The complexity and technical art which mark the law proceedings of so early a period of our history, might be thought to speak a great degree of refinement, if we did not find that the progress of civilization tends in all countries to simplify the forms of pleading. Many of the legal proceedings recorded in the present work are very curious, and some will be found of important service to the student of the antiquities of our law. It appears that almost from the earliest period of these records, the Roman or Civil Law was considered the common law of Scotland, while from time to time we find a native or imported customary law gaining ground, which claims a different parentage P. The English form of proceeding by brieves of inquisition seems to have been established before the reign of James I. 1; but in the two previous reigns, there occur records of proceedings that it is difficult to ascribe to any settled form of practice ".

o In 1208 we find a minute record, on papal authority, of a keenly contested law suit between the Earl of Dunbar and the monks of Melros, regarding the pasturage of Wedale. The Earl had formerly declined the jurisdiction of the papal commissioners, his exception being fenced with three pleas in law-" valluta "triplici ratione, scilicet obtentu persone, quia "laicus; respectu rei, quia erat laicum tene"mentum; juris communis beneficio, eo quod actor sequi debeat forum rei." He afterwards objected to the judges on personal grounds, and having three times carried his suit to Rome, it is at last settled in the court of the King, "in plena curia domini Regis," N. 101.

p In the reign of William, it appears to have been still competent to bequeath heritage by testament. Elena de Morevil, the widow of Roland of Galloway, gives certain property to Melros, in exchange for lands which her bro

66

ther William de Morevil had bequeathed to the monastery in his last will, “divisit eis in "ultima sua voluntate," N. 82-3. In the next reign again, the King charges his sheriffs to prosecute the causes of the monks of Melros like the sovereign's own causes, appellationes "et responsiones secundum genus causæ facien"tes, et pugnatorem si forte opus fuerit ex parte "nostra eisdem invenientes", N. 175. During the reign of Alexander III., we find the Steward granting the convent power to hold courts in their Ayrshire domains, with all the privileges of his own court of Prestwick; to take a venue-visnetum capere, for trial of causes; and abandoning to them all right to the chattels of the condemned, and of the party slain in duel where duel has been adjudged in any cause, N. 325.

N. 525 and 526 are examples of the forms of proceeding by a great assize under a brieve of departition, proceeding from the King's chapel or chancery; and N. 545 gives the proceedings of an inquest under a Lord of Regality upon a brieve of "purale of merchis" or perambulation.

That a definite and fixed jurisprudence prevailed over the rest of Scotland in the reign of William, is in some degree established by the frequent allusion to the peculiar customary laws of one province. The province of Galloway, of much greater extent than the district now so called, comprehending a part of Dumfries-shire and all the Earldom of Carric, which extended much farther northward than the modern Bailiary of that name, had but recently been reduced to an imperfect subjection to the Crown of Scotland, and was still in a state of comparative barbarism. A series of charters ascertains the genealogy of the great lords of Galloway from son to father up to Fergus, never however passing beyond that ancestor ". From these, and from the names of places and of witnesses occurring in charters of other persons in that province, it appears that the body of the people, most of the proprietors of the soil, and even the lords of the country, were of Gaelic race and language. The original population must have been more strenuous or more successful in vindicating their rights than the inhabitants of the other districts of Scotland. The Norman settlers seem to have obtained a more insecure footing there than elsewhere, and after two or three generations they disappear, while in the rude patronymic designations of the native inhabitants may be traced the original of families that afterwards rose to power and distinction *.

Of the peculiar laws of Galloway we have here unfortunately only a reference to certain arrangements for facilitating the arrest of criminals, rendered necessary by the disturbed state of the province. Nor does any other source furnish us with much information on this subject. We find in our ancient statutes allusions to the reservation of the Galwegian customary laws; but nearly all we can gather

u N. 29, et seq. The names are Fergus, Gillebrid, Duncan, Malcolm, &c. Some of the witnesses are still more incontrovertibly Celtic, The following personages attest one charter, Gillenem Accoueltan, Gilledoueng his brother. Gillecrist Mac Makin, Murdac Mac Gillemartin, Gilleasald Mac Gilleandris, Gillemernoch his brother, &c. N. 31.

The family of De Scalebroc and its descendants illustrate the former remark; the occurrence of McKenedy or Kenedy, Senescal of Carric, with many others, serve to prove the latter.

y N. 18.

of their peculiar nature is drawn from a passage in the treatise of Quoniam attachiamenta, from which it appears they were considered inexpedient or prejudicial to society, and that trial by Jury was not one of the rights of the inhabitants, since it was declared, that any Galwegian claiming that privilege should, in the first place, renounce his right to the customary laws of Galloway.

