to the class called Druidical seemed to commemorate the event, and suit well in their character as memorials of the burial of " the heathen Danes " who fell in their last outrage. Among these a cromlech on a rising-ground near Largs appropriately served as the monument erected over the body of King Haco, as killed in the battle. When the elements had freed the country from its peril, the king sent a great force against the island poten- tates, now at his mercy. The Scots chronicles, as a supplement to the victory, tell us that severe vengeance fell on the island chiefs who had in any way countenanced the invader. Severity and cruelty were too much the or- der of such occasions. These chroniclers, however, writ- ing long afterwards, required such results to supply the moral to their view of the conduct of men who are de- nounced by them as perfidious traitors to their king and country. To add another picturesque touch to this view, it is told how old Haco, when death approached him, believing it incumbent on him to leave behind the means of visitation on such wickedness, sent to King Alexander the letters inviting his descent, which he had received from those treasonable subjects.^ This disaster was a blow keenly felt in Norway as a diminution of power. Three years afterwards, in 1266, Magnus IV., the new king, by formal treaty, ceded to the King of Scots Man and all the Western Isles, specially ^ See the Scotichronicon and WviUouo, bagimond's roll, 1275-76. 37 reserving Orkney and Shetland to the crown of Norway. On the other hand, the King of Scots, in consideration of the powers or claims ceded by the crown of Norway, agreed to pay down a ransom of a thousand marks, and an annual rent of a hundred marks. There was no stipu- lation for homage or any feudal ceremony on the occa- sion.^ In the year 1281 a bond of amity was established between the crowns by the marriage of the Scots Princess Margaret to Eric of Norway. There were some secondary troubles in this reign connected with the adjustment of the independent rights of the Scots Church. In the rescript already spoken of, in which Pope Innocent IV. refused to comply with the demand made on the part of England about the crowning of the King of Scots, he also declined to authorise King Henry to draw the tax on benefices in Scotland, with the remark that such a claim by one prince on the dominions of another was unknown. In 1254 Innocent IV. granted to Henry a twentieth of the bene- fices in Scotland on condition of his joining the crusade. The arrangements for the disposal of the money to be thus raised were so shifted and adjusted from time to time, as to show that the Court of Rome held this to be a fund entirely at its own disposal. The money, how- ever, though it seems to have been partly collected, was not permitted to cross the border. The king and the clergy were at one on this point, and had a practical excuse for the retention by fitting out a small expedition of Scots knights, who joined the crusade, from which none of them return ed.^ A taxation of Church livings involved a rating of their value : and it is found that such a rating had been made, in part at least, as early as the reign of William the Lion. When the taxation of lands comes up for consideration, there arises a natural dispute if the value of the lands has ^ Robertson's Index to the Charters, lOi. 2 One of these, the Earl of Carrick, left a widow, who, by her romantic marriage with the son of Bruce, the competitor for the crown, became the mother of the great King Robert. 38 ALEXANDER III. risen since the latest preceding valuation was applied. If there be an old recorded estimate of value, it is the interest of the payer of the tax to hold by that estimate, of the receiver to have a new survey. In 1275 there came to Scotland, commissioned from Rome, Boiamund de Vicci, commonly called Bagimond. His errand was to collect the tenths of benefices, and to have them rated according to their existing value. The Church stood tenaciously by the old practice, and prevailed on the Papal agent to return and represent their case at Rome. Whether his representations were earnest or not, they were not successful. He returned and completed his valu- ation. It was a permanent record, known as Bagimond's Roll, and was the foundation of ecclesiastical taxation down to the Reformation. It has been remarked that, whether from imperfect collectioii or some other cause, the Court of Rome profited little by the new valuation, and that it made but a trilling addition to the amount that would have been collected under the old practice. The subsequent history of Bagimond's Roll is as instructive as its precedents on the distaste of a progressive country for new valuations. After a time, the demand ever was to tax upon the valuation in Bagimond's Roll — not the exist- ing value ; and thus, centuries after the time when it had been resisted, both as a heavy tax and a badge of sub- jection to Rome, it was cherished as a vested privilege of the Church in Scotland.^ There were other ecclesiastical difficulties, but they were not of magnitude, and ended well for the indepen- 1 A valuable inquiry into the question how far we have existing evi- dence for the contents of tliis roll, along with an inquiry into the amount fust realised under it, will be found in the preface to the Statuta Ecclesiae Scoticanx, p. Ixv. ^/ set/. *' The whole amount received in tlie three years beginning with the Feast of the Nativity of St John the Baptist, 1274, was ^^7195 sterling, or, on an average, ^2035 a-year. This would not represent a yearly value of more than ;J20,3S0, being an increase of only ;Ci6S8 on the yearly value, shown by the Antiqua Taxatio." See also Origines Parochiales, pref xxxiv. "Boiamund died before the collection of the tax was completed. The gathering in of the arrears was intrusted to certain merchants of Florence, Sienna, and Lucca." — Ibid. ECCLESIASTICAL COUNCILS, 1225-80. 39 dence of the Scots Church. The Papal legate, Othobon Fiesci, proposed in 1267 to pass from England into Scotland, and there hold an ecclesiastical council. He was not admitted into Scotland, apparently because he had been accredited as legate only to England. He then demanded that the Scots bishops, along with represen- tatives of the lesser clergy, should meet him in a council to be held in England. Two bishops and two heads of religious houses were sent on the occasion; but it was not, as we are told, for the purpose of holding a council, but of protesting against any acts prejudicial to the Church of Scotland which might be done by any council assembled in England. Meanwhile the Church had been consolidating itself as a special institution, belonging to Scotland as a separate state. Several national councils — provincial councils, as they were called in the nomen- clature of the Court of Rome — assembled. It was re- presented to the Papal Court that such provincial councils were necessary for the due observance of the laws and injunctions of councils-general, especially in so remote a district as Scotland. It had become a rule of the Church that metropolitans presiding over ecclesiastical provinces were annually to hold provincial councils for the enforce- ment of the laws of the Church, the reformation of manners, and the other functions proper to such bodies. Scotland had as yet no metropolitan. It is likely enough that there was hesitation as between either of two strong measures — conceding the English supremacy, or making one of the Scots bishops supreme by the established form of sending a pallium to him. At all events, the course taken was of a middle kind. In the year 1225 a bull was issued, authorising the Scots Church to as- semble in council without special Papal authority, or the presence of a legate. At the assemblies so held, a code of laws or ecclesiastical canons was adopted. It contains fifty-nine statutes or short chapters, of which it may be said that they do not so far depart from the ordinary in- stitutions and practice of other Churches as to afford those marked peculiarities which give a distinctive character, and a sort of picturesqueness, to the ways of the Church 40 ALEXANDER III. of Scotland in earlier ages. They are, in great measure, adaptations from the English ecclesiastical laws. So much about the date of this code is known that in its complete form it cannot be so old as the year 1237, yet must have been in existence before the year 1286.^ Few states could, in that age, look forward to a more serene and prosperous future than Scotland after the battle of Largs. A son was bom to the king — the chroniclers have it that he was told this on the day when he got news of Haco's death. Ere he was yet forty-four years old, with two children and a grandchild, he gave a tolerable pro- mise of undisputed succession. A dangerous enemy was humbled and thrown to a distance, and the English claims seemed a vision of the past. The fate of nations, as we have seen, had come to depend, more than of old, on genealogical conditions, which dictated the succession to royal houses, insomuch that the events which plunge a family in grief might also be a real calamity to a people. A succession of such calamities followed close on each other. In preparation for them we may count the death of Henry III. in 1272 as a calamity, in that it bequeathed the opportunities offered by the others to a spirit so cap- able, vigilant, and remorseless as that of Edward I. King Alexander, who was of like age with his brother-in-law, got over successfully any difficulties about homage at the coronation, exempting his right as a free sovereign from his obligations, and all went smoothly for ten years ; — so at least it appeared upon the face of history. Nothing comes up in the course of public known events to disturb or alarm Scotland about the designs of the English king ; but there is a small entry in the English records in the Tower which afterwards did disturb the champions of national independence, and create hot discussion in the great literary war about the homage question. There is a transcript of a Close Roll of the sixth of Edward I. (1278), ^ Preface to Statuta Generalia, liv. This code, which first ap- peared in the Concilia of Wilkins, to whom it was supplied by Ruddi- man, was reprinted by Lord Hailes in the third volume of his Annals. The authoritative version will now be that of Robertson's Statuti. THE HOMAGE QUESTION, 1278. 4 1 recording that the King of Scots came to Westminster to proffer his homage. We are thus prepared for the method of the homage, Hmited or unUmited, and are told that it was complete and comprehensive.^ It could only be said that this was the English version of the affair, which could not be justly pleaded to the prejudice of Scotland. A zealous Scot, however, determined to see with his own eyes if it were so written in the bond, found that the pas- sage had been inserted on an erasure. It was thus evi- dent that the roll originally contained something which it was desirable to replace with something else.- It happens that a scribe of one of the oldest of the Scots monasteries, as if to guard against any such treach- ery, kept a note of the precise form of the ceremony of homage and of its conditions. These, according to his sense of them, were very emphatic : — " In the year of God 1278, on the day of the Apostles St Simeon and St Jude, at Westminster, Alexander, King of Scots, did homage to Edward, King of England, in these words : ' I become your man for the lands which I hold of you in the kingdom of England, for which I owe you homage, saving my kingdom.' Then said the Bishop of Norwich, ' And saving to the King of England, if he right have, to your homage for your kingdom ;' to whom the king immediately answered, saying aloud, ' To homage for my kingdom of Scotland no one has any right but God alone, nor do I hold it of any, but of God.' " ^ While such weapons of contest were preparing in the recesses of cloisters and record-houses, troubles more palpable and public were at hand. In 1283 came the news that the king's daughter, Mar- ' " Et illud ei fecit in haec verba : 'Ego, Alexander, Rex Scot- orum, devenio ligius homo domini Edwardi, Regis Anglorum, contra omnes gentes.' Et idem Rex Anglias homagium ejusdem Regis Scotise recepit." 2 Allen's Vindication, 87. 3 " Cui rex statim respondit aperte dicens, ' Ad homagium regni mei Scocias nullus jus habet nisi solus Dominus ; nee illud teneo nisi de solo Domino.'" — " De homagio quod fecit Alexander Tercius, Rex Scocise, Edwardo, Regni Anglise, pro terris suis quas habuit in regno Anglife ;" Register of Dunfermline, 217. 42 ALEXANDER III. garet, Queen of Norway, had died, leaving a newly-born daughter. Within a few months the king's son, Alexander, married to Margaret, daughter of the Earl of Flanders, died also. Here at once the country was in a sea of difficulties. We have seen that in England, rather more than a cen- tury earlier, the law of succession had not become so exact as to fix whether an heiress should succeed to the crown or should be absolutely excluded. Such a question was a like novel criterion of the rule of succession in Scotland. Had there been so near a relation as an uncle — a brother of the late king — to rest upon, there is little doubt that he would have succeeded Alexander. It was known that there were several expectants of the succession, but they were all distant collaterals. What was far more serious, however, they were all Norman barons, with possessions in England as well as Scotland. There was no doubt, although Norman names are then so conspicuous in great state transactions in Scotland, that there was a strong middle class, backed by a peasant and burgher class, who disliked the Norman intruders, and felt a horror of any subjection to a Norman government such as England had now been suffering under for two hundred years. To them it appeared that Scotsmen were drifting towards such a fate, with nothing at present existing but the frail child away in Norway to protect them. Whether it should be the Eng- lish king himself, or one of those Norman magnates sur- rounding his throne, that was to rule, would make little matter ; it would still be Norman rule. Impelled by such a prospect, there was a determination at once to render the succession of the child as secure as it could be made. The Estates met at Scone so quickly after the news of the prince's death, that their resolution was made contingent on a posthumous child being born by his widow. Saving such an event as the king having cliildren, it was resolved that the crown should go to the Princess of Norway. Soon afterwards, in 1285, the king married Joleta, the daughter of the Count of Dreux. It happened that within a few months afterwards, the 12th of March 1286, he NATIONAL CRISIS, 1286-90. 43 chose to ride in the dark along the coast of Fife opposite 10 Edinburgh. Near the present burgh of Kinghorn he had to pass over a rugged promontory of basaltic trap. He was pitched from his horse over one of these rocks and killed Such was the final calamity, opening one of the most gloomy chapters in the history of nations. Within a month the Estates had met at Scone and ap- pointed a regency to govern the kingdom in the absence of its queen. The formation of this body kept up the pecuharity that the country was divided into two com- munities by the Forth. Three guardians were appointed for the southern district, the old Roman province, and three for the northern, the Scotland that a century earlier had been bounded by the Forth as the Scots water. Each set consisted of a bishop and two barons. Of the north- ern guardians the Earl of Fife was murdered and the Earl of Buchan died, so that as ruler of that district there re- mained the bishop only, Eraser of St Andrews. There was now much stir among the collaterals. The nearest male relation of Alexander was Robert Bruce, the grandson of Earl David. It has been seen that, more than forty years before, Alexander II. had arranged that if he died childless Bruce should succeed to the crown. He was then the only male representative of William the Lion's brother. Earl David ; but there were now other male descendants, and even in the imperfectly-formed genealo gical notions of the day that altered materially the power of his claims. Still he was in a position to indulge in high hopes, and showed a disposition to realise them if he could. He assembled his retainers and took an attitude of such decided menace that in the subsequent competi- tion for the crown he was charged with rebellion against his queen by marching against her fortresses with banner displayed, and especially by assailing and seizing her castle of Dumfries.^ ^ In Baliol's pleading of his cause before King Edward, of which hereafter, it is set forth that Brace and his son, the Earl of Carrick, attacked the castle of Dumfries with banner displayed, and drove ou: the garrison. The record is imperfect, but it charges him with taking 44 ALEXANDER III. He indulged in the hope that King Edward would even now, and while the young queen lived, help him to the throne. There is extant a document in which he threatens the guardians that in case they should choose John Baliol to be king, as he hears they intend, he shall put himself into the hands of the King of England. His threat is backed by seven earls, and supported, according to his assertion, by a body of the community. This curious document is silent on two points. It says nothing about the existence of the child who was held to be the Queen of Scotland, and it says nothing about a right of superiority over Scotland in the monarch to whom he threatens to appeal for the enforcement of his rights. He was King Edward's subject; and, denied his rights elsewhere, he would throw himself on his lord and master for aid and protection. But there is something in the tone of the threat to show that, if he must take assistance from such a quarter, he was likely to hold Scotland of the master who would give it to him.^ Bruce was, however, suddenly liberties with another royal castle. Its name cannot be read, but Sir Francis I'algrave thus renders the incident : " He then caused a pro- clamation to be made by one Patrick M'Guffok within the bailey of the same castle. The tenor or subject of this proclamation cannot be precisely collated." — Documents illustrating the Hist, of Scot., 42 ; Introd., Ixxx. ^ All that we know about this threat is scattered through the pro- vokingly fragmentary morsels from some parchments in the English Treasury, which have been preserved and printed by Sir Francis Pal- grave in his volume of Documents and Records illustrating the His- tory of Scotland. Probably the accuracy of the transcripts given by Sir Francis will never be tested by comparison with the original frag- ments, nor need it. The devotion of this zealous antiquary for the purity of texts was so ardent, and his skill in deciphering was so great, that any one going over the originals, and taking a different reading of any passage, would at once admit himself in error and accept of the reading printed by Sir Francis, both in the parts where he is able sometimes to give a sentence nearly or actually complete, and in those where he can only make out a few fragments of words. There is not, however, the same implicit reliance when Sir Francis draws large conclusions from his painfully-deciphered fragments. Because Robert de Bruce threatened, or appears to have threatened, the guardians with the interference of his lord King Edward, one is not disposed to consider this as evidence of a complete understanding among all con- cerned that King Edward was Lord Superior of Scotland. The terms NATIONAL CRISIS, 1286-90. 45 silenced — so suddenly that the chronicles give but a faint echo of his having stirred at all. We must suppose, there- fore, that he got some significant hint from that master of whom he held such solid estates as might well outvalue a shadowy crown. used, so far as the fragments retain them, are quite different from those which Robert Bruce used afterwards when he pleaded his claim before Edward, and called him Lord Superior of Scotland at every turn. The strongest terms he uses in his threat announce his deter- mination to stand " protectione et defensione predict! domini Regis Anglise et corona sua regia ;" but in his subsequent pleading for the crown the phraseology is "coram prafato domino nostro Rege, tan- quam coram superiore seu directo Domino Regni Scotias." The pleadings, of which some account will come in the right place, are rife with such expressions, but it would not have been safe to employ them in Scotland even when Sir Robert was threatening the guardians. In fact, so far as a tone can be taken from the incoherent morsels of his threat, he seems to have come forth in a form familiar enough in smaller affairs — that of the dependant of a man of power bullying persons humble but independent, and threatening to bring his master down upon them. Mr Carlyle would find here a thorough specimen of that psychological phenomenon which in his technical nomencla- ture is known by the term "flunkeyism." People are not accustomed to associate such characteristics with the name of Bruce ; and as we shall meet this member of the family again, it may be as well to keep distinctly in the mind that it was not he, but his grandson, who was the hero of Bannockburn. The fragments found by Sir Francis in the Treasury were not only satisfactorily conclusive to him in the matter of the supremacy of England, but convinced him that there existed in Scotland a remark- able constitutional body — a board, as we would call it at the present day — consisting of vSeven Earls, who, among their other functions, had the settling of the succession to the crown in all cases of dif- ficulty. In fact, the editor's comments on the valuable documents which he had the merit of finding and preserving, exemplify a frailty to which the skilful archaeologists who deal much in manuscript authorities are liable. They are apt to give undue importance to the weight of any new matter they have been so fortunate as to discover, and so to contort the features of history. The greater and the more valuable part of the materials of history has been no doubt brought into existence by those who have gone to such sources, yet at any one point the matter specially known to some skilful decipherer is but small in comparison with what is in print, and known to all who care to seek for it. Though it is vain work to look for something like a board of control or an electoral college so constituted, yet a reference to seven earls is 46 ALEXANDER III. Looking back upon this crisis through the light of events happening a few years afterwards, we find a very notice- able blank, though the Estates and others concerned in Scotland were probably unconscious of it. Here again the succession to the crown of Scotland opened to a minor ; and if the King of England had been, as soon afterwards he said he was, the Lord Paramount of Scotland as a fief of the English crown, it was not only his right, but his feudal duty, to take on himself the management of the affairs of the fief. Further, it evidently should have been a serious matter for his consideration whether it was to be admitted that Scotland was so exceptional among sove- reign fiefs as to be descendible to an heir-female. The lord superior had great interests at stake, and everj^thing to say in such a matter. A superior with an heiress-vassal to common in old records, and provocative of curiosity. In a document in the chartulary of Dunfermline, a certain act of feudal investiture is referred to, and its date is identified by the day on which St Margaret's remains were removed to the high altar of Dunfermline (see vol. i. p. 3S1). To mark the event of removal, it is said to have been made in the presence of King Alexander III., seven bishops, and seven earls of Scotland — " septem episcoporum et septem comitum Scotire" (Register of Dunfermline, 235). In one of the chronicles, an attack on Carlisle by the Scots in 1296, to be afterwards mentioned, is said to have been made under the leadership of seven earls whose earl- doms are given — Buchan, Monteith, Strathearn, Lennox, Athole, Mar, and Ijadenoch. " Quo tempore septem comites Scotia;, vide- licet de liowan, de Moneteth, de .Stradeherne, de Lewenes, de Ros, de Athel, de Mar, ac Johannes filius Johannis Comyn de Badenan, collecto exercitu." — St Alban's Chronicles, Rishanger, 156. Seven earls of Scotland were said to have been slain at the Ijattle of Neville's Cross. Mr E. W. Robertson, in his Scotland under the Early Kings, has commented in his usual impartial spirit on Palgrave's discovery, and notices the old reference in the tract De Situ Alijani;\: to the tra- dition about the seven provinces of Pictland (ii. 504). The mystery will probably be solved some day, and found to be very simple. Other parts of the world have been vexed by this "mystic number seven," as it is termed. The Saxon kingdoms were still called a Heptarchy when it is certain that seven was not their number. But everything in Britain must yield to the scale on which the mystic figure worked in Ireland. We are told how " the fact that Aengus was able to enumerate 141 places in Ireland where there were or had been seven contemporary bishops, seems to indicate the existence of an institution founded upon the mystical sez'en of the Apocalypse." — • Todd's St Patrick, 35. NATIONAL CRISIS, 1286-90. 47 dispose of, had gained a prize in the feudal lottery which no ordinary man would neglect. A monarch who after- wards, as we shall see, was so punctilious in giving due weight to all rules of law and personal rights, might have been expected to look to all these things. It was not his policy, however, at that point of time, to proclaim himself the Lord Superior of Scotland, and none of the diplomatic documents to which he was a party give a hint of such a claim, though afterwards his scribes were careful to make frequent repetition of his title of Lord Superior in all docu- ments which concerned Scotland. His designs were of a kind which required accomplices to complete them, and he waited until events gave him accomplices. His first policy, however, rested on conditions fundamen- tally different from those with which he ultimately had to deal. He had then a secret intention divulged no further than was absolutely necessary for accomplishing the first steps towards it. He had, in fact, obtained a dispensation from the Pope to enable his son Edward to marry the infant Queen of Scots — they were cousins-german, and so within the prohibited degrees by the canon law. So stood matters when King Eric sent to England certain commissioners or ambassadors. What urged him immediately to this step, or what he expected to gain by it, it is not easy to see, but it became the function of these representatives to look after the interests of the young queen. Edward asked the Scots regency to send com- missioners to meet them. Four were appointed — the Bishops of St Andrews and Glasgow, with Bruce and Comyn. They had powers to treat, which excluded all acts prejudicial to the nationality and public interest of Scotland. Commissioners were appointed by King Edward, and the three commissions met at Salisbury. It was a vague conference. If the great secret of the designed marriage with the Prince of England was known to those present, no discussion on it appeared in their proceedings. It was promised for Norway either to send the young queen to Scotland, or to send her to England free of matrimonial engagements. For England something was said about the necessity for establishing good order in Scodand, and that 48 ALEXANDER III. being accomplished, the young queen, if in EngUsh hands, should be transferred free to Scotland ; but there was a condition of some significance, that security should be given that she would not be bestowed in marriage except by Edward's advice, and with the consent of King Eric, her father. The Scots promised the establishment of good order, and offered to remove any of the guardians who might be obnoxious to King Eric. It seems to have been immediately after this meeting that the Scots heard of Edward's intention about the marriage, and it was discussed at a meeting of the Estates. Edward was besought by them to tell if this were true, in a shape which showed that they caught eagerly at the proposal; and with like eagerness they urged King Eric to send over their young queen. Edward must have admitted his project, for we find him assuring the Scots that he could use influence to make Eric send over the child, and he was urged to use that influence, since it appeared that her father was reluctant to part with her. It is clear that, whether wisely or not, the Estates thought that the chances for Scotland were better in a marriage of their cjueen with the King of England that might be, than in leaving the throne to encounter the dangers then in prospect. Meanwhile they did their best for the protection of the country by a solemn treaty. It was accepted by the clergy, nobility, and whole commimity of Scotland, assembled at Brigham, near Berwick, on the iSth of Ji^dy 1290. It provided that the rights, laws, and liberties of Scotland should continue entire and unviolated ; the kingdom of Scotland was to remain separate from England, divided by its proper marches ; no crown vassal should be bound to go beyond the boundaries of Scotland to do homage to a sovereign residing within England, but when necessary a commissioner should be appointed to receive the homage within Scotland ; no native of Scotland was to answer beyond the marches in a civil cause, or for a crime com- mitted by him in Scotland ; no parliament was to be held outside the boundaries of Scotland to discuss matters re- specting the kingdom ; and lastly, among matters dealing NATIONAL CRISIS, 1 286-90. 