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  • Feature of the month: No.11 April 2010

Feature of the month: No.11 April 2010

The king’s brithem (Gaelic for 'judge’) and the recording of dispute-resolutions

Professor Dauvit Broun, PoMS Principal Investigator 1


In Scottish charters, much more so than in English charters, it is not uncommon to find a description of the bounds of the land that is the subject of the document. In some cases this includes information on how the bounds were legally established. The procedure is known as a 'perambulation’. In the first Latin charter given in translation below this is described in unusual detail. This can be supplemented by additional information in the second document (which was also originally in Latin). The second document, for example, makes it clear that the perambulation was the result of a dispute. This is not apparent from the first document. Putting both documents together also allows us to see something of how the perambulation was conducted. It was initiated by an instruction from the king to the justiciar, Gilbert earl of Strathearn, Matthew, bishop of Aberdeen, and Mael Brigte, the king’s brithem, to assemble on the land in question at Balfeith (in the parish of Fordoun) and end the dispute. The outcome was determined by a number of men of standing in the locality who swore an oath that they would, without fear or favour, establish the true border between the lands by physically walking the bounds. The key person in ensuring the proper conduct of the perambulation was the brithem (Gaelic for 'judge’: the Latin term is judex). 2 He administered the oath-taking, and he was called upon by the king and his court, more than two decades later, to certify that everything had been done correctly. The testimonial he produced on that occasion (below) is the only document produced by a brithem that survives.

Gaelic in the lowlands

The section of both documents that catches the eye is the list of perambulators. In the translation these have been rendered in standard Early Gaelic spelling. In the documents themselves, however, they are rendered according to different spelling conventions that are more at home in a Latin document of this period. Matching the spelling in the document against likely Gaelic names can involve some guesswork. In a few cases I have been defeated or lost my nerve, and have rendered them as they appear. (They are given within inverted commas.) In one case, the name of the presiding brithem himself, I have interpreted his name in the documents, Bricius, as a Latin equivalent for Mael Brigte (in the same way as some English names are used as equivalents for Gaelic names: e.g., Archibald for Giolleaspuig). It is possible, for example, that 'Bricio’ (i.e., Bricius), prior of the Céli Dé of Brechin who witnessed a charter (datable to mid-1178 × January 1188) alongside Domnall, ab of Brechin, 3 was the same person as 'Malbrido’ (i.e., Mael Brigte), prior of the Céli Dé of Brechin who witnessed a charter of Domnall, ab of Brechin himself (datable to 1202 × 1206). 4 Professor Barrow, who made this connection between Bricius and Mael Brigte, also identified the second person in the list of perambulators—Mael Brigte Mac Leóit—as the same prior of the Céli Dé of Brechin. 5

It is particularly striking that the perambulators, who are from Angus or the Mearns in the lowlands (roughly the area between the modern cities of Aberdeen and Dundee), all have Gaelic names. These were not merely peasants who worked on land in the immediate locality. Two are identified as 'of’ somewhere rather than son of someone. This shows that they were not from the same parish as the land that was being perambulated, and suggests that they were at the top of local society in their own parishes. Another perambulator is himself a brithem, while another is identified as 'son of the prior’ (possibly Mael Brigte Mac Leóit, prior of the Celí Dé of Brechin). The Gaelic language was clearly still strong in this part of the lowlands at the end of the twelfth century. In fact, Gaelic names remain predominant in a number of lists of perambulators both in Angus and elsewhere north of the Forth as late as about 1230.

Who wrote the list of perambulators?

A closer look at the names, though, reveals something unexpected. The first seven are shared by both documents in the same order. This is a remarkable coincidence. The second document, after all, was drawn up more than twenty years after the first. The obvious explanation is that they must share a written source. Plainly the second document could not have been copied the list from the first document because the second has more names. The inescapable conclusion is that the scribes who drew up these documents must each have copied the list from another record of the perambulation (now lost). The strong likelihood is that this earlier record belonged to. Mael Brigte, the brithem who wrote the second document. Hemust have had access to the original lost record, otherwise he would not have known the full list of names. If he kept the lost original record, then this could explain why he was the person the king turned to for an assurance that the perambulation more than twenty years earlier had been conducted properly. Also, he is named as a witness in the first document, and so was in a position to show it to whoever drew it up. The simplest explanation for why Mael Brigte had access to the original record (now lost) is that he wrote it himself. 6

The dead witness explained?

