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The Regiam Majestatem is the earliest
surviving work giving a comprehensive digest of the Law of Scotland. The name
of the document is derived from its first two words. It consists of
four books, treating (1) civil actions and jurisdictions, (2)
judgments and executions, (3) contracts, and (4) crimes.
Dating from the early fourteen century, it is largely based on
the 1188 Tractatus de legibus et
consuetudinibus regni Angliae (English: Treatise on the laws and customs of the Kingdom
of England) of Ranulf de Glanvill, and incorporates
features of thirteenth century canon law, the Summa in Titulos
Decretalium of Goffredus of Trano, and the Scottish
Celtic Laws of the Brets and
The documentary basis of Scots law had been largely destroyed by the
confiscations of Edward I of England in the
thirteenth century and by two devastating English invasions led by Edward I and Edward
III in the thirteenth and fourteenth centuries. When the
Regiam Majestatem was discovered in the early fifteenth
century after Scotland's legal provenance had been destroyed, it
was immediately embraced as an authoritative source of law,
surviving as such into the modern era.
Sir John Skene had compiled
and edited versions of the document at his own expense, and this
was published by the Parliament of Scotland in 1609.
Skene's version is not entirely consistent with the original
document, but it held up as the standard version. Later legal
references to the document are references to the 1609
The Regiam Majestatem was written perhaps as early as
the time of Robert the Bruce (reigned 1306 –
1329), and certainly later than 1318, as a statute from that date
was included in it.
The details of how this was accomplished are unknown, as is the
identity of the author.
In the events leading up to his invasion of Scotland, Edward I of
England (reigned 1272 – 1307) forced himself upon Scotland in
the role of feudal
overlord, far beyond the guiding and consultative role that the
Scots had asked him to play. During this time he signed a writ in 1291 that required the
collection of all documents that might concern his own claims of
superiority over Scotland, or the claims of others.[note 1]
The writ was executed, and between that and the depredations during
Edward's invasion of Scotland in 1296, virtually every important
Scottish legal document was lost forever.
The Scots successfully maintained their freedom in the First War of Scottish
Independence, which ended de facto with the Battle
of Bannockburn in 1314, ending de jure in 1328 with
of Edinburgh-Northampton. Effective government required a legal
basis and its documentation, and the Scots were forced to rebuild
their legal provenance quickly.
The origin of the contents of the Regiam Majestatem is
largely from Glanvill's Tractatus. About two-thirds
of the work was adopted without change from it, parts of the
remainder are similar to it, and the rest is unrelated to it. This
last category includes most of the fourth book, which covers the
treatment of crimes. Of the
portions which do not originate with the Tractatus, their
origins can be found in canon law, in the Summa in Titulos
Decretalium of Goffredus of Trano, in the
Laws of the Brets and
Scots, and in earlier Scottish statutes.
The Tractatus was a work of originality intended to
facilitate the implementation an effective judicial system in
England, and it had proven to be a great success. The Scots were
certainly aware of this, and it was likely chosen over other codifications because it best suited
Scottish interests by providing a framework that had already proved
itself to be successful, and one that addressed issues particular
to Scottish law, but issues that mostly were common to both
Scottish and English law. Where it was close to Scottish interests
but not close enough, that is the likely origin of those portions
of the Regiam Majestatem that appear only similar to the
Tractatus. Nevertheless, the fit was not perfect, and
there are artifacts from English law that do not fit well with
- Glanvill's Tractatus – it is the book of
authority on English common law, and has been studied and
analysed in detail. There is consensus that the English law
ultimately does not rely on earlier codifications.[note 2] Scrutton noted the lack of a
heritage owed to Roman law (ie, the Corpus Juris Civilis) in the
that some terminology was borrowed solely to be fitted into the
book discussing Contracts (Tractatus, Book X), but that
the terms were applied to English concepts. Pollock and Maitland, in their
History of English Law Before the Time of Edward I,
describe Glanvill's contracts as "purely Germanic", and state that
the "law of earnest is not from Roman influence".
- Canon law
- Geoffrey's Decretal
- Laws of the Brets and Scots – Book IV of the Regiam
Majestatem, covering crimes, incorporates chapters from this
document, preserving the Celtic names for descriptions of people,
kinship groups, and fines. Terms used include the cro,
galnes, ogetharii ('ogthern'), and
kelchyn. Fines are structured according to the class of
the victim, the fines might be paid to the king or to the victim's
kindred depending on the circumstances, and payments to be made are
given in cattle or orae.
