Legal institutions of Scotland in the High Middle Ages
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Scottish legal institutions in the High Middle Ages are, for the purposes of this article, the informal and formal systems which governed and helped to manage Scottish society between the years 900 and 1288, a period roughly corresponding with the general Europe
an era usually called the High Middle Ages
. Scottish society in this period was predominantly Gaelic
. Early Gaelic law tracts, first written down in the ninth century reveal a society highly concerned with kinship, status, honour and the regulation of blood feuds. The early Scottish lawman, or Breitheamh, became the Latin Judex; the great Breitheamh became the magnus Judex, which arguably developed into the office of Justiciar, an office which survives to this day in that of Lord Justice General. Scottish common law
began to take shape at the end of the period, assimilating Gaelic and Celtic law
with practices from Anglo-Norman England and the Continent.
amongst the native Scots is not always well attested. There does not survive a vast corpus of native law from Scotland
particularly, certainly nothing like that which comes from early medieval Ireland. However, the latter gives some basis for reconstructing pre-fourteenth century Scottish law. King Robert Bruce
cites common "customs", as well as language, as features which made the Scots and Irish one people. In the earliest extant Scottish legal manuscript, there is a document called Leges inter Brettos et Scottos
. The document is in French
, and is almost certainly a French translation of an earlier Gaelic document. The sentence ...
... contains two Gaelic terms, and one term of Welsh origin which the French translator left alone. Cro, represents the Old Irish word cró, which means homicide, or compensation for homicide (galnys, from Old Welsh galanas
, means exactly the same thing in Cumbric). Enauch corresponds to Old Irish enech, which meant "face" (C/F, lóg n-enech meant honour price). The text contains many other Gaelic terms.
Later medieval legal documents, written both in Latin and Middle English, contain more Gaelic legal terms, examples including slains (Old Irish slán or sláinte; exemption), cumherba (Old Irish comarba; ecclesiastic heir), makhelve (Old Irish mac-shleabh; money given to a foster-child), scoloc (Old Irish scolóc; a low ranking ecclesiastical tenant), phili (Old Irish fili; high ranking poet), colpindach (Old Irish colpthach; a two year-old heifer), kuneveth (Old Irish coinnmed; hospitality payment), tocher (Old Irish tochrae; dowry) and culrath (Old Irish cúlráth; surety, pledge).
Additionally, we know a great deal about early Gaelic law, often called Brehon Laws
, which helps reconstruct native legal practices. In the twelfth century, and certainly in the thirteenth, strong continental legal influences began to have more effect, such as Canon law
and various Anglo-Norman practices.
; continental names are rare. Judices were often royal officials who supervised baronial, abbatial and other lower-ranking "courts". They seem to have been officials who, at least in the thirteenth century, were designated by province, for example, we have one styled Bozli judice Mernis (i.e. "Bozli, Brehon of Mearns
"). There also existed an official called the judex regis (i.e. "King's Brehon"), and perhaps this status was a way of ranking various orders of Gaelic lawmen.
Normally, there were two Justiciarships, organized by linguistic boundaries: the Justiciar of Scotia
and the Justiciar of Lothian
. Sometimes there was also a Justiciar of Galloway. The Justiciarship of Lothian dates to somewhere in the reign of Máel Coluim IV
. As English expanded westwards in the thirteenth century and after, Lothian came to include not only the core south-east, but also subordinated the sheriffs of Stirling, Lanark, Dumbarton and even Ayr. When Edward I of England
conquered Scotland, he divided it into four justiciarships of two justiciars each: Scotia north of the Grampians; Scotia south of the Grampians; Lothian; and Galloway.
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
an era usually called the High Middle Ages
High Middle Ages
The High Middle Ages was the period of European history around the 11th, 12th, and 13th centuries . The High Middle Ages were preceded by the Early Middle Ages and followed by the Late Middle Ages, which by convention end around 1500....
. Scottish society in this period was predominantly Gaelic
Gaels
The Gaels or Goidels are speakers of one of the Goidelic Celtic languages: Irish, Scottish Gaelic, and Manx. Goidelic speech originated in Ireland and subsequently spread to western and northern Scotland and the Isle of Man....
. Early Gaelic law tracts, first written down in the ninth century reveal a society highly concerned with kinship, status, honour and the regulation of blood feuds. The early Scottish lawman, or Breitheamh, became the Latin Judex; the great Breitheamh became the magnus Judex, which arguably developed into the office of Justiciar, an office which survives to this day in that of Lord Justice General. Scottish common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
began to take shape at the end of the period, assimilating Gaelic and Celtic law
Celtic law
A number of law codes have in the past been in use in Celtic countries. While these vary considerably in details, there are certain points of similarity....
with practices from Anglo-Norman England and the Continent.
Native Law
Pre-fourteenth century lawLaw
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
amongst the native Scots is not always well attested. There does not survive a vast corpus of native law from Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
particularly, certainly nothing like that which comes from early medieval Ireland. However, the latter gives some basis for reconstructing pre-fourteenth century Scottish law. King Robert Bruce
Robert I of Scotland
Robert I , popularly known as Robert the Bruce , was King of Scots from March 25, 1306, until his death in 1329.His paternal ancestors were of Scoto-Norman heritage , and...
cites common "customs", as well as language, as features which made the Scots and Irish one people. In the earliest extant Scottish legal manuscript, there is a document called Leges inter Brettos et Scottos
Leges inter Brettos et Scottos
The Leges inter Brettos et Scottos or Laws of the Brets and Scots was a legal codification under David I of Scotland...
