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Ancient, customary, and common law Celtic law of succession Celtic
marriages No general change of law AEstimatio personarum Ancient
law of compensation Criminal law Wager of battle Compurgators
Trial by battle Trial by fire and water Law of ordeal Proof by
witnesses gradually admitted Penalties of theft Penalty of slaughter
Four pleas of the Crown Laws of Galloway Galloway customs Law of
sanctuary Church girth Famous sanctuaries Stow in Wedale
Lesmahago Inverlethan Tyningham.
It requires no evidence to
convince us that there existed a system of law in Scotland, before the
great revolution in the dynasty and institutions of the country that
followed the death of Macbeth. Wherever society exists, life and the
person must be protected. Wherever there is property, there must be rules
for its preservation and transmission. Accordingly, in the most ancient
vestiges of the written law of Scotland, we find references to a still
earlier common law, Assiza terras the law of the land lex Scotiae
evidently of definite provisions and received authority.
It has been very
confidently asserted that in Scotland we have not, and never had any
Common Law. To answer that monstrous proposition, I need only call your
attention to the law of primogeniture. It is certainly no act of
Parliament, or ancient ordinance before Parliamentary times, or adoption
from the Roman code, to which we owe this foundation of our heritable
rights. What excludes sisters from the succession in heritage, whilst they
have it in moveables? What gave representation in land from the earliest
times, whilst we have only last year adopted it in personal succession?
Certainly no written law that can be pointed out in our statute book.
If the assertion had been
that there was nothing or but little of local and peculiar in our common
law, it might be assented to with less difficulty. I believe Scotland, at
the different eras of her history, used the laws of the people cognate to
her then dominant race. Whilst under a Celtic sway, her laws were those
which have received a certain shape and definiteness, from their longer
use and greater cultivation in Ireland; and her customs (the most
important part of law) were those maintained in the wilds of Galloway, as
long as the Celtic language prevailed there; and which are only now
disappearing among the patriarchal tribes of the Highlands. You will not
expect me to prove this proposition, which is in itself so likely that it
seems to throw the burden of proof upon the controverter of it. The only
facts we have, capable of historical record, to prove the existence of a
peculiar Celtic law in Scotland, are connected with the institutions of
succession and marriage.
The law of succession was
according to the law which is called, in Ireland at least, the law of
Tanistry a system which depended upon a descent from a common ancestor,
but which selected the man come to years fit for war and council, instead
of the infant son or grandson of the last chief, to manage the affairs of
the tribe, and who was recognised as the successor, under the name of
Tanist, even during the life of the chief. To take one instance, from the
ancient history of Moray, a district which long continued to pay respect
to its ancestral Maormors. Maolbride is the first known Maormor; he left a
son Malcolm, but the office or dignity did not descend upon him, but went
to Finlay the brother of Maolbride. After Finlay's death, Malcolm at
length succeeded to his father's place ; he was succeeded in turn by his
brother Gil-congain. Gilcongain was succeeded by Macbeth, the son of
Finlay; and after Macbeth had lost his local dignity and his crown with
his life, he was succeeded in the maormorship by Lulach, the son of
Gilcongain; the maormorship thus passing, in as many generations, to the
brother, nephew, brother, nephew, and cousin-german.
In the competition for the
crown of Scotland [. between Bruce and Balliol, where no art of the most
dexterous advocate was omitted, Bruce pleaded that as nearer in degree, he
should exclude the representative of the elder line; and to illustrate
this, he alleged that anciently, in the succession to the king-dom of
Scotland, the brother was wont to be preferred to the son of the deceased
king; and he cited a number of instances in which this took place.
Balliol, while he denied the inference, did not question the truth of the
examples; but he alleged that the son, and not the brother, was the
nearest in degree. Lord Hailes remarks upon this argument, "Here Balliol
attempted to answer Bruce's argument without understanding it. Bruce
supposed an ancestor to be the common stock, and the degrees to be the
persons descending from that stock. Hence the king's brother stood in one
degree nearer the common stock than the king's son."
