Scottish Legal History: A Research Guide

By Yasmin Morais

Yasmin Morais is Resident Librarian at the Georgetown University Law Center’s Edward Bennett Williams Law Library. She obtained her MLIS from the Faculty of Information, University of Toronto, and her MSc in Government from the University of the West Indies. Yasmin has previously published articles in Law Library Lights and LLRX.com.

Published November/December 2008
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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. Annotations are provided for some of the resources. This guide is adapted from the author’s research guide created for the Georgetown University Law Center 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:

  • Guild Merchants and Burgh Courts. The guild courts had jurisdiction primarily 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.

(a) 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.

(b) 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 recognise 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

  • Dundas, John. A Summary View of the Feudal Law: With the Differences of the Scots Law From It; Together with a Dictionary of the Select Terms of the Scots and English Law, By Way of An Appendix. Edinburgh: 1710.
  • Hume, David. Decisions of the Court of Session, 1781-1822, in the Form of a Dictionary. Edinburgh: William Blackwood and Sons, 1839.
  • Mackenzie, George. Observations on the Acts of Parliament: Made by King James the First, King James Second, King James the Third, Queen Mary, King James the Sixth, King Charles the First and King Charles ll. Edinburgh, 1687.
  • Scotland. The Laws and Acts of Parliament Made by the Most Excellent and Mighty King and Monarch James, by the Grace of God, King of Great Britain, France and Ireland, Defender of the Faith, & c. Edinburgh: Andrew Anderson, 1674.
  • Skene, John. Regiam Majestatem. The Auld Lawes and Constitutions of Scotland [1004-1400]. Edinburgh: John Wood, 1609. There is also a 1774 edition.
  • Stair Society. Regiam Majestatem and Quoniam Attachiamenta, based on the text of Sir John Skene. Edinburgh, 1947.

3.1. Early Treatises

  • Adam, William. A Practical Treatise and Observations on Trial by Jury in Civil Causes, As Now Incorporated with the Jurisdiction of the Court of Session. Edinburgh: Thomas Clark, 1836.
  • Bell, Robert. A Treatise on the Election Laws, As They Relate to the Representation of Scotland in the Parliament of the United Kingdom of Great Britain and Ireland. Edinburgh: George Ramsay and Company, 1812. This is available electronically through the Making of Modern Law database.
  • Burnett, John. A Treatise on Various Branches of the Criminal Law of Scotland. Edinburgh: George Ramsay and Company, 1811. Also available through the Making of Modern Law database.
  • Connell, John. A Treatise on the Law of Scotland, Respecting the Erection, Union, and Disjunction of Parishes; the Manses and Glebes of the Parochial Clergy, and the Patronage of the Churches. Edinburgh: Peter Hill and Company, 1818. Also available through the Making of Modern Law database.
  • Forbes, William. A Treatise of Church-Lands and Tithes. In Two Parts. Edinburgh: Andrew Anderson, 1705.
  • Forbes, William. A Methodical Treatise Concerning Bills of Exchange: Wherein is an Account of the Life and Progress of Exchange. Edinburgh: J. Mosman, et al, 1718.
  • Fraser, Patrick. A Treatise on the Law of Scotland: As Applicable to the Personal and Domestic Relations: Comprising Husband and Wife, Parent and Child, Guardian and Ward, Master and Servant. Edinburgh, T. & T. Clark, 1846. Also available through the Making of Modern Law database.
  • Glen, William. A Treatise on the Law of Bills of Exchange, Promissory Notes, and Letters of Credit in Scotland. Edinburgh: Archibald Constable and Company, 1807. Also available through the Making of Modern Law database.
  • Hutcheson, Gilbert. Treatise on the Offices of Justice of the Peace; Constable; Commissioner of Supply; and Commissioner under Comprehending Acts, in Scotland; with Occasional Observations Upon Other Municipal Jurisdictions. Edinburgh: William Creech, 1809. Also available through the Making of Modern Law database.
  • Mackenzie, James. A Treatise Concerning the Origin and Progress of Fees: Or, the Constitution and Transmission of Heritable Rights. Edinburgh: Gideon Crawford, 1761.
  • Sandford, Erskine Douglas. A Treatise on the History and Law of Entails in Scotland. Edinburgh: James Ballantyne and Company, 1822. Also available through the Making of Modern Law database.

