UPDATE: Scottish Legal History – A Research Guide

 

By Yasmin Morais

 

Yasmin Morais is Cataloging Librarian at the Mason Law Library, University of the District of Columbia. She was previously Resident Librarian at the Georgetown Law Library. Yasmin obtained her MSc in International Relations from the University of the West Indies (Mona) and her MLIS from the University of Toronto. She is in her final year of the LLB program at the University of London.

 

Published January 2017

(Previously updated in Apr. 2010 and Feb. 2014)

Read the Archive Version!

 

Table of Contents

1. Introduction

This research guide was created to assist with research on Scottish legal history. The guide covers the feudal period through 1901 and highlights the pre-eminent print and electronic resources which are useful for research in this area. On September 18, 2014, a referendum was held to decide whether Scotland would become an independent nation or remain a part of the United Kingdom.  55% voted to remain within the United Kingdom, while 45% voted for independence. On June 23, 2016, in another important referendum on whether Britain would leave the European Union (Brexit), Scotland voted overwhelmingly (62%) to remain with the European Union, unlike the results in England and Wales. Resources on both the Scottish Independence referendum and Scotland post the Brexit referendum are included. Annotations are provided for some of the resources. This guide is adapted from the author’s research guide created for the Georgetown Law Library.

 

2. Scottish Legal History: An Overview

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. 1000. Early Scottish law can be described as an amalgam of Celtic, British, Norse, and Anglo-Saxon laws and customs, with various geographical regions experiencing one or more 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 the parliamentum 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, 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 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 from Roman, canon and the common law of Scotland. It was possibly 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.

 

2.1. The Development of the Courts

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

 

2.1.1. Central Criminal Courts

The justiciar, or office of the justice-general, had its beginnings during the reign of David (1124-53). Initially, two Justiciars were appointed as the king's delegates 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 institution of the High Court of Justiciary in 1672.

 

2.1.2. Central Civil Courts

The Court of Session, which could be considered the brainchild of James I (1406-37), evolved because of attempts at court reform and the need to 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 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.

 

2.2. Establishment of the Early Scottish Parliament

The Scottish parliament, unicameral in structure, was established in the early thirteenth century and served as both a court of first instance and 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 English parliament, which was based on the principal of bicameralism, the Scottish parliament was 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. As a result of the joint commission meeting in April 1706, there was agreement on three key issues: 1) an incorporating union; 2) English guarantee of complete free trade; and 3) Scottish agreement to recognize the Electress of Hanover and her heirs as Protestants and successors to Queen Anne, the Queen of Scotland. Scotland ratified the articles of union in January 1707, and 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 the establishment of a Court of Exchequer in Scotland to decide revenue issues.

 

References

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

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

 

3. Primary Sources

 

3.1. Early Treatises

 

4. Secondary Sources

 

4.1. General Texts

Listed below is a selection of good secondary sources for Scottish legal history.

 

4.2. Journals

·       British Politics

·       Edinburgh Law Review

·       Journal of Law Society of Scotland

·       Journal of Scottish Historical Studies.

·       Juridical Review

·       Parliamentary Affairs

·       Scots Law Times. Available on Westlaw. Coverage from 1893.

·       Scottish Affairs. Published by the Institute of Governance at the University of Edinburgh. Coverage since 1992

·       Scottish Constitutional and Administrative Law and Practice

·       Scottish Historical Review.

·       Scottish Journal of Political Economy

·       Scottish Law Gazette

·       Scottish Law Journal and Sheriff Court Record, 1858-61

·       Scottish Legal News

·       Scottish Parliament Law Review

·       The British Journal of Politics and International Relations

·       The Journal of the Law Society of Scotland

 

5. The Scottish Parliament

 

6. Courts and Court Records

 

6.1. Baron Baillie Court

 

6.2. Court of Session

 

6.3. High Court of Justiciary

 

6.4. House of Lords

 

6.5. Sheriff Court

 

7. Abridgments, Commentaries, Dictionaries and Digests

 

8. Trials

Below are some useful print resources for researching ancient trials. Additional electronic resources relating to trials are listed under section 9, Electronic Resources.

 

 

9. 2014 Referendum

 

For more publications such as bills, consultations and analyses on the upcoming referendum, the Scottish Affairs Committee’s website (see link under Electronic Resources section at 10 below) provides access to such resources. Section 4.2 of this guide lists relevant journals on Scottish history and politics.

 

10. Electronic Resources

o   UK Cases Combined (ALLCAS database) – Covers All England Law Reports Reprints from 1158 when available.

o   England and Wales Reported and Unreported Cases (CASES database). Covers reported cases from 1558 and tax cases from 1875 and also contains decisions of note from Scotland.

o   Scottish Session Cases (SESCAS database). Coverage starts with 1930.

·       University of Glasgow

·       University of Oxford

·       University of St. Andrews. Institute of Scottish Historical Research – The University of St. Andrews was founded in 1413 and is Scotland’s first university. The Institute of Scottish Historical Research is a very rich site with projects such as the Records of the Parliaments of Scotland (RPS), [see link above], Scotland and the Wider World, and the Scotland, Scandinavia and Northern Europe Database.

o   United Kingdom Reports All (UK-RPTS-ALL). Coverage starts with 1865

o   Scots Law Times (SLT-RPTS). Coverage begins with 1893. This database carries full-text decisions from the Court of Session, High Court of Justiciary and the House of Lords. There are also selected decisions of Sheriff Courts.

o   United Kingdom Case Law Locator (UK-CASELOC). Coverage starts with 1865.

o   All Law Reports (ALL-RPTS). Coverage begins with 1865.

o   United Kingdom Scots Law Case Locator (UKSCO-CASELOC)

 

11. Reports