This book gathers together in revised form papers that I have written on Scottish medieval law over the last 40 years. Their various publications straddle the period in which I also produced my Common Law and Feudal Society in Medieval Scotland (1993; reissued 2016). The current project was inspired by the realisation that scholarship in the field had moved on quite considerably during that 40-year period;1 I wanted to see what might be retrieved from that earlier work in the light of the more recent scholarship or if anything further could be made of it. There was also the opportunity to correct earlier mistakes (at least the ones I knew about).
The most significant scholarly contribution since 1993 has been by Professor Alice Taylor, whose editions of The Laws of Medieval Scotland (2017) and (with Dr John Reuben Davies) of Regiam Majestatem (2022) have consolidated and deepened the major achievement of her The Shape of the State in Medieval Scotland, 1124–1290 (2016). These three works have transformed our understanding of major sources for Scottish medieval law and the development of that law in the twelfth, thirteenth and early fourteenth centuries. They can, however, also be taken with Dr David Fergus’ edition of the slightly later Quoniam Attachiamenta (1996) and Professor Archie Duncan’s Scottish Formularies (2011), both of which were also published after Common Law and Feudal Society (although I was aware of the first of these in its earlier form as a PhD thesis). Altogether, however, these texts completely supplanted the work of Lord Cooper of Culross on The Register of Brieves (1946) and Regiam Majestatem and Quoniam Attachiamenta (1947), on which I had had perforce to rely at least to some extent in my own earlier work (although I hope not uncritically).
Common Law and Feudal Society sought to replace Lord Cooper’s influential but rather depressing analysis of medieval Scottish legal development as ultimately one of retrogression from a promising start in the thirteenth century under the twin influences of the canon law and the emerging English common law. Lord Cooper had characterised as a “dark age” the period after 1300, which became the major focus of my book. I continue to think the book’s refutation of the “dark age” thesis was successful, even if some of the specific detail of its arguments with regard to the emergence of a “central court” in the late fifteenth and early sixteenth centuries have been rejected, notably by Professor Mark Godfrey in his Civil Justice in Renaissance Scotland (2009). The principal focus of Common Law and Feudal Society was on the pleadable brieves of right, mortancestor and novel dissasine, along with the rule saying that no-one need answer for their lands unless the other party used one of these brieves. I had laid the ground for this in articles published in the 1980s, of which the most significant for present purposes was one that first appeared in 1986, highlighting procedure and pleading in the secular courts and the role of lay pleaders in that process (chapter 6 in this collection).
Common Law and Feudal Society also looked back to the pre-1300 period, which I had previously addressed in articles on the burgh laws (published in 1989: chapter 4) and another (published in 1990 and here chapter 3) on law in the reign of Alexander III (1249–86). In Common Law and Feudal Society, however, the primary aim was to uncover the origins of the post-1300 system, informed by the belief that the disruption caused by the Wars of Independence between 1300 and 1360 had led to deliberate and generally successful restoration and renewal of that previous system. Deeper study of the pre-1300 system in its own terms began with a further article first published in 2000 and then re-published in revised form in 2005 (chapter 2 in this collection). That work highlighted to me the significance for the emergent Scottish kingdom of wider legal developments in the twelfth and thirteenth centuries, in particular the growth of the Church’s law and legal system. But other studies, notably those on the law of sanctuary (girth), published in 2001 (chapter 11), and on the concept of “wrang and unlaw”, published in 2006 (chapter 5), showed that the rise of the Scottish common law also embraced older native customs across the kingdom. Reflection on twelfth-century innovation with long-term consequences for the law of land-holding was prompted by the Abolition of Feudalism etc (Scotland) Act 2000 and led to an article on the origins and development of feudal tenure, published in 2003 (chapter 10).
