Search just our sites by using our customised search engine
Unique Cottages | Electric Scotland's Classified Directory

Click here to get a Printer Friendly PageSmiley

Scotland as it was and as it is
Chapter III - The Age of Covenants

WE now come to that other great branch of historical inquiry which concerns not the Ownership but the cultivating Occupation of the land. At first sight, and looking only to the surface of things, it might seem as if the effect of Charters, however favourable to those who got them, might be unfavourable to those who had only subordinate interests in the soil. And so it would, if Charters had been what we have seen that they were not. If the powers and attributes which they recognised as belonging to Leadership over men, and to Ownership of land, had been new inventions, introduced for the first time by a foreign and a conquering race, they might have, and probably they would have, worked injuriously. But as those powers and attributes were nothing of the kind,—as they were, on the contrary, purely indigenous and of strictly native growth, they worked, and were worked in the spirit of the new Form, and of the new embodiment which had come to them with the increase of legal knowledge, and the progress of civilisation. In this distinction lies the whole difference between life and death in all human Institutions. For in them the same law prevails which in organic bodies is called the "correlation of growth "—that law in virtue of which all healthy developments in one member are surely, though often invisibly, accompanied by corresponding and closely related developments in many surrounding parts. in secrecy and in silence, through all the centres of influence and all the germs of growth, the Formative Energy which governs and directs the whole, builds up along a thousand lines the parallel structures which are needed for the harmony of Life.

Nor, in the case before us, is there any mystery as to the nature of the processes which ran below and above, and alongside of each other, in the Age of Charters. It is true that these Instruments imposed no limits on the fulness of that Possession which they were intended to convey. On the contrary, it was the special object of them to make that Possession as full and secure as possible. But it is equally true that the fundamental conception of all Charters was that of legal definition, and the substitution of fixed and definite obligations for liabilities which were incalculable because they were purely arbitrary, casual, and lawless. This fundamental conception, in giving birth to Charters, gave birth at the same time, and of necessity, to other Instruments of a like nature, which were derivative and subordinate. It inspired the whole series of transactions which were in any way related to the same subject. Men who accepted from the Crown, or from great Subjects of the Crown, Charters of land on the emphatic condition that these lands were to be free from the ungoverned and ungovernable usages of Celtic Feudalism—"the exactions of Mormaer and of Toiseach"—were not likely to return, in their own relations with their own Tenants, to the barbarous customs whose very names had become words of opprobrium and reproach. Accordingly we find that the Age of Charters in respect to Ownership was also the Age of Leases, or other Covenants in respect to the Occupation of land, so that all subordinate tenures tended more and more to be governed by the same spirit of substituting limited and definite obligations for liabilities which were always capable of unlimited extension, because they were vague, unwritten, and undefined.

It may be well, however, to look back a little here, to see, as we did in the case of Charters, what the conditions of society seem to have been in the dark centuries, as regards the cultivating class. Perhaps it would not be too much to say that during a great part of those centuries there was no such class at all—except the Monks and the Serfs. All other men lived mainly for war, or for the chase; and even the Serfs must have had to bear their share in the work of fighting, or of attending to those who fought. Agriculture cannot be a pursuit except to peaceful men, and there were then no peaceful men except the Christian Brotherhoods. Accordingly the earliest glimpses which we get of agriculture in Scotland are connected with the landed possessions of the Church. And one of the very first of these glimpses is in some ways the most interesting of them all. In the narrative of the life led by St. Columba on the Island of Iona, 1300 years ago, left us by the Abbot Adamnan, we see a quiet picture of all the operations of a farm hardly differing at all from those which constitute the ordinary operations of a modern farm, except that they were more complete, and embraced a more varied provision for the comforts of life. There was a Smithy for needed iron work. There was a Kiln for the drying of corn. There was a Mill in which the Monks ground their own corn into meal. There were cows and a co house or byre. There were milk-pails carried from the pastures to the Monastery on horseback. There was a Barn for the storage of grain. There was a Baker for baking the meal or the flour into bread. Moreover, it is significant that this skilled official was a Saxon. There were wheeled carts or carriages for the conveyance of heavy articles. But these early ecclesiastical communities worked the land themselves, or with the help of servants or bondmen. In Iona, at all events, their land was too small in extent to induce them to let out any part of it on hire.

But in this, as in all other cases, a different practice arose naturally out of different conditions. The Church acquired in the Middle Ages more and more extensive grants. That which conferred the island of Iona on Columba, the great Missionary of the Sixth Century, was before the age of formal Charters, and it seems doubtful whether it emanated from a King of the Picts or of the Scots. But it is curious that the most ancient notice of it which has come down to us lays special emphasis on the special feature of it 'which was novel at the time. That feature was the substitution of "Definiteness" for "Indefiniteness" in the tenure which was asked and given.' The Monks were wise enough to require something better than the vague Tribal tenures which we have seen denounced by Sir J. Davies as common among the Irish Celts.

And so throughout the Middle Ages the Church was, as we have seen, the great civilising agency in establishing security of tenure in the Ownership of land. We shall now see that the Church was the great civilising agency, also, in establishing that other kind of security of tenure which depended on written covenants and on calculated rents. Ecclesiastics became the largest landowners in the kingdom, possessing estates in many different districts— often at a great distance from the Monastery. The lands so granted could not be wholly cultivated by their own servants and bondmen as the few fields could be cultivated in the little Island of Iona. Tinder such conditions it is easy to see how Tenancies arose. For in principle there is no difference, and in practice there is a natural and inevitable transition, between cultivators paid by food or wages and cultivators paid by being allowed to retain a certain portion of the produce. Nor, again, is the transition less easy or less inevitable from this condition of things to that in which the cultivators undertake their work for a definite term of years, and on definite conditions as to the amount they are to pay in produce, or in the price of produce, or in services, or (as was often the case) in all three forms of rent. In all cases the essence of the transaction is the same. The Tenant gets from the lord or Owner of the soil that one thing which he himself has not, and could not otherwise get—namely, the assurance of full possession and of the sole right to cultivate. This full possession and sole right to cultivate was to exclude all other men. This exclusive possession was the one essential element of the whole transaction; it was this for which the holder of it was too glad to pay. In the enjoyment of it he was to be protected and defended by the Owner whose alone it was, and who alone could lend it and assure it to another. Very often the Owner gave or lent other things besides this. But this exclusive enjoyment—this peaceful possession even when it stood alone—was that for which the Tenant or holder was always willing to pay a portion of the produce as its price or rent.

Very often—generally, indeed, in very early times—when the actual cultivators were very poor, the Owner of the land gave or lent something more than the mere possession of the soil. He lent also the instruments of husbandry, and the cattle, sheep, or goats, or other stock, which yielded perhaps the greater part of the whole produce of the land. This is still the footing on which land is let in no small part of Europe under what is now called the Metayer system, and which in Scotland was at one time very common, under the name of "Steelbow." But with the progress of wealth and of the population of free men, it became more and more possible to let land on definite Leases to a class of cultivators having sufficient capital of their own to furnish the necessary stock. The transition, here, as in other cases, was natural and easy, since Leases had been common under the Roman law, and the Ecclesiastics, who first made such covenants, must have been more or less familiar with the customs of their brethren in the south of Europe.

But as we had to go a long way back in order to understand the language of the early Charters, so in like manner we must go a long way back in order to understand the terms of the earliest Leases. I have already alluded' to the various causes which had led among the Celts to the same division between Freemen and Serfs or Bondmen which had been equally established among the Teutonic races. Sentiment and poetry combining, not with knowledge, but with the want of it, has been spreading popular impressions on this as on other kindred subjects which represent some great distinction between Scotland and England, and especially between the Highlands and the Lowlands, in respect to the prevalence of Bondage. It seems to be supposed that there were no Bondmen among the Celts as there were in abundance among the Saxons. This is one of many similar delusions which is at once dispelled by the slightest examination of the best ascertained historical facts, and the most authentic documents. The earliest Tribal laws and usages of the Celtic races, whether in Ireland, in Wales, in Galloway, or in Scotland proper, are permeated through and through with the precepts and principles of a rude jurisprudence founded entirely on lines drawn between the Bond and the Free. The scale of fines for the murder or homicide of the different orders and classes of society was a scale having this great line of division as its base line. The scale of dues exacted by the Chiefs upon marriages among the people subject to them, is also a scale which was graduated upwards from the number of cattle due on the marriage of the daughter of a Serf. For every word in the early Saxon language which designates any due, or fine, or exaction of a rude and unwritten Feudalism some corresponding word is to be found in the various dialects of the Celtic language which prevailed over Ireland and Wales and Scotland.' How great was the difference of value set upon the life of a Freeman, and the value set upon the life of a Serf or Bondman among the Celts of Scotland may be estimated by the fact that when David i. thought it expedient to give a formal sanction to the customs of his Celtic subjects all over Scotland, he thereby sanctioned a scale of fine for slaughter or homicide which ranged between 1600 cows for a Prince, 100 cows for a Thane or Chief, down to 16 cows for the slaughter of a "Carl" or Serf. The "merchet" or due on marriage of women showed less difFerenceas the scale ranged between calf and 12 cows. Yet these most rude and unequal laws are specially recorded, not as the relics of Saxon Serfdom, but as the then existing and living usages of the Celtic races—the "Brettons" of Strathclyde and the "Scoti" in whom all the Celts had been merged north of the Clyde and Forth. But one of the most significant facts showing how much the poorer classes gained by the gradual disappearance of Celtic customs in respect to Bondage, is this—that under those customs it is evident that there had been established precisely the same connection between Serfdom and particular areas of land which led to such ruinous results in Prussia. In one of the fragmentary laws which have been collected in the document called "Quoniarn Attachiamenta" there is one which shows that the mere fact of a man, his son, and his grandson, occupying certain portions of land which were known as "servile," and rendering for it corresponding services, he and all his descendants to the fourth generation became members of the servile class, and could be adjudicated to be so before an assize court.

In all this we can trace a steady stream of history running through several centuries from the wild and rough hills of Celtic Feudalism into the rich and cultivated plains of modern progress. We see passing before us the long series, and the gradual current of events which prove that the Age of Charters and the Age of Covenants, instead of having been times—as they are often ignorantly represented—of the suppression of ancient liberties among the Celts, by the introduction of foreign tyranny—were, on the contrary, times when the poorer classes of the Celtic community were gradually but steadily delivered and redeemed from very barbarous conditions, not only of Feudalism but of servitude, which had grown up among themselves. When we think of the relics and survivals of that barbarism which were still affecting widely and deeply the condition of society in the Twelfth and Thirteenth Centuries, we must estimate all the more highly those gentle but penetrating influences of civilisation which were then sapping their foundations, and before which, like snow before the breath of a southern air, they did within the next 200 years almost entirely disappear in Scotland. Moreover, we can see that it was the Celtic race which most immediately and directly benefited by the changes which were destroying Bondage. For they often remained as the poorer and the working population of the greater part of the Lowlands and of the eastern counties over the whole of Scotland, while the Ownership of the land was passing steadily into the hands of Anglo-Saxon and Anglo-Norman Lords. This fact is very clearly reflected in the early Charters and other documents in which the regular word for the Serfs or Bondmen was the "Nativi," or old native Celtic population, whilst in some Charters they are called the "Cumerlache"—a purely Celtic word which has been traced through the Irish language to the term applicable to men who cultivated "servile land." Moreover, in almost all cases in which individuals of this class are mentioned in the Chartulanes, they are designated by Celtic names.

