Burghs of Barony and Regality.—Dr.
Whltefurde.-Charter of 1662. --Ratification of 1669.—The Burgh's
Boundaries.—Mr. Johnstone's Charter of 1839.—Burgh Rights—The Common. lands
and their Division—The Douglas Acre, and Market Place —The Ancient
Meal-house—The Magistrates—Remarks on certain illegal acts.
WE now come to the period at which Moffat is seen in a
more important light. At an early date it had been customary to divide the
lands of Scotland into what was called royalty and regality. The right of
regalities, according to Chalmers, commenced during the reign of Alexander
I., the Bishops and Abbots having full power to hold courts "within their
own lands, and were freed from the authority of other jurisdictions." These
jurisdictions of the clergy, however, soon became the property of the
Barons, who had earnestly longed for possession of them. We find Moffat in
the position of a burgh of barony and regality about the year 163, situated
within a large barony and regality, termed the barony and regality of
Moffat. Dr. Whitefurde, regarding whom we have already spoken, was then
denominated Superior, having as his right the full administration of affairs
within his own lands; and we find him in 1638, granting to one Janet
Porteous, a confirmation of an order regarding land previously given. The
Burgh Charter to Moffat, still extant, of date 1662,and which we shall
presently quote at length, is not in reality its first, as often supposed,
being but a transfer to James Earl of Annandale, of two things which
formerly existed—the barony and regality of Moffat, and the burgh of Moffat
which stood within it. The following is a translation of those parts of the
Charter of 1662, which specially refer to the town:—
[TRANSLATION.]
"Charles, by the
grace of God, &c., to all good men of his whole land, clerical and lay,
greeting, know that we have granted to our beloved kinsman and counsellor,
James, Earl of Annandale and Hartfell, Viscount of Annand, Lord Johnstone of
Lochwoocl, Lochmaben, Moffatdale, and Evandale, and to his heirs male
lawfully begotten, or to be begotten of his body, whom failing the heirs
female without division begotten hitherto, or to be begotten of the body of
the said James ........and to the heirs male lawfully to be begotten of the
body of the said eldest female heir, ......bearing the name and arms of
Johnstone, which they shall be bound to assume ......whom failing, to the
nearest heirs and assignees of the said James...... whomsoever heritably
irredeemable....... all and whole the ten pound land of Moffat, with the
mill, mill-lands, manor burn, with the woods, fishings, tenants, tenondaries,
and services of free tenants, past pendicles and pertinents of the same,
together with the advowson, donation, and right of patronage of the church
and chaplanries of the same, lying within the lordship and regality of
Dalkeith, and Sheriffdom of Dumfries. All and whole that acre of land at the
end of the said town of Moffat, called Douglas Aiker, together with the
privilege and liberty of regality within the bounds of the said lands
together also with the privilege of holding markets weekly on Friday within
the said town, and two fairs in the year within the said burgh and bounds of
the same, one of them on the eighteenth day of the month of June, during the
space of two days in succession, and the other of them on the second day of
the month of September, with the power of uplifting and receiving the
customs and dues of the said markets and fairs, and to apply the same to the
use of the said burgh ......lying within the barony of Moffetdaill, .......Reddendo
Clause. And moreover, we . . . . of new give. . . . to the said. . . James.
and heirs ....the lands, lordships, barronies, . . . above mentioned
.....And we moreover, understanding that it is more expedient that a burgh
and town be built and erected within some part and place of the said lands,
lordships, and barronies, where the same may be most conveniently had, and
where its situation may furnish the greatest easement and advantage to our
lieges, therefore, for policy, to be had and exercised within the said town
and burgh, so to be founded and erected as follows, and for the further
easement and good of our lieges, and also for other causes and
considerations moving us, we, of our royal authority and royal power.....
have created and erected . . . in favour of the said James, Earl of
Annandale, &c., and his heirs and assignees aforesaid, the town and
territory commonly called Moffat into one free burgh of barony and regality
within the foresaid bounds, to be called in all time coming, the burgh of
barony and regality of Moffat, with all the tenements, acres, cottages,
houses, buildings, gardens, tofts, and other pertinents within the bounds
and territory of the same, that shall be assigned and destined to the same
of our said kinsman and Counsellour, James, Earl of Annandale, &c., and his
foresaids, and have given .....them the full power .....of chosing,
creating, admitting, and iniputting yearly bailios (one or more) within the
foresaid burgh; with all and every other free burgesses, clerks, serjeants,
adjudicators, and all other- members necessary for the administration and
government of the said burgh in all time coining, with power to them of
erecting a market cross within the said burgh; and we give and grant to the
said burgh of barony and regality errected and built, or to be errected, as
has been said, and to the inhabitants of the same, the whole liberties and
privileges belonging to a burgh of barony and regality in like manner, and
as freely as any burgh of barony and regality has and enjoys the aforesaid
within the said Kingdom of Scotland. And we will and ordain that all
proclamations, executions, indorsations of horning, inhibitions, and
apprisings and other executions whatever, within the said bounds and
regality above specified, used or to be used within any burgh of this our
kingdom, shall be used at the market cross of our said burgh of 'Moffat in
all time coming. And also we for the greater advantage and emolument of the
said burgh, and for the increase of the revenue of the said burgh ......
