28 Girth: Society and the Law of Sanctuary in Scotland

hector L Macqueen (Edinburgh)[*]

One of the besetting sins of the legal historian is to study only those parts of the law of the past that seem to be the root or origin of the law of the present.

“Girth” is a word of Old English origin that means “immunity from harm”.⁴ In medieval legal Scots it came to have the specific meaning of a sanctuary, an area of land to which persons accused of wrongdoing might flee and remain immune, at least for a time, from the claims of those whom they were alleged to have wronged.

Under Gratian’s Decretum and the thirteenth-century statutes of the Scottish church, every parish church had a right of sanctuary, which extended to the ter­ritory constituted by its cemetery for thirty paces round.⁶ But, as will be shown below, the “girth” was literally a wider concept in which the territory of the immunity extended over a much larger area. It seems that the privilege arose as a result of a royal grant—or at any rate became tied in with the king and the king’s peace.⁷ There were a number of these girths in Scotland before the Reformation, and they seem to have played an important role in the adminis­tration of medieval secular justice. Yet even with these girths there were impor­tant links with the church. Most (although not all) of them were associated with saints from the early history of Scottish Christianity—certainly well before the period in which we have record of the girths connected with their names.⁸

In 1144, King David I granted the church of Lesmahagow and all Lesmahagow to Kelso Abbey. In reverence to God and St Machut, he also granted his firm peace to all who took refuge within the four crosses standing around the cell of Lesmahagow “to avoid peril to life and limb”.⁹ In this grant

³ See, e.g., A Watson, Legal Transplants (Edinburgh, 1974; 2nd edn, Athens, Ga. 1993); idem, Society and Legal Change (Edinburgh, 1977); idem, The Evolution of Law (Oxford, 1985; revd. ed. Baltimore, 1989); idem, “Legal Change, Sources of Law and Legal Culture”, (1983) 131 University of Pennsylvania Law Review 1121; idem, “The Evolution of Law: Continued”, (1987) 5 Law and History Review 537; idem, “From Legal Transplants to Legal Formants”, (1995) 43 American Journal of Comparative Law 469.

⁴W A Craigie (ed), Dictionary of the Older Scottish Tongue (Edinburgh, 1937 onwards) (here­after DOST), s.v. “Girth”.

⁵ See S Menafee, “Yule Girth: Analogues and Possible Origins of a Scottish Legal Practice”, (1993) 10 Shadow: Journal of the Traditional Cosmology Society 12.

⁶ Corpus Juris Canonici (A Friedberg (ed), repr. Graz, 1959) vol. 1, 305 and 815; D Patrick (ed), Statutes of the Scottish Church 1225—1559 (Edinburgh, 1907) 48—9. For a valuable study of the canon law on the subject, see R H Helmholz, “Sanctuary and the Ius Commune”, forthcoming.

⁷ On the king’s peace and protection generally see A Harding, “The Medieval Brieves of Protection and the Development of the Common Law”, (1966) Juridical Review 115.

⁸ Where no further reference is given, information about saints has been derived from A P Forbes, Kalendars of Scottish Saints (Edinburgh, 1872); E S Towill, The Saints of Scotland (Edinburgh, 1983); A Macquarrie, The Saints of Scotland: Essays in Scottish Church History AD 450—1093 (Edinburgh, 1997); J Coulson (ed), The Saints: A Concise Biographical Dictionary (New York, 1958); Benedictine monks of St Augustine’s Abbey, Ramsgate, The Book of Saints (6th edn, London, 1989).

⁹G W S Barrow (ed), The Charters of King David I: The Written Acts of David I, King of the Scots 1124—53, and of his Son Henry, Earl of Northumberland 1139—52 (Woodbridge, 1999) no.

Girth: Society and the Law of Sanctuary in Scotland 335 evidently the girth already exists, primarily associated with St Machut (a sev­enth-century saint better known now as St Malo whose burial at Lesmahagow traditionally, but perhaps mistakenly, was thought to give the place its name).¹⁰ The extent of the refuge is marked by four crosses standing round the land, and it protects those who fear for their lives and limbs. What the king may be adding to an established site is his firm peace, the significance of this being that royal authority will uphold the sanctuary by punishing those who break it.

“If within girth or any place where the peace of the king or the lord of the tenement is sought, any man through ill will lifts his knife to strike another and that may be proved by two leal men, he is to give the king four cows, and to him that he would have struck one cow. And if he strikes with his knife not drawing blood, he gives the king six cows and to him that he struck two cows. And if he draws blood, he gives the king nine cows, and him that he struck three cows. And if he slays him with his knife, he gives the king twenty-nine cows and a calf. And he shall compensate the kin of the victim according to the assize of the land.”¹¹

A second grant of the twelfth century seems to show the king creating a girth based on the church of Innerleithen. The association of this church with the shadowy, possibly seventh-century, figure of St Ronan probably owes more to the novels of Sir Walter Scott than to any medieval tradition.¹² The king was David’s grandson and successor Malcolm IV, who provided that Innerleithen was to have as much sanctuary right (tantum refugium) in all its lands (presum­ably the parish?) as Wedale and Tyninghame had. No one was to dare to break the peace of the church or the king upon pain of life and limb.¹³ Again, there­fore, we have associations with the king’s peace, with the sanction for infringe­ment being more starkly stated. This, however, seems much more clearly a new grant than that of Lesmahagow. The charter explains that the privilege is given because the body of the king’s father lay in the church on the first night after his

130. A C Lawrie (ed), Early Scottish Charters to 1153 (Glasgow, 1905) no. 172 (note), points to evi­dence for the possible survival of the girth at Lesmahagow in 1335: see further D Laing (ed), Andrew of Wyntoun’s Orygynale Cronykil of Scotland, 3 vols (Edinburgh, 1872) (hereafter Chron.

¹⁰ W J Watson, The Celtic Place-Names of Scotland (Edinburgh and London, 1926) 196—7, argues that the “Ma-hagow” element of the name arises from “Mo-Fhegu”, that is, “my Fechin”, and is a reference to St Fechin, for whom see text infra at n.27.

¹¹ T Thomson and C Innes (eds), Acts of the Parliaments of Scotland, 12 vols (Edinburgh, 1844—1875) (hereafter APS) vol. 1, 320 (c. 14). This passage is attributed to the Assise Regis David and found its way into the fourteenth-century Regiam Majestatem; although its exact provenance and date are unknown, the language has a twelfth-century flavour.