49 more with mere detail, one touched an important point. Care was taken that there should be an entirely national Great Seal, always to be held by a native of Scotland. There were stipulations of a general tenor, reserving all rights existing in the King of England or others as to the marches or elsewhere, and some have thought that these conditions virtually neutralised the whole. They would have gone for nothing, however, in any interpretation of the treaty, and its specific conditions were as strong a protection to the nationality of Scotland as parchment could create. King Edward himself afterwards certified in the strongest way its efficiency as a treaty, by requiring that Baliol, on obtaining the crown of Scotland at his hands, should cancel the treaty of Brigham. King Edward's first act after the acceptance of the treaty must have startled the Estates. He sent Anthony Beck, the warlike Bishop of Durham, to act, in concert with the guardians of Scotland, and with the advice of the Estates, as lieutenant for Queen Margaret and her husband, — and this in order that he might be able to keep the oath he had taken to maintain the laws of Scotland. He next demand- ed the possession of royal strongholds in Scotland, on account of some suspicious rumours that had reached him. It is open to any one to maintain, and but for Edward's subsequent career it might have been plausibly maintained, that he was here influenced by a determination to protect the kingdom against the pretenders to the throne. There was at that time v/ritten to King Edward a letter by the Bishop of St Andrews, which became memorable, and has to be referred to further on. The letter expressed gratitude for a message brought from King Edward, whence it is to be inferred that the king took graciously the refusal to give up the castles. The satisfaction from this petty success was, however, clouded by the rumour of an event likely to overwhelm this practical difficulty, and all others of its kind, in far more momentous issues. The rumour was confirmed, and it became known that the young queen — the Maid of Norway, as she was called — had died at Orkney, on her way to Scotland. VOL. II. D 50 CHAPTER XVI. PROGRESS OF THE NATION TO THE WAR OF INDEPENDENCE. TOPOGRAPHY — BOUNDARIES OF THE COUNTRY — THE PROVINCES — CAPITAL TOWNS — MINOR TERRITORIAL DIVISIONS — SHERIFFS — THANES — MAARMORS — PROGRESS OF FEUDALISM — OLDER LAWS FOUND IN OPERATION WHEN FEUDALISM BEGAN — THE FICTITIOUS CODES OF OLD LAWS — THE REGIAM MAJESTATEM — CRITICAL LITER- ATURE ABOUT IT AND OTHER EARLY LAWS— ACTUAL VESTIGES OF THE OLD LAWS — LOCAL CODES, LOTHIAN, GALLOWAY, ETC. — PECUNIARY MULCTS FOR OFFENCES— MONEY VALUE OF THE CITIZEN — COMPARISON WITH THE SPIRIT OF THE ROMAN JURISPRUDENCE — INFLUENCE OF THE SPIRIT OF NEIGHBOURLINESS AND COMMON RESPONSIBILITY — SPIRIT OF FAIRNESS AND HUMANITY— SPECIMENS OF ANCIENT LAWS— ORDEALS— BATTLE— RISE AND INFLUENCE OF MUNICIPALITIES — PROTECTION TO LIBERTY — NO MAGNA CHARTA, OR CHARTERS OF THE FOREST — SUCH PROTECTIVE CONCESSIONS NOT REQUIRED. We have now reached a critical period — it might be called the critical period — of our history. For some time to come every year has its own trouble in danger and contest ; and v/hen these years of trouble are over, the community emerging from them is different in many essential elements from the community upon whom they opened. The opportunity, therefore, seems suitable for casting a glance at the condition, so far as we can make it out, in which this period of difficulty found the country. The history of the contests in the outlying districts has shown the difficulties which the authority of the King of Scots had in extending to certain territories in the north and the west, which, in the end, came under his rule. We TERRITORIAL DIVISIONS, 1000-1290. 5 I have seen how the term Scots was first applicable only to natives of Ireland ; how it crossed the Channel, and in- cluded the descendants of those Irish who had settled in Argyle; and how, at last, the monarch ruling from the Tweed and the Solway northward was named the " King of the Scots." Still that was a colloquial expression, such as we use when we design the United Kingdom of Great Britain and Ireland by the word Britain, or England. The King of the Scots, when he issued his charters as a notifi- cation to all classes among whom he held rule, called them Francs and Angles, Scots and Galwegians. The Francs were the Norman settlers, and had become so numerous as to be a great element in the population. The Angles were the refugee families who had fled from Norman tyranny in England, and perhaps the whole population of the Lothians was so called. The term Scotia or Scotland at this time meant the country north of the Forth. This river, with its Firth, was called "the Scots Water," and Lothian and Galloway were as yet countries only united with Scotland under the same crown. Thus, among the earliest of the public laws — those attributed to William the Lion— there is a regulation by which an inhabitant of Scotland, making a seizure or distraint beyond — that is, south of — the Forth, must bring it under the notice of the sherift" of Stirling — spoken of sometimes as a town on the border of Scotland — and convey it to Haddington, where it may be redeemed.^ By the same old law, certain places are appointed in Scotia to which all legal writs should be returned, and these may be counted, so far as a declaration or regula- tion could make them, the local Capitals of their respec- tive districts. They were — for Gowrie, at Scone ; for the Stormonth, at Cluny ; and for Strathearn, at Kyntinloch, now identified with the village of Kintillo on the river Earn, three miles from its junction with the Tay.^ All these ^ "Nemo de Scocia debet accipere namum ultra aqnam de Forth uisi prius ostenditur vicecomiti de Strivelin." — Assisse Regis WiUelmi, XLxvii. * Kyntinloch was supposed to have stood where Perth now is. The 52 PROGRESS OF THE NATION. districts were in Perthshire, and showed that there the centre of Scotland proper stood. For the district of Athole, the central station was at Rait, now Logierait, in Perthshire ; for Fife, at Dalgynch, supposed to be Mark- inch; for Angus, at Forfar; for tlie Mearns, at Dunnottar; for Mar and Buchan, at Aberdeen ; and for Ross and Moray, at Inverness.^ We find no decided tendency in any town or fortress to aggregate to itself the conditions of a national capital. The King of the Picts was said to have had his capital successively at Inverness, at Fort-Teviot, a few miles south of Perth, and at Abernethy, on the south bank of the Tay. The King of the Scots, while he ruled only in the west, is said to have held court at Innerluchty, or, as it is now called, Fort-William; while the King of Strathclyde had his at Alcuin or Dumbarton. But these are capitals only in the magnilocjuent language of the chroniclers, which will accept of nothing less than an empire with all its parts complete, though dealing with a community which is but faintly articulated out of the general chaos. That the rulers of the districts occasionally frequented such places, is all that can be authenticated towards making them capitals. As the state broadens and consolidates, these annalists are less apt to find a capital for it, because more is known of its actual internal organisation. Scone at Perth, where identity of the place with Kintillo was suggested to me by more than one friendly correspondent. This villngc is interesting and peculiar, as still bearing marks of old importance. Instead of the usual Scots midland village, with its sordid cottages, slated or thatched, it is a short street of houses, considerable in size, generally witli railed-off gardens or shnibberies. It is veiy like the old suburbs of villas that grew a few years after the union of the crown, when the fear of inva- sion from England no longer kept the affluent citizens within the walls. It is so often seen as to become almost a law, that when no serious disturbing element breaks in, the several buildings of a cluster are renewed from time to time on the old ground-plan. Hence it is likely that the present houses of Kintillo, though probably none of them is above two centuries old, carry down to us the aspect of n place of ancient importance. ^ Assisx Regis Willclmi, xiv. TERRITORIAL DIVISIONS, 1000-1290. 53 the Stone of Destiny was kept and there was a favourite royal residence, bade fair to become the centre of govern- ment ; but in wealth and importance it was exceeded by Berwick. Dunfermline was a favourite royal residence ; and we find the king issuing his writs from Edinburgh and Roxburgh, and successively from various other places in which he sojourned for the time. We shall have to deal farther on with the burghal com- munities, and the influence of their trade and special privileges in creating towns. We have seen something of the local divisions into dioceses and parishes, created by the progress of ecclesiastical organisation. There was another great local division, for purely civil purposes, into Counties, Shires, or Sheriffdoms. In England, the distinct partition between the several Anglo-Saxon kingdoms drew several strong lines of demarcation, which served as boundaries to counties. In Scotland, the counties, as they exist, became gradually marked off or articulated, through that aggregating force in the growth of feudal crowns already alluded to, which took shape in converting inde- pendent local potentates into representatives of the crown, or in setting down such representatives to exercise a joint authority with them. This was met by a counter-force equally feudal in its nature, by which the office of repre- sentative of the crown had a perpetual tendency to become hereditary, and so all but independent of central authority. The contest of these two forces makes great confusion in the early growth of sheriffdoms, which becomes mixed up with that of the feudal nobility. We have Thanes, Earls, and Counts — all terms in some measure synonymous with Sheriff, and all on occasion nominated by the crown ; yet afterwards comes, as a new missionary to give effect to the royal authority, this same Sheriff or Shire-graff. There came, however, to be this much of distinction between the sheriff and the other local dignitaries, that the sheriff, whether hereditary or not, was nominally the servant of the sovereign, and that all his official acts as sheriff" were, or ought to be, for the benefit of the crown and the furtherance of government business. Further, while the territories over which the other local dignitaries 54 PROGRESS OF THE NATION. exercised authority depended on the extent of their own feudal rights of property or superiority, the sheriff's autho- rity came to be determined by a fixed arbitrary limit — the boundaries of the Shire or County. But even to this, as a general rule, there were excep- tions ; for special rights of sheriffdom over detached pieces of territory were conferred on families of powerful local influence. Others held Baronies, which conferred the right of holding courts of justice, with certain limited powers ; or Regalities, which conveyed a like right with much higher powers. Taking in at a general glance the writs in which such judicial powers are dispersed among the leading families all over the country, a natural first im])ression is that the crown had profusely alienated to subjects the power and responsibility of administering justice. But in reality the process was ruled by another of the speciahties of the growth of the feudal monarchy already referred to. The sovereign could not well help doing as he did, and the act conveying the power virtually restrained it within certain limits. The central power of the government was not yet strong enough to supersede that of the local magnates, and the crown conceding cer- tain powers, which these consented to receive in full of all demands, was a virtual compromise. It is scarcely more than putting in another form this estimate of the limited power of the crown to say, that there was not sufficient central machinery to transact the judicial business of the nation. The Chancellor does not appear to have yet become a judge. We hear of the Justiciars or Chief Justices — one, at least, for the territory north of the Forth, another for Lothian. The king sitting in the sort of supreme council, which we shall presently have to look at, did justice, but in great questions only. Among the fragments of King David's ordinances, one prohibits any of the lieges from bringing his plea before the king himself, unless he has first brought it before his lord, or the sheriff", or bailies having jurisdiction in the place ; unless it be one of the great pleas of the crowoi.^ ^ Assisse Regis Davidis, c. 24; A. P. i. 10. LOCAL AUTHORITIES, 1000-1290. 55 Hence out of necessary conditions arose what appeared to be a profuse and reckless distribution of local powers. Their utmost stretch was expressed when it was said that a hereditary jurisdiction extended to " pit and gallows." The one term probably expressed distinctly enough the character of the prison kept by the feudal lord, the other needs no explanation. In after-times, as the power of the crown enlarged, the tendency of the central govern- ment was to treat these seignorial powers as abuses, and to check or neutralise them when they could not be eradi- cated ; but they had grown with the power of the crown itself, and became nearly as tough and indestructible. Such seignorial rights were in many instances conferred on churchmen, as attached to bishoprics and to abbeys, or other monastic houses for the government of the domains attached to them ; and here a balance was per- haps in some measure established against the pressure of the hereditary jurisdictions, the influence of which was met in another direction by that of the burghal com- munities. The present is not a proper place for an elucidation of the minute particulars of this intricate articulation of powers and dignities, even if there were the means of accomplishing that task with precision. It must suffice to mention another and peculiar element which remained for some time after this period among the seignorial in- stitutions of Scotland, that of Thanage. This is a well- known old Saxon institution, but better known than loved by all readers of Saxon history, from the intricacy and confusion besetting all attempts to define its nature. It was swept away before the strict Norman feudality of the Conquest, but it subsisted long afterwards in Scotland ; and as the Scots thane was the contemporary of thor- oughly feudal institutions, his nature and functions came to differ from those of the extinct Saxon institution, and thus added a new difficulty to the task of any one who might attempt to explain the dignities, powers, and duties of "a thane." The institution was special to the north- ern districts. We have seen how, in the north, a Maar- mor appears to have struggled with the King of Scots for $6 PROGRESS OF THE NATION. an independent authority. In these districts there are found, as history dawns on them, chiefs of lower grade having the title of Toshachs. The Maarmor and these seem in some way, through the pressure of the crown, to have resolved themselves into an Earl of Ross, and cer- tain thanes whose authority and rank were inferior to his. The earl, of course, had his title from the crown, and the thanes also were crown dignitaries — nay, it has been thought that, like the sheriffs, they were servants of the crown appointed to see after the feudal taxes and other crown interests in their respective districts. But suppos- ing all this to be fully established, there is a mystery about these Scots thanedoms uncleared. The title being an innovation supplanting that of older local authorities, it is naturally supposed to have come from England with othei southern usages when Queen Margaret and her followers flocked to the court of King Malcolm. Yet it is not in the southern districts frequented by these strangers, but far to the north and beyond the Grampians, that the in- stitution is found in its vigour ; and it is hardly a satis- factory reason for this to say that the strangers who flocked into Scotland were partly Norman and partly Saxon, and that the Norman institutions naturally estab- lished themselves in the south, and the Saxon in the north.^ ^ " Rarely met with in the south, thanedoms are found mostly in Angus and Mearns and the northern shires down to the Moray Firth. We must not expect to find them in the fertile plains of the Lowlands, which were speedily and entirely occupied by the southern settlers, become feudal Barons ; nor yet in the inner fastnesses of the moun- tains, where the Celtic institutions, unmodified, excluded the Saxon title or office. But along the borders that separated the races, along the southern foot of the Grampian hills, through the braes of Angus and Mearns, in the hilly skirts of Aberdeen and Banff, where the sovereign had established his dominion, imperfectly it may be, but had not driven out the native people, we find numerous thanes and lands held in thanage. In the narrow country between Findhorn and the Nairn we have four, some of them of very limited extent, — Dyke, Brodie, Moyness, and Cawdor. Archibald Earl of Douglas granted to his brother-german James of Douglas, the barony of Petyn, the third of Douf hous and Awasschir, and all the lands lying within the Thaynedomeis in the lordship of Kylmalaman {Kilmalemak) in the EARLY LAWS, 1000-1290. 57 Enough has been said, perhaps, to prepare us for view- ing the Scotland of the latter part of the thirteenth cen- tury as a thoroughly feudal state ; at all events, through all its authorised channels of announcement committed to the records, and so brought down to our present notice, the -whole constitution was feudal. Customs antagonistic to feudality no doubt prevailed in the districts of the north, and in those chiefly inhabited by Celts. These customs were so tenacious as to have been troublesome within the memory of persons still living. But they had no place in acknowledged law or record ; and if they showed themselves in action, and so disturbed the feudal harmony of the predominant system, history took no further notice of such collisions than to drop some judi- cious remarks about the suppression of insurrection and turbulence, and the firm assertion of the powers of the law. Of the feudal system thus prevalent we can expect no account in any edict or code by which it was adopted. It had its commencement not in precept but in practice, and grew by degrees. The very supposition of its having been promulgated by any supreme power is illogical, since it created in its own growth the whole power of the state, from the king downwards. It would be interesting, if it were possible, to examine how it gradually superseded old forms of administration, whether Celtic or Norse ; but though we might follow the advance of feudalism over the country with some approach to accuracy, what it displaced has left but faint and indistinct traces. In what may be called the Public Institutions we have scarcely a trace of anything Celtic. It is usually supposed that the reign of Malcolm and Margaret was the turning-point at which the court which had been Celtic became a Saxon sheriffdom of Elgin ; confirmed by crown charter of James I. a. r. 21-1426. We meet with at least fifty thanedoms named in Scotch charters." — Innes's Sketches, 397, 398. Here, and in Mr E. W. Robertson's Scotland under the Early Kings, App. N, will be found all the available learning on thi'; troublesome point 58 PROGRESS OF THE NATION. court, with a dash of the Norman to adorn it ; but of tliii" we cannot be sure.^ Though we must look to the records of actual trans- actions to find the establishment of feudalism as the radical constitution of the state, it does not follow that we are not to possess an ancient code of laws for the reg ulation of private rights and obligations — for the adjust- ment of the domestic relations, the enforcement of con- tracts, the suppression of crime, and the like. The posses- sion of some such ancient code has been the boast of na- tions from time immemorial — a boast for which they have often been indebted to the indolence of historians. There are difficulties, often ending in utter disappointment, in tracing consuetudinary laws to their orgin ; but once find that a Plato or Lycurgus made them — all at once there is trouble saved, the investigator is able to parade a great and picturesque historical character, and the reader has the whole affair simplified to his hand. Hence the long lists of institutions credited collectively to a Charlemagne or an Alfred. Wales had its code of laws bequeathed by the celebrated Howel Dha, and Scotland was not behind her neighbours in such pretensions ; she long boasted of the collection called the Regiam Majestatem, a full and carefully-matured code of laws adapted to the purposes of a great and civilised state. It was the fruit of the skill and learning of the Scots lawyers of the twelfth century, stimulated by the enlightened policy of King David — hence called the Scots Justinian. In the year 1425 this collection is referred to in one of the statutes of King James I., in which a commission is appointed "to examine the bulks of the laws of this realm — that is to say, the Regiam Majestatem and the Quonium Attachia- menta — and amend the laws that needs amendment."^ With the exception of a passing doubt by authors so critical as Sir Thomas Craig or Lord Stair, the collection was received with acclamation by the commentators and ^ See above (p. 21), the considerations connected with the appear- ance of a Highland sennachie at the coronation of Alexander III. * Act, 1425, c. 10. EARLY LAWS, 1 000-1290. 59 the practical lawyers ; and it was matter for national satis- faction and pride when a commission appointed in Queen Mary's reign to revise and publish these old laws com- pleted their functions. So implicitly did public faith continue to rely on this code as a national treasure, that when Lord Hailes, at the beginning of the present cen- tury, published " An Examination of some of the Argu- ments for the High Antiquity of the Regiam Majestatem," his telling criticism was received with a sort of surly dis- content, as an unworthy effort to dispel a pleasing vision. Sir Edward Coke, when, perhaps, he desired to write in a wvay that would be not unpleasing to the king sent by Scotland to England, remarked, that although in recent times the two kingdoms had been separate and indepen- dent, yet the ancient constitution and laws of both were nearly identical, as might be seen by comparing the Regiam Majestatem, which contains the Scots books of the common law, with the English collection of Glan- ville.^ Here he touched, though he intended to do so with a friendly finger, the impediment that was not to be got over through the aid of the most sanguine nationality. It was, of course, an immediate conclusion with some, that the Englishman had stolen the laws of St David for the enrichment of his compilation. In the end, however, it was set beyond all doubt that the Regiam Majestatem is litde else than a transcript of the Treatise on the Laws and Constitutions of Eng-land, attributed to Randulph de Glanville, Chief Justice of England in the reign of Henry 11. A theory Avas started which might retain the Regiam as a national code Avithout denying its obligations to Glan- ville. Edward I., when he deemed himself undoubted master of Scotland, appointed a sort of mixed commission of Englishmen and Scotsmen, to report on the compila- tion, from the legislation of King David and other sources, of a code of laws for Scotland. It was suggested that the Regiam Majestatem might be the work of this commis- sion, who found it easier to make out a complete system ^ Inst., iv. 345; clxxv. " of Scotland." 60 PROGRESS OF THE NATION. from the English book than to find one in Scotland. This theory was almost the reverse of compensation for the tradition of a purely national code which it displaced. There are critical reasons against it, too ; and it is plain that the Regiam was put together by some unknown per- son soon after the War of Independence. The recollec- tions of a long period of national popularity are now all that belong to this celebrated code, unless we may grant that the readiness with which it was received at an early day as the exposition of the original laws of Scodand, con- curs with other evidence to show that it was not until after the War of Independence that the laws and institutions of Scotland took a direction of their own, which separated them by material fundamental differences from those of England.^ ^ Everything critical and documentary for the study of the ques- tions about the Regiam will be found in the first volume of the Scots Acts, edited by Professor Innes. There is some ingenious critical discussion, pointing to the very manuscript of Glanville which the Scots compiler may have used, resting on the following explanation as to a manuscript containing very early versions of the vestiges of old Scots laws, which was given to this country by the Canton of Berne : "The Berne Manuscript, which seems to have been in the hands of a person of consequence in the south of Scotland in the year 1306, contains a fine copy of Glanville's treatise, which in many of its read- ings varies slightly from the common manuscripts, and in some of these variations singularly coincides with the text of the Regiam." — Preface, 42. More effectual service is, however, done in this criti- cal inquiiy, and the whole question is in fact brought to a point by the printing of the parallel passages in the two works at length. The name of the Regiam Majestatem is taken from the words with which the collection begins, " Regiam majestatem non solum armis contra rebelles in regnumque insurgentes oportet esse decoratum, set etiam legibus," &c. In the same strain the Tractatus de Legibus at Con- suetudinibus Regni Anglire begins, "Regiam potestatem non solum armis contra rebelles et gentes sibi regnoque insurgentes, oportet esse decoratum, sed et legibus," &c. It may seem odd, that since the copyist changed the arrangement of the parts, as if to obviate recog- nition, he should have thus left so palpable a mark of plagiarism on the very face of his handiwork. liut in fact this rhetorical flourish was the original property of neither of them. It is in each case an inflation of the celebrated exordium of Justinian's Institute, anticipat- ing the sentiment, that " Peace hath her victories not less renowned than war" (Impcratoriam majestatem non solum armis decoratam, ^c.) After supporting the echo of the proemium in a creditable EARLY LAWS, 1000-1290. 