4. Secondary Sources

4.1. General Texts

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

  • Cowan, Edward J. “For Freedom Alone”: The Declaration of Arbroath, 1320. East Lothian: Tuckwell Press, 2003.
  • Farmer, Lindsay. Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present. Cambridge: Cambridge University Press, 1997.
  • Ferguson, Paul Craig. Medieval Papal Representatives in Scotland: Legates, Nuncios and Judges-Delegate, 1125-1286. Edinburgh: Stair Society, 1997
  • Ford, J.D. Law and Opinion in Scotland During the Seventeenth Century. Oxford: Hart, 2007.
  • Kiralfy, Albert & MacQueen, Hector L. (eds.). New Perspectives in Scottish Legal History. London: Frank Cass, 1984.
  • MacQueen, Hector L. Common Law and Feudal Society in Medieval Scotland. Edinburgh: Edinburgh University Press, 1993.
  • Mitchison, Rosalind. The Old Poor Law in Scotland: The Experience of Poverty, 1574-1845. Edinburgh: Edinburgh University Press, 2000.
  • Neville, Cynthia J. Violence, Custom and Law: The Anglo-Scottish Border Lands in the Later Middle Ages. Edinburgh: Edinburgh University Press, 1998.
  • Pryde, George S. The Treaty of Union of Scotland and England, 1707. Greenwood Press, 1979.
  • Styles, Scott Crichton. The Scottish Legal Tradition. Edinburgh: The Stair Society, 1991.
  • Walker, David M. A Legal History of Scotland. Edinburgh: W. Green, 1988-2004. This multi-volume work is considered one of the most authoritative resources on Scottish legal history.
  • Walker, David M. The Scottish Legal System: An Introduction to the Study of Scotts Law. Edinburgh: W. Green, 2001.

4.2. Journals

  • Journal of Scottish Historical Studies.
  • Scots Law Times. Available on Westlaw. Coverage from 1893.
  • Scottish Historical Review.
  • Scottish Law Journal and Sheriff Court Record, 1858-61

5. The Scottish Parliament

  • Cobbett, William. Cobbett’s Parliamentary History of England From the Norman Conquest in 1066 to the Year 1803, From Which Last-Mentioned Epoch It Is Continued Downwards in the Work Entitled “Cobbett’s Parliamentary Debates”. London: T.C. Hansard, 1806-1820. Multi-volume work. Appendix 1 through to volume 6 contain proceedings of the Scottish Parliament from 1703 to union with England in 1707.
  • Lord Commissioners of Her Majesty’s Treasury. General Index to the Acts of the Parliaments of Scotland, to Which is Prefixed a Supplement to the Acts. Edinburgh: H.M. General Register House, 1875. Two-part resource.
  • MacIntosh, Gillian H. The Scottish Parliament Under Charles II, 1660-1685. Edinburgh: Edinburgh University Press, 2007.
  • Records Commission of Great Britain. The Acts of the Parliaments of Scotland [1707].. This is a ten-volume set.
  • Terry, Charles Sanford. The Scottish Parliament: Its Constitution and Procedure, 1603-1707. Glasgow: J. MacLehose and Sons, 1905. Available electronically through the Making of Modern Law database.

6. Courts and Court Records

6.1. Baron Baillie Court

  • Brown, Andrew. Judicial Proceedings Before the Baron Bailie Courts: With the Style of Summons’s [sic], &c.,Usually Practised, and Observations in Law Connected Therewith. Muthill: Pitkellony Private Press, 1816. Also available through the Making of Modern Law database.
  • Stitchill Baron Court. Records of the Baron Court of Stichill, 1655-1807. Edinburgh: T. & A. Constable, 1905. Available through the Making of Modern Law database.

6.2. Court of Session

  • Deas, George & Anderson, James. Cases Decided in the Court of Session, Jury Court, and High Court of Justiciary, from March 13 [1829] to [September 8, 1832]. Edinburgh: Stirling & Kenney, 1829-33. This is a multi-volume set.
  • Gibson, Alexander. The Decisions of the Lords of Council and Session, in Most Cases of Importance, Debated and Brought Before Them; From July 1621 to July 1642. Edinburgh: Stewart & Tennent, 1690.
  • Dalrymple, Hew. Decisions of the Court of Session: From [1698-1718]. Edinburgh: Gavin Hamilton & John Balfour, 1758.
  • MacFarlane, Robert. The Practice of the Court of Session in Jury Causes. Edinburgh: Andrew Shortrede, 1837. Also available through Making of Modern Law database.
  • Morison, William Maxwell. The Decisions of the Court of Session from Its First Institution to the Present Time, Digested Under Proper Heads, in the Form of a Dictionary. Edinburgh: Bell & Bradfute, 1801-1808. This is a multi-volume set.
  • Scotland. Court of Session. Cases Decided in the Court of Session. Edinburgh: Thomas Clark, 1834. This multi-volume set is also called First Series and covers the period 1821-1832.
  • Scotland. Court of Session. Cases Decided in the Court of Session. Edinburgh: Thomas Clark, 1839-1847. This multi-volume set is also called Second Series and coverage is from 1838-1848.

