PUBLICATIONS OF THE SCOTTISH HISTORY SOCIETY SECOND SERIES VOL. VI SELECTIONS FROM THE RECORDS OF THE REGALITY OF MELROSE VOL. I November 1914 V SELECTIONS FROM THE RECORDS OF THE REGALITY OF MELROSE 1605-1661 Edited from the Original Volumes in the Register House, Edinburgh, and in the hands of Mr. James Curle, by CHARLES S. ROMANES, C.A. VOLUME I EDINBURGH Printed at the University Press by T. and A. Constable for the Scottish History Society 1914 C O N T E N T S INTRODUCTION . RECORDS OF THE REGALITY COURT OF MELROSE INTRODUCTION The Records of the Regality Court of Melrose dealt with in these volumes bring before us the operation of the system of heritable jurisdiction in Scotland at a time when its powers were waning. Little or no trace has come down to us of the earlier proceedings of the Court in which the Abbot, doubtless invested with larger powers, dealt with the temporal affairs of the Monastery, but the system of government which is illustrated in these pages is one which ran its course through many centuries, and its traces are not yet obliterated in Scotland. It is therefore appropriate that we should give a brief intro- ductory survey of its origin and its gradual development down to its practical extinction in 1747. Towards the end of the third century of our era we note the earliest movement into the Roman Empire of these bands of invaders of northern or eastern origin, whose incursions grew in frequency and magnitude as the foundations of the older civilisation decayed, until they not only overwhelmed Italy, but, gradually moving across central Europe, obtained a hold on Britain. The leaders of those invading tribes divided among themselves the territories which they subjugated ; and each in his turn subdivided his lands among his soldiers and others who became his vassals or feudatories. In the Leges Barbarorum, or codes of the laws of these tribes or nations, we have a compendium of their legis- lation with reference to the conquered ; and in the Styles of Marculfus, written about the year 660, we have the germs of our early English and Scottish writs and viii MELROSE REGALITY RECORDS charters. Among these styles, for example, will be found the grant to a duke or count of certain jurisdiction, requiring him to administer equal justice to all within his sphere; a bond of indemnity by a feudal lord to one who has killed another at his instigation ; and the form of sale of a serf.1 The right of possession acquired by these vassals became known by the new term ‘ Feudum,’ anglici, fee. Although there are grounds for believing that there were seats of jurisdiction with heritable rights and vassal- age in pre-Norman times, we must allow that the intro- duction of the feudal system into Britain at the time of the Norman Conquest is probably the earliest authenti- cated source of formal judicial administration in respect of territorial possessions, as what preceded it was more of the communal character. On Anglo-Saxon times we cannot dwell. The Roman ‘ villa,’ according to some authorities, was the archetype of the manor and barony.2 Not only was the English manor formed after the pattern of the Norman barony, which had a Roman origin, but the same features were exhibited in the Scottish barony and regality when the feudal system made its impress upon the south and south- west of Scotland on the establishment of English settlers or knights under the patronage of Scottish sovereigns. In modern parlance we understand a ‘ villa ’ to mean a mere residence, but among the Romans it represented a large landed estate held by some lord or great magnate in whom were vested extensive powers. Two enclosed courts surrounded the residence of the proprietor. The outer one contained the dwelling of the manorial or baronial officer, the common kitchen where 1 Marculfus, Formulae, I. c. 8 ; II. c. 18 and t. 22. 2 So Seebohm and others. Many scholars, however, assign to the manor a Germanic origin. INTRODUCTION ix the slaves cooked their food and performed their work, granaries and cellars where the produce of the estate was stored, cells where the slaves slept, and underground dungeons where they might be put in chains. The inner circle or court contained the stables and live stock. Out- side the enclosed area the land was worked by the slaves. Besides these slaves there were freemen, holders of allot- ments of land, who paid tribute to their lord in corn and other produce.1 Parallel in many respects to the Roman Villa is the English Manor in early times, which has been described as a territorial unit with judicial courts and local customs. A suggestive survey gives its main features as follows : (1) Castles and buildings in the demesne within and without the moat, with