- earlier Scottish statutes
- Roman law
When the Regiam Majestatem was discovered in the
fifteenth century, it was quickly embraced as a legal authority,
the Parliament authorised commissions to examine it and repair
defects (1425 c. 54, 1487 c. 115), and it was cited in statutes of
the era. It
has remained an authoritative source of Scotland's unique law into
the modern era.
In 1607 the Parliament of Scotland passed an act for
the publication of John Skene's compilation of the Regiam
Majestatem, to be funded by the government, and Skene's
version was published in 1609. The
work has been criticised for its many inconsistencies with the
original document, for its lack of scholarly rigour, and for other
sloppiness. Nevertheless, the work was meritorious and valuable,
and it brought fresh understanding to ancient Scottish law. It is
Skene's version that became the legal standard from that time
The Regiam Majestatem derives its name from the first
two words of its first chapter, which serves as the
Præfacio (Preface). It begins:
- "Regiam Majestatem, non solum armis contra rebelles, sibi,
Regnoque insurgentes, opportet esse decoratum."
Regiam Majestatem, Books I – IV (in
I – XXXI
||Civil actions and jurisdictions — including discussion of the
brieve of right (ie, the legal writ used for settling
property disputes), the requirement of a unanimous verdict by 12
men in disputes between pursuer (ie, the plaintiff) and defender,
regulations guaranteeing sales of land and moveables, and pactions
(ie, agreements) both real and personal, profitable and
I – LXXIV
||De Judiciis — Judgments and executions — including
discussions of the role of arbiters, bondage and manumission, the
terce (ie, the widow's share of an estate), and inheritance.
I – XXXVI
||De Debitis Laicorum — Contracts — including debts,
buying, selling, and pledging.
I – XL
||De Placitis Criminalibus — Crimes — including lese
majeste (ie, killing the king), sedition, and felonies.
A list of assythments (ie, assessments made as a result of
judgments) is also given, but Skene thought that these were not
Versions of the Regiam Majestatem
||Sir John Skene's publication, in both Latin and Scots. There were folio
republications in 1613 and 1681, and a Scots language republication
in 1774. It is the subsequent legal standard, but is not everywhere
in agreement with the original document.
||David Hoüard's publication, in Latin with annotation in French,
and based on that of Skene.
||Thomas Thomson's printing in Acts of the Parliaments of
Scotland, I, 597 – 641.
||Lord Cooper's printing and translation, based on that of
Laws of the
Two of the Laws of the Burghs cite the Regiam
Majestatem as their origin. These are:
- Quibus modis de servitute ad libertatem pervenitur (The way in
which a man may become free from servitude) – by living quietly for
a year and a day in a privileged town (ie, a Royal burgh), and not be challenged by his
master nor be known as his master's servant.
- De heredibus burgensium (Anent the heirs of burgesses) – the
heir of a burgess comes of age when he can count silver, or measure
cloth, or do other of his father's business and affairs.
Scottish legal terms found in the Regiam Majestatem
- Amerciamentum – used to signify a fine for absence.
- Arreragium – used to signify arrears of rents, profits, and
- Attachiamentum – used to signify a charge or binding of a
person, to the effect he may be compelled to appear to answer in
judgement. It also signifies an attachment of goods and effects by
arrestment or otherwise.
- Breve de nova dissasina – the brieve or summons of ejection or
spulzie (ie, regarding theft or despoilation). The Breve de
recto, or Brieve of right, was anciently used before
the Justice-General, and was transferred to the Lords of Council
and Session as early as the period of the Regiam
- Clarificatio – defined as the clearance given by the verdict of
- Coroner, or Crouner – John Skene says that the word occurs in
the Regiam Majestatem, but this is considered to be an
error on his part.
- Deodand – a term in
English law referring to the forfeiture of moveable property that
has been the immediate cause of death to a person, to be given over
to pious uses (the word literally means 'dedicated or devoted to
God'). In Scotland, a jury sets the value of the moveable property,
which acts as a fine if the property owner is found liable. Skene's
Regiam Majestatem says a similar forfeiture was known to
have been in Scotland's older law.
