Scotland, as I had occafion to obferve in a former part of this inquiry, the whole of the inhabitants were liable to make a pecuniary compenfation for the crimes committed by any individual. This affords a diftinct evidence of the intimate union fubfifting among the members of thofe little focieties, which were the bafis of the more extenfive combinations.

The inftitution of hundreds can scarcely be traced in Scotland; but the divifion of the whole kingdom into fhires, or counties, each under its own governour, the alderman or earl, and afterwards his deputy the sheriff, seems to be fully ascertained; nor can there be any reason to doubt, that the political business of the nation was ultimately determined by a great council, correfponding to the Wittenagemote in England. This council was in all probability compofed of the free or allodial proprietors of land; was called by the king in any important emergency; and exercised an authority which pervaded all the different branches of government.

The ariftocratical nature of this conftitution, which placed the supreme power in the independent proprietors of land, is abundantly manifeft.

manifeft. It is probable that, in the course of time, it became gradually more ariftocratical than it had originally been. Upon the first appropriation of land, it is natural to fuppofe that the occupiers were numerous, and the estates of individuals proportionably moderate. But in the turbulent and disorderly state of the country, men of small property were unable to defend their poffeffions; and therefore found it neceffary to refign their estates into the hands of fome powerful neighbour, and to hold them for the future as his vaffals upon conditions of military service. In this manner the number of independent proprietors was gradually diminished; the foundation of political influence was more and more contracted; and the right of fitting in the national affembly was at length limited to a few individuals who had accumulated great estates.

SECTION II.

OF THE GOVERNMENT OF SCOTLAND, FROM THE REIGN OF MALCOLM THE SECOND, TO THE UNION OF ITS CROWN WITH THAT OF ENGLAND.

1

THE fame darknefs which involves the firft period of the Scottish hiftory, and which enders it, in great measure, a field of mere conjecture, hangs over a confiderable part of the second. The commencement of the second period, however, is distinguished, according to the teftimony of all the hiftorians, by the reduction of the great lords, the remaining allodial proprietors of land, into a state of feudal dependence upon the king; an event fimilar to that which took place in England at the Norman Conqueft; and in France, during the reign of Hugh Capet and his immediate fucceffors. This fact is confirmed by a collection of antient laws, afcribed to king Malcolm the Second, in which it seems to be stated, though in vague and general terms, that this monarch,

monarch, by a courfe of tranfactions with his fubjects, became the feudal superior of all the lands in the kingdom.

As the account there given is contrary to the opinion of many British antiquaries concerning the origin of the feudal fyftem, they have generally difputed the authenticity, or at least the date of that antient record. We must acknowledge, that the information which it contains, with respect to an event of fuch importance, is very lame and unfatisfactory; and that, in many other particulars, it feems to be replete with blunders and inaccuracies. A conjecture has thence been suggested, which is highly probable, that the compilation in question was not made by public authority, in the reign to which it refers; but has been the work of a private individual, in a later age: and contains the ideas of the writer concerning the regulations introduced in the reign of Malcolm the Second. In this view, with all its inaccuracies and defects, it appears entitled to fome regard. It may be confidered in the light of a very antient and univerfal tradition, and, when fupported by the general testimony of historians, may be held of sufficient weight to counterbalance any flender

evidence which can, at this day, be thrown into the oppofite scale*.

Concerning the introduction of the feudal tenures into Scotland, there occur two particulars which merit attention. In the first place, it is the uniform doctrine of the antient lawyers and antiquaries who have written upon the fubject, that the feudal fyftem in Europe arose from the immediate act of the king, who, upon fubduing any country, laid hold of the land, and referving

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Lord Hales, an author whofe acute researches concerning antient facts, and whofe extreme caution in advancing any conjecture with respect to their caufes, are equally confpicuous, afferts that the collection of old laws afcribed to Malcolm the Second, is a plain and palpable forgery. In proof of this affertion he feems to depend chiefly upon two arguments, 1. The improbability of the fact ftated in the collection, viz. That the king gave away the whole land in Scotland to his men. Dedit, et distribuit totam terram de Scotia hominibus fuis, et nihil sibi retinuit in proprietate, nisi regiam dignitatem, et montem Placiti in villa de Scona." But it seems evident that the expreffion here made ufe of, is not meant to be literally underflood. The royal dignity cannot be confidered as a piece of land; and yet it is faid, that the king gave the whole land, except the royal dignity. By the royal dignity feems in this paffage to be meant those royal demefnes by which the dignity of the crown was fupported; and probably the lands diftributed to his fubjects,

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under