This deed was first made known by the learned antiquary John Selden, who printed it in his ‘Titles of Honor’ (p. 700) to illustrate his remarks upon the title of Thane. It is in the form of letters patent, and not of a charter; and is addressed by William, King of Scots, to all bishops, earls, abbots, priors, barons, knights, thanes, and provosts, and all other good men of the whole land, as well cleric as laic. It then narrates that Morgund, son of Gillocher, formerly Earl of Marr, had come before the king at Hindhop Burnemuthe, in his new forest, on the tenth day of the calends of June, in the year of grace 1171, demanding his right to the whole earldom of Marr, before the common council and army of the kingdom of Scotland there assembled: that the king had caused inquisition to be made into his claim by several men worthy of credit, who were barons and thanes of his kingdom, and who found that Morgund was the lawful son and heir of the said Gillocher, Earl of Marr; upon which the king granted and restored to Morgund the whole earldom of Marr, in which his father Gillocher had died vest and seized, to be held by the said Morgund and his heirs of the king and his heirs in fee and heritage, with all pertinents, liberties, and rights, as freely, quietly, fully, and honourably as any other earl in the kingdom of Scotland; he and his heirs rendering to the king and his heirs the ‘forinsecum servicium videlicet servicium Scoticanum,’ as his ancestors had been wont to render to the king and his ancestors. Further, on the same day and at the same place, after doing homage before the common council of the kingdom, the said Morgund demanded that right should be done him for the whole earldom of Moray, in which Gillocher his father had died vest and seized; upon which petition, inquisition having been made by several men worthy of credit, who were barons, knights, and thanes of the kingdom, they found that Morgund was the true and lawful heir of the earldom of Moray; and because at that time the king was engaged in the heavy war between him and the English, and the men of Moray could not be subjected to his will, he was unable to do justice to Morgund, he promised that, when he could terminate the war between him and his enemies, and subjugate the rebels of Moray, he would well and truly recognise the right of Morgund and his heirs to the earldom of Moray. And in order to certiorate to others this deed, the king gave these letters patent to the said Morgund. They then conclude with these words: ‘Teste meipso eodem anno die et loco supradicto.’ This is undoubtedly a very remarkable production, if genuine; and Selden adds: ‘I have it writ in parchment in a hand of the time wherein it is dated, but without any seal to it.’ It is referred to by Lord Hailes in his additional case for the Countess of Sutherland, without any doubt being expressed as to its authenticity; and no suspicion seems to have attached to it till the late George Chalmers assailed it in 1819 in a paper printed in the nineteenth volume of the ‘Archæologia’ (p. 241). In this paper he proposes to show that this document is supposititious. He states his objections to it under nine heads, and concludes that Selden had been imposed upon with a spurious deed. His first objection relates to the orthography of the document; the second to the formula of the address; the third to the history of the earldom; the fourth to the minuteness of the date; the fifth to the reserved services; the sixth to the claim to the earldom of Moray; the seventh to the allusion to the war with England; the eighth to the form of letters patent; and the ninth to the words ‘teste meipso,’ which is peculiar to letters patent as distinguished from charters, which at this period invariably have a list of witnesses. The form ‘teste meipso’ first occurs, he says, in 1190.

Professor Cosmo Innes, in his preface to the first volume of the ‘Acts of Parliament,’ alludes to this document, ‘the authenticity of which,’ he says, ‘however, is very doubtful;’ and he prints it in a note with the following remarks; ‘Selden’s authority is not lightly to be rejected; and some of the reasons against the genuineness of this charter, urged by the late Mr. Chalmers in a paper in the “Archæologia,” founded on the spelling, etc., are of no weight. But it is open to serious objections, whether we consider the narrative or the occasion, and the time and place of its granting and the manner of testing. For instance, it is almost certain that in 1171 there was no war with England. On the other hand, it is difficult to devise a motive for inventing such a document. If it should be considered a very early forgery it is scarcely less important than if admitted to be genuine’ (p. 13). Professor Innes’s authority on such a question is of course very great; and not less so is that of the late Dr. Joseph Robertson. He says, in the ‘Antiquities of the Shires of Aberdeen and Banff,’ vol. iv. p. 691, that ‘Earl Morgund is said to have been the son of Gillocher, Earl of Marr. But this rests only on the letters patent of King William the Lion, first printed by Selden, which I think it is impossible to receive as authentic. The facts which they set forth may perhaps be true in part, but as a whole I don’t see how they are to be reconciled with what is elsewhere recorded on undoubted authority. Nor do I think that the letters can be successfully defended from the objections to them on other grounds—such as their style, the time and place of granting, and the manner of testing. I must, therefore, believe them to be spurious. It is obvious, at the same time, that they were forged at an early period. The learned and accurate Selden thought them to be in a hand of the time, and they seem to be alluded to in the year 1291. They may have been forged at that time, or more probably during the contests for the earldom of Marr between the earl in possession and Thomas Durward before 1228, and between Earl William and Alan Durward in 1257. These contests supply what seems to have been thought wanting—”a motive for inventing such a document.”’