Emptores – identical to an English statute of 1290, and the
Regiam Majestatem contains a verbatim transcript of that
English statute has its origins in the Tractatus, as well
as in subsequent documents.
It is not known whether the Regiam Majestatem was
immediately put into effect, or whether it had been intended to be
put it into effect at a later date. Whichever the case, it did not
matter because Scotland would suffer a Second War of Scottish
Independence (1332 – 1371) when it was invaded by Edward
III of England, its king David II was captured by the
English, and in the ensuing devastation the Regiam
Majestatem became lost, not being rediscovered until the next
century. When found, it was hailed as an ancient Scottish relic
that had somehow survived the confiscations of Edward I and the
depredations and devastation caused by the two invasions.
There was little documentation remaining from that tumultuous
time to offer either proof or disproof of the origins of the
Regiam Majestatem. Consequently, and not without chauvinism, some Scots
insisted on a native origin for the Regiam Majestatem,
offering it as another product of the dynamic David I
(reigned 1124 – 1153). This assertion persisted until well into the
nineteenth century, though scholarly research had rendered the
contention untenable in the eighteenth century, such as by notice
of statutes in the document that could not pre-date the thirteenth
and fourteenth century.
The writ required the collection of ".... all the charters
instruments rolls and writs whatsoever that might concern the
rights of the competitors, or his own pretended title to the
superiority of Scotland, to be carried off and placed where he
should appoint; and these to be put into the hands of five persons,
two Scots and three English; and these last to act by themselves,
if the two first happened to be hindered."
Norman law in England was a combination of Norman law in Normandy as modified to
address perceived defects in it, inventions to address any problems
unique to Norman control of England, and adaptations from the
customs of the English when it suited Norman purposes. Also, a
nascent but evolving feudalism had existed in England since the
late tenth century, prior to the Norman invasion of 1066. The
legal system was initiated by William the Conqueror (reigned
1066 – 1087) and fully in place in the time of Henry I
(reigned 1100 – 1135), during which time English law evolved along
its own path. Furthermore, the author of the Tractatus was
familiar with Civil Law and Canon
Law, had long practical experience in the administration of
justice, and was intimately aware of weaknesses in the system and
how best they might be corrected.
- ^ a
Truman (1897), "Introduction", Feudal
Relations Between the Kings of England and Scotland Under the Early
Plantagenets, Chicago: University of Chicago,
p. viii, http://books.google.com/books?id=457wzD8qMY4C&pg=PR8
Dissertation, citing Innes' Essays, p. 305 for the
Neilson 1890:104-109 In the Regiam
(1836), "Early Rules of Succession in
the Law of Scotland", in Wharton, Thomas I., The Law
Library, XII, Philadelphia: John S. Littel,
pp. 7 – 13, http://books.google.com/books?id=wycZAAAAYAAJ&pg=RA1-PA7
Reeves, John (1869),
"Legal Treatises", in
Finlason, W. F., Reeves' History of the English Law,
I (New ed.), London: Reeves & Turner,
pp. 257 – 258, http://books.google.com/books?id=DqwDAAAAQAAJ&pg=PA257
(1895), "A Sketch of the
Constitutional History of the English Nation Down to the Reign of
Edward I", in Stubbs, William, Select Charters and Other
Illustrations of English Constitutional History (Eighth ed.),
Oxford: Oxford University, 1905, pp. 13 – 19, http://books.google.com/books?id=zkgzAAAAIAAJ&pg=PA1
Scrutton, Thomas Edward (1884),
"Roman Law in Glanvil",
The Influence of the Roman Law on the Law of England,
Cambridge (published 1885), pp. 74 – 77, http://books.google.com/books?id=2q0DAAAAQAAJ&pg=PA74
Maitland, Frederic William
(1898), "Contract", The
History of English Law Before the Time of Edward I,
II (2nd ed.), Cambridge: University Press,
pp. 207 – 208, http://books.google.com/books?id=A7b7eCAzzBEC&pg=PA207
Hoüard 1776 Regiam Majestatem, Lib.
