Common Law and Feudal Society in Medieval Scotland

Common Law and Feudal Society in Medieval Scotland

Common Law and Feudal Society in Medieval Scotland

Common Law and Feudal Society in Medieval Scotland


Analyses the development of law and legal system in Scotland between c.1100 and c.1550, with a major focus on the fourteenth and fifteenth centuries

Exploring the relationship between law and society, this classic edition of Common Law and Feudal Society brings a key legal history text back to life in a popular new series, affordable for the student of Scottish legal history. The close links between the Scots and English law in the Middle Ages have long been recognised, but this classic text assesses the relevance of traditional approaches to Scottish legal history, setting the development of medieval law within the context of a society in which private lordship, exercised through courts and other less formal methods of dispute settlement, played a key role alongside royal justice.

Based on extensive research, this book examines the brieves of novel dissasine, mortancestry and right, and legal remedies for the recovery of land, as well as aspects of the early history of the Scottish legal profession and the origins of the Court of Session.


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 in the first chapter, however, it may be that the antithesis between royal and feudal justice has been overdrawn, at least so far as it affected Scotland. Certainly, no medieval Scottish king sought conflict with the private courts of his magnates; rather it is clear that their courts were seen as instrumental in the achievement of good governance alongside the royal courts. A fresh analysis of the relationship between the feudal courts and royal justice in Scotland is obviously a necessary preliminary to any discussion of the king's brieves of novel dissasine, mortancestry and right, and of the rule requiring the use of these brieves when it was sought to eject a tenant from his free holding. Before the effect of this rule and the relevant brieves can be assessed, it is necessary to understand the world in which they operated. To what extent were disputes about landholding matters only for the lord of whom the land was held? Did the king's courts have the capacity to compel the use of the remedies which they provided, and to enforce their judgments against recalcitrant lords?

This chapter has three main themes. First, it examines the existence and operation of the courts of private lords in the twelfth and thirteenth centuries, with special reference to their proprietary and disciplinary jurisdictions. Second, it discusses the development of royal justice, stressing the clear pattern of regularisation and its assertion of ultimate control, although not of a monopoly, over justice in the feudal courts. The third theme is the interaction between royal and lordship courts, which came to rest in the later Middle Ages on a theory of the jurisdictional superiority of . . .

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