¹² Scott’s novel St Ronans Well (first published 1824) was largely responsible for the modern development of the town of Innerleithen as a spa.

¹³ G W S Barrow (ed), Regesta Regum Scottorum I: The Acts of Malcolm IV 1153—1165 (Edinburgh, 1960) no. 219.

death, and it confers rights by reference to those obtaining in other sanctuar­ies.^[842]

The two other sanctuaries mentioned in the grant are Wedale (Stow on the Gala Water in Midlothian) and Tyninghame in East Lothian. Both had power­ful ecclesiastical associations. Tyninghame was the centre of the cult of St Baldred, an anchorite of the eighth century. Several landmarks in the area are still associated with Baldred’s name. A number of standing stones can also be found around the modern village of Tyninghame, some of which may have been boundary markers for the girth. Two of these possible markers are visible today just off the A1 road, one prominent on the hillside at Pencraik just above East Linton, the other group sitting on the plain between East Linton and Dunbar.^[843] Each can be seen quite clearly from the other, at least in modern conditions, and may mark the southern boundary of the girth.

Although the girth at Stow of Wedale is slightly better documented, its extent is more difficult to guess. The Old English name “Stow” has a pre-Christian meaning of “meeting place”, which evolved into “[Christian] holy place”. ^[845] The centre of the girth was the church of St Mary, in which were held relics of the Virgin Mary said to have been brought there from Jerusalem by King Arthur. There was also close by a holy well, still to be seen today in a field just south of the modern village of Stow, and a large boulder (now lost) bearing what was believed to be the Virgin’s footprint.^[846] This may have been the girth’s “frith­stool”, or “peace chair”, the central point of an especially privileged and far- reaching sanctuary.^[847] Examples of frithstools that still survive, unlike that at Stow, are to be found at Beverley in Yorkshire and Hexham in Northumber­land.^[848] As will be mentioned below, one also is found at Torphichen in West Lothian. In the Middle Ages, Stow was a mansion of the bishop of St Andrews, within whose diocese the girth lay. The Ordnance Survey map of the area marks a still visible track over the high ground east of the modern village, which the map-makers dub the Girthgate. Doubt has been cast on the authenticity of this name. The track, however, was a royal road in the Middle Ages. It not only con­nected Melrose Abbey to the south with the hospitium at Soutra Aisle to the north, but also marked the boundary between the lordship of Lauder to the east and the lands of the men of Wedale in the twelfth and thirteenth centuries.^[849] It is at least plausible, therefore, to suggest that, whatever its medieval name, this road was one boundary for the girth at Stow.

A twelfth-century royal brieve shows that the girth of St Mary of Wedale had officers responsible for its operations who were subject to the king’s control. This control extended to the withdrawal of the privilege of girth. Thus, under penalty of the king’s forfeiture, the brieve orders those who keep the peace at Wedale not to detain either the men of the abbot of Kelso who come to them to the peace, or their cattle, so long as the abbot offers them all right and justice.^[850] There is a significant emphasis here on the girth as a place of peace. But, espe­cially in the light of the later functioning of girths to be discussed below, a more important point is that the peace is withdrawn from those to whom full justice will be done outside the sanctuary. Something of the same idea appears in another early legal text stating that the thief who flees to the girth but admits his misdeed must make amends both to his victim and the king. If he cannot make amends to the king, he must abjure the realm, that is, depart the kingdom, never to return without the king’s permission. If he claims to be not guilty, the matter must be determined in the king’s court, and punishment will follow guilt. The same rules apply when the accusation is of homicide or murdrum, or of betrayal.^[851]

In 1517, the earl of Arran, lieutenant of the eastern borders, was instructed “to put the act of parliament [of 1469, to be discussed later] maid apon thame that committit crimis and past to the girtht till dew executioun in all punctis for keping of the kingis previlege and cesing of misreule within this realme in tyme tocum as efferis”.^[852] It is unclear whether this refers only to the girths of the east­ern borders and whether, in 1517, these still included Stow, Tyninghame and Innerleithen, of which little record exists after the twelfth century. Again, no documentary evidence appears to substantiate claims that there were girths at Soutra Aisle in Midlothian and Coldingham in Berwickshire.^[853] The case for Coldingham seems to rest on four place-names around the priory there: coming from the north in a clockwise direction, they are Crosslaw, Applin Cross, Whitecross and Cairncross. The clue lies in the “cross” element of the names, but the word is ambiguous (it could simply refer to a crossing place of routes), there are no physical remains, and I have not traced any relevant medieval doc­umentation. With the exception of Applin Cross, all these places are about a mile or so from the priory; but the overall shape given by imaginary lines between them, although not impossible, is unusually irregular. Yet a girth at Coldingham would be unsurprising, given the place’s long associations with St Ebba, who after her death in 683 had been buried at nearby St Abb’s Head. Her cult, based upon a supposed rediscovery of her relics, grew in the twelfth cen­tury as vigorously as the priory’s own power and prestige.^[854]

An important girth for which historical evidence is relatively abundant was to be found at Torphichen in West Lothian.^[855] The saintly associations of Torphichen are uncertain. The name, which is Gaelic torr-fithichean, has been translated as the “hillock of the magpie (or raven)”.^[856] But a connection with St Vigean or Fechin (d. 664) is much more likely, although he is more often linked with Angus than with West Lothian.^[857] If this saint was associated with the girth of Torphichen, then possibly there was some relationship between it and the girth at Lesmahagow.^[858] The major Neolithic and Bronze Age remains of Cairnpapple are also close by Torphichen. Stuart Piggott, whose excavations first demonstrated the great significance of Cairnpapple, has accordingly sug­gested that the “Middle Sanctuary” (medio nemeton) located in central Scotland by the Ravenna geographer in the sixth century, can be identified with the Torphichen area.^[859] From the twelfth century, this place on the high ground between Bathgate and Linlithgow was the central base in Scotland of the Hospitallers, the Knights of St John of Jerusalem, one of the two principal mil­itary and religious orders alongside the Templars. Unlike the Templars, the Hospitallers survived into the later middle ages as a powerful and influential organization, and the preceptory of St John still stands in part at Torphichen.^[860] In the countryside around the modern village can be found the four standing stones which were the markers of the boundary of the girth, although it is not clear that they are all in their original positions. Each is about a mile from the centre of the girth in the churchyard at Torphichen, in which there is a stone

Girth: Society and the Law of Sanctuary in Scotland 339 known as the sanctuary stone.^[861] This seems to be the only surviving frithstool in Scotland.

