May 2012 – English law and the unification of Scotland

English law and the unification of Scotland

Dauvit Broun, Principal Investigator

 

The standard account of Scotland’s beginnings tells how the kingdom of Alba north of the Forth gradually expanded in the tenth and eleventh centuries to include most of the modern country. In the south east, Edinburgh was captured around 960, and control of the whole area down to the Tweed was vindicated at the Battle of Carham in 1018. In the west, the kingdom of Strathclyde was incorporated into the Scottish kingdom later in the eleventh century. The status of Moray in the north is a matter for debate, but there can be no doubt that it was part of the kingdom when its ruler, Macbeth (Mac Bethad mac Findlaích), was king of Alba 1040–1057. It is readily acknowledged, of course, that it was only in the thirteenth century that the west highlands and islands regularly acknowledged the authority of the king of Scots. In the Treaty of Perth in 1266 the king of Norway formally transferred his superiority over Man and the Hebrides to the king of Scots. The Northern Isles only became part of the Scottish kingdom two centuries later. The general view, however, is that Scotland had achieved a recognisable territorial form as a kingdom in the eleventh century: the expansion into the far north and west are not typically regarded as definitive moments in the kingdom’s path to unity—something which could usefully be debated.

 

The idea of ‘Scotland’ in the twelfth century

This Feature of the Month takes a fundamentally different approach to the question of Scotland’s unification. It asks when and how the king’s subjects began to think of the Scottish kingdom as a single country. The answer focuses particularly on the nobility whose charters survive in increasing numbers in the twelfth and thirteenth centuries, and which can now be investigated much more easily than before thanks to the database created as part of the Paradox of Medieval Scotland project (www.poms.ac.uk). The question, however, may seem strange. How could the kingdom of Scotland not be thought of as a single country? How could anyone who routinely acknowledged the authority of the king of Scots not think of themselves as part of Scotland?

 

This is exactly what is revealed when the curtain of documentary history lifts in the twelfth century. It appears that ‘Scotland’ (Scotia or Albania in Latin) regularly denoted not the territory of the kingdom, nor even the core area routinely controlled by Scottish kings, but merely the region lying between Moray, Argyll and the Forth. It is true that hardly any text refers in the same breath to more than one of the limits of this idea of ‘Scotland’. A rare exception is a chronicle which describes William I in 1214 ‘returning from Moray to Scotland, and then proceeding from Scotland to Lothian’.[1] The same restricted idea of ‘Scotland’ is made explicit in procedures for how anyone in possession of disputed goods was to verify their ownership of them. This was originally enacted by David I (1124–1153) and expanded by William the Lion (1165–1214).[2] David I established that anyone in the region bounded by the Spey in the north, the Forth in the south and the mountains of Drumalban in the west who is cited as a warrantor (i.e., guarantor—typically the person who sold or gave you the goods) had fifteen days to appear at a place in their province (e.g., Angus, Atholl, Fife) designated for this purpose.[3] Any cases involving people south of the Forth, including Galloway, were to be resolved at meetings every six weeks at the bridge across the Forth at Stirling. ‘Scotland’ in this limited sense was seen as having its own arrangements when it came to law and order.

 

It is particularly striking that no-one was expected to cross the Forth in order to establish their ownership of disputed goods. The River Forth and Firth of Forth was regarded as a major physical frontier: it was even imagined as nearly dividing Britain in two (as can be seen at http://www.bl.uk/onlinegallery/onlineex/mapsviews/mapgb/index.html).[4] Although it was possible for ‘Scotland’ to mean more of the landmass north of the Forth than the area bounded by the Spey and Drumalban, it was much more difficult for anyone to think of ‘Scotland’ as stretching south of the Forth. This means that many living south of the Forth—such as in Lothian—would have been subjects of the king of Scots for generations without thinking that they were part of Scotland.[5] Clearly, the realm of the king of Scots was not thought of as a single country: ‘Scotland’ referred only to its historic core. The king, in effect, ruled a number of ‘countries’.

 

The Scottish kingdom as a single country: royal power

When and how did this change? ‘Scotland’ only began to mean what it does today when the whole kingdom was thought of as one country called ‘Scotland’. This new idea can be seen, for example, in 1218 (or shortly after), when chroniclers in Melrose, near the border with England, referred to regions of the south—including their locality—as parts of ‘Scotland’.[6] When and why did this new unified sense of ‘Scotland’ first emerge? It was only a start: monks of Melrose only began referring to themselves in their chronicle as ‘Scots’ around 1290.[7] Scottish identity, in a form we can recognise as essentially the same as our own, can be said to have only begun to take shape about a century earlier when the king’s subjects first thought of country and kingdom as one-and-the-same. If we could explain this, we could contribute significantly to our understanding of the birth of modern Scotland.