6.3. High Court of Justiciary

  • Dreghorn, John Maclaurin. Arguments, and Decisions in Remarkable Cases, Before the High Court of Justiciary, and Other Supreme Courts in Scotland. Edinburgh: J. Bell, 1774.
  • Edinburgh Justiciary Court. The Records of the Proceedings of the Justiciary Court, Edinburgh, 1661-1678. Edinburgh: T. & A. Constable, 1905.
  • Louthian, John. The Form of Process Before the Court of Justiciary in Scotland; Containing the Constitution of the Sovereign Criminal Court, and the Way and Manner of Their Procedure. Edinburgh: Robert Fleming & Company, 1732.

6.4. House of Lords

  • Bell, Sydney Smith. Cases Decided in the House of Lords, on Appeal from the Courts of Scotland. 4 and 5 Victoriae, Session of Parliament 1842-[1850]. Edinburgh: William Blackwood & Sons, 1843-52. Multi-volume set.
  • Craigie, John, et al. Reports of Cases Decided in the House of Lords, Upon Appeal from Scotland, From 1726-[1822]. Edinburgh: T. & T. Clark, 1849-56. Multi-volume set.
  • Macqueen, John Fraser. Reports of Scotch Appeals and Writs of Error, Together with Peerage, Divorce and Practice Cases in the House of Lords [1847-1865]. Edinburgh: T. & T. Clark, 1855-1866. Multi-volume set.
  • Paterson, James. Reports of Scotch Appeals in the House of Lords A.D. 1851 to 1873, with Tables of All the Cases Cited, Notes, and Copious Index. Edinburgh: T. & T. Clark, 1879. Two volumes.

6.5. Sheriff Court

  • Acts of Parliament Relating to Sheriff Court Practice: With Illustrations from Decisions of the Supreme Courts, and Occasional Notes: Also An Appendix Containing Recent Statutes and Acts of Sederunt, Including the Act of Sederunt with Relative Forms Under the Employers and Workmen Act, 1875. Edinburgh: Bell & Bradfute, 1876. Available through Making of Modern Law database.
  • The Scottish Law Review and Reports of Cases in the Sheriff Courts of Scotland. Glasgow: W. Hodge & Co., 1885-1963. Multi-volume set.
  • Lees, John M. Sheriff Court Styles Arranged in Dictionary Form: With Notes and Authorities. Edinburgh: Bell & Bradfute, 1892. Available through Making of Modern Law database.
  • Lees, John M. A Handbook of Written and Oral Pleading in the Sheriff Court. Edinburgh: William Hodge, 1920. Available through Making of Modern Law database.
  • Lewis, W. J. Synopsis of Sheriff Court Practice, Civil and Criminal. Edinburgh: Bell & Bradfute, 1887. Available through Making of Modern Law database.
  • Scots Law Times. Sheriff Court Reports. Edinburgh: W. Green & Son, Ltd., 1893. Multi-volume set.

