UPDATE: Researching Scottish Legal History

By Yasmin Morais

Yasmin Morais is the Faculty Services Librarian at the Mason Law Library, University of the District of Columbia. Prior to that, she was Resident Librarian at the Georgetown Law Library. Yasmin also worked as a Program Officer at the United Nations Development Program (UNDP), in Jamaica. She obtained a BA in Spanish, and MSc in International Relations from the University of the West Indies (Mona), as well as her MLIS from the University of Toronto, and LLB from the University of London.

Published March/April 2021

(Previously updated in April 2010, February 2014, and in January 2017)

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1. Introduction

This research guide was created to assist with research on Scottish legal history. It is adapted from the author’s research guide created for the Georgetown Law Library. The guide covers the feudal period through 1901 and up to referenda on independence from 2014, as well as Scotland’s position on Brexit. Pre-eminent print and electronic resources are highlighted. Annotations are provided for some of these resources.

2. Scotland and Independence/Brexit: 2014 to the present

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. Following the 2016 Brexit referendum and a period of political turmoil throughout the UK, the European Communities Act 1972 was repealed.

The European Union (Withdrawal) Agreement Act was passed in 2018 and has since been amended by the European (Withdrawal Agreement) Act of 2020. The Withdrawal Agreement outlines the negotiated terms of the United Kingdom’s departure from the European Union. European Union Law will apply until at least December 2020.

The COVID-19 pandemic, with its devastating economic and social impact, has created added uncertainties regarding the way forward for the United Kingdom. There are suggestions that Scotland might require another referendum to determine its future, based on its own preferences regarding immigration, free movement, and its economic interests.

3. 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 parliamentumor 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.

3.1. The Development of the Courts

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

3.1.1. 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.

3.1.2. 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.

3.2. 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.


4. Primary Sources

4.1. Early Treatises

5. Secondary Sources

5.1. General Texts

Listed below is a selection of good secondary sources. Also included in this section are fairly recent publications on Scotland’s position with respect to the European Union/Brexit.

5.2. Journals

6. The Scottish Parliament

7. Courts and Court Records

7.1. Baron Baillie Court

7.2. Court of Session

7.3. High Court of Justiciary

7.4. House of Lords

7.5. Sheriff Court

8. Abridgments, Commentaries, Dictionaries and Digests

9. Trials

Below are some useful print resources for researching ancient trials. Additional electronic resources relating to trials are listed under section 11, Electronic Resources.

10. 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.

11. Electronic Resources

12. Reports