Did Mael Brigte’s original record of the perambulation contain anything else apart from a list of perambulators and the delineation of the bounds? In the Feature for March it was noted that Walter Scot the elder was named as a witness despite the fact that he had died before the charter was drawn up. Presumably Walter had been present when Balfeith—the subject of the perambulation—was ceremonially given to Arbroath Abbey by Humphrey de Berkeley. The question was left hanging about how Walter’s name came to be included when he was dead. It is now possible to suggest a solution. The simplest way to account for the inclusion of Walter Scot the elder as a witness in Humphrey of Berkeley’s charter would be to suppose that the witness-list had, like the list of perambulators, been copied from the original (lost) record of the proceedings kept by Mael Brigte, the king’s brithem. The naming of perambulators (or 'jurors’) and those who witnessed the process as two distinct groups is a feature of the earliest record of a perambulation (1219) that survives from lost 'rolls of the lord king’. 7 It would not be too difficult, therefore, to suppose that Mael Brigte’s record of the event also included the names of some of those who were present.

For this rather long chain of deduction to work, it is necessary to accept that Humphrey of Berkeley’s gift of his land of Balfeith and associated rights was made on the same occasion as the perambulation itself. This seems likely for a number of reasons. In general terms, a donation of land would be made secure by performing a ceremonial transfer (e.g., of a turf or stick) on the land itself in front of witnesses. It would, moreover, not be the first time that the resolution of disputed land was followed immediately by the gift of that land by the victorious party to a monastery. 8 There are also specific hints that the perambulation and the donation were linked. Not only has the process of perambulation been recorded in the charter of donation itself, but in his charter Humphrey states that it was 'done for me’. This brings to mind other less detailed donation charters where it is stated that the donor perambulated the land he was giving. This may, of course, mean that he personally trod the bounds. Equally, though, this could be a 'shorthand’ way of saying that he initiated the perambulation. With the detail of Humphrey’s charter before us, it looks as if the perambulation was conducted at his behest because he wanted to give Balfeith to Arbroath in good order. (This does not contradict Mael Brigte’s statement that he, the justiciar and the bishop of Aberdeen were instructed by the king to resolve the disputed bounds: Humphrey presumably had asked the king to intervene judicially, and the king responded by ordering the justiciar, bishop and brithem to arrange for the perambulation to take place.)

An innovation in procedure?

Charters were a novelty in Scotland in the early twelfth century, and to begin with they could be brief and simple. As the century wore on, however, they gradually became more detailed and formal. This poses a serious problem if we want to assess whether there was anything innovative about the procedure outlined in the two documents below. There are earlier charters which give information about perambulations, but not in the same way. Is that because less detail tended to be recorded, or is it because the procedure had changed? The perambulation in 1219 recorded in the rolls of the king (which has been mentioned earlier) is referred to as having been conducted 'according to the lawful assize of King David in use and approved in the kingdom of Scotland’. 9 David I’s enactment does not survive as a text, however, so it is very difficult to unravel what innovations he may have introduced. (There is also always a nagging doubt that David had nothing in fact to do with this, and that the procedure was attributed to him because of his fame.)

There is one innovation, however, that can be suggested: the creation of an 'official’ record of disputes resolved by perambulation. By 1219, as we have seen, a perambulation could be recorded in the 'rolls of the lord king’. This roll evidently did not function as a complete account of all perambulations or dispute-resolutions. It seems, instead, to have been available as a means of buttressing a settlement. For example, it is stated in a charter by one of the parties in a boundary-dispute that resulted in a perambulation in 1231 that the party’s concession of the perambulated bounds has been made more secure by being recorded in the rolls of the lord king. 10 The keeping of a central record of this kind is unlikely to have begun much before 1200. It may be compared to the Feet of Fines in England, beginning in 1195, which allowed parties in disputes over property to have a copy of the settlement retained centrally.As far as administrative records are concerned, the evidence (an all-too-brief inventory of Scottish royal archives in 1296) suggests that these may have begun to be kept in the 1190s: see RRS, ii. 58–9. Was the record kept by Mael Brigte the king’s brithem a precursor of the later central record kept on a roll? It may have differed in two key respects. First, it was evidently kept by Mael Brigte himself for his own use, rather than centrally. When the king wanted to verify the perambulation, Mael Brigte was not instructed to provide a copy of his record. He was merely told to certify that the perambulation had been conducted properly. Secondly, as a record kept for his own reference, it may be surmised that Mael Brigte would have recorded all the cases he presided over. If so, it would have been a completer record than the later 'roll of the lord king’ seems to have been. Might Mael Brigte’s 'case-book’ have been a trial initiative of the king or his household? It may be relevant that Mael Brigte is the first known brithem to have been designated 'king’s brithem’. If so, then this could be an example of how royal government, in their efforts to improve the administration of justice, worked with (and not against) the existing Gaelic social and judicial order. It is equally possible, however, that this was an innovation of Mael Brigte himself, and that he was alone in seeking to record all dispute-resolutions over which he presided. The evidence is exceptionally thin, and could be explained either way.