In the main I concur with the opinions of the late Professor Innes and Dr. Joseph Robertson, and especially with that of the latter, which shows his usual acuteness and sagacity. I consider that the first and second objections made by Chalmers have no weight. With regard to the third, which is that the deed is inconsistent with the known history of the earldom, there is good reason for thinking that some such transaction really took place; for Sir Francis Palgrave prints, in his ‘Documents and Records relating to the Affairs of Scotland,’ preserved in the Treasury of Her Majesty’s Exchequer, an appeal prepared in the name of the seven earls of Scotland, and of the community of the realm, to Edward the First of England, which concludes with the following memorandum: ‘That when William, King of Scotland, restored to Morgund, son of Gyloclery, the predecessor of the Lord Dovenald, Earl of Marr, this earldom of Marr, according as the same is contained in a writing which Dovenald, Earl of Marr, possesses, there was wanting then to the said Morgund, and there is still wanting to the earl, three hundred pound land, partly in domain and partly in holdings and more, for which he claims that right should be done him’ (Palgrave, p. 21). The writing here referred to seems to have been this very deed. The fourth and fifth objections have also no weight. Hindhop Burnemuthe is a hamlet on the coast about five or six miles south of Berwick, and there is no improbability in there having been a royal forest there while Northumberland belonged to the Scottish king. With regard to the sixth objection, that the Earl of Marr could have no claim to the earldom of Moray, the documents printed by Sir Francis Palgrave, in connection with the competition for the crown, do show that the Earl at that time did claim to represent the earldom of Moray; for in the same document Dovenald, Earl of Marr, appeals in name of himself as one of the seven earls of Scotland, and in name of the freemen of Moray, and the other relations, connections, and friends of the said Earl. But while I reject all these grounds of objection as not conclusive, I am obliged to admit that the seventh objection, which relates to the allusion to the war with England, and to insurrection in Moray, is fatal to the authenticity of the deed. The war with England did not commence till two years afterwards, in 1173; and the insurrection in Moray broke out after the captivity of the king in 1174, and Moray continued in a state of rebellion from that year till 1181. But during the first eight years of King William’s reign he was at peace with England, and there was no appearance of the royal authority not having been recognised in Moray. Unfortunately it is during this period that the supposed letters patent are dated. Then as to the last two objections, which relate to the form of the deed as letters patent, and form of the testing, ‘teste meipso,’ there is no instance, so far as I am aware, of this form being used at as early a period as the reign of William the Lion.