 

The first port of call for an explanation would be to see if there was a major intensification of royal power that might explain how those, at least in the upper echelons of society, began to be more aware of the kingdom as a single entity—for example, because the king was able to offer them peace and protection in a way that was more real and routine than before, or because the king was making more regular demands on them or exercising more control over their livelihoods. There were significant, if limited, developments in the administration of justice in Scotland north of the Forth. For example, in 1184 attendance of sheriff courts was insisted on—except for the very greatest lords (earls, abbots, bishops), who were required only to attend the justiciar.[8] In 1180 it was stated that the sheriff or a deputy should attend baronial courts, presumably with a particular eye on those crimes singled out in this enactment as reserved for the king (rape, plunder, arson and murder). It was explained, however, that a lord could still hold his court if neither sheriff nor his representative was present: the measure was not evidently backed up with sufficient resources.[9] This and other legislation on crime may have been inspired by more far-reaching reforms in criminal justice in England:[10] we will see later that awareness of developments in other aspects of legal reform in England could have had important consequences in Scotland. One stark contrast with England is apparent: the king’s dependence on lordly courts for maintained peace and order.[11] There was no question of undermining baronial justice. The local power of lords underpinned the system: the king was hardly in a position to challenge this.

 

The king, in any event, lacked the political muscle to change this in the second half of the twelfth century. Mael Coluim (Malcolm) IV (1153–1165) faced serious challenges from within Scotland. His brother and successor had his authority undermined by the king of England. In the Treaty of Falaise in 1174, followed by a ceremony in York in 1175, William the Lion and all the most important people in his kingdom had to acknowledge the overlordship of Henry II of England and become his liegemen. This created a direct bond of loyalty between the king of England and William’s major subjects that trumped William’s authority over them. Their allegiance to the king of Scots was eventually restored in 1189 when the Treaty of Falaise was rescinded at Canterbury by Richard I of England.[12]

 

The Scottish kingdom as a single country: the charter evidence

England may, nonetheless, hold the key to understanding how major landowners came increasingly to think of the Scottish kingdom as a single country. The evidence is to be found in a particular clause in charters (known as the sicut clause). When land (or other property) was given (e.g., to a monastery) it was often said to be held freely and peacefully. This could be expanded to say that it would be held as freely and peacefully as any land was held in the region or the kingdom.[13] A marked increase has been spotted towards the end of the twelfth century in the use of the phrase ‘kingdom of the Scots’ or ‘kingdom of Scotland’ in this clause.[14] Because this was a statement about how land (or other property) was held, the use of this phrase suggests that law and custom in relation to landholding was assumed to be the same throughout the realm.[15] They were not simply talking about the kingdom in a general sense as the area under the king’s authority: they were thinking of it as a single unit of law and custom in a way that had not been apparent before. This can be taken a step further. By defining landholding in relation to the kingdom, they presumably thought automatically of the kingdom as a ‘land’ itself. They regarded it implicitly as a single country.

 

The database of everyone mentioned in Scottish charters in this period (www.poms.ac.uk/database) makes it very much easier to investigate this development in detail than it was before. The results are tabulated and analysed in the appendix. The most striking finding is that the use of ‘kingdom of the Scots’ or ‘kingdom of Scotland’ in the sicut clause increased markedly from about 1185. The phrase was not unknown beforehand. The earliest certain example is in a charter of Countess Ada from the 1150s. (There are a couple of other early instances in donations to Kelso Abbey, but Andrew Smith’s work on Kelso charters shows that these are unlikely to be authentic as they stand.[16]) Countess Ada was the Queen Mother: most other examples of the use of this phrase in aristocratic charters before the 1180s are by people who were particularly close to the king, such as Donnchad (Duncan) earl of Fife, the justiciar and a regular witness of royal documents, or Agnes countess of Mar, who was probably related to Countess Ada, the Queen Mother.[17] This means that the significant increase from the mid-1180s in defining landholding by referring to the ‘kingdom of Scotland’ or ‘kingdom of Scots’ in this clause also marks the point when this phrase became more common in charters of major landholders outside immediate royal circles. This was not restricted to charters of a few monasteries, and so cannot originate with the scribes who drafted them. It must have come from the lords themselves. They were not required to do this—and not all did. Is there any reason why they might have felt moved to refer to landholding in this way from about 1185?