61 While there can be no doubt that the bulk of the Regiam is a mere adaptation of the English treatise, there are some other morsels incorporated in it which, by careful criticism, have been identified with laws that had existence, it is impossible to say how long, in local usage. There are external traces of such consuetudinary laws limited to dis- tricts where they may have grown before the King of the Scots had any concern with them. He obliged himself to respect the special customs of the Lothians — probably more thoroughly Anglo-Saxon in their character than any of the other provincial codes. The special laws of Gallo- way long remained as exceptional privileges.^ There was a condition that a native of that country, taking the bene- fit of the ordinary laws of the realm, was not also to plead his special privileges as a Galwegian. Among the frag- ments of the laws of King David is one enjoining that when the brethren of Melrose are on the track of the dis- parody to its end, Glanville and the Justinian Institute suddenly part company. Thenceforward they exemplify effectually the absolute contrast of the systems of the civilians and the English common law- yers. The Institute, as conveying the spirit of the Roman law, pro- fesses to examine the whole field which that law, as the law of the civilised world, occupies, and to divide and subdivide its matter by strict analysis. The English Chief Justice gets at once into practice ; he goes over the various forrhs of procedure for the enforcement of the common law as if he were the officer who had to give effect to the decisions of the courts ; and if he explains the matter of the law itself, it is by way of note on the machinery for putting it in execution. To carry out its philosophical division, the Institute is divided into four books : the first treating of persons in their relation to the law ; the second, of things as they may become the objects of legal conditions ; the third, of the mixed relations of persons and things through succes- sion, contracts, and the like ; and the fourth treating of legal remedies for the enforcement of rights by effective process. Glanville's treatise, which in reality is restricted to this last division, professes no arrange- ment, but is distributed over thirteen books, according to a division little more than arbitrary and for convenience of length. It is curi- ous, however, to observe that the compiler of the Scots Regiam divides the matter into four books ; and although he does not aim at any philosophically exhaustive division, it may be inferred that he was acquainted with the Institute, and adopted its four books as a canoni- cal division for any code of laws. ^ " Galwydia quae leges sues habet speciales." — St Regis Alex. IL, xiv., anno 1244. C2 TROGRESS OF THE NATION. covery of robbery, then the lord of the soil shall help rather than hhider them. The possessions of the rich abbey had no doubt many temptations, and especially to men peculiarly inaccessible to the usual administrators of the law.* In some of the oldest records of actually adopted laws — those of King David's reign, for instance — there are references to previous laws or institutions, which are spoken of as if they were venerable customs known to every one. When a man is challenged for theft, and can find no one to be "broch" or bail for him, he is to be taken into custody, to be dealt with according to law and custom.- In another law, putting a poor and helpless person who is pillaged under the special protection of the sovereign, the sufferer is to make oath of the injuries done to him on the holy altar, as the practice is in ScotLand.^ In the Regiam there are some fragments of a mysteri- ous old code, called the Laws of the Brets and Scots. In the ordinance of King Edward already referred to these are denounced ; and it is one of the reasons, and a suffi- ciently conclusive one alone, for holding his commission- ers not to be the authors of the Regiam, that these de- nounced laws make their appearance there. In Edward's ordinance, the laws of King David, and the amendments of later kings, are to be the foundation of the new code, whence it is to be inferred that these were in harmony with the English laws, as indeed we otherwise know that they were ; but the customs of the Brets and Scots were specially excluded from the materials out of which the new code was to be digested. Thus, in fact, the laws older than the period of Norman or English influence are denounced, while the more recent laws, stimulated by English influence, are recommended for preservation and improvement. ^ Legum Dav. I. Vestigia (A. P.), 8i. " " Qualis lex et consuetudo est de homine sine pl.igio." — Ass. Reg. Dav., xvii. ^ "Super sanctum altare, eo modo quo mos est in Scotia." — Ibid., XXX. In other sentences it is "contra assisam regni," "secundum assisam terrae," &c.— See Pref. to Statutes, i. 3a EARLY LAWS, 1000-1290. 63 A denunciatory criticism of so practical a kind naturally excites our curiosity about the tenor of these venerable customs. If what we possess of the " Leges inter Brettos et Scotos " be all that ever existed, that code must have had a hmited range. The only thing dealt with is the pecuniary retribution for slaughter or personal injury. We have first the "kro," "cro," or "croo" of each class in the social grade. The kro appears to be an estimate of the absolute value of the person ; the fixing of his rank in the pecuniary scale, to the effect that the damage to be paid for any injury inflicted on a person in any one of the grades, shall bear the same proportion to the damage for the same injury inflicted on a person of any other grade which the cro or total value of the one bears to that of the other. From this valuation table the king is not exempt. His value is estimated at a thousand cows, or three thousand golden ''"oras," translated shillings, bear- ing the inference that a cow was then worth three of these. The cro of a king's son, or of a Comes Scotise, Yarl, Maar- mor, or by whatever other vernacular name known, was seven times twenty cows and ten — the method of expres- sing the round number of a hundred and fifty. The cro of the son of a Comes, or of a Thanus, was a hundred cows. From this we see that the thane was inferior to the comes. Besides the son and nephew of a thane, we have the Ogtiern, supposed to express the rank held by the fourth in descent from a thane.^ This value, specially expressed in a mixed medium, is forty-four cows, with twenty-one denarii, and two parts of a denarius. The code proceeds to a few details, not easily to be rendered with satisfactory distinctness, for adjusting the proportions of the cro to be paid for certain injuries. That general characteristic of the document which made it offensive to Norman taste is that, according to a prac- tice very prevalent in the old laws of the north, it deals with crimes of violence only as affairs for pecuniary settle- ment. No doubt a code providing no other remedy against crime would be considered very barbarous at the ' Robertson's Scotland under the Early Kings, i. 240 ; ii, 261. 64 progrp:ss of the nation. present day. In Scotland it continued as a feature of the law when other remedies were available ; but we would require to know the social conditions to which it was ap- plied before absolutely condemning it, even when standing alone as the only remedy provided by the law. Violent retaliation was, perhaps, only too certain to arise without aid from the state, and there might be a rough element of civilisation in turning the responsibilities of the offender into another and less exciting channel.^ There was no ^ One of the fragments of old Scots laws preserves a sort of exposi- tion of the philosophy of the system as an improvement on the natural law of retaliation, which it titles rather perversely as "God's law," probably because it is referred to as a tradition in the Sermon on the Mount. The following passage is from an old Scots translation, though not nearly so old as the law in its primitive shape: "All laws outhir ar manis law or Goddis law. Be the law of Gode a heid for a heid, a hand for a hand, an e for an e, a fut for a fut. Be the law of man for the lyf of a man ix^x ky. For a fut a merk, for a hand als mekill, for an e half a merk, for ane er als mekil, for a tuth xii peniis, for ilk inch of lynth of the wound xii peniis, for ilk inch of bred of the wound xii peniis," and so forth. — Fragmenta veterum Legum, Acts, i. 375. These old laws are all in Latin, but of a considerable portion of them there is a version in the Scots vernacular. This being quaint and old appears the more venerable of the two, because Latin is the language of all periods. In reality, however, the Scots versions are translations of different and not accurately-ascertained dates, but generally of the fifteenth century. We have none of these laws in any language in which the ])eople of their day could have understood them. It happens, however, that there are dispersed among them old technical words which the scribes who put the text into Latin did not translate, not perhaps knowing their meaning, but incorporated, with Latin inflections. These in the Latin have a piebald appearance like macaronics, but when transmuted into the vernacular translation they appear as if in their right place, and contribute to the venerable aspect of the old laws. For instance, we have a "stalingiator," a stall or booth-keeper, who "nullo tempore potest habere loth cut neque cavyl de aliquo mercimonio," &c. ; and this supplies the tech- nicalities which come aptly into the vernacular version. "Gif a stal- langear aw ony det til a burges, it sail be leyfuU to the burges to tak his pund of his gudis quhar that evir he fyndis hym wythin the burgh. And it is to wyt that na stallangear may hafe na tym loth cut or cavyll wyth a burges of ony maner of merchandise, but in the tym of the fayris quhen that ilk man may hafe loth and cavyll wythin the kyngis burgh." — Leg. Burg., liv. Another ordinance begins, " Si quis verberando fecerit aliqucni EARLY LAWS, 1000-1290. 65 philosophical system of prison discipline to fall back upon ; and perhaps it was as good a way as any then available for keeping alive a sense of the folly of violence, that it diminished the offender's herds, or established a perman- ent debt against him. Barbarous as the Normans thought this pecuniary adjustment, it has come down to our own days, and lives vigorously in our practice. There was ever in Scotland the law of assysthement, which counted that the slayer, if he might sometimes be a criminal, was always a debtor ; and the adjustment of the debt to the value of the life taken has been apphed with new niceties and variations in the charges to juries on questions of damage for railway accidents. There are other vestiges of early laws, of which the most important is the Code of the Burgher Corporations, to be dealt with further on.^ In these we may find further rough attempts to accomplish fairness and justice, assuming shapes which, however uncouth or unadapted to philoso- phical principles of jurisprudence, have never, in Britain at least, been utterly discarded in more enlightened ages, but have been modified to the exigencies of social changes. It would be difficult to find anything that can be paralleled to trial by jury, where a learned judge finds the law, and a body of ordinary citizens find the fact. But we see its blaa et blodi ipse qui fuerit blaa et blodi prius debet," &c. It deals with assaults which make blue and bloody, and is in the vernacular, " Gif ony man strykis anothir quharthruch he is mayd blaa and blody, he that is mayd blaa and blody sal fyrst be herde quethir he cumys fyrst to plenze or nocht. And gif that bathe be blaa and blodi, he that first plenzeis hym sal first be herde." — Leg. Burg., Ixxxii. ^ That there were others to which we have no longer access is shown by the inventories of writs removed by King Edward. " In these are preserved the titles and general description of a vast number of rolls, in which there must have been entries of all sorts of parliamentary matter, of public transactions, of judicial proceedings, and, above all, of legislative acts and ordinances. Among the records removed from Edinburgh by the orders of Edward I., and afterwards restored in part to John Baliol, but of the subsequent fate of which we are igno- rant, there were, Umts Rotiilus de antiqtiis Statutis Regui Scocie ; Unus Rotuliis de Statutis Regis Malcolmi et Regis David ; and Duo Rotidi de Legilms et Assisis Regni Scocie et de Legibus et Coitsuetitdinibui Burgoruni Scocie et de quibusdam Statutis editis per Reges Scocie T — ■ Act Pari, i., Pref. 14, 15. VOL. II. E C6 PROGRESS OF THE NATION. unshapen gemis in the prevalence of Compurgation. The accused is "assoiled" or cleansed if his neighbours stand by him and hold liim to be innocent. There is great practical influence given to the broch, pledge, or bail, by which one citizen becomes responsible for another. Throughout there is scope given to the neighbourly spirit — the influence which the opinion of a man's fellows is to have upon his destiny, so that it shall not be entirely at the mercy of some great lord or royal officer, as in a purely despotic country. In the laws specially attributed to King David, the purgation comes nearer the shape of a jury. In the very serious case in which the king pursues a man on a charge of felony, or for forfeiture of life or limb, he is protected or acquitted by the oath of twenty-four leal men abiding within the sheriffdom. ^ If one charges another with reft or theft, and the accused asserts that the accuser did not possess the wherewithal which he maintains to have been taken from him, he may go to the country or the neighbours on that fact, and if the decision be in his favour he is acquitted. ^ So also if one is claiming damage for the slaughter of a relation, or the burning of his house, the other may get the judgment of the faithful men of the court on the question whether the amount claimed is or is not excessive.^ A little later, in a statute of Alexander II., a person accused of theft or robbery may throw himself on the judgment of the neigh- bours.* In one of David's laws, four lines long, there is an alternative given to one accused of theft : he may offer battle, or throw himself on the purgation 'of twelve faithful men.^ No one will stand up for the former of these alter- natives as a rational law worthy of living into our own ^ Assisa Regis Davidis, xi. : " De felonia vel de vita et membro." The conjunction is not logically expressed. The acquittal is, " Per sacramentum viginti quatuor hominum legalium." ^ Ibid., vi. : '' Proportatio patrias vel visneli." * Ibid., vii. : " Per viros fidedignos curia." * Statuta Alexander II., vi. : " Proportatio visneti." * Assisa Davidis II. : " Utrum veht duellum vel purgacionem duo- decim fidelium hominum." EARLY LAWS, 1000-1290. 6"] limes, though Wager of Battle was once actually demanded in England within the present century as a protection against the oppressiveness of the criminal law ; and the proposal was backed by scholarly and sincere reasoners maintaining that, while the oppressive right called Appeal in Murder remained in the law, the old ordeal of Battle should remain too, as a mitigation of its influence.^ It frequently comes up in these fragments of old laws ; and all that can be said for it is, that it is grasped at along with other rough remedies as if to throw the life and liberty of the citizen on any available alternative rather than the absolute power of a ruler. In their dealings with this peculiar legal remedy, the old laws make no allusion to any special intervention from on high giving supernatural strength to the weak arm advocating a just cause. There is nothing in sight of the lawgiver, so far as he expresses himself, but a fair stand-up fight and victory to the stronger. Simple as such a method of settlement might seem, how- ever, there were difficulties in its adaptation to the con- dition of society in the thirteenth century. It was a rule, out of comparatively late adoption, that churchmen must for decorum's sake be exempt from fighting, whatever their ability ; and \vidows who cannot fight must be protected in their rights. Hence there is a complicated arrangement for an assize out of three baronies. ^ It seems to have been found, too, that a miscellaneous fighting throughout all ranks would not in the end tend to the orderly administra- tion of justice. The law had to discover more civilised methods of judicial remedy before it could put them equally into the hands of all classes to be used by them against each other. If the keorl or churl arraigned of theft by a person of higher rank was entitled to fight out the affair, there would of necessity be a good deal of confusion favour- able to the strong-handed thief. The thief's lord might fight the accuser of his o\\ti rank if he would — a privilege not likely perhaps to be abused — but the man of liumble 1 See ' An Argument for construing largely the right of an Appelle of Murder to insist on Trial by Battle,' by E. A. Kendall. 2 Stat. Al. II., V. 68 PROGRESS OF THE NATION birth could only challenge his fellow. To remove some inconveniences caused by these restraints, there was a remedy which enabled the man of higher rank to fight by deputy.^ This does not carry commendation on its face, yet it worked itself afterwards into an established organisa- tion of the English administration of justice. The peace- ful spirit of municipal life begins to show itself at this early l)eriod in the restraints on the ordeal of combat in the burghal code. To prohibit it altogether would have been too radical a measure, and might indeed have compromised tlic rank taken by the burgesses. It does not appear that the burgesses dwelling within any town were restrained from the combat with each other. If a rusticus, having a right of burgage within a town but not dwelling there, challenged a resident burgess, the burgess was not bound to fight ; but if he in his turn were the challenger, the non- resident burgess required to accept the combat. When an upland man not connected with the burgh challenged a burgess, the burgess was not bound to fight, unless it were either on a plea of treason or a question of " theme " or thraldom. Any way the burgess must not fight with the upland man save outside the burgh. ^ In the laws of the guild brotherhood of the great city of Berwick there are careful regulations for the suppression of strife. A blow with the hand was punished with the fine of half a mark. ^Vhere blood was drawn the established fine was twenty solidi, and such damages as the brethren might award to the wounded man. It was made penal to carry a pointed knife within the bounds of the guild. ^ Another spirit in- fluenced the laws of the borders by which the brethren would have to settle with their neighbours of England. No testimony of witnesses was available to an Englishman in Scotland, and if his claim was disputed it could only be tried by the body of man.* 1 Stat. Alex. II., viii. * Leges liurg., xi. and xii. — In the vernacular translation : "The l)urges may noclit fcclit upon na man that wonnys on the lande bit he ga first iitulh the burgh." 3 Statuta Gilds, -j^nd 8. * " Per corpus hominis." — Consuetudines Marchiarum. EARLY LAWS, 1 000-1290. 69 Scattered throughout these rough old laws are occasional uncouth touches of compassion or fair play. The gallows we find in use ; but in the very beginning of a set of laws attributed to King David is one which shows that the hangmen of the age were not expert. If the thief brought to the gallows escape with his life the first suspension, it is not to be repeated, and he shall thenceforth be quits with the law, and not liable to punishment for his past offence, while those who so blundered his hanging are liable to a heavy fine.^ This is in the true Anglo-Saxon spirit, which, down even to this day, loves to give to the criminal as well as to the hunted fox, what is called " law," by encouraging any legal difficulty that may enable him to distance his pursuers. Where criminals were caught in the act — the thief " backbearand," or carrying his plunder on his back, the murderer " red-hand " — summary justice was administered ; everything was then clear, and there was no occasion for those vexing and perplexing arrange- ments about compurgators, or the vote of the neighbour- hood, which made the clumsy protection of the innocent. The animals at the present day peculiar to the farm were the staple element of movable wealth in these early days, as we have seen by their use as a measure of value in re- tribution for offences. Among the laws attributed to the reign of William the Lion is a very characteristic division of the crime of stealing such stock, into a higher and a lower grade. When the prey requires to be driven, it is of the higher ; when it can be carried off, the lower offence is committed. In the vernacular translation the law is called " Byrthen-sack," in reference to what one may carry as a burden ; and declares that no man should be hanged save for what is equivalent to the value of two sheep, each worth sixteen pence. If one is arraigned for the theft of a calf or a ram, or as much as he may carry on his back, let him be tried at the court of the lord of the land, where he ought to be beaten or have his ear cut off in the presence of two leal men.^ Many years have ' Assisas Regis Davidis L * Assisse Regis Willelmi, xiii. : " Debet verberari vel auriculam ab- 70 PROGRESS OF THE NATION. not passed since English lawyers might have found in this a rebuke on the statute which made it death to steal five shillings' worth in a dwelling-house. The distinction established in the old Scots law explains itself at once ; it sej)arates the masterful riever, who enters upon the land with a force and drives before him the cattle or sheep, from the paltry thief who takes what he can carry off There is a converse to this, in laws for the special protection of the poor from such masterful depredators ; and this also is characteristic of the spirit of kindliness and fairness that, however clumsily it be adjusted, is found here and there in the remnants of our old laws. Thus there is one among the laws of David's reign giving a spe- cial remedy to poor people and friendless, who complain that anything is stolen from them or reft by the strong hand. The authors of such laws have a notoriety for good intentions ill effected, since the original poverty and feebleness which they are designed to protect will ever be in the suitor's way, let the remedy be as simple as it may. Perhaps the remedy in David's law was as good a one as could be devised. If the poor man oppressed had a re- spectable witness to swear to the truth of his charge, his plea became the king's plea, with all the prerogative pri- scindi." In the vernacular it is : " The theyff'aw to be weil dungyn or his er to be scliorn. And that to be done there sail be gottyn two lele men. Na man aw to be hincyt for les price than for twa scheip of the quhilkis ilk ane is worth xvid." At a later time comes a more detailed legislative measure for dealing with the being who is still the great difficulty with all penal legislators — the incorrigible thief. Pro- bably the man who drew the following Act believed that he had solved the difficulty : " Giff ony be tanc with the laff (loaf) of a halpenny in burgh, he aw throu the toun to be dungyn. And for a halpenny worth to iiii penys he aw to be mar fayrly dungyn. And for a pair of schon of iiii penys he aw to be put on the cuk stuU and efter that led to the hed of the toune and thar he sail forsuer the toune. And fra iiii penys till viii penys and a ferding he sail be put upon the cuk stuU and efter that led to the hed of the toune, and ther he at tuk hym aw to cut his eyr of. And fra viii penys and a ferding to xvi penys and a obolus he sal be set apone the cuk stuU and efter that led to the hed of the toune, and ther he at tuk hym aw to cut his uther eyr of. And efter that, gif he be tane with viii penys and a ferding he that takis hym sail hing hym." — Fragmenta Vetusta, ii. t. 364. PERSONAL FREEDOM, 1000-1290. /I vileges attaching to a royal suit ; and it might stimulate the proper officer to its prosecution, that the rich man who was proved to have committed masterful rief on the poor and friendless under the royal protection, had to for- feit to the king eight cows, in addition to the restoration of the poor man's goods.^ We have here the germ of the functions of a public or crown prosecutor in his protective capacity, and before his office was formed on the model of the despotic institutions of France. We shall perhaps best appreciate the new spirit of hu- manity and personal freedom which dawns through these primitive laws, by looking for their equivalents in that great fountain of jurisprudence on which all civilised nations have drawn — the books of the Roman law. These are the perfection of human workmanship for the accom- plishment of their ends. So comprehensive was the sur- vey of these jurists of the Empire, so acutely and ingeni- ously did they fill in all the details of their vast system, that they seemed to have predicted and provided for every case of dispute between man and man ; and the commun- ities of the modern world, when practical difficulties arose from time to time, could always find their solution some- where in the Justinian collection, and were content with what they found. But the student of social science will look in vain in that mighty system for any light on the principles of punishment and reformation — for almost any effective hint on penal law ; those branches of jurispru- dence which have tried the powers of the hardest workers and deepest thinkers of modern days. The Romans did not require to extend their sagacity and subtlety to these matters. All the inextricable difficulties of dealing with degradation and misery were cast into the great institution of Slavery. The people of the degraded and dangerous ^ Assisa Regis Davidis, xxx. : " Si concedendo veraciter confirm- averit quod ab eis sine lege et judicio per vim aliquid abstulit reddat quod abstulit, et regi octo vaccas pro transgressione emendet." The preamble in the vernacular version is expressive : " It is ordanyt at al thai, the quhilkis ar destitut of the help of al men, quhar so ivir thai be wythin the kynrik, or besily aw to be, sal be undir the pro- teccioun of the lord the kyng." 72 PROGRESS OF THE NATION. classes were made articles of property, and the state had no further concern with them, save to adjust the principle of their ownership, and the responsibility of each owner towards his neighbours for the acts of his slaves. The people of condition in early Scotland had their thieus, thralls, or serfs too ; but it may be said that, while the institutions of the Empire ever tended to the strength- ening and enlarging of the organisation of slavery, the ten- dency in Scotland was towards the absorption of the bonds- man into the free community. From the beginning, the laws giving a title to possession of the serf are indistinct, and they seem never to have approached the perfection of the best slavery laws, in converting the human being into a chattel without privileges. The nomenclature applicable to the class is indistinct ; Thieus, Thralls, Bondmen, Serfs, Natives, Rustics, and Ceorls being employed without a meaning that can always be distinctly separable. Some of these classes could not act as compurgators or jurymen, but they could not be condemned without some trial by the country. The question whether a person was a bonds- man or not was one of the high pleas that must i)roceed on a brief from the crown. The lord was the jjrotector of the serf as well as his master, and was bound to this obli- gation in a practical form, which fits curiously into a sys- tem of pledges and neighbourly support pervading these old laws. If a serf were accused of an offence, and his lord refused to be his broch — that is, to be bail for his appearance — then, if he were acquitted of the charge, he was no longer bound to his lord, but became a free man. The most significant, as it must have been the most effi- cient, of the emancij)ation laws was common to England and Scotland — that if a bondsman continued a year and day within a free burgh or municipality no lord could reclaim him. In Scotland the same appears to have been the effect of living for seven years peaceably on any man's land — acquiring what would be called an industrial settlement.