One of the earliest steps which seems to have led to the elevation of this class out of the ranks of Bondage, was a step which, at first sight, may seem to have been in a backward rather than in a forward direction. This step was the practice which seems to have been begun by the Monks of moving the Bondmen from one estate to another for the sake of their labour in the reclamation of land. " Chattel slavery" is associated in our minds with a very inferior condition as compared with the old mediaeval Serfs who were "adstricti glebrae"—transferable from one master to another only along with the land on which they lived. And, no doubt, this would have been a backward step—if it had stood alone—or rather if it had not stood in close connection with other influences which gave to it a very different tendency. But when all those other influences were moving in the direction of freedom, the mere breaking of a bond which tied men to a certain locality was clearly in itself a gain. If the spirit of the age was to make all dues of service more fixed and definite—if service itself was coming to be measured by money payments—if sale was already passing into hire,—it is clear enough that the transferability of labour would be an advantage in itself.

This is another of the innumerable cases in which the effect of any given social or political change is entirely dependent on surrounding conditions. It is curious to observe how completely unconscious those men were who began this change, of the result to which it evidently contributed. They thought only of the infraction it involved of ancient rights and usages—and they treated it accordingly in a spirit of apology. Indeed they had to apply for special permission to the Sovereign. All this appears very clearly in the earliest documents we possess which record transactions of this kind. Thus we have a special Ordinance or Prescript of Malcolm IV. (1153-1165), in which he gives permission to the Prior and Monks of Coldingham to move "their own men," that is, their Bondmen, from the particular land on which they served to Coldingbam, for the purpose of settling that Township.' The King forbids any one to trouble them in this matter. So again in the Reign of Alexander ii. we have the same Prior and Monks purchasing for 3 silver merks a Serf, with his Sons and daughters, from a private landowner, who in his deed or note of sale takes great care to plead that the transaction was one arising out of his "great want."' And so again in another transaction of the same kind between the same Monks and a different landowner, he explains in the same spirit, that the price of 10 merks had been given to him "in his great necessity."' On the other hand we have abundant evidence that the rigidity of the old Celtic tie between the Bondman and the land on which he lived and served, was being constantly broken from another cause. The Bondmen themselves had an instinct in favour of free labour. In former times they had often eagerly sought for the means of sustenance, and for the protection which came with Bondage. But now they were perpetually escaping. "Fugitivi" became one of the recognised names for them in numerous documents of that age. Some of these documents are express mandates of the Royal authority in favour of Monasteries entitling them to pursue and recover their fugitive Serfs wherever they might be found on the lands of other men. Thus the same Sovereign, Malcolm Iv. (1153-1165), whom we have seen giving to the Monks of Coldingham the privilege of moving Bondmen from one estate to another, gives to them also a Precept commanding all men that "wherever the Prior or his servants can find fugitive Serfs justly belonging to Coldingham, they shall have them justly, without disturbance or trouble, and I forbid that any of you detain them unjustly."" Thus again in a later reign, that of Alexander ii. (1214-1249), we have that Sovereign issuing a similar Precept in favour of the Abbot of Scone, "or his serjeant," and in this case Serfs or Bondmen are designated by their ancient Celtic designations of "Cumlaws and Cumherbes," and they are described as "belonging to the lands of the Abbacy of Scone."'

In all these transactions for the purchase of Serfs, and for reclaiming them, the Abbots and Priors of these days were acting for the best. Not only were they working hard at the Improvement of the Country, but they were bringing the sweet influences of Christianity and the civilising traditions of the Church to bear upon the relations between all those powers which then represented Capital, and all those persons who then represented Labour. Just as for centuries they had been the great instruments in checking the exactions of" Mormaer and of Toiseach," so now they were not less active in raising the condition of that lowest grade in Celtic society, the "Cumlaws and the Cumherbes." When they got these Serfs into their possession, they settled them on their lands with commutation and limitation of the services which they had before been bound to render. The old Columbite principle of changing the Indefinite into the Definite, which puts an. end to so much that is picturesque and sentimental, but is nevertheless the very foundation of everything that is civilised and free, was the principle for which they worked, and which they gradually succeeded in establishing.

On this subject we have some detailed and most interesting information. The Rentals and the Journals of several of the Monasteries during the Thirteenth Century have been preserved, and particularly those of some of the great Monasteries of Teviotdale. Thus from the Rental of the Abbacy of Kelso in 1290 it appears that all the agricultural class whom they settled on their Estates, whether they had been Serfs or Freemen, were held liable—not to "Cosherings" or "Cuttings" or "ilostings" or "Conveth" or "Caulpes," or any of the other old Celtic exactions, but to fixed rents in money, together with services limited to a certain number of days, or to the doing of certain definite things. Thus each Cottar paid from one to six shillings a year, with services not exceeding nine days' labour. The tenants of certain Crofts paid each two Bolls of meal, and were bound to shear the whole corn on a particular set of fields. Again, on other holdings of a large size, the tenants were bound to pay, Gs. Sd. of money rent, and to render certain services in harvest, in sheep-shearing, in carrying peats and wool, or in fetching the Abbot's commodities from Berwick. These arrangements seem all to have been settled by mutual agreement and stipulations, and they were so precise that they fixed even the services in which the husbandman was to have his food from the Abbey, and those in which he was to maintain himself.

Nor is this all. The same penetrating spirit of reform, in substituting fixed dues for vague and semi- barbarous usages, extended to every department in the management of their large estates. These often included great extents of mountain-pastures which could only be grazed by sheep. For these the Monks made careful arrangements as to folds, as to huts or bothies for the herds, and as to shelter for the cattle. The evidence of full and complete powers of property over the whole area, which we have seen to be so striking in the wording of these Charters does not rest on that wording only—but is equally confirmed by the daily life and the multifarious transactions of estate management. The frequent transference of lands from one Tenant to another - the settlement of disputed marches—and the precision and care bestowed on Leases, show that the fundamental conditions of all, agricultural improvement were being rapidly established by the Monks, in the consecration of the freedom of labour, and of corresponding freedom,—of order and legality —in the exercise of the fullest rights of property.
When we consider the number of these Monasteries which were founded in Scotland during the Twelfth and Thirteenth Centuries, from the beginning of the reign of David I. in 1124 to the death of Alexander III. in 1286, and when we consider further the ubiquity of their landed possessions, both in the Lowlands and the Highlands, we may be able to form some estimate of the influence they had in spreading everywhere the same rules of conduct, and the same principles of law. There was no difference whatever between the various parts of the Kingdom which were then Celtic or non-Celtic in different degrees. Many parts of the country which are purely Anglo-Saxon now were as purely Celtic then, whilst throughout the districts which we now call Highland the great possessions of the Church were universally managed on the same principles, and were directed from local Monastic centres. Paisley had lands all through the Lennox and Argyll;Scone and Cambuskenneth and Dumblane, through Strathearn and Menteith; Dunkeld through the Central Highlands; Elgin and Inverness and Beauly throughout the northern mountains, and all along the broad sea-margins of the North-Eastern Coasts. And then, besides the lands held by the Monastic bodies, the old Episcopal Sees of Scotland were endowed with large estates. All of these exhibited the same principles of management, to which the old native methods were all steadily conforming. So far from the native Celtic population complaining of the full powers of Ownership exercised by the Monks in the regulation of their estates,—so far from feeling this to be harsh as compared with the older systems practised under their native Lords and Chiefs,—that population, and every population brought into contact with the Monasteries, were eager to come under their protection, and to exchange the heavy and incalculable burdens of Celtic Feudalism for the moderate and rational obligations which were founded on Covenant and on intelligible Law.

Part of the great benefits eagerly sought for by the people in coming upon ecclesiastical lands depended, of course, upon the special privileges and immunities of the Church from all the exactions which arose out of the obligations of military service. But another part-----and a very great part —depended on the fundamental change which lies in the passage from vague unwritten customs to written agreements. And this unspeakable benefit extended gradually but steadily, and on the whole rapidly, beyond the limits of Church Estates. The Anglo-Saxon, and the Scoto-Norman Earls, and Chiefs and Knights, imbibed the spirit of their age, and dealt with their Tenants on the same principles on which they placed so high a value in their own Charters from the King. The very word Charter has come to be associated in our ears with the conceptions of security and of law. It was the Instrument to which every Civic Community and every Owner of land equally looked as their tower of defence against arbitrary Sovereigns. Just as every Burgh in Scotland proceeded on the strength of it to develop its trade and commerce, so, "armed with it, and supported by the law, Norman Knight and Saxon Thane, and Celtic Chief, set himself to civilise his newly acquired, or his newly confirmed property, settled his 'vii' or his 'town,' built himself a House of Fence, distributed his lands among his own few followers and the "nativi" whom he found attached to the soil, either to be cultivated on his own account or at a fixed 'ferm' on the risk of the tenant."

Among the historical facts which indicate this great line of advance in the path of civilisation, one of the most interesting is that afforded by the arrangements made by Alexander iii. for the marriage of his daughter the Princess Margaret to Eric, the young King of Norway, in 1278. This was the mother of the Princess whose early death subsequently gave rise to the Disputed Succession, and ultimately to the War of Independence. Her portion was to be 14,000 marks, but with an option to her father to give one-half of this sum in Scotch Estates. Provisions of this nature of course implied a well- known and ascertained relation between a definite extent of land and its annual revenue; and this relation, again, could only be established on the foundation of rents in money, or in produce commutable into money, which were not dependent on vague customs or exactions, but upon Covenants and agreements such as could be relied upon for a steady income.

Accordingly we have historical evidence that these Covenants and agreements had been embodied in the form of written Leases at a date almost as early as the earliest Charters. One of the oldest upon record is dated 1190, and conveyed the Tenancy of certain lands from a Lay Owner to the Abbacy of Kelso. The system rapidly extended. Every kind and species of property came to be let on hire for specific terms, and for specific rents—farms, mills, breweries, houses with crofts, houses in towns, titles, annuities secured on rents, dues, customs, and even the use of woods. In short, everything and anything which men could own they could also either sell or let out on hire.' All this came naturally, and as a matter of course. Such transactions arose and multiplied with the security of property, the peace of society, and the advance of civilisation. Towards the middle of the next century after the earliest recorded Lease to the Abbacy of Kelso, in 1242, and again in 1296, the lettings of land on Lease had become so common on Ecclesiastical Estates that Provincial Councils of the Church. drew up canons on the subject, having for their object to limit the duration of Leases granted to laymen to the maximum of five years.