have granted . . . . . . to our foresaid kinsman and counsellour, James,
Earl of Annandale and Hartfell, and to his foresaids, a market day to be
held weekly on Friday within the said burgh, together with four fairs
yearly; whereof the first on the eighteenth day of the month of June, the
second on the eighteenth day of the month of July, the third on the second
day of September, and the fourth on the ninth day of October, yearly; with
as ample privileges, liberties, profits, and immunities of free fairs and
markets, as any other burgh of barony and regality within our Kingdom of
Scotland has and enjoys, with all the customs and dues of the said fairs and
markets, and all other privileges and liberties belonging to the same,
according to the laws and customs of this our kingdom of Scotland
......Paying yearly .....for all and whole the said ten pound land of
Moffat, with the mill, mill lands and pertinents of the same foresaid; all
and whole the ten pound land of Grantown, with the pertinents, together with
the advowson, donation, and right of patronage of the churches and
chaplainries of the same lying as is fore-said; all and whole the said acre
of laud, lying at the end of the said town of Moffat, with the pertinents,
called Douglas Aiker, with the privilege of regality, and of holding fairs
and markets within the bounds of the same, in the manner above written, only
one penny of the money of this Kingdom of Scotland upon the soil of the said
lands of the burgh of barony and regality, or any part of the same, if asked
.. . . . . . . In -witness of 'which thing we have commanded our great seal
to be affixed to this our present Charter..... At our Palace of Whythall,
the third day of the month of April, in the year of our Lord, One Thousand
Six Hundred and Sixty-two; and of our reign the fourteenth year."
This Charter, as if to make things doubly sure, was
ratified by an Act of Parliament in favour of James, Earl of Annandale, in
1669. To illustrate the illegality of subsequent proceedings, we may state
that that Act is still in force. The wording of the Ratification is similar
in effect to that of the Charter, with the following slight variation. After
stating that Moffat is already created a Burgh of Barony, &c., it goes on to
say, "with the hail lands, tennements, aikers, cottages, houses, bigings,
yeards, tofts, crofts, and other pertinents, within the bounds and
territorie thereof mentioned within the said Charter, and all lyandit and
boundit in manner therein spit Holden by his Mãtie, and his heirs,
successors in frie heritage, frie barronie, lordship, and earidome for over.
And altering such of the foresaid lands, banonnies, and others above
written, which formerly held waird to ane taxt, wail for payment of the taxt
deuties therein spelt for the manage sua oft as the samen likes, and of the
taxt deuties therein speit for the lands during the tymo of the wail and
nouentnie thereof and for relief of the samen with the other privileges and
liberties at length mentioned in the said Charter, &c" Herein we see Moffat
installed into a comparatively comfortable position. It has but now doffed
its humbler garb and shaded its lovelier aspect, its lanes and by-paths are
indicative of a little bustle, but those deeds which could alone prove its
identity and its claims to importance have long slumbered in the musty "and
unfrequented storehouse of Archaeology." It was believed that upon the
abolition of the rights of lords of regalities the burgh rights of Moffat
were annulled, and the town itself destined no longer to be recognised as a
burgh. The following passage, however, contradicts the supposition, as it
speaks only of the abolition of the rights of lords of regalities, and makes
no mention of the abolition of the burgh rights of Moffat: "That the
following jurisdictions, claimed by George, Marquis of Annandale, may be
rated at the sum underwnitten, viz.—The heritable office of Lordship and
jurisdiction of the regality of Moffat at the sum of £800 sterling; and the
heritable jurisdiction of Stewart of the Stewartry of Annandale at £2200
stg.; total, £3000 sterling."* This sum was paid to the Marquis on the 20th
November, 1748. It is fortunate it was satisfactorily proven that the burgh
rights of Moffat were not annulled at the date specified. Through the
interposition of some private and influential men, and the efforts of the
proprietors of the Moffat Times of 1857, by giving proof to that effect, the
burgh's boundaries and common lands were placed on the Ordnance Map. The
fact of the burgh's boundaries, &c., having been thus laid down on the map
may appear trivial, or at least be estimated by parties unacquainted with
the subject of less importance than it really was. In 1856 it was intended
to adopt the General Police and Improvement Act, but wa fortunately not
(lone till a subsequent period-1864 (of which we speak elsewhere)—for had it
been adopted while it was yet a matter of uncertainty whether or not Moffat
was a burgh, it would have been of little or no avail, as it contains "two
distinct modes of procedure, one for burghs, and another for towns that are
not burghs." The Act of Parliament of 1669, ratifying the Charter of 1662,
has already been quoted, and being still in force, the rights and privileges
of Moffat as a burgh must of necessity exist. To enable a second entail of
the Annandale estates to be made, James, Earl of Hopetoun, created trustees
for that purpose, who were "invested in the said estates by an instrument of
sasine, dated 25th March, 1819. A part of that document is the same as a
part of the Charter granted to Mr. Hope Johnstone of date 20th December,
1839, and in it all the rights and privileges of Moffat as a burgh exist,
preserved in full force.