^ ^ These specialties stand chiefly on the Regiam Majeslatem (ii. 8 PERSONAL FREEDOM, 1000-1290. 73 Such a rule was likely to play into another in the laws of Alexander II., which gave redress in the king's court, by the justiciar or the sheriff, to any man whose lord arbi- trarily deprived him of his holding. His possession oi the holding could be proved by the true men of the country. 1 In later times, an inquest or jury sitting on such a ques- tion would look to vmtten titles. In Alexander's time, unless in important cases of formal feudal investiture and performance of homage, there would be nothing to estab- lish the peasant's holding, save the testimony of neigh- bours that the family of the ejected peasant had ever, as far as was known, been possessed of the holding, or per- haps the recollection to that effect of the true men them- selves. We may here see one out of apparently a number of shapes in which the thrall, bondsman, or serf, not be- ing one of a caste condemned to slavery, might by degrees found a heritage of freedom for his race. Through the favour of accidents which have relieved him from strict vigi- lance, he has lived seven years on the estate of a man who has perhaps found him useful He and his family there abide for a generation or two ; and then, if the lord of the soil desire to eject his descendant, it is found that the family have an established right to their holding. The general tenor of what we know about the institu- tions of the country is, that, excepting the more ancient fragments, they were in spirit the same as the English. Being so, they could not help partaking of the feudal insti- tutions brought in by the Normans — but they had less of these than England had. The leaning in Scotland was more towards the Anglo-Saxon portions of what Ergland had than towards the Norman. We have seen that the Normans had not planted their castles in Scoriand, and they did not plant their language. In Scots documents and 9), but they are portions of it not transcribed from Glanville, and appear to repeat old customs. The nile giving a dweller in a town for a year and day his freedom is in Glanville, and it is specifi- cally provided for in the Scots burgh laws. 1 " Per probos homines patriae," 74 PROGRESS OF THE NATION. before the great war Norman-French may be found, but only when it is used in courtesy in addressing the King of England or some foreign potentate. The early records of Scotland furnish nothing resem- bling Magna Charta and the Charters of the Forests. These are, no doubt, noble testimonies to a stand against prero- gative and arbitrary power. They were made after a long period of oppression by the Norman king and the Norman barons, when the original conditions of the conquered land had so changed that the barons and the people found a common cause. Of these bonds of protection, however, it must ever be remembered that they were a restoration of that which had been taken away. Every act of consent was given with a grudge : it was extracted, sometimes by force, from an unwilling monarch, who was sure to break his word whenever he could, so that the public safety re- quired a continued renewal of the charters. In Scotland the mischief that had thus to be undone had never been perpetrated. Each countiy had to contend with the Nor- man as an enemy : in England, however, he had got into the abode, while Scotland kept him beyond the gate. Perhaps from the very peril in which it was achieved, the English constitution drew its firmness and precision. Every point had to be fought for, and it was precisely known how much had been gained and how much lost In Scotland there was much vagueness. It would be dififi cult to point to definite prerogatives or definite privileges. This source of dubiety was fostered by a propensity to employ English forms and usages. We have seen how the English collections of laws were imported in full bulk to Scotland. When an English king issued certain \vrits, the Scots king's Clerk in Chancery would imitate them for his master's use. We have thus, for instance. Grants of Forestry, as if the Scots kings possessed the prerogative restricted in England by the Forest Charters. These Grants professed to impart to the king's foresters such prerogatives and powers of exclusion and restriction as the English monarchs maintained ; but it is observable that they did not even in words pretend to mete out the terrible PERSONAL FREEDOM, IOOO-1290. 75 punishments falling to the lot of the slayer of the king's deer in England, and that they dealt only with pecuniary mulcts. In the seventeenth century, when the crown lawyers made a diligent search for every scrap of parch- ment which could justify arbitrary prerogative rights in the crown, a code of forest laws declared to be of great anti- quity was produced. It was afterwards found, however, on examination, to be a compilation of recent times — times coming down to the period of parliamentary action, when every new law binding upon the people required the sanction of the Estates. It was, in fact, after the manner of other received national codes, a mere compilation from the Eng- lish forest laws.^ Of the influence and action of any real forest law existing in Scotland we have thus scarcely a trace. One who had read a greater heap of existing writ- ings about Scotland than any other man of his day, hence said: "The kings were the great hunters, in imitation of the Norman monarchs of England ; and they had in every shire a vast forest with a castle for the enjoyment of their favourite sports. The king had for every forest a forester, whose duty it was to take care of the game, though we hear little of the severity of the forest laws in Scotland." ^ Hence there is a very picturesque chapter in British history in which Scotland holds no part — the story of the outlaw Robin Hood and his merry independent band, who held their own in the free forest, defying the mail-clad tyrant in his castle. Every one is familiar with the fine Saxon spirit thrown into this group. They have little respect for the great feudal lord, his laws, and his property ; they will take his life upon occasion, and are in the eyes of his law the greatest of criminals, yet are they full of courtesy, loyalty, and kindliness ; they scour the forest at their will and feast on the deer ; they delight to rob its lord and subject him to all contumelies, yet a priest or a forlorn wandering maiden is safe among them. The slain deer are distributed to all who need, and the fruit of rob- ^ See Leges Forestarum, Scots Acts, i. 323. * Chalmers's Caledonia, i. 765. 76 PROGRESS OF THE NATION. bery is given to the poor. In the mere creature of popu- lar legends we are not likely to find a parallel with the history of a great military leader and statesman, yet it is interesting to observe how like the Robin Hood of the English is to the legendary Wallace of Scotland. They are especially alike in each marking local peculiarities by his popular name. England is covered with such recollections of her outlaw — Robin Hood's Bay, Robin Hood's Chair, Kobin Hood's Bed, Robin Hood's Wells, Robin Hood's Leap, and the like, all putting a mark on peculiarities in local scenery. It is the same with Wallace in Scotland ; and in both the commemorations it is easy to see that this tenacity of popularity is founded on traditions which had their origin in great wrongs and deadly hatreds. In Eng- land these began with the Norman conquest — in Scotland they began with Edward's invasion. Recurring to the faint vestiges of anything in Scotland resembling the English forest laws, it deserves mention that in late years a great territorial lord, endowed with something of the Norman spirit of monopoly in sport, did some service by trying how far prerogative forest laws, if they ever existed in Scotland, could be put in force. Whatever they were, they had not been checked, as in England, by guarantees like the Charters of the Forests ; such as they were, they were unrepealed. He maintained that he was bound to plead the prerogatives of the crown, since the land he held was a royal forest, committed in a manner to his care, so as to throw on him a special respon- sibility for the protection of its immunities. He main- tained two prerogatives : one was the right to close all communication through the forest between two districts of country ; the other was a right to enter on the lands of neighbouring proprietors and reclaim from them the deer which had strayed from the royal forest. The courts of law found that there was no distinct law to support such claims — virtually they found that there was no old Scots forest law, and no restraints on personal freedom and the free use of property otherwise than by statute. It is signi- ficant that the chief support sought for the prerogative PERSONAL FREEDOM, 1 000-1290. "jy side in these litigations, was something said by Lord Stair, a lawyer trained in the high prerogative school of Charles II. 's reign. ^ ^ Athole V. Macinroy, 28th Feb. 1862, reported in the case books. Among the views given out from the Bench were : "Lord Braxfield, a great feudal lawyer, observed, — ' In Scotland, wild beasts beingyirurope at that time this would have made a serious difference in the elements for decision on the suc- cession, whether that decision was to be made by a feudal lord, or, as it then was in Scotland, by the principal persons and community of the country. This incidental plea of Bruce's is duly entered in the Great Roll as already cited. It comes out more fully in the papers about the com- petition for the crown, edited by Sir Francis Palgrave, in his volume of Documents illustrating the History of Scotland. In these docu- ments the affair is twice stated ; once when Bruce threatens that, if any step be taken by the guardians inimical to his rights, he intends to throw himself on the protection of the King of England ; and again, when King Edward, as Lord Superior, heard him plead his case as a claimant of the crown. Bruce's statement is of a natural occurrence ; he maintains that it was acknowledged by Alexander III., and appeals about it to the testimony of persons still living. Any record of it might have disappeared in the general loss caused by the confusions of the wars, without supposing that King Edward thought it worth his while to destroy it. Then, when Alexander II. had a son, and that son reigned and had a family likely to continue the suc- cession, the adjustment of the succession among collaterals ceasing to be of moment might naturally enough be permitted to go with the other unimportant matters which dropped out of the National Re- cords. It is not easy in modem English to convey a notion of the technical formality of these Norman feudal proceedings. The nearest thing f CLAIMS OF THE COMPETITORS, 1291-92. I31 Bruce's position was, that he was descended from the younger daughter, but was nearer by a generation than his competitor Bahol, the descendant of the elder daughter. Here, then, lay the great question that was put at issue in the impression of an actual perusal of them is to be found in the ren- dering of their meaning by Sir Francis Palgrave, who was a thoroughly congenial spirit, and their true interpreter to the present day. What follows is given as a specimen, being applicable to this stage of the proceedings. Bruce brings up the recognition by Alexander II., and Baliol meets it. Had Sir Francis been a great histoiical artist, he could not have put the hard formaUties of the Lord Superior's court in better antithesis with the momentous interests at issue, and the memorable struggle in preparation, than in speaking of the king, who desired to make a settlement, having died seised of the kingdom in his demesne of fee and right, and that from him the right descended to one Alexander, his son and heir. ' Bruce states, that when Alexander II. proceeded in war against the Islands, he granted and ordained, as he wlio was best informed concerning his own blood or family, and by assent of the bishops and earls, and of his baronage, that, in the event of his dying without an heir of his body. Sir Robert Bi-uce, as the nearest of his blood, should be held his heir in the kingdom of Scotland : and a writing was made accordingly, and sealed with the seals of the king, the bishops, and the other gieat lords, and deposited in the treasury. And of this he prays that inquiry may be made by the baronage of the land, for of those who know the fact many are now living. " The traverse or replication made by Balliol, as entered upon the roll of Norham, and also upon the notarial protocol, seems to show- that the petition of Bnice there presented contained some further averments : for, in reciting this instrument, Balliol, after noticing that Bruce had alleged that Alexander II. made the recognition before his barons, proceeds to add, that Bruce also stated that Alexander III. made the same recognition, with the knowledge of Devergoil, the mother of John Balliol, who did not contradict the same. Balliol then proceeds to argue — cautiously adopting the forms of pleading and technical language of the English common law — that such recog- nition cannot avail, inasmuch as Bruce acknowledges that Alexander II. died seised of the kingdom in his demesne of fee and right, and that from him the right descended to one Alexander as his son and heir, who in like manner died seised thereof; and therefore, by his own acknowledgment, he shows that Alexander II. did not die with- out heirs of his body. And the right of his kingdom was transmitted by his death to his heir, and thus by the recognition of Alexander II. (if it was made) no right could be acquired. The original repli- cation of Balliol to the first petition of Bruce is extant ; it is much damaged, but we can collect that in its general import the argument was pursued in the same manner as in the replication recorded on the 132 THE DISPUTED SUCCESSION. the court of the Lord Superior. It is necessary, before going into it, to say that John de Hastings, Lord of Abergaveny, appeared as the descendant of Ada, the third daughter of Earl David. His claim from the begin- ning lay behind both Baliol's and Bruce's, but we shall find that the pleadings in it afford some instructive matter. These, which may be called preliminary proceedings, occupied thirteen meetings in the year 1291 — the first in May, the last in August. The record notes precisely each day, with the business transacted and the place where the meeting was held. The definition of the place of meeting in each instance is given with the precision acquired by lawyers, who do not profess merely to satisfy those who want to know the fact, but are prepared to baffle the enemy entitled to take advantage of every c|uibble which he can found on ambiguity or indistinctness. When busi- ness goes on in the Castle of Norham, it is within the king's chamber there. When there is an adjournment to the other side of the river, and to Scots ground, the place of meeting is not only described as a meadow on the mar- gin of the Tweed, opposite to Norham, but the parish and the diocese are given. Of meetings held in Berwick, one is in the castle, and others are in the church of the Domi- nican Friars there, described as deserted. Important business was transacted at the meeting held on the 3d of August. King Edward intimated his desire that the two competitors, Baliol and Bruce, should each choose forty men, while he should choose twenty-four, or a larger number if he thought fit. There is an indefinite- ness, very unlike the rest of the record, in the functions of the persons to be so chosen : they are spoken of as if they were to be mixed up into a common body of referees to consider the whole matter at issue.^ The arrangement Norham roll." — Palgrave's Documents and Records, Introd., p. xxiii. XXV. ^ "Qui omnes assignati et nominati, congregati in unum, in loco et termino per praedictum dominum regem statuendis, de jure cujuslibet pn\:dictonim nobilium, jus in successione pradicti regni Scotise ven- CLAIMS OF THE COMPETITORS, 1291-92. 1 33 must have seemed not only just but generous, if it was taken up at the time as the EngHsh chroniclers speak of it. King Edward was so confident in the goodness of his cause that he left it to be disposed of by one hundred and four arbiters, of whom only twenty-four were named by himself, while eighty represented Scotland. How this anomalous body was worked we shall presently see. The Hsts of these " arbiters," as they are generally termed, are given in the Great Roll. It may be more instructive to see the part taken by those of them who accepted and acted, than to examine the lists themselves, which may contain the names of men not to be counted on. King Edward's twenty-four, of course, were his own prelates and great functionaries, with a few of the high nobles. One name on his list is special, and carries an appearance of earnest desire to walk by the law; it is entered as William of Kilkenny, Professor of the Civil or Roman Law.^ It will be observed that, while ten claimants have been entered, only two, and those the two on whom the final contest fell, joined in this selection of " arbiters." It was not, however, intended that the others should be put out of court. King Edward did nothing ^\dthout an object, and an object there must have been in this peculiar ar- rangement, which discussed a by-question between two claimants, leaving the final issue open to the whole. Per- haps the policy of the arrangement lay in this, that in Bruce and Baliol, and those they might bring with them, the Lord Superior knew whom he had to deal with per- sonally ; among a set of miscellaneous strangers, bringing their friends and supporters into the controversy, he might find troublesome people. Ostensibly there was a vindi- cation of his course in this, that a judgment on the simple question, which of these two had the better title, would clear away a difficulty coming of an unfixed principle of law. It would settle whether the nearer descendant by dicantium, cognoscant et discutiant, prout ration! et juri visum fuent magis conveniens." — Foedera (Record edition), i. 766. ^ " Willelmus de Kylkenny, Juris Civilis Professor." 134 THE DISPUTED SUCCESSION. the younger child, or the more remote descendant by the elder, had the preferable title. At this meeting the whole body of candidates, who as yet had only generally announced their claims, rendered them in technical form. In the court of the Lord Superior nothing could be admitted as understood fact, even in so large a public question as the succession to the crown of Scotland, and each must give the genealogical foundation of his claim. The cases so put in are exquisite pieces of draftsmanship, and might be models for the peerage prac- titioner or any other genealogical lawyer of the present day. That ancestor in actual possession of the crown to whom the claimant pleads the right of succession is brought distinctly out. His several lines of descendants, both those which have given successors to the crown and those which have not, are discussed successively ; and as each is thrown out, the claim goes back again to the com- mon ancestor until all are exhausted — some by the line coming to an end, some by disqualification, until the claimant comes out as the true representative. So, each having in terms of a formula put in his claim, the plead- ings and arguments on which each founded in support of his own claim, and in demolition of other claims, come, as we shall see, at a later stage of the proceedings. From this meeting on the 3d of August 1291 the whole business was adjourned to June 1292. The Lord Superior had now in his hands what lawyers call a heavy case ; and it cannot be denied that under his directions it went through its stages with all deliberation, receiving a due amount of skilled attention — all recorded so fully that we can even now trace in the policy that ruled the whole, those aims which extended far beyond the mere decision of a legal or genealogical question. Before following up the history of this great litigation, certain public measures incidental to the adjustment of the right of supremacy may be mentioned. The government of the country was in the hands of guardians, who had been appointed by the Estates. Ed- ward did not wrest their authority from them, but, as Lord Superior, he renewed their appointment as guardians, add- PROCEEDINGS IN SCOTLAND, 1291-92. 1 35 ing Brian Fitz Allan to their number. He appointed the Bishop of Caithness to be Lord Chancellor of Scot- land, with a certain Walter de Amundesham as his col- league in the capacity of Keeper of the Seal. The old seal of Scotland was broken into four pieces, and a new seal was made adapted to the change of conditions. He took the oath of allegiance from all the Scots in attendance; but who these may have been, other than the supporters of the candidates, with some of whom we may hereafter meet, it is hard to tell. He issued an intimation to his Chief Justice of England, that as the two countries were now, by the blessing of God, united, his writs should henceforth be current in Scotland as well as England. The Lord Superior made an early demand that the guardians should give up the national fortresses to him. This was conceded as a matter of course. We have the orders by which he called upon each governor to give up his charge, and these orders court criticism. In the pre- amble he does not make display of his office of Lord Superior as in the documents which were not to go to Scotland. He is Edward, King of England, Lord of Ire- land, and Duke of Guienne ; and he demands delivery of the fortress by assent of the guardians and of the several candidates, and only towards the conclusion does he briefly bring in his title of " Soveryn Seygnur."^ The names of the superseded governors have a sound as Nor- man as the names of their successors ; yet it is difficult to interpret the race or nation from such a sound, since the Norman manner of naming was the court style, and was imitated by all who claimed high rank. One governor, with a thoroughly Norman title, distinguished himself by a fas- tidious sense of military honour. Gilbert d'Umfravile, Earl of Angus, in command of the fortresses of Forfar and Dundee, said he had received his command from the Estates of the realm., and demurred to render it up to any other authority. King Edward humoured him by a solemn grant of indemnity for any consequences to be incurred ^ Rot. Scot., i. I. 136 THE DISPUTED SUCCESSION. by obedience to his command.^ The guardians were com- missioned throughout Scotland to exact the oath of alle- giance to the Lord Superior. The instruction was general to require it from those who ought to render it, with spe- cial directions for the treatment of each case. Those who should come and swear were of course in their duty, but those who, coming, refused to swear, were to be appre- hended ; of those who did not come but excused them- selves, the excuses were to be heard ; and lastly, they who neither came nor proffered excuses were to be coerced. This swearing-in was to last for fifteen days, beginning on the 23d of July, and certain central stations were fixed where attendance should be given to put the oath. 2 How far effect was given to this order must have depended on many local contingencies.^ On the whole, the public measures taken by Edward during the progress of the great cause have a moderate tone — a tone as if he re- strained himself from too suddenly breaking in upon the established order of things with his new title and its pre- rogatives ; and in this specialty all the documents passing into Scotland have a very significant difference of style from those peculiar to his transaction with the claimants of tlie succession. Among King Edward's actions before the meetings about the succession were resumed, there was one which pro- bably drew little notice towards it at the time. It became notorious enough in after times, and has a conspicuous place in various narratives, where the shape it takes is, that Edward removed the ancient records of the kingdom of Scotland, carefully searching out all those which pro- claimed the national independence and the supreme sove- reignty of the crown. On the 12th of August he issued a commission to certain persons — John de Lithegreynes, William of Lincoln, and Thomas of Fisheeburn — to ex- amine all kinds of documents in the Castle of Edinburgh, ^ Fcedera (Record edition), i. 756. ' One of these is Inverness, which the foreign notary calls Inthemez. 3 Some of the homages so received are to be found in the Ragman Rolls. REMOVAL OF RECORDS, 1292. 1 37 or elsewhere in Scotland, which might be found to bear on the succession to the crown or on his own rights in reference to Scotland. As the persons who were to give access to the documents, the writ was addressed to Ralph Basset of Drayton, the Governor of the Castle of Edin- burgh, who had just been appointed by Edward, to the Bishop of St Andrews, and to William of Dumfries, Keeper of the Rolls. There is a precept to the Chancellor of Scotland to pay the reasonable expenses of these commis- sioners, as being occupied in a matter peculiarly concern- ing Scotland ; and their proceedings regarding the records passing through their hands are registered with thorough Norman precision. We have a minute of the depositing of a portion of these documents in the treasury of the Castle of Berwick, in which are set forth with all precision the names and titles of the eminent persons present on the occasion, the locking up and sealing of the box in which the documents were deposited, and an inventory of the documents themselves. There is another list of documents authenticated as having been given over by King Edward to John, King of Scotland, best known as John Baliol. There seems no occasion for questioning the accuracy of these minutes and lists, or for supposing that Edward found anything so emphatically proclaiming the independ- ence of Scotland that it would be his interest to suppress it. The records of a self-governing state do not set forth that it is independent of any other — such a declaration would only lead to a suspicion that it was not quite true. The only document in which the tenor of history would lead us to expect to find a specific declaration of the inde- pendence of the crown, is the revocation by King Richard of the admission of vassalage, extracted from King William when a captive at Falaise ; and this document is not only fairly titled in the inventory so as to show its tenor, but has been carefully preserved to our own day so as to be pub- lished in the great collection of early English diplomacy.^ ^ The careful commissioners notice the defective condition of the seal, as if to save themselves from any reflections on the matter : — 138 THE DISPUTED SUCCESSION. As to the other documents entered in the inventories, but not now to be found, the preservation of the old records of England has not been so well cared for that Scotland can complain of more than her share in the losses incident to a common negligence. On the other hand, if we are to suppose that Scotland possessed a series of royal and parliamentary records, ex- tending back through hundreds of years, and that it was the interest of King Edward to suppress such a memorial of ancient self-government and independent sovereignty, we shall suppose something extremely improbable. Some collections of old laws certainly were lost, and their loss is to be regretted.