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Be Scottish Tteyt Society HABAKKUK BISSETS ROLMENT of COURTIS O r c< . ( a- £be Scottish tTeyt Society HABAKKUK BISSETS ROLMENT OF COURTIS Habakkuk Bisset’s Rolment of Courtis EDITED BY Sir PHILIP J. HAMILTON-GRIERSON, LL.D. VOL III. Runlet) for tlje Societg bg WILLIAM BLACKWOOD & SONS LTD. EDINBURGH AND LONDON 1926 Printed in Great Britain All Rights reserved PREFATORY NOTE. In writing the Introduction, Notes, and Glossary it has been the editor’s aim to supply all the information necessary to a complete understanding of Bisset’s work. He has not, however, thought it needful to comment upon Bisset’s version of the story of the early Scottish kings, which he has reproduced from Bellenden’s trans- lation of Hector Boece; and he refers those readers who are interested in the subject to W. F. Skene’s Chronicles of the Piets and Scots and his edition of Fordun’s Scotichronicon. The special debt which the editor owes to Pollock and Maitland’s great work is made sufficiently obvious by his numerous references to it. In passing this volume through the press the editor has received invaluable assistance from Mr William Angus, Curator of the Historical Department, H.M. Register House, Edinburgh, for which he offers his grateful thanks. Mr Angus not only read and corrected the proofs along with the editor, but made many sug- gestions and criticisms which have received effect in the Introduction and Notes. vi PREFATORY NOTE. The Society is greatly indebted to their Hon. Secretary, Mr W. B. Menzies, Advocate, for the compilation of the Index. The editor cherishes the hope that what he has written, however many may be its shortcomings, may be of some service to any future writer who takes for his subject the early law of Scotland. CONTENTS. Addenda ex Corrigenda ix Introduction i Notes to Volume I ioi Notes to Volume II 164 Glossary 249 Index 289 ADDENDA ET CORRIGENDA. Volume I. P. v, 1. 2. After add “Laing Coll. XII. Law.” P. vii, 1. 13. Delete “Before . year,” and substitute “ Bisset was a member of the Society of Writers to the Signet before 7th July 1581, when he was designated as such in a contract to which he was a party (‘ Reg. of Deeds,’ vol. xix. fol. 403). In the year 1587.” P. xiii, 1. 4. Delete “This . Bisset,” and substitute “The last reference which we have concerning Bisset is his mention (vol. ii. 157, 1. 2) of‘this present Jeir of god, 1627.’” P. 131,1. 30. For “ Januraii” read “ Januarii.” P. 179, 1. 20. After “ diclinatoria ” insert “3 ”, and add a footnote “3 ‘dilatoria’ in University Library copy.” Volume II. P. 8, note 2. For “ Bolton ” read “ Belton.” P. 18, note 1. Delete “Innerkip” and read “ Innertig was the former name of the parish now known as Ballantrae.” P. 137,1. 21. For “seasing is” read “seasingis.” P. 315, 1. 1. After “ffercurius” insert “1”, and add footnote “* Ferrolus and Ferrutio.” Volume III. P. 12, 1. 29. After “65 ff.”) add “ See the Acts, 1424, c. 2 ; 1425-26, c. 7; and 1449-50. c. 4 (‘A. P.,’ ii. 3, 9, 34).” P. 13,1. 18. For “a single MS.” read “two MSS.” P. 19, 1. 9. For “vicine” read “vicinie.” P. 25,1. 32. For “ 1. 13” read “1. 20.” P. 36,1. 31. For “p. xxix.” read “pp. xxxvi., xliii.” P. 43, 1. 31. After “part" add no part of the office of sheriff was committed to him other than to carry out that execution ” (Hope, ‘Minor Practicks,’ ed. J. Spotiswood, Edinburgh, 1734, § 6, note; Karnes), omitting “ (ib. ” after “part." ADDENDA ET CORRIGENDA. P.70,1.18. For “ii.” read “iii.” P. 70, 1. 19. After “ 293 ff.)” delete the remainder of the note. P. 71, 1. 21. After “prove” delete the remainder of the note and substitute what follows : “ In Stair’s time it had become the practice in civil cases, where the averments of the parties were contrary, to reserve the point of relevancy and to allow to both parties proof of their averments (Stair, iv. 39, 4 and 5). Previously the practice had been for the judge to decide the point of relevancy, and, in accord- ance with the maxim ‘ frustra probatur quod probatum non relevat,’ to allow a proof to the party whose averments he held to be relevant. This judicial act—the act of litiscontestation (see note to vol. i. 183, 1. 30 below)—thus determined not only what was to be the subject of proof, but also the incidence of the ‘onus probandi.’ After litiscontestation it was, as a general rule, incompetent to state additional defences (see Bisset, vol. i. 184-5). A distinction was drawn between defences which did, and which did not, contradict the libel (see Stair, i. 9, 19, and 20; iv. 40, 12 (thirdly-sixthly)). The former were regarded both in civil and criminal cases as irrelevant, and therefore as inadmissible (Balfour, ‘ Practicks,’ pp. 349,358 ; Hope, ‘ Major Practicks,’ Adv. Libr. MSS. 24.3.10, fol. 212; Mackenzie, ‘ The Law and Custom of Scotland in Matters Criminal,’ Part ii., Title 22; Hume, ‘Comm.,’ ii. 297 ff.). Exceptions were admitted to this rule in certain cases—a^-., in proceedings before the council in regard to riots (Mackenzie, loc. sup. at.), and in spuilzies (Stair, i. 19 and 20). See also Ersk., ‘Inst.’iv. 4, 90; Glassford, p. 150. As to the burden of proof where the defender adduced oath-helpers to support his oath, see Pollock and Maitland, ii. 47, 603 ; Brunner, ii. 370; ‘Essays in Anglo-Saxon Law,’ pp. 185 ff” P. 74, 1. 29. After “1 ff” add “The ‘Formulare’ of St Andrews contains instances of the ecclesiastical procedure known as the ‘ Purgatio Canonica,’ in which oath-helpers had a part. These instances belong to the early sixteenth century (see J. Herkless and R. K. Hannay, ‘The Archbishops of St Andrews,’ Edinburgh, 1910, iii. 211 f.).” P. 80,1. 1. Delete the words “Nor . proof.2” P. 80,1. 19. Delete note 2. P. 90,1. 23. After “forsacan” insert “Liebermann, however, both in his vocabulary and in his comments on 1 Eadgar 3, 1 and 11 Cnut, 15, 2, regards the phrase as inapplicable to this form of process.” P. 92,1. 26. For “Registrum ” read “Liber Cartarum.” P. 93, 1. 7. “Active . passive.” An heir is said to be heir activt or to have an active title in so far as he represents the deceased in his rights. He is said to be heir passivl or to have a passive title in so far as he represents the deceased in his debts and burdens (Erskine, ‘Inst.,’ iii. 8, 50). ADDENDA ET CORRIGENDA. XI P. 93,1. 14. For “a single MS. ” read “two MSS.” • P. 95, 1. 11. Insert the following new paragraph : “ It is to be noted that when a doom had been falsed, and the falser, who had found security to proceed with falsing, summoned those in whose favour the doom had been pronounced to appear before the Lords of Council, the Lords held that the summons should not be answered until the falsing had been decided.la” P. 95. Add note “,a 14th Oct. 1493, ‘Acta Dom. Conc.,’i. 299.” P. 109, 1. 6. After “163 ff.” add “Liber Insule Missarum” (Bannatyne Club), Edinburgh, 1847, pp. xii., xiii., and notes, and Appendix to Preface, No. 34; ‘Hist. MSS. Comm.,’ 3rd Report, Appendix, p. 417; ‘Analecta Scotica,’ 2nd Ser., Edinburgh, 1837, pp. 3° f- P. 109,1. 10. After “Galloway” add “See Bisset, vol. ii. 414,1.12.” P. 127,1. 2. Delete “note to p. 127, 1. 8” and read “p. 43, note 6.” P. 131, 1. 19. After “64 f.)” add “ It is of interest to note that it was a recognised practice in the sixteenth century for law students, before their admission to the Bar, to give public lectures in the Tolbooth (‘A. S.,’ 24th January 1580-81, ‘Pitmeddan’s Abridge- ment,’ Adv. Libr. MSS., 25.2.5).” P. 151, 1. 2. After “Replegiation” add “Hope, ‘Major Practicks,’ Adv. Libr. MSS. 24.3.10, fob 150.” P. 152,1. 23. After the word “criminal” add “Mr W. C. Dickinson has pointed out an instance of the practice in 1349 (‘Registrum Episcopatus Aberdonensis ’ (Spalding Club), Edinburgh, 1845, '• 80). It was in use in the courts of Shetland in 1588 and 1595 (‘Orkney and Shetland Records’ (Viking Society), London, 1907-13, i. 80, 220), and in the Isle of Man, in the Tynwald Assembly in 1421, and the Sheading Court in 1736 (J. Johnson, ‘ A View of the Jurisprudence of the Isle of Man,’ Edinburgh, 1811, pp. 14, 154; ‘The Acts of Sir John Stanley,’ a.d. 1414-32 (the Manx Society), Douglas, i860, iii. pp. 71 ff.). The usages in Shetland and the Isle of Man may probably be attributable to Norse influences.” P. 163, 1. 3. After “assessed” add “see Pollock and Maitland, ii. 537 f., and notes.” P. 187. After line 8 add “it8. 3. As to Eata, whom Bisset calls Catta, see Higden, ‘ Polychronicon,’ i. c. 56; Forbes, pp. 329 f. ; Mackinlay, p. 240.” P.207, 1. 27. Insert after line 27 “228.9. reporte . seill. See note to 1. 4 above.” P. 208,1. 39. After 1. 38 insert “231.8. wald . fysche.” Art. 49 of the Edict has ‘ Et Ih ou ladite trafue ne se pourroit d’une part & d’autre conduire ou accorder, voulons et entendons que ledit admiral puisse bailler aux subjects de noz ennemis sauf-conduit pour la pesche.’ INTRODUCTION. In his preface,1 addressed to the godly and Christian reader, Bisset informs us that in the years 1609-1613 Sir John Skene2 caused him to write, “be his directioun, the formes of deductioun of all processis in civile actionis, presentlie used and observed befoir the lordis of his maiesties counsall and sessioun, and utheris iudges within his hienes Kingdome of Scotland,” together with certain old forms and processes no longer in use.
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