But although these and other transactions of a similar kind make it evident that the system of letting land on hire for definite rents had become well known and universally established long before the close of the Thirteenth Century, it so happens that whilst we have many much earlier Charters, no actual specimen of a written Lease has been preserved which is dated earlier than the beginning of the next Century—the Fourteenth. But this oldest specimen. is in the highest degree interesting and instructive.
It is an agreement or contract between the Abbot of Scone and two gentlemen, father and son, whose name was de Hay del Leys, for the Lease of certain lands near Perth. The only peculiarity in the case is that the Monastery of Scone had itself no chartered tenure of those lands. They were held only at the pleasure of the King. It is evident that the Monks considered this pleasure to be safe enough. But the possible contingency of being deprived of it had to be contemplated and provided for in the Lease. It is dated 1312—two years before the battle of Bannockburn. In many ways this document is remarkable. In the first place, its business-like and definite legal form indicates clearly enough that, although it happens to be the first of these Covenants which survives, it must have been drawn out on principles and on practices, if not in a form, which had been long familiar. There could not be a better example of the undivided powers then involved in the Ownership of land, and of the perfect freedom which governed the relations between those who desired to let, and those who desired to hire, the exclusive right of cultivation. Moreover, it is remarkable in this—that the terms of the contract are in their nature those which have come to be designated as an "Improvement Lease" —that is to say, a Lease under the terms of which the Lessee was only too glad to execute improvements upon the land, and to pay for, and out of, the increasing produce some specified share of that increase in the form of rent. He was not bound to improve, but it was assumed that he would do so from self-interest. On this assumption he was bound to pay an increasing rent—the steps of increase, however, being fixed and definite. In order to pay this increase he would need to increase the produce. There was no other compulsion in this particular case. But it was enough. In the loose language of modern agitation the Tenant would have to pay this increase. "upon his own improvements." But 574 years ago men understood the principles of business better. The Tenants felt and knew that "their own improvements" had to be made "upon," and out of, materials, and opportunities, and guarantees, which were not "their own," but came from other men. All these came from the Owner of the soil. They constituted a kind of Capital which the Tenants did not possess, and it was in the nature of that Capital to - yield a very large return to certain kinds of labour,—provided always, and provided only, that the tenants got the assurance and security of posses- sion exclusive of all other men. But this security and exclusiveness could only be got by bargain with the Owners. Therefore the Tenants felt that their own improvements could only be "their own" in part, seeing that another great part of the result must be derived from, and be due to, the Owner. To him, accordingly, the cultivating Tenants were always ready to render back in rent some stipulated share of any resulting increase. In calculating what that share might be, time was an all-important element. On the length of exclusive enjoyment must depend the share of increased produce which could be afforded. In, this case the term was for thirty years. The rent was to begin at two merks for two years; to rise to three merks the third year, and so on, one merk more for each year till the sixth. Then for the six following years it was to remain at six merks—that is, until the end of the twelfth year. Then for the eight following years to the end of the twentieth year the rent was to be eight merks; and then for the ten remaining years of the term it was to be ten merks. Besides this rent they were to grind their corn at the Mill of the Convent, and to pay the usual dues on this necessary service. They were to be at liberty to cut fuel (peat) on the farm ; but for their own use only, and were strictly prohibited from selling it. The Convent retained its right to pasture its cattle on the common grazing, and to cut fuel on "the moors and marshes" when they shall have need. The Tenants were further bound to build on the farm competent buildings for themselves and their husbandmen, which they were to leave so built at the end of their term; and, finally, in case of the Convent losing the land by any revocation of the royal gift under which alone they held it, the Tenants were held bound to leave the farm along with their Husbandmen, and with this specified compensation, namely, the abatement of one year's rent for the year in which they might be so dispossessed. But the teachings of this Lease are so many and so important that, as in the case of the early Charters, I think it best to present it to my readers in full :-


Son (1312).

IN the year of grace 1312 was made this agreement between religious men. Lord Thomas by the grace of God Abbot of Scone, and convent of the same place, on the one part, and Edmund de Hay del Leys and William his son, on the other part, namely, that

The said Abbot and convent have granted and to farm (rent) let all their land of Balgarvi, with all pertinents, and their right marches,

With which husbandmen were wont to hold the same land to farms (rent)

To the said Edmund and William his son, and the heirs of the said William of his own body lawfully, directly, immediately, lineally, and not collaterally to be procreated, and descending until the term of thirty years following fully complete.

Paying therefor yearly the said Edmund, William his son and the heirs of the said William, to the said Abbot and convent, the first year two merks of good and legal sterlings, namely, one-half at the feast of Whitsunday, and the other half at the feast of St. Martin, in winter: the second year, two merks at the terms before noted; the third year, three merks; the fourth year, four merks; the fifth year, five merks; the six year, six merks: and for the six years immediately following, namely, till the end of the twelfth year, they shall pay six merks every year at the terms before mentioned, and for eight years immediately following, viz., till the end of the twentieth year, they shall pay eight merks every year; and for ten years immediately following, viz., till the end of the thirtieth year, they shall pay ten merks every year of good and legal sterlings, at the terms before noted.

The term of entry of the said Edmund and William to the said land beginning at the feast of Whitsunday, the year of our Lord 1313; the term of their first payment beginning at the feast of Whitsunday the year of grace 1313.

And the foresaid Edmund, William, and heirs of the said William, shall do suit at the court of the Abbot three times in the year, at the three head pleas, their husbandmen shall do suit at all the pleas of the said Abbot, to be held within the barony of Scone.

And the said Edmund, William, and heirs of the said William shall come to the Mill of the said Abbot and convent of Kyncarroqui with all kind of corn growing on the said lands of Balgarvy, which they shall grind for their sustenance, and shall there give the twenty-fourth "vas" (peck) for all- saving the right of those that serve at the mill (as knaveship):

And their men and husbandrnen and their cottars shall give the sixteenth "vas" (= peck) of all kinds of corn growing on the said lands of Balgarvi, as the other husbandmen and natives of the said Abbot and convent:

Also both they and their tenants shall do towards the preparation and upholding of the said mill in all things as other husbandmen in the neighbourhood.

And the said Edmund, William, and heirs of the said William, shall do the forinsec service of our Lord the King so much as pertains to the said land, and they shall sustain all other burdens in any manner of way touching the said land till the end of their term foresaid.

And the said Edmund, William, heirs of the said William, and their men dwelling on the said land of Balgarvi shall take fuel from the common for their own use only, neither shall they sell therefrom, give or alienate in any other way, unless from their arable land, which it shall be lawful to them thence to take, give and sell.

Reserving to the said Abbot and convent and their successors in the common pasture of the said lands the usufruct for their animals; in moors and marshes for taking fuel when they shall have need.

And if disputes, trivial and not grave, shall arise among the men of the said Edmund, William, and the heirs of the said William, they shall decide and correct them among themselves, but if there shall be greater differences, and pertaining to the lordship, such ought to be reserved for the court of the lord Abbot, there justly to be determined:

Reserving in everything the lordship to the said lord Abbot: And the said Edmund and William and heirs of the said William are bound, without dissimulation, to agree to the counsel and assistance of the said Abbot and convent when required.

And if our Lord the King shall happen to revoke the gift of the said land from the said Abbot and convent, the said Edmund, William, heirs of the said William, and their husbandmen, shall quit without paying the rent of the year of their quitting.

And the said Edmund, William, and heirs of the said William, shall cause to be constructed on the said land of Balgarvi competent buildings for themselves and their husbandmen, which they shall leave so built at the end of their term.

In witness whereof . .

the common seal of the chapter of Scone is appended, and the seals of the foresaid Edmund and William are appended.

This Lease exhibits all the essential features of the contracts between free men for the hire of land which, down to our own time, have for the long period of more than 550 years prevailed in Scotland, and which, the moment domestic peace and security returned to any portion of the land, resulted in an extent and a rapidity of agricultural improvement which has never been surpassed in any country. The secret of the success of these. Covenants lies in their definiteness, and with their definiteness, in their justice. The particular stipulations might vary infinitely according to the nature of the subject let. The term of years might vary from five to nineteen, or thirty, or the term might be for a life, or lives. There might or there might not be a bargain about improvements. It depended obviously on the cheapness or dearness of the rent whether improvements would or would not be remunerative within a given time, and without any other compensation than that secured by the increased production arising out of them. This, too, was generally a matter of express stipulation. In the Lease now referred to, the houses built were to be left without any compensation. Probably the houses of that time were made of turf and wattles. But in many other cases the Leases provided for the payment of what were called "meliorations "—that is, for the value of improvements of. a special kind. Sometimes they provided for an optional "break" in the Lease at seven years, or some other period short of the full term, and specified that the "meliorations" should be due to the Tenant only if his enjoyment ended at the shorter term, and should be extinguished if it lasted to the end. He could thus calculate securely how far his outlay would he returned. Again, as regards another great source of value in the Middle Ages—namely, dues in the form of labour—there might or there might not be an exaction of services in labour, besides a rent in money or in produce. But the one essential feature in all such lettings by Lease was that every stipulation was as definite and precise as possible. Both parties knew exactly what they were agreeing to. If services were included, the amount and nature of the work to be done were generally specifically mentioned. Already, in the previous century, the Thirteenth, we find from the Rental of the great Abbacy of Kelso, that the Monks had introduced the same principle of definiteness and precision into their arrangements, even with their Husbandmen, who had no Leases, but who were only Tenants at Will.

