CHAPTER ONE

THE MEDIEVAL AS A CENTRAL

Introduction—the pattern of development to 1600

The development of a central civil court in arose principally from the evolution of the judicial functions of the King’s Council in the fi fteenth century. However, its origins lie much further back. They can be traced in the history of the medieval . This demonstrates that a form of central court was already in existence by the last decade of the thirteenth century. It was at this time that great royal councils were fi rst routinely described by the term “parliament”, though also survives of similar forms of assembly meeting earlier in the century. It is clear that parliaments adjudicated upon disputes. Moreover their authority to do so was already understood in terms of jurisdic- tion, structured according to what was recognised as the common of Scotland. This had developed since the twelfth century, when, following the of David I (1124–1153), new infl uences had begun to transform the earlier Celtic legal .1 What little is documented of the character of the thirteenth-century parliament suggests that from the very beginning its business and constitution were fundamentally rooted in the maintenance of the law and the administration of royal . The letter of summons to the parliament of 1293 invited “everyone with a complaint . . . to show the injuries and trespasses done to them by whatsoever ill-doers . . . and to receive from them what justice demands”.2 Another description from around 1292 emphasised that the purpose of the “common assembly” which the King should have with the prelates, earls and barons of the realm was to demonstrate the King’s willingness to govern “according

1 W.D.H. Sellar, “Celtic law and : survival and integration”, Scottish Studies 29 (1989), 1–27. 2 A.A.M. Duncan, “The early parliaments of Scotland”, Scottish Historical Review 45 (1966), 36–58 at p. 46. 8 chapter one to the ancient and usages of the land in all points”.3 In giving guidance on where certain disputes should be entertained, a distinction was drawn in this account between a “full parliament” and a “lesser council”. The holding of a parliament was therefore seen to possess a special signifi cance in judicial terms. Of course, the judicial determination of disputes, as well as the issuing of laws, were activities long associated with Scottish kingship and had a history which pre-dated the fi rst appearance of Parliament.4 The parliaments of the 1290s were successors to more loosely defi ned colloquia, fi rst described as such in the 1230s.5 Less formal assemblies of notables around the King can be traced back at least as far as David I. The personal role of the King in dispensing justice is captured in Ailred of Rievaulx’s almost mythic description telling us how David “was accustomed to sit at the entrance of the royal hall and diligently to hear the cases of poor men and old women who on certain days were called to him singly in whatever district he came to and often with much labour to satisfy each”.6 In the development of an interlinked structure of formal assemblies with legal functions in medieval Scotland, the role of kingship provided the common thread of development. The relationship between kingship, government and law in Scotland refl ected wider European developments. As Susan Reynolds has stated, “there can be no doubt that the twelfth and thirteenth centuries began to bring important changes to the ideas and practices of law”. Reynolds has emphasised two developments in particular. First, the “strengthening of government began to transform the law by emphasizing one source of its authority and enforcement among others”. Secondly, she noted

3 “The Scottish king’s household and other fragments”, ed. M. Bateson, in Miscel- lany of the Scottish History Society (Second Volume), Scottish History Society First Series 44 (, 1904), pp. 3–43 at pp. 31, 37–38. Note that, although reliance on this source was cautioned against in Duncan, “The early parliaments of Scotland”, p. 36, owing to doubt over its dating, it has subsequently come to be discussed as dating from “probably about 1292” in A.A.M. Duncan, Scotland: The Making of the Kingdom (Edinburgh, 1975), p. 595. 4 A.A.B. McQueen, “The origins and development of the Scottish parliament, 1249–1329” (University of , unpublished Ph.D. thesis, 2002), p. 30. 5 Duncan, Scotland: The Making of the Kingdom, p. 610. There is some evidence sug- gesting that the term “parliament” was used intermittently after 1249: McQueen, “The origins and development of the Scottish parliament”, p. 35. 6 A.A.M. Duncan, “The Central before 1532” in An Introduction to Scottish Legal History, ed. G.C.H. Paton, Stair Society 20 (Edinburgh, 1958), pp. 321–340 at p. 321; A.O. Anderson (ed.), Scottish Annals from English Chroniclers AD 500 to 1286 (, 1908), p. 233.