Legal Aspects of Scottish Charter Diplomatic in the Twelfth Century: a Comparative Approach

Summary

Just over a century ago, F. W. Maitland was in correspondence with George Neilson, and at various points expressed his growing interest in the medieval development of Scots Law. He stated that ‘I have long had the dream that Scotland is the link between England and Normandy’, and ‘If I had another life I would spend much of it among your Scotch documents, and this for the sake of England.’ A comparative study of English and Scottish legal development in the middle ages remains highly desirable, and not merely for the sake of England. The present paper is very much a preliminary study of the Scottish material, using English, and occasionally other, charters to highlight significant characteristics. I concentrate on forms of land-holding which were to be central to Scots common law, not providing a full survey of the various forms of land tenure which existed in twelfth-century Scotland.

There are limited precedents for such a study. Hector MacQueen’s essential book on Common Law and Feudal Society in Medieval Scotland concentrates on courts and on legal procedures rather than on the perceptions of land-holding as revealed by charters; his English equivalents are Milsom and van Caenegem rather than Holt. The closest parallel to my approach is Keith Stringer’s article on ‘The charters of David, earl of Huntingdon and lord of Garioch: a study of Anglo-Scottish diplomatic’. The most obvious differences are that my corpus of charters is larger, my range of interest narrower.

I have examined over a thousand twelfth-century charters, including all the royal charters of the period. A few, particularly of the early charters, are modelled on Anglo-Norman or Norman diploma form. The vast majority are in letter form, and may be referred to as writ charters. These become increasingly explicit about the terms of grants. To take an unusually marked example, compare David I’s grant of Annandale to Robert Bruce in 1124 andWilliam the Lion’s confirmation of the same in 1165x73: the latter alone mentions the grantor and grantee’s heirs, uses the phrase ‘feu and heritage’, specifies services, excepts royal rights from the grant. Yet it remains uncertain how far the actual grants differed, how far the document was simply providing a more specific record. Furthermore, gifts could be made without a written record.