The closer study of the twelfth and thirteenth centuries did not lead to neglect of later periods. The quincentenary of the University of Aberdeen in 1995 led to a study of law teaching in that institution, especially in its initial period, published in 1997 (chapter 15). John Hudson kindly invited me to give a paper at a 1994 conference in St Andrews on law and languages and that slowly matured over the years in various versions culminating in a paper delivered at Utrecht and published in the Netherlands in 2002 (chapter 7). Invitations to contribute to festschriften also provided reasons to go back to the later medieval and, indeed, the early modern. Themes of king-magnate relations explored by Jenny Wormald led me to write about the later medieval justiciars (published 2014: chapter 13). John Durkan inspired me to think in a piece published in 1994 about the re-discovery around 1600 of the link between the Scottish medieval text Regiam Majestatem and its source of inspiration and more, the twelfth-century English treatise known as Glanvill (chapter 16). And for the Dutch Romanist, Eltjo Schrage, I decided to explore what late fifteenth-century royal council records might show about contemporary church courts; quite a lot, as I hope is shown in a paper first published in 2010 (chapter 14). Finally, I was irritated enough by some of the more extravagant statements made in connection with the 800th anniversary of Magna Carta to try and set down what the famous document meant for Scotland at the time and afterwards, down to the present; that response was published in 2018 (chapter 12).
My family connections with Wigtownshire have always led me to an interest in the “laws of Galloway” often referred to in medieval sources. I began to explore that in a preliminary way in a paper published in 1991 and was fortunate enough to be allowed to develop my ideas further in a contribution to a collection of essays on Gaelic in Galloway, published in 2022. These papers are amalgamated in this collection (chapter 8). So are two papers on the significant family of Kennedy of Dunure in Carrick (chapter 9). The first, mostly focused on the later medieval, was published in the 1993 festschrift for my former PhD supervisor, Geoffrey Barrow, and the second, which ranged from the twelfth century to the end of the fifteenth, was the result of an invitation to expand on the first in another collection on the theme of “native kindreds” in medieval Scotland. Both involved reference to the laws of Galloway, to which Carrick was near neighbour, geographically and historically. Drawing these papers together with the earlier one on law and languages suggests some interesting lines for further inquiry.
The arrangement in four parts of the much revised papers in this collection is explained in the short passages which introduce each part. Much cross-referencing has also been inserted to emphasise the unity of the book. I have also used the “Legal Afterword” contributed to the Scottish Formularies volume as the basis for an “Introduction” to the collection, while a wholly reworked section of Common Law and Feudal Society serves as the first part of a “Conclusion”. The problem, as it seems to me, is how a common law could develop in the almost entirely localised secular courts without a legal profession to service it. Yet clearly there were many laymen who spent much time on legal work in and out of court. The second part of the “Conclusion” proposes that ideas of “legal consciousness” provide at least part of the explanation for what happened. Law was all around in medieval Scotland and laymen had perforce to engage with that at least in the conduct of their domestic and business affairs, if not in the system’s administration as well. Some at least evidently relished and learned from that regular, even constant, participation in the legal system, and were prepared to act as officials within it, putting their acquired expertise at the disposal of others. For them the common law existed; and therefore it did.
The reader without previous acquaintance with the sources for medieval Scotland should be advised that the long runs of official archives and court records familiar in England are not found north of the border until the second half of the fifteenth century; and even then the records of most of the local courts, with the notable exceptions of Aberdeen and (to a lesser extent) Ayr, are simply no longer extant. This is not the place to lament the vicissitudes of the Scottish records since 1296;2 instead, we should celebrate the digitisation of much of what does remain, notably on the websites of the Records of the Scottish Parliament and Aberdeen Registers Online. But it remains the case that for litigation and indeed conveyancing the most readily accessible evidence is the records preserved in the muniments of ecclesiastical corporations and landed families, in many cases printed by the nineteenth-century historical clubs or Sir William Fraser, and since then by learned associations such as the Scottish History Society, the Stair Society and the Scottish Records Society.3 These too are often now available online, thanks to such sites as Medieval and Early Modern Sources Online and the Internet Archive. An invaluable route into the sources is also provided by the Peoples of Medieval Scotland website. The Scottish legal historian must also learn to draw on less obvious sources: in this collection, for example, use is made of medieval chronicles and poetry as well as place-names.
A powerful impression from the work done for this book is the transformation of research in medieval studies arising from the “digital revolution” of the twenty-first century. Whereas in the 1980s and 1990s research was usually a matter of getting on one’s feet and travelling to libraries and archives, often distant and for days at a time, now a very large amount of the work can be done at one’s desk with a computer linked to the Internet and its search engines. The digitisation of primary manuscript sources has been particularly useful but the ready availability of secondary material is also a great boon. Library and archive visits continue to be vital but preparations for them can be much more effective and efficient with online catalogues and prior email communication. In the preparation of this book, I have found digitisation and online research an inestimable boon. URLs cited in the footnotes were last checked on 16 and 17 August 2023.