^ In general, however, we may believe that the records followed the introduction of the Normans and their practices into Scotland, and that they were a humble imitation of what had been going on in England since the Conquest. Such of the documents as maybe counted state papers, affecting the interests both of England and Scotland, bear chiefly on the Scots claims upon Northumberland, and the negotiations with the discontented barons of England. Others there are which might have thrown desirable light on the feudal formalities by which the King of Scots en- deavoured to stretch his authority over Galloway, the Isles, and the other outlying territories. But the bulk of the collection must have lain in papers revealing the practice of the tenure of property and the administration of justice through charters, inquests, assizes, and other records, many of them referring to merely private and local affairs. " Litera Richaidi l\egis, piomissoria Regi Scotiai quod restituet ci omnia jura sua. Scd inx apparet sigillitm. " Charta ejusdem Richaidi Regis de restitutione jurium et cas- trorum libertatum et liteiarum Regis Scotitc." ' For instance : Unus Rotulus de Antiquis Statutis Regni Scocia:. Unus Rotulus de Statutis Regis Malcolmi et Regis Davidis. Duo Rotuli de Legibus et Assisis Regni Scotise, et de Legibus et Consue- tudinibus Burgorum Scocix et de quibusdam Statutis editis per Reges Scocise. 'I'hougli we have in some shape much of the substance of these burgher laws (see chap, xvii.), it would have been of moment to possess so early a version of them. PRECEDENTS IN THE CHRONICLES, 1292. 1 39 Of one thing we may feel assured, that nowhere did King Edward find any writings to help him in his claim of feudal superiority ; if he had found any, they would have doubt- less been heard of ^ King Edward sought assistance from records in another quarter, but not with much more success. The chron- icles of events preserved in the ecclesiastical establish- ments have been often referred to in these pages. Natur- ally they chiefly abounded in the houses of the Regulars, who had the more leisure and quietness for such work ; but they were also kept in the chapters of cathedrals and other ecclesiastical colleges.^ King Edward made a con- tribution to this class of muniments, by sending for pre- servation to several religious houses the proceedings re- lating to the succession to the crown of Scotland, as held in his own court as Lord Superior. Before doing so, how- ever, he drew on these estabhshments for such assistance as their past records could give him. There are writs issued by him ordering returns, in some instances, of all that their registers or chronicles tell about the relations between England and Scotland — in others, of any in- formation so aftbrded concerning homage by the King of Scotland to the King of England. Many of the returns made in answer to this requisition have been preserved. So far as the extracts they give from the chronicles belong to true history, it would be a vain repetition to give them here, because, so far as the author accepts them as true, they have found their share in the preceding pages. Out of the matter contained in these returns, and the chron- ^ The commissioners' inventories, &c. , above referred to, are to be found partly in the Foedera and the Rotuli Scotias, and in Robert- son's Introduction to the Index to the Charters (1798). The most authentic rendering of them, however, is in the " Instrumenta et Acta de Munimentis Regni Scocise," in the first volume of the Statutes. 2 Of the workshops of these chronicles — the " scriptorium " at- tached to each monastery, in which the scribes belonging to the house sat to copy whatever was enjoined them by superiors — an account will be found in Sir Thomas Hardy's Preface to the third volume of his ' Descriptive Catalogue of Materials relating to the History of Great Britain and Ireland,' xi. 140 THE DISPUTED SUCCESSION. icles of England at large, a case was made out for the superiority of the King of England over Scotland, which can best be told afterwards in an account of the historical narrative in which King Edward brought the question under the consideration of the Papal Court. 141 CHAPTER XIX. ADJUSTMENT OF THE SUCCESSION. THE ASSEMBLAGE RESUMED— A NEW CLAIMANT: ERIC OF NORWAY — THE QUESTION LYING BETWEEN BALIOL AND BRUCE, AND BE- TWEEN THE DISTANT DESCENDANT OF THE ELDER AND THE IMME- DIATE DESCENDANT OF THE YOUNGER DAUGHTER — INDICATION OF A LEANING TO THE FORMER VIEW— CONTINUED PLEADINGS— RE- SOLUTION OF THE QUESTION INTO THE SHAPE OF LITIGATION FOR AN ESTATE — THIS ENCOURAGED BY EDWARD AS LORD SUPERIOR — THE COMPETITORS ADMIT ALL HIS CLAIMS, AND ARE READY TO DO HOMAGE — QUESTIONS OF PARTITION AND COMPROMISE OPENED AND PLEADED— PECULIAR CASE PUT IN FOR THE COUNT OF HOLLAND — THE JUDGMENT IN FAVOUR OF BALIOL— CEREMONIES OF HOMAGE — CEREMONIES OF INVESTITURE IN SCOTLAND — THE NEW KING'S UN- POPULARITY AND DANGER — QUESTION HOW FAR PUT UNDER RE- STRAINT — LITIGATIONS APPEALED FROM HIM TO THE ENGLISH COURT— HIS HUMILIATION — A CRISIS. Adjourned as we have seen from August 1291, the great business of the adjustment of the succession was resumed in the beginning of June 1292.^ A new claim was then given in, which surely must have disturbed the gravity even of the decorous court of the Lord Superior. It was rendered by Eric, King of Norway, the son-in-law of Alexander III., and the father of the young queen who had died on her way home. He offers no explanation of any special Norse or other custom of descent on which he ^ In the Foedera the resumption is dated on ist June, while the ad- journment is to 2d June. Sir Francis Palgrave shows that this is the correct date. The ist of June in that year was Trinity Sunday, and this was doubtless foreseen in fixing the adjournment (Documents, Introduction, liii. ) So much for the precision of Norman recorders and of editors like-minded. 142 ADJUSTMENT OF THE SUCCESSION. founds, but simply asks the Lord Superior to award to him his daughter's kingdom, devolving on him by heredi- tary right.' Probably, hearing that suitors were welcome, he thought he might as well take his chance with the rest ; unless, indeed, his object was to call attention to a second- ary and more hopeful claim ; this was for arrears of rents or revenues — what English lawyers call mesne profits. These he demanded for the four years since the death of King Alexander, on the double ground that he was exe- cutor to his daughter, and had been put to many charges and expenses concerning her. In addition to this, he rendered in the body of his claim an account for arrears of his wife's dowry. Whatever he may have made of the pecuniary matters, his claim to the crown was not pressed, and judgment went against him by default. The auditors or arbiters — the eighty of Scotland and twenty-four of England — make their appearance at this meeting in a shape which has puzzled historians, and is not consistent with the place they were allowed afterwards to hold. On the fiice of the record in the Great Roll, it would appear that the king put it to the eighty from Scot- land, and to them alone, to inform him on what law and customs judgment should be given. ^ The answer was one of utter confusion. From disputes among themselves, and the vast importance of the cause, they professed to be unable to make answer without more counsel and deliberation.^ They sought assistance from the twenty-four of England, ^ " Ipsuni re<;num per mortem dominse Margaritse filise nostrse, olim domince et regincc regni Scotite, sit ad nos picno jure hereditario legitime devolutum." He makes liis claim through " veros et legi- times attomatos et procuratores et nuncios speciales, nobilem virum Advenum de Hagr, et Magistrum Hugutio Plelienum plebis," &c. " " Per quas leges et consuetudines sit ad judicium proceden- dum?" 2 " Qui inter se super hoc diligentem habentes tractatum, concor- diter responderunt, quod propter aliquas discordias adhuc inter eos existentes super legibus et consuetudiiiibus regni Scotiae, quoad casum tam arduum, et retroactis temporibus inauditum, eidem domino regi consulere non audcbant in facto prxdicto, absque majori consilio et leliberatione pleniori." MANAGEMENT OF THE REFEREES, 1292. I43 but these, for some undiscoverable reason, were equally reticent, and would not commit themselves. The king then adjourned the meeting to the loth of October, announcing that he would in the mean time push inquiries all over the world to get light for his guidance on this vexed question. We can only see in all this that there is something behind it which the record is intended rather to conceal than to explain. When the proceedings are resumed at the adjourned meeting, the Great Roll of Scotland would leave us no better acquainted with the actual share taken in the dis- cussion by the auditors ; but we have information else- where of what they actually did. It was still the policy of the Lord Superior to exhaust, in the special competition between Baliol and Bruce, the question between the nearer descendant by the younger daughter, and the more remote by the elder, before enter- ing on the claims at large. And the first question was, By what law should the question be tried? By the Im- perial, meaning the civil or Roman law, or by the laws and customs of England or Scotland ? ^ We shall now see how the scheme of the hundred and four arbiters was Avorked. King Edward put the question to his own twenty-four, not collectively, but personally, in succession, as the votes are taken when the House of Lords sits as a criminal court, presided over by the Lord High Steward. None would admit the imperial law — any reference to that system always enraged the friends of the common law in England — and those who might think otherwise felt it prudent to keep their views out of sight. Most of the referees were quite clear that in an English court they could proceed by no other than English law ; and a few sought refuge in the unmeaning compromise, that the law, both of England and Scotland, should rule wherever these agreed with each other. The next question was, Whether there was any specialty in the rank or dignity of this kingdom of Scotland that should exempt it from being ^ "An per leges Imperiales seu per leges et consuetudines regni Anglise vel regni Scotiae?" 144 ADJUSTMENT OF THE SUCCESSION. adjudicated upon like the other tenures of the realm ? and all answered that there was not. On these two questions King Edward's own council of twenty-four were alone consulted. " Those of Scotland," as the persons selected by Bruce and Baliol were termed, had no opportunity of recording their opinion on these, which of all the questions put were the most eminently national in their character Yet it was so managed that they too should appear to have had a voice. It was put to the claimants, Baliol and Bruce, and to the eighty of Scotland selected by them, whether they could show any cause why the king- dom of Scotland — a fief of the King of England — should be treated differently from earldoms, baronies, and other tenures. Under nice distinctions in the ways of putting the questions, the broad fact can be distinctly traced that the twenty-four of England were advisers or referees of the supreme judge, Edward himself, as to the judgment to be given, while the eighty of Scotland were merely the advisers of the two claimants as to the position they should take up as litigants — what they should admit, and what they should dispute. Accordingly the eighty are not heard in answer to the questions put ; the competitors, Baliol and Bruce, give the answers. These are not very emphatic, but import generally the readiness of both to submit to such decision as their Lord Superior may adopt, one point only being urged with some emphasis — that the kingdom of Scotland cannot be partitioned among several heirs like a private estate. Having thus in a manner felt the way towards finding a principle, by deciding what law it was to be sought for in, matters were ripe for fixing the principle itself; and the next question was, Whether the nearer descendant of the younger daughter, or the more remote descendant of the elder daughter, should be preferred? The answer, very neatly and distinctly put, was, that the progeny of the elder must be exhausted before that of the younger had any claim. This, as a necessary condition of a pure law of hereditary succession, rules to this day; and it is likely that the deliberations of the august body who assisted the Lord Superior did much to clear up the rules MANAGEMENT OF THE REFEREES, 1292. 145 of succession as an exact science. On the political bear- ing of the decision, however, the important specialty is that, as in the preliminary question, the English assessors only were consulted. Taking the principle so established for his rule, King Edward then decided that, as between the two, and as the pleadings stood, John de Baliol had a preferable title to Robert de Bruce. It was then put to the eighty of Scot- land if they had anything to say against this judgment. The forty selected by Baliol, when asked one by one, of course assented to it. When it came to the turn of those selected by Bruce, the first on the list — the Bishop of Glasgow — made some faint demur; he was in favour of the claims of Bruce, yet, in the shape in which it stood, he had nothing to say against the judgment ; and the rest followed him in assenting. In fact, the decision did not put Bruce out of court or find for Baliol, since all parties were yet to be heard before a final decision. ^ What after- wards occurred may account for Bruce's acquiescence in the interim decision — he had more to hope for in pleading his cause before the Lord Superior than in contradicting him. The material feature in this discussion is, that while it went forth that the question of the succession was remitted to a hundred and four arbiters, eighty of them being of Scotland and twenty-four of England, the eighty of Scotland were allowed no opportunity of giving either a judgment or an opinion on any of the great questions brought to a decision. Let us now look to the pleadings so far as they have come down to us, and try what instruction may be found in them. They are not to be confounded with the ^ " Quod secundum petitiones et rationes ex utraque parte Robert! et Johannis monstratis, quas idem rex coram se et consilio suo cum magna diligentia inspici et examinari fecit, Robertus de Bras non habuit jus in sua petitione ad regnum Scotias secundum formam et modum petitionis suse. Et similiter dictum fuit dicto Johanni de Balliolo per prsedictum dominum regem, quod quoad petitionem suam, idem dominus rex non potest ei respondere ad plenum, quousque alii petentes jus ad regnum prsedictum Scotise, coram eo in curia sua fuerunt exauditi." VOL. II. K 146 ADJUSTMENT OF THE SUCCESSION. genealogical statements in which the competitors set forth their claims. These are precise and formal, while the pleadings in which each claimant supports his own case to the prejudice of the others are argumentative and dis- cursive. By far the most illustrious of these competitors — takmg them by the estimate of the prevailing court politics of the day — was Florence, Count of Holland. He was the son of that William of Holland who is in the roll of the emperors, though his empire was short and uneasy. The emperor's wife was a Guelf, and otherwise he was connected with those houses which professed to derive their origin from a Roman stock, and looked on the Norman claim- ants — and their master, the Plantagenet himself — as modern upstarts, the representatives of successful Norse pirates. The connection of Florence with the Scottish royal family differed from that of every one of the other claimants. Ada, a daughter of Henry the son of King David, and consequently a sister of William the Lion, was married to a previous Florence, Count of Holland. Their great-grandson was William the Emperor, the father of Florence, the claimant. The law of primogeniture had become so far distinct that the descendant of a sister of King William must yield to the claims of his own descendants, unless there were some specialty for excluding them, and the Count of Holland would leave the stage on the mere announcement of his claim, were it not that he attempted to found on some such specialties. These are curious as exemplifying feudal usages, and they are in themselves peculiar enough materially to vary the monotony of the other claims. He maintained that Earl David had committed felony, and that his descendants could not succeed to any right through him, being tainted by that remorseless ban of the English law — corruption of blood. As it was put in the pleading by J. de Wossemarmut, the attorney for the Count : " The before-named John de Balliol, Robert de Brus, and John de Hastings can demand no right to the realm of Scotland through the before-named David, THE COUNT OF HOLLAND'S CLAIM, 1292. I47 for this same David was a felon, as in respect of homicides, robberies, and arsons of towns and houses : and with ban- ner displayed evilly and disloyally, the castles of his lord the King of England besieged, took, and levelled." The pleadings that have come down to us give no further clue to the occasion of these hostile acts by the Earl David against the King of England ; and from the tenor of his- tory we must infer that David's felony was his fighting against England under his brother, William the Lion, before the Treaty of Falaise. But, for a reason shortly to appear, something more was necessary to open to the Count of Holland a title to that which could not go to Earl David's representatives. He entered this additional plea : Earl David had solemnly renounced his right of succession to the crown — had renounced it into the hands of his brother King William, in presence of the assembled Estates, and had seen it transferred to his sister Ada, the ancestress of the Earl of Holland. The feudal system discountenanced gratuitous renunciations. Its principle throughout was a doctrine of equivalents, and that any owner of a possession or prerogative had simply given it away, was a point not to be easily made out to the prejudice of his heirs. In this transaction, however, there was an equivalent. In consideration of the chances abandoned for him and his, he received an estate in possession, which was yet en- joyed by the descendants of Earl David's three daughters — Baliol, Bruce, and Hastings. This estate the foreign attorney for the Earl of Holland calls Gharirache ; it may now be identified as the district of the Garioch in Aber- deenshire, which is known to have been a domain belong- ing to Earl David's descendants. Among many arguments stated against this plea, one does credit to the forensic subtlety of the day : the Count refuted his case by the mere statement of it. His ancestress Ada could only have right of succession as the sister of Earl David, and if he was a felon, his felony excluded his sister as well as his children. Then if Earl David sold his birth- right for this estate in Aberdeenshire, he sold what had already gone from him, and whoever might profit by the felony, the Count of Holland precluded himself from plead- 148 ADJUSTMENT OF THE SUCCESSION. ing it. To this it was rejoined that the transaction occur- red before the felony, and hence the reason for plead- ing it. The Count had still farther and equally remarkable matter to state. He said the settlement of the crown on Ada and her descendants was adjusted in something very like a full parliament. " The said King William caused to be assembled all his baronage of Scotland, as well of bishops, abbots, and priors, as earls, barons, and other substantial men of the land. . . . And these the said king ordained, provided, and established, that, if he should die without heir of his body begotten, or if the heirs from him issuing should decease without heirs from them issuing, then they should hold Ada, his sister, as their lady, if she should be living; and if she should be dead, the heirs from her issuing." Thereafter the magnates assembled did homage, and swore fealty to Ada accordingly. Baliol and Hastings of course denied this transaction ; but, providing, as litigants well advised do, for its possibly being true, they said it went for nothing — it was a mere intimation to the tenants on the domain. If William had no power in his own person to alter the succession, these tenants on the domain could not give him such a power. So is met the only reference in the pleadings to the rights of the people of Scotland or of their representatives. The pleadings of the illustrious competitors are not exempt from the prevailing suspicion that attaches to the statements of litigants generally. Almost every litigant exaggerates his case, and even as to the facts, if they are very telling and are ill-supj)orted, it is necessary often to be scep- tical. Most people will, perhaps, doubt the PZarl of Hol- land's story, but some also have doubted, though with less provocation, whether Bruce adhered to truth in maintain- ing as he did that Alexander II., when afraid of dying childless, named him as his heir, and had the nomination confirmed by parliament. Upon this strong plea Baliol retaliated by charging Bruce with treason against the queen, in that he had taken up arms against her, and actually be- sieged and taken the Castle of Dumfries. Bruce could refer to instances of collateral succession, PROPOSED PARTITION, 1292. 149 the latest and most distinct being that of Donald Bane ; but here his adversary had a story to give which would be very likely to tell with the Lord Superior. No doubt Donald Bane did usurp the throne left by his brother Malcolm, but Duncan, the son of Malcolm, went forth- with to William the King of England as Lord Superior of Scotland. On Duncan's death there was a second usurpa- tion by Donald, but again King William, as Lord Superior, came to the rescue, ejected Donald by force, and placed the rightful heir, Edgar, on the throne ; and so had the succession ever since been kept in its proper line under the rule of the Lord Superior.^ As the pleadings wear towards a conclusion, they have a tendency to break off from the great national question at issue, into the pressing of secondary personal claims and interests, the discussion of which yet throAvs some light on the political ideas and feudal notions of the day. As the tendency of the proceedings towards pure primo- geniture becomes clear, and the other suitors see that this points to Baliol, they begin to devise plans for a share of the inheritance. Certain feudal estates both in England and Scotland belonged to the crown of Scotland, and these were divisible among heiresses, and should be in- herited in shares by the descendants of Earl David's three daughters. One of the claimants carried this hint a great way fur- llier. Whether it were Baliol, the distant descendant of the elder, or Bruce, the nearer descendant of the younger, who succeeded, John of Hastings, the descendant of the J These pleadings are taken from tlie fragments printed by Sir Francis Palgrave in his Documents and Records ilhistrating the His- tory of Scotland, who, conscious that the assertions about the active interposition of WiUiam Rufus, as Lord Superior, were falsehoods, makes this apology for the production of them : " Some might be acquainted with the events from written memorials ; to others they were known by general tradition or recollection. Baliol quoted them as he understood them, and as they were universally understood in Scotland." — Introduction, Ixxxvi. There is no doubt that in Scot- land at that time, reasonably or vmreasonably, nothing that might impart any right of interference by the King of England in the affairs of the country was either " understood " or tolerated. 150 ADJUSTMENT OF THE SUCCESSION. third daughter, must be postponed to either. He there- fore pleaded that the estate — namely, the kingdom of Scotland — should be broken up and divided among the representatives of the heiresses. Bruce had at first con- tended that Scotland was a sovereignty and indivisible, but he now found it expedient to amend his claim, and put in for his third part of the succession, thus making common cause with Hastings. He was met by an objec- tion not applicable to Hastings — his pleading was incon- sistent ; for whereas he had founded his original claim on the assertion that Scotland was a sovereignty and indi- visible, he now asserted it to be partible, and claimed his share. It would be an utter misunderstanding of the spirit of these pleadings to suppose that Bruce was taunted with this as anything to be ashamed of His change of position was as natural as the tactic of the litigant, who, having claimed the sum total of a fund, is content in the end to take a dividend of it. Baliol's objection to the entering of such a plea was purely technical : and Bruce held against him that it is every suitor's privilege to put m whatever plea is for his advantage, unless there be an absolute rule of practice against him ; and here there could be no such rule, for when he pleaded the indivisi- bility he was entering a general claim to the sovereignty of Scotland without reference to the claims of others, but now his plea of divisibility was put in by him as a party to a litigation in which Baliol was the one party, and he the other. The Lord Superior seems to have heard these and other such pleas with patience — indeed to have liked them, for they were gradually breaking down the old historic asso- ciations of a separate sovereignty, and preparing for the absorption of Scotland into the realm of England. From this point the pleadings for Baliol are that Scotland, though subject to the superiority of the King of England, yet is a Sovereignty ; and he rebuts all comparison be- tween it and several estates referred to as having been divided among heiresses. And here the tone of Baliol's pleading has in it a touch of dignity, as sui)porting some remnant of separate sovereignty for Scotland, while the PROPOSED PARTITION, 1292. 151 Others seek to remove the last shred of it. Thus, as showing the separate sovereignty of Scotland, Baliol sets forth that one who had committed felony in England flee- ing to Scotland could not be apprehended at the instance of the English authorities ; to which Hastings makes answer, that if such things did occur, they were but an abuse.