Page:English Historical Review Volume 35.djvu/189

 1920 BARONY AND T MANAGE 181 that barons as such had a court, and that to a court belonged properly justice of ordeal and justice of life and limb, is borne out by the evidence of the law-books which the destruction of Scottish records during the war of independence has left as the only authoritative statement of Scottish law at the close of the thirteenth century.^ There we read that all barons who had gallows and pit of theft had also gallows of manslaughter, but that when either of those pleas had been followed and answered in their court, they might not make concord without the king's leave,^ nor might they hold court of life and limb or of judgement of battle or water or hot iron unless the sheriff or his Serjeant were there to see justice done.^ The obvious inference is that in Scotland every baron as such had a court in which the duel could be held and the penalty of death or mutilation could be inflicted. Even in the sixteenth century, ' Generaliter in hoc regno ', wrote Sir John Skene, ' Barones dicuntur qui tenent terras suas de rege per servitium militare, per albam firmam, feudi firmam, vel aliter, cum furca et fossa '.* Indeed, down to the abolition of the heritable jurisdictions in 1747, the baron was always understood to be ' he who is infeft with power of pit and gallows, fossa et furca, in any lands, though not erected into a barony ' ; ^ and, in consequence, had the same power as the sheriff to judge all but the four pleas of the Crown — murder, rape, arson, and robbery — so that if a man were slain on his ground by one of his tenants, the sheriff could take no action until and unless the baron unlawed his tenant.^ Thus it appears that in Scotland barony, like the thanage out of which it came, the ' Regiam Maiestatem ' was but an extract from Glanvill's Tractattis de Legibus Angliae ; and it has even been suggested that they were deliberately fabricated by Edward I to assimilate Scottish law to English. If this were really the case, we should have to regard their statements as decisive evidence as to what tenure by barony was in England at the end of the thirteenth century ; but the fact that they were treated as authoritative after the English had been driven out makes it much more likely that they were compiled by Scottish lawyers to replace the records lost during the war of independence, and if so, can be regarded as authoritative only for Scottish law at that time. But if the law of the twelfth-century English law-books was identical with that of Scotland in the fourteenth century, the presumption is strong that English institutions in the twelfth century were identical with Scottish ones in the fourteenth century. " Assisa Regis David ; Acta oj the Parliament of Scotland, i. 13. Cf. Leges Henrici, c. 80 (6). ^ Assisa Regis Alex. II, c. 14 ; Acts, i. 374-5. Cf. Leges Edw. Conf. c. 9. The jurors who in 1258 returned the names of several thieves lately beheaded in Northum- berland baronies always noted that the beheading was in the presence of the king's bailiff {Northumberland Assize Rolls, pp. 70, 73). ' i. e. though held, not by free barony, or knight-service, but in fee-farm. ' Sir George Mackenzie, Laws and Customs of Scotland in Matters Criminal (1678)> pp. 417-18.
 * The Scottish law-books have been suspect ever since Lord Hailes showed that
 * Leges Scotiae (1609), p. 1 b.