The best-known case at Torphichen arose in 1531 following the slaughter of James Inglis, the abbot of Culross, by John Blackadder, the laird of Tulliallan. Fleeing from the scene of the crime at Culross, Blackadder sought sanctuary across the Forth at Torphichen but in breach of the privilege of girth was brought out by a posse of pursuing knights and various ecclesiastics. A com­plaint came before the king’s council, at which the chancellor, bishops, abbots and other kirkmen protested that:

“[N]ow eftir the slauchtir of the abbot of Culross thai intendit na maner of way to persew ony actioun or caus of blude. George lord of Sanct Johnns protestit that how­beit he consentit the persouns slaaris of the abbot of Culross war takin furth of the girth of Torphichin, he did the samin and consentit tharto allanerlie bot for the hie contemptioun done be thame aganis God and halykirk in the slauchter of sic ane prelat, and that he intendit nocht tharthrow be na manere of way to brek the privelege of the girth.”

The council ordered that Blackadder be restored to the girth, although sub­ject, under rules to be discussed later, to be handed over to the king’s officers for trial; in fact, Blackadder was later executed after trial in Edinburgh.^[862]

Girths were not confined to south-east Scotland. In 1315, Robert I had con­firmed to St Kessog’s church of Luss by Loch Lomond in Lennox the privilege “que dicitur gyrth”, extending for three miles on all sides both on land and water.^[863] St Kessog, an Irish missionary of the sixth century, was supposed to be buried at Luss, and his bell survived as a locally venerated relic until the seven­teenth century. In 1509 a man called James was in girth at Whithorn in Wigtownshire, the centre of the cult of the fifth-century St Ninian.^[864] But another case suggests that there was a shortage of girths in the western parts of the coun­try. A “tulze” “upoun suddantie” between two Glaswegians on a June day in 1553 led to the wounding of both, and one sought sanctuary at the monastery of the Blackfriars. He was seized by the other’s friends “furthe of the porche kirk dure”, and brought before the bailies of Glasgow and the chamberlain of the castle. The Blackfriars protested to the lords of council at the violation of sanc­tuary, especially “nane uthir being in the west partis... fra Torphiching west”, and commented that, both men being hurt, “the cryme [was] the lychter”. The lords ordained the prior and convent to obtain letters from all the Blackfriars

houses in Scotland and produce the grant of girth and sanctuary, leaving the man with the civil authorities meantime “sua that it be nocht for sic crymes as the girth may nocht hud him”. The Blackfriars were unable to comply with the condition and the case was lost.^[865] The story is interesting, however, for its sug­gestion that the girth required a grant and might be for lesser crimes only, and for the comment on the scarcity of sanctuaries in the west.

The best-known examples of girths north of Forth were at Dull in Glen Lyon, Perthshire, and Tain in Easter Ross. Dull was an “appin”, the lands of an early Celtic monastery founded in the eighth century. St Adomnan (c. 627-704), abbot of Iona and the biographer of St Columba, was said to be buried there.^[866] Four standing stones marked the boundaries of the girth. One of these, a slab carved into the form of a stylised cross, still stands in the middle of the village of Dull, albeit minus one of its arms; two other stone crosses are preserved at the nearby Old Kirk of Weem. A number of place names in the area appear to embody Gaelic words for a sanctuary, such as Duneaves, which includes nemed (“sanctuary, holy place”), and Tegarmuchd, which includes teagar (“shelter, protection”).^[867]

Tain is associated with Saint Duthac, who was born and active there in the eleventh century, and whose remains were brought back from Armagh to be re­interred at Tain in 1253. In the later Middle Ages the maintenance of the girth seems to have been the responsibility of the earl of Ross.^[868] There was also a bailie who held office under the earl; this position was hereditary in the family of McCulloch of Plaid from 1437 at latest.^[869] Four crosses marked the wide bounds of the girth until at least the late seventeenth century.^[870] Its privileges, attributed to royal grants of Malcolm Canmore (1057-1093), David II (1329-1370), Robert II (1370-1390), and Robert III (1390-1406), none of which survive, were apparently confirmed by an inquest in 1439 following the burning of St Duthac’s church by “wild Highlanders” in pursuit of a fugitive in 1428. The document recording this (a possibly garbled copy of the sixteenth century) seems more concerned, however, with the trading privileges of the inhabitants of Tain than with the girth.^[871] The fourteenth-century Brus by John Barbour, and another document of 1439, none the less make specific mention of the “gyrth of Tayne”. Barbour’s reference is to the incident there in 1307 when the wife and sister of King Robert Bruce were seized and handed over to the English

Girth: Society and the Law of Sanctuary in Scotland 341 by the earl of Ross in apparent violation of the girth.^[872] In 1483 William Lord Crichton, accused of treason, took up residence in the vicar’s house at Tain, where he seems to have remained for the rest of his life.^[873]

Vestigial evidence exists for northern girths other than Dull and Tain. Fifteenth- and sixteenth-century sources refer to a girth cross at Old Aberdeen, perhaps denoting a girth centred on St Machar’s Cathedral.^[874] According to the Aberdeen Breviary published by William Elphinstone, bishop of Aberdeen, in 1510, the girth at Applecross in Wester Ross extended to six miles around the church.^[875] It must therefore have covered most of the Applecross peninsula. The local saint was Maelrubha (642-722), who established his monastery in Applecross about 672 and is supposed to have been buried there. The bounds of the girth are said to have been marked by stone crosses, vestigial remains of some of which survived into the twentieth century.^[876] There is no way of telling, however, whether they included the elegant cross-slab standing in the old kirk­yard at Applecross today, or the more fragmentary slabs preserved in a case inside the church building. The Gaelic name for Applecross, a’ Chomraich, includes a word meaning sanctuary, comraich.^[877] Place-name scholars have also drawn attention to the use of another Gaelic word for sanctuary, tearmann, in names such as Drummietermont (in Dunnichen, Angus), Tillytarmont (in Cairnie, Aberdeenshire) and the lost “Achynaterman” (between Dyce and Newhills, Aberdeenshire).^[878]