It is to be observed, however, that these Covenants were strictly confined to the relations between the Owner and the Tenant, or, as the Lease-holding tenant came to be called in Scotland, the "Tacks- man,"—"Tack" being the name for a Lease. No notice whatever was taken in most of these Leases of any class of men subordinate to the Lease-holder or Tacksman. The full powers of exclusive possession for the purposes of cultivation which the Owner enjoyed, as a necessary part of Ownership, were lent or granted, on the stipulated conditions and for a given time, to the Lessee who hired them. He had full power over all inferior or subordinate occupiers, if any such existed. In the case of this earliest extant Lease, given by the Abbot of Scone, we have some very clear and very interesting intimations on this matter, which is one of the highest historical importance. In the first place, we learn that the land or Farm which was granted on Lease to Edmund and William de Hay del Leys had previously been rented by Husbandrnen, or actual cultivators, who "were wont to hold the same land to farms" (or rent). It is certain from this recorded fact, that when these lands were granted to the Abbey, this grant (until revoked) was not merely a grant of a rent charge, or a mere grant of grazing, but a grant of such undivided Ownership as involved the right of the Abbot to re-let the land to whom he would. The former "Husbandmen" were therefore not Serfs or Bondmen, who were irremovable from the soil; neither were they free Tenants with any rights of occupation which prevented the land being withdrawn from them. In the second place, we see that the new Leaseholding Tenants were expected, as a matter of course, to bring fresh Husbandmen of their own, who are variously designated as "their men," "their husbandmen," and "their Tenants." In the third place, we see that certain stipulations of the Lease assume that over these men the Tacksmen had complete power to compel them to pay certain services for the upholding of the Mill, and for the paying of a higher rate of meal-tax for the grinding of corn than was to be paid by the Tacksmen themselves. It appears further that this obligation in respect to keeping up the Mill was a common obligation upon all the Husband- men of the neighbourhood. Lastly, there is an express condition that the actual Husbandmen or cultivators were to remove from the land along with the Tenant himself at the termination of the Lease. This was evidently the common practice and usual stipulation of that day. It was probably an absolute necessity for the improvement of the soil then largely waste. The native cultivators were probably then, as we shall see they were in much later times, wedded to barbarous usages, or too ignorant and too poor to be improvers. They might or they might not be mere servants or bondmen. They were the "agricol" of the old Chroniclers, the "bondi" and "nativi" of the earliest Feudal Charters. They were regarded as yearly tenants, and in the eastern districts of Scotland they were often the remains of the old Celtic population.' But, whatever their status was, whether bond or free, it is clear that they were not recognised as then having, either by law or custom, any right of occupancy in restriction or limitation of the full right of Ownership. If they cultivated any land at all for their own use, which in this case they were clearly expected to do, it must have been only as sub- tenants at will of the "Tacksman" or Lessee, and as he could not give any possession longer than his own, they were to leave the farm when he left it. The power of sub-letting was itself generally a matter of express stipulation. Sometimes it was specially allowed. Sometimes it was specially prohibited. When there was no stipulation it seems to have been considered as allowed.
There is one other stipulation of this Lease which incidentally casts an important light on another question of much interest—namely, the exact position under such Leases of the common grazings of the country. We have seen that under the Charters special care was taken to enumerate and include every variety and kind of surface—whether in woods, or in mosses, or in meadows, or in mountain pastures. It followed as a matter of course, and indeed of necessity, that when portions of such lands were let, and divided from each other by definite "metes and marches," whether these were natural or artificial, the whole surfaces within those marches were equally the subjects of the Covenant. The grazings, as dis tinguished from the comparatively small areas of enclosed land, were often the most valuable portion of the subjects let. They continued to be "common" in one sense only—namely, that like all other pastures in that time, they were used promiscuously by the Tenant and by all his Sub-tenants or Husbandmen. But the Tacksman alone had the power of disposing of them, and of regulating the use of them among his subordinates. So absolute and exclusive was this power, that the Chartered Owner himself had no right whatever to use those pastures after he had let them, unless by express reservation in the Lease. Just as he parted with his exclusive right of possession over the arable land in favour of his Lessee, so also did he part with his rights of grazing, except in so far as by express stipulation he might reserve a share. Hence the clause in this Lease which expressly reserved to the Monastery their right to pasture their cattle upon the common grazings of the farm of Balgarvie. The word "common" referred to the method of use, not at all to the principle of tenure. It was assumed that the Lessee would have as complete power to exclude the cattle of the Owner as to exclude the cattle of all other men, unless the Owner took care to preserve, or to reserve, some portion of his own rights in this matter.

At this time, it is to be observed, the principles embodied in the Lease rested on no special legislation, but on the much stronger foundation, first, of the acknowledged rights involved in Ownership, as these had come to be developed through the course of many centuries, and secondly, of the correlative right of all Owners either to sell or to let their property to any men, and on any conditions, whether of purchase, or of hire. All Charters, as we have seen, had taken these rights for granted, and they had grown up so naturally and so reasonably, and so much as a matter of necessity, that they required neither definition nor support. Moreover,, it is quite certain that as we have traced the spirit of precision which more and more governed the form of Charters to the influence of the Latin Church and the principles of the Roman Law, so it is even more certain that the same spirit as applied to Leases was derived from the same copious fountain of all the elements of Justice and of Civilisation.

Under the Republic land was constantly let on hire, and the Contracts of Leases were among the most familiar of all legal instruments. No actual copy has survived, but the leading stipulations are accurately known. They regulated the rent, which was fixed or definite, either in money, or in produce, or in service. They regulated the duration of the tenancy, which was always definite also, and often short—most commonly not more than five years. They regulated also the devolution of the Lease to certain Heirs. They regulated, moreover, the kind of husbandry and the succession of crops—so as to secure the Owner against the losses which so often arise to Owners from the misuse of their property by bad husbandry. They regulated also the power of sub-letting. There was, in short, under the noble jurisprudence of the noblest people that have ever ruled, perfect freedom of contract between Free Owners and the Free Hirers of Land.

Under the Empire the number of Leases declined, because Freedom declined also, and the number of Free Men. It had already become more and more the custom to cultivate great estates by Slaves. They of course did not hold under contract, nor were the dues they paid in the nature of a rent. They were allowed to keep certain portions of the produce—enough to sustain their life, and to suit their servile status; but nothing near the proportion of the total produce which fell to the lot of Free Tenants under the system of Covenants. More and more as the Free Population of Italy became exhausted by constant and decimating wars, this system of great extents of country cultivated by Slaves extended itself, and was the symptom rather than the cause of evils which were sapping the foundations of the Empire. It was to this system that Pliny referred when he spoke of "Latifundia" as having "ruined Italy." By a most ignorant perversion of historical truth, this passage has been quoted over and over again as applicable to large Estates in modern Europe, and especially in Scotland. Yet the two systems of management were not only different in their origin and in their nature, but they were the antithesis of each other. Slavery never did exist in modern Europe on the scale or of the character which prevailed in the Roman Empire. There was, indeed, Serfdom and Bondage, and as we have seen there were a few scattered and individual cases in which the sale and purchase of individual Serfs with their families were just enough to show how easily under less happy auspices the institutions of Serfdom might have passed into genuine Slavery. But the line of movement in society was not towards the extension, but towards the extinction of it. The greatest of all Landowners, as we have seen, the Church, worked steadily against it. All other Landowners followed in their wake, and before the end of the century in which the two Hays received their Lease from the Abbot of Scone, Serfs and Bondmen had practically disappeared from Scotland, and the system of free Tenants holding under free Covenants had become the established usage of the country.

Those who mistake or mis-state the facts on this great question of the comparative extent and on the comparative character of Slavery in the old Heathen and in the modern Christian world, are either ignorant or careless of a distinction which is fundamental to all right understanding of the history of Mankind. Some of those facts are indeed so strange to all we have either seen or heard of since the Christian era that they seem hardly credible. At least it is most difficult for us to realise the conditions of society which are authentically known to have prevailed in the Roman Empire, or even in the later days of the Republic. Slavery was at the root of everything. It was the basis of society so far as all labour was concerned. Some rich men possessed as many as 20,000 Slaves, the majority of whom were Field Labourers. Crassus is said to have had 500 "head" alone as his corps of builders and carpenters. Slaves are said to have been as three to one of the whole free population at the opening of the Christian era, and for 200 years later. So early as the times of the Gracchi they were displacing the free rural population, whether small proprietors or free labourers. Nor did this great curse affect the rural districts only. Freemen were crowded out of the Towns, as well as out of the fields, by swarms of Slaves. Their labour was displaced, and their number diminished. Little more than a century after the death of Pliny, agriculture had so declined that Italy could no longer support its own population, and the Emperor Commodus organised a regular fleet of vessels so large as almost to correspond to our modern idea of a "Liner," by which the harvests of other lands might be carried to the Tiber. Rome came to be supplied in abundance with corn from Carthage and from Alexandria, from Palermo and from Cadiz, and from all the ports of the world accessible to the great grain ships—from 1000 to 1300 tons burden—which were employed in the trade. The free farmers and free labourers were thus undersold from abroad, whilst at the same time they were undersold at home by the cheap labour of slaves who were exempt from military service. These were spread over large tracts of country. The free population disappeared. This was the cause, and this was the nature of the evil which was denounced in the word "Latifundia." The most learned man, perhaps, now existing in Europe has examined this subject with the conscientious care which is always equal to his great resources. He shows how Slavery had undermined Freedom not only by way of the displacement of labour, but by way of the corruption of opinion. Even in the mind of such a man as Cicero, it had stamped as servile and unworthy a multitude of employments, which in themselves are as noble as any other forms of industry. "It was thus," says Dr. Dollinger, "the sturdy, industrious middle class was lost to Rome. The free population consisted of proletarii, living in republican times by the sale of their votes, and under the Emperors upon the public distribution of money and corn; degraded and demoralised they were despised by the rich and assimilated more and more to Slavery. . . . The Roman people was, though Slavery diminished, depraved, and utterly changed to its heart's core. The genuine plebeian stock had in reality ceased to exist. Already by 150 B. C., Scipio iErnilianus had taunted the grumbling populace with the assurance that he should never tremble before those whom he had himself brought in chains to Rome. It was not the 'Latifundia,' as Pliny thought, but Slavery that had ruined Italy: had the Latifundia been peopled by Free Tenants the consequences would have been different."

This difference between the Roman Slaves and the Free Tenants of modern Europe is a difference indeed. To confound the Latifundia of Pliny's time with the great Estates of Medieval Barons is a blunder which is excusable in platform orators, to whose speeches the quotation of one Latin sentence gives a tinge of learning. But it is inexcusable in men who care for sound reasoning, or for the truth of History. In no part of modern Europe did the evils of the Roman Latifundia arise. In no part of it were they even possible. But in Scotland perhaps more than in any other country, the holders of great Estates at this time were the Leaders of the Nation not less in the progress of civilisation than they had been in winning National independence. It has been well said both of the New Owners and of the Old Owners with a new title, that they were of the progressive party. Their own interests, their own powers, their own aspirations—all combined to make them so. Their territorial possessions could not be used except by sharing them with others. Parts they granted in "Feu-farm" to kinsmen, to friends, and to retainers. Parts they let to Tacksrnen on different conditions of Lease. On parts they kept the native Husbandmen, supplementing their resources by lending them seed, cattle, and other stock; whilst again other portions of their land they cultivated themselves by hired labourers. The whole of these were Free Alen, constituting a gradation of classes, founded on free dorn, and manly dealings with each other between diverse ranks. All this was the very converse of the processes and causes which ruined Italy. The nearest type and image of them in the world which arose on the ruins of the Roman system, is to be found not in the great Baronies or Estates which were chartered with us in the Twelfth and Thirteenth Centuries, but in the territories which were then still subject to those unwritten usages of Celtic Feudalism which Chartered rights of Ownership had happily superseded. That older and ruder Feudalism had been from the beginning largely founded upon Bondage, and it still subjected men who were nominally free to arbitrary exactions, so vague, so various and so enormous, that it was impossible to calculate on the secure enjoyment of the fruits of industry. The change which took place in the passage from these usages to such written Covenants as that which we have examined, was a change as deep and searching as it was beneficent.

