1 Law and medieval Scotland
Some of the earliest influences on law and the legal system in Scotland include native customs, Norse law and Welsh law. With the establishment of the kingdom and state of Scotland, however, things began to gradually change.
In the reign of David I (1124–1153) a number of systems and institutions were put in place in an attempt to maintain order across all of Scotland. Justice was administered in the name of the monarch (as it still is today). A number of institutions found in the legal system today, such as sheriffs and the 15-person jury system, have their roots in medieval Scotland and the reforms of David I.
During this time, travelling judges (justiciars) were established. They were appointed to hear criminal and civil matters and were usually chosen from the ranks of the senior nobility. Ownership of land and estates also came with responsibilities. Those may have been to the monarch, to justice, to protect property, to provide armed men for an army or to tenants and servants. How these responsibilities were undertaken was dependent on the nature and political leanings of the individual noble. Nobles were often subjective rather than objective in the use of their power. Appointments to senior positions within a state (or the church) from the ranks of nobility was common across Europe at the time. Those with power, wealth and influence had control over both the legal system and political system. Law was seen as a tool to resolve disputes but was also used to wield power and protect the interests of the selected few. In most countries, those working the land, servants and women had little say in the laws of the land and their development.
The courts, presided over by justiciars, were held infrequently and are not now regarded as having been very effective (the nobles often had other matters to manage in an era of warfare, crusades, changing political alliances and instability). Alongside the justiciars, local courts also developed. From the fourteenth century, powers of regality were granted to local nobles and churchmen who were trusted to administer justice in the name of the monarch. Regality enabled those so empowered to exercise jurisdiction in respect of serious crimes (rather than wait for the justiciar’s court). Whilst varying in their effectiveness they were at least held on a more regular basis. Some records of these courts exist and indicate that a number of them were successful in achieving their task of providing justice. These courts lasted for a number of centuries with the final ones being abolished in 1746. A further layer within the system of administering justice were the barony courts. These courts, where lesser landowners dispensed justice, dealt with minor criminal and civil matters.
At a local level, Scotland was divided into sheriffdoms. Sheriff courts were established where the sheriff, as the King’s Officer, administered civil and criminal justice in the King’s name. This system of local justice, established at the time of David I, still underpins the legal system today.
Burgh courts were originally established as centres of royal influence and were supervised by an officer (chamberlain) in the King’s household, and were presided over by provosts. At the time monarchs were beginning to realise and acknowledge the role that trade could play in enhancing taxes and revenues and therefore their income and power. However, as trade developed and merchants began to gain economic influence, power and independence, a process of gradual change began to take place in the system.
A feudal system of land ownership was also introduced (and continued to be the basis for land ownership until relatively recent times). This system was developed from one originating in Normandy.
This structure of administering justice (and land ownership) mirrored the structure of society at that time. Once established, many of the positions designed to administer justice were handed down in a hereditary way (through the ranks of noblemen and barons).
The monarch, nobility and church were not, however, the sole participants in the system of justice; as the origins of the jury system can also be traced back to this time. Adult males who had a title to land could be selected for jury service in the sheriff and burgh courts. Tenants could be required to attend the barony courts.
Through this system of administering justice, an attempt was being made to keep order, to provide access to and to dispense justice. At this time much of the population was illiterate and many did not have access to justice to enforce their rights. They would, however, if they had broken the law in some way, have felt the full force of justice against them. One of the other issues of the time was that ‘justice’ was dependent on individual nobles or clergymen. Decisions provided by them varied as their approach often reflected their own values and interests.
In subsequent centuries, political developments in Europe lead to the formation of an alliance between Scotland and France against England. As a consequence, in the fourteenth century, France and other European countries became a dominant influence on the legal system in Scotland. Initially, this resulted in the legal system in Scotland having a much closer association with the continental legal systems based on Roman law (civil law systems) than on the English common law system. This is one of the aspects which gives the Scottish legal system its uniqueness today.