I have said that the law of
marriage was viewed as one of the peculiarities of the Celtic race, but
there is nothing more likely to mislead us in a subject necessarily of
much obscurity than to found upon the loose practice of a half savage
people, a theory of a definite system of law. The system of hand-fasting,
we may judge from its very name, was not peculiar to the Highlands at the
time when we know it in operation, and we have no evidence or approach to
proof that it or any other peculiar customs of marriage were recognised in
Celtic Scotland after the introduction of Christianity had given one rule
of marriage and legitimacy to the whole Christian world (unless we are
obliged to except England).
When the Anglicising policy
of the descendants of Malcolm Canmore had everywhere throughout Scotland
thrust aside the ancient race, the institutions and laws of Saxon England
rapidly spread over our country. There are some indications, however, that
on the whole these were not much opposed to the old usages of the old
people. Let it be remembered that that was a peaceful revolution, at least
not effected by open war or conquest. If there had been any fundamental
change introduced in the rights or laws of the people, it must have given
rise, if not to disputes, at least to a general expression of resentment
amongst the parties suffering by the change (for all changes of law
produce suffering to some party), but in the recorded transactions and
chronicles of that time we do not find a trace of any violent or general
alteration of law, except in the matter of succession, which I have
already alluded to; a change which ought in fact to be treated as part of
the great feudal system then introduced, and spreading rapidly over all
Britain.
At the earliest period,
then, of which we have information of an authentic kind, the laws and
institutions of Scotland did not differ materially from those of the other
northern nations of Europe. Even that vestige of an earlier age which I
have' pointed to, the preference of the brother to the son in succession,
amongst the patriarchal clans, was, as I have already shown you, of
frequent occurrence in Saxon England, and we cannot doubt that it must
have taken place amongst all rude peoples, where the law was not yet
strong enough to support a young and untried heir.
The system of the
estimation or valuation of persons according to their class, and in
connection with it, the adoption of pecuniary penalties and compensation
for crimes, prevailed with us as with the other northern nations. We find
a price or value set upon every one according to his degree, and different
amounts of injury taxed with minute and affected precision.
In a fragment which I conceive to be the oldest written portion of the
laws of Scotland, and which was known and proscribed as barbarous by
Edward I. in 1305, we have some details of this system. The chapter is
called "The Laws of the Brets and Scots." Unfortunately, our earliest
version of it is in Norman French. The system of compensation prescribed
in it, commences at the top of society. The estimation, or appraising as
we should say in vulgar parlance, of the king of Scots, was a thousand
cows, or three thousand of the coin called ores, each of which was equal
to sixteen pennies. The king's son, or an earl, was estimated at seven
score cows and ten. An earl's son, or a thane, at a hundred cows. The son
of a thane, at sixty-six cows and two-thirds. The nephew of a thane, or an
oget-theyrn was estimated at forty-four cows, and 21 2/3d and, says the
law, all lower in the parentage are to be considered as villeins
translated in the Latin version "rustici" and in the Scotch, "carlis;" the
estimate of a villein was sixteen cows. The estimate of a married woman is
less by a third part than that of her husband. If unmarried, it is equal
to that of her brother.
The compensation prescribed
for drawing blood is graduated with equal minuteness: "The blude of the
hede of ane erl or of a kingis sone is ix ky. Item the blude of the sone
of ane erl or of a thayn is vi ky. Item the blude of the sone of a thayn
is iii ky. Item the blude of the nevo of a thayn is twa ky and twapert a
kow. Item the blude of a carl, a kow."
I have not troubled you
with the ancient Scotch terms applicable to these laws of compensation.
Some of them are more or less intelligible to the Celtic scholar; but I
cannot venture to speak of etymologies from that language, of which I am
entirely ignorant. There is no reason to doubt, from the similarity of the
laws, that the terms Cro, galnis, and enach, are nearly equivalent to the
Wers, wites, and Bots, of the old English law.