The fourteenth-century historian John of Fordun and his fifteenth-century redactor, Walter Bower, also identified a number of places of refuge in the Western Isles, although these were not necessarily girths.^[879] However, they were evidently sufficiently more important than the ordinary sanctuary of any parish

church to deserve special mention. The only one of the names given which can be readily identified is Iona, the cradle of Scottish Christianity and the centre of the cult of St Columba. A knowledgeable source written in 1699 observes that “six miles (any way) from Y Columb kil [the Gaelic name for Iona] was a refuge”;⁵² this sounds very much like a girth. What Fordun calls “Awyne”, where there is a cell of St Adomnan and “a refuge for wrongdoers”, is Sanda, off the Mull of Kintyre.⁵³ His “Helant Macarmyk”, where “there is a place of refuge”, is Eilean Mor off Kilmory in the Sound of Jura, an island associated with St Abban.⁵⁴ Lastly, his “Helant Leneow”, “where there is a refuge”, is na h-Eileacha Naomha (the holy rocks) in the Garvellachs in the Firth of Lorne, where there was an early monastery.⁵⁵ Writing in 1549, Donald Monro, Archdeacon of the Isles, mentioned Bernera (off Lismore) and the Flannan Isles as girths and holy isles.⁵⁶ There was also a well-known sanctuary on Oronsay, the boundary of which was marked by a stone cross known as the Clach an Termainn, that is, stone of the sanctuary bounds.⁵⁷ Tradition and vestigial remains of stone crosses elsewhere in the Western Isles suggest that there were more sanctuaries which may have been girths.⁵⁸

In Fife, the “girth bow” lay just before the west door of Dunfermline Abbey. The Abbey enjoyed some special rights of sanctuary, the origins of which are obscure, but which may have had something to do with the beatification in 1250 of its founder, Queen Margaret (c.1045-1093), whose tomb and shrine lay in the church.⁵⁹ In the nineteenth century, John Stuart, the antiquary, suggested that the “Law of Clan Macduff”, associated with the still-surviving stone of the

⁵² J L Campbell (ed), A Collection of Highland Rites and Customs copied by Edward Lhuyd from the manuscript of the Rev James Kirkwood (1650—1709) and annotated by him with the aid of the Rev John Beaton (Cambridge, 1975) 93.

⁵³ See Taylor, “Seventh-Century Iona Abbots”, supra n.38, 65, for a note of caution regarding the link with Adomnan.

⁵⁴ See further RCAHMS, Argyll 7 (Edinburgh, 1992) 66-74; Gordon, Highways and Byways in the West Highlands, supra n.47, 340-1.

⁵⁵ Gordon, Highways and Byways in the West Highlands, supra n.47, 319-23; RCAHMS, Argyll 5 (Edinburgh, 1984) 170-82.

⁵⁶ R W Munro (ed), Monro’s Western Isles of Scotland and Genealogies of the Clans 1549 (Edinburgh, 1961) 55, 81 and 128.

⁵⁷ See Watson, Celtic Place-Names, supra n.10, 259; Gordon, Highways and Byways in the West Highlands, supra n.47, 299-300; and further Martin Martin, A Description of the Western Isles of Scotland (2nd edn, London, 1716) 246-7. Martin's description of Raasay (ibid. 164) throws doubt on claims that a girth marked by crosses once existed there (cf. A Nicholson, A History of Skye (2nd rev'd edn, Portree, 1994) 291).

⁵⁸ See e.g. Gordon, Highways and Byways in the West Highlands, supra n.47, 307 (Kildalton, Islay, where there is a remarkable stone cross) and 310 (Kilchoman, Islay); Stories from South Uist told by Angus MacLellan (trans. J L Campbell, repr. Edinburgh, 1997) 83 (Stilligarry (Staoiligearraidh), South Uist). I owe this last reference to David Sellar.

⁵⁹ C Innes (ed), Registrum de Dunfermlyn (Edinburgh, 1842) 253. Note also the immunitatem ecclesie sought successfully from the abbot and convent as a general privilege by the men of Tweeddale in 1320 (ibid. 241), and compare the right of the men of the progeny and kindred of the Makcaroun, vulgarly called Kynmaccaroun, to be repledged from other courts to those of the abbey, which was said in 1459 to date back to the time of Queen Margaret (ibid. 351-2). This latter privi­lege should also be compared with the Law of Clan Macduff discussed infra, text accompanying nn.60 and 61.

Cross Macduff above Newburgh on the Fife shore of the River Tay, had its origins in rights of sanctuary. These he connected with an ancient appin in nearby Abernethy, which had somehow been secularized in the hands of the earls of Fife and had become a right of the earl to try his kindred and men in his own courts.^[880] Stuart also drew attention to another stone cross at Mugdrum to the north of the Cross Macduff. His suggestion that these stones marked the eastern boundary of the girth may gain some support from an account of the Law of Clan Macduff by Andrew Wyntoun, writing c. 1420. Wyntoun’s comment that the three “capytals” of the law were the Black Priest of Wedale, the Thane of Fife and the Lord of Abernethy gives at least one link with a known girth. But the nature and meaning of the link are quite unclear. Wyntoun also states that Malcolm Canmore granted the privilege to Macduff the thane (recte earl) of Fife.^[881]

A few preliminary generalizations about the medieval girth may now be offered. It was a large area of territory, typically marked out by the presence of four standing stone crosses at its extreme points, within which one accused of wrongdoing might seek immunity from those who would do him harm or seek to invoke sanctions against him. The social context is clearly one in which those wronged sought violent redress by their own hand. King and church joined forces in the repression of violence and the maintenance of peace through the refuge provided by the girth, the king’s peace and protection being linked with that of the saints and their surviving relics on earth. The girth gave a breathing space within which disputes might be settled or resolved, through public justice or private arrangements.^[882] There is a clear affinity with the chartered sanctuar­ies of England, in particular those in northern England at places like Durham, Hexham, Beverley and Ripon, analysed in detail by Charles Cox in 1911.^[883] Particularly in the Highland and Islands context, a parallel should also be drawn with the extended protected territories centred on churches found in Ireland and Wales.^[884]

Other than the passing reference already quoted from an early text that an accused who could not make amends to the king must depart the kingdom, there is no evidence for a general requirement in Scotland comparable to the rule apparently peculiar to the English chartered sanctuaries, and not found else­where in Western Europe or under the canon law, that the seeker of sanctuary should abjure the realm.^[885] The length of time for which people might continue in girth was apparently not subject to limitation. It therefore could cause obvi­ous problems, not only for the administration of justice, but also for the seeker of asylum, who had to obtain the means of survival in the girth, as well as for those dependent upon him. One such was “ane pure wyff at had hir husband in girtht in Torphechin” in 1512 and to whom King James IV gave 14 shillings in alms.⁶⁶

