History of Scots law

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See also: History of Scotland


The Regiam Majestatem is the oldest surviving written digest of Scots law.

The history of Scots law traces the development of

hybrid or mixed legal system, which shares elements with English law and Northern Irish law
but also has its own unique legal institutions and sources.

Origins

Further information:
Scotland in the Early Middle Ages

The nature of Scots law before the 12th century is largely speculative but most likely was a folk-right system applying a specific

Yr Hen Ogledd, Udal law for the Norse of Caithness and the islands, and Anglo-Saxon law in Lothian and Borders.[1] The earliest preserved Scottish law code is the Leges inter Brettos et Scottos, promulgated under David I
(r. 1124 – 1153) and regulating Welsh and Gaelic custom. The Leges Quatuor Burgorum (‘Laws of the Four Burghs’) was promulgated sometime between 1135–57 and regulated Lothian law.

It is difficult to say with any certainty to what degree contemporary Scots law still incorporates these customary sources. There is evidence to suggest that as late as the 17th century marriage laws in the Highlands and Islands still reflected Gaelic custom, contrary to Catholic religious principles.[2] The formation of the Kingdom of Scotland and its subjugation of the surrounding cultures, completed by the Battle of Carham, established what is approximately the boundaries of contemporary mainland Scotland.[3] The Outer Hebrides were added after the Battle of Largs in 1263 and the Northern Isles were acquired in 1469, completing what is today the legal jurisdiction of Scotland.[4]

Feudalism

In the 12th century King

feudal land tenure over many parts of the south and east, which eventually spread northward.[5][6]
As feudalism began to develop in Scotland a number of separate court systems developed.

Sheriffs were appointed by the King in the south and over time spread north. Their scope gradually developed and they were fully established across mainland Scotland by 1300.

Ecclesiastical courts also played an important role in Scotland as they had exclusive jurisdiction over matters such as marriage, contracts made on oath, inheritance and legitimacy.[12] These courts, unlike their lay counterparts, were generally staffed by educated men who were trained in both Roman and Canon law and offered a more sophisticated form of justice. Litigants seem to have preferred to bring disputes before the ecclesiastical courts or an ecclesiastical arbiter rather than the lay courts in Scotland.[13]

Wars of Independence

During the period of English control over Scotland there is some evidence to suggest that King Edward I attempted to abolish Scottish laws that were contrary to English law, as he had done in Wales.[14] King Edward I also reformed the legal institutions of Scotland during this period with the organisation of a Scottish government in September 1305. He also sent out pairs of justices, one Englishman and one Scotsman, to oversee different regions in Scotland.[14]

During the

vassals from ejection from the land.[19]

Scotland's three oldest universities, the University of St Andrews, the University of Glasgow and the University of Aberdeen were also founded following the wars and the Education Act 1496 was passed requiring those who administered justice in Scotland to learn Latin and study law for at least 3 years at school.[15][20]

From the 14th century we have surviving examples of early Scottish legal literature, such as the

ius commune inserted or developed, demonstrating the influence which both these sources had on Scots law.[22]

Stewart dynasty

1566 book, The Actis and Constitutiounis of the Realme of Scotland

The

ius commune in Scots law.[23] For example, the Pragmatic Sanction of Bourges of 1438 was an attempt to limit papal authority in France and recognise the sovereign authority of King Charles VII of France. Various customary laws, such as the Law of Clan MacDuff, came under attack from the Stewart Dynasty which consequently extended the reach of Scots common law.[24]

From the reign of King James I to King James V the beginnings of a legal profession began to develop and the administration of criminal and civil justice was centralised.[25] The Parliament of Scotland was normally called on an annual basis during this period, with the notable exception of King James IV, and its membership was further defined.[26] The number of burghs also continued to expand, including the introduction of burghs of barony, and their authority remained largely undisturbed.[27] The evolution of the modern Court of Session also traces its history to the 15th and early 16th century with the establishment of a specialised group of councillors to the King evolving from the King's Council who dealt solely with the administration of justice. In 1528, it was established that the Lords of Council not appointed to this body were to be excluded from its audiences and it was also this body that four years later in 1532 became the College of Justice.[28]

The growing activity of the parliament and the centralisation of administration in Scotland called for the better dissemination of Acts of the parliament to the courts and other enforcers of the law. There was still a great reliance on the old laws, codified in the

ius commune found in Canon law and there are a number of examples of statutes from this period which clearly drew from Roman law.[31]