It is somewhat remarkable, that while these distinguished antiquaries were discussing the question of the authenticity of the letters patent as printed by Selden, it seems never to have occurred to any of them to endeavour to ascertain what became of the original, which Selden said he possessed, and whether it might not be recovered. Selden left his papers to Sir Matthew Hale, and Hale left his to the benchers of Lincoln’s Inn, by whom they were deposited in their library. The search was therefore not a difficult one, and on examining these papers the so-called original was at once found, which I have had photographed by the autotype process. It is undoubtedly a very old document, but not so old as the reign of King William the Lion. The handwriting is, I think, that of the early part of the reign of King Alexander the Third, and it must have existed prior to the document printed by Sir Francis Palgrave already quoted. In this reign, too, there are frequent specimens of deeds in the form of letters patent with the form of ‘teste meipso.’ Three of them are printed in the National MSS. of Scotland, Nos. 62, 63, and 64, and dated respectively in 1261, 1275, and 1282, and if the handwriting is compared it will be seen at once that this document belongs to the same period. The Earl of Marr at this time was William, grandson of Morgund by his son Duncan. He was one of the most powerful barons of Scotland at the time, and was chamberlain of Scotland in 1252. He was one of those who were removed from the administration of affairs in Scotland at the instance of King Henry the Third of England in 1255, being replaced, among others, by Alan Durward. He was recalled to the king’s council in 1257, and took a leading part in Scotland till the year 1273, when he appears to have died. Now we find that in 1257 a question was raised between Alan Durward and William, Earl of Marr, as to the right of the latter to the earldom. A papal rescript issued in that year, directing an inquest to be held, proceeds on the narrative that ‘Our beloved son the nobleman Alan called the Dorrward hath signified to us that, whereas the nobleman William of Marr of the diocese of Aberdeen hath withheld the earldom of Marr of right belonging to the aforesaid Alan, and the same doth occupy to the prejudice of him the said Alan, and that Morgund and Duncan deceased, to whom the said William asserts his succession in the said earldom, were not begotten in lawful matrimony,’ William, however, remained in possession, and certainly the production of a charter finding that Morgund was the lawful son and heir of his father, and containing a grant of the earldom to him and his heirs, would be most opportune in determining this question, and, if a genuine deed of this kind did not exist, probably the earl would neither have much difficulty nor much scruple in producing one that would pass muster. If the letters patent are a forgery, I think it must have been manufactured about this time, and I am not sure that we have far to seek for the forger. A charter by William, Earl of Marr, confirming a grant by his grandfather, Morgund, in 1267, is witnessed among others by ‘Magistro Ricardo Veyrement.’ This Master Richard Veyrement was one of the canons of St. Andrews, and I have shown in the introduction to Fordun’s Chronicle that he is probably the author of a ‘Historia’ which existed in the Great Register of St. Andrews, now lost; and the veritable Veremundus, from whom Hector Boece says he derived a great part of his fabulous history. His connection with William, Earl of Marr, at this very time, and his witnessing a charter confirming a grant by that Morgund whose legitimacy was challenged, certainly leads to the suspicion that the clever manufacturer of these letters patent was no other than the arch-forger of the spurious history of Scotland, and that if he had not been unfortunate in the selection of his date, it might even now have escaped detection.

The following is the text of the document:—

The earldom of Caithness was possessed for many generations by the Norwegian Earls of Orkney. They held the Islands of Orkney under the King of Norway according to Norwegian custom, by which the title of Jarl or Earl was a personal title. They held the earldom of Caithness under the King of Scotland, and its tenure was in accordance with the laws of Scotland.

We find from the Orkneyinga Saga that during this period the Orkney Islands were frequently divided into two portions, and each half held by different members of the Norwegian family, who each bore the title of earl. We likewise find that the earldom of Caithness was at such times also frequently divided, and each half held by different Earls of Orkney, though whether both bore the title of Earl of Caithness does not appear.

It is unnecessary for our purpose to go further back than the rule of Thorfinn, Earl of Orkney, who died about A.D. 1056, and undoubtedly held the whole of the Orkneys and the entire earldom of Caithness for a long period.

He had two sons, Paul and Erlend, who after his death ruled jointly without dividing the earldoms, and their descendants may be termed the line of Paul and the line of Erlend.

After their death the islands were divided between Hakon, son of Paul, and Magnus, son of Erlend, each bearing the title of earl. The latter was the great earl known as St. Magnus. After his death, Earl Hakon appears to have possessed the whole.

Earl Hakon had two sons, Harald Slettmali and Paul, who again divided the islands, each having an earl’s title, but Earl Harald appears to have held the whole of Caithness from the King of Scots. On his death Earl Paul obtained possession of the whole.

In the meantime the line of Erlend failed in the male line, in the person of Earl Magnus, but his sister Gunhild married a Norwegian called Kol, and had by him a son Kali, who claimed a share of the islands, when the King of Norway gave him the name of Rognwald, an earl’s title, and divided the islands between him and Earl Paul.

Earl Paul’s sister Margaret had married Maddad, Earl of Atholl, and had by him a son Harald, and, by a revolution which took place, Earl Paul abdicated, and his nephew Harald was made earl in his place, and shared the islands with Earl Rognwald. The latter then went on a pilgrimage to Jerusalem, and in his absence Malcolm IV. made Erlend Ungi, son of Harald Slettmali, Earl of Caithness, and gave him half of Caithness, Earl Harald Maddadson having the other half.

