Scsf £Ha_ Ik) PUBLICATIONS OF THE SCOTTISH HISTORY SOCIETY THIRD SERIES VOLUME XXIX THE COURT BOOK OF THE BARONY OF CARNWATH 1523-1542 1937 THE COURT BOOK OF THE BARONY OF CARNWATH 1523-1542 Edited with an Introduction by WILLIAM CROFT DICKINSON, D.Lit. EDINBURGH Printed at the University Press by T. and A. Constable Ltd. for the Scottish History Society 1937 De curia loquor et nescio, Deus scit, quid sit curia. Walter Map. Onlie suitis and actionis, or processus for annuellis, euil to be red, be resoun of the antiquitie of the wreit, and forme of the letter or charecter, weray schortlie and compendiouslie wretin, quhilk is not now vsit; and skairslie gif ony man can reid the samyn. Note by Mr. Thomas Mollisone, Town Clerk of Aberdeen, 1591, on the early Baillie Court Buikis of Aberdene. Le compte des plaisirs dont peut jouir un seigneur— chasser, pecher, faire de Tescrime, jouter, jouer aux echecs, manger et boire, dcouter les chants Aes jongleurs, regarder battre des ours, recevoir ses hotes, causer avec les dames, tenir sa cour, se promener dans les pres, se chauffer, se faire ventouser et saigneur, regarder tomber la neige. La Chevalerie. Printed in Great Britain PREFACE Although we can find record of the holding of baron courts prior to the sixteenth century,1 our earliest extant court book is that of the Barony of Alloway, covering the period 1492-1535. At Drummond Castle there are court books for the Baronies of Auchterarder, 1514-1520, of Drummond and Drymen, 1536-1540, and of Kincardine, also 1536-1540.2 The Court Book of the Barony of Carn- wath, 1523-1542, now published by the Society, is the earliest baron court book preserved in H.M. Register House, and the earliest to be printed in full. As with the Sheriff Court Book of Fife, my purpose in editing the Baron Court Book of Carnwath has been to treat it solely as a document illustrating one aspect of Scottish constitutional history. No attempt has been made to cover the history of Carnwath or of its Lords, the Somervilles. The Introduction is largely devoted to the barony as a feudal administrative unit and to the nature and extent of baronial jurisdiction; though even here my ignorance of the pre-feudal (Celtic) economy and of the intricacies of peerage law has impelled me to avoid discussion of a number of interesting points which must be left for the attention of others more qualified for the task. 1 For example, the record of five meetings of the baron court of Long- forgan, stated to have been held in 1385-6, though the dates given in the printed transcript appear to be wholly irreconcilable (H.M.C., 3rd Rep., 410) ; a roll of a meeting of the baron court of Camnethan in 1390 (quoted by Andrew Stuart in Genealogical History of the Stewarts, 96) ; and ‘ The Court of the Barony of Harbertschire, haldin at Donypais on Friday the aucht and tuenty day of the moneth of Maii, the jeir of God ane thousand foure2 hundreth sexty and twa jeris ’ (Cambuskenneth, No. 91). Note by C. A. Malcolm in Sources and Literature of Scots Law (Stair Soc.), 129. vi COURT BOOK OF BARONY OF CARNWATH An erection in liberam baroniam was undoubtedly well understood at the time. But what was once sufficiently clear to preclude any necessity for contemporary definition has since become obscure ; so that now we are compelled to draw our conclusions largely from charter evidence, often not knowing whether the terms of this charter or of that are to be taken as an exception or as the rule. What might be true of one barony might be untrue of another ; whilst undoubtedly certain variations can be written down as wholly ultra vires and attributable solely to some weak- ness of the central authority. When, accordingly, I have been bold enough to seek some clear interpretation, or to draw some broad general conclusion, often in the face of conflicting evidence, I have been by no means unaware of my temerity. In citing evidence I have referred to the registers and chartularies of religious houses by the names in vernacular form : thus Arbroath, Vetus, stands for Liber S. Thome de Aberbrothoc, Registrum Vetus ; and Aberdeen for Registrum Episcopatus Aberdonensis. In a like way the three Court Books previously published by the Society—The Court Book of the Barony of Urie, 1604-1747 ; The Records of the Baron Court of Stitchill, 1655-1807 ; and The Forbes Baron Court Book, 1659-1678 (in the Society’s Miscellany, vol. iii.) —have been referred to as Urie, Stitchill, and Forbes, respectively ; the Sheriff Court Book of Fife (published by the Society in 1928) has been referred to as Fife. The following other abbreviations have been employed :— A. P.S. Acts of the Parliaments of Scotland. B. P. Balfour’s