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WE, in this nineteenth
century, can form but a very faint idea of the important privileges which
the inhabitants of Arbroath five or six centuries ago would derive from the
place having been created a free burgh of regality, nearly equal to the rank
of a royal burgh. With this view, it is worth while to take a cursory view
of the state of the population of Scotland before the erection of burghs,
and of those who for sometime afterwards continued to live beyond the reach
of burghal privileges. And, in connection with this subject, it may be
allowable to allude to a few of the many bygone marks which served to denote
the wide distinction which formerly existed betwixt the rural and urban
populations. The following description applies chiefly to the eastern
counties betwixt Forth and Spey, which formed the ancient kingdom of
Scotland, and the centre of which was occupied by the district of Angus,
rather than to the Saxon people of ancient Lothian, or to the then pure
Celtic inhabitants of the Highlands, Galloway, and Nithsdale.
With the exception of the
barons and the clergy, the extra-burghal inhabitants, about the time of the
foundaLion of Arbroath Abbey, were, in every sense of the word, slaves. They
bore the distinctive name of "thralls," or bondmen, in public documents.
They were born slaves, and as such they lived and died. They were unable to
hold any property in land; but they could be, and often were, conveyed along
with the lands as part of the purchase. Several of the older grants to the
religious houses conveyed lands, with all the men upon them, just as a
conveyance or sale of land at the present time includes (if it does not
express) all the hares, partridges, and grouse that may be found on it. They
were also sometimes bestowed on religious houses separate from lands, and
distinguished by their names, as slaves are still transferred in America..
Cristine, daughter of Walter Corbet, gave to the Canons of St Andrews, to be
held on their lands of the village of Maurice, Martin, son of Vnieti, with
his sons and daughters (nativi of the late Walter Corbet), and that in
perpetual servitude, with all generations of their posterity. (Reg. St
Andrews, p. 262.)
The goods, liberties, and
even the lives of these bond-men were as completely at the disposal of the
barons or landholders as those of Russian serfs are at the disposal of the
Czar's nobility at the present day. Their condition was even worse, for the
kings of Scotland never possessed that power of controlling or meliorating
baronial oppression which the Czar is now exercising. These barons often
held the lives of their bondmen at little value ; and they were enjoined by
the old laws to have always in readiness pit and gallows, or gibbet and
draw-well, for the more convenient hanging of men and drowning of women.
The powers of life and death
over their vassals were retained and exercised by the great Scottish barons
until a comparatively recent period, in their characters of judges and
feudal superiors, long after they lost the proper powers of slaveholders
over the persons of their dependents. Many memorials of the stern
enforcement of this judicial power still remain in the names of the Gallow-towns,
Gallow-dens, Gallows-knowes, Gallow-hills, and Widdie-hills, which are to be
found near the seats of the old barons. The executioner was accordingly in
those days an indispensable officer in every baron's court; and the piece of
ground which formed his proper patrimony still bears in some places the name
of the Hangman's Acre, or the Hangman's Croft, Although Scotland now
possesses a population probably six times more numerous than in some of the
periods to which we have referred, it is at the present time totally
destitute of such an official. Hence the complaint which has been ironically
put into the mouth of the Society for the Protection of Scottish Rights
that, among other wants, Scotland does not possess so much as one hangman,
and could not put a capital sentence into execution without borrowing such a
functionary from England.