Nonetheless, it remains happily the case that the greatest resource available to the working legal historian is his colleagues in the field. The regular meetings of the Scottish Legal History Group, the British Legal History Conference, and the Stair Society have been particularly valuable in this regard for me. I also owe individual debts that I can never repay to many no longer with us: in particular my erstwhile supervisors who continued their interest and support for my work long after the PhD was successfully completed, namely David Sellar and Geoffrey Barrow. I should also like to mention with gratitude in this regard John Bannerman, Archie Duncan, John Durkan, Robert Feenstra, Bill Gordon, Alan Harding, Dr Leslie Macfarlane, my parents John and Winifred MacQueen, Peter McNeill, Athol Murray, Susan Reynolds, and Alan Watson. However, I continue happily to pile up debts to friends old and new: Sir John Baker, Alan Borthwick, Paul Brand, Dauvit Broun, John Cairns, Ali Cathcart, Gero Dolezalek, John Finlay, Mark Godfrey, Sandy Grant, Matthew Hammond, Claire Hawes, Richard Helmholz, John Hudson, Chloë Kennedy, Kelly Kirkpatrick, Brian Levack, Ronald Milne, Cynthia Neville, Kenneth Nicholls, Richard Oram, Rhiannon Purdie, Gwen Seabourne, Andrew Simpson, Keith Stringer, Alice Taylor, Michael Wasser, and William Windram. Apologies to anyone inadvertently omitted from this list. Alan, Dauvit, Claire, John Hudson, Cynthia, Andrew, Keith and Alice all gave me generous access to their unpublished work, of which I have made the fullest possible use in what follows. The footnotes acknowledge other specific debts where appropriate.
Institutions to which I have also been continuously grateful since beginning work on my PhD in 1978 are Edinburgh University Library, especially its Law Libraries and Special Collections Department; the Faculty of Advocates for permission to use its remarkable Library; and Aberdeen University Library Special Collections Department, Ayrshire Archives, the British Library Manuscripts Department, Glasgow University Special Collections, Lambeth Palace Library, the Libraries of Cornell and Yale Law Schools, the National Library of Scotland, and the National Records of Scotland.
Scottish legal historians often invoke Sir John Skene’s disclaimer: “Quhatever I have done, I did it nocht to offend thee or to displease anie man, but to provoke uthers to do better.”4 While that is certainly true for me too, I have felt as I struggled with the sources for this project that the modest words with which Maitland concluded his preface to his three-volume Bracton’s Note Book are more applicable: “Perhaps I was not the man for the work; but I have liked it well.”5
Lastly, I dedicate the book to my grandchildren, who have provided almost daily but very happy distractions from the task in hand.
A very helpful overview is provided by A.M. Godfrey, “Scottish Legal History 2001–2022: a Select Bibliography”, Zeitschrift für Neuere Rechtsgeschichte 44 (2022) 285–301.
An accessible account which also shows how much has been achieved in medieval Scottish legal history in the half-century since its publication is B. Webster, Scotland from the Eleventh Century to 1603 (London, 1975) chs. 5 and 6.
The activities of the publishing clubs and learned associations can be tracked via Scottish Texts and Calendars edd. D. and W.B. Stevenson (London and Edinburgh, 1987). See also M. Ash, The Strange Death of Scottish History (Edinburgh, 1980); R.A. Marsden, Cosmo Innes and the Defence of Scotland’s Past c.1825–1875 (Farnham and Burlington VT, 2014); and G. Donaldson, Sir William Fraser: The Man and his Work (Edinburgh, 1985).
Sir John Skene, De Verborum Significatione (Edinburgh, 1597), To the Reader.
Bracton’s Note Book: A Collection of Cases decided in the King’s Courts during the Reign of Henry the Third, Annotated by a Lawyer of that Time, seemingly by Henry of Bratton, ed. F.W. Maitland, 3 vols. (London, 1887), i, p. ix.