Among laws deriving their
remote origin from a society where the lands were not individual property,
but held in common, we should seek in vain for any early provisions
concerning the inheritance or the transmission of land. Transactions and
contracts were also unknown, or so simple that they had not yet required
the attention of the lawgiver. Hence the preponderance in those early
codes, of laws regarding crimes, over those more subtle distinctions which
the complicated relations of commerce demand. Our oldest laws are full of
provisions regarding the proof and punishment of theft and murder. The
murderer taken red-hand (layun-darg in Gaelic), or the thief caught with
the fang or bak-berand or hand-habend, was "justified," we may believe,
without any unnecessary and inconvenient delays of process. It was where
the matter was not quite so plain; where an accusation was brought and
denied, that the peculiarities, as we consider them, of the old law
appear. If we may trust to the eras of our published laws, it would seem
that in the reign of David I., a man accused of theft might clear himself,
either by doing battle, or by the purgation of twelve leal men.
[Gif ony appelis ony man in
the Kingis court or in ony othir court of thyft it sall be in the lykyng
of hym as beis appelyt, quhether he wil bataile or to tak purgacioun of
xii leil men with clengying of a hyrdman.]
You will observe that there
is nothing here said of the evidence of witnesses on either side. By our
old law, indeed, little use was made of that kind of evidence. If the
accused denied, he did not call witnesses cognisant of the facts; but was
bound to find compurgators to swear for him, that they believed him
guiltless men of the vicinage, and knowing the character of the parties
accusing and accused.
The number of compurgators,
which varied from one to thirty, seems to have been determined by the
nature of the crime and the characters both of the accuser and the
accused. When goods were stolen from the poor and weak, who had no help of
man, but were under the king's protection, if one man swore upon the holy
altar, as the use was in Scotland, and before worthy witnesses, that he
knew the thief, and named him, the individual so accused was bound to
restore the goods if he could not establish his innocence.
If it could be proved by
two "leil" men that an individual had violated the king's peace in gyrth,
he was at once punished according to the nature of his crime.
In William's reign, if a
man habit and repute a thief was pursued by the suit of one barony and
could find no borch, he was hanged.
Twenty-four leil men were
necessary to "clenge a man anent the king," and if he was "appealed" of
felony or of life or limb, the compurgators must be found in the
sheriffdom where the crime was perpetrated. If a priest was adduced in
warrant for theft, and declared that the thing challenged was reared by
himself, he was bound to prove that by the oaths of three worthy men
approved by the lords of the town. A lord, from whose prison a thief had
escaped, was obliged to clear himself of being accessory to the theft's
escape by twenty-seven men and three thanes.
In the case of burgesses
the law of acquittance was a little different. If a burgess was prosecuted
by the provost for breaking of assize, and in complaints between an
uplandman and a burgess that might be settled by oath, the law prescribed
"clenging by six hand." If a burgess was challenged for theft by an
uplandman, or if he was challenged to do battle after the age of fighting,
he was to clenge him by the oath of twelve of the neighbourhood. A man
accused of theft might choose purgation of twelve leil men with clenging
of a hyrdman," or to do battle.
When there was as yet no
trust reposed in the evidence of witnesses, if the accused or the defender
failed in bringing his sufficient band of compurgators, his last resource
was in the "judicium Dei," where the theory of the law trusted to the
direct intervention of the Deity to decide the rights of parties. The
first and most usual mode of this appeal was the judicial combat, or wager
of battle; and solemn laws and rules were made for its mode of procedure;
and courts and reverend churchmen and judges and monarchs sat to witness
the combat, where the strong man overcame the weak and still forced
themselves to believe that God decided the cause.
In the earliest of our
laws, restrictions were introduced in the application of trial by battle.
Churchmen were specially exempted from it, which had not always been the
case; and men above sixty might decline the combat. Burgesses had
privileges with regard to it. The burgesses of king's burghs might claim
combat against those of burghs dependent on subjects, but could not in
their turn be obliged to grant them the combat. Knights and free tenants
might do battle by proxy. Those of foul kin were bound to fight in person.
After the judgment was
pronounced ordaining trial by battle, or by the other ordeals of
fire or water, it was no longer open to compound the cause for a penalty;
and any lord of a court lending himself to such a transaction forfeited
his court.
During the judicial combat
the strictest silence was preserved. The judges of Galloway enacted, that
he who should speak in the place where battle was waged, after silence was
proclaimed, should forfeit ten cows to the king; and that if any one
should interfere with his hand, even to the extent of making a signal, he
should be in the king's "mer-eiament of lyf and lym."