^ ^ *' To the demand by Sir John de Hastings of the third part of the kingdom of Scotland, because that he springs from the third daughter of David, and the kingdom of Scotland is held of our lord the King of England, and because that there never was a king of Scotland anointed or crowned ; — Sir John de Baliol maketh answer, that although the kingdom of Scotland is held of our lord the King of England, never- theless, before the Incarnation of our Lord, and always since, the land of Scotland has been held as a kingdom by kings who have there governed the realm, and by the Church of Rome have been king named and for king held, as also by all kings of Christendom ; and royal dignity had, and justice in their land did unto all who of Scot- land were. And besides this, he says that the castles, burghs, or towns of Scotland, do not make the king, nor confer the royal dig- nity, but it is the royal dignity that makes the king ; castles, towns, and burghs, and all other things which in the said kingdom are, [are] unto this royal dignity appendant ; the which dignity is one [and] entire, and the highest lordship in any land where kings do reign. And since that castles, cities, and burghs and towns, [are] annexed to this royal dignity, — without the which things it cannot be maintained, — just as the principal is non-partible, [so is] neither the accessar}' nor the thing which unto the principal appertains. "And as to that there is no king anointed or crowned, the said Sir John de Baliol maketh answer, — that the anointing of a king or the crowning of a king is only the sign of a king, what he ought to be. And this appears in every crown of a king, which is round, and so signifies perfection ; and the four flowers of the crown, each has a signification in itself : the flower in front signifies justice, the flower behind might ; and of the other two flowers, the one signifies tem- perance, and the other prudence. And so the crown does not make the king, but it is an emblem, as before is said. " Besides this, he says that there are many kings who are reigning who are not crowned, as the Kings of Spain, the King of Portingale, the King of Saverne, and the King of Vaxen, who hold their kingdom of the King of Almaine, as also the King of Arragon ; the which all hold their kingdoms as non-partible. And like as in the time of our lord the King now reigning, the younger brother of the King of Arra- gon demanded as against the king, his brother, part of the kingdom of Arragon ; and because that he would [not] do him the right he de- manded, he sent his messengers to the King of France, and to aur lord the King of England, and to the King of Spain, and to seveniiJ 152 ADJUSTMENT OF THE SUCCESSION. The claims of the heirs parceners, as they have to call themselves, are urged with all the pertinacity natural to litigants fighting for valuable possessions. They go into intricacies of feudal prmciple, through which it would hardly be instructive here to follow them, but it is easy to see that these pleadings must contain a great treasure of thirteenth-century practice for the use of the conveyancer and real-property lawyer. What confers a strange interest on the selfish squabble, and the array of technicalities and pleadings called out by it, is that there is no more allusion to the rights of the community of Scotland, or the way in which a decision may affect them, than there need be in any private litigation. They have no more place in the question than the tenants on an estate while the settle- ments are disputed. So far as one can gather from the terms of the documents, it never seems to have occurred to the greedy litigants themselves, or their astute technical advisers, that there was a fierce, self willed people, nour- ished in independence and national pride, who must be bent or broken before the subtleties and pedantries of the Lord Superior's court could be of any avail. Totally un- conscious they seem also to have been that the intricate technicalities which dealt with a sovereign independent state as a mere piece of property in search of an owner, formed an insult never to be forgiven, whatever might be the cost of repudiation and vengeance. We cannot show how far any rumour of the proceedings before the Lord Superior penetrated into Scotland. We can only under- stand that as yet there was nothing done that could or need be resisted. Action would come when the pressure of Norman rule should tell the people that they had got new masters. The great cause, as we have seen, began in May 1291 ; we are now in November 1292. The Lord Superior other kings, of whom each sent him word by his own messenger, that a kingdom ought not to be divided ; and all the kings united, and unto this agreed. Wherefore it seemelh unto him, that this matter ought much to work for him in this case." — Rishanger, p. 339-342. This is a mere characteristic fragment of a long pleading. WINDING UP, 1292. 153 seems to have felt that the time had come for a conclu- sion. There is evidence of quick work ; all the competi- tors, save the descendants of Earl David, appear with- drawing their claims as if by a simultaneous vote, though there was doubtless much dealing with them to get them out of the way at the right time. Before judgment, two questions were put to the assemblage, the which, as the Great Roll succinctly tells, brought out answers to the effect that in this question the estate was not divisible, and the descendants of the elder sister must be exhausted before those of the younger have a title. In the fuller accounts of the affair, however, we find that King Edward got answers to four questions from the eighty of Scotland, though we do not see, as in the earlier stage, in what form they were rendered. The first was. Whether the kingdom was partible ? and they answered that it was not. The second was. Whether the estates belonging to the crown were partible ? and the answer was, that if they were within Scotland they were not, if out of Scodand they might be. The third was, Whether earldoms and baronies were partible in Scotland? and they answered, that earldoms were not, as had been found in the succession to the earldom of Athole, but baronies were understood to be partible. The fourth question was more general, If the kingdom was not partible, and so should fall to the descendants of the eldest, was it consistent with practice to make some provision for the younger daughters or their descendants ? The answer was, that there had been no opportunity to provide for such a case in the succession to the crown ; but in the succession to earldoms it was usual for the eldest, who took the estate, to make some provision for the younger — but this was matter of grace, not of right. To complete the history of the great cause it is neces- sary to give these last particulars, because they are con- tained in documents evidently authentic ; but it would be satisfactory to know more than these documents tell of the spirit in which they were put and answered. On the Monday after the Feast of St Martin, in No- 154 ADJUSTMENT OK THE SUCCESSION. vember, there was a great assemblage in the Castle of Berwick to hear the Lord Superior's judgment, which, as all by this time must have well known, was in favour of Baliol. It was a correct judgment according to the law of hereditary descent as now established, and probably the full consideration which the case received may have done much to settle the rule of primogeniture for after- times. There was still business to be done. The new vassal had to do homage, and instructions had to be issued for his investiture in his fief These operations are almost hidden in a procession of formalities, devised for the pur- pose of placing the result of the momentous process be- yond any possibility of question or cavil. A piece of business had to be adjusted in the winding-up, small in itself, yet holding a significant meaning. The fees to be paid to the Lord Chamberlain for the King of Scotland's homage had to be adjusted. By an ordinance recorded in the Great Roll it was fixed at twenty pound, — the double of an earl's fee. Thus, often as we find mention of a king of Scots doing homage for something or other, there was no precedent for what he must pay in doing homage for the kingdom of Scotland.^ And this is in harmony with all the proceedings before the Lord Supe- rior. Their character, as ordinary feudal usages turned to the accomplishment of a new object for which tnere were no set precedents, is sustained throughout. There was abundance of further technical procedure in the winding up, but we have now reached the result, and the further formalities make no part of the story. It would not be very instructive to recapitulate them ; and in fact, as they are all on parchment, an account of them would be about as uninteresting as an abridgment of any set of title-deeds. The tiresome uniformity of the written documents is varied by one small but significant piece of material work. The seal used by the guardians was broken into four pieces, which were put into a leather bag * *' Ratione homagii quod idem rex Scotias fecit regi Angliae pro regno Scotia"." INVESTITURE OF KING JOHN, 1292. 155 and deposited in the Treasury of England. It is set forth, with the solemnity which attends the whole process, that there were two reasons for this — the one was to obviate questions which might arise about the date or validity of writs, if the seal of the guardians were in existence after the appointment of a King ; the other was to pro- vide an additional token or testimony of the establish- ment of the King of England's feudal superiority over Scotland.' ^ If the Author shall come under the reproach of having gone with tedious minuteness into the particulars and technicalities of this dis- cussion, he has to say that great litigations — causes cJ/l'ires, as they are called — are admitted to be instructive chapters in the history of human affairs ; and it would be difficult to find a more important cause than the one of which the account is just concluded. As to the authorities for this account, the staple is of course the Magnus Rotulus Scotiae in the Foedera : this is aided by papers in the Rotuli Scotias and in the Ragman Rolls, edited for the Bannatyne Club. A con- siderable amount of new material is poured in by Sir Francis Pal- grave, in his ' Documents and Records illustrating the History of Scotland, and the Transactions between the Crowns of Scotland and England, preserved in the Treasury of Her Majesty's Exchequer.' Of all that has been contributed, to our knowledge, of the affair, how- ever, since the Great Roll was first published by Rymer, by far the most important contribution recently appeared in the third volume of the Chronicles of the Monastery of St Albans, in the Collection of Chronicles and Memorials of Great Britain and Ireland during the Middle Ages, published under the direction of the Master of the Rolls. Like the two previous volumes from the muniments of the same establishment, known as Thomas of Walsingham's History, this volume has been edited by Mr Riley ; and all who have occasion to use it must feel grateful to him, not only for the important documents brought to light by him, but for the assistance afforded by him for fully understanding their import and their connection with what was previously known. He brings home the collecting of these materials to Walter of Rish- anger, a distinguished monk of St Albans. If he is right in this, the documents were preserved by one who was no friend to the Scots side in the great controversy ; for Walter was retained by King Edward to plead his cause against Scotland before the Pope, and we shall have hereafter to come across his handiwork. (See Introduction to the Chronicle of Rishanger, printed by the Camden Society.) Whoever preserved the documents, they are an immense addition to the con- tents of the Great Roll, and let out many significant particulars not to be found there. Among these is the very notable fact that on the question of homage the community of Scotland spoke out, though not IS6 ADJUSTMENT OF THE SUCCESSION. For instance, the fact of the doing of homage is very articulately set forth in a notarial instrument duly attested ; and then, to give additional strength to this, there is the narrative of onlookers who saw the ceremony, and reported what tliey saw. The new King of Scotland, King John, has to sign a statement — a sort of affidavit — that he per- formed his homage for his kingdom of Scotland, and per- formed it willingly, and in honest faith that it was justly due to the King of England as Lord Superior of Scot- land.i The new king now went to Scone to be solemnly in- augurated on the Stone of Destiny, after the manner of the kings of Scotland. He brought with him a document or wan-ant from his Lord Superior, authorising the cere- to the purpose, in the Lord Superior's judgment (see p. 121). Many other instructive particulars — including the information, in the last sentence of the text, about the reason for breaking the Cireat Seal — are to he found solely in Rishanger's collection. Altogether, it is clear that the pleadings and the miscellaneous documents connected with the great cause must have been very voluminous. A great bundle of the pleadings has come to us from Rishanger, yet they shovv' that there was abundance more. Sir Francis Palgrave gives portions of the pleadings different from those preserved by Rishanger — not in- consistent with them, but belonging to a different stage in the great cause. ^ The Norman scribe or conveyancer who drafted this document found a difficulty, and was perhaps proud of the way in which he got over it. The practice of authenticating business documents by seal had then taken root in England. It came into Scotland, too, among the Normans, but afterwards dropjied out of use, yieldmg to the simple signature in writing. In England, however, the practice grew and flourished so healthily, that at this day, as many people know, there are several kinds of documents of the most important kind, public and private, which would be utterly worthless without having on them a wafer or a piece of circular paper pasted on to represent the seal of the person who signs. The shape of the seal, however, which was to attest King John of Baliol's affidavit of his homage was a more serious affair. Whether the old seal had been yet broken up or not, it was not a suitable one for the occasion, and there was as yet no new seal with the elhgy of King John. The plan adopted, after due consideration, was to use King John's private seal, as .Sir Johan de Baliol, and to narrate how, in the emergency, that plan was adopted. " En tesmonie de ceste chose, je ay mis a cest escrit mon seal, que je ay use jesques en cea, pur ceo que je ne avoy uncore autre seal fet desouz title e noun du Roy."- Rishanger, 368. INVESTITURE OF KING JOHN, 1292. 1 57 mony to be performed, and certifying him as the proper person on whom it should be performed. He was en- throned accordingly on the 30th November 1292. There was still a step wanting to satisfy his master. Homage had been taken of him at various stages of the process ; it was now desirable that he should render it as an invested king, and he did so accordingly on the 26th of December at Newcastle, where King Edward received him. He was now sent back to his people, as thoroughly complete a vassal king as the technical skill of the Norman jurists could make him ; and his was doubtless deemed the lot of a fortunate and happy man. In that brilliant chivalry — that group of gay adventurers who, unburdened by nation- ality or other serious creeds, were following fortune wher- ever they could find it — he had drawn the foremost prize going; but it only cast him into a sea of troubles. It was plain from the first that his people would not bear the rule of a servant of Edward. In the society he had left behind him, no one dared speak of anything but homage and the rights of the Lord Paramount. Among the people now surrounding him these were terms not to be endured, and he was far away from his master and protector. He was thwarted in the selection of his officers, and had to strug- gle with all the difficulties which subordinates can throw- in the path of an unwelcome master. He does not seem to have been a man of much ability — indeed he is liberally termed a fool by friends as well as foes — but his position was one in which courage and ability might have only made mischief. It was said at the time that he was in terror for his safety ; and one contemporary writing from the English side compares the poor simpleton to a lamb among wolves.^ ^ In the St Albans Annals, attributed to Rishanger, who, for the reasons already mentioned (p. 155, note), had means of knowing what was going on, there is a lively enough notice of King John's reception : "Scoti autem, volentes nolentes, ilium ut regem animo turgenti mo- leste suscepurunt. Illico omnes famulos suos de sua notitia et natione summoverunt, et alios, ignotos sibi, ad sui ministrationem deputarunt Regium nomen ei regie imposuerunt, non spontanea voluntate, sed coact.i, et regium officium ei penitus abstulerunt, dicentes, mutue. 158 ADJUSTMENT OF THE SUCCESSION. It happened that individual members of the community, in the ordinary pursuit of their personal aims, were the means of rousing the exasperation of the body at large, by bringing home to them in a palpable shape the national degradation. The rumour had gone forth that the king's courts were no longer supreme — there was an authority above them, which could correct their decisions and remedy their acts of injustice. This was glorious news to dis- appointed litigants. It was desirable, too, that as speedily as possible the Lord Superior should exercise his power as the protector and redresser. The first to appeal unto Caesar was Roger Bartholemew, a burgess of Berwick. A certain Marjory Moigne, a widow in Berwick, took proceedings before the Court of the Cus- todes at Edinburgh on the following statement : — She had lent to William the goldsmith a hundred and eighty pounds sterling, the property of her boys. The goldsmith having died, Roger, as his executor, had taken possession of his estate, but had not repaid the widow. There was a counter-plea, that the goldsmith's estate had a claim for the maintenance of the boys, and that to the rest of the fund the widow had helped herself by taking it out of the executor's strong-box. On these counter-pleas a litigation was built, the result of which was disastrous to Roger ; and it was only in human nature that he should seek a remedy, without being hindered by considerations about the sacrifice of his country's independence.^ Ring Ed- ward, at Newcastle, named a council to hear the case. King John protested that there existed a treaty providing that no native of Scotland should be required to plead to ' Nolumus hunc regnare super nos.' lUe autem, simplex et idiota, quasi mutus et elinguis comperta superstitiosa seditione Scotonim, non aperuit os suum ; timuit enim feralem rabiem illius populi, ne eum fame attenuarent, aut carcerali custodia manciparent. Sic degebat inter eos anno integro, quasi agnus inter lupos. " — Annales Angliae et Scotiae, 371. ^ " Placita apud Edenburgh coram custodibus regni Scotie die Jovis in festo S. Luce Evang. Anno Dom. MCC. nonagesimo primo." Under this title the whole case will be found in Ryley's Pleadings in Parliament, p. 146. CAUSES APPEALED TO ENGLAND, 1292-93 1 59 any suit, civil or criminal, out of the realm. King Edward said that, supposing there were such an obligation, it could not aftect his right to control the judges he had himself appointed ] but he was resolved to remove all possibility of mistake, and, speaking fairly out, proclaimed that he was determined to hear all appeals from the country of which he was Lord Superior. Though a thoroughly practical man, not to be turned from his purpose by parchment, it seems to have been felt by Edward as undesirable that there should remain in writing an agreement like the Treaty of Brigham, by which, in many shapes, he had be- come bound to observe the independence of Scotland, and had especially engaged that no Scotsman could be cited as a litigant into England. Accordingly, he extracted from Baliol a discharge and renunciation of this treaty for himself, his kingdom, his heirs, and every conceivable being supposed to have an interest in its provisions. While they were at such work, Edward's lawyers extended the cancelling to every kind of document known to exist, or afterwards turning up, in which there might be any con- dition that could by possibility be pleaded against the exer- cise, in any circumstances, of his sovereign superiority. This discharge, for greater security set forth both in Latin and French, is the last in " The Great Roll of Scot- land." The elaborateness with which it raises a verbal fortification against every possible argument, plea, or quibble, that might be brought against the claims and acts of the Lord Superior, makes it a curious document ; and the study of it might be instructive to a sharp attorney accustomed to prepare obligations for holding people to bargains which they may possibly repudiate as iniquitous. The pecuniary squabble among the burgess families in Berwick thus expanded into a critical question of national politics. It was followed by another, which, standing alone, w^ould have been of infinitely greater moment, since it concerned rights of succession connected with the earl- dom of Fife. It involved complex points, both in pedigree and legal formality, grounded on a claim by Macduff, the younger son of the last earl, who, as against his grand- nephew, demanded certain lands which he said his father l6o ADJUSTMENT OF THE SUCCESSION. had given him. The real importance of the case lay in its finding it way to the Estates of Parhament. The sitting began at Scone on the loth of February 1293. The judg- ment was against Macduff, who appealed to the Lord Supe- rior. With these two cases in hand, a sort of rule of court was framed for hearing appeals from Scotland. It in- volved two remarkable conditions — that in such appeals the King of Scotland was to be cited, and must attend as a party ; and that the appellant, if successful, should have damages or reparation for the injustice done to him in the court below. It is easy at this stage to see that, whatever the ulti- mate views of King Edward may have been, his im- mediate object was to subject his new vassal to deep humiliation. On the Macduff case the King of Scots was cited to appear before the high court of the Parliament of England on the day after the Feast of Trinity, in the month of March. He did not appear ; he was afraid to set off on such an errand. He was again cited to appear in October. Meanwhile, in August, there was a meeting of the Estates at Stirling — a meeting which may be called the second Parliament of King John.^ The business it transacted, so far as we have it on record, related to personal feudal claims. They were of considerable territorial importance. Two of them — the one affecting the domains of the house of Bruce, the other those of the house of Douglas — were appealed to King Edward and his Parliament. It is in the shape taken by the appeals already entered that poli- tical importance and historical interest centre.^ King John obeyed the second summons, going up to England with instructions, whether they were communicated to him by the assembly at Stirling, or otherwise. We see by the ^ See the proceedings of the two meetings, during John's short reign, in the fust volume of the Scots Acts, p. 89 et seq. ^ A good account of the three litigations in which the houses of Macduff, Bruce, and Douglas were interested, is given by Lord Hailes, who seems to have taken a professional interest in them as a genea logical lawyer Annals, i. 274 et seq. CAUSES APPEALED TO ENGLAND, 1292-93. I6I record of the proceedings that he was personally present.^ As the historians of the EngHsh ParHament put it : " This King of Scotland was obliged to stand at the bar like a private person and answer to an accusation brought against him for denying justice." ^ A legislative assem- bly, whether patrician or democratic, can always be trusted with the execution of an oppressive or insulting policy towards a rival or dependent community ; and on this occasion Edward was well served — too well perhaps. The King of Scots was treated throughout as a contuma- cious litigant, failing in respect to the worshipful court. He stood, however, to the policy to which he had been driven in Scotland. Acknowledging himself the vassal of the King of England, he said he yet dared not commit himself to the matter in hand, or any other affecting the kingdom of Scotland, without consulting the Estates of the kingdom ; and when closer pressed, he repeated the assur- ance.^ The court then found the party before them con- tumacious, and guilty of contempt of an aggravated kind, since it was cast at the sovereign who had conferred on him the dignity and authority he enjoyed. He was not only to be subjected in damages to the appellant, but to a special punishment for contumacy. On a preamble, which seems to say that a delinquent ought to be punished by deprivation of the means of holding out in wrong-doing, it was resolved that the three principal castles in Scotland, with the towns attached to them, and the royal jurisdiction over them, should be seised into the hands of the King of England until his vassal should give satisfaction for his contumacy.^ Before this parliamentary resolution passed ^ " Placita coram ipso domino rege et consilio suo ad Pailiamentum suum post festum S. Michaelis," &c. — Ryley, 157. 2 Pari. Hist., i. 4I. ' " Quod de aliquo regnum suum contingente non est ausus nee potest hie respondere inconsultis probis hominibus regiii sui." * " Juri consonum est quod quilibet puniatur in eo quod ei prebet audaciam delinquendi, consideratum est similiter, quod tria principalia castra regni sui Scotis?, cum villis in quibus eadem castra sita sunt, cum jurisdictione regali in easdem, seisiantur in manu domini regis et seisita remaneant quousque de contemptu et inobedientia predicta, eidem domino regi satisfecerit." VOL. II. L 1 62 ADJUSTMENT OF THE SUCCESSION. into a decree, King John preferred to his superior, in very humble guise, a petition for delay, until he should consult " les gentes demon royalme," as he called them, promising to report the result to the first Parliament after Easter. The Lord Superior thought fit to grant this petition." But these judicial proceedings were destined to be borne down by political impulses of a more powerful kind; and we have no more records of the appeals against the King and Parliament of Scotland to the King and Parliament of England. 1 63 CHAPTER XX. WAR OF INDEPENDENCE TO THE BATTLE OF STIRLING. EDWARD'S QUARREL WITH FRANCE — THE OPPORTUNITY FOR SCOT- LAND — ALLIANCE BETWEEN FRANCE AND SCOTLAND — THE FOUNDA- TION OF WHAT IS CALLED THE ANCIENT LEAGUE— ITS IMPORTANCE IN EUROPEAN HISTORY — POPULAR CONDITIONS OF ITS ADOPTION ON THE SCOTS SIDE — EDWARD'S RETURN AND INVASION OF SCOT- LAND — THE SIEGE OF BERWICK — BALIOL DRIVEN TO RENOUNCE HIS ALLEGIANCE — MARCH NORTHWARDS — EDINBURGH— THE RE- MOVAL OF THE CONTENTS OF THE ROYAL TREASURY — SCONE — REMOVAL OF THE STONE OF DESTINY — ITS STRANGE HISTORY BEFORE AND AFTER THE REMOVAL — THE BLACK ROOD OF SCOTLAND AN- OTHER ACQUISITION — ITS HISTORY— EDWARD'S CIRCUIT AND COL- LECTIONS OF HOMAGES— APPEARANCE OF WALLACE ON THE SCENE — WHAT IS KNOWN OF HIM COMPARED WITH THE LEGENDARY HISTORY— HIS CAPACITY AS A COMMANDER AND ORGANISER — HOW HE GATHERED AN ARMY — HIS VICTORY AT STIRLING BRIDGE. At this juncture an event occurred on the Continent momentous to Scotland, and even to Europe. It furnishes, too, an apt warning of the futility of passing a judgment on the political relations of nations and communities from feudal forms and parchment records. In the records of the court of France for the year 1294, there is an entry to the effect that Edward of England, summoned as a vassal to appear before his lord superior, the King of France, having failed to obey the summons, is punished for con- tumacy. The forms of feudal style in which this step is recorded, are a fair rival in domineering and insulting language with those of King Edward's scribes in the affairs of Scotland, for France was then in one of its expansive l64 WAR OF INDEPENDENCE. transitions, and the tone of King Philip was high.' As lord superior he peremptorily fixed the day at which his vassal must appear before him in Paris ; and he orders and adjudges him then and there to appear, as the gravity of the charges against him requires, to submit to the judg- ment of his lord superior, warning him that, whether he appear or not, justice shall take its course. The founda- tion for this citation was a paltry squabble at Bayonne, in which it was maintained that the British were the aggres- sors. King Edward w^as too deep in such mysteries not to know at once what his brother Philip the P"air intended. Having Ireland, Wales, and last, Scotland, to deal with at home, Edward's hands were full of business. He knew that the opportunity was only too good for an attempt to annex his French dominions to the crown of France, and the first step to be taken was to insult him, and convert him as speedily as possible into a contumacious vassal. Edward let the matter take its course, and prepared for war. He summoned a parliament for an aid, and John Baliol, who attended, made a munificent contribution to it — three years' rental of his vast English domains. It is not clear whether King Edward saw through the policy of this gift : it must have been clear to the giver that, if he retained his crown, he must entirely lose his English estates. He had wide domains in France too, which might be forfeited, so that the concurrence of conditions which had loaded him with the favours of fortune had also heaped perplexing difficulties around him. An embargo was issued against vessels leaving the coasts, and nominally at least it extended to Scotland. ^ "Vobis praecipimus et mandamus, sub poenis, quas potuistis in- currere et potestis, quatinus vicesima die instantis natalis domini, quam vobis peremptorie Parisiis assi^uamus, compareatis coram nobis, sicut debeatis et debetis, et sicut tantorum facinoi-um et exces- suum quaiitas exigit et rcquirit, super eisdem, quonim cognatioad nos pertinet, et prjedicta tangentibus, et qax ex eis sequi possent, et omnibus aliis, quce contra vos proponenda duxerimus, responsuri, et juri parituri, et quod justum fuerit audituri, et etiam reccpturi. Sig- nificantes vobis, tenore prcesentium, quod, sive dictis die et loco compareatis, sive non, nos nihilominus procedemus, prout debemus, vestra absentia non obstante." — Foedera (Record edition), i. 793. ENGLAND AND FRANCE, 1294-95. 