Earl Rognwald then returns, and on Erlend’s death Orkney and Caithness were shared between him and Earl Harald.

The line of Erlend again failed on the death of Earl Rognwald, who left an only daughter Ingigerd, who married a Norwegian, Eirik Slagbrellir, and had three sons, Harald Ungi, Magnus Mangi, and Rognwald, and three daughters, Ingibiorg, Elin, and Ragnhild.

Earl Harald now possessed Orkney and Caithness, but soon after the King of Norway gave Harald Ungi an earl’s title with the half of the Orkneys, and by agreement with Earl Harald, King William the Lion gave Harald Ungi the half of Caithness which had belonged to Earl Rognwald, but they afterwards quarrelled, and Earl Harald Ungi was slain by the other Earl Harald, who again possessed the whole.

Owing to the mutilation of the Bishop of Caithness by Earl Harald, he was attacked by King William in 1201, and only allowed to retain Caithness on payment of 2000 merks of silver, while the district of Sutherland was taken from him and given to Hugo Freskin de Moravia.

Earl Harald died in 1206, and was succeeded by his son David, who died in 1214, when his brother John became Earl of Orkney and Caithness. Fordun tells us that King William made a treaty of peace with him in that year, and took his daughter as a hostage, but the burning of Bishop Adam in 1222 brought King Alexander II. down upon Earl John, who was obliged to give up part of his lands into the hands of the king, which, however, he redeemed the following year by paying a large sum of money, and by his death in 1231 the line of Paul again came to an end.

In 1232, we find Magnus, son of Gillebride, Earl of Angus, called Earl of Caithness, and the earldom remained in this family till between 1320 and 1329, when Magnus, Earl of Orkney and Caithness, died; but during this time it is clear that these earls only possessed one half of Caithness, and the other half appears in the possession of the De Moravia family, for Freskin, Lord of Duffus, who married Johanna, who possessed Strathnaver in her own right, and died before 1269, had two daughters, Mary married to Sir Reginald Cheyne, and Christian married to William de Fedrett, and each of these daughters had one-fourth part of Caithness, for William De Fedrett resigns his fourth to Sir Reginald Cheyne, who then appears in possession of one-half of Caithness (Chart. of Moray, Robertson’s Index). These daughters probably inherited the half of Caithness through their mother Johanna.

Gillebride having called one of his sons by the Norwegian name of Magnus, indicates that he had a Norwegian mother. This is clear from his also becoming Earl of Orkney, which the King of Scots could not have given him. Gillebride died in 1200, so that Magnus must have been born before that date, and about the time of Earl Harald Ungi, who had half of Caithness, and died in 1198. Magnus is a name peculiar to this line, as the great Earl Magnus belonged to it, and Harald Ungi had a brother Magnus. The probability is that the half of Caithness which belonged to the Angus family was that half usually possessed by the earls of the line of Erlend, and was given by King Alexander with the title of Earl to Magnus, as the son of one of Earl Harald Ungi’s sisters, while Johanna, through whom the Moray family inherited the other half, was, as indicated by her name, the daughter of John, Earl of Caithness of the line of Paul, who had been kept by the king as a hostage, and given in marriage to Freskin de Moravia.

Magnus, Earl of Orkney and Caithness, the last of the earls of the Angus line, died before 1329, when ‘Caterina‘Caterina Comitissa Orcadiae et Cathanesiae’ grants a charter ‘in viduitate.’ In 1330 we find a claim on the earldom of Caithness by Simon Fraser and Margaret his spouse, one of the heirs of the Earls of Caithness (Acta Parl. vi.). In 1331 we find Malise, Earl of Stratherne, charged on the Chamberlain Rolls (p. 404) with the rents of the fourth part of Caithness; and in 1334 Malise appears as earl of the earldom of Stratherne, Caithness, and Orkney (Chart. Inchaffray). It is clear, therefore, that the half of Caithness which belonged to the Angus earls, had like the other half passed to two co-heirs, and that the title of earl, with one-fourth of the earldom, had gone to the Earl of Stratherne, and the other fourth to Margaret, wife of Simon Fraser.^[531]