Men educated in the law also became increasingly important alongside the early development of the

ecclesiastical courts, filling the need for experts in advocacy, pleading and court procedure. The study of law was popular in Scotland and many students travelled to Continental Europe to study canon law and civil law.[32] In 1532, when the College of Justice established rules of practice and a closed list of ten lawyers permitted to appear before them, six had studied law abroad.[33] This also expanded the influence of Roman law and the ius commune on the Scottish common law. The general practice during this period, as evidenced from records of cases, seems to have been to defer to specific Scottish laws on a matter when available and to fill in any gaps with provisions from the ius commune embodied in civil and canon law, which had the advantage of being written.[34]

Great Britain

The

London.[37]

The

Scottish Lords of Appeal in Ordinary. At the same time, a series of cases made it clear that no appeal lay from the High Court of Justiciary to the House of Lords.[citation needed
]

Today the Supreme Court of the United Kingdom usually has a minimum of two Scottish justices to ensure that some Scottish experience is brought to bear on Scottish appeals.[39] Scots law has continued to change and develop, with the most significant change coming under devolution and the formation of the Scottish Parliament in 1999.[citation needed]

Notes

  1. ^ Scottish Legal History: A Research Guide, Georgetown Law Library, Retrieved 2011-10-22
  2. ^ Stair, vol. 22, para. 504 (Online) Retrieved 2011-10-26
  3. ^ Reid, p. 15
  4. ^ Reid, p. 16
  5. ^ Stair, vol. 22, para. 505 (Online) Retrieved 2011-10-26
  6. ^ Reid, p. 20
  7. ^ a b Reid, p. 23
  8. ^ Stair, vol. 22, para. 508 (Online) Retrieved 2011-10-26
  9. ^ Stair, vol. 22, para. 509 (Online) Retrieved 2011-10-26
  10. ^ Stair, vol. 22, para. 510 (Online) Retrieved 2011-10-26
  11. ^ Reid, p. 24
  12. ^ Reid, p. 30
  13. ^ Stair, vol. 22, para. 511 (Online) Retrieved 2011-10-26
  14. ^ a b Reid, p. 36
  15. ^ a b Stair, vol. 22, para. 514 (Online) Retrieved 2011-10-26
  16. ^ a b Reid, p. 38
  17. ^ Legislation - Records of the Parliaments of Scotland, 1399/1/13. Translation: "Item, it is ordained that each year the king shall hold a parliament so that his subjects are served by the law, which shall begin on the morning after All Hallows' day [2 November], for the next three years."
  18. ^ Reid, p. 40
  19. ^ Reid, p. 41
  20. ^ The Records of the Parliament of Scotland to 1707, Retrieved 22-10-2011
  21. ^ Stair, vol. 22, para. 512 (Online) Retrieved 2011-10-26
  22. ^ Reid, p. 46
  23. ^ a b Reid, p. 50
  24. ^ Reid, p. 56
  25. ^ Reid, p. 52
  26. ^ Reid, p. 54
  27. ^ Reid, p. 55
  28. ^ Stair, vol. 22, para. 515 (Online) Retrieved 2011-10-26
  29. ^ Reid, p. 65
  30. ^ Reid, p. 66
  31. ^ Reid, p. 67
  32. ^ Reid, p. 68
  33. ^ Reid, p. 70
  34. ^ Reid, p. 73
  35. ISBN 0748620273
    , p. 100.
  36. ^ See Act of Union 1707, Wikisource
  37. ISBN 0415278805
    , p. 314.
  38. ISBN 0-7126-9893-0
    , p. 357.
  39. ^ Profiles: UK Supreme Justices, BBC News, 30 September 2009.

References

Further reading

  • Jackson W. Armstrong & Edda Frankot, eds. Cultures of law in urban Northern Europe : Scotland and its neighbours c.1350-c.1650. Abingdon, Oxon: Routledge, 2021.
  • John W. Cairns, ed. Selected essays on the history of Scots law, vol. 1: Law, lawyers, and humanism. Edinburgh: Edinburgh UP, 2015.
  • John W. Cairns, ed. Selected essays on the history of Scots law, vol. 2: Enlightenment, legal education, and critique. Edinburgh: Edinburgh UP; Cary: Oxford UP, 2015.
  • Thomas M. Green. The spiritual jurisdiction in reformation Scotland: a legal history. Edinburgh: Edinburgh UP, 2019.
  • Andrew R. C. Simpson & Adelyn L. M. Wilson. Scottish legal history, vol.1: 1000–1707. Edinburgh: Edinburgh UP, 2017.
  • Grant G. Simpson, ed. Scotland and the Low Countries, 1124–1994. East Linton: Tuckwell, 1996 (reprint: Havertown: Birlinn, Ltd., 2022).
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