A still more interesting object of enquiry is to collect from such materials as the present collection affords, some knowledge of the state of the country and the condition of its population, at a period of which we have so few authentic sources of information. The district in which the Abbey of Melros is situated, and in which its early possessions chiefly lay, being so near the English border, was, after the accession of Malcolm III., quickly occupied in great measure by Saxon or Norman settlers. The subdivision of property, when these documents first afford light on the subject, was much greater than is consistent with the idea commonly entertained of the overgrown power of the leading nobles and the degraded situation of the other classes; and the minute portions in which gifts to the Abbey were frequently bestowed, seem to shew the value, and probably the high cultivation, of that now fertile valley. The original inhabitants had either removed to districts not yet coveted by the Southern colonists, or were reduced to the condition of serfs, then appropriately styled Nativi, who were transferred by sale or gift along the soil which they cultivated a. Great attention was undoubtedly bestowed on agriculture, with whatever skill or success. We find everywhere strict rules for the protection of growing corn and hay meadows. Wheat was cultivated, and wheaten bread used on holidays. Roads appear to have been frequent 2, and wheel carriages of different sorts in general use €.

A

meus

« via

d They are constantly mentioned as viridis, "" alta via," "via Regia," "via Re

galis.'

e Charete, N. 101. Quadrige, N. 118. Plaustra, carecte, N. 356. That these terms were not used indiscriminately for all agricultural

right of way through an adjoining territory was purchased at a considerable price, or made the subject of formal contract or donation f. Mills driven by water as well as wind-mills, were used for grinding corn 5, although it is well known that the rude and laborious process of the hand-mill kept its ground in some districts of Scotland until comparatively a recent period. In the reign of Alexander II., Melros acquired the right of turning a stream that bounded their lands of Beleside in East Lothian, on account of the frequent injury done by it to the hay meadows and the growing corn of the Abbey. One circumstance serves to mark still more the progress of agriculture. We find, that so early as the reign of Alexander II., the attention of some of the great proprietors had been directed to rearing and improving the breed of horses. Roger Avenel, the lord of Eskdale, had a stud in that valley, and Patrick Earl of Dunbar, in preparation as it would appear for his departure for the Holy Land, in 1247 sold to the Abbey his stud in Lauderdale for the considerable sum of a hundred merks Sterling . The monks of May had a grant of land from John fitz Michael, (the ancestor it is said of the family of Wemyss), with pasture for a certain number of sheep and cows, and for twenty brood mares with their followers '.

From the nature of the country, and perhaps from the imperfect state of agriculture, the revenues of the Abbey were chiefly derived from the pasturage of cattle and sheep. Of the latter there appears to have been a much greater number than has been hitherto believed"; and the minute and careful arrangements for their folds, their attendants, and the separation of their pastures, show how early the attention to this kind of stock commenced in the district which is now distinguished by the perfection to which it has arrived. The high value set upon pasturage, whether for sheep or cattle, is shown by its frequent clashing with the rights of game and the forest, and by the strict prohibitions against tillage within

the bounds of forests and pasture ranges ", although this arose in a great measure from anxiety to preserve the solitude and quiet necessary for the encouragement of all game, and especially the Red Deer. It may be gathered also from the high penalties for allowing cattle or sheep to trespass on neighbouring pas

tures o.

A remarkable custom which received the Royal sanction in the reign of Alexander III., appears somewhat at variance with this jealous care of the rights of pasture. That monarch declared it was of use by ancient custom and the common law throughout Scotland, that travellers passing through the country might quarter for one night in any estate (feudum) and there pasture their beasts,— saving only growing corns and hay P.

The use of the word forest, in charter language to express a range having certain legal privileges for the preservation of game, has contributed to the common belief that all Scotland was anciently thickly covered with wood. If it ever were so, it must have been at a time before all record; and in a country where tradition has been so much based on the fables of historians, the proof of such an assertion must be looked for in the observations of the geologist, which have not hitherto tended to confirm this opinion. At the earliest period illustrated by the present collection there is sufficient evidence that the southern division of Scotland was not a well wooded country. On the contrary, the right of cutting wood was carefully reserved when pasturage or arable land was granted; and when that right was conceded for some particular purpose, such as for fuel for a salt work, or for building, the use was limited in express terms 7. The high grounds of Ayrshire

vil, and her son Roland of Galloway, gave to the Abbey pasturage for 700 ewes with their followers of two years, or as many wedders; for 49 cows with their followers of two years, a bull, 40 oxen, 8 horses, and 4 swine, with their followers of three years; to be fed along with their own cattle of the territory of Kilbeccokestun, (now Kilbucho), N. 82-3. Wedale the Abbey had pasturage for 500 sheep and seven score cattle, N. 101; and in Primside pasturage for 400 sheep, N. 146–7.

In

n Thus, in a very early grant by Earl Waldev, of pasturage in Lammermuir, it is expressly provided, that moveable folds and lodges for the shepherds shall accompany the flocks of the Abbey, so as to avoid any permanent building or settlement within the forest,-" sine "manuali opere," N. 76. In like manner

Richard de Morevil the Great Constable, and his son William, grant to the monks a site in Wedale for a cow-house or sheep-fold,-vaccaria seu bercharia,-for one house in which they may light a fire for the brethren and their shepherds, and for a hay-shed, all within the verge of the forest; but on condition that they shall make no other lodges within it, but their shepherds to have wattled cots (claias wiscatas) for shelter while tending their cattle, N. 106. See also N. 93 and 111.