Redating the perambulation and the charter

The first document (below)—the charter of Humphrey of Berkeley’s gift of Balfeith to Arbroath—has been given a date-range by Professor Barrow of between 24 August 1198 (birth of Alexander II) × 20 August 1199 (death of Matthew, bishop of Aberdeen). RRS, ii. 395. If the charter was drawn up after the perambulation and donation-ceremony, however, then the fact that Bishop Matthew was present is no longer relevant in identifying its latest possible date. The charter’s witness-list cannot help either, of course, if it was copied from Mael Brigte’s record of the perambulation and donation. The latest possible date for the charter can best be established by King William’s confirmation, which refers to Humphrey’s charter. The royal confirmation is dated 'at Forfar on 16 March’, and includes the royal chaplains, Walter and William, among its witnesses. 11 Professor Barrow has observed that there seems usually to have been a pair of chaplains in the royal household. The royal confirmation charter may therefore be dated no later than December 1207, when Walter was elected bishop of Glasgow. 12

When, therefore, did the perambulation and donation take place at Balfeith? If it is accepted that the witness-list in Humphrey’s charter (below) has been derived from Mael Brigte’s record of the event, then, again, the appearance of Walter and William as royal chaplains catches the eye. The last appearance of Walter’s previous 'partner’ as royal chaplain, Ralph, is in a royal charter datable to no earlier than 31 December 1196 (RRS, ii. no. 407). The perambulation and donation cannot therefore be earlier than this. It must also have occurred, as noted above, before the death of Walter Scot the elder during the winter of 1197–8 (certainly some weeks before the consecration of Roger, bishop of St Andrews, on 15 February 1198). The walking of the bounds of Balfeith and the symbolic handing over of the estate to Arbroath Abbey may, therefore, with confidence be dated to sometime in 1197. 13

Dating a sheriff of the Mearns and a bishop of Brechin

This has implications for dating two other events. The reference in the second document (below) to Humphrey of Berkeley as sheriff (of the Mearns) at the time of the perambulation is the only evidence that he held this office. Instead of dating Humphrey as sheriff sometime in or before 1199, 14 all we can say is that he was in post in 1197. The second depends on the suggestion that Ralph, the royal chaplain who was replaced by William sometime after 31 December 1196, became bishop of Brechin. 15 It was not uncommon for a royal chaplain to be promoted to high ecclesiastical office, so the rough coincidence between the disappearance of Ralph the chaplain and the election of Ralph the bishop is perfectly plausible. The earliest occurrence of Ralph as bishop-elect is in a charter datable to 24 August 1198 × 17 March 1199. 16 If William, Ralph’s replacement as a royal chaplain, witnessed the perambulation and donation of Balfeith in 1197, then this would in turn suggest that Ralph had already been promoted at least a year (give or take a month or two) earlier than had previously been known. This, in turn, makes the coincidence between the departure of Ralph as a royal chaplain and the election of a certain Ralph as bishop of Brechin significantly tighter, so that it becomes all but certain that the two are one-and-the-same person.

Document 1: Charter of Humphrey of Berkeley giving Balfeith to Arbroath Abbey

Translated from Cosmo Innes (ed.), Liber S. Thome de Aberbrothoc (2 vols) Bannatyne Club, vol.i, (Edinburgh, 1848), 60–1 (no.89), and checked against the unpublished cartulary of Arbroath Abbey: London, British Library, MS Add. 33245, fo. 145v.