Among the common privileges
and prerogatives of jurisdiction granted to the greater monasteries, was a
right of trial by fire and water. The earliest charter of the abbey of
Scone by Alexander I. (and we have few earlier in Scotland), confers such
a jurisdiction, and I believe the place in which the actual ordeal was
held, was the little island in Tay, which lies midway between the abbey
and the bridge of Perth. We find nowhere the details of the application of
the ordeal of hot iron in Scotland. It was considered as somewhat the more
honourable of the two; and by the laws of England, parties declining
combat by reason of age or maiming, were to purge themselves by hot iron,
if free men, and by the ordeal of water, if of servile rank. This last
among other barbarities was revived when, to the disgrace of humanity and
of an age that called itself c civilized, our courts of justice were
occupied with the discovery and punishment of witches. I do not know if
the results then are to be taken as any test of the old system of trial
and torture. In many instances the poor wretches, persecuted to madness,
not only admitted the whole of the charge against them, but went beyond
what the imaginations of their accusers could conceive, and disclosed
hellish mysteries and impossible horrors as taking place in their own
presence or in their own persons.
David I. saw the abuses to
which such a system of trial was liable, and, in one instance, he provided
that his own judge should always be present in the court of the Abbot of
Dunfermline, to see that justice was duly administered. It is extremely
probable that he passed a general law to the same effect, though it has
not been preserved to us. In 1180 a statute of William the Lion enacted,
that "na baron have leyff to hald court of lyf and lym, as of jugement of
bataile or of watir, or of het yrn, bot gif the scheriff or his serjand be
thereat, to see gif justice be truly kepit thar, as it aw to be."
But all ordeals were
falling into disrepute at the earliest time when we can mark our law in
operation. A statute of King William enacted, that if one were accused by
a certain number of persons of repute, he should underlie the ordeal of
water; but if, in addition to those accusers, three witnesses could "be
found to speak to the fact, he was not to undergo the ordeal, either of
fire or water, "but hastily to be hangit." [Quha sa ever efter lentyrn
nixt efter the deliverans of oure Lord the King be chalangit of thyft or
that he has gevin thyft-bote and that may be tayntit on hym be the greyff
of the towne and thre othir lele men he sale be tane and underly the law
of wattir. And gif forsuth anent the samyn thar may be witnessing of thre
lele men of eld to-gidder with the forsaid witness thruch na batal sal he
pas na to wattir na yet to yrn bot hastily he sal be hangit. Alsua leffull
it is to na man to take redemp-cion for thyft efter dome gevyn of wattir
or of batal.Assize R. Willelmi, a.d. 1181.]
In 1230 a statute of
Alexander II. was passed which has been twisted ingeniously in some of our
old law manuscripts, to import an entire abolition of the ordeals of fire
and water. [The King Alysandir has statut that gif ony man chalangis ony
othir man of thyft or of reyflake & the defendour wil put him on a gud &
leil assise & the assise sal mak him clene quhit sal he be & the followar
sal be in the amercyment of the King or of the Erl or of the baron gif it
be of thyft. And gif the defendour be foul thar sal be done on hym
rychtuis dome. And it is to wyt that fra this tym furth thar sal be no
jugement done (on him) thruch dykpot na yrn.Star tuta R. Alexandri II.,
a.d. 1230.]