Accordingly we find that everywhere over the whole of Europe the influence of the Latin Church led to a return to those better and earlier practices of the Roman people which consisted in the letting of land to Free Tenants under Covenant, and which had never ceased to be recognised and sanctioned under their noble jurisprudence. Probably even in the worst of times it had never wholly ceased, for there must have been many places and many circumstances in which Slaves could not be found, or could not be trusted to be the sole cultivators of landed property—especially when that property lay in distant Provinces of the Empire. Thus we know that the Sicilian Estates of the feeble Rulers who still represented the Western Empire among the marshes of Ravenna, were, in the middle of the Fifth Century, let to Free Tenants on Leases with all the definite covenants usual in modern Estates.' As we advance towards the Middle Ages, we see that the Lessees of all ecclesiastical lands were generally free cultivators; and towards the end of the Thirteenth Century we have a French Treatise on the customs of a portion of that country, from which it appears that lands were let under precisely the same word used in Scotland about the same time— namely, the word "ferme"—meaning a fixed rent agreed to upon a series of fixed conditions.' In Germany the progress of events was not so steady in this direction. Serfdom lasted longer. There were stupid and antiquated limitations of land to particular classes, and there was a fatal preference of old usages, which are always tending to abuse, over perfect freedom and definite agreements between free men, which are always open to re adjustment. These were undoubtedly among the causes which led to the fall of Prussia. She did not recover till means had been taken to abolish the abuses of a traditional and unwritten Feudalism. And it is remarkable that when Stein was studying the reforms which he afterwards promoted, he took as his model, and as the goal at which he aimed, those happier developments of Feudalism under Anglo-Saxon and Scoto-Roman law which he saw established in Great Britain.

We strike deep, then, into the very roots of modern history, and into the very sources of our civilisation, when we examine all that is implied in this Lease given by the Abbot of Scone in the earliest years of the reign of King Robert the Bruce. Like the Charters it may be said that Leases rose out of the ground, and grew. They were far more deeply founded than on any local legislation. They sprung from the seeds of freedom, sown in the fruitful soil of Roman Law, and trained, as regarded their form and development, under the conscientious direction of the Latin Church. Nay, it may even be said with truth that the original source of these Covenants lay deeper still. For the foundations of morality are the common property of all mankind. The obligation of a promise is an elementary obligation. The faith of Covenants is universally recognised as a faith which cannot be denied. Strange to say, the value of it to society has never been more picturesquely or forcibly described than by the oldest known code of Celtic Laws. For in the "Brehon Laws" we are told that "there are three periods at which the world is worthless: the time of a plague, the time of a general war, the dissolution of express contracts."

Sir Henry Maine has referred with some incredulity to this sentence as seeming very like a later introduction.' In this I venture to disagree with him. The whole method of expression is thoroughly Celtic. The words translated "express contracts" do not accurately convey the meaning of the original, and might suggest to our ears the idea of written documents. This would indeed savour of a later age,—of formal "deeds" and parchments. But the Celtic words here used are full, on the contrary, of that archaic time when there was nothing more binding than the spoken word—the promise of the mouth,—accompanied or unaccompanied by some symbolic act. Accordingly, the Celtic words used in this passage of the Brehon Laws, which have been rendered by the English words "express contract," specify the method of expression as the oral method—" contracts made by word of mouth." I find, moreover, that there are some idiomatic phrases in the Scottish Gaelic in which the same word "Cor"—not now in common use—is still retained as expressive of a possessory right in the strongest possible sense. A Highlander will say, pointing to something which he thinks belongs to him, "that is cor to me," meaning, "that is my right." The whole passage, therefore, instead of having a modern aspect, is redolent, on the contrary, of very archaic times. There can be little doubt, indeed, that those who wrote it were not thinking of Covenants about what we call the hire of land. But there can be just as little doubt that they were thinking, and must have had familiarly in their minds, Covenants about the possession of cows, and about the grazing of them, and about the division of their calves, and about the sharing of their milk, and generally about the services which men were willing to promise to each other, for any and every kind of benefit rendered to themselves. All this is the same thing. Just as cattle stood in the place of capital in those early days, so did they stand in the place of farms, and all bargains between man and man about them were fundamentally the same as the bargains which were made in later times about the share of cattle, or of other produce which was commuted into various forms of rent. The introduction of this passage, therefore, into the Brehon Laws does not necessarily indicate, or even naturally suggest, any foreign element other indeed than those earliest echoes of Celtic Christianity in which we hear the missionaries of the New Testament repeating and enforcing the divine teachings of the Old.' In the writings of the Jewish Prophets we see always the same conception—that the mouth is the organ of the mind and heart in their deepest issues of Thought and of Intention. The solemn promise—the sacred vow—is always spoken of as recorded by the lips. Thus amid the splendours of the sixty-sixth Psalm we have the words—"I will pay Thee my vows which my lips have uttered, and my mouth hath spoken, when I was in trouble." And so also, in respect to the great duties of Worship and Devotion the "fruit of the lips" is spoken of as our truest and most acceptable oblation. Such are the real fountains of the fine old proverb in the Brehon Laws which ranks the breaking down of personal honour and good faith in the keeping of engagements as among the heaviest calamities of mankind. This is its true connection; for the same passage goes on to represent the great practical duties of Charity and of Religion as the best guarantees against the three enumerated evils. And when it is added that these duties "confirm all in their good contracts and in their bad contracts," we recognise the influence and authority of that grand Benediction in the Psalms of David, which is pronounced upon him "who sweareth to his own hurt, and changeth not."

The Covenants, however, about the hire of land, of which we have thus seen the first example, did not need the exercise of any heroic virtue. Men did not make them to their own hurt, but, on both sides to their own advantage. The silence of their introduction, the speed of their advance, and the universality of their prevalence, are all consistent, and consistent only with the knowledge, and experience of mutual profit, or mutual convenience. And as in all other similar cases where the growth of individual interests is founded on rules of law becoming more and more definite and precise, these Covenants tended directly and very powerfully to the growth of national prosperity and wealth. The feelings and the instincts which inspired these Covenants are the real explanation of their great results. Sentiment underlies all conduct and all opinion; and the prevailing sentiment of any given time is that which directs for evil or for good the working of its practices and its laws. If that sentiment be natural unperverted, the working will be of a corresponding character. If it be corrupt, or even if it be only rude and barbarous, its working will inevitably lead to corruptions far deeper than its own. For this is the nature and property of all evil in man and in society—to lead further and further from the ascending path, by the downward steps of Natural Consequence. Thus the prevailing sentiment which has been common in many early conditions of society that war is the only occupation worthy of a man, and that all forms of industrial labour are comparatively mean, is a sentiment which has always been damaging, and very often has been absolutely fatal. Wars when waged for a noble cause have an ennobling effect on men. The mere love of fighting and of rapine has, on the contrary, an effect the most degrading. Nor is this effect redeemed by picturesque stories and martial poetry, whether they be Norse Sagas, or Gaelic songs. We have seen that the Celts under Robert Bruce were disciplined like other civilised men to fight in the very van of great battles for great national objects. But the prevailing sentiment of society in Scotland in his days, and in the old times before them, was what may be called, shortly, the Spirit of Improvement. As one Province after another was cleared of an enemy, and firmly added to the Kingdom, the next thing thought of was always to settle and improve it, by giving it to men who could hold it in security, and could reclaim it from bog or forest by their own servants, or by letting it out to Husbandmen. These classes moved and were moved freely from one Estate to another as their services or their undertakings were required. The sentiment of keeping men on the soil for the sole purpose of fighting for a bare living, eked out by raids and forays, was not the sentiment of the Kingdom or of the people in those greatest days of our national history. Robert the Bruce did indeed enact, in a Parliament held at Scone in 1318, that all men should be armed according to their rent or possessions—the humblest being bound to provide himself with at least a good Spear or a good Bow and one sheaf of (24) Arrows. But he and his predecessors were equally desirous that, when possible, the Sword should be turned into the Ploughshare and the Spear into the Pruning--hook. For this purpose they encouraged peaceful industry, and the movement of the cultivating classes from one district to another, as the great work of reclaiming a wild country might require, under the operation of natural motives and of free Covenants.

Accordingly we have historical evidence that such movements of the rural population were constant and habitual, and that they began far earlier than is generally supposed. The provisions of the Scone Lease in 1312 show that one set of Husbandrnen went out when the new "Tacks- man" came in, whilst another set came in with him when he entered, and were required to leave with him when he left. But this bit of evidence stands halfway in point of time between two other items of evidence to the same effect. One of these comes from the century before the Scone Lease, and the other from the century after— showing that we have in the Scone Lease an example of the regular rule and practice of a long and a great Age. More than a hundred years before that Lease, so early as 1209, in the Reign of William the Lion, we find that the case of Husband- men leaving their holdings at the covenanted expiration of an express term, had become a case so common that it needed special notice and recognition in respect to the heavy dues which were then raised on the grinding of corn for the support of Mills. Accordingly it was provided in a short Act of the Great Council of the Kingdom, held at Scone in 1209, that a man leaving land which he had held on Lease for a given term, "and passing away," should not be called upon to pay more than a certain limited rate of "multure" on his corn, or should, have one half of the quantity required for seed wholly exempted.' Another Statute of the same date made some corresponding regulation for the case of new or in-coming Tenants. This early care for "outgoing Tenants," and for those who came in their place, as a well-known class, is remarkable. We are apt to fancy that in those remote times agriculture was hardly yet a profession or a pursuit—that men only farmed to live, and that there were few or none who lived to farm. But from this old law of William the Lion, and from the simple and natural terms in which it speaks of a class who held lands "on farm," and who "passed away" from them at the end of their term, it is clear that this condition of things had then already become common at the beginning of the Thirteenth Century, and that all the Estates of the Realm regarded it as a natural and necessary incident of the progress of agriculture, and of the operation of free Covenants between those who owned, and those who hired land for the purposes of cultivation. Such movings and changings among Tenants might arise either from the Tenant thinking he could do better elsewhere, or from the Owner finding he could do better in improving and reclaiming through other men.