The immunity of the Scottish girth was not absolute, however, and in this too it was broadly consistent with the canon law of sanctuary.⁶⁷ We have already noted early evidence that the peace of the girth could be withdrawn from those to whom justice would be done outside the sanctuary, including killers, thieves and traitors.⁶⁸ In the course of the mediaeval period, as David Sellar has shown in detail, there evolved in Scots secular law a distinction between homicide by “forethocht felony”—that is, premeditated killing—and homicide by “chaud melle” or “chance medley”—that is, in hot blood or without premeditation or, as it was usually put in Scots, upon suddenty.⁶9 The distinction, essentially based on the mental element in the homicide and ultimately derived from the canon law,⁷⁰ was intended to determine whether a homicide was deserving of punishment or pardon, and also, importantly, whether the killer, if in a girth, should remain there. The killer by chance medley might therefore be protected by the girth, but not the killer by forethought felony. This was established in the law by 1372, when its primary importance seems to be to affirm a rule requiring all those accused of homicide to leave the girth to face an assize which would determine the nature of their crime.⁷¹ There was further elaboration in an important statute of 1469.⁷² The purpose of the statute was to compel the “mas­ters of the girths” to give up persons accused of homicide to the king’s officers so that the issue of forethought felony might be determined by an assize or jury. The problem, according to Parliament, was that “many personis committis slachteris upone forthocht felony in trast that thai salbe defendit throw the immunite of haly kirk and girth, and pass and remanis in sanctuaris”. This is the first hint of a sense that girths were an obstruction to justice. There was a fur­ther attempt to give this Act teeth in 1475,⁷³ and Parliament considered girth again in 1503, when Tain may have been the particular cause of concern, since “my lord of Ross” along with the “kirkmen” were to “provide thirfor as thay think to be doune”.⁷⁴ The feeling against girths was obviously very strong in

⁶⁶ T Dickson and J B Paul (eds), Accounts of the Lord High Treasurer of Scotland (Edinburgh, 1877 onwards) vol. 4, 189.

⁶⁷ See Helmholz, “Sanctuary and the Ius Commune”, supra n.6.

⁶⁸ See text supra at nn.22 and 23.

⁶⁹ W D H Sellar, “Forethocht Felony, Malice Aforethought and the Classification of Homicide”, in WM Gordon and T D Fergus (eds), Legal History in the Making (London, 1991) 43—59. See also H L MacQueen, “Canon Law, Custom and Legislation: Law under Alexander II”, forthcoming.

⁷⁰ On the canon law of homicide, see Sellar, “Forethocht Felony”, supra n.69, 58; and on the link with sanctuary see Helmholz, “Sanctuary and the Ius Commune”, supra n.6.

⁷¹ APS, supra n.11, vol. 1, 548.

⁷² APS, supra n.11, vol. 2, 95 (c. 11). The statute quotes a passage from the Book of Exodus (21.14) which had itself been inserted in Gregory’s Decretals (X 5.12.1) in the thirteenth century; see further text infra at n.81.

⁷³ APS, supra n.11, vol. 2, 111 (c. 2).

⁷⁴ APS, supra n.11, vol. 2, 248.

Girth: Society and the Law of Sanctuary in Scotland 345 1534, when the king sent draft statutes to the lords of council for consideration, the aim of which was the “stanching of slauchteris”.^[886] Parliament enacted the statute the following year. It sought to expedite procedure relating to homicides in girth, because the 1469 Act “oftymes takis nane effect throw pretens of excuse of the maisteris thirof spirituale men that will nocht deliver the saidis trespas- souris to our soverane lordis officeris conforme to the tennour of the said act”.^[887] In 1555, however, Parliament reaffirmed the principle that there was no girth for the forethought felony.^[888] It was this principle which explains why in 1531 John Blackadder was executed for the slaughter of the abbot of Culross despite hav­ing gained the protection of the girth at Torphichen, for an assize found that his crime was forethought felony. It also shows why there might have been girth for the “tulze upoun suddantie” in Glasgow in 1553.

The Reformation is usually seen as a watershed in the history of the law of girth in Scotland. Despite the comments of several writers, however, and unlike England and other countries at this period, there was no legislative measure of abolition in Scotland following the Reformation.^[889] In 1567, the three estates of Parliament appointed a commission to review the statutes and, in particular, the laws relating to those who passed the horn and entered girth.^[890] Twenty-four years later it was noted that the commission had not reported on this or on most of the other matters referred to it, and a new commission was urged to investi­gate the matter in the same terms as before.^[891] This seems to have done no more than its predecessor on the matter. The inaction (or indecision?) may have been because the laws on girth and homicide had scriptural support, as noted by the Protestant jurist Sir John Skene in 1597.^[892] Skene, who made no suggestion that girths had ceased to operate, cited first the verses in Exodus (xxi, 12-14) which had also been quoted in the Act of 1469 on girth:

“Whoever strikes another man and kills him shall be put to death. But if he did not act with intent, but they met by act of God, the slayer may flee to a place which I will appoint for you. But if a man has the presumption to kill another by treachery, you shall take him even from my altar to be put to death.”

Skene also cited Joshua xx, which referred to the Lord’s command to the Israelites to appoint cities of refuge where the man who killed another inadver­tently might seek sanctuary from the vengeance of the deceased’s next of kin. He

was aware of, but did not specifically cite, other biblical sources to the same effect, which would certainly have included the relevant chapters of Numbers (xxxv, 6-34) and Deuteronomy (iv, 41-3; xix, 1-12).