The title given to this law
in the Ayr MS. is, "Deletio legis fosse et ferri et institutio visneti,"
and it supports that title by a curious misreading of the law. The statute
of Alexander only gave the accused the choice of putting himself upon an
assize, and declared, that one who has already been acquitted by an assize
shall not for the same offence be required to undergo the ordeals. When
judgment by assize or jury was introduced we cannot tell, nor when the
custom of ordeal was abolished. The laws I have quoted to you seem to mark
it in a state of transition. In certain civil causes of the greatest
importance, the proof, even in the time of David, was by an assize of
twelve good men (assisa bonce patrice). That took place in pleadings under
brieves of mortancestry and novel diseisin. [It is statut that breiffis of
Mortancestre & new dyssesing neirr mair sal be impleydit be challange of
the party askand hot allanerly be an assyse of the gud cuntre & nane othir
ways, and na challangis lyis thar to for quhi tha xii the quhilkis ar
chosyn of the gud men of the cuntre till an assise sal say allanerly thar
entent and thar veredyk eftir the poyntis and the artikyllis of bayth the
breiffis and eftir that as that assyse pronouncis in veredyk rycht sa that
dome sal be geyffin to the partiis.Assize R. David, 35.] At least as
early, the Church courts of Scotland were in the use of taking and
recording in writing the evidence of witnesses; and assizes of sworn men
were used as the rude machinery for trying other civil causes. It would
set at defiance all our notions of the sense of men, and the value of
experience, if any country, having in some points admitted proof by
witnesses, could long have adhered to a settlement of questions the most
important to mankind, by the ordeals of fire or water, or still more to
that law which really declared the strong hand to be always in the right.
The penalties of theft were
not with us so heavy as in England; but the compounding of theft or
protection of a thief were very carefully guarded against. By the ancient
law of Berthynsak, summary procedure was established with a thief caught
with his burden, such as a sheep or a calf, but you will observe there was
there no capital punishment. [Of byrthynsak that is to say of the thyft of
a calf or of a ram or how mekil as a man may ber on his bak thar is no
court to be haldyn bot he that is lord of the land quhar the theyff is
tane on swilk maner sall haf the scheip or the calf to the forfalt. And
the theiff aw to be weil dungen or hys er to be schorn. And that to be
done thar sal be gotten twa lele men. Na man aw to be hingit for les price
than for twa scheip of the quhilkis ilkane is worth xvi d.Assize R.
Willelmi,]
Another statute of
undoubted antiquity, although its precise date cannot be fixed, prescribes
the gradations of punishment for different degrees of theft. [Giff ony be
tane with the laff of a halpenny in brugh he aw throu the toun to be
dungyn. And fra a halpenny vorth to iiij. penijs he aw to be mare sairly
dungyn. And for a payr of shone of iiij. penijs he aw to be put on the cuk
stull and eftir that led to the bed of the toune, & thar he sal forsuer
the toune. And fra iiij. penijs til viij. penijs & a ferthing he sal be
put upon the cuk stull and eftir that led to the hed of the toune and thar
he at tuk hym aw to cut his eyr of. And fra viij. penijs and a ferthing to
xvi. penijs and an obolus he sal be set upone the cuk stull and eftir that
led to the hed of the toune and ther he at tuk hym aw to cut his othir ear
of. And efter that gif he be tane with viij penijs and a ferding he that
takis him sal hing him. Item for xxxij penijs. j obolus he that takis a
man may hing him. Fragmenta Collecta 42.]
If a thief took refuge in "Gyrth,"
or sanctuary, he could lose neither life nor limb, but enjoyed the king's
peace. Nevertheless, he was bound to restore as much as he stole; to make
amends to the king according to the law, and to swear on the holy relics
or the book of the Evangel, "that fra that time furthwartis, never mair he
sal do reyflake na thyft."
While, as I mentioned, a
value was set upon every man, and by that rule, a fine could be imposed
for injury done to his person, and much more for his slaughter, at the
same time, undoubtedly the legal and strict punishment of murder was
death. We cannot discover from the imperfect relics of our ancient code of
customary law, how this seeming inconsistency was reconciled. It is at
least exceedingly probable that it lay with the kindred and friends of the
murdered man to abstain from prosecuting to the utmost those accused of
his death, where their feelings of indignation and vengeance could be
solaced with a pecuniary compensation. The law had not yet pervaded all
society; and public justice was scarcely separated in men's minds from
private revenge.
It was not the estimation
of the person alone that, by those old laws, ruled the amount of the
penalty for slaughter. That, indeed, was the assythment paid to the
kindred of the slaughtered man, but another penalty was due if the peace
of the king or other lord had been violated by the shedding of his blood.
The person guilty of the slaughter of a man within a place where the
king's peace was proclaimed, forfeited nine score cows. The manslayer
within the peace of an earl or king's son, incurred a forfeit of four
score and ten cows; and so progressively in the lower degrees of rank.
