Scottish Legal History Research Guide

Legal historians tend to focus on the development of the Scottish legal system from the feudal period onward, since little is known about Scottish law prior to A.D. 1,000. Early Scottish law can be described as an amalgam of Celtic, Welsh, Irish, Norse, and Anglo-Saxon laws and customs, with various geographical regions experiencing one or more of these influences. For example, Celtic customs were more pronounced in the Gaelic Highlands, whereas on the outlying islands, Norse law and customs were the direct result of previous Scandinavian occupation.The Norman Conquest of England in 1066, and the marriage of Malcolm III to Margaret in 1070, contributed to Anglo-Saxon influence on the Scottish church and state.

By the twelfth century, the feudal system was introduced into Scotland. It was a decentralized social and economic system of government and land tenure . This system eventually developed into theparliamentum or court of law, and led to the establishment of the Curia Regis or great council, based on the English model. Some of the offices and institutions which were created as a result of the feudal monarchy under David I include the justiciar or justice-general, being the king's delegate for administration; Iudices or royal officers who were attached to a province; sheriffs, who maintained order and collected revenue in the king's name; and barons and bailies. Two very important sources of Scottish law which were developed around this period are the Regiam Majestatem and the Quoniam Attachiamenta. The Regiam Majestatem, considered the chief source of Scottish-Norman law, is derived from early Scottish statutes, and Roman, canon and the common law of Scotland. It was likely compiled around 1285. The Quoniam Attachiamenta, containing forms, styles and other practice materials, was written around the fourteenth century and served as a practice manual to the feudal courts.

Various court systems also developed over this period. These included:

• Guild Merchants and Burgh Courts. The guild courts mainly had jurisdiction over buildings, streets and nuisances, while each burgh established courts to enforce its own regulations and settle disputes. Burghs, usually located near a royal castle, began to develop as economic organizations and functioned as market centers for the sheriffdoms. The original four burghs were Berwick, Roxburgh, Edinburgh and Stirling, and their operations led to the emergence of the Leges Quatuor Burgorum, a compilation of municipal regulations
• Barony and Regalty Courts. These were presided over by the baron or his bailie, or both, or by two bailies. This court's civil jurisdiction extended to debt possession, lawburrows, breach of arrestment, bloodwite and deforcement. It also had criminal jurisdiction in theft and slaughter.
• Sheriff Courts. The sheriff court was originally held at the castle. Head courts were held 3 times per year, with lesser courts meeting more infrequently. The sheriff presided over the court and administered both civil and criminal justice.
• Ecclesiastical Courts. From around 1192, dioceses of the Scottish Kingdom were recognized by the Pope as exempt from metropolitan authority, and prior to the Reformation bishops in these dioceses each had their own consistorial courts.These dioceses undertook judicial functions and compiled ecclesiastical statutes which were used at the provincial and diocesan levels. Bishops and abbots were influencial in government and the canon law of the Roman church as introduced, resulting in the influence of Roman law on the Scottish legal system. Ecclesiastical tribunals were led by judges-delegate, and dealt mainly with matrimonial cases, but also with criminal and civil issues, with appeals and final decisions considered by Rome. Following the Reformation, the Court of Session during the period 1560-1563 assumed responsibility for consistorial cases and other issues previously determined by the ecclesiastical tribunals. The Reformation period also ushered in the Presbyterian Kirk Sessions or consistorial courts, throughout Scotland.

2.1 Central Criminal Courts

The justiciar, or office of the justice-general had its beginnings during the reign of David (1124-53). Two justiciars were appointed as the king's delegate to administer justice in civil and criminal matters. Later, a third justiciar was appointed to deal with civil and criminal cases not under the jurisdiction of the king's court. Justiciars were usually important noblemen, and over time, the number of justiciars increased. Eventually, the office of justice-general was made hereditary until around 1836 when it was merged with the office of Lord President of the Court of Session. Reform of the supreme criminal court eventually led to the the institution of the High Court of Justiciary in 1672.

2.2 Central Civil Courts

The Court of Session, created primarily through the efforts of James I (1406-37) evolved through a series of attempts at court reform and the need to more clearly determine complaints and causes. After several modifications in the structure and operation of the court, by around 1450, the king chose persons from three Estates, who with the chancellor, were to hold three sessions per year. By 1456 the Estates chose nine judges, appointed by the General Council, with each Estate having three judges who would sit in three sections, hearing and deciding cases. The Reformation led to the decline of Roman canon law influence, with the Court of Session determining matters previously administered by the ecclesiastical tribunals. Parliament also annulled all laws, acts and constitutions which were considered in opposition to the reformed religion.

2.3 Parliament

The Scottish parliament, unicameral in structure, appeared to be established early in the thirteenth century and served as both a court of first instance, as well as a court of appeal. Parliament had jurisdiction in civil and criminal matters. Judicial authority rested with the entire parliament, but later committees became functional and exercised authority. Unlike the bicameral nature of the English parliament, the Scottish parliamentary structure made it particularly susceptible to monarchical influence.

After several aborted efforts to form a union of the parliaments of Scotland and England, further attempts were made after 1689. Some of the thorny issues included English objection to free trade between the two countries, the question of succession to the English throne, taxation, jurisdiction of the Scottish courts and the number of Scottish representatives in the new Parliament of Great Britain. Arising out of the joint commission meeting in April 1706, there was agreement on three main issues: 1) an incorporating union, 2) English guarantee of complete free trade and 3) Scottish agreement to recognise the Electress of Hanover and her heirs as Protestants and successors to Queen Anne as Queen of Scotland. Scotland ratified the articles of union in January 1707, while the English Parliament ratified them in March of 1707. On May 1, 1707, the treaty entered into force. The Treaty of Union stipulated the continuance of Scottish law and courts. It also called for establishing a Court of Exchequer in Scotland to decide revenue issues.

Reference:

Walker, David M. The Scottish Legal System. An Introduction to the Study of Scots Law. Edinburgh: W. Green, 2001

Walker, David M. A Legal History of Scotland. Edinburgh: W. Green, 1988-2004. 7 vols.