Court of the commissaries of Edinburgh: consistorial law and litigation, 1559 – 1576
View/ Open
word thesis.zip (2.932Mb)
Date
26/11/2010Author
Green, Thomas Matthew
Metadata
Abstract
This thesis examines the appointment of the Commissaries of Edinburgh, the
court over which they presided, and their consistorial jurisdiction during the era of
the Scottish Reformation. It is argued that the Commissaries of Edinburgh were
appointed by Mary, Queen of Scots, in February 1563/4 as a temporary measure
following the suppression of the courts of the Catholic Church in Scotland during the
Wars of the Congregation. The Commissaries’ jurisdiction was substantially that of
the pre-Reformation Officials centralized into a national jurisdiction administered
from Edinburgh. The Commissaries of Edinburgh’s jurisdictional relations with the
inferior Commissaries, the Lords of Council and Session, the suppressed courts of
the Catholic Church and the Lords Interpreters of the Law of Oblivion are examined,
whilst their relations with the tribunals of the Protestant Kirk are given particular
attention. The thesis argues that despite the complex constitutional, legal and
religious legacy of the spiritual jurisdiction in Scotland, the Commissaries and Kirk
achieved a high degree of jurisdictional harmony, despite occasional conflicts.
The Commissaries continued to administer the Canon law of the medieval
Church in consistorial matters, with the prominent exception of the innovation
introduced into Scotland by the Protestant Kirk from 1559 concerning divorce and
remarriage on the grounds of adultery. Through an analysis of sentences and decreets
pronounced by pre-Reformation Officials, the Commissaries of Edinburgh, and the
tribunals of the Protestant Kirk, it is argued that this reform was essentially a reform
of divorce a mensa et thoro using concepts and formulas borrowed from pre-
Reformation sentences of annulment. The result was a type of divorce unique to
Scotland, where the innocent party was immediately freed to remarry, whilst the
guilty party remained bound to the failed marriage until freed to remarry by the death
of their innocent spouse.
An analysis of consistorial litigation before the Commissaries of Edinburgh is
used to explain and illustrate the Romano-canonical procedure used in their court and
the documentation generated during litigation. Litigants’ gender, domicile and social
status are also analysed, together with their use of procurators and the expenses
incurred during litigation.