To
enter into the wide subject of the burgh rights of Moffat would occupy too
much space for a work such as this, therefore we shall curtail the
information laid at our disposal, and for the present speak of the ancient
Common of Moffat. Proprietors of land by Royal grant in or of Moffat had two
distinct privileges, first, the exclusive right of the private land
conferred by the Charter, and second, a right of pasturage on the public
lands or commonty, to the extent of a specified number of soums of cattle,
and controlled by the private possession of land within the "territorio do
Moffat," as referred to in a preceding chapter. If This tract of land termed
Moffat was divided into two seetions—pub]ic and private possession, and was
in length five miles, while in breadth it measured two. This Common was by
the Court of Session ordained to be divided towards the close of 1770, the
various proprietors in lieu of their right of pasturage receiving shares.
The Marquis of Annandale, who possessed three-fourths of the adjoining lands
and who held the superiority of the whole, received a vast extent of land by
the division, while the proprietor of Grantoun became the fortunate
possessor of an extensive piece of pasture land. Parties who had gained the
right of feu on the adjoining lands from the Marquis, obtained a grant of
land varying from five to fifty acres along the old Edinburgh Road, which
has since been cultivated and built upon. It is an unaccountably strange
fact that this premature disposition of the property invoked the displeasure
of not a few of the inhabitants of Moffat upon the head of its principal
proprietor—the anger of parties whose former rights to this Common land had
been either disregarded or annulled in 1770. In a document from which we
have already quoted we find "a tract of ground was reserved undivided for
the feuars to turn their cows into during the winter, and for the purpose of
a fair-steadiug on which to show stock." This at first appears to have
reference to what we have just alluded. The peculiarity consists, however,
in the concluding part of the passage, "of late years the kind superior has
this undivided tract wholly in his possession, consisting of about thirty
acres." t This can, in truth, have no connection with the division of ground
on the old Edinburgh Road in lieu of former possession. And we fear the
writer must have, during his investigation, been seeing through a mist, and
thus blinded, was incapable of discerning the exact features of the case. In
those days when every remnant of feudalism has been abolished, and the "good
old days of might are gone," we cannot imagine that such enlightened
illegality and oppression should be committed and withstood. Nor have we
such a low estimation of that dignified superiority which has ever been the
characteristic feature of our history, as to endorse those sentiments which
visibly unfold the grave characters of injustice and oppression. These
thirty acres referred to may have been the original property of the
superior, who, upon the disposition of this common land, in 1770, granted it
in loan for the use of the fenars till more ample accommodation was
provided, thereby causing it to become a matter of privilege, and not a
matter of right to the inhabitants, at the same time reserving his title to
dispose of it in future times as he deemed fit.
