A Roll of the Scottish Parliament, 1344 Know

VOL. IX., No. 35 APRIL 1912 A Roll of the Scottish Parliament, 1344 Scotland, as in England, the records of parliament, like IN those of the Great Seal, were anciently entered on rolls. The Great Seal Register continued to be so kept till James I.'s in thereafter it is in book return from captivity 1424 ; form, like the French Tresor des Chartes. Whether the form of the register of parliament was changed at the same time, we do not can that the extant which know ; we only say register, begins in 1466, is in book form. Of the earlier proceedings of our parliament our knowledge comes almost entirely from non- official MSS. at the of Thomas Thomson's term ; beginning of office as Depute Clerk Register, it was derived wholly from such sources. But his researches, and the interest in the national archives which his researches rekindled, brought to light many documents previously unknown, and among others, six rolls of parliament, the earliest of 1292, the latest of 1389. Some of these were found among the writs of the then Earl of Haddington, and by his generosity were restored to the nation the others I have failed to trace back. ; They may have come from other private repositories, or they may have been lying hidden among unarranged papers at the Register House. A few years ago Mr. J. G. Munro, of Messrs. Baxter & Burnett, Edinburgh, found among the papers of a client a number of ancient documents, and among them the roll of for the first time parliament, now made accessible in print. By his permission it was shown at the Scottish Historical Exhibition, held in Glasgow in 1911, and it is at present on deposit in the S.H.R. VOL. IX. R Maitland 236 J. Thomson Register House. It is much smaller than the other six, contain- ing indeed only the record of one legal process, and two short memoranda relating to other matters. Moreover, while the other rolls are cut square at top and bottom, this roll is tapered to a at the as if for a point top filing ; form familiar to students of the records of England, but not, I understand, the usual form of the rolls of the English parliament. recorded The proceedings are part of those of the parliament which met at Scone on 7th June, 1344. The folio Acts include one act of this parliament, viz., a decreet relative to the Bishop of Aberdeen's right to second teinds, pronounced on 8th June. That was presumably the second day of the parliament here we have what was done on the third day, that is, 9th June, or some subsequent day. Of Malise, eighth Earl of Strathearn, whose trial for treason occupies most of the roll, little is known. The English Close Rolls show that Edward Baliol, during his brief tenure of power 1 in Scotland, conferred the earldom of Strathearn on John de Warenne, Earl of Surrey, that early in 1334 Earl Malise was endeavouring to recover it, and that Edward III. exhorted his vassal to maintain Warenne in possession. The English king seems to have believed that the grant to Warenne followed on Malise's forfeiture the record ; present shows, corroborating Robertson's Index, that it followed on Malise's resignation, which was the act of alleged treason for which he was indicted. The assize acquitted him of treason, but affirmed the validity of the resignation which he had so speedily repented. From other sources we know that the earldom had four months previous to his trial been conferred on one of David II. 's most important adherents, Sir Maurice Moray, who is styled Earl of Strathearn in this roll and this suffice to Malise very ; may explain why could not recover possession. But the transaction is not easy to understand. Possibly a corrupt sentence from a late fifteenth in the folio Acts afford the century MS., printed (i. 736), may * explanation. It runs as follows : Quia unusquisque duo habet custodire solerter puta linguam suam et sigillum suum et cavere cui sui accidit domino sigilli custodiam deputabit prout quondam Malisio Stratherin per quondam Robertum Broise regem Scocie primum de eodem nomine.' It is suggested that Robert Bruce 1 Warenne styles himself Earl of Strathearn, 2/th February, 1332-3 (Cal. of Patent Rolls, 1330-1334, p. 555). Edward Baliol was crowned 24th September, 1332, and fled to England i6th December following. A Roll of the Scottish Parliament, 1344 237 mistake for David II. and that we are to under- is here put by ; stand that the resignation in favour of Warenne was made under Earl Malise's seal, though not with his knowledge or consent, and that for the act of the custodier of his seal he was held civilly, but not criminally, responsible. Malise was Earl of Caithness and Orkney as well as of his Strathearn ; the two former earldoms, which he inherited from great-grandmother, he retained. Some ten days before his trial he had granted to William, Earl of Ross (who here appears as one of his procurators), the marriage of one of his