It was no doubt with a
laudable intention that the sovereign, in the profuse distribution of
rights of jurisdiction to subjects in Scotland, reserved what were long
called the four pleas of the Crown murder, rape, fire-raising, and
robbery. It was intended that at least those great crimes and their
punishment should be removed in some degree from private influence. At a
later time, and under a different system of penalties, it became a point
of economical policy to preserve for the impoverished Crown a jurisdiction
which afforded so large an income, by the fines and escheats of the
justiciar's court.
There was only one province
of the Scotch king's dominions that we find asserting peculiar customary
laws. We know little of the early history of the district now called
Galloway. It had scarcely come under the confirmed dominion of the kings
of Scotland in the reign of Malcolm Canmore. We have seen the rude
insubordination of its people, under his son David at the Battle of the
Standard. The native lords were still too powerful for the distant
authority of the sovereign. William the Lion had a code of laws for its
government (assisa mea de Galweia), and judges for administering them.
They met at several places, and we have still records of a few of their
decisions, some of which are remarkable. [At Dumfries it was iugit be the
iugis of Galoway that gif ony Galoway man be convickyt ouder be batal or
be ony other way of the kingis pece brokin the king sal haf of hym xij**
ky and iii gatharionis or for ilk gatharion ix ky the quhilk ar in numer
xxx and vij. Na Galoway man aw to haf visnet but gif he refuse the law of
Galoway and ask visnet. Item thar the samyn day be the samyn iuges it was
iugit that gif ony in the palice quhar that batal is wagit quhair pece
sulde be haldin hapins for to spek outan thaim that ar to keip the palice
the king sal haf of hym x ky in forfalt. And gif ony man puttis his hand
to or makys a takyn with his hand he sal be in the kingis merciament of
lyf and.lym. Assize R. Willelmi.] Among other places, the judges of
Galloway are found at Lanark prescribing rules to the Mairs of the
province regarding the mode of collecting the King's kane.
For long after that time,
Galloway continued to be governed according to its own peculiar laws. In :
the reign of Robert Bruce, its people had not yet acquired, nor perhaps
desired, the right of trial by jury, but practised the mode of purgation
and acquittance according to their ancient laws those very laws of the
Brets and Scots which Edward in vain endeavoured to abolish. As late as
1385, Archibald Douglas, lord of Galloway, while undertaking in Parliament
to further the execution of justice within his territory, protested for
the liberty of the law of Galloway in all points.
At a time when the
punishment of crime, and the compensation even for accidental damage,
depended on the feelings or caprice of individuals, it was the highest
humanity to interpose between the wretch fleeing from vengeance and
justice, and his pursuer armed with the powers of the law, but stimulated
by private motives. And here the Church raised its arm in mercy. It had,
indeed, from the earliest time of Christianity, been held sacrilege to
violate a church with bloodshed; but it was a subsequent invention to
proclaim for it a right of sanctuary ; to declare that persons fleeing to
the Church, or to certain boundaries surrounding it, should for a time at
least, and under certain conditions, be safe from all persecution. Much
doubt has been expressed regarding the constitution and privileges of the
church sanctuaries of Scotland. Without going into the very curious
Teutonic antiquities of the subject, or speculating upon the times when
among our forefathers, as in Judaea of old, places of refuge were
anxiously provided " that the slayer may flee thither which killeth any
person unawares" "that the manslayer die not until he stand before the
congregation in judgment"I would observe, that by the canon, and the more
ancient ecclesiastical law, all churches were held to afford protection to
criminals for a limited period, sufficient to admit of a composition of
the offence, or, at any rate, to give time for the first heat of
resentment to pass over before the injured party could seek redress. In
several English churches there was a stone seat beside the altar, where
those fleeing to the peace of the Church were held guarded by all its
sanctity. One of these still remains at Beverley, another at Hexham. To
violate the protection of the frith-stol the seat of peace, or of the
fertrethe shrine of relics, behind the altar, was not, like other
offences, to be compensated by a pecuniary penalty : it was bot-leas,
beyond compensation. [There is an English notice of a breach of sanctuary
and its punishment by ecclesiastical authority in 1312. The bishop of
Durham heard with dismay that certain children of evil had incurred
excommunication by withdrawing from the church of the Carmelites of
Newcastle, some who had fled thither imploring church protection for the
safety of their lives; and afterwards, when the guilty person is
discovered, namely, Nicholas le Prorterhe is sentenced to appear
bare-headed and bare-foot, wearing only a linen robe, at the door of the
church of St. Nicholas of Newcastle, every Sunday for a whole year, and
there to be publicly scourged (fustigatus) by the curate, in presence of
the assembled congregation, and from thence scourged to the church of the
Carmelites, all the way confessing his fault. Moreover, he is to have the
same penance at the church of St. Nicholas and the cathedral church of
Durham, on three days of Whitsun week.]