There is some difficulty in clearing up the history of the last few earls of Stratherne, and of discriminating between them, as they all have the name of Malise. The first of the name of Malise was the son of Robert, Earl of Stratherne, and Fordun (Bower) fixes the date of his death when he says, in 1271, ‘Malisius comes de Stratherne in partibus Gallicanis decessit et apud Dunblane sepelitur.’ In giving the death of Magnus, king of Man, in 1269, he adds, ‘cujus relictam comes Malisius de Stratherne postea duxit videlicit filiam Eugenie de Ergadia;’ but the postea refers to after 1271, and this was the second Malise the son of the former, for we find in 1291, Malise, Earl of Stratherne, does homage to Edward I. at Stirling on 12th July, and twelve days after ‘Maria Regina de Man et Comitissa de Stratherne’ does homage at Perth in presence of Earl Malise. He died before 1296, as among the widows who are secured in their possessions by the King of England in that year is ‘Maria quæ fuit uxor Malisii Comitis de Stratherne.’

In point of fact Malise (2d) must have died before February 1292, for in that year ‘Maria Comitissa de Stratherne quæ fuit uxor Hugonis de Abernethyn’ is summoned to Parliament to show cause why Alexander de Abernethyn, son of Hugo, should not have his lands in Fyfe and Perth (Act. Parl. vi.); and that she was not the same Maria as the Queen of Man is clear from this, that she appears along with her in the list of widows in 1296 as ‘Maria quæ fuit uxor Hugonis de Abernethyn.’ She must therefore have been the wife of Malise (3d), son of Malise (2d).

This Malise (3d) is said in Wood’s ‘Peerage’ to have been killed at the battle of Halidon Hill in 1333; but he died long before, for we find that his second wife was Johanna de Menteith, whom he married in the reign of Robert Bruce, as that king confirms a grant by Malise, Earl of Stratherne, to Johanna, daughter of John Menteith, his spouse (Rob. Index), and she after his death married John, Earl of Atholl, for there is in Theiner a dispensation in 1339 for the marriage of Johanna, Countess of Stratherne, widow of John, Earl of Atholl, to Maurice de Moravia. Now this John, Earl of Atholl, was himself undoubtedly killed at the battle of Halidon Hill in 1333. In point of fact Malise (3d) must have died before 1320, for King Robert also grants a charter to Maria de Stratherne, wife of Malise of Stratherne, of the lands of Kingkell, Brechin, which were David de Brechin’s (Rob. Index). She must have been therefore married to Malise (4th) during the lifetime of his father Malise (3d), as he is not termed earl; but this Maria is undoubtedly the Comitissa de Stratherne who was implicated along with David de Brechin and William de Soulis in a conspiracy in 1320 (Fordun), and Malise (4th) must then have been earl.

Malise (3d) had two daughters—Matilda, married to Robert de Tony, and Maria to Sir John Murray of Drumsagard; for in 1293 we find him contracting for the marriage of his daughter Matilda, then under 20, to Robert de Tony (Hist. Doc. i. 394); and in the Chartulary of Inchaffray are two charters by Malisius Comes de Stratherne to John de Moravia and his heirs by Maria filia nostra; and his son Malise (4th) confirms a grant soon after 1319 by Malisius ‘pater noster quondam comes de Stratherne’ to John de Moravia et Maria filia Comitis.

In 1320, Malise, Earl of Stratherne, signs the letter to the Pope. This must have been Malise (4th); and in 1334, in a charter in which he styles himself earl of the earldoms of Stratherne, Caithness, and Orkney, he grants to William, Earl of Ross, the marriage of his daughter Isabel by Marjory his wife, declaring her his heir of the earldom of Caithness failing an heir-male of the marriage of the said Earl Malise and Marjory (Cart. Inch.) She must have been his second wife. It has usually been assumed that Isabel married the Earl of Ross, but this is impossible, for in another deed in 1350 the Earl of Ross styles Marjory, Countess of Stratherne, his sister. He was therefore Isabel’s uncle, and the deed was granted at the time of Earl Malise’s forfeiture, when Isabel was probably still a child, and was intended if possible to protect the succession.