165 The usual warrant for the feudal array was issued, and the chief vassals of the crown, with the King of Scots first in order, followed by Bruce and Comyn, were honoured by special writs of summons. For a bold game in Scotland here was a good oppor- tunity, and it was not lost. In the English chronicles we are told that, when Edward had departed on his expedi- tion, a Parliament was held at Scone, at which all the Englishmen holding office at court were dismissed, and a committee of twelve members from the higher grades in the Estates was appointed to conduct the business of government.^ Of these transactions there is no better evidence, but of another and more significant we have an ample record. During the year 1295, a league, offensive and defensive, was concluded between John, King of Scotland, and Philip, King of France. In the record of the negotiations, which is very full, there is a specialty on the side of Scotland which seems to give some amount of materiality to that communitas, or community, which we have found dispensing its influence in a shadowy and un- certain form. On the side of Scotland, as parties to the transaction, are announced the Prelates and Nobles, and also the communities of the towns or burghs, called also Universities, a term of wide use at that time, but soon after- wards limited to the great teaching corporations.^ Hence, attached to the stipulations for Scotland, along with those of prelates or barons, are the seals of the burghs of Edin- burgh, Aberdeen, Perth, Stirling, Berwick, and Roxburgh. It is very unlikely that the transaction was completed by any assembly that could be called a parliament. That might have been unsafe or imprudent had it been the constitutional arrangement for the conduct of such busi- ness. It had, no doubt, to be so conducted that it should ^ Rishanger, Hemingford, and Matthew of Westminster, anno 1295. * " Et quia regni nostri prelati quantum eis de jure licet, ac comites, barones, et alii nobiles, nee non villarum universitates ac communi- tates, dictos tractatus conventiones pactiones ac considerationes ut superius est expressum suo nomine approbaverunt et se per presentes observaturos firmiter promiserunt," &c. — Scots Acts, i. *gj. 1 66 WAR OF INDEPENDENCE. be secret to many of the Scots themselves. Yet great care was taken to place it on a broad popular basis. According to a fashion of the day, the diplomatists on both sides were eloquent in setting forth noble motives for what they were doing. The advisers of King John must have surely yielded to a sense of sarcasm, when they made him express his indignation at the undutiful conduct of the King of England to his lawful superior the King of France — perhaps it was a faint attempt to pay off old scores. This was the starting of that great policy which had so much influence for centuries on both sides of the British Channel — the policy of France and Scotland taking common counsel against England. It is just pos- sible that the preservation of Ealiol's French estates, Bailleul, Dampierre, Helicourt, and Hernoy, may have had some influence in reconciling him to so strong a measure ; but what gave its real stability and power to the league between Scotland and France was their com- mon interest, founded on their common danger. Pro- minent in this treaty was a royal alliance — Edward, the son of the King of Scots, was to marry the King of France's niece, the daughter of the Count of Anjou. There were stipulations for matrimonial provisions, and very carefully drawn stipulations, that Baliol's son, Ed- ward, should really be his successor in the throne. For the rest. King Philip engaged to protect Scotland from English invasion, by sending an army and otherwise, and the Scots king bound himself to break in on the borders while Edward was engaged in the war abroad.^ This last was a bargain for wasting, destroying, and slaying, ren- dered in terms which sound savage through the diplomatic formalities. The engagement was but too literally kept. One rabble army swept the western, and another the eastern, border counties, pillaging, destroying, and burn- ing after the old fashion. ^ The substance of the treaty is in some measure preserved in the Foedera (Record edition), i. 822, and in Ilemingford, i. 66. The most complete rendering of it, however, is in the first volume of tl.e Scots Acts (Acta Regis Johannis), p. *9 > SCOTLAND AND FRANCE. 1 67 Both returned without any battle or achievement to give the mark of soldiership to their expedition. A course more wantonly impolitic for a country in Scotland's posi- tion could not well be devised ; but it was a country not only without any conspicuous leader, but deprived, by a succession of singularly adverse incidents, of the machinery which a nation requires for its government even in ordinary times. Bruce, the competitor for the crown, died about this time. His son, the father of the great King Robert, was suspected of treating for the reversion of the rights likely to be forfeited by Baliol ; and the raids against England seem to have been directed by Comyn, Earl of Buchan. It has generally surprised historians that so strong and Avarlike a king as Edward should have left the French contest a loser rather than a gainer. His fiery spirit was, however, ruled by a deep sagacity. As emperor of all the British Islands, with Ireland, Wales, and Scotland sub- dued, he would achieve an eminence and power not to be risked for the sake of straggling dependencies on the Continent. Accordingly, he determined at present to concentrate his powers on Scotland. He marched northwards with thirty thousand foot- soldiers and five thousand mounted men-at-arms.^ This was a powerful force. The horsemen, clad in complete mail, their actual fighting power enhanced by a supersti- tion that they were unassailable, were then to an army what cannon are now — they could not be too numerous. An army, of course, required other elements, but these never failed in full proportion to the mounted men, whose number was ever limited by the difficulty of procuring them. He determined to pounce upon Berwick — at once the key of Scotland, and the centre of its commercial riches. He forded the river Tweed a few miles above its mouth, and thus got his army clear of the difficulty of crossing a river in the face of an enemy. He now marched 1 The chronicles say 4000 ; but in the diary to be presently re- ferred to the number is 5000.— See Stevenson's Documents, &c., ii. 25. 1 68 WAR OF INDEPENDENCE. through ground familiar to him in the conferences about the competition. At that time we have found that he came and went as he pleased, holding his court in the town or the castle of Berwick as suited him ; but now the castle or citadel was garrisoned by Scots, and even the town resolved to resist. This presumption made Edward furious ; and a chronicler of the day who was deep in the king's confidence, and practically concerned in his pro- jects on Scotland, thought it worth his while to preserve some contumelious taunts with which an audacious citizen aggravated the monarch's potent wrath.^ It received more ardent aggravation from the burning of some ships which had been sent for a sea attack. The town, with ^ This, as given by Rishanger, is perhaps the oldest relic of the Lowland Scots of the day : " Confestim unus e Scotis aha voce coepit convitia et verba probrosa regi Anglire inferre patria lingua, — Kyng Edward, wanne thu havest Berwic, pike the ; wanne thu havest geten, dike the' (p. 373). In an old French chronicle the taunt is varied, and accompanied by a hit at the personal peculiarity which gave occasion to the nick- name Edward Longshanks — " What wende the Kyng Edward For his langge shanks, For to Wynne Berewyke Al our unthankes? Go pike it him, And when he it have wonne Go dike it him." And in comment the chronicler says briefly : " Quant le bon roi Ed- ward oi ceste reproece taunt fist il par sa prusce qe il assailli les portes, et passa el conquist la ville, et occist par soun gracious poer vynt et cink mille et sept centz." — Wallace Papers, 142. Though we need not believe that these sarcasms had such an effect in raising the fury of the king, the notoriety given to them shows that they must have been effective, though we cannot now easily see their point. The best testimony to their celebrity is, that Peter Langtoft in his chronicle took tliem up as hits, and deliberately answered tliem in the spirit of the old taunt of retaliation, that they may laugh who win, since the jiick-a.xe and the dyke at which the others sneered had been effectual : — " Pikit him, and dikit him, on scorne said he. He pikes and diki;s in length, as him likes, how best it may be. And thou hast for thi pikyng, mykille ille likyng, the sothe is to se. Without any lesyng, alle is thi hething, fallen opon the. For scatred er thi Scottis, and hodred in thcr hottes, neuer thei ne the. RJKht als I rede, thei tombled in Tuede, that woned bi these." SIEGE OF BERWICK, 1296. 169 nothing apparently but a poor earthen mound to defend it, was taken at once. There is an awful unanimity of testimony to the merciless use made of the victory. The writer who knew best of all describes the king as rabid, like a boar infested with the hounds, and issuing the order to spare none; and tells how the citizens fell like the leaves in autumn, until there was not one of the Scots who could not escape left alive, and he rejoices over their fate as a just judgment for their wickedness.^ In the town, the Flemings had a fortified establishment called the Red House. It held out after the towTi was taken, and was destroyed by firing, thirty of its defenders being burnt within it. Thus it was on the community among whom the protection of the Lord Superior was first sought that his vengeance first fell. There was an end of the great city of merchant princes, and Benvick was hence- forth to hold the rank of a common market-town, and be conspicuous only, after the usual fate of a frontier town, for its share in the calamities of war. The castle capitu- lated on terms, and the garrison was spared, though the citizens had been slain. Before leaving the place Edward dug a deep ditch or fosse, and raised a corresponding rampart, strengthened with stakes, on the Scots side of the town. It was reported at the time that he had him self wheeled a barrow in this service. It was one of those acts of inspiring condescension which show earnestness and determination, and become immortalised when ex- hibited in the service of goodness or humanity.^ A scene was enacted before he left the neighbourhood of Berwick. His vassal Baliol, according to the chroniclers, had been in restraint since his rather abrupt departure from England during the sitting of the parliament assem- bled to aid the war with France. He could not, if he would, have obeyed a summons to meet his superior ai ^ " Gens ilia nuda et inennis misere lacerata occubuit ; cceciderunt quemadmodum folia arborum in autumno, nee solum superstitem in civitate de Scotis inventum reliquit gladius regis. Tandem suos divina pietas victoria decoravit, Scotos infideles casde simul et fuga dehones- tavit." — Rishanger, 374. 2 " Ipsemet cum vehiculo tenam portabat." — Rishanger, 375. lyo WAR OF INDEPENDENCE. Newcastle. Those who now had a stronger hold on him than the Lord Superior, compelled him, instead of giving attendance, to render a written renunciation of his vassal- ship.^ This document did not reach King Edward until after he had completed his work at Berwick. He was probably in high spirits ; and it is on this occasion that he is said to have uttered the sarcastic threat — " The foolish traitor, what folly ! If he won't come to me, I must go to him," '^ King Edward marched northwards, and the next point at which he met any difficulty was the Castle of Dunbar, close on the sea. It had but just fallen into the hands of the independence party ; and we are told that it was taken from them, although an immense army came to the sup- port of the garrison.^ We are further told that this army was defeated and many prisoners taken. There evidently was not, however, a great battle with organised troops and known commanders pitted against each other. The Scots seem to have been a confused mass, of whose numbers ^ The instrument announcing the renunciation of fealty must have created unbounded ridicule among tlie accomplished feudal draftsmen in King Edward's employment. It is in extravagant contrast to the decorous documents among which it has been preserved. It is a piece of vehement scolding, weakened by the difficulties of putting that kind of expression into the Latin language. The conclusion is utterly in- consistent with feudal logic. On the ground of the outrages and con- tumelies to which he has been subjected, King John retracts homage and fealty to King Edward, both f'or himself and any subjects of his who may have committed themselves in the matter. If the homage and fealty were the fulfilment of the King of England's rights, they could not be retracted or withdrawn ; and there is nothing said about their being illegal or exacted under coercion. It is easy to see that King John had not such skilful feudal draftsmen at his elbow as those who drew the documents in the Great Roll. — Foedera (Record edi- tion), i. 836. * Epigrammatic utterances by historical characters on critical occa- sions are notoriously found, when investigated, to be standing on slippery testimony. This saying seems to have no better testimony than Bowers. He, however, evidently gives it unaltered in the form in which it existed in tradition, for it is stuck into his monkish Latin in the original French ; and, as Lord Hailes observes, he mistrans- lates it, losing its point. — Scotichron., xi. 18; Ilailes's Annals, L 289. " See Rishanger and Hemingford. EDWARD'S PROGRESS. IJ I very vague estimates were taken. It seems unnecessary, too, to repeat the names of persons of eminence casually, and perhaps not accurately, mentioned, who then ranged themselves on the side of Scotland. It was a brief alle- giance, which had speedily to be revoked, and we have to wait yet awhile ere we can fairly range the two opposite parties — the invaders of the soil and its defenders. On the T4th of June King Edward reached Edinburgh, and lived in the Abbey of Holyrood. He attacked the castle, setting up, as we are told, three engines, which pelted it day and night for a week before the place was taken. The chroniclers of later times relate that he re- moved the ancient national crown and sceptre, with the other emblems of sovereignty. Doubtless, if such things lay in his way, he would have carried them off. It may be questioned, however, if Scotland had then a " regaha " such as might befit a royal court of later times. We know that Baliol had among his effects an article called a crown, because afterwards, when he went to France, his luggage was searched, and among his effects there was found a crown of gold, which was hung up by King Ed- ward as an offering at the tomb of Thomas k Becket. This does not appear, however, to have been a symbol of ancient investiture. The spoliation was, of course, the work of subordinates, but they acted under instructions, and made the proper reports of their proceedings. There has, indeed, been preserved, with the usual Norman pre- cision, an inventory of articles which King Edward thought it worth his while to take with him to London in three chests, but no crown is mentioned among them, nor in- deed any emblem of royalty, unless it may be some articles bearing the royal arms ; these chiefly consist of plate and jewellery, and are more like the list in an indictment for housebreaking than the trophies that might decorate the triumphal procession of a conqueror.^ He went next to ^ The most noticeable of the " jocaHa," as they are called in the inventory, is " unus ciphus de ovo griffini fractus in toto argento munitus" — a griffin's egg, as it would seem, broken and patched with silver. It is supposed to have been the egg of an ostrich, or a cocoa- 172 WAR OF INDEPENDENCE. Stirling, where he found the castle deserted, and passed on to St Johnstone, or Perth, where he abode tliree days. In the adjoining Abbey of Scone he found something which it was well worth his while to remove and keep, and he either took it with him northwards or left it till his return : this was the Stone of Destiny — the palladium of Scotland. It was enshrined in a chair or throne, on which the kings of Scots were wont to be crowned. Its legendary history was, that it was the pillow on which Jacob reposed when he saw the vision of the angels ascending and descending the ladder, and that it was brought over by Scota, that daughter of Pharaoh from whom the Scots line of monarchs was descended. In terms of a prophetic couplet,^ it was its virtue that wherever it might be placed there would the Scots be supreme ; and it will easily be believed that the prophecy was recalled, when in after-days the monarchs of the Stewart dynasty sat on it to be crowned in West- minster. King Edward was a serious prince, according to the notions of the age, and much given to relic-worship. He chose a spot sacred by its uses, and by the presence of his own household gods, for the reception of the great relic — the achievement of his sword and spear. It was in the chapel built by his father, containing the shrine of Edward the Confessor — where his loved Queen Eleanor and his father were buried, and where he then desired that his own dust should be laid.^ He intended at once to enclose the relic in a shrine, which should be the coronation chair of nut. There is, however, "una nux cum pcdc argentea deaurata fracta." The removal of these things was so far remembered as to get into the chronicles : — " Hie rex sic totam Scotiam fecit sibi notam, Qui sine mensura tulit inde jocalia plura." — Scotichron., xi. 25. 1 " Ni fallat fatum Scoti, quocunque locatiim Invenient lapidem, regnare tenentur ibidem." ^ In contemplating it in its place — which we may now do — to feel the full effect of the scene we should for a moment restore in imagina- tion the altar and its appendages, and lay aside for atime the low esteem in which relics, however sacred, are in those times held." — Joseph Hunter's Paper on King Edward's Spoliations in Scotland, Arch. Journal, xii. 245. REMOVAL OF THE STONE OF DESTINY, 1296. I73 the kings. At first he gave orders for a chair of bronze, then altered his intention, and had it made in wood. Its cover or shrine thus being a seat or throne, altered and adorned from age to age, became the coronation chair of the kings of England.^ That the stone was so eagerly seized by King Edward, so tenaciously retained by his successors, and so highly distinguished in its new place, are now the chief testimony to the fact that it was an object of high reverence and honour in Scotland. The oldest annalists evidently make their first acquaintance with its existence when they come to tell of its removal. Whatever revelation they afford of its earher history is limited to the one item, that at the enthroning or inauguration of Alexander III. he was solemnly placed upon "the stone" reverently preserved for the consecration of the kings of Scotland.^ There was, besides the use of the Stone of Destiny, an- other sanction necessary for the completion of an ancient Scots coronation — the presence and intervention of the ^ For instance, at the coronation of Henry IV. — " Introducto rege, et incathedrato sede regali super lapidem qui dicitur ' Regale Regni Scotise,' cantabatur Antiphona." — Riley, Chionica Monasterii S. Albani, 294. In the inventory of articles received by King Ed- ward it is called "una petra magna supra quam reges Scotiae sole- bant coronari." — Arch. Journal, xiii. 250. ^ This ceremony is notable in history from the appearance and par- ticipation in the ceremonies of a Celtic seer, see above, p. 21. From what seems a mixture of Celtic and feudal customs, it has been sup- posed that "the stone" came along with the old traditions of the Irish race who ruled in Dalriada. The history of this palladium has had its full sliare of skilled investigation — see in the eighth volume of the Proceedings of the Antiquaries' Society of Scotland, ' The Corona- tion Stone, by William Skene, Esq., LL.D., Vice-President S. A. Scot.,* followed by 'Note on the Coronation Stone, by John Stuart, Esq., LL.D., Sec. S. A. Scot.' But the chief result of all inquiries has been to bring forth the ancient and picturesque legendary history that accumulated over this simple stone when it became associated with the history of the War of Independence. The beginning of that history is in the pleading before the Pope by the Scots emissary, Baldred Bisset, to be afterwards noticed. The passage has been thus translated from the record : "The daughter of Pharao, King of Egypt, with an armed band and a large fleet, goes to Ireland, and there being joined by a body of Irish, she sails to Scotland, taking with her the 174 WAR OF INDEPENDENCE. chief of the clan Macduff. We shall presently come across a memorable incident arising out of this ancient rite, but it may be well to say a word about it here, where it will give less interruption to the narrative of events. In the age of the popular histories it was said that the Thane of Fife and head of the clan Macduff had given such mate- rial aid in the revolution that dethroned Macbeth and raised King Malcolm to the throne, as to secure the un- dying gratitude of Scotland and her royal race, manifested in conferring on that house all its mysterious privileges.^ royal seat which he, the King of England, with other insignia of the kingdom of Scotland, carried with him by violence to England. She conquered and destroyed the Picts and took their kingdom ; and from this Scota the Scots and Scotia are named, according to the line — " ' A muliere Scota vocitatur Scocia tota.' — Proceedings, tit sit p., p. 8i. The Stone of Destiny has been recently taken out of its case under the seat of the coronation throne. It was found to be an oblong rec- tangular block of limestone, a good deal worn with handling, and bearing no engraving or inscription. For lifting it there are two rings, one at each end, attached to it, with careful arrangements to prevent their breaking off by the weight of the stone. The mortis- ing is in the centre of each end — equidistant from each side, and from the top and bottom. As it would be inconvenient, however, to hold the rings in such a position, there is a bar or link long enough to keep each ring clear of the upper surface of the stone. The only old de- scription of the stone, given in an English account of Baliol's inau- guration, will be seen from the above to be inaccurate : " Concavus quidem, ad modum rotunds cathedrre confectus."— Ilemingford, ad an. 1292. * The privileges of the clan Macduff is one of the questions which recent archaeologists have been loath to touch. They included "the right of placing the king in his chair at his coronation, the command of the van in the king's army, and power to compound, by a sum of money, for the accidental murder of a nobleman or commoner by any of them. There still remains, not far from Lindores, a stone cross which served as a boundaiy between Fife and Stralheam, with an in- scription in barbarous verses, which had such a right of sanctuary that a murderer within the ninth degree of relation to Macduff, Earl of Fife, if he could reach the cross and pay nine cows, with a heifer, should be acquitted of the murder." — Cough's edition of Camden's Britannia, iv. 3. The cross had disappeared when Gordon looked for it about the year 171 1 (Itinerarium, 170). The inscription said to have been upon the cross, concluding with the words "limpide REMOVAL OF THE HOLY ROOD, 1296. 175 But this is only one of the many attempts to supply, from speculation and invention, the place of lost knowledge. It would be as difficult for us now to solve the secret as it was for the monks of the fifteenth century. Besides the Stone of Destiny, King Edward got posses- sion of another movable, valuable to him as a weakening of the enemy and a strengthening of his own hand by the possession of a potent relic : this was the celebrated Black Rood or Holy Rood. It was a certified fragment of the true cross preserved in a shrine of gold or silver gilt. It was brought over by St Margaret, and left as a sacred legacy to her descendants and their kingdom, and its re- moval was a loss to Scotland, second only to that of the Stone of Destiny. The rood had been the sanctifying relic round which King David I. raised the house of canons regular of the Holy Rood, devoted to the rule of St Augustin, at Edinburgh. The kings of Scotland after- wards found it so convenient to frequent this religious house that they buih alongside of it a royal residence or palace, well known to the world as Holyrood House. The importance of such a relic to the country having the good fortune to own it, is shown in its finding a legendary miraculous history. As it goes. King David had gone a-hunting into the forest of Drumsheuch, on which now stands Charlotte Square and other parts of western Edin- burgh. The day was the commemoration of the exalta- tion of the cross. The king followed his sport in defiance of the solemn admonition of his confessor, and of course something was to come of his so doing. He followed, unattended, a stag, which stood at bay and would have done him deadly injury, but the sacred relic at the mo- ment miraculously slid into his hands and the furious ani- mal vanished.^ This relic being small and portable was lampede labrum," is an attempt to produce something that might pass as an ancient unknown language, by a scribe whose use of monkish Latin has hampered his invention. The whole will remind the reader of the drama of ' Macduff's Cross,' one of the latest and least successful of Scott's works. 1 Liber Cartarum Sanctse Crucis, Pref. This legend is told in Bellenden's translation of Boece (xii. 16), but not by Boece himself, 1/6 WAR OF INDEPENDENCE. very useful to King Edward as a sanction in the adminis- tration of the oath of allegiance in the course of his jour- ney. Afterwards, when he charged important persons with breaking their oaths of allegiance to him, it was put as an aggravation of the crime that they had been sworn on the Black Rood. The Holy Rood was afterwards returned to Scotland, and was again lost at the calamitous battle of Neville's Cross, to be told in its proper place.^ To return to King Edward's triumphal journey. He was in Forfarshire in the early part of July, and there, at Brechin or Montrose, the hapless King John came to him like a criminal, submitting to be dealt with as the con- queror pleased. Such (documents as were deemed neces- sary to degrade and dispossess him were then drawn with the usual care.'