7. Abridgments, Commentaries, Dictionaries and Digests

  • Angus, John W. A Dictionary of Crimes and Offences According to the Law of Scotland with Notes Referential, Explanatory, and Illustrative of the Same. Edinburgh: W. Green & Sons, 1904. Available through Making of Modern Law database.
  • Bell, George Joseph. Commentaries on the Laws of Scotland, and on the Principles of Mercantile Jurisprudence. London: Butterworths, 1989. Two-volume set. Several editions also available through the Making of Modern Law database.
  • Bell, Robert D. Dictionary of the Law of Scotland (3rd ed.) Edinburgh: John Anderson & Co., 1826. 2 volume set. Also available through Making of Modern Law database.
  • Elchies, Patrick Grant. Decisions of the Court of Sessions, From the Year 1733 to 1754, Collected and Digested Into the Form of a Dictionary. Edinburgh: William Maxwell Morison, 1813.
  • Gouldesbrough, Peter. Formulary of Old Scots Legal Documents. Edinburgh: Stair Society, 1985.
  • Henderson, A. Edward. An Analytical Digest of Cases Decided in the Supreme Court of Scotland and on Appeal by the House of Lords From July 20, 1867 to July 20, 1877. Edinburgh: T. & T. Clark, 1878.
  • Hume, David. Commentaries on the Law of Scotland, Respecting the Description and Punishment of Crimes. Edinburgh: Bell & Bradfute, 1797.
  • Hume, David. Commentaries on the Law of Scotland, Respecting Trial for Crimes. Edinburgh: Bell & Bradfute, 1800.
  • Hume, David. Decisions of the Court of Session, [1781-1822], in the Form of a Dictionary. Edinburgh: William Blackwood & Sons, 1839.
  • Lamond, Robert Peel. The Scottish Poor Laws: Their History, Policy and Operation. Glasgow: W. Hodge, 1892. Available through the Making of Modern Law database.

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.

  • Arnot, Hugo. A Collection and Abridgement of Celebrated Criminal Trials in Scotland from A.D. 1536, to 1784. Glasgow: A. Napier, 1812. Also available electronically through HeinOnline.
  • Arnot, Hugo. A Collection and Abridgement of Celebrated Criminal Trials in Scotland, 1536-1784: With Historical and Critical Remarks. Edinburgh: W. Smellie, 1785.
  • Green, C. J. Trials for High Treason, in Scotland, Under a Special Commission, Held at Stirling, Glasgow, Dumbarton, Paisley, and Ayr in the Year 1820. Edinburgh: Manners & Miller, 1825.
  • Pitcairn, Robert. Ancient Criminal Trials in Scotland: Compiled from the Original Records. Edinburgh: Maitland Club, 1833. This is a multi-volume set.
  • The Trials of James, Duncan and Robert M’Gregor, Three Sons of the Celebrated Rob Roy, Before the High Court of Justiciary, in the Years 1752, 1753, and 1754. This also contains a memoir on the highlands and anecdotes of Rob Roy and his family. Edinburgh: J. Hay & Co., 1818.

9. Electronic Resources

Although BAILII’s coverage for its Scottish documentation start in the 1990s, coverage in its United Kingdom Legislation database starts in 1215. House of Lords decisions date back to 1838. BAILII also has Law Commission Reports and European Union resources.

The Stair Society was established in 1934 to promote the study of Scots Law. This is an extremely useful site for research, containing a number of legal history links to additional sites for Scottish legal history research.

The Scottish Parliament’s website provides useful information on the early Scottish Parliament and the Treaty of Union.

This is perhaps one of the most important databases for Scottish legal history research, with links to resources such as the Acts and Proceedings of the Parliaments of Scotland to 1707, House of Lords judgments, parliamentary debates and public acts of parliament.

  • Westlaw Below are some relevant Westlaw Directories:
  • United Kingdom Reports All (UK-RPTS-ALL). Coverage starts with 1865
  • 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.
  • United Kingdom Case Law Locator (UK-CASELOC). Coverage starts with 1865.
  • All Law Reports (ALL-RPTS). Coverage begins with 1865.
  • United Kingdom Scots Law Case Locator (UKSCO-CASELOC)

10. Reports

  • Great Britain. Ninth Report of the Commissioners Appointed for Inquiring into the Duties, Salaries, Fees and Emoluments of the Several Officers, Clerks and Ministers of Justice of the Courts of Scotland. London, 1821.
  • Great Britain. General Report of the Commissioners Appointed to Inquire into the State of Municipal Corporations in Scotland. Presented to Both Houses of Parliament by Command of His Majesty. Edinburgh: Adam & Charles Black, 1835.
  • Great Britain. Report of the Commissioners Appointed by his Majesty’s Warrant of the 29th of July 1823, for Inquiring into the Forms of Process in the Courts of Law in Scotland and the Course of Appeals from the Court of Session to the House of Lords. Together with an Appendix in Pursuance of an Act of the Fourth Year of His Majesty’s Reign, c. 85. London, 1824.
  • Great Britain. Report from Her Majesty’s Commission for Inquiring into the Administration and Practical Operation of Poor Laws in Scotland. Edinburgh: Murray & Gibb, 1844.
  • Report of the Commissioners Appointed to Inquire into the Courts of Law in Scotland: Together with Minutes of Evidence. Edinburgh: Murray & Gibb, 1869-1870.