The state of bondage in which
a large proportion of the inhabitants of Scotland were formerly held was
more complete, and can be much better established than is generally
believed. As in the Southern States of the American Union at the present
day, laws were enacted containing punishments on all who connived at or
abetted the attempts of the unfortunate "thralls" to escape from their
bondage. Thus, one of the laws of King William, the same monarch who founded
Arbroath Abbey, was passed for restoring back to their slave masters born
serfs or thralls who had fled from their bondage. It provides that, "if any
man holds a bondman who is kind-born (i.e., born a slave) to another, after
he be asked of his true lord, he sail yield the bondman with all his goods
and cattle, and sail give to the lord of the bondman double of all his
scaiths by him sustained, and be in the king's mercy for his lvrangous
withholding." Even King David, the great patron and protector of the burghs,
had no idea of giving liberty from bondage to his poorer subjects, unless
within the ports of his royal burghs. One of the laws of this King, who was,
in many respects, in advance of his age, reminds us of some of the American
Negro laws. It provides that, "Gif ony man be fundin in the king's land that
has nae proper lord, after that the king's writ be read within the king's
mutes (i.e., the king's courts), he sail have the space of fyfteen days to
get him a lord. And gif that he, within the said term, finds nae lord, the
king's justice sail tak of him to the king's use aught kye (eight cows), and
kepe his body to the king's behoof till he get him a lord." Thus it appears
the bondman was held bound to provide a slave master for himself. Not only
was the poor thrall doomed to slavery all his lifetime, but his children
were born slaves, and transmitted their thraldom through unlimited
generations. The last remains of this state of things were found among the
colliers and salters on the shores of the Firth of Forth, who remained in
slavery till they were emancipated by Acts of Parliament not more than a
hundred years ago. The following singular statement of a case, and the
solution given to it, found among our oldest laws, exhibits a resolution to
perpetuate the stigma and misfortune attendant on slavery to the slave's
wife and children, even where the mother of his children did not belong to
the doomed class of thralls. It bears the title of "A gude were of law," and
proceeds in these set terms —"Twa sisters (freewomen) has an heritage as
richteous heirs,—the tane taks a thrall (i.e., marries a bondman); the
tother taks a freeman: She that taks the freeman has all the heritage (i.e.,
she shall possess the whole heritage); for this, that ane thrallman may have
nane: The thrallman begets a bairn with his wife: The bondman dees: The
bondman's wife, her husband (being) dead, gaes till her heritage, and enjoys
it for her lifetime: The wife dees: (The question then arises,) May the son
recover the heritage'? (The answer is,) Na, lie shall nocht, for this
(cause), that he was begotten with that thrall's body that is dead."
At the period of which we are
speaking, the class of our population known by the name of farmers had no
existence. For centuries afterwards, agricultural tacksmen were only known
as " the puir people that labour the ground." They were almost all tenants
at will; and such leases as they could obtain were looked upon as mere
private arrangements, to be set at nought on any change in the proprietor's
position, or any transference of the property. Their goods were liable to be
seized for the proprietor's debt, because they were situated on his lands,
and were also liable to. be carried off, for the same reason, by escheat or
forfeiture if he was convicted of rebellion or other crimes. Even in the
case of a private sale of the estate, the purchaser had power to disregard
the leases of the tenants, and turn them off as soon as he entered on
possession. This continued to be the case down till the reign of King James
II., in 1449, when the Parliament "ordained, for the safety and favour of
the puir people that labours the ground, that they and all others that has
taken, or sall tak, lands in time to come frae lords, and has terms and
years thereof, that, suppose the said lords sell or annalie that land, the
takers sall remain with their tacks unto the issue of their terms, whas
hands soever these lands cum to, for sicklike mail as they took them for." A
short view of the principal steps by which the emancipation of the Scottish
peasantry from their original state of feudal thraldom was effected, will be
given in a note appended to this volume. (See Appendix No. I.)
Barbour, the old Scottish
poet, understood something of the condition of Scottish serfs, whom he terms
"thrylls," as appears from the following lines:—
"And thryldom is weill wer
than deid, [Well worse than death]
For quhill a thryll his lyff may leid,
It merys [Mars or ruins.] him, body and banys,
And dede anoyis him bot ant's:
Schortly to say, is nane can tell
The haille conditioun of a thryll." [Barbour's Bruce, Book I.]
Such was the state of the
rural population of the Lowlands of Scotland about the time that Arbroath
came into historical notice by the planting of King William's princely Abbey
in its vicinity. But it is well known that the barons and great landlords of
Scotland often made their powers to be formidably felt by the monarch on the
throne, their professed superior, as well as by the poor vassals, who were
both really and professedly their slaves. To obtain a counter-balance to
these powers, and having witnessed the wealth and enterprise which the free
towns of the Continent had introduced into the states where their liberties
were protected, King David made it his object to establish as many such
corporations as possible in his kingdom. He erected many of his towns and
villages into free burghs, holding of himself, and hence styled burghs
royal. From the influence of his example, the Abbots and other great lords
of regality formed their villages into burghs, holding of them, and styled
burghs of regality; while the barons erected the hamlets near their castles
into burghs of barony, with privileges more or less extensive.
The nature of the inducements
held out by King David for men to settle in his burghs, as well as the
contrast between the freedom of a burgess, and the bondage of what was then
styled an upland man or thrall, will be best understood from the following
two specimens of his enactments. The first provides that, "Gif ony man's
thrall, baron's or knycht's, comes to burgh, and buys a borrowage, and
dwells in his borrowage a twelvemonth and a day withoutyn challenge of his
lord or of his bailie, he sail be ever mare free as a burgess within that
king's burgh, and enjoy the freedom of that burgh.' Another is in these
terms: King David statutes that all burgesses "suld be free through all his
kinrik, as weil be water as be land, to buy and to sell, and their profit
for to do, withoutyn ony disturbance, under full forfeiture: the which are
under his firm protection."