Nonetheless, it seems clear that girths went into a fairly general decline after the Reformation. There is little reference to their existence save as a historical feature in legal writing after 1560.⁸² The one great exception that confirms the otherwise general disappearance of girths is the debtor’s sanctuary at Holyrood in Edinburgh, which was to have an effective existence until near the end of the nineteenth century, and which strictly speaking has never been abolished.⁸³ Holyrood, the site of an Augustinian abbey founded by David I in the twelfth century, and also the principal royal residence from the early sixteenth century, was a “girth” before 1560. Thus, in 1542, Gilbert Fordyce received a respite for the slaughter of the late William Donaldson committed twelve years previously “within the gyrth of Halyrudhous apoun sudante”.⁸⁴ A girth cross sited at the foot of the Canongate before the main entrance to the abbey and palace is clearly marked on later sixteenth-century maps of Edinburgh. But it is not clear just how ancient the privilege of girth was. Walter Bower tells the story of Richard Prenderguest who c. 1337/1338 sought sanctuary at the abbey church, having slain a member of the English forces then occupying Edinburgh. He was surrounded by English soldiers in the chapel of St Augustine with a view to pre­venting him being fed and so starving him out.⁸⁵ This seems more consistent with the ordinary privileges of sanctuary than with the extraordinary girth; and as a member of an Augustinian order, Bower would surely have highlighted any entrenchment upon the abbey’s privileges. Further, the lands on which the abbey was built seem also to have been royal demesne and hunting grounds beside the castle at Edinburgh rather than an ancient ecclesiastical site, and the association with Holyrood of saints such as St Anthony probably arose only after the foundation of the abbey. The legend in which King David built the abbey after being rescued from the attentions of a stag by the miraculous inter-

⁸² Girth and sanctuary are not referred to at all (at least in the context of slaughter or debt) in Balfour’s Practicks (c. 1579), Hope’s Practicks (1633), or Stair’s Institutions of the Law of Scotland, (1st edn, Edinburgh, 1681; 2nd edn 1693).

⁸³ See, in addition to Ewan “Debtors”, supra n.2, H Hannah, “The Sanctuary of Holyrood”, (1927) 15 Book of the Old Edinburgh Club 55, and P Cadell, The Abbey Court and High Constables and Guard of Honour of Holyroodhouse (Edinburgh, 1985) 7-11, 31-6. Legal writers who discuss the sanctuary at Holyrood include Sir George Mackenzie (Observations on the Statutes (Edinburgh, 1686) 69), Lord Bankton (Institute of the Law of Scotland, 3 vols (Edinburgh, 1753) 4.39), John Erskine (Institutes of the Law of Scotland (Edinburgh, 1771) 4.3.25), Walter Ross (Lectures on the History and Practice of the Law of Scotland relative to Conveyancing and Legal Diligence, 2 vols (2nd edn, Edinburgh, 1822) vol. 1, 331-5), and George Joseph Bell (Commentaries on the Law of Scotland and the Principles of Mercantile Jurisprudence (7th edn, Edinburgh, 1870) 6.5.3.2(2)).

⁸⁴ Registrum Secreti Sigilli Regum Scottorum (M Livingston et al. (eds), Edinburgh, 1908 onwards) vol. 2, no. 4857.

⁸⁵ Chron. Bower (Watt), supra n.51, vol. 7, 132-5. The story may also reflect an apparent differ­ence between the Scots and English laws of sanctuary. In England the seeker of sanctuary could be starved out after forty days in the refuge (see Helmholz, “Sanctuary and the Ius Commune”, supra n.6), whereas in Scotland, as already noted (text supra at nn.65 and 66), there appears to have been no such time limit.

Girth: Society and the Law of Sanctuary in Scotland 347 vention of a cross at the site appears to be of fourteenth- rather than twelfth-cen­tury origin.⁸⁶ There also seems to be no firm evidence for the permanent pres­ence in the abbey of the Black Rood. This was part of the True Cross, which St Margaret had brought with her to Scotland and which she held before her as she died at the castle in Edinburgh in 1093. It passed into the possession of her son King David, but wherever it was located during the intervening years, Edward I removed it to England in 1296, apparently with permanent effect.⁸⁷ The possi­bility that Holyrood was a girth from its foundation should not be ruled out, but it seems impossible to affirm with any confidence.

Reflecting its origins in the eventual development of a girth, however, the area of the later sanctuary was extensive, incorporating the whole of the modern Queen’s Park and so including Arthur’s Seat and Salisbury Crags. In 1569, how­ever, the area of the girth was described as “the haill boundis of the said abbacy... [and] that part of the Burgh of Canongait frae the Girth Croce doun to the Cloickisholm mylne”.⁸⁸ This is the area covered today by the Palace and the ruins of the abbey, plus eastwards about half of the modern Parade Ground north of Queen’s Drive. In the Middle Ages, the hills to the south had belonged only partly to Holyrood abbey, the bulk being within Kelso abbey’s estate of Duddingston.⁸⁹ It therefore seems likely that the girth was further extended only after the lay annexation of monastic lands in the later sixteenth century and their subsequent unification under the secular lordship of the keeper of Holyroodhouse.⁹⁰

An objection to the thesis of continuity between the pre- and the post­Reformation sanctuary might seem to be the apparently different functions they served. After the Reformation, sanctuary was only used by defaulting debtors as a means of evading the legal right of creditors to imprison them under the

⁸⁶ For accounts of the history of Holyrood see C Innes (ed), Liber Cartarum Sancte Crucis (Edinburgh, 1840); W Moir Bryce, Holyrood: Its Palace and Its Abbey (Edinburgh, 1914); J Harrison, The History of the Monastery of the Holy-Rood and of the Palace of Holyrood House (Edinburgh and London, 1919); C A Malcolm, Holyrood (Edinburgh, 1937); RCAHMS, Inventory of the Ancient and Historical Monuments of the City of Edinburgh (Edinburgh, 1951) 129—53; W H Makey, “The Legend of Holyrood”, in G Cruickshank (ed), A Sense of Place: Studies in Scottish Local History (Edinburgh, 1988) 122 (a reference I owe to David Sellar); C R Wickham- Jones, Arthur’s Seat and Holyrood Park: A Visitor’s Guide (Edinburgh, 1996) 27—8; D B Gallagher, “Holyrood Abbey: the Disappearance of a Monastery”, (1998) 128 Proceedings of the Society of Antiquaries of Scotland 1079.

⁸⁷ On the Black Rood see G Watson, “The Black Rood of Scotland”, (1906—1909) 2 Transactions of the Scottish Ecclesiological Society 27—46; ELG Stones, “Allusion to the Black Rood of Scotland in 1346”, (1959) 38 Scottish Historical Review 17^—5; L Rollason, “Spoils of War? Durham Cathedral and the Black Rood of Scotland”, in D Rollason and M Prestwich (eds), The Battle of Neville’s Cross 1346 (Stamford, 1998) 57—65. Cf. Makey, “Legend of Holyrood”, supra n.86, 130. A recent claim is that the long-lost Black Rood is buried beneath Rosslyn Chapel, near Edinburgh: see The Scotsman, 10 April 1997.

⁸⁸ The quotation is from a document printed without reference to source in J Mackay, History of the Burgh of Canongate with Notices of the Abbey and Palace of Holyrood (2nd edn, Edinburgh, 1886) 217-18.

