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
EuropeEurope 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 water divide of the Ural Mountains, the Ural River, the Caspian Sea, the Caucasus Mountains , and the Black Sea to the southeast...
an era usually called the
High Middle AgesThe High Middle Ages was the period of European history in 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
GaelicThe Gaels are an ethno-linguistic group which originated in Ireland and subsequently spread to Scotland and the Isle of Man. They are speakers of the Goidelic languages – Irish, Scottish Gaelic and Manx...
. 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.
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
EuropeEurope 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 water divide of the Ural Mountains, the Ural River, the Caspian Sea, the Caucasus Mountains , and the Black Sea to the southeast...
an era usually called the
High Middle AgesThe High Middle Ages was the period of European history in 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
GaelicThe Gaels are an ethno-linguistic group which originated in Ireland and subsequently spread to Scotland and the Isle of Man. They are speakers of the Goidelic languages – Irish, Scottish Gaelic and Manx...
. 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 lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
began to take shape at the end of the period, assimilating Gaelic and
Celtic lawA 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 is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets...
amongst the native Scots is not always well attested. There does not survive a vast corpus of native law from
ScotlandScotland 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 BruceRobert I, King of Scots usually known in modern English as Robert the Bruce was King of the Scots from 1306 until his death in 1329.His paternal ancestors were of Scoto-Norman heritage Robert I, King of Scots (11 July 1274 – 7 June 1329) usually known in modern English as Robert the 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 ScottosThe 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
FrenchFrench is a Romance language globally spoken by about 65 million people as a first language , by 50 million as a second language, and by about another 200 million people as an acquired foreign language, with significant speakers in 57 countries. Most native speakers of the language live in France,...
, 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
galanasGalanas 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 LawsEarly Irish law refers to the statutes that governed everyday life and politics in Ireland during the Gaelic period. They were partially eclipsed by the Norman invasion of 1169, but underwent a resurgence in the 13th century, and survived in parallel to English law over the majority of the island...
, 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 lawCanon Law, the ecclesiastical law of the Roman 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. The academic degrees in canon law are the J.C.B. , J.C.L...
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 is an area in southwestern Scotland. It usually refers to the former counties of Wigtown and Kirkcudbright...
; 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.
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 ScotiaThe 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 LothianThe 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 IVMalcolm 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,
DumbartonDumbarton is a burgh in Scotland, lying on the north bank of the River Clyde where the River Leven flows into the Clyde estuary. Dumbarton is in West Dunbartonshire...
and even Ayr. When
Edward I of EnglandEdward I , also known as Edward Longshanks, 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. In 1259 he briefly sided with a baronial...
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.