- He was sent in custody to England along with his son. He was not one of those whom Edward had any reason to fear ; and two or three years an odd omission. See further the Miscellany of the Bannatyne Club, ii. 13. ^ An annalist of Durham who had seen the Reformation, after men- tioning other spoils taken from the Scots in the battle of Neville's Cross, says, ' ' together with ' the Black Rood of Scotland, ' so termed, with Mary and John made of silver, being as yt were smoked all over, which was placed and set up in the pillar next St Cuthbert's shrine in the South Alley" of Durham. — This is stated in Sanderson's Anti- quities of the Abbey or Cathedral Church of Durham, p. 28, 29. But there is a more correct version of it in ' A Description or Breife De- claration of all the Ancient Monuments, Rites, and Customs belong- ing or being within the Monastical Church of Durham before the Suppression,' printed by the Surtees Society. The passage looks as if its author had seen the Rood, which disappeared in his day no one seems to know how. See also ' St Cuthbert, with an Account of the state in which his Remains were found upon the opening of his Tomb,' by James Raine, M.A., p. 100. The old annalist attributes the legend of the stag and cross to King David II., who was taken prisoner at the battle of Neville's Cross, and for this is duly chastised Ijy Mr Raine, who says : " My author goes on to state that this same David Bruce soon afterwards founded the Abbey of Holyrood in com- memoration of the event. The tnilh is, that monastery was founded above two centuries before his time." — Raine, p. 109. ' There is a difference in authorities on the date of his submission, running between the 2d and the loth of July. This is attributed to the time necessary to complete the proper formalities. EDWARD'S PROGRESS, 1296. 1 77 afterwards, as the result of some amicable negotiations, he was delivered up to the representative of the Pope, who saw him quietly settled down in his domains of Bailleul, in France. King Edward stayed a day or two at Aber- deen, and on the 26th of July reached Elgin, where he finally halted. He reached Benvick on his return on the 2 2d of August.^ During this journey King Edward very sedulously gar- nered in a harvest of personal homages. Attended as he was by his fine army, there was no help for it ; all must obey but those who chose martyrdom, and homage did not take so firm a hold on the feudal conscience as to drive it to this extremity. Great territorial potentates and church- men were specially sent for, others were taken as they fell in the way. As usual, everything that ceremonial in act and formality in parchment could do was done to make these submissions effective. It was set forth on each occasion, in very strong language, that the homage-doer came forward out of a sense of duty and of his own free will to record his allegiance. One thing is peculiar in these homages, that no reason is set forth why homage should be given, though, doubtless, there was a reason foi such an omission. There is nothing said about the supe- riority over Scotland, nor is any closer right of authority assumed. The vassals simply give their allegiance to Edward, King of England, Lord of Ireland, and Duke of Aquitaine.2 ^ The statements about the articles removed by King Edward are taken from Mr Hunter's paper above referred to. The particulars of the journey are taken from an old document brought before the Enghsh Society of Antiquaries by Sir Harris Nicholas in a paper called 'A Narrative of the Progress of King Edward I. in his Inva- sion of Scotland in the year 1296.' — Archseologia, xxi. 478 ; and Miscellany of the Bannatyne Club, i. 271. It ends with a statement how King Edward "conquered and serchid the kyngdom of Scotland, as ys aforesaid, in xxi wekys wi thought any more." ^ The documents connected with the homage, usually called "The Ragman Rolls," have been printed for the Bannatyne Club in a heap, under the title 'Instrumenta Publica sive Processus super Fidelitati- bus et Homagiis Scotorum Domino Regi Angliae factis. In the in- troduction will be found the conjectures of the adepts, none of them conclusive, on the etymology of the peculiar term Ragman. VOL. II. " M 178 WAR OF INDEPENDENCE. After Edward's return there is a pause, on his side at least, as if he were waiting to see the turn of events. A change may be noticed in the practice of drawing the royal writs. It is not so much a change in old style or form, as the dropping of novelties which recent occur- rences had introduced. Ever since the great conference at Norham began, the royal writs relating to Scotland set forth in all ceremony his title as Lord Superior of Scot- land. While this is dropped, King of Scotland is not adopted, but in the writs specially addressed to the Scots he speaks of them as those put under his government.^ One of the earliest statutes passed after his return pro- fessed to be a remedy for ecclesiastical abuses, which were said to be rife in England as well as Scotland, and the record of the statute is indorsed with an instruction to transmit it to Scotland. It was clear that the intended policy was gradually to incorporate the new acquisition with the kingdom of England. For the internal adminis- tration of Scotland he took some steps obviously neces- sary for his designs. He took care that the places of strength should be held by persons who neither owned domains in Scotland, nor, from their descent, had an opportunity of forming ambitious hereditary designs there. The most notable of these were Warenne, Earl of Surrey, appointed Guardian, Hugh of Cressingham, the Treasurer, and Ormsby, the Justiciar. The strongholds were com- manded and garrisoned by subjects of England equally free of Scots influences. It is to this period that ^ye must assign the raising of the bulk of the oldest castles in Scot- land. The style in which they are built, indeed, is sig- nificantly called the Edwardian, to distinguish it from the earlier Norman style used by the Conqueror and his fol- lowers. As we have no distinct evidence of the persons by whom these buildings were raised, it seems a rational ^ As in the address or proclamation on his departure to Flanders, beginning, " Rex dilectis et fidelibus suis universis et singulis et aliis quibuscunque de regno Scotire ; " and he expresses a hope that his expedition will be "pro defensione et communi utilitate populi regimini nostro commissi." — Foedera (Record edition), i. 180. WALLACE, 1296-97. 179 supposition that they were chiefly the work of the EngHsh authorities. The people thus at last found alien masters at their door, and were sullen and suspicious. The foreign sol- diers naturally conducted themselves as all military occu- pants of a subjected country do. The results were not of a kind to shape themselves into particular narratives ; we only know that there was strife and confusion throughout. King Edward writes to Cressingham that all efforts must be made to bring to justice the wicked rebels, homicides, and disturbers of the peace with whom the land swarms, and to crush the rebellion. For this he is required to col- lect all the money he can raise, and to spend it. His obedience to this order for rigid taxation would do little to allay the growing storm. It is at this time that the far-renowned William Wallace steps upon the stage. We know nothing of precedents which might lead us on to anticipate his public history ; he comes to do his part like any actor who may just have figured in any other character, tragic or comic. His father was a knight and a landowner, having the estate of Ellers- lie, in Renfrewshire. He had himself been knighted, and was thus, by the etiquette of Norman chivalry, as well entitled to lead armies as any noble, or even monarch, of his day. To which of the several races inhabiting Scot- land his family belonged, is a question that has been deemed interesting, since he was certainly the representa- tive and champion of that remnant of the Saxon, or pure Norse inhabitants of Britain, who had not yet been sub- jected to the southern yoke. But social position was of more weight in this matter than mere origin. He may have been of Norman descent ; there were Wallaces scat- tered over England, and one came in with the Conqueror. But in reality the Normans were of the same northern Teutonic blood as the Saxons ; and this it was that made them in the end assimilate into that well-assorted com- munity which has made the England of the fifteenth and later centuries. The danger to the liberties of a country like Scotland was among those princely Norman houses whicli had domains in Scotland and England, perhaps l8o WAR OF INDEPENDENCE. also in Ireland, in France, and in Flanders. The position of Norman William to the chiefs among his followers and supporters had scarcely been that of sovereign and sub- ject, in the later acceptation of the terms. They were all in a common adventure, and he was but the chief adventurer. It was long ere the crown became strong enough to widen its distance from these great houses ; and they showed the old spirit in the Barons' Wars, and on several other occasions. Before the time we are deal- ing with, the great bulk of the houses founded by the ad- venturers had gravitated into a position among the mere landed gentry or aristocracy of England ; but there were still a few with domains scattered over Europe which had princely tendencies, and considered themselves entitled to put in their lot for thrones. It was the misfortune of Scotland at that time, that the natural representers and leaders of the country — the nearest relations of the old royal family — were all men of this class, and could not be trusted with the national interests. If a family had been living among the Scots people from generation to genera- tion, it mattered not whether the first who pitched his tabernacle there had come from Denmark or Friesland — whether he had been one of the Saxons of England, seek- ing refuge from the tyranny of William's forest-laws, or a grandson of one of William's own followers. The inter- ests and feelings of such a family would be in harmony with those of the commonalty, of which they were a part ; and it was of such a family that William Wallace came. The later romancers and minstrels of his native land have so profusely trumpeted his personal prowess and his superhuman strength, that part of their eulogy has stuck to history.^ Whatever his personal strength may have ^ "Wallace had an iron frame. His make, as he grew up to man- hood, approached almost to the gigantic ; and his personal strength was superior to the common run of even the strongest men." — P. F. Tytler, vol. i. ch. ii. Thomas Campbell sang, in unison with the old minstrels, how — " The sword that was fit for archangel to wield, Was light in his terrible hand." It is believed that this sword may still be seen — in several places. The WALLACE, 1296-97. 181 been, his achievements demanded quahties of a higher order. He was a man of vast poUtical and mihtary genius. As a soldier, he was one of those marvellously-gifted men, ai'ising at long intervals, who can see through the military superstitions of the day, and organise power out of those elements which the pedantic soldier rejects as rubbish. The military superstition of that day ran on defensive armour. The mounted knight could not be too com- pletely shelled in iron ; the plates could not be too thick ; the whole affair could not be too unwieldy. This iron-clad ritter was a very formidable being to those who had faith in him. Nothing else but his own duplicate could injure him or resist him \ and there were abundant facts to con- firm the faith. Instances were on record where one or two mounted knights, thundering in among a herd of light- armed peasants, made such a scattering among them as does the lion when he appears among a herd of gazelles. It was not in Scotland that such scenes had been wit- nessed ; but the scorn of the canaille, which they encour- aged in the chivalry, spread over Europe. It was an exciting and pleasant view of their position to those on the bright side, and alike depressing to those on the other. Its tendency was to divide the world into an insolent aristocracy and a servile peasantry. The Normans were no longer a new race, proud solely of their personal ad- vantages, and ignorant of the names of their grandfathers. More than two hundred years had consolidated for them a lofty social position ; and uniting pride of birth to pride in their personal endowments, they got servile clerks to invent ancient pedigrees for them, and lift them to an immeasurable social height above the yeomen and bur- grave antiquary, Bishop Nicolson, with an unusual attempt at humour, says : " The famous Sir William Wallas, who was so barbarously treated by our King Edward I., is still remembered as one of the greatest patriots and champions that Scotland ever had ; and, as such, has had his exploits recorded by several hands. The poem which goes commonly about in old Scotch rhyme describes him hke a true knight-errant, cleaving his foes generally through braun and bane down to the shoulders, and seldom striking off less than an ann or a leg."— Scottish Historical Library, 246.* 1 82 WAR OF INDEPENDENCE. ghers of their day. It was a service to the world that this insolent and aggrandising spirit caught a check almosi simultaneously in three places — S\vitzerland, Flanders, and Scotland. In this last country, as we have seen, the conditions were peculiarly discouraging. Not only were there no leaders to be trusted, but the country had enjoyed peace — a peace scarcely disturbed for more than a hundred years. During this time the English had been ever fight- ing — in Ireland, in Wales, in France, and among each other in the Barons' Wars. The end showed, however, that the stufif of which a warlike nation is made abounded: in fact, historical conditions had made the Lowland Scots the very pick of the hardy northern tribes. They were made up of those who had left their homes Avhenever they found tyranny, or, as it may be otherwise called, a strong government, pressing on them. Thither came those who had successively swamied off before the pressure of Varus, of Charlemagne, of Gorme the Old, and of Harold the Fair-haired. And the last, and perhaps the stoutest and truest of all, were the Saxon peasants who had sought refuge from the iron rule of the Normans among a kindred people still free. Of the character in which Wallace first became formi- dable the accounts in literature are distractingly conflict- ing. With the chroniclers of his own country, who write after the War of Independence, he is raised to the highest pinnacle of magnanimity and heroism. To the English contemporary chroniclers he is a pestilent ruffian ; a dis- turber of the peace of society ; an outrager of all laws and social duties; finally, a robber — the head of one of many bands of robbers and marauders then infesting Scotland. But Edward's government and organisation were not of a kind to permit mere soming and robbery, and there were far more formidable powers at work than those which the administration of criminal justice could cope with. The people were all exasperated, and all ready to rise against their new oppressors, wanting but a leader ; and the course of events brought them that leader in Wallace. Among the many who have chronicled his fame, Harry WALLACE, 1296-97. 183 the blind minstrel is pre-eminent in having devoted his whole force to the glorifying of his hero. Harry was a blind wandering minstrel, but he belonged to the days when his craft might be that of a gentleman ; and while he addressed the commonalty to rouse their patriotic ardour, he was received at great men's tables. He deals with events, however, which were two hundred years old when he sang them : he had no authority but tradition, and history must receive his stories with much jealousy. Many of them, indeed, are practically impossible, or deal with supernatural agencies ; and they are valuable, not as narratives of facts, but as the things which the people of Scotland delighted to hear about the hero of their idolatry. Still, it has to be said that, incidentally from time to time, little morsels of evidence have turned up, serving curiously to confirm the fundamentals of some of his stories. Take, for instance, the tragedy which made him swear eternal vengeance against the invaders. He had just taken to wife a virtuous damsel named Bradfute. She resides in the town of Lanark, where there is an English garrison ; and as he is a marked man, from having already resented the insults of the invaders, it is not safe for him to reside there, and he must be content with stealthy visits to his bride. One day, having just heard mass, he encounters some straggling soldiers, who treat him with ribaldry and practical jokes. A very animated scene of taunt and retort, what is vulgarly called chaffing, is given by the minstrel; but it must be held as in ihe style of the fif- teenth rather than of the thirteenth century. Wallace bears all with good temper, until a foul jest is flung at his wife. Then he draws his great sword, and cuts off the offender's hand. He is joined by a few of his coun- trymen, and there is a scuffle ; but the English are many times their number, and they must seek safety. His own door is opened for Wallace by his wife, and he escapes through it into the open country. For this service his poor wife is slain, and then he vows eternal vengeance. Gathering a few daring hearts round him, he falls upon the garrison in the night, burns their quarters, and kills several of them, among the rest William de Hazelrig, 1 84 WAR OF INDEPENDENCE. whom Edward had made Earl of Clydesdale and Sheriff' of Ayr. The story is not, on the whole, improbable : we can easily believe in such a man being driven desperate by insults and injuries to himself and to those dear to him. But the latter portion of the story is confirmed in a curious manner. About sixty years later, a Northumbrian knight, Sir Thomas de Grey, had been taken prisoner in the Scots wars, and was committed to the Castle of Edinburgh. There, like Raleigh, he bethought him of writing something like a history of the world; but it fortunately gave a disproportionate prominence to events in or near his own day, especially those in which he or his father participated. He tells how, in the month of May 1297, his father was in garrison at Lanark, and that Wallace fell upon the quarters at night, killed Hazelrig, and set fire to the place. The father had good reason to remember and tell about the affair, for he was wounded in it, and left on the street for dead. Had it not been that he lay between two blaz- ing buildings, he would have died, wounded as he was, of exposure in that chill May night, but he was recognised by his comrade, William de Lundy, and tended by him till he recovered.^ Further, it was charged against Wallace, when indicted in London, that he had slain Hazelrig and cut his body in pieces. The influence of Wallace's nature brought around him companions. He got by degrees a little band capable of harassing outlying parties of Edward's soldiers. He and his followers were emboldened at last to the flagrant audacity of making a raid on the great justiciar, Ormsby, when holding a court at Scone. The justiciar took to his ^ Scalacronica, 124. We are told by the editor of the Chronicle that Sir Thomas de Grey, having claimed some reward for his ser- vices against the Scots, King Edward II., in the year 1319, issued letters patent, reciting that " he had given to Thomas de Grey and to his heirs for ever, in consequence of the good, loyal, and long-con- tinued service of the granter against the Scotch, an hundred and eight acres of arable land, and eight acres of meadow, with their appurtenances, in Howick, near Alnwick." — Introduction, xx. Thus the Cumberland Greys acquired the possessions which gave them the title of Howick. WALLACE. 1296-97. 185 heels and escaped, but prisoners were taken and some rich plunder, which made the feat, in the eyes of common la\^yers, a very audacious burglary. It was an event of still greater importance that Wallace was joined by a terri- torial magnate and a soldier of renown, William of Doug- las. The origin of the family is supposed to have been Flemish. Whether or not this kept away all sympathy for the Norman adventurers, the family were not then tempted to divided allegiance by estates scattered in other countries, and were among the few great landed lords who could truly be called Scotsmen. Douglas had repeatedly done homage to King Edward. He was the commander of the Castle of Berwick when it capitulated, and was of course bound as tightly to Edward's service as oaths and parchment could bind him. But his presence gave a re- spectability to the insurrectionary force, which as yet the leader, who had given no allegiance to be recalled, could not have conferred on it. Those with whom the responsibility for the tranquillity of Scotland chiefly lay, saw in such events an ugly ten- dency to turbulence, which must be extinguished at the beginning. Beck, the warrior-bishop of Durham, took this in hand ; but he was attacked in Glasgow, and, like the justiciar, had to run for his own safety. King Edward was then starting for Flanders. He had the bulk of the Scots barons with him, and the others left at home, especially Bruce, were well watched. According to the experience of the age, when the natural leaders were re- moved or cared for, it was supposed that the people would be safe in the hands of those sent to govern them ; and so little apprehension was there, that Warenne, Earl of Surrey, the governor, had returned to England for the benefit of his health. Beck, animated by the fright he had got at Glasgow, had a formidable case to lay before the king, who directed Surrey to levy the military array to the north of the Trent, and go and stamp out these disturbances. For his own reasons, Surrey sent his nephew Percy to manage this affair. The force sent was 300 mounted men-at-arms, and, according to the best-informed chronicler, 40,000 foot-soldiers. This number may be 1 86 WAR OF INDEPENDENCE. taken in a wide sense ; but from the number of mounted men it is clear that the force was not very strong. It passed through Bruce's country of Annandale, and on to Lochmaben, where at night there was alarm of an enemy at hand; and we are told that the army burnt their wooden huts to get light and see what was the matter. The force marched on by the west coast, passing through Ayr to Irvine, where an event occurred which has a place in diplomatic record. It requires a word of preliminary explanation. Before this time, as we have seen, Bruce, the com- petitor for the crown, died an old man. The head of the house at this time lived, in fealty to Edward, on his estates in England, content, as it would appear, to enjoy the ad- vantages which his rank and wealth gave to him, and dis- inclined to cast his lot in troubled waters. His son, who was to become the hero-king, lived in Scotland as lord of his mother's domains in Carrick. He was of a temper more restless and ardent; and the convulsive political conditions by which he was surrounded tended to excite him. Independently of the vision of a crown that could not but haunt him, he was one of a class for whom much allowance should iDe made. Their taste and training, in many cases their interest too, attached them to the bril- liant court of the King of England. Yet in Scotland, where they had estates, there was a determination not to be subjected to that political arrangement which to them, to some of them at least, would have been the most plea- sant. Hence we find those dubious movements and un- certain aims which have subjected them to much infamy as the betrayers of their country. Historians seemed to have found in this broad charge a sort of revenge for the perplexities which they have had to endure from the indis- tinct and unaccountable movements of many of these barons. We shall probably have a better notion of the truth, if, instead of estimating exactly the amount of honesty and patriotism that has influenced each of them, we follow the course of their actions in a spirit of indif- ference towards the personal motives at work. When the country became more and more restless, and it was WALLACE, 1296-97. 187 known that a leader, rising out of obscurity, was actually gathering an insurrectionary force about him, it was felt that Bruce might be tempted into mischief; and the war- dens of the western marches called him to Carlisle, and required him to take the strongest obligations of fealty they could think of. He gave, too, a sort of guarantee for his sincerity by outrages on the lands and household of the Douglas, who had attached himself to Wallace. Afterwards, however, he seems to have chafed at inaction — to have panted to be, at all events, in a position to act when he saw fit. He called on the Annandale men to muster round him. These were his father's vassals, and they declined to commit themselves to some uncertain enter- prise when the demand was not even made by their proper lord. He raised a body from his own domains in Carrick ; but what he Avas to do with them was not known to others, probably not distinct to himself. To join Wallace could hardly serve him any good turn. Wallace was, in all his conduct, thoroughly constitutional. There had been a king of Scots throned at Scone as King John. Of that king, as the head and representative of the state, he counted himself the servant ; and everything that he did was in the name of John, by the grace of God, King of the Scots. What Bruce had to look for, then, if he joined Wallace's army, was the dire vengeance of Edward if the rising were a failure, and the loss of his English domains if success should make him a Scots earl under King John. Bruce, with his Carrick men, and a cluster of other barons, whose objects seem to have been equally unde- cided, were at Irvine when Percy's army had come so far. They came to the conclusion that the best thing to be done was to surrender on terms. They asked if there was any one in the English army authorised to receive them to King Edward's peace ; and being told that there was, they negotiated a surrender. It is on record as written at Irvine on the 9th of July. The persons who surren- der are Robert, Earl of Carrick ; James, the Steward of Scotland ; John, his brother ; Alexander de Lyiidesey ,• and, rather unaccountably, William of Douglas. 1 88 WAR OF INDEPENDENCE. We have no reason to suppose that Wallace was pre- sent on this occasion. His name is not mentioned by the contemporary English chronicler, whose account of the affair is the most minute, and the source of all others.^ Wallace seems, indeed, to have been in the north laying his plans for resisting the invading army at the Forth, or the Scots water, as it was still called. This is important, because it has so often been said that his army was dis- tracted by the divisions caused by the nobles in his ranks, who were jealous of his supremacy. To complete the character of a great commander, he should be too strong- handed to permit dissension in camp, however many enemies he may have outside; and better evidence is needed ere we allow such a blot on the generalship of Wallace. The affair of Irvine added to the number of the feudal leaders of the Scots whom Edward held in hand, and he thought he might with safety take his mtended de- parture for Flanders. While he was there Wallace organ- ^ Hemingfoid, i. 123. The discovery of the bhinder of a copyist which has tended to support the notion of Wallace having been con- cerned, is one of the achievements of the minute eye of Sir Francis Palgrave. Let him tell his triumph. "The first of these instal- ments, or the submission, concludes with these words : ' Esc7-it a Ire- xvin le noevime jour du mois de Juyl en le an del regiie le Reys Ed- ward vintime quint' (p. 19S). This passage is thus printed by Rymer (i. 868) : ' Escrit a Sire IVillaitme, le noemme jour du moys de Juyl en le an del regne le Reys Edward vintime quint.' The original is somewhat defaced, and Rymer, or his transcriber, not being con- versant with the character, nor very familiar with the language, in reading the word Irczinn, mistook a partially-effaced flourish of the capital / for an S, and the three parallel strokes of the concluding syllable 'in' for the letter m, thus altering the word to ' Sireivm.'' The next stage in error was to divide this word into Sire Willaitme, and thus the printed text was formed. Upon this text, aj^pearing in an authentic publication, the subsequent writers of Scottish history had to work, and it was quite natural to suppose that Sire Willauvte could be none other than Sir William Wallace. Hence Lord Hailes observes, ' The meaning is, as I presume, that the barons had notified to Wallace that they had made terms of accommodation for them- selves and theirparty. But Wallace scorned submission,'