daughters, whom he nominated to succeed him in the earldom of Caithness. The assize who tried the issue consisted, it will be seen, of nineteen persons. As is well known, the number of the old Scots was not fixed it was seldom fewer than or more jury ; nine, than twenty-one. As a rule the number was odd, but there are exceptions, if we can trust the records. Trial by jury in parliament was quite usual, both in civil and criminal cases, both in Scotland and in England. In Scotland I have noticed no case later than the fifteenth undefended cases of treason century ; were sometimes decided by parliament on ex parte evidence in the sixteenth. But trial in the justiciary court had become the rule. are The remaining items brief, and may be briefly dealt with. If the Earl of Moray could have made good a claim to a heredi- tary justiciarship, he would have anticipated a much later state of things. For though justiciars of fee are mentioned in a MS. of John Baliol's time, printed in Vol. ii. of the Miscellany of the Scottish History Society, there is no instance, so far as I know, of a justiciarship passing direct from father to son before the sixteenth and it was and is to hold either century ; quite possible an office or an estate in fee without holding it in heritage. The final paragraph relates to the blood feud which arose from the treacherous seizure and murder of Sir Alexander Ramsay by Sir William Douglas of Liddesdale. The new-found record in this case corroborates the old familiar legend, though not in all its details. harrowing j MAITLAND THOMSON. TEXT. TRANSLATION. Parliament*) tento apud Sconam die Parliament held at Scone on Mon- Lune/septimo videlicet die Junii day 7 June 1344 with continuation anno Domini millesimo trecentesi- of days, the most excellent prince mo cum con- quadra[gesimo] quarto lord David by the grace of God king 2 8 Maitland 3 J. Thomson in solio of tinuacione dierum/sedente Scots sitting on the throne of the sedis magestatis/excellentissimo prin- seat of majesty. cipe domino Dau[id Dei] gracia rege Scottorum illustri. Memorandum quod tercio die eius- Be it remembered that on the third dem parliamenti coram domino rege day of the said parliament, in pre- etvniuersisproceribusregnicalu[m]- sence of our lord the king and all pniatus fuit Malisius nuper comes the nobles of the realm, Malise late de Straheryn per Robertum Mauta- earl of Strathearn was accused by lent loquelam dicti domini regis Robert Maitland pleading our said de et lord the proferentem felonia prodicione king's cause of felony and videlicet quod idem Malisius non vi treason, namely, to wit, that the aut metu ductus nee errore lapsus said Malise, not induced by force or set mera et spontanea voluntate sua'- fear nor in error but of his own free comitatum de Straheryn per fustum will, had resigned the earldom of et baculum in manus Edwardi de Strathearn by staff and baton into Balliolo sursum reddidit racione cu- the hands of Edward Baliol, by iusdam contractus initi inter ipsum reason of a contract between said Malisium et dominum Johannem Malise and the lord John earl of comitem de Warennia dicti domini Warenne our said lord the king's regis mortalem inimicum in dero- mortal enemy, in prejudice of the gacionem regie maiestatis omni iuris king's majesty, renouncing all claim clameo dicti comitatus pro se et of law to said earldom for himself heredibus suis in perpetuum renun- and his heirs for ever, and utterly ciando et prosequcionem suam de disclaiming his pursuit of said earl- dicto comitatu decetero penitus de- dom thenceforth. And the said clamando. Comparens que idem Malise, compearing by the bishop Malisius per episcopum Rossensem of Ross, William earl of Ross and Willelmum comitem Rossie et alios several others, ripely advised, en- plures experte consultus posuit lo- trusted his cause to William Mel- quelam suam super Willelmum de drum under correction by himself Melgdrum cum correctione persone and his council, at the same time sue et consilii sui petens identidem praying our said lord the king that a dicto domino rege quod idem the said William might be admitted Willelmus de Melgdrum admittere- to plead his cause. Which leave tur ad loquelam suam proferendam having been sought and obtained, qua licencia petita pariter et optenta- the said William declared in said Malise's that said Malise had idem Willelmus exposuit / nomine name, dicti Malisii quod idem Malisius already tholed an assise on the same de eodem crimine coram domino charge in presence of Sir Robert Roberto senescallo Scocie tune lo- Stewart of Scotland, then lieutenant cum tenente dicti domini regis per of our said lord the king over the totum regnum alias passus fuit whole realm, and that by said assise assisam et quod per eamdem assisam the said Malise had been found not idem Malisius de eodem crimine guilty but innocent of said charge.

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