Legal History of Scotland - Stewart Dynasty

Stewart Dynasty

The Stewart dynasty, founded by King Robert II in 1371, was defined by the growing authority and power of the Scottish Kings and development of existing legal institutions. In 1469, the Parliament of Scotland affirmed the ultimate authority of King James III and rejected the authority of imperial notaries in Scottish civil matters. The recognition of the sovereign authority of the Scottish Kings was connected to the influence of the ius commune in Scots law. For example, the Pragmatic Sanction of Bourges of 1438 was an attempt to limit papal authority in France and recognise the sovereign authority of King Charles VII of France. Various customary laws, such as the Law of Clan MacDuff, came under attack from the Stewart Dynasty which consequently extended the reach of Scots common law.

From the reign of King James I to King James V the beginnings of a legal profession began to develop and the administration of criminal and civil justice was centralised. The Parliament of Scotland was normally called on an annual basis during this period, with the notable exception of King James IV, and its membership was further defined. The number of burghs also continued to expand, including the introduction of burghs of barony, and their authority remained largely undisturbed. The evolution of the modern Court of Session also traces its history to the 15th and early 16th century with the establishment of a specialised group of councillors to the King evolving from the King's Council who dealt solely with the administration of justice. In 1528, it was established that the Lords of Council not appointed to this body were to be excluded from its audiences and it was also this body that four years later in 1532 became the College of Justice.

The growing activity of the parliament and the centralisation of administration in Scotland called for the better dissemination of Acts of the parliament to the courts and other enforcers of the law. There was still a great reliance on the old laws, codified in the Regiam Majestatem and Quoniam Attachiamenta among others, which persisted. Throughout the late 15th century various unsuccessful attempts were made to form commissions of experts to codify, update or define Scots law. The legal uncertainty which this situation created prompted increased reliance on the ius commune found in Canon law and there are a number of examples of statutes from this period which clearly drew from Roman law.

Men educated in the law also became increasingly important alongside the early development of the College of Justice and ecclesiastical courts, filling the need for experts in advocacy, pleading and court procedure. The study of law was popular in Scotland and many students travelled to Continental Europe to study canon law and civil law. In 1532, when the College of Justice established rules of practice and a closed list of ten lawyers permitted to appear before them, six had studied law abroad. This also expanded the influence of Roman law and the ius commune on the Scottish common law. The general practice during this period, as evidenced from records of cases, seems to have been to defer to specific Scottish laws on a matter when available and to fill in any gaps with provisions from the ius commune embodied in civil and canon law, which had the advantage of being written.

Read more about this topic:  Legal History Of Scotland

Famous quotes containing the word stewart:

    There are few men more superstitious than soldiers. There are, after all, the men who live closest to death.
    —Mary Stewart (b. 1916)