24 August 1198 × December 1207

Humphrey of Berkeley to all his men and friends and to all who will see or hear this charter: greeting.
May those in the present and the future know that I, for the souls of Kings David and Mael Coluim, and Earl Henry father of my lord King William, and for my lord’s soul, and those of E[rmengarde] my lady, queen of Scots, and Alexander their son and their other children, and for my soul and the soul of my wife and my heirs after me, have given and granted and by this charter established to God and the church of the blessed Thomas, martyr, of Arbroath and to the monks who are serving, and will be serving God, there
the whole land of Balfeith which was perambulated for me—according to the assize of the realm, in front of the lord Matthew, bishop of Aberdeen and Earl Gilbert, earl of Strathearn—by Oengus mac Donnchada and Mael Brigte Mac Leóit 17 and Dubscolóc of Fetteresso and Murchad and Mael Muire mac Gille Mícheil and Gille Críst mac Flaithbertaig and Cormac of Nigg and other men of standing of the lord king in Angus and the Mearns, and sworn by the same men as pertaining to the land which the lord king gave to me for my homage and service:
that is, between [i] the burn of Monboddo and the water of Bervie, [ii] the Bervie running on one side and the burn of 'Fewth’ on the other side as it flows into the Bervie, and [iii] the bounds of the land of the son of Sibbald,
with common pasture—as much from my wood (as much as may be needed from there by them for their buildings and the buildings of those who may live on that land) as by all other means of access to the peat and pasture of my feu of Kinkell and Conveth—so that they and their men can have at pasture a hundred beasts and their young and as many pigs as may be appropriate for them to have in the aforesaid land, and horses likewise; also they and their men are permitted to have a shieling from Easter to All Saints for the rearing of their aforesaid beasts where they see fit either in Tipperty or in Corsebauld or in Glenfarquhar; and with the freedom to construct and possess a mill in that land so that they may have their milling freely and peacefully, and their men likewise:
to be held in free and pure and untroubled alms freely and untroubled by army-service and hosting and from all aids and gelds and all labour-services and guard-duty and from all pleas and complaints, from all customs and from all services and secular exactions so that I and my heirs after me shall release them for all time and answer for all services and incidental demands which pertain or could pertain to the aforementioned land or the beasts which are on it, so that the aforesaid monks or their men living on that land shall perform no service for the aforesaid land to me or to my heirs or any other living person except a divine mass to intercede on our behalf.
As witnesses: William and Walter chaplains of the lord king, William Comyn, William Giffard, Philip de Moubray, Mael Coluim son of Earl Donnchad and Donnchad his brother, Adam son of Abraham, Walter Scot and Walter his son, Richard son of William Comyn, William Wood and Gilbert of Stirling, clerks of the lord king, Agatha my wife, Mael Brigte brithem, David the doorward, Mael Coluim the butler, Humphrey the young, Robert of Inverkeilour, Robert Mansell, Philip de Melville, Donnchad of Arbuthnott, John de Montfort, Simon of Inverbervie, Hugh son of Hugh of Benvie, Adam the white.

Document 2: Testimonial declaration by Mael Brigte brithem of the king

Translated from edition in G. W. S. Barrow, The Kingdom of the Scots, 2nd edn (Edinburgh, 2003), 66–7, with names of perambulators checked against the unpublished cartulary of Arbroath Abbey: London, British Library, MS Add. 33245, fo.163r

11 November 1221

May all who see or read this writing know that I, Mael Brigte, brithem of the lord king, wishing to present faithful evidence about matters which I truly know, declare before God and his saints that when there was a certain quarrel between Humphrey of Berkeley and Walter son of Sibbald about the bounds of the lands of the same Humphrey which the lord King William gave him for his homage and service, and of the lands of the same Walter, and of the rights pertaining to these lands, Matthew, bishop of Aberdeen and Gilbert, earl of Strathearn, at that time justiciar of the lord king, had met on Humphrey’s and Walter’s lands on the instruction of the lord King William. And I, Mael Brigte, brithem of the lord king, was present together with them on the instruction of the lord king to break off the dispute between the aforesaid knights by means of good men who would perambulate the lands of the knights according to the assize and custom of the realm.
As a result a walking was conducted that day by good men who knew well the bounds of the lands of the aforesaid knights and who, after accepting the shrine from my hand, swore that they would be negligent neither on account of any gift nor on account of fear of Humphrey of Berkeley, who was sheriff at that time, but would perambulate justly the rightful bounds of the aforesaid lands. A perambulation was therefore conducted by these bounds, namely from the moss as far as the wood, and from the wood as far as a spring, and from the spring as far as the deep ford, and from the ford as far as the 'Feach’, and then turning east so that they left Balfeith behind on the right side; and so they descended as far as the Bervie. These, then, were the perambulators who swore:
Oengus mac Donnchada, Mael Brigte Mac Leóit and Dubscolóc of Fetteresso and Murchad and Mael Muire mac Gille Mícheil and Gille Críst mac Flaithbertaig and Cormac of Nigg, 'Boli’ mac Gille Ferchair(?), Donnchad brithem, Gille Pátraic mac in prior, Mael Ísu 'Machormandi’, Gille Críst 'Macblei’, Coinnech 'Macblei'.
And I declare here at Forfar on St Martin's Day on the year after the lady Queen Joanna first entered Scotland, in front of our lord King Alexander and in front of the lord William Wood, chancellor of the lord king, and the lord Thomas, clerk, John Maxwell steward of the lord king, and the lord Hervey of Kinross, and the lord John de Hay, and the lord Robert of Inverkeilour, sheriff of the Mearns, Adam steward of the lord abbot of Arbroath, and many others. And I have affixed my seal to this writing for the greater security of this business for the future.

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