 

All these landholders had something important in common. They belonged to the Anglo-Norman cross-border society that was remarked on in the Feature for April 2012. An example was given there of how the politics of Aberdeenshire had an impact on landholding in Warwickshire. The broader picture is of a single elite French-speaking community bound together by family ties and landholding in Scotland, England and northern France. It consisted not only of mighty nobles, but less important landholders within their orbit on whom they depended in order to sustain their influence in localities. They would, presumably, have spoken other vernaculars apart from French, such as English and Gaelic, if this helped them to operate in particular areas. But their knowledge of French and knightly culture would have marked them out, and presumably caused them to identify themselves as part of an elite society with the kings of England and France at the summit.

 

There can be little doubt that they would have been acutely aware of royal power in relation to landholding not only in Scotland, but also in England. The period 1164–1184 saw radical change in English law that altered this forever.

 

English royal justice and landholding[18]

The most distinctive feature of the legal developments introduced in England by Henry II (1154–1189) was the creation of a mechanism for making royal justice available to anyone with property.[19] If you were unlawfully dispossessed, or your claim to inherit had been improperly denied, you could now obtain a form of document (known as a writ in England) that would trigger a hearing of your case in the king’s court, bypassing any other jurisdiction (for example, your lord’s). You did not even need to go to Westminster to have your case heard: the king’s court could come to you. In this period the appearances of royal justices around the kingdom was organised into frequent circuits (called ‘eyres’). As a result of these reforms, the long established idea of the king as protector of his people soon came to mean something practical and immediate for all those with property. This applied to anyone with land that they could call their own, even if it was only a couple of acres. The law itself made no distinction between a mighty lord and a smallholder. All that was required was that you should be free—a concept that came to be defined more forcefully as a result of these legal reforms because it depended on access to the king’s courts.[20] These were not a positive development for all landholders, though, particularly the greatest lords. Accessibility of royal authority to the most minor landholders in practice diminished a lord’s freedom of action. He could still take action against his free tenants: his chances of success, however, were now reduced unless he, too, pursued the matter through a royal court.[21]

 

This represented a radical change not so much because it was based on new ideas: royal protection of landholding was not itself an innovation.[22] What was exceptional was that these new procedural mechanisms and administrative measures allowed direct access to royal authority to become routine. This in turn created a momentum towards greater standardisation, leading to sharper definitions and tighter practice. The most potent sign of the radical impact of this development is the extraordinary increase in business for royal justice that was generated by it. It soon became desirable to commit cases to writing on rolls of parchment: these are likely to have been kept from about 1176 (although they survive only for 1194, 1196, and continuously from 1198).[23]

 

By the 1180s major landholders in Scotland must have been aware of these legal developments in England. Many would have been present when these reforms were promulgated. Many others would at least have had lands, or relatives with land, in England. They would not have needed direct experience to understand how this threatened to diminish their freedom of action over smaller landholders in their estates. If they regarded recent developments in England in this way, they would have been acutely conscious that Henry II’s reforms applied only to England, and not to Scotland. We may guess that, as landholders with vital interests and connections in both kingdoms, they would have regarded it as increasingly important to rescind the humiliating terms of the Treaty of Falaise and remove any possibility that the king of England’s jurisdiction might encroach on their freedom as lords in Scotland with courts of their own. When, on Henry II’s death in 1189, the new king of England, Richard I, offered to cancel the Treaty of Falaise for the considerable sum of 10,000 marks, they were willing to agree to this and paid up promptly.[24] This was necessary because the amount was more than William the Lion, king of Scots, could afford from his own resources: it could only be raised through a levy on landholders in Scotland.

 

Scotland as a contrast to England

According to this analysis, the regular sense of the Scottish kingdom as one country—Scotland—rather than a number of countries could have been a direct consequence of English legal reforms in the decades before 1185. It was precisely because top landowners were part of a single, Anglo-Norman society across Britain and northern France that they were aware of the difference that had now emerged between Scotland and England. The idea of defining landholding with reference to the kingdom of Scotland was not itself new. Before 1185, however, it seems to have made sense mainly to those who were closest to the king. From about 1185 it appealed more generally to important landowners with their own lordly courts. This, in turn, suggests that the main spur towards beginning to regard the Scottish kingdom as a single country was not an intensification of royal power in Scotland, but in England. If so, then the most fruitful seeds of Scotland’s unity were sown not by David I or William the Lion, but by Henry II. It was, paradoxically, because the aristocracy of the Scottish kingdom was now part of the wider Anglo-Norman world that they would have been aware of how different England had become from both Scotland and Normandy as a result the legal reforms of Henry II’s reign.[25] This could have bestowed a sense of unity to the Scottish kingdom almost by default simply because it was a kingdom that was not England. This is unlikely to have happened purely by accident, though. Given that freedom from English jurisdiction would have allowed major lords to enjoy a level of local power that was threatened in England, it is conceivable that they willingly espoused a sense of Scotland as an opposite image of England—with kingdom and country as one as in England—because in Scotland this could be defined on their terms. Defining royal power in Scotland against what was experienced in England in this way, almost from the very beginning of a sense of Scotland as a single country, has clear potential to have been a fundamental dynamic leading to the ‘Breaking of Britain’—and ultimately the Wars of Independence.

