A key task of kingship was justice. Early twelfth-century royal justice does not appear highly systematic or regularized, especially in comparison with contemporary developments in England. It remained a matter of the king’s ad hoc personal intervention, or a favour granted to particular claimants, perhaps in the king’s own court (curia regis), rather than a matter of right or course for the king’s subjects. Certain general ideas do emerge from the sources: for example, that the king would intervene if there was a breach of his peace and protection, or if there was a default of justice (defectus justitiae) by some other person. There is also evidence that kings legislated, no doubt with the advice and assistance of their counsellors, and that the resultant ‘assizes’ or ‘statutes’ were intended to and did have a general effect that might extend beyond the reigns in which they were created, even though that might need reinforcement by subsequent re-enactment.
Perhaps the king’s primary responsibility was the preservation and, where necessary, the restoration of peace in his realm. By the middle of the twelfth century there had emerged a concept of the ‘pleas of the crown’, including the especially horrendous crimes which it was the king’s right and duty to punish. This must be seen, at least partly, against the background of an ‘honour’ society in which a person wronged (or his kin, if the wrong was homicide) was obliged to seek vengeance or lose face altogether. Honour might be restored by the provision of appropriate compensation by the wrongdoer to the victim and his kin. There are signs, however, that the king, perhaps encouraged by the church, was setting his sights against at least some aspects of both the vengeance and the compensation features of the honour code, as involving either an inevitable spiral of violence or the condonation of mortal sin. Another institution for the preservation of peace in which king and church seem to have joined forces was ecclesiastical sanctuary, within which someone accused of wrongdoing could take at least temporary shelter from his victims and their kin. Twelfth-century grants show that in some of these the peace of the church was given additional support and a wider territorial scope by that of the king, and these had an important rule in the pacification of feud to 1500 and beyond.
Royal justice in the localities began to be transformed in the later twelfth century, and the structure that emerged would also endure until 1500 and beyond. The most important innovations were the introduction of the offices of the sheriff and the justice or justiciar, who looked after the king’s interests in the various parts of his kingdom, including the protection of those brought to the kingdom by his patronage, who had no place in the existing kin-based structures for justice and peace-keeping. Largely following the progress of the Anglo-Norman settlement, the country began to be divided into sheriffdoms, some but not all of which show continuity with the older territorial units of shire and thanage. Although this division was not to be complete until the fourteenth century, the sheriffdom was certainly the ordinary unit of local royal government in most of the kingdom by the mid-thirteenth century, having largely usurped many of the functions of the ancient shires and thanages, and acquired others to deal with the new world brought about by the social and political changes of the previous century and a half. In particular, there were sheriff courts at which the king’s local tenants-in-chief paid suit and received justice seen as essentially royal in origin.
The function of the early justices, whose office is documented from the reign of David I on, is very obscure; but in the second half of the twelfth century they were clearly linked with, albeit superior to, the sheriffs, and held courts. A justiciar of Scotia, that is Scotland north of Forth, is found in Malcolm IV’s time, and it seems probable that there were justiciars of Lothian and, perhaps, Galloway before the end of the twelfth century. In the thirteenth century there were two principal justiciars, one of Lothian and the other of Scotia, both of whom conducted ayres, or circuits, of the sheriffdoms in their regions, holding courts in each, in theory twice a year. The justiciars of Scotia and Lothian, however, became the justiciars north and south of Forth respectively in the fourteenth century and remained key figures in the administration of justice right up to 1500. Throughout the whole of this period the justi-ciarships were held by major figures in royal government; but it is important to note that, like the sheriffs, it could never be said that the office-bearers were either fulltime professionals or trained in law. There was, however, a simple supporting bureaucracy, with the sheriff’s officers often being brought in to support the justiciary whenever an ayre reached the sheriffdom.
No absolute monopoly of justice was ever claimed by the king, save perhaps in resistance to the jurisdictional expansionism of the church courts, and then particularly in relation to land; the courts of private lords continued to play an important social role, albeit subject to the supervision of royal courts for ‘default of justice’. The increasing systematization of royal justice certainly justified the claim that the kingdom enjoyed a common law by the middle of the thirteenth century, however. The reign of Alexander II was a key period, with the Fourth Lateran Council of 1215 providing a vital stimulus by abolishing clerical participation in ordeals, a principal method of proof in secular law. In Scotland the consequent difficulties seem to have been met by increased use of the jury of neighbours as a means of testing the truth of competing claims. The English common law, which had grown so impressively since the time of King Henry II (1154-89), provided a model in issues of landholding, with its use of standard form royal writs commanding the use of juries in particular types of case, a feature presumably familiar to the many Scottish landowners with properties in England also. The Scottish royal writ (or brieve) of novel (or new) dissasine, introduced by legislation in 1230 to deal with cases of recent dispossession from land, was clearly derived from the English writ of novel disseisin, just as the brieve of mortancestry, dealing with cases of disputed inheritance from a closed class of near relatives, followed the exemplar of the writ of mort d’ancestor. And the Scottish brieve of right, which probably had its ultimate origins in the ancient royal jurisdiction to do right in cases of default of justice, was most likely reshaped later in the thirteenth century to deal with land cases beyond the scope of new dis-sasine and mortancestry in the same way as the English writs of right and entry. By 1270 settled law held that nobody could be put out of land except by action begun by the king’s brieve, another rule with an English root, but one which sat comfortably with an older prohibition, again enforced by royal brieve, forbidding the ubiquitous church courts from dealing with cases concerning lay tenements. The king’s task was to protect security of tenure and inheritance at all levels. On the other hand, there seems to have been acceptance of the exclusive jurisdiction of the church in relation to its own affairs and in matters concerning the status and morals of the laity: marriage, divorce and legitimacy, for example.
The jury was also increasingly deployed in the control of crime. In 1245 legislation provided that the justiciar of Lothian should hold an inquest to identify wrongdoers within his jurisdiction since Christmas 1243. This procedure, obviously drawing on both the English jury of presentment and the canon law inquisition, was in use north of Forth as well as in Lothian by the second half of the thirteenth century. The aim seems once again to have been to control feud and the private pursuit of crime, and to assert the royal interest in peace and good order; but it should also be noted that this policy did not contemplate the exclusion of the courts of lords below those of the king.
Legislation such as that of 1245 was passed in meetings of the king and the great men of the realm, the typical Latin term for which was colloquium, a talking together, rather than parliamentum. These colloquia were also times at which justice might be dispensed in particular cases, possibly coming up from lower courts; but their most important function was the discussion and determination of high policy and action at critical moments. This embodiment of the political community of Scotland, or the community of the realm, as it was increasingly referred to in the later thirteenth century, had a particularly important role to play when the king was a minor, and the institution would come into its own in the period of crisis that followed the sudden and untimely death of Alexander III without a male heir in 1286.
World History
