Scotland in The High Middle Ages - Law and Government

Law and Government

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 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. 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. Pre-fourteenth century law amongst the native Scots is not always well attested, but extensive knowledge of early Gaelic Law gives some basis for its reconstruction. In the earliest extant Scottish legal manuscript, there is a document called Leges inter Brettos et Scottos. The document survives in Old French, and is almost certainly a French translation of an earlier Gaelic document. It retained a vast number of untranslated Gaelic legal 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) and cumherba (Old Irish comarba; ecclesiastic heir).

A Judex (pl. judices) represents a post-Norman continuity with the ancient Gaelic orders of lawmen called in English today Brehons. Bearers of the office almost always have Gaelic names north of the Forth or in the south-west. Judices were often royal officials who supervised baronial, abbatial and other lower-ranking "courts". However, the main official of law in the post-Davidian Kingdom of the Scots was the Justiciar who held courts and reported to the king personally. Normally, there were two Justiciarships, organised by linguistic boundaries: the Justiciar of Scotia and the Justiciar of Lothian. Sometimes Galloway had its own Justiciar too.

The office of Justiciar and Judex were just two ways that Scottish society was governed. In the earlier period, the king "delegated" power to hereditary native "officers" such as the Mormaers/Earls and Toísechs/Thanes. It was a government of gift-giving and bardic lawmen. There were also popular courts, the comhdhail, testament to which are dozens of placenames throughout eastern Scotland. In the Norman period, sheriffdoms and sheriffs and, to a lesser extent, bishops (see below) became increasingly important. The former enabled the King to effectively administer royal demesne land. During David I's reign, royal sheriffs had been established in the king's core personal territories; namely, in rough chronological order, at Roxburgh, Scone, Berwick-upon-Tweed, Stirling and Perth. By the reign of William I, there may have been about 30 royal sheriffdoms, including ones at Ayr and Dumfries, key locations on the borders of Galloway-Carrick. As the distribution and number of sheriffdoms expanded, so did royal control. By the end of the thirteenth century, sheriffdoms had been established in westerly locations as far-flung as Wigtown, Kintyre, Skye and Lorne. Through these, the thirteenth century Scottish king exercised more control over Scotland than any of his later medieval successors. The king himself was itinerant and had no "capital" as such although Scone performed a key function. By ritual tradition, all Scottish kings in this period had to be crowned there by the Mormaers of Strathearn and Fife. Although King David I tried to build up Roxburgh as a capital, in the twelfth and thirteenth centuries, more charters were issued at Scone than any other location. Other popular locations were nearby Perth, Stirling, Dunfermline and Edinburgh. In the earliest part of this era, Forres and Dunkeld seem to have been the chief royal residences.

Records from the Scandinavian-held lands are much-less well documented by comparison. Udal law formed the basis of the legal system and it is known that the Hebrides were taxed using the Ounceland measure. Althings were open-air governmental assemblies that met in the presence of the jarl and the meetings were open to virtually all free men. At these sessions decisions were made, laws passed and complaints adjudicated. Examples include Tingwall and Law Ting Holm in Shetland, Dingwall in Easter Ross, and Tynwald on the Isle of Man.