gardens, curtilages, dovecotes, fish-ponds, fields, and culturae with a certain number of acres of arable land in each culture of meadow and pasture. (2) Common pasture outside the demesne, on which the lord could place a limited number of beasts, with parks and demesne woods to cultivate and reclaim. (3) Woods outside the demesne, in which others have common rights with pannage, herbage, honey and all other issues of the forests, woods, moors, heaths, and wastes. (4) Mills having a monopoly of grinding (thirlage) for the tenants at fixed charges; fish-ponds, rivers, and fisheries, several and common. (5) Pleas and perquisites belonging to the county, manor, and forest courts. (6) Churches belonging to the lord’s advowson with heriots, fairs, markets, tolls and day works, services, foreign customs, and gifts, liberties, wardships, reliefs, and yearly fees. (7) Free tenants holding by socage, military service, 1 For a fuller account of the villa, see authorities quoted by Seebohin, The English Villfige Community, p. 263 et seq. MELROSE REGALITY RECORDS fee farm, or ‘in eleemosyna,’ by charter or not, and doing suit at the lord’s court. (8) Villein tenants, their tallage, day work, customary duties, and rents. (9) The officials, being the steward of the manor, the praepositus, and the bailiff. In formal terms a manor has been described as ‘an estate forming both a possessory and an administrative unit, with a hall as its administrative centre, having certain lands retained by its owner in his own hands and other portions holden of him by tenants, who were bound by custom to do rent and service to the lord.’1 A Scottish barony or regality resembled the English manor in all points of constitution. Subinfeudation was restricted in England by Charter 9 Henry in., which provided ‘ that no man should either grant or sell land without reserving sufficient to answer the demands of his lord ’; and by the Statute Quia Emptores, 18 Edward I., it was enacted that ‘ from henceforth it shall be lawful to every free man to sell at his own pleasure his lands . provided nevertheless that the feofee [subvassal] do hold the same ... of the chief lord of the same fee.’ New manors could only be created by the Crown, and held of the sovereign, but Scotland continued the granting of subfeus.2 The learned contributions of the late Professor Maitland, chiefly published by the Selden Society, and the valuable work now being done by,the Manorial Society, which is printing the forms, court rolls, and court books of the Lords of the Manor in England, afford a great deal of information regarding courts of heritable jurisdiction which cannot be obtained from Scottish records. 1 Hone, The Manor and Manorial Records, Preface, p. vi. 2 For further information on the history of the feudal system, we refer to Sir Thomas Craig, _/?«• Fendale, and Walter Ross, Lectures on Conveyancing, vol. ii. INTRODUCTION xi It appears that at an early period after the introduction of the feudal system the Scottish lord or chieftain owning estate approximately equivalent to the English manor became known as a baron, but the origin of the title is altogether obscure.1 The earliest mention of a baron in Scotland that has come to our knowledge is contained in the Charter of David I. (dating from 1124) giving the lands of Annandale to Robert Bruce.2 In a grant by David to Dunfermline, executed in 1125, we have barons mentioned together with earls.3 The powers of barony courts extended to the disposal of civil questions and bloodwits or lesser crimes, fines being exacted, sentences of imprisonment passed, and, even in some cases, when expressed in the grant under which they were constituted, capital punishment might be inflicted. It has, however, to be kept in view that these courts with all their powers were the outcome of a composite and gradual evolution during several centuries when lawlessness was more or less prevalent. Such terms as lord of regality, baron, sheriff, steward, etc., are hardly capable of rigid definition as they were more or less subject to a process of change. What might be at one time a rude custom would sooner or later develop into a more formal practice, with laws and regulations of control. While, therefore, adopting generally the strict definitions of our institutional writers, we have to keep in view the elastic character of all these offices. The development of a lavish system of granting herit- able jurisdiction to favoured vassals latterly led to great abuses, for the lower courts were parcelled out among the Lords of Regality and Barons, and even sheriffships were 1 5 Playfair, Baronage, vol. viii. p. I. Nat. MSS., Scotland, vol. i., No. xx., extracted from Duchy of Lancaster Charters,3 box A, No.