It will be no small matter of interest, we question
not, to those of our readers who are inhabitants of Moffat, to become
acquainted with the early incidents of their markets and market-place, both
of which are referred to in the Charter of 1662, and in the "Ratification"
of 1669, the market-place being denominated as the "Douglas Aiker." In the
Charter of 1662, already quoted, we find—" All and whole, that acre of land
at the end of the town of Moffat, called Douglas Aiker, with the privilege
and liberty of regality within the bounds of the said lands, and privilege
of holding markets weekly upon Friday within the said town; and two fairs in
the year, within the said burgh, and bounds thereof" While all the
"privileges and liberties at length mentioned within the said Charter," are
by the "Ratification" preserved in full force. The situation of the
market-place corresponds with subsequent descriptions of the Douglas "Aiker"
referred to in the Charter, which, combined with the fact, that there is no
other place in Moffat of such appearance as the Douglas Aiker, and that the
institution of markets is in the same clause, in fact, joined to the passage
with reference to the grant of the "acre of land at the end of the town,"
gives us the full impression that the old market place and the Douglas Acre
are one and the same thing. The following may satisfy our readers as to the
position of the Douglas Acre or Market place. In a Charter of feu farm of
the old meal-house of Moffat, granted by the then existing Superior, to one
John Grahame, of date March 22nd, and May 6th, 1742, written to prevent the
forfeiture of the feu by an evident disregard to specified conditions, we
find:—" Further that the said John Grahame and his foresaids shall be
obliged to famish ane Meal-house for the use of the publick mereata, in the
town of MofIat, in that place where the foresaid Meal-house hereby conveyed
is situate?' In a disposition of the house next to and east of the old
meal-house in question, to one James Beattie, of date 1747, a sketch of the
boundaries of the house is given, of which the following is the substance
:-" All and hail that big old stone house in the town of Moffat, one end
thereof adjoining the house presently possessed by Jno. Johnston, wigmaker
in Moffat; and to the meal-house and back yeard, and the oyr end thereof
fronting to the Mercate street of Moffat." The exact situation of the Moffat
Market-Place or Dougles Aiker is herein determined—namely, in front of the
two houses of which we have now spoken.
As regards the illegality of certain acts to which in
a preceding passage we alluded, the same is manifest in records of the
subsequent actions of men in authority, or in other worth lairds, or others
who held the superiority of Moflt. When it was elevated to the position of a
burgh of barony and regality, and by such rendered capable of discarding its
rustic guise' for one of more cultivated hues and business-like polish, he
who received the original grant and a subsequent confirmation of the
same—James, Earl of Annandale—had impressed upon him certain ideas, which he
was bound to see developed or carried into effect. By no means the least of
these duties which he was obliged to perform was the election yearly of
bailies to represent the inhabitants, in direct accordance with the
specifications of the Charter of 1662, as it invests the holder of the gift
with the "full power . . . of choosing, creating, admitting, and imputting
yearly baffles (one or morn) within the foresaid burgh," the same with the
remainent privileges having been confirmed by the "Ratification" of 1669;
and though mentioned in the Charter as a "power," it was none the less a
duty. In compliance with this enactment, the baffles for many years were
elected, but such manifestations were destined to be mere allurements. The
good appearances were vain and idle, and subsequent years saw the election
of bailies disregarded. This took place many years prior to the exertions
which were made to secure the insertion of the burgh's boundaries in the
Ordnance Map (even in the time of Mr. Hope Johnstone) and was put forward as
an argument why such notice of the burgh should be taken in correspondences,
which took place on the subject at the time. The good of such public
officers in such cases is manifest, inasmuch as in the event of the
non-election of magistrates, the burgh's boundaries may be neglected and
ultimately forgotten, which would not be were suitable men put into office,
provided they regarded the interests of parties concerned, and the
fulfilment of duties imposed upon them. It matters not upon whom the
responsibility of the non-fulfilment of those injunctions to which we have
alluded rests, the point for consideration is those actions palpable enough
in themselves, which indicated an evident disregard of certain laws, and
which for sometime caused dissatisfaction needlessly to prevail amongst
those parties, who had a claim upon those in authority for protection, and a
right to exact the complete accomplishment of those duties, which were
incumbent upon their superiors; by the various enactments referred to. The
superiors in former days possessed the properties and derived the complete
pecuniary good accruing from them; and while those in inferior positions
served them, they were in duty bound to recognise certain claims, and do all
possible for the advancement and improvement of the people within their
jurisdictions. Parties who are at the helm of power, even in modem times,
and are in high positions, disregard the humble claims and conveniences of a
humbler grade, and sometimes trust to their superiority covering the
injustice of their actions. Such, we fancy, would be benefited by consulting
the splendid sentiment of Tennyson.
"Howe'er it be, it seems to me, 'I'ie only noble to
be good; Kind hearts are more than coronets, And simple faith than
Norman blood."
The election
of bailies is now recognised in full force, though probably chiefly in
keeping with the specifications of the General Police and Improvement Act,
however recently adopted, to which we shall presently refer.
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