BORDER LAWS AND BORDER FEUDS. CHAPTER I. THERE is considerable difficulty in obtaining any positive information respecting the antiquity of the earliest laws on the Borders. The entire absence both of records and of notices by contemporary historians at once accounts for the information we have being so scanty. The English Conqueror slowly gained his possessions as he marched northwards, nor is there any trace beyond the Humber of that important Survey that supplies so many instructive materials for the history of all the southern counties. When we institute an investigation, therefore, into the acts of legislation existing at these remoter times, we are at once checked by a deficiency of facts; and it may be truly said, that we know less of the constitution of Scotland during the anteconquestal period of England, than is known of almost any other country in Europe. In England there were the laws of Æthelbert, of Alfred, of Ine, of Æthelstane, of Edgar, of Ethelred, and of Cnut, to show how early, and with what effect, the science of legislation received its development. But when we come to the Borders, and when the constitution of Scotland invites inquiry, the information obtainable is not only extremely meagre in itself, but all that we can depend upon commences at a much later time. If that kingdom ever possessed the benefits of a civilised code contemporaneously with the south of England during the years immediately preceding the great Norman chieftain's invasion, all its vestiges are lost. It is stated by the most B competent authorities that there is probably no Scotch writing extant, whether of charter, record, or chronicle, so old as the reign of Malcolm Canmore, who died in the year 1093. Nor are there any vestiges of laws, still less of a constitution properly so termed, till the reign of David I. (1124-1153); whilst these laws are rather in the nature of royal enactments than provisions for the general good. The legislative measures emanated from the crown alone, and are chiefly confined to charters granted to religious houses, such as those to Dunfermline (1124-1127), Holy Rood (1128), and Cambuskenneth (1147); always, however, excepting his Assise, and a portion of his laws for the four burghs of Edinburgh, Roxburgh, Berwick, and Stirling. From the Humber to the Tweed faint traces may be seen of the Dane, but none of the Scots. In the laws ordained by Henry I. we hear of the West Saxons, the Mercians, and the province of the Danes; but nothing is ever said about the laws or customs of the sister country. David I. was the first Scottish king who had any possessions south of the Tweed; and these he possessed before he gained the crown, in consequence of his marriage with the widow of Simon de St. Liz, who was the daughter of Waltheof, the last Anglo-Saxon Earl of Northumberland. The circumstance of this alliance would in all probability lead him to adopt the borough-law of England as the foundation of municipal institutions for Scotland, and in carrying out this intention he would find it most convenient to take the special precedent of the customs of the town of Newcastle. By education he was an Englishman rather than a Scotchman, and he was an English earl before he became a Scottish monarch. The possession of Newcastle, and his residence there, also afford strong reasons why he should have adopted its mercantile code as his model. It may be remarked as perhaps an accidental fact, that Newcastle is the only town in England of the mercantile customs of which we possess so early a record of this nature, though there can be little doubt that London had a priority of every kind of franchise and privilege, the earliest charter having been granted to it by the Conqueror himself. The King of Scotland was, however, not the only feudal lord who made the laws of Newcastle the model of his mu nicipal institutions. They were given by Pudsey, Bishop of Durham, to his boroughs of Gateshead and Sunderland, and by the Archbishop of York to Beverley. A still stronger proof that the laws of Newcastle really preceded the Leges Quatuor Burgorum exists in the fact, that on points where the latter were not clear, the Scottish boroughs were in the habit of referring the question of law to the burgesses of Newcastle, that they might be guided by the practice of that borough.* It may be remarked, that the regulations of the assise, which is evidently the purest act of Scottish legislation, were also borrowed from codes existing many years previously in England. Thus, to offer a very few illustrations in proof of it, King David ordained that no man should receive judgment from a person inferior to himself, " quod par per parem judicabitur." The laws of Henry I. recognise the same principle, who in his turn had adopted the maxim from those of the Longobards. The assise of David declared that it was unlawful to harbour a stranger longer than a night. This, in like manner, was a regulation borrowed, though a little abridged in the liberty, from the laws of King Cnut. Edward the Confessor diminished the sojourn to two nights.§ William the Conqueror and Henry I. fixed the stay of a stranger at three nights. Again, the assise of David ordains that if a man draws a knife upon another in the king's court, it shall be struck through the middle of his hand; and if he draw blood, the hand shall be cut off. The seventh law of King Alfred's code placed the life of such an offender at the royal mercy; this was confirmed by the sixth of King Ine's laws, by the seventh of King Ethelred's, and by those of King Cnut and Henry I. The laws of the four burghs, viewed as they now appear in their full extent (Leges et Consuetudines Quatuor Burgorum), betoken a much more original evidence of progress and civilisation than the assise. If the whole collective body are assigned to the same age, they will indicate a great advance, and show that communities existed in Scotland for the protection of the mercantile interests before municipal institutions were fully established in the sis * See Acts of Parl. of Scotland, vol. i. pp. 40, 358, 359. Lib. iii. tit. viii. 1. 4. § Laws, xxiii. ter country, a fact impossible to establish; for there does not appear to be any thing analogous to the laws of the four burghs in any of those more ancient enactments to which reference has just been made. There must doubtless have been some kind of municipal institutions amongst the Anglo-Saxons, but their traces are very slight in the laws that still remain. The Conqueror's charter to the city of London does not amount to a municipal code, merely in fact declaring that he will not reduce the citizens to a state of vassalage. In the reign of Henry I. we have the germ of those charters which were subsequently so much expanded; yet they contain nothing affecting the laws of commerce, beyond those clauses which were common to all the early charters granted to the great towns, such as Bedford, Northampton, Oxford, &c., namely, that the burgesses should be free from toll, passage, and lestage. These charters were based upon a common type, and they are found much the same in all the principal communities. There were certain immunities common to all; but occasionally they differed in the number of these; and we find an entry on the Great Roll of the Pipe showing (13 Hen. II.) that the men of Bedford paid a fine to possess the same liberties as the city of Oxford. There was a great extension of the English municipal charters in the commencement of the reign of Richard I., who took this means of raising money for the expenses of his crusade. Yet when these and the charters of a very much later period are investigated, it is clear that none of them are so full, none so truly mercantile, as the Leges Quatuor Burgorum of King David. The English charters are in fact more jurisdictional and political in all their bearings, but less important in every thing connected with trade. If the laws of the four burghs* are to be taken, as they appear in the collection of the Acts of Parliament of Scotland, as the compilation of this one king's reign, they would evince a remarkable amount of social legislation for the period. This will appear the more striking, when they are compared with the rude municipal institutions existing south of the Tweed. The charter granted by William of Normandy, Earl of Flanders, to St. Ömer in 1127, with the various additions it received up to 1151, those of Bruges in 1190, of Laon, Beauvais, and Soissons, * Berwick, Roxburgh, Edinburgh, and Stirling. |