We have only to look at the Scone Lease to see how great was the work, of reclamation in those days, and how little it could be intrusted to men who mentally, if not physically, were "adstricti glebce," tied by ignorance to the idle habits and wasteful usages of a barbarous age, who had absolutely no capital, or whose industry had often been destroyed by the desolating customs of Celtic Feudalism. There was much to be done in those days in subduing the earth, and it was the first care as it was the first duty of the Owners of land to see that those things were done. How much was expected from, and how much was habitually done by, the class of men who took land on hire, and who reclaimed it for their own profit, as much as to the advantage of the Owner and of the Nation, may be judged by the scale of increasing rent which was bargained for by the Monks under the Scone Lease. Within the comparatively short space of 20 years, the Tenants in this case became bound to pay ten merks instead of two merks for the same amount of land. That is to say, that the calculated increase of value, measured by rent alone, was to be 500 per cent. Beyond all this, of course, the Lessees expected to make not only a profit, but probably an increasing share of profit out of the reclamations they might effect. But assuming that their profit was to bear to the end of the Lease, not an increasing proportion, but only the same proportion to total produce as at the commencement, we see that the processes of improvement were then known to be so rapid and so sure in their results that Lessees could calculate upon a great increase of produce in twenty years,—so great that a Farm producing corn and cattle to the value of 6 merks, at the beginning of that time, was safe to produce at least 30 merks' worth at the end of it. I assume, as a rough approximation to the truth, the correctness of an old saying in Scotland, that Rent in those days generally represented about one-third of the produce. This saying was embodied in a rhyme which has descended with its old Scotch dialect from distant generations,-

"Ane to saw,
Ane to maw,
And ane to pay the Laird witha'."

which, translated into purer Anglo-Saxon, means "One part to sow (for seed), one part to eat (consumption or profit), and one part to pay the Laird (Owner) withal" (Rent).

There is no reason to believe that the rate of increase contemplated under the Scone Lease was in any way exceptional, for fertile as the Valley of the Tay now is, it is clear that at that time it had a large proportion of peat-mosses and other wild land, which, under the system of Free Covenants, already long in operation before 1312, have now entirely disappeared.

I have already said that the Scone Lease stands midway in point of time between two items of historical evidence as to the habitual movings and changes among the cultivating class, consequent on the taking and on the leaving of land under covenants of Lease. We have seen how distinct that evidence is at a date more than a hundred years before the Scone Lease. Let us pass on for another hundred years, and we have another evidence still more emphatic and remarkable. It is, indeed, a most significant indication of the fundamental value attached to the full rights of Ownership in land, and of the insuperable objections which were then entertained against any division of those rights or any limitation of them except such as might flow from perfect freedom of contract between free men. This indication is afforded by an entry in the proceedings of one of the early Parliaments of James i. held at Perth in the year 1429—an entry of a most anomalous kind. It appears that the system of letting land on lease to "Tacksmen" had become so prevalent that attention had been much called to the consequent sudden removal of the actual cultivators or Husbandmen who had previously occupied the lands so let James i. did not ask his Parliament to remedy this inconvenience by giving to such cultivators any "fixity of tenure" which would be obviously incompatible with undivided Ownership and with the progress of agricultural improvement. He did not even ask therefore for any positive statute on the subject. But he proposed to, and obtained from, the Barons and Prelates who were the great Landowners present at Perth, a promise or engagement that for the future they would give one year's notice to all cultivators or Husbandmen whose removal might be involved in any new Leases they might grant.' At a time when there was much un cultivated land, and no difficulty in obtaining the occupation of it, this promise was probably quite effectual to prevent any serious hardship to the cultivating class.

It is not, however, till twenty years later that we find the earliest legislative landmark in the history of Covenants for the hire of land. The first Act of Parliament on the subject arose out of the necessity of deciding whether the Owner of land could grant Leases which should be binding on his successors by purchase, or on other "singular successors;" that is, successors to the estate not being his own natural heirs. The question before that old Parliament may be stated thus:—each new Owner, in buying land, bought or succeeded to all the full rights of Ownership. Could he be deprived of them by the act of those who had preceded him? To admit that he could was in one sense an immense extension of the powers of Ownership, because it extended those powers even beyond the grave, and made the "dead hand" prevail over the living. Yet, in another sense, and for the very same reason, it would be a great limitation on the powers of Ownership in the hands of the living, because it made them subject to promises and engagements to which the living Owner had never been a party. Whether was the dead Owner or the living Owner to prevail? Were all existing and living Owners to be deprived of their freedom over their own estates because their predecessors had chosen to limit their own freedom during their own lives? This was one aspect of the question, and it was the aspect in which the question might most naturally be regarded by an Assembly of rough Chiefs and Barons, who were themselves also the greatest Landowners in the Kingdom.

But there was another aspect of the question —namely, this: What was just to those who had taken Leases from one Owner and found themselves suddenly in the hands of another? Again: What was the best principle to adopt in the permanent interests of agriculture and of all the classes who had interests in land subordinate to the interests of Ownership? These were the questions which had to be decided by the Parliament of Scotland in 1449; and the manner in which they were decided is an excellent answer to the ignorant claptrap which assumes that all ancient legislation, having been enacted by the classes connected with the Ownership of land, was necessarily guided by purely selfish spirit. It would be more true and philosophical to admit that, on the whole, in every advancing country, each generation has had at least as much conscience and as much sense of justice as our own. So it was certainly in the Fifteenth Century in Scotland; and, although in that case, as in all other similar cases, the decision which was just was also, in the long-run, the decision most conducive to the interests of those who might have been tempted to think otherwise, yet the reasons which influenced that decision were reasons of conscience dictating a wise and reasonable policy.

It is, indeed, remarkable that these considerations, and not what we should now call reasons of Political Economy, are especially set forth in this statute, as the determining considerations in the case. The wording is curious :-

"It is ordained for the safety and favour of the poor people that labour the ground that they, and all others, that have taken or shall take lands in time to come from Lords, and have times and years thereof, that suppose the Lords sell or alienate these lands, the Takers shall remain with their tacks on to the ische (expiry) of their times, into whosesoever hands these lands come (pass), for such like male (rent) as they took them for before."

This is indeed sound, wise, and civilised legislation—directed to the encouragement of deliberate contracts by insisting on their binding force against the party which was then the strongest—and on their binding force, too, especially in the case of a change of Ownership, so that Leases should be valid against all comers. It has been supposed that the words" poor people that labour the ground" indicate some very specially low condition of the agricultural classes. But this is by no means a ne'cessary implication. It does, indeed, imply that Leases were given to Tenants who were poor. But the protection which the statute gives is not confined to this class, but is expressly extended to "others "—to all who, whether poor or comparatively rich, should make bargains for the hire of land for definite times and for fixed rents. The historian is right when he describes this law as "a wise and memorable act in its future consequences on the security of property, the liberty of the great body of the people, and the improvement of the country."

It will be observed that this legislation not only places no restriction on the undivided Ownership of land, but that it implies and assumes as belonging to that property the most complete and unrestricted rights. It was simply an Act to facilitate and to enforce contracts or engagements which had been deliberately made. As between the Owner and the Lessee it implies that the Lessee could have no other rights than those he might stipulate for in his Lease. He could enforce these, not only against the natural heirs and successors of the Owner with whom he had made the covenant, but also against all who might otherwise acquire the same estate, but beyond these he had none to enforce. He was in no way protected against himself. He might agree to render services of any extent, but they must be sufficiently definite to be capable of legal enforcement.. On the other hand, neither in this way nor in the way of rent in money or in produce could the Owner add anything during the stipulated term. But again, at the end of that term all the Lessee's rights ceased, because this was part of the covenant. Thus both parties could have confidence —that one essential element in all the transactions of business. Then, further, as between the Lessee and those under him there was no interference of the law. The Lessee could exercise all the rights of Ownership which his Lease conveyed to him, and if there was no Lease or other express Covenant, the law presumed him to have the yearly fruits of the soil, whether natural or artificial, and the complete power of exclusive occupation over the whole surface for the purposes of husbandry.' If his Lease allowed him to sublet, he might do so under whatever conditions he could obtain from others. If his Lease did not allow him to sublet, the prohibition would be enforced. If the Lease was given to a group of the "poor people that laboured the ground," the same rights and obligations applied to them that applied to the wealthier individual "Tacksman." Such men who held land under Lease could deal with all others of their own class precisely as richer Lessees could deal with them under the same conditions. The one great characteristic feature of this system, and its one immense superiority over Celtic and all other mere local customs, was in the substitution of certainty for uncertainty, of Definiteness for Indefiniteness, of known and settled law for mere vague usages and tradition.

We pass on for another short space of only 20 years, and we come upon another sample of that wise and progressive legislation which, in keeping to fundamental principles, and to all that was good in ancient usages, yet took note of evils as they arose, and checked any accidental invasions of acknowledged obligation. Somehow it had come to pass that when Owners of land got into debt, their creditors came upon their lands and seized all the cattle and crop they could find upon it, without distinguishing between that which properly belonged to the Owner of the soil, and that which belonged to the hirer of it. Probably this hardship began in and arose out of the prevalence of "Steelbow" holdings, in which the cattle and other stock were supplied by the Owner of the soil. But whatever was its origin, it had become a grievance, and it was obviously destructive of the principle of a Lease, which secured the Tenant against any increase of his "male" or rent before the expiry of his term. If a Tenant had this security only against a solvent Owner, but lost it as against creditors the moment his landlord became insolvent, it is obvious he would practically have no security at all, and the whole value of Leases would have been destroyed. Accordingly, in strict consistency with the fundamental principle of ancient and well-established covenants, with recent confirmatory legislation, and with the clear equities of the case, the Parliament of James iii.' which was held at Edinburgh in 1469, enacted, that this invasion of the faith of Leases should he put an end to—that the "puir tenants" should never in any case be liable for any portion of their Landlord's debts, beyond the amount of their stipulated rent so that "the inhabitants should neither be grieved nor hurt by their Lord's debts." The Roll of this Parliament shows that only four Burgesses attended, representing Stirling, Aberdeen, Edinburgh, and Dumfries. All the rest of the legislative body belonged to the Ecclesiastical and Baronial Orders —who, in this case, as usual, were the leaders of the nation in the progress of civilisation and of law.