Practicks. H.M.C. Historical Manuscripts Commission [Reports]. R.M.S. Registrum Magni Sigilli Regum Scot- torum. PREFACE vii In my editorial work I have received willing and abund- ant help from other workers in the same field. Especially would I record my indebtedness to Mr. C. T. Mclnnes, who laboured in checking the proofs of the text against the manuscript; to Mr. H. H. Donnelly, who undertook the task of preparing the indexes ; and to Mr. William Angus, Keeper of the Registers and Records of Scotland, Pro- fessor R. K. Hannay, Mr. Thomas Innes of Learney, Albany Herald, and my colleague, Professor T. F. T. Plucknett, all of whom gave freely of their time in reading and in criticising different sections, or the whole, of my Introduction. Above all would I acknowledge the unselfish co-operation of my wife, who endured countless hours of silence in order that an attempt might be made to elucidate yet another problem in Scottish constitutional history. W. C. DICKINSON. London School op Economics and Political Science, March 1937. CONTENTS PREFACE v INTRODUCTION xi APPENDICES— A. The Burlaw Men ...... cxiii B. A Schedule of the Meetings of the Court . cxvii COURT BOOK OF THE BARONY OF CARNWATH, 1523-1542 1 INDEX OF PERSONS 213 INDEX OF PLACES 228 SUBJECT-INDEX TO THE INTRODUCTION . 232 INTRODUCTION I De commune ley chescun frank home deit aver court de ses tenantz In feudal law if a lord had tenants he could hold a court for them to which they were bound to pay suit and service. Such a court had cognisance of disputes between the lord and his tenants, or between the tenants themselves, relating to their holdings, to the payment of rents, and to other matters necessarily arising from the occupancy and labour- ing of the lands.1 Districtus inest omni dispositione natur- aliter : the right of the lord to hold a court for the definition of holdings, or to pursue his tenants ‘ for the maillis fermis and dewteis auchtand to him,’ was part and parcel of those rights and duties which were bound up with feudal tenure.2 In Scottish feudal law, however, and from an early time, the right to hold a court, even for the definition of holdings 3 or for the exaction of rents, seems to have been dependent upon an infeftment cum curiis. Whether, within the feudal 1 In a legal argument of 1382 authorities were cited to show that ‘ Quando controuersia vertitur inter dominum et vassallum super feodo vel tenemento quod in curia domini debet huiusmodo questio terminari ’ (Aberdeen,2 i. 149). ' In pleas of disputed titles to land, feudal theory gave sole juris- diction to the lord of the fief. No principle was more absolutely established than3 this ’ (McKechnie, Magna Carta, 2nd ed., 346-355). The five meetings of the baron court of Longforgan (H.M.C., 3rd Rep., 410), our earhest record of the holding of baron courts in Scotland, were concerned with this question of ‘ schawin of haldingis,' though other cases also may have come before the same meetings of the court. See also, for example, Aberdeen, i. 135, 141 et seq., 388-389. xii COURT BOOK OF BARONY OF CARNWATH period, the right had been always so dependent we cannot say. Certainly in charters of the beginning of the four- teenth century the right was always carefully defined, as though the curia were something that might be given or withheld1; certainly also an insistence upon a juris- dictional clause was later the accepted legal view.2 It may be that since the lord’s court in Scotland took cognisance also of bloodwites, which were quasi-criminal in nature, and which bore no relation to the holding of lands and to the services arising therefrom, the limitation of a right, otherwise inherent in the land, could well be maintained without disparagement to feudal law. But if infeftment cum curiis included jurisdiction in bloodwites and in simple actions of ‘ strife and trublance,’ it included nothing more. A court exercising any jurisdiction higher than this could be enjoyed only by virtue of some specific grant from the King.3 Our earliest recorded grant of such a higher jurisdic- tion is that of Alexander I conceding to the prior and brethren of Scone ‘ suam propriam curiam scilicet in duello in ferro in fossa et in omnibus aliis libertatibus ad curiam pertinentibus nec ulli respondeant nisi in sua curia 1 Cf. the ‘ secundum formam suarum cartarum ’ of Reg. Maj., i. ii. iA.P.S., i. 598). For early infeftments cum curiis given by a subject- superior, see Arbroath, Vetus, No. 339 ; Arbroath, Nigrum, No. 2. In this latter charter the court ‘ de hominibus infra dictam terram residentibus de innumerosis actibus inter semetipsos tantummodo contingentibus ’ is called2 Couthal, though that might possibly be a place-name.