From these, and many other
illustrations which might be given, we may come to understand something of
the force and point of such expressions as "the freedom of the burgh," and
"the liberties of the burgh," which occur so frequently in the documents
connected with every municipal corporation in Scotland. At the time when
these phrases were adopted, they truly described the existing state of
burghs as distinguished from the extra-burghal territory. Within the bounds
of the burgh was the domain of liberty and freedom; beyond these boundaries
lay the domains of thraldom and servitude. The burgesses were both proud and
jealous of their liberties; and to mark these the more distinctly, they
built ports or arched gateways over the public thoroughfares at the points
where they crossed the burgh boundaries. Of such gateways the inhabitants of
Arbroath are still reminded by the names of the North Port, Guthrie Port,
and West Port, erected apparently some time after the Reformation; and such
ports remained in many burghs till within the last century. The town
treasurer's accounts for 1608 contain various charges for the repairs of the
North Port during a pestilence which was then prevailing. The ports were not
intended to serve as defences against assaults from without, so much as to
be visible badges of the political and social distinction between those who
lived on either side of the structures, for very few of our Scottish towns
appear to have been surrounded with walls or fortifications fitted to
withstand a siege.
These ports were frequently
associated with spectacles of a nature so loathsome and melancholy that the
recollection of them makes us less to regret the demolition of our
town-gates. These were, first, the lepers ("the lipper folk"), who were not
"tholed to thig" within the burghs, but were allowed on certain days of the
week to sit at the ports and receive alms from the passers-by. This
continued to be the case till the reigns of the Jameses. They were also the
places where the heads and limbs of malefactors, offenders against the
State, were exposed to rot and blacken in the sun. This barbarous practice
continued till the Revolution of 1688. The heads and hands of the
Covenanters, smeared with tar, were the last of these dismal relics which
were publicly exhibited at our burgh ports; but this was done in the
southern and western districts of Scotland rather than in Forfarshire.
Another distinctive badge of
the burgh was its market-cross, or according to the ancient orthography, its
mercat Croce. While only a portion of our Scottish burghs possessed ports,
every burgh, even the smallest burgh of barony with its seven or eight score
inhabitants, had a cross. And the cross, like the freedom of the burgh, was
in those days not a name but a reality. It was not a more circle of stones
in the pavement, but a pillar with its upper part formed like a Latin cross,
and often having for its basement a series of three or four stone-steps,
either round or polygonal, and arranged in a pyramidical form. The most
primitive market-cross now existing is perhaps that of the village of Dull,
in Perthshire. In the more important burghs the steps supported a building
of considerable size, generally octagonal in form, and containing a
staircase leading to a platform, surrounded by a parapet or railing. These
buildings sometimes exhibited considerable taste, as in that of Aberdeen
still existing, and in that at Edinburgh foolishly demolished. The proper
cross or pillar in such cases was erected in the centre of the platform ;
and the platform was a convenient position for heralds, officers, and public
speakers. When crosses fell into disrepute, at the Reformation, the arms of
the cross were cut off, and the stone generally now appears (where
market-crosses yet remain) in the simple form of a round pillar surmounted
by a unicorn. The mutilated stone unicorn which is said to have surmounted
the cross of Arbroath was very lately, if it is not still, to be seen in the
garden of Mr Andson of Friockheim. We have not been able to learn the
precise construction of the Cross of Arbroath, which stood, not at that part
of the High Street where three successive town-houses have been built, but
almost at the foot of that street, not far from the Old Shore Head. When
printing was unknown, or but sparingly used, town crosses were objects of
importance. They were the points from which all edicts and proclamations
were published. The acts of the Scottish Parliament had to be read and
proclaimed at the crosses of at least all the King's burghs, until which
time they were not held to be in force; and (which appears strange to us)
they were not even then considered to have full legal effect if the
proclamation was met at that moment by a counter protest, at the instance of
any party who considered his rights to be compromised by the law so
proclaimed. Our history affords several instances of stealing marches in
order to get an obnoxious law proclaimed before its opponents could be ready
with their protest.
In the vicinity of the market
cross were the merchants' shops, then termed booths, with their fronts open
to the street. The goods were withdrawn into the inner part of the building
at night, and reexposed in the morning. Arbroath does not now seem to
possess any houses built on this plan, although numerous instances may be
found in some other towns. One of these booths was always used as the place
for collecting the tolls or customs of the burgh, from which use the name of
Tolbooth is derived. The magnates of the burgh naturally assembled at the
Tolbooth for public business; and the place of confinement for delinquents,
as a matter of convenience, was constructed there. Hence the original term,
first formed to denote an open shed or booth for the receipt of custom, came
afterwards to be the name of a town-house, and is now known as the
old-fashioned and somewhat obsolete title of a Scotch jail.