That the Church thus
protected fugitives among ourselves, we learn from the ancient canons of
the Scotican councils; where, among the list of misdeeds against which the
Church enjoined excommunication, after the laying of violent hands upon
parents and priests, is denounced "the open taking of thieves out of the
protection of the Church." But though all were equally sacred by the
canon, it would seem that the superior sanctity of some churches, from the
relics presented there, or the reverence of their patron saints, afforded
a surer asylum, and thus attracted fugitives to their shrines rather than
to the altars of common parish churches. We must not be surprised that in
rough times even Holy Mother Church was not always able to afford
protection to her suppliants against the avenger of red-hand; and it was
to strengthen her authority, and to support what in the circumstances of
society was a salutary refuge against rash vengeance, that the Sovereign
at times granted his sanction to particular ecclesiastical asylums.
The most celebrated, and
probably the most ancient of these sanctuaries, was that of the church of
Wedale, a parish which is now called by the name of its village, "the
Stow." There is a very ancient tradition, that King Arthur brought with
him from Jerusalem an image of the Virgin, "fragments of which,"says a
writer in the eleventh century, "are still preserved at Wedale in great
veneration." About the beginning of his reign, King William issued a
precept to the ministers of the church of Wedale, and to the guardians of
its "peace," enjoining them " not to detain the men of the Abbot of Kelso
who had taken refuge there, nor their goods, inasmuch as the Abbot was
willing < to do to them, and for them, all reason and justice."
In the year 1144, David I.
granted the Church of Lesmahago as a cell to Kelso, and by the same
charter conferred upon it the secular privilege of sanctuary in these
terms "Whoso, for escaping peril of life or limb, flees to the said
cell, or comes within the four crosses that stand around it; of reverence
to God and St. Machutus, I grant him my firm peace." To incur the censure
and vengeance of the Church was sufficiently formidable; but to break "the
king's peace" brought with it something of more definite punishment. It
was not the mere mysterious divinity that doth hedge a king: "The king's
peace" was a privilege which attached to the sovereign's court and castle,
but which he could confer on other places and persons, and which at once
raised greatly the penalty of misdeeds committed in regard to them. By our
most ancient law, the penalty of raising the hand to strike within the
king's girth was four cows to the king, and one to him whom the offender
would have struck; and, as I have already mentioned, for slaying a man "in
the peace of our lord the king," the forfeit was nine score cows to the
king, besides the assythment or composition to the kin of him slain "after
the assise of the land."
In granting the same
privilege to Inverlethan, Malcolm IV. ordains, "that the said church, in
which my son's body rested the first night after his decease, shall have a
right of sanctuary in all its territory, as fully as Wedale or Tyningham;
and that none dare to violate its peace ' and mine,' on pain of forfeiture
of life and limb.'' Of the sanctuary of Tyningham, thus mentioned as of
almost equal celebrity with Wedale, we have but little further
information.
The Scotch law of sanctuary
or girth was early ascertained with much precision, and carefully guarded
from the danger of encouraging crime by affording an easy immunity to
fugitives. In later times, and during a period of intolerable misrule,
among other temporary enactments for the suppression of homicide, the
Parliament of Scotland enacted that whoever took the protection of the
Church for homicide should be required to come out and undergo an assize,
that it might be found whether it was committed of "forethought felony,"
or in "chaudemelle;" in case it should be found of chaudemelle, he was to
be restored to the sanctuary, and the sheriff was directed " to give him
security to that effect before requiring him to leave it." |
