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Glanvill Resarcinate: Sir John Skene and Regi Am Maßist Atem

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Glanvill Resarcinate: Sir John Skene and Regi Am Maßist Atem GLANVILL RESARCINATE: SIR JOHN SKENE AND REGI AM MAßIST ATEM Hector L. MacQueen The focus of this essay is Sir John Skene's work in the late sixteenth and early seventeenth centuries upon the close link be­ tween two medieval legal texts, the Scottish Regiam Majestatem and the late twelfth-century English GlanvilL Today it is accepted that Regiam is fundamentally a copy of Glanvill, probably compiled in the fourteenth century.1 This was not the view of Skene. When he became the first to publish a text and Scots translation of Regiam, in 1609, he argued that the work had been put together in the reign of David I, king of Scots from 1124 to 1153, drawing on the attribution to 'king David' in its prologue. Glanvill, on the other hand, had been written in the reign of Henry II, king of England from 1154 to 1189, and was accordingly simply a version of Regiam adapted to English needs.2 But even in Skene's own time this was a controverted thesis. The best-known expression of the opposite view of some contemporaries is in the Jus Feudale of Master Thomas Craig, advocate of the Scottish bar, where Regiam is denounced as 'a blot on the jurisprudence of our country... the work of some obscure plagiarist'.3 In Scotland, this was the beginning of a debate which was to endure for some 250 years; my tide is drawn from the contribution to it of Lord Stair, first published in 1681, who commented that 'Craig doth very well observe... that these books called Regiam Majestatem are no part of our law, but were compiled for the customs of England in 13 books by the Earl of Chester, and by some unknown and inconsiderate hand stolen thence, and resarcinate into those four books which pass amongst us'.4 'Resarcinate' is an obscure word derived from the Latin verb 1 The following works are essential: A.A.M. Duncan, 'Regiam Majestatem: a re­ consideration', Jundical Review, vi (1961); P.G. Stein, 'The source of the Romano- canonical part of Regiam Majestatem', SHR, xlviii (1969); A. Harding, 'Regiam Majestatem amongst medieval law books', Jundical Review, xxix (1984). 2 For this view of Skene's see his annotation of the prologue in his Latin edit­ ion of Regiam (Edinburgh, 1609), f.7v, and note also his address 'To the Reader' prefacing the Scots edition (also Edinburgh, 1609). 3 Thomas Craig of Riccarton, Jus Feudale (Edinburgh, 1655), I, viii, 11. 4 James Dalrymple, Viscount Stair, Institutions of the Law of Scotland, 6th edn. 386 HECTOR L. MACQUEEN sarcio, sarsi, meaning 'to patch, to mend, to botch'. Stair thus conjures up an image of Regiam as Glanvill patched up and amend­ ed, rather badly, to give the appearance of a Scottish work, but not in fact to be relied upon as a source. The ultimate triumph of this view of Regiam was to be one of the most important factors in drawing a veil over the medieval law of Scotland from both formal legal and historical points of view; this was, after all, the most im­ portant text of that law, yet its contents clearly had to be approached with the greatest circumspection and doubt.5 The debate about Regiam arising from its association with Glanvill thus had all manner of important repercussions for the study and understanding of medieval Scots law. Its immediate significance for Skene and Craig emerges when the context of their discussions is considered. Not only weis it part of their efforts, inspired by the techniques of legal humanism, to recover the pure, uncorrupted sources of Scots law,6 but there was also the backdrop of discussions of a possible union of Scots and English law following the Union of the Crowns in 1603.7 Did the link between Glanvill and Regiam suggest that the two laws were not as distinct as many believed?8 If so, was legal union really the impossibility which so many lawyers in both countries represented it to be? Might such a union not be simply a restoration of the former order of things? Specifically for Scots lawyers, the possibility that Regiam followed Glanvill may also have hinted that ed. D.M. Walker (Edinburgh, 1981), I, i, 16. Stair's erroneous reference to the 13 books of Glanvill (recte 14) appears to have been picked up from Jus Feudale (see I, viii, 11). 5 For an account of the later debates about Regiam, see D.M. Walker, The Scot­ tish Jurists (Edinburgh, 1985), 16-17; also C. Kidd, Subverting Scotland's Past (Cam­ bridge, 1993), 148-150. ° For which see J.W. Cairns, T.D. Fergus & H.L. MacQueen, 'Legal human­ ism and the history of Scots law: John Skene and Thomas Craig', in Humanism in Renaissance Scotland, ed.J. MacQueen (Edinburgh, 1990). 7 On this see B.P. Levack, The Formation of the British State: England, Scotland, and the Union 1603-1707 (Oxford, 1987); B.R. Galloway, The Union of England and Scotland 1603-1608 (Edinburgh, 1986); The Jacobean Union 1604, eds. B.R. Galloway & B.P. Levack (SHS, 1985). My debt to these three works in what follows is very great. Two earlier articles by Levack on the legal union project of James VI and I remain valuable: 'The proposed union of English law and Scots law in the seven­ teenth century', Juridical Review, xx (1975); and 'English law, Scots law and the Union 1603-1707', in Law Making and Law Makers in British History, ed. A. Harding (Royal Historical Society, 1980). 8 For such a suggestion in an anonymous English source see BL, Sloane MS 1786, ff.l00r-104v. This refers to Skene's edition of Regiam, so must be post-1609 in date; in correspondence with me, Professor Levack suggests a possible date of 1610 (letter dated 30/9/90). .
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