⁸⁹ See G W S Barrow, “Treverlen, Duddingston and Arthur’s Seat”, (1959) 30 Book of the Old Edinburgh Club 1.

⁹⁰ See further Cadell, Abbey Court, supra n.83, 8-9.

diligence or process of caption, whereas the major feature of girth before 1560 seems to have been the protection that it offered to homicides. Yet this differ­ence may be a deception practised upon us by the surviving evidence. A case in 1569 shows that at least for a time the girth continued to extend to serious crime: Holyrood “ought justlie to have been girthe and place of surenes to quhat- sumevir persounes resortan thairto quha has nocht commitit treasoune murther or sic uther crymes exceptit frae the privilege of girthe”; violation was “in hie contemptioune of our souverane lordis authoritie”.⁹¹ Equally, the pre­Reformation girth was not confined to cases of homicide. The medieval legal texts already quoted tell us that the thief and the traitor might seek sanctuary, albeit temporary, in a girth.⁹² There is record of at least one debtor seeking sanc­tuary in Holyrood as early as 1531.⁹³ Medieval debt processes such as the brieve of caption undoubtedly entailed the debtor’s liability to imprisonment, and the girth may well have provided as useful a protection against impatient creditors as against vengeful relatives. Certainly Cox’s study of the chartered sanctuaries of medieval England shows that debtors as well as criminals took refuge in them, despite the apparent disapproval of the canon law.⁹⁴ In Scotland the use of the girth to protect debtors may have been reinforced by reference to Roman law, which permitted debtors to seek ecclesiastical refuge from their creditors.⁹⁵

Mere legal inertia does not explain the survival of the girth at Holyrood. That is evident so far as concerns the disappearance of its use for the protection of killers. With regard to debtors, as early as 1668 the judges of the Court of Session “upon debate amongst themselves, thought that the abbey, being his Majesty’s House, should not exempt or protect any person against his Majesty’s laws”.⁹⁶ But this hostile view was never given either legislative or judicial effect. As late as 1831 the Holyrood sanctuary could be the subject of a learned treatise which took it very much for granted that it was an important part of the current legal scene.⁹⁷ Indeed the author, Peter Halkerston, who was the bailie under the Dukes of Hamilton as the masters of the girth, lamented the high level of book­ing-in fees, which put the sanctuary beyond the means of many debtors. The sanctuary finally fell into disuse with the effective abolition of the sanction of civil imprisonment for debt by the Debtors (Scotland) Act 1880. It was only after the passage of the Bankruptcy (Scotland) Act 1913 that retreat to the Abbey ceased to be a ground of notour bankruptcy as originally provided for in the Bankruptcy Act 1696.⁹⁸

⁹¹ Mackay, Canongate, supra n.88, 217—18. See also Cadell, Abbey Court, supra n.83, 9.

⁹² See text supra at nn.11 and 23.

⁹³ Hannah, “Sanctuary of Holyrood”, supra n.83, 61—2. See further, Cadell, Abbey Court, supra n.83, 10.

⁹⁴ Cox, Sanctuaries, supra n.20, 21—2, 109, 112, 136, 189, 198—9, and 335—6; see further, Helmholz, “Sanctuary and the Ius Commune”, supra n.6.

⁹⁵ CJ 1.12.1—8. See further Helmholz, “Sanctuary and the Ius Commune”, supra n.6.

⁹⁶ 1668 Morison’s Dictionary (hereafter Mor.) 1.

⁹⁷ P Halkerston, A Treatise on the History, Law and Privileges of the Palace and Sanctuary of Holyroodhouse (Edinburgh, 1831).

⁹⁸ APS, supra n.11, vol. 10, 33 (c.5).

The survival of Holyrood as a sanctuary against a background of the general desuetude of girths is thus far from easy to explain. The theory that held sway through the seventeenth and eighteenth centuries, which is partly reflected in the comments of the Lords of Session just quoted, was that the Holyrood sanctuary was to be explained by its association with the royal residence. This idea was certainly well established in contemporary England with reference to Westminster.^[893] The link with royalty might also explain the arguments occa­sionally made in the seventeenth and eighteenth centuries for the existence of other debtors’ sanctuaries in Edinburgh, for example at the Cunzie House or Royal Mint (which has a parallel in the English Royal Mint).^[894] There was an unsuccessful attempt in 1714 to claim that Edinburgh Castle was a sanctuary, the claim being rejected on the grounds that the privilege extended only to royal residences and not to royal castles.^[895] It was accepted, however, that Crown debtors could not claim sanctuary in Holyrood, the king’s protection not being available against the king himself. ^[896]

Thanks in particular to Peter Halkerston’s treatise of 1831, the later opera­tion of the sanctuary at Holyrood is readily determined. On arrival within the precincts of the sanctuary, the debtor was automatically immune from action for twenty-four hours, and could remain indefinitely, provided that an entry was made in the sanctuary books and the appropriate fee was paid. It was noted in 1779 that 716 persons had booked in since 1741.^[897] A further breakdown sug­gests that there were 183 bookings between 1741 and 1752, 175 from 1750-1760 and 184 from 1766-1770, while 116 booked in during 1816. There are 6,502 names all told in the Register of Protections which was kept at Holyrood between 1686 and 1880, and it has been estimated therefore that the average number of bookings per year was thirty-two.^[898]

The debtor could leave the sanctuary on Sundays, when action against him was unenforceable. In a case in 1709 the debtor was invited to a Sunday evening dinner by one of his creditors, but having stayed past midnight found himself being arrested by his host. The court ordered an inquiry into whether the cred­itor had hindered him from returning to the sanctuary.^[899] A less well-known case also involving the Sunday rule is reported only in the Caledonian Mercury for 22 August 1727, and is worth giving in full:

“Saturday last after Noon, a certain Gentleman who a few Years ago made a consid­erable figure in this Country, but whose Circumstances of late have constrain’d him to take the Benefit of Sanctuary in the Abbey, stept down to the Sea to wash himself; yet not so privately but, (a sneaking Eye having all along attended him) he was followed at Heels by the Person who had Diligence upon him, accompanied by a Gang of catch­poles, who coming direct to the place where he was a-washing, accosted him with a How do ye do, Captain, we are come to wait upon you, glad to find you here; and in the mean time seized his Cloaths. The Gentleman finding himself in this sorry Position, puts on that manly courage which directs all his Actions, and tells �em, Gentlemen, I am now in Neptune’s dominions, where I presume you cann’t [sic] offend me without a Warrant of the Admiralty, and before you can be possessed of any such, I expect the Lord’s Day will screen me from your Paws. Several Ladies then tak­ing the Air hard by, stept down and interposed on Behalf of the Hero, (with whom they conversed in puris naturalibus) but to no Effect. In short, the Gentleman finding himself scarce capable to stand it out, bethought of a Cunning to blind these Cormorants, and which was: Right trusty and well-beloved, says he, seeing you will neither walk off, nor come into any hopeful Measures, I here bid you an Eternal Adieu; so throwing himself down at once to Bottom, he managed so artfully, that he never once cast up, till he had lodged himself behind the Black Rocks. Which so confounded them ashore, that supposing they might be seized as Accessories in the suppos’d Murder, thought proper to withdraw by Express; and so leave the poor Gentleman at Freedom to step out, put on his Cloaths, and return in Safety to his Hold; where he is now to be seen, merry as a Cricket.”^[900]

Many well-known figures found themselves as “Abbey lairds” within the sanctuary at Holyrood.^[901] Lord Mackenzie Stuart has written of the stays between 1795 and 1798, 1801 and 1803 and 1830 to 1832, of Charles-Philippe Comte d’Artois, younger brother of Louis XVI and last king of France and Navarre.^[902] Thomas de Quincy spent several years at Holyrood between 1835 and 1840;^[903] sadly, however, Confessions of an English Opium Eater cannot be attributed to the beneficial effects of sanctuary, since the famous work had first appeared in book form in 1822. In 1826, Sir Walter Scott’s partner Robert Cadell fled to Holyrood following the crash of their publishing business, in order to evade the claims of the Bank of Scotland.^[904] Scott himself contemplated the same course of action when particularly hard-pressed by some of his creditors in November 1827. Staying at Abbotsford, he wrote in his journal on 1 November: “I suppose that I, the Chronicler of the Canongate, will have to take up my residence in the Sanctuary for a week or so, unless I prefer the more airy residence of the Calton Hill, or a trip to the Isle of Man. These furnish a pleas­ing choice of expedient”.^[905] Two days later he wrote that he could “imagine no

Girth: Society and the Law of Sanctuary in Scotland 351 alternative but either retreat to the Sanctuary or to the Isle of Man. Both shock­ing enough”.¹¹² Scott travelled to Edinburgh on 4 November, apparently with the intention of entering Holyrood; “but... lo!”, as he wrote in his journal, “the scene had again changed, and a new hare is started”.¹¹³ The spectre of the sanc­tuary does not seem to have hung over Scott again.

To what, then, may we attribute the desuetude of the medieval girths and the contrary survival until 1880 (but perhaps changing function) of the sanctuary at Holyrood? The interest of the topic lies in the fact that the law on girth, which goes back at least to the twelfth century and probably earlier, has never been abolished by any legislation, yet it no longer forms part of the living law of Scotland. Much of the data gathered in the preceding pages seems to support Alan Watson’s thesis that legal change is not necessarily to be explained by social change, and indeed that the law may resist great social pressure for change. Thus it appears that the protection of killers by the law of girth was increasingly seen in the later middle ages, at least by government, as an obstruc­tion to justice and a force for evil, yet change then was at best incremental and the problems remained. It may be, of course, that the actions of the legislature on the subject were due, not so much to sustained policy and continuing con­cern, but more to “moral panics” after some spectacular crisis. For example, leg­islation in 1535 followed hard upon the heels of the case about the slaughter of the abbot of Culross by John Blackadder in 1531, which was clearly a cause celebre at the time. The legislation of 1469 and later seems to point to difficul­ties with the “spiritual men” who were “masters of the girth” and who refused to allow those in the girth to be brought out to face trial by the secular authori­ties. It may be that this is part of the explanation for the apparent decline of the girths into disuse after 1560; the Reformation uprooted the source of authority for their officers and did not replace it. Even the ultimate authority of scripture could not overcome the repulsion of the new church for the sheltering of sin and for an institution which had derived at least some of its moral force from now rejected idolatry of the saints and their relics. Hence the need, surely the result of the parallels drawn with Westminster in England, to justify the continuing status of Holyrood through its position as the royal residence.¹¹⁴ The decline of girth may also owe something to other changes in the law, notably the gradual rise of a system of public rather than private prosecution of crime from the late sixteenth century,¹¹⁵ and determined governmental and ecclesiastical efforts to stamp out the blood feud,¹¹⁶ the pursuit of which had provided the essential context for the protection provided by the girth. Moving on three centuries, the passage of the 1880 Act and the abolition of civil imprisonment for debt were

¹¹² Anderson (ed), Journal, supra n.111, 372.

¹¹³ Ibid. 373.

¹¹⁴ The parallels between Westminster and Holyrood continue, with the announcement in January 1998 that the permanent home of the new Scottish Parliament will be located at Holyrood.

¹¹⁵ See J Irvine Smith, “The Transition to the Modern Law, 1532—1660”, in Paton, supra n.78, 25 at 37-41.

¹¹⁶ See K M Brown, The Blood Feud in Scotland (Edinburgh, 1987) 184—260.

what brought the Holyrood sanctuary to an end rather than any more direct leg­islative action. No doubt the 1880 Act reflected changing social attitudes to debt and the appropriate remedies for non-payment, but it was the culmination of nearly fifty years’ legislative erosion of the remedy of civil imprisonment, and in the meantime the sanctuary had carried on as before.^[906] The Act came into force on 1 January 1881, and the last debtor to seek protection within the precincts of Holyrood booked in on 7 September 1880.^[907] In a nice little twist, this last of the Abbey lairds was one David Gilbert Bain, an Edinburgh lawyer who had been admitted as a Solicitor to the Supreme Court in 1856.^[908] Much might have been learned about the relationship between society and legal change from the obser­vations in his hour of need of such an experienced (although surely very embar­rassed) lawyer. However, perhaps the best that a lawyer could say is that the immediate cause of a shift in the law is often another such shift elsewhere in the system, albeit one made with altogether another purpose in mind. Girth, and in particular the example of Holyrood, remind us that law’s profound conser­vatism, which enabled a pre-medieval institution to retain a not inconsiderable degree of vigour in late Victorian Scotland, none the less does not preserve in life rules for which the specifically legal raison d’etre has disappeared. While clearly not all change in the law can be explained in this way, it does suggest that soci­ety’s impact upon the process of such change is indeed as elusive as Alan Watson has so eloquently argued.