 

So far we have only caught a glimpse of this through studying a particular clause in charters. This mainly gives us access only to those who had courts of their own. The study needs to be broadened. The database of what happened to individuals in the three northern counties of England recorded in the Pipe Rolls and Curia Regis Rolls, which we are working on now in the project, will enable us to explore the contrasts between the experience of royal power in Scotland and England not only at the level of great cross-border lords, but lesser landholders, too. The Pipe Rolls—the audit of debts to the Crown—will extend the sphere of interactions with royal authority under investigation beyond the royal courts. Only then will a more rounded picture of potential differences underlying the ‘breaking of Britain’ come to light.[26]

 

 

APPENDIX:

Using the database to measure the increasing use of ‘kingdom of Scots’ and ‘kingdom of Scotland’ in the sicut clause of aristocratic charters.

 

The figures below were generated by taking the following steps.

 

(i) Go to ‘Terms of Tenure’ in the Browse search.

 

(ii) Select the sicut clause and, under the options listed, click ‘Kingdom’ and then ‘Scocia’. (‘Scocia’ here covers both ‘kingdom of Scotland’ and ‘kingdom of Scots’ because ‘Scotland’ and ‘Scots’ are not always clearly distinguished from each other: when charters have regnum Scot’ this could stand for either regnum Scotie or regnum Scottorum.[27]) This generates a total of 473 charters up to 1286.

 

(iii) Along top of results, click ‘Sources’ (rather than ‘Factoids’ or ‘People and Institutions’), and click ‘date’ to organise the result chronologically.

 

(iv) Charters recording donations or the renewal of earlier donations by lay landholders are then counted manually to show:

 

(a) How many are definitely datable to either period—i.e., the date-range of the charter falls completely within either 1150×1184 or 1185×1215.

 

(b) Most charters cannot be dated so precisely, however. It is important, therefore, to know how many are possibly within each period—i.e., how many of the charters have a date-range that means that they could have been produced in either 1150×1184 or 1185×1215. If a charter’s date-range straddles the two periods, then it is counted twice because it could possibly have been produced within either period. ‘Possible’, however, is not taken a step further to include charters with an open-ended date-range, or no specific dating information at all. These are excluded. (They represent about 9% of all charters generated in (ii).)

 

It is also necessary to test the significance of 1185: what would the figures be if the periods were defined differently? This can be gauged by counting:

(c) How many of the charters could possibly be within the first half of each period, and

(d) How many could possibly be within the second half of each period.

 

Finally, a crucial issue is the general survival rate of charters. This increased during this period, so any statement about the increasing use of ‘kingdom of Scots’ and ‘kingdom of Scotland’ in the ‘sicut’ clause needs to be much more significant than the straightforward increase in the number of charters surviving from each period. The overall number of surviving charters within each period is given at the outset.

 

The results are:

 

1150×1184: 135 charters survive (of all kinds)

 

(a) Definitely 1150×1184:                     15

 

(b) Possibly 1150×1184:                       49

 

(c) Possibly 1150×1169:                        23

 

(d) Possibly 1170×1184:                       41

 

1185×1215: 271 charters (of all kinds)

 

(e) Definitely 1185×1215:                    79

 

(f) Possibly 1185×1215:                     173

 

(g) Possibly 1185×1200:                     108

 

(h) Possibly 1201×1215:                    131

 

Analysis

The first point to note is that the number of surviving charters between the two periods doubles. This means that any increase in the use of ‘kingdom of Scotland’ or ‘kingdom of Scots’ in the sicut clause must be substantially more than double in order to be significant.

 

The results can be summarised as follows:

 

(a) against (e) shows an increase of × 5

 

(b) against (f) shows an increase of about × 3.25

 

(c) against (d) shows approximate doubling; but if the charter of Countess Ada’s is the only one pre-1160, then average per year in (c) would be 2; average per year 1170×1184 is about 2.75 (counting the maximum possible number of surviving examples).

 

(d) against (g): average possible number per year 1170×1184 is about 2.75, which goes to an average possible number per year 1185×1200 of 6.75—i.e., getting on for a threefold increase.

 

Finally, the equivalent figures for (g) against (h) are 6.75 to 8.73. This could be explained by a continuing increase in numbers of surviving charters.

 

Overall the conclusion seems clear: that the mid-1180s saw a very significant increase in the use of ‘kingdom of Scots’ and ‘kingdom of Scotland’ in the sicut clause in aristocratic charters.