Stair Society Articles Directory

It has become almost axiomatic to begin an article on Regiam maiestatem – not only Scotland’s earliest surviving procedural and jurisprudential tractate but also, supposedly, an authority of its law for over half a millennium – with an oft-cited quotation from the prologue to the first printed edition of the text produced in 1609 by Sir John Skene of Curriehill, Lord Advocate.

Sir Walter Scott was not ashamed to call himself ‘an Edinburgh lawyer’. He worked in the law from 1786, when he was apprenticed to his father, a Writer to the Signet, until 1832, when he died still in office as Sheriff of Selkirk. In between, Scott practised as an advocate for fourteen years; and he held office as a Principal Clerk of the Court of Session thereafter for almost twenty-five years.

In an important article published in 1994, Alan Rodger drew attention to the number of Scottish advocates – 55 by his count – who had studied at German universities in the 19th century, and sought to situate this finding by reference to a Faculty of Advocates in which ‘polite learning’ was a characteristic and valued attribute. Some of the more prominent of the advocates were named and their careers briefly examined. As to how they had been identified, Rodger said only this: ‘While I cannot claim to have researched the matter systematically, I have examined biographical notices and other material about advocates, keeping my eye open for references to periods spent at German universities.’

Thomas Muir of Huntershill (1765–99) is well known as a political reformer who was unjustly tried for sedition in 1793 and transported to Botany Bay. Some years before his sedition trial, he had gained admission to the Faculty of Advocates and begun a legal career. His advocates’ thesis, recently brought to light by Professor Gerard Carruthers of the University of Glasgow, provides the occasion for looking at this earlier period of his life.

It is over fifty years since the birth of the ‘new orthodoxy’ in the political history of fifteenth-century Scotland.1 Pioneered by Jenny Wormald and Alexander Grant, this approach cast aside the prevailing assumption, that late medieval Scotland was a wild and lawless place where overmighty magnates held sway over a weak crown, and replaced it with a model of political relations which had co-operation at its heart.2 Wormald argued that Scotland was so decentralised and ‘relatively underdeveloped’ in terms of legal institutions that the maintenance of order in the localities relied heavily upon the nobility, who were responsible for the administration of justice within their own jurisdictions.

New research carried out in the archival records of the High Court of Admiralty in Edinburgh as well as material found in the archive of Rotterdam suggests that Scottish merchants made use of insurance besides other risk-shifting devices well before the mid-eighteenth century, when the Court of Session and Scottish jurists first began to take a strong interest in the phenomenon.1 This evidence furthers an argument made by Scott Styles,2 who convincingly questioned A. D. M. Forte’s still dominant account that the Scots did not make widespread use of insurance prior to the 1800s, and that its subsequent development was predominantly through English transplant.

The term ‘kenning’ was encountered in two contexts in Scots law: one is a ‘land kenning’ and the other is a ‘kenning to terce’; in each case, the word ‘kenning’ derives from ‘ken’, i.e. to know. One might think that ‘ken’ is a Scots word only; but, while there is a definition in the Dictionary of the Older Scottish Tongue1 (DOST), it is also defined in the Oxford English Dictionary (OED). DOST gives two meanings for kenning: imparting, recognition, identification; and ‘sight or view (of a thing)’. It then mentions ‘land kenning’ as being ‘the distance from anything which is the limit at which it can be seen at sea’. Only the first meaning in DOST is given in the Scottish National Dic

Heraldry is a tradition rooted in identity, power and prestige. Over the course of 900 years, it has been wielded by the ruling classes to demonstrate their lineage and consolidate their authority. Yet a close analysis of the legal provisions shows that heraldry in Scotland evolved from these earliest origins as a visual symbol of the privileged elite to become a remarkably egalitarian tradition.

Between 1290 and 1513, the kingdom of Scotland was almost continuously at war with England. The wars began with the attempts of the first three Edwards to conquer Scotland. But they continued long after those attempts had failed. The main reason for this was the involvement of Scotland as an ally of France in the bitter Anglo–French conflict known as the Hundred Years’ War. It is not often realised that the first hostilities of the Hundred Years’ War, in 1336, arose from the refusal of Edward III of England to comply with a French ultimatum to withdraw his armies from Scotland. Thereafter, Scottish raids into England were regularly co-ordinated with the French so as to coincide with English attacks on France. The situation was aggravated by the growth in the Scottish and English borderlands of a society increasingly dependent on war for its livelihood. This was a particularly significant factor in Scotland during the half-century from the 1370s to the 1420s when the Border was dominated by the Black Douglases.

In two previous articles, I considered the Society’s history from its inception in 1934 up to an indeterminate point in the late 1960s. The story has continued for half a century since then, and I have been persuaded to bring it up to date. What follows is my attempt to do so. My text is largely based on a study of minutes of meetings of the Society and its Council as well as its annual reports and accounts, all of which, with the exception of those relating to one year’s accounts, have been preserved, and also from my experience as the Society’s Secretary and Treasurer from 1998 to 2016. During this fifty-year period, the Society has published more than forty volumes of valuable historical material and, as we shall see, has survived a revolution in the publishing and printing industries and the economic downturn of 2008–9, and it has come to terms with the electronic age. It has also seen a significant growth in the number of academic lawyers, most of them researchers and teachers in the universities, taking a specialist interest in legal history, engaging in extensive research projects and passing on to their students their enthusiasm for the subject.