There is but one other important step to be noticed in this memorable course of legislation. Eighty-five years later than the Statute we have just mentioned, it was again found necessary for Parliament to interfere for the purpose of regulating the forms under which Owners should give notice to Tenants whether they intended to renew their Covenants for another term or not. Some ancient traditional customs connected with this point are curious and obscure. It seems that in remote times, before written documents were in use, the Owner of land, in letting it to a "Malar" or Tenant, used to present him with a wand. And so also when he wished his "Malar" or Tenant to remove at the stipulated end of his term, the Owner used to give him legal and formal notice by coming to his Tenant's door, and breaking another wand before him.' And this could be done at any time, and on any day in the last year of the Lease. This was clearly the survival of some very ancient symbolism. I do not know its origin, and very probably this cannot now be traced. But it points beyond question to the great antiquity of the sentiment that the letting of land was a mere lending of it by the Owner, and that he had a right to resume his property by a very simple and peremptory process. In very rude and early times, when the stock was very generally lent by the Owner along with the land itself, and when Tenants had little or nothing to remove, except their persons and a few simple instruments of husbandry, the want of any fixed period of previous notice was probably not felt as a hardship, or even a serious inconvenience. But of course as agriculture improved, and as the class which lived on the hire of land became a little wealthier, this inconvenience would become serious. It was to remedy this that a new Act was passed by the Parliament of Queen Mary which sat in Edinburgh in 1555. There was evidently much need of some processes more regular than those then in use, for we know by a previous Act passed in 1546 that serious troubles and even bloodshed had arisen connected with the removal of Tenants at the end of their Leases. The Scottish Parliament did not conceive that the way to remedy such evils was to sanction bad faith, or to legalise the breach of deliberate covenants. But it did require that every step should be taken in due form of law—not by sudden violence on the one side provoking as sudden resistance on the other, but by the intervention of the King's Officers and the King's Courts. And now for further and more permanent remedy, it provided that not less than 40 days' notice before Whitsunday in the last year should be given to every Tenant if his Owner desired him to remove at the originally stipulated date. If this notice was resisted, the case was to be taken before the King's Courts, by whom the question was to be decided according to covenant and to law.' Such has been the law of Scotland until the other day, since which a larger notice,—the natural agricultural unit of one year, has been required. The progress of agriculture has made this extension as reasonable as was the period of 40 days in the Sixteenth Century. But practically that Statute of Queen Mary may be said to have closed the era of Legislation. Upon that Legislation, or rather upon the fundamental principlesof equity and of acknowledged obligation which underlay it, the whole subsequent progress of agricultural industry was conducted. It well fulfilled the noble purpose and declaration which was made by one of the Parliaments of Robert the Bruce: "The King wills and commands that common law— that right—be done to Poor and Rich, after the old laws and freedoms before these times rightiously oysset and hantit" (known and understood).

We have not yet done, however, with the important historical questions on which light is thrown by the Scone Lease. A common impression prevails in many minds, that although lands were let on hire so early and so commonly as we have seen, yet that the rents paid by the Tenants, if not mere quit rents, were at least very low, and not at all regulated by anything like what we now understand by Market Value. It is not easy to explain how this impression has arisen. In two ways the evidence seems to be complete against it. The first kind of evidence is such as that which arises out of the Scone Lease—going as it does to show that rent was expected to follow the rising value of the land, and that Covenants were habitually made under which the Lessee bound himself to pay increasing rents, only, however, to a specified amount, as he might be enabled to pay them out of increasing produce. The second kind, of evidence is not less strong,—consisting in the fact that there were some Tenants to whom Lands, Mills, Houses, and other subjects were let specially and expressly on the footing that they should hold these various possessions at a low or preference rent; and in the further fact that this was a well-known kind of Lease, and a well-known class of Tenant, so well known, indeed, that they were designated by a name separate from all others. This name, moreover, was one singularly expressive of the special origin and of the special nature of the tenure. In the language of those centuries they were "kindly Tenants." This exactly signifies the exceptional personal feeling which led Landowners from time to time to grant to particular persons, and as a particular favour, farms or other kinds of holding at a low, or sometimes even at a nominal rent— just as they might, and often did, actually for similar reasons, grant Annuities out of rents or Feus at a small and fixed rate of Feu-duty. Sometimes we know that these "kindly" feelings and kindly grants were given in gratitude for some special service—sometimes to men of Knightly rank, sometimes to Husbandmen, and "Nativi" of the country. But the same healthy usages and laws which demanded " definiteness" in all other tenures, made the same demand, and all the more carefully, in the case of this exceptional kind of Tenancy. They were grants, or they were covenants, and nothing more. Like all other grants and Covenants they must rest on evidence of the intention of the Owner or the Superior from whom they came. The slovenly argument or inference that, because an Owner may not have asked a higher rent for a long time, he had thereby parted with his right to do so, and had sacrificed a power incident to Ownership, was an argument never used, and an idea never entertained, in those days. But on the other hand, in the high spirit of legality and precision, which is the only secure defence of the rights of men, whether they be rich or poor, "kindly" tenancies were rigidly respected wherever there was proper evidence of the preferential right in which they consisted.

There could not be a better example of this than a case given in the Book of Lennox. The Crawfords of Jordanhill, near Glasgow, were a distinguished family in the Sixteenth Century. They had received from one of the Earls of Lennox the "kindly" Tenancy of a Mill with its adjuncts in the village of Partick, on the Clyde. Later transactions had placed in the hands of the Commendator of the Abbey of Paisley, the right of Feuing lands in the same Barony of Glasgow, but under the restriction that he was to respect the rights of all "kindly Tenants." In 1587, Thomas Crawford of Jordanhill seems to have been in some danger of losing his Mill in Partick, with its adjoining land. James VI. and the Duke of Lennox of that date, were obliged to interfere, and in the Deed or Warrant to which I refer, they record the reasons for which they do so. These were twofold. In the first place, satisfactory evidence had been laid before them "by authentic writ," and otherwise, that Thomas Crawford of Jordanhill" was kindly tenant of the Mill," etc., and that he had been in peaceable possession of it for these many years bygone by virtue of heritable right and feu granted to him "by such as had sufficient power for the time to set (let) the same." In the second place, the King and Duke recount "the good, true, honest, faithful, and constant service done to us and to our House of Lennox by the said Thomas, in all time bygone from his youth." Therefore, the Deed declares as a matter of fact that upon trial or examination, the said Thomas had been found "to be kindly Tenant of the foresaid Mill and pertinents," and directs that in future he should hold it "in Feuferme" to his Heirs and Assigns for ever.

There is, however, a much more remarkable case than this of "kindly" Tenancy—dating from a much older time, and surviving to the present day. Long before the great House of Bruce had become allied with the old Royal Family of Scotland they had been the Lords of Annandale. Not many, miles from the point where the river Annan falls into the Solway Firth, there is a little tract of country marked by a curious group of small Lakes. Within the Parish there are no less than seven of these sheets of water.' Of these the largest was and is still called Lochmaben. Such situations were naturally often chosen in the Military Ages for Castles of Defence. So it was in this case. The mounds and moats which indicate a Castle of great antiquity still mark the spot where the Lords of Annandale lived before they had risen to more than Baronial greatness. Another Castle of much more magnificent proportions also survives, in fragments of massive wall, upon another spot nearly surrounded by the waters of the largest Lake. Here King Robert loved to hold Court, both as King and as Lord of Annandale, on his Ancestral territory. Round this Castle, and by the side of these intertwining Lakes, there were four of the ancient Farms or Townships of the country, which then everywhere represented the modes of cultivation and of residence common among the native population. For some special reason not now known, and at some time which is equally uncertain— whether before or after the Lords of Annandale had become Kings of Scotland, one or more of them had granted to the Tenants and Husbandmen of these Farms some promise or engagement that they should hold their land on the footing of "kindly Tenants." These "Rentaflers" were called "the poor Tenants of His Majesty's lands," and "kindly Tenants:" their duties were called "Rents" and their possessions "Rooms." There was no written Deed or Charter; but on the other hand there was not only continuous and unbroken local tradition, but there was an equally unbroken chain of evidence in the continuous transactions of many generations. Succession to these holdings had been recognised always by the simple process of writing the name of the Successor in the Rental Book of the Lord, which entry it was the custom for the Steward of the Estate or the Constable of the Castle and Lordship to make without fee or charge. These little holdings were bought and sold as freely as any other Estate in land. During the course of centuries, in rude times, and in a Border District when and where it needed sometimes all the strength of strong men to keep and to hold their own, these "kindly Tenants" lived on—strong only in the memory of The Bruce. There were some attempts to oppress them occasionally by the Constables of the Castle.' But whenever their complaints were brought to the knowledge of the higher authorities of the Kingdom they were always remedied. On two recorded occasions there were direct interferences of the Crown—once in the time of James vi.—once again in the times of Charles II. At a much later date —in 1726—the Courts of Law were called upon carefully to consider their titles, and in solemn decisions, not without legal difficulties, these have always been sustained.' In signal rebuke of the loose and ignorant charge against the Law, and the Administrators of the Law in Scotland, as if they had wrongfully construed the rights of property against the poor, the kindly Tenants of the "Four Towns" of Lochmaben have survived, and still survive immense changes in surrounding property, for the simple reason that the evidence of original intention, and of deliberate covenant, although not resting on written documents, was nevertheless of such a nature as to be equally conclusive. That evidence clearly distinguished them from ordinary agricultural Tenants, especially in this, that their rent was from the first fixed at a rate below that of ordinary value, and had never been on the footing of a rent variable from time to time, like the rent of ordinary farms. The ultimate decision of the Courts of Law in Scotland recognised this tenure as virtually the tenure of a Feu—just as James vi. and the Duke of Lennox, on another kind of evidence, had recognised the tenure of the Mill at Partick by Crawford of Jordanhill, as the tenure of a Feu. In virtue of this decision the kindly Tenants of Lochmaben became Proprietors, and have ever since been entered as such in the Valuation Roll of the county in which these lands are situated.

These cases, taken from very different centuries, and applicable to very different classes of men, show the principle on which alike the language, and the customs, and the law of Scotland recognised the position of Tenants who held lands at rents which were low and fixed, as fundamentally distinct from the position of men who held land on the ordinary terms of hire. Both were tenures by Covenant; and both were to be dealt with on evidence of intention. But the nature of the Covenant in the two cases was wholly different. Where the cheapness of rent below the ordinary, value was guaranteed permanently and heritably, the holder of such land was virtually a Feuar, and it was best to recognise his status as such. In both the instances I have given this was done—in the case of the man who was already of Proprietary rank, the Laird of Jordanhill, and in the case of the poor tenants of the Four Towns of Lochmaben, who clearly belonged at first to the class of Husbandmen, or perhaps of the soldiers and retainers of the House of Annandale. In other cases of which there appear to have been many in some centuries, where the grant of land at a low or abated value was given not heritably but personally to a particular man, his right was recognised as that of a Liferent, and at his death the Owner of the land recovered his right to let out his farm on the ordinary, terms of hire. What these ordinary terms were in principle, and in the universal understanding and practice, is clear from the mass and variety of transactions in the nature of Leases which already, as we have seen, had taken written form nearly a century and a half before the death of King Robert the Bruce. As regarded agricultural lettings it is clear that the principle and the practice was that rents should follow real or actual value. Values were rising with a rising civilisation, and with the progress of improvements which were made on the strength of undivided Ownership and on the faith of Covenants founded thereupon. On the other hand, these improvements did not at that time, when scientific agriculture was unknown, involve the heavy expenditure of modern Buildings, Drainage, and Fencing. The only draining known was wide open Ditches—the "Fossae" of many early documents—to cut off the cultivated land from actual bogs and morasses. The only fencing was made of rough sticks and branches taken from the nearest brushwood—so light and flimsy that as we have seen the Lords of Avenel used to break and trample them down when out with Hounds and Hawks. The only houses were the traditionary habitations made very much of the same materials—with timber frames, wattled walls, and an external covering of mud or of some kind of plaster. Under such conditions the labour of reclaiming and improving land must have consisted chiefly in digging or trenching, and in taking out the roots of trees. Very often, in the case-of the poorer class of Tenant, the oxen for ploughing, and the other cattle, were supplied by the Owner of the land. Under such conditions the increasing produce of land would speedily repay the labour spent upon it, and a short term of hire at a rent proportioned to value at the time of letting, would be an ample inducement to the cultivating classes to seek the "Tack." This explains the rule laid down by the Provincial Council of the Church in 1245 that Tacks should not be granted, and consequently that rents should not be fixed, for a longer term than five years. This also explains the rapid scale of increase in the rent at short intervals, which the Tenants agreed to pay within the first twenty years in the long Scone Lease. These Tenants belonged to the wealthier class, and they would certainly calculate upon a return suitable to their condition.