To us who have seen the
peculiar privileges of burgesses accounted of so little value as to have
been abolished by Parliament without a solitary voice raised in favour of
their retention, it is interesting to look backwards through a period of
seven hundred years to the time when these privileges were first obtained,
cherished, watched over, and guarded with such jealous care. The apathy with
which we have witnessed their abolition might have been caused by a
knowledge of evils arising out of the abuse of such privileges, greater than
the advantage derivable from them, or from indifference to the cause of
liberty and freedom itself. A better reason can however be assigned for the
modern depreciated estimate of burghal privileges. In early times the
burghs, like wells and reservoirs in a dry and thirsty land, were highly
prized and carefully protected, as the only fountains of freedom in the
midst of an enslaved and depressed population. But when the wilderness
becomes a pool of water, and the dry land is turned into water springs (to
borrow a metaphor from the Sacred Scriptures), when water can be readily
obtained anywhere and everywhere, then particular fountains will necessarily
lose their comparative high value, and cease to be objects of anxiety. So,
in like manner when, in consequence of the merciful spirit of Christianity,
and the diffusion of wise and liberal political principles, the inhabitant
of every village and hamlet now enjoys as much personal and political
liberty as could be secured to an ancient burgess, these corporation
privileges, however valuable in themselves, and venerable as the first
fruits of freedom, have lost their comparative importance, and have ceased
to stand in need of statutory protection,—not because the burgess has in any
respect sunk down from his proud position to the lower level of the upland
man or thrall, but because every upland man throughout the kingdom has risen
to the level of the once envied platform of the burgess or king's freeman.
If the condition of the
Scottish peasantry generally about the time of the formation of burghs was,
as we have seen, very melancholy, the state of the inhabitants of these
burghs themselves was not by any means to be envied by us who live in times
of greater freedom and higher civilisation. The glimpses we obtain of their
manners exhibit that jealous care of small possessions, and vindictive
punishment of the least aggressions upon these, which is characteristic of a
poor people, together with the comparatively little value put upon human
life which characterises a barbarous people.
The following excerpts from
the burgh laws will help to illustrate the first part of this remark. By one
of these it is provided that—"Gif a burgess or ony other halds swine or
other beasts through the whilk the neighbours taks skaith, the swine fundin
in the skaith withouten ony keeper following them, may weil be slain, and
made escheat, and eaten after the law of the burgh." Another provides
that—"Gif ony finds gait or geese in his scaith (i.e., doing mischief to his
property), lie sail tak the heads off the geese, and fasten the nebs in the
yird, and the bodies lie sail eat,—the gaits, forsooth, he shall slay and
bald the bodies for escheat." The "statute of theft" is an illustration of
the low value of human life in former times. It exhibits an extraordinary
gradation both in the crime and the corresponding punishment, in the
following terms— "Gif ony be tane with the laff of a halfpenny in burgh, he
aught to be dung through the toune; and frae a halfpenny worth to four
pennies, he aught to be mair sairly dung; and for a pair of schone of four
pennies, he ought to be put on the cukstool, and after that, led to the head
of the toune, and there he sail forswear the toune (i.e., he shall swear to
leave the town for ever); and frae four pennies till aught pennies and a
farthing, he sail be put upon the cukstool, and after that, led to the head
of the toune, and there he that took him aught to cut his ear off; and frae
aught pennies and a farthing to saxteen pennies and a halfpenny he sail be
set upon the cukstool, and after that led to the head of the toune, and
there he that took him aught to cut his other ear off; and after that, gif
he be tane with aught pennies and a farthing, he that taks him sail hang
him. Item, for threttie-twa pennies one halfpenny, he that tales a man may
hang him."
'There are documents found
among our old laws showing similar gradations as to crimes against the
person. By one of these the life of a man may be compounded for by "nine
score kye; and another contains the following item in a valuation put upon
all sorts of assaults— For a man's life, twelve mark." There is more
agreement between these two apparently contradictory modes of valuing human
life than is seen at the first view. By the first, the life of a poor thief
is forfeited through his stealing thirty-two pence halfpenny. By the second,
the rich criminal is allowed to redeem his own life when forfeited for
murder, by one hundred and eighty cattle. Two shillings and eightpence
halfpenny were accounted of more value than the life of the thief who was
unable to redeem himself; and one hundred and eighty cows were accounted
fully equivalent to the life of the victim if his murderer was wealthy
enough to be able to give them. |
