A: 1266 AND ALL THAT?

1266 is not as famous a year as 1066 in the history of the British Isles. Nonetheless, it is one useful point of departure for any attempt to compare the legal and political histories of Scotland and Norway. In that year, a long-running conflict between Scotland and Norway came to an end. This culminated in the Treaty of Perth, which was agreed between the representatives of the respective kings of the two countries – Magnus VI of Norway (r. 1263–1280) and Alexander III of Scotland (r. 1249–1286). Both kings shared certain assumptions about what it meant to exercise kingship. Both wanted to articulate the territorial boundaries of their realms – something that the Treaty of Perth helped to achieve. Within their territorial boundaries, they sought to articulate their kingship in similar ways. For example, they both reformed the coinage, in Alexander III's case by establishing a remarkable number of mints across the kingdom during the 1250s, and in Magnus VI's case during the two succeeding decades. In addition, they both cultivated the idea that their realms possessed unitary laws. In the Treaty of Perth, it was provided that the people living in islands ceded by Norway to Scotland would thereafter be governed by the “laws and customs of the kingdom of Scotland and be dealt with and judged according to them from now into the future”. This indicates that Alexander III and his advisers could at least appeal to a unitary law of the realm as an ideal. In Norway, Magnus VI's political efforts after the Treaty of Perth were directed towards unifying the law of the realm, including the law in the Northern Isles and the Faroes, Iceland and Greenland. This reinforced the older idea that the king might issue law for the whole of the realm, and simultaneously created a standard of unified law for the whole kingdom.

Considering these points about Alexander III and Magnus VI together is a helpful way to introduce the present volume, which is concerned with comparative legal history, and specifically comparing the legal histories of Norway and Scotland. The stories of their reigns illustrate that some of the elements essential for any effective comparison are present. Ostensibly, there are similarities in the historical developments of both kingdoms as their rulers sought to forge political and legal identities within their territorial realms.

A: INTRODUCTION

In 1317, a court of the burgh of Aberdeen had regard to what it called the leges burgorum Scocie – the laws of the burghs of Scotland – in determining the outcome of a particular legal process. The leges were used in part to identify the procedures that had to be followed when transferring claims to lands within the burgh from one person to another. Yet what did the court mean when it referred to the leges burgorum Scocie? In essence, that is the central question that will be considered throughout this chapter.

Those familiar with the history of the laws of the medieval Scottish kingdom might quite reasonably assume that when the court considered the leges burgorum Scocie, it was in fact referring to a text that survives in several manuscript witnesses dateable to the late-thirteenth and fourteenth centuries. The earliest manuscript witness bar one to the surviving text – the Ayr MS, dateable to 1323–1346 – refers to it as the “captiula legis burgorum Scocie” (i.e. the chapters of the law of the burghs of Scotland), whilst what may be the next earliest witness – the Bute MS, dateable to the final years of the fourteenth century – labels a Scots translation of it the “leges burgorum Scocie facte apud nouvm castrum super Tynam per Dauid regem Scotorum illustrisimum” (i.e. the laws of the burghs of Scotland made at Newcastle upon Tyne by David, most illustrious king of the Scots). This text may itself have owed something – or nothing, or a great deal, it is impossible to know for certain – to lost texts of burgh laws once contained in two rolls in the Scottish royal treasury in Edinburgh Castle in 1292. The rolls were labelled “de legibus assisis regni Scocie et de legibus et consuetudinibus Burgorum Scocie et de quibusdam statutis editis per reges Scocie” (i.e. concerning the laws and assizes of the kingdom of Scotland and concerning the laws and customs of the burghs of Scotland and concerning certain statutes brought forth by the kings of Scotland). Of course, anyone assuming that the court of the burgh of Aberdeen must have had the text attested in the Ayr MS and the Bute MS in mind when it referred to the leges burgorum Scocie might pause to reflect on the fact that the earliest witness to that text is labelled rather differently.