Earl Malise (4th) had several other daughters. In 1353 Erngils, a Norwegian, gets from the King of Norway the title of Earl of Orkney in right of his mother Agneta, which he forfeits in 1357. In that year Duncan son of Andrew protests for Alexander de le Arde in right of his mother Matilda, called eldest daughter of Earl Malise. In 1364 Euphemia de Stratherne appears as one of the heirs of the late Earl Malise. In 1374 Alexander de le Arde resigns his rights through his mother Matilda to the King. In 1379 Henry St. Clair and Malise Sperre claim the Earldom of Orkney. Henry becomes earl and calls his mother Isabella St. Clair in a charter of lands of which she was heiress. Matilda was probably daughter of Maria the first wife, and the little favour shown to her rights may have arisen from her mother’s complicity in the conspiracy in 1320. The other daughters were probably children of Marjory, and the Earl of Ross appears to have married his niece Isabella to Sir William St. Clair, the father of Henry.

It is clear the right to Orkney and Caithness could not have come to the Earls of Stratherne through the Queen of Man, wife of Malise (2d), nor through either of the wives of Malise (4th), as his daughters by both wives claimed. He must, therefore, have derived his right through his mother, one of the wives of Malise (3d), but this could not have been Johanna de Menteith, and therefore Maria, widow of Hugo de Abernethyn, seems the only possible heiress of the earldom of Caithness.

The genealogies of the Afghaun tribes may be paralleled with those of the Clans; the nature of their favourite sports, their love of their native land, their hospitality, their address, their simplicity of manners, exactly correspond. Their superstitions are the same, or nearly so. The Gholée Beabaun (demons of the desert) resemble the Boddach of the Highlanders, who ‘walked the heath at midnight and at noon.’ The Afghaun’s most ordinary mode of divination is by examining the marks in the blade-bone of a sheep, held up to the light; and even so, the Rev. Mr. Robert Kirk assures us, that in his time, the end of the sixteenth century, ‘the seers prognosticate many future events (only for a month’s space) from the shoulder-bone of a sheep on which a knife never came. By looking into the bone, they will tell if whoredom be committed in the owner’s house; what money the master of the sheep had; if any will die out of that house for a month; and if any cattle there will take a trake (i.e. a disease), as if planet-struck.’^[532]

The Afghaun, who, in his weary travels, had seen no vale equal to his own native valley of Speiger, may find a parallel in many an exile from the braes of Lochaber; and whoever had remonstrated with an ancient Highland chief on the superior advantages of a civilised life, regulated by the authority of equal laws, would have received an answer something similar to the indignant reply of the old Afghaun: ‘We are content with discord, we are content with alarms, we are content with blood, but we will never be content with a master.’^[533] The Highland chiefs, otherwise very frequently men of sense and education, and only distinguished in Lowland society by an affectation of rank and stateliness somewhat above their means, were, in their own country, from the absolute submission paid to them by their clans, and the want of frequent intercourse with persons of the same rank with themselves, nursed in a high and daring spirit of independent sovereignty which would not brook or receive protection or control from the public law or government, and disdained to owe their possessions and the preservation of their rights to anything but their own broadswords.

Similar examples may be derived from the History of Persia by Sir John Malcolm. But our limits do not permit us further to pursue a parallel which serves strikingly to show how the same state of society and civilisation produces similar manners, laws, and customs, even at the most remote period of time, and in the most distant quarters of the world. In two respects the manners of the Caubul tribes differ materially from those of the Highlanders; first, in the influence of their Jeergas, or patriarchal senates, which diminishes the power of their chiefs, and gives a democratic turn to each separate tribe. This appears to have been a perpetual and radical difference; for at no time do the Highland chiefs appear to have taken counsel with their elders, as an authorised and independent body, although, no doubt, they availed themselves of their advice and experience upon the principle of a general who summons a council of war. The second point of distinction respects the consolidation of those detached tribes under one head, or king, who, with a degree of authority greater or less according to his talents, popularity, and other circumstances, is the acknowledged head of the associated communities. In this point, however, the Highlanders anciently resembled the Afghauns, as will appear when we give a brief sketch of their general history. But this, to be intelligible, must be preceded by some account of their social system, of which the original and primitive basis differed very little from the first time that we hear of them in history until the destruction of clanship in 1748.—Review of Culloden Papers, Quarterly Review, vol. xiv. p. 289.

I.

CLANS supposed to be descended from Fergus Leith Derg, son of Nemedh, who led the Nemedian colony to Ireland.