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Common Law and Feudal Society in Medieval Scotland

Common Law and Feudal Society in Medieval Scotland

Copyright Date: 2016
Edition: 2
Pages: 324
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    Common Law and Feudal Society in Medieval Scotland
    Book Description:

    An influential and key modern text in Scottish legal history, exploring the relationship between law and society, this classic edition ofCommon Law and Feudal Societybrings a key legal history text back to life in a popular new series, affordable for the student of early Scottish legal history.

    eISBN: 978-1-4744-0747-2
    Subjects: History, Law
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Table of Contents

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  1. Front Matter (pp. i-vi)
  2. Table of Contents (pp. vii-viii)
  3. Acknowledgements (pp. ix-x)
    Hector L. MacQueen
  4. Note on Editions of Texts (pp. xi-xii)
  5. Preface (pp. xiii-xxviii)
    Hector L. MacQueen
  6. Foreword: Common Law and Feudal Society in Scholarship since 1993 (pp. xxix-lxii)
    Andrew R. C. Simpson

    In 1995, Alan Harding described Hector MacQueen’sCommon Law and Feudal Societyas ‘one of [the] most penetrating studies yet produced of any period of Scottish legal history’.¹ In the twenty years since then that claim has been vindicated by countless studies that have relied heavily upon MacQueen’s work, and several substantial contributions to scholarship that have directly engaged with it.² While those contributions have certainly contested, developed and refined elements of his arguments in significant ways, they have left largely untouched many of his central claims. So it is no longer doubted that there emerged in medieval Scotland a...

  7. 1 Introduction (pp. 1-32)

    In or just after 1254, the English chronicler Matthew Paris inserted in hisChronica Majorathe supposed text of a papal bull issued by Innocent IV which referred to Scotland as a land where, like France, England, Wales, Spain and Hungary, the causes of the laity were decided by lay customs and those of the church by the canons of the holy fathers. Accordingly, unless the kings of those realms would have it otherwise, the imperial laws, i.e. the Roman law, should not be taught there.¹ The bull has been dubbed a forgery, concocted by Matthew or others as part...

  8. 2 Lords’ Courts and Royal Justice (pp. 33-73)

    Since the time of Maitland, the historiography of English medieval law has been dominated by the idea of a conflict, either deliberately sought or, more recently following Milsom, unintended but no less real, between royal and feudal justice, with the former expanding at the expense of the latter to create the common law of England. In medieval Scotland, by contrast, the story has traditionally been seen as going precisely the opposite way. Feudal courts retain power while royal justice fails, with generally disastrous consequences both for social order and stability and for the intellectual development of the law. As suggested...

  9. 3 Men of Law and Books of Law (pp. 74-104)

    In 1473, parliament was much concerned to deal with the obscurity of the law, one of the causes of which was declared to be ‘the gret diversite now fundin in divers bukis put in be divers persounis that ar callit men of law’.¹ This chapter examines who the men of law were, and the contents and nature of their books. The purpose is twofold. The first is to deal with Cooper’s contention that the conditions for the intellectual development (as distinct from the actual enforcement) of the law did not exist: ‘it has never yet proved possible to construct a...

  10. 4 Pleadable Brieves and Free Holdings (pp. 105-135)

    Before the end of the thirteenth century, it was thought to be a rule of the Scottish common law that no freeholder could be made to answer for his lands except by an action begun by the king’s brieve. The rule is found in the earliest manuscript of theLeges Burgorum, the Berne manuscript, which is dateable to c.1270:¹

    If anyone is challenged for his lands or tenement in a burgh, he need not answer his adversary without the lord king’s letters unless he freely wishes it. And he who is so challenged can resort to delays and to reasonable...

  11. 5 The Brieve of Novel Dissasine (pp. 136-166)

    In translation of the Latin text of the original, the brieve of novel dissasine (Latinnova dissasina, ‘new dissasine’ in Scots) runs thus in the fourteenth-century formularies:¹

    The king to the justiciar [north or south] of Forth. By his grave complaint A has shown us that B unjustly and without a judgment dissaised him of the lands of C with the pertinents in the tenement of D within the sheriffdom of E, of which he was vested and saised for days and years as of fee. Wherefore we command and ordain that you take from the foresaid A safe and...

  12. 6 The Brieve of Mortancestry (pp. 167-187)

    In many ways, the story of the brieve of mortancestry (morte antecessoris) seems to parallel that of dissasine closely. There is a reference which establishes its existence in Scotland in the mid-thirteenth century. In 1253, Emma of Smeaton sued the abbey of Dunfermline by royal letters of mortancestry, claiming lands in the fee of Musselburgh which had been held by her father.¹ The case was settled, but it is clear that the basis of Emma’s action was, as one would expect with mortancestry, a claim to succeed to an immediate ancestor who had died vest and saised in lands which...

  13. 7 The Brieve of Right (pp. 188-214)

    The first references to brieves of right (de recto) in the Scottish historical record are found towards the end of the thirteenth century. In 1290, Robert Bruce ‘the Competitor’, grandfather of the future King Robert I, made an agreement with Sir Nicholas Biggar that the latter would pursue a claim to the lands of Garioch by abreve regium de recto, as part of Bruce’s complex manoeuvres against John Balliol in the Great Cause over the Scottish crown.¹ Bruce, Balliol and John Hastings jointly held Garioch as descendants of Earl David of Huntingdon, who had been granted Garioch between 1178...

  14. 8 Council, Fee and Heritage (pp. 215-246)

    Sometime in the fifteenth century William, Richard and Henry Graham were summoned before the king’s council to show their charters and other documents by which they held the lands of Hutton. As already discussed, they invoked the rule by which a landholder could only be ejected through action begun by pleadable brieve; but they did not rest their resistance to the king’s summons on the brieve rule alone. The document recording their pleadings continues as follows:¹

    We understande that our soverayne lorde the kyngis counsale is na cowrte to plede fee na herytage na lyfe na lym. Quharfor we beseke...

  15. 9 Conclusions (pp. 247-269)

    This study has shown that for most of the medieval period there existed in Scotland a structure of legal remedies for the recovery of land, i.e. the brieves of novel dissasine, mortancestry and right. In general, the brieves were issued in the king’s name and were addressed to the king’s officers; they can be seen as central in the general development of regularised royal justice in the thirteenth century, and hence of a Scottish common law. The law compelled the use of the remedies by means of the rule that no-one in possession could be put out of land except...

  16. Bibliography (pp. 270-285)
  17. Index of Persons (pp. 286-291)
  18. Index of Places (pp. 292-295)
  19. Index of Subjects (pp. 296-306)