It may be assumed, therefore, upon a combination of evidence which is conclusive, coming as it does from every direction of the compass, that the system of Leases as it arose in Scotland, was a system of definite Covenants for definite terms of years, longer or shorter as special circumstances might determine in each case, during which the rent was either absolutely fixed or graduated according to a fixed scale; but at the end of which the Owner was not only free, but was ordinarily expected to make a new Covenant, on new conditions such as might bring the rent up to the usual and average proportion of Rent to total, or gross, Produce. This does not mean that farms at the end of Leases were let by any process similar to that by which goods are sold in a modern auction room. That was not the way in which things were done in those days. The new rent may sometimes have been settled, as it almost certainly was in the case of the Scone Lease, by the Owner accepting the voluntary offer of new men of capital like the Hays. But generally the rent must have been settled not by the highest offer of any actual or formal competition, but simply and naturally by the amount which any dozens or scores of men would be eager to give in order to get, or to renew the Lease.

This is market value in its natural and ordinary sense. Between this kind of rent and a "fair rent" there was no distinction. In a manly age men thought that when they bought anything, or hired anything at a price or rent such as almost any other man would give, they bought or hired it at a value which was fair. It is remarkable, moreover, that when at a much later time the loose colloquial expression of a "fair rent" came to be used for some practical purpose and with some important meaning, and when the Law was obliged to give to it some definite interpretation, that interpretation had the effect of identifying a "fair rent" not with a rent lower than the average, but, on the contrary, with a rent which should not be lower than that average. This interpretation arose out of the practice of Entails. The necessity was obvious. When Owners were deprived of the power of sale, it was absolutely necessary to deprive them also of the power of alienating under collusive forms. If a man might let his lands at any scale of rent he liked, however low and however much under the average or market value, he could of course by accepting large fines on the renewal of Leases or on the first lettings of land, lower the rental to the point of practical alienation. To prevent such corrupt practices, and still to preserve the essential principle of Leases as sanctioned by the Act of 1449, it was essential to provide that an Entailed Proprietor should not let his farms below a "fair rent." And again, in order to make this prohibition effectual, it was absolutely necessary to lay down the principle that by a "fair rent" was meant a rent fair to all the parties concerned—to the existing Heir in possession—to his successors in the Estate— to the Tenant, and to the interests of agriculture, which are never really promoted by the removal of those incentives to exertion which arise out of the necessity of meeting obligations. No scale of rent could suit all these conditions except that representing the value which men of average capital, enterprise, and skill would be certainly willing to give. In our own day, wherever "the public" is concerned, the same principle is adopted. Lands are always valued for purposes of taxation or assessment on the basisof the value at which they would let one year with another.

A moment's consideration will show that under such a system as this rents might remain unchanged for generations—even for centuries, without the slightest inference arising against these rents being purely a matter of Covenant, or the least presumption against the right and the power of the Owner to let his lands at a higher value if he could. The value of everything depends upon civilisation—not the value of land only, but the value of all its products, and of all the articles manufactured from these, and most of all, the value of human labour. But civilisation does not advance everywhere and at all times. It may, and it often does, stagnate, and for long periods of time it may, and it often does, go back. The population of particular countries, or districts of country, may be given up to less improving pursuits than those of agriculture. Its produce may decline, and a recrudescence of barbarism may condemn it to chronic poverty and waste. Under such circumstances, of course, Rent would follow the conditions of Society, of which—like Price in every other form, and especially like the price of labour—it is only one of the measures and results. But with the return of peace, and the recommencement of peaceful industries, the old Covenants would be revived. Land would regain its natural value, and the same proportion of its total produce which men are always ready to give for the exclusive possession of it, would represent a higher rent, because the total produce would itself be a much larger quantity, and saleable for a much higher price.

But the universally accepted idea over the whole of Scotland that every form of possession in land, whether permanent or temporary, rested, and could only rest upon grant from, or Covenants with, those "who had sufficient .power and right for the time to grant or to let the same," is an idea which receives another illustration from another tenure in Scotland which is even more striking and complete than the tenure by Lease. I refer to the very peculiar but the very common tenure of older days, which was called "Wadset." "Wad" or " Wed" is another form of the word " Pledge," and in exact accordance with the usual meaning of that word, lands let upon "Wad" were lands lent on Pawn. The Owner, in consideration of a certain sum of money paid down to him, gave in pawn or in pledge to the Wadsetter certain lands or farms, under the counter-pledge or Covenant given by the Wadsetter, that on the same sum in money, or some other sum definitely fixed, being repaid to him or to his Heirs, he would restore the lands to the former Owner or his Heirs.

Under this strange tenure large portions of great Estates and Baronies were often pawned to Wad- setters. Very frequently neither the Owner nor his Heirs for long periods of time—it might be for generations—found it convenient to redeem, by repayment of the stipulated sum. During all that time the Wadsetter was in the enjoyment of the full rights of Ownership. He might and he often did build valuable houses for the residence of a Proprietary family—he might and he often did improve the land, and let it out at increased rents. Yet whenever the original Owner or his Heirs were enabled to fulfil their part of the bargain the Wad-setter was bound to fulfil his part of the bargain also—and that bargain was that the land should return to the Owner, with all its pertinents, according to the terms of the Covenant. But this, although at variance with popular sentiments of equity in the present day, was in reality perfectly just, not only because it was in fulfilment of a deliberate Covenant, but also because the balance of real advantage as between the two parties, did not by any means always lie on the side of the Owner who redeemed a valuable Wadset. The value of the land originally pledged may have been, and generally was, much more than amounted to fair or ordinary interest upon the sum lent. Besides this, all the natural or accidental increments of rent which might arise with the progress of time, from the cessation of wars, or from other causes, went into the pocket of the Wadsetter, so that by the time of redemption he might well have been repaid not only the whole of loan, but very, high or even usurious interest besides. The balance of advantage may therefore have been very largely on the side of the Wadsetter, because of his long enjoyment of an enormous return for some small loan borrowed by the Owner, under the pressure, perhaps, of some great and unforeseen necessity. It was perfectly equitable that when that necessity had passed away the "Reverser," as he was called, should re-enter upon his property, and even its increased value might very well be but a small part of the immense price he had really paid for a temporary accommodation.

In repeated cases large Estates, which had been broken up into Wadsets by an extravagant or unfortunate Owner, have been re-united by some one or more successors who were frugal in their management, or happy in their alliances and acquisitions. The Wadsetters often tried to avoid or evade accepting the redemption money. But both the law and the public sentiment held firmly and unshakenly to the doctrine that Covenants deliberately made between free men must be upheld. The Legislature interposed in 1469 to prevent fraudulent evasions of them. The Courts from time to time were busy in the same work, and in regulating the rules of warnings of redemption, so as to make all such Covenants as clear and express as possible, and to make it easy for both parties to protect themselves against usurious interest on the one hand, and sudden redemptions on the other. But these objects have always been aimed at on the principle of reconciling as far as possible unforeseen and equitable claims with substantial observance of the faith of Covenants. The tenure of land by Wadset is now extinct, but it has become extinct mainly from this cause, that whilst some Wadsets were converted into Feus, or bought up by the Wadsetters, a very large number were extinguished by the literal fulfilment of the original obligation, by the redemption-money being paid, and by the wadsetted land being merged in the Estate to which it had originally belonged.

We have seen in reviewing the Age of Charters how early they had begun—and how universally they had become established. We have seen how they forced their own way by the inherent excellence of the principle on which they were founded—giving form and substance to the long accepted ideas of men in respect to the actual sources of authority and of power, whilst at the same time they tended to check the excesses of that power, and to restrain within the limits of definite law and obligation the arbitrary exactions of unwritten Feudalism. We have seen how, even in Ireland, the Celtic Provincial Kings had yielded to their civilising influence before a single Norman soldier had as yet landed to invade the Isle of Saints. We have seen how in Scotland even the fierce Lords of the Isles—the Sons of the wild Somerled of Celtic blood and of Norse inheritance—had persuaded the lawless Chieftains of the Western Highlands to accept and to impose the same restrictions on their desolating usages. So now we have to observe that precisely the same progress was made with all the corresponding tenures which were subordinate to Charters, and which rested on the same great principle of defining the rights of men, and of accustoming them to regulate their dealings with each other on the faith of Covenants. Accordingly, these subordinate tenures in the form of Leases, Wadsets, Grants, Warrants, and Agreements of every form and kind spread rapidly over the whole Kingdom, from the Pentland Firth to the Solway, and from the Western Isles to the German Ocean. There was no difference betveen different parts of Scotland in respect to the law, or in respect to the practices founded upon it, wherever law and order were maintained at all. Leases and Wadsets—which last tested to the very utmost the principle of Covenant,—became as common in the heart of the Highlands as they were in the Lowlands proper, or in the Southern and Border Highlands. In these Border districts the conditions of Society were long quite as unsettled as in the Western Mountains or on the Western Coasts. But at all times and in all places, whenever and wherever peace prevailed, the law of Charters and the law of Covenants was the law on which men acted and on which men relied—on the strength of which every step was taken in the path of improvement, and in the work of civilisation. If in any part of Scotland this system of law was ever supplanted by a relapse into the old usages of Celtic Feudalism, it was only in the places where, and in the times when, all law was suspended, and all improvement stopped, and all civilisation turned back on the way to Barbarism. This, however, is a subject too interesting and too important to be treated incidentally. It must form the subject of another chapter.

Return to Book Index Page


This comment system requires you to be logged in through either a Disqus account or an account you already have with Google, Twitter, Facebook or Yahoo. In the event you don't have an account with any of these companies then you can create an account with Disqus. All comments are moderated so they won't display until the moderator has approved your comment.

comments powered by Disqus