When John Currie was banished for forging notes of the Bank of Scotland in 1728,2 Scotland had just gained its second chartered bank, the Royal Bank of Scotland, and was very much a pre-industrial society.3 Yet the rhetorical questions posed in this broadside and the anxieties that underpin them speak, in an uncannily perspicacious way, to the experience of currency use, and misuse, in Scotland across much of the eighteenth and early nineteenth centuries.

This article examines the framework for burgh council elections in early modern Aberdeen. It first reconstructs the sequence of events which led to two arbitral decrees in 1592 and 1596, which together set down the framework for election in Aberdeen; transcripts and translations of both decrees are provided. The article then explores the extent to which that process of election was interrupted in the subsequent decades, and in particular during the interregnum period (1651 to 1660). The article also considers the election of those commissioners who represented the burgh at meetings of national institutions. Throughout, the article shows the extent to which Aberdeen’s local elections were variously informed by and consistent with national trends observed in other Scottish burghs and interregnum governmental policies.

This article presents pleadings from the mid-sixteenth century, discovered by Athol Murray. They were written by Scotland’s Lord Advocate. He represented Crown and State, sat on the bench with the judges in the “College of Justice” (later known as the “Court of Session”), and was even entitled to partake and vote in their deliberations. In the present case, he acted as a pursuer in civil proceedings to disprove a forged document in order to pave the way for criminal prosecution. He submitted to the judges a mass of citations from learned literature of Roman and canon law (the so-called Jus Commune). The pleadings of this high-ranking civil servant illustrate that Jus Commune was applied in Scotland whenever a situation was not expressly regulated otherwise by national legislation or custom. Comparison to cases in Sinclair’s Practicks (1540–9)1 will additionally illustrate this.

That Scots law differed substantially from the common law of England is the conclusion of virtually all historians who have taken an interest in the subject.1 True, the two legal regimes shared some basic features. Scottish brieves, for instance, conformed to the overall pattern of English writs.2 Some exchange of ideas also took place. However, the laws and the legal systems of the two realms were never identical. Blackstone regarded the failure to consolidate their diverse laws into a single system as one of the few flaws in the accomplishments of the reign of Edward I.

In 1591, Thomas Mollisone, the town clerk of Aberdeen, prepared an inventory of surviving records of the burgh. He commented that no volumes of record survived that could be dated earlier than 1380. Nonetheless, there did survive some earlier materials.

The late fourteenth and fifteenth centuries witnessed an increase in the use of Scots as a language of the law. Evidence of this can be found in different types of sources. Charters and other legal documents show a growing use of Scots from the last quarter of the fourteenth century. In parliamentary legal proceedings, Scots was first recorded in 1390. In burgh court records, Scots also started to replace Latin, such as in the Aberdeen Council Registers in the second half of the fifteenth century.1 Legal treatises, too, were increasingly in Scots. The oldest known version in Scots of the Regiam Majestatem, for example, is found in the Auchinleck MS from around 1455.2 The earliest extant Scots translation of the Leges Burgorum is even older: from the third quarter of the fourteenth century. The Bute MS, which includes this translation, also contains the oldest known text of the Rôles d’Oléron in Scots. But, contrary to the history of the Leges Burgorum and Regiam Maiestatem, this text was translated from another vernacular language, French, and was only available in Scots in Scotland, at least as far as we are aware.

The following is a translation and Latin text of James Baillie’s ‘De D. Thomae Cragii vita, scriptis et progenie brevis narratio’ (‘Brief report on the life, writings and family of Sir Thomas Craig’), which prefaces the 1732 Edinburgh edition of ‘Jus feudale’. This short biography, notwithstanding its late date of publication, is the earliest literary account of Craig’s life and was drawn upon liberally by later authors, such as Tytler.

Sometime between 8 May and 1 June 1465, Simon Dalgleish, the precentor and official general of the diocese of Glasgow, acting at the instance of Master Robert Hamilton, chancellor ofGlasgow and procurator of James Hamilton ofCambuskeith, affixed to the doors of his cathedral church a citation by way of a public edict summoning all parties having interest to hear and see the transumption of a set of documents relating to a dispute over lands in Lanarkshire. The transumpt would have the authority of the official’s court interponed.’ On 1 June, Master Hamilton produced the three documents in question before the court.

‘I have often stood on the shore of my own country looking to the opposite coast of Ireland, divided by a strait so narrow that on a clear day we see the houses, the divisions of the fields, and the colours of the crops; and I often wondered at the marvellous difference in the development of the two kindred peoples …’ Those are the words of George Douglas Campbell,’ eighth duke of Argyll in the Scottish peerage, addressing the House of Lords during a debate on Gladstone’s second Irish land bill in 1881.

Support from the legal profession in Scotland was important in securing parliamentary union in 1707.1 At this time, the membership of the Faculty of Advocates in Edinburgh was greater than it had ever been, therefore their support, and that of the judges in the Court of Session, was worth gaining. In return, Article XVIII of the treaty protected Scotland’s private law while Article XIX provided advocates, Writers to the Signet and Clerks of Session with a formal career structure for the first time, leading potentially to a place on the bench. A little-known motion in the Scottish Parliament in March 1707 recommended an increase in judicial salaries to take into account rising prices and the fact that the court’s jurisdiction had recently been expanded.