IV throughout, but notably in cap. xxiv, xxxi, xxxvi, and
Erskine, John (1754), "Of Laws in General",
Principles of the Law of Scotland (Fourteenth ed.),
Edinburgh: Bell & Bradfute (published 1870), p. 6, http://books.google.com/books?id=roADAAAAQAAJ&pg=RA1-PA6
Brown, K. M., et al.,
ed. (2007), "Act in favour of the clerk
register regarding the printing of the book called Regiam
Majestatem", The Records of the Parliaments of
Scotland to 1707, St. Andrews: University of St. Andrews, http://rps.ac.uk/search.php?action=fc&fn=jamesvi_trans&id=id7247&query=&type=trans
William Forbes, ed. (1887), "Appendix No. III",
Memorials of the Family of Skene of Skene, Aberdeen: New
Spalding Club, p. 180, http://books.google.com/books?id=XbUEAAAAIAAJ&pg=PA180
Robertson 1878:83-85 In On the Laws, Etc. of
Hoüard:38 – 269 Regiam
Hoüard:38 – 83 Regiam
Majestatem, Book I
Hoüard:84 – 178 Regiam
Majestatem, Book II
Hoüard:179 – 228 Regiam
Majestatem, Book III
Hoüard:229 – 269 Regiam
Majestatem, Book IV
"Certain Laws Concerning
Burghs from the Book of Regiam Majestatem", Ancient Laws
and Customs of the Burghs of Scotland (1124 – 1424),
Edinburgh: Scottish Burgh Records Society, 1868, p. 90, http://books.google.com/books?id=5n_RAAAAMAAJ&pg=RA1-PA90
– The text in
this reference agrees with the text in Book II of Hoüard's
publication of the Regiam Majestatem, but the cited
chapter numbers do not agree with his.
Hoüard 1776:95 in Regiam Majestatem,
Book II, Chapter XII
Hoüard 1776:140 Regiam Majestatem,
Book II, Chapter XLI, line 5
Bell 1861:50 Amerciamentum in
The Law of Scotland.
Bell 1861:70 Arreragium in The
Law of Scotland.
Bell 1861:86 Attachiamentum in
The Law of Scotland.
Hoüard 1776:267 Regiam Majestatem, Lib. IV,
Bell 1861:125 Breve de nova
dissasina in The Law of Scotland.
Bell 1861:172 Clarificatio in
The Law of Scotland.
Bell 1861:230 Coroner in The
Law of Scotland.
Bell 1861:275 Coroner in The
Law of Scotland.
Bell 1861:681 Quia Emptores in
The Law of Scotland.
Beames, John (1812),
"Book VII, Chapter I", A Translation of
Glanville, Washington, D. C.: John Byrne & Co.
(published 1900), pp. 114 – 115, http://books.google.com/books?id=cRUaAAAAYAAJ&pg=PA114
- Bell, William
(1861), Ross, George, ed., Dictionary and Digest of
the Law of Scotland (Revised and Corrected ed.),
Edinburgh: Bell & Bradfute, http://books.google.com/books?id=j4ADAAAAQAAJ&printsec=titlepage
- Cooper, C. P.
(1832), "Ancient Laws of
Scotland", An Account of the Most Important Public Records
of Great Britain, II, London: Baldwin and
Cradock, pp. 206 – 210, http://books.google.com/books?id=wQMCAAAAQAAJ&pg=PA206
William (1852), "The Jury System in
Scotland", History of Trial by Jury, London: John W.
Parker and Son, pp. 299 – 339, http://books.google.com/books?id=A6oDAAAAQAAJ&pg=PA299
David, ed. (1776), "Regiam Majestatem",
Traités sur les Coutumes Anglo-Normandes,
II, Rouen, pp. 38 – 269, http://books.google.com/books?id=rUWvAAAAMAAJ&pg=PA38
- Kidd, Colin (1993),
Subverting Scotland's Past: Scottish Whig Historians and the
Creation of an Anglo-British Identity 1689 – c. 1830,
Cambridge: Cambridge University Press (published 2003), ISBN
- Neilson, George
(1890), "Regiam Majestatem; In the
Regiam; Crime in the Regiam", Trial by Combat,
Glasgow: William Hodge & Co, pp. 99 – 113, http://books.google.com/books?id=GJSWG2WSMGMC&pg=PA99
Alexander (1878), A Course of Lectures on
the Government, Constitution, and Laws of Scotland,
London: Stevens and Haynes, http://books.google.com/books?id=04QDAAAAQAAJ&printsec=titlepage