. The document is in French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
, and is almost certainly a French translation of an earlier Gaelic document. The sentence ...
... contains two Gaelic terms, and one term of Welsh origin which the French translator left alone. Cro, represents the Old Irish word cró, which means homicide, or compensation for homicide (galnys, from Old Welsh galanas
Galanas
Galanas in Welsh law was a payment made by a killer and his family to the family of his or her victim. It is similar to Ericfine in Ireland and the Anglo-Saxon Weregild....
, means exactly the same thing in Cumbric). Enauch corresponds to Old Irish enech, which meant "face" (C/F, lóg n-enech meant honour price). The text contains many other Gaelic terms.
Later medieval legal documents, written both in Latin and Middle English, contain more Gaelic legal terms, examples including slains (Old Irish slán or sláinte; exemption), cumherba (Old Irish comarba; ecclesiastic heir), makhelve (Old Irish mac-shleabh; money given to a foster-child), scoloc (Old Irish scolóc; a low ranking ecclesiastical tenant), phili (Old Irish fili; high ranking poet), colpindach (Old Irish colpthach; a two year-old heifer), kuneveth (Old Irish coinnmed; hospitality payment), tocher (Old Irish tochrae; dowry) and culrath (Old Irish cúlráth; surety, pledge).
Additionally, we know a great deal about early Gaelic law, often called Brehon Laws
Brehon Laws
Early Irish law refers to the statutes that governed everyday life and politics in Early Medieval Ireland. They were partially eclipsed by the Norman invasion of 1169, but underwent a resurgence in the 13th century, and survived into Early Modern Ireland in parallel with English law over the...
, which helps reconstruct native legal practices. In the twelfth century, and certainly in the thirteenth, strong continental legal influences began to have more effect, such as Canon law
Canon law (Catholic Church)
The canon law of the Catholic Church, is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code and principles of legal interpretation. It lacks the necessary binding force present in most modern day legal systems. The academic...
and various Anglo-Norman practices.
Judex
A Judex (pl. judices), is what was known in medieval Gaelic as Brithem or Breitheamh, and later becoming known in English as doomster. The institution is so Gaelic in nature that it is rarely translated by scholars. It probably represents a post-Norman continuity with the ancient Gaelic orders of lawmen called in English today Brehons. However, in rare cases, the term was also used for similar Anglo-Saxon officials in the English-speaking lands of the Scottish king. Bearers of the office almost always have Gaelic names north of the Forth or in the south-westGalloway
Galloway is an area in southwestern Scotland. It usually refers to the former counties of Wigtownshire and Kirkcudbrightshire...
; continental names are rare. Judices were often royal officials who supervised baronial, abbatial and other lower-ranking "courts". They seem to have been officials who, at least in the thirteenth century, were designated by province, for example, we have one styled Bozli judice Mernis (i.e. "Bozli, Brehon of Mearns
Mearns
Mearns can refer to*Mearns Academy* Mearns, Alberta* Mearns Castle*Mearns Castle High School* Mearns FM* Mearns Primary School* Kincardineshire, the County of Kincardine, The Mearns in Scotland* Newton Mearnsin biology:...
"). There also existed an official called the judex regis (i.e. "King's Brehon"), and perhaps this status was a way of ranking various orders of Gaelic lawmen.
Justiciar
However, the main official of law in the post-Davidian Kingdom of the Scots was the Justiciar. The institution has some Anglo-Norman origins, but in Scotland north of the Forth it represented some form of continuity with an older office. For instance, Mormaer Causantín of Fife is styled judex magnus (i.e. great Brehon), and it seems that the Justiciarship of Scotia was just a further Latinisation/Normanisation of that position. By the middle of the thirteenth century, responsibility of the Justiciar became fully formalized. He supervised the activity and behaviour of royal sheriffs and sergeants, held courts and reported on these things to the king personally.Normally, there were two Justiciarships, organized by linguistic boundaries: the Justiciar of Scotia
Justiciar of Scotia
The Justiciar of Scotia was the most senior legal office in the High Medieval Kingdom of Scotland. Scotia in this context refers to Scotland to the north of the River Forth and River Clyde....
and the Justiciar of Lothian
Justiciar of Lothian
The Justiciar of Lothian was an important legal office in the High Medieval Kingdom of Scotland.The Justiciars of Lothian were responsible for the administration of royal justice in the province of Lothian, a much larger area than the modern Lothian, covering Scotland south of the Forth and Clyde,...
. Sometimes there was also a Justiciar of Galloway. The Justiciarship of Lothian dates to somewhere in the reign of Máel Coluim IV
Malcolm IV of Scotland
Malcolm IV , nicknamed Virgo, "the Maiden" , King of Scots, was the eldest son of Earl Henry and Ada de Warenne...
. As English expanded westwards in the thirteenth century and after, Lothian came to include not only the core south-east, but also subordinated the sheriffs of Stirling, Lanark, Dumbarton and even Ayr. When Edward I of England
Edward I of England
Edward I , also known as Edward Longshanks and the Hammer of the Scots, was King of England from 1272 to 1307. The first son of Henry III, Edward was involved early in the political intrigues of his father's reign, which included an outright rebellion by the English barons...
conquered Scotland, he divided it into four justiciarships of two justiciars each: Scotia north of the Grampians; Scotia south of the Grampians; Lothian; and Galloway.