Pleadable brieves and jurisdiction in heritage in later medieval Scotland

Abstract

Despite the scarcity of source material and the difficulty of interpreting such evidence as exists, it is clear that the development of royal justice led to the emergence of a unified common law in medieval Scotland. This was achieved although no structure of central courts like that of England emerged until the fifteenth century. Instead royal justice was administered by courts based in the localities such as those of the sheriff and the burghs, or by courts such as those of the justiciar which went on circuit through the kingdom. Within this structure there operated from the thirteenth century a rule that actions concerning the recovery of land from intruders had to be raised by pleadable brieves. There were various types of such writs; the relevant ones were the brieves of dissasine and mortancestor, pleadable in the justiciar's court, and the brieve of right, pleadable in the sheriff and burgh courts. It appears that round these brieves there developed a considerable body of law, and at least some of them remained in use until the sixteenth century. It is against this background that the exclusion of the developing 'central' courts of the fifteenth century from cases concerning fee and heritage, or landownership, must be considered. These courts developed as a method of handling the judicial functions of parliament and the king's council. To begin with these functions were confined to the supervision and correction of the ordinary courts of the common law, but by the mid-fifteenth century the jurisdiction of council in particular as an alternative forum was established in most areas other than that of fee and heritage. This limitation, it is argued, continued because the common.law still required that pleadable brieves (which were not addressed to either parliament or council) be used to commence actions of that kind. Only when the pleadable brieves had fallen into desuetude in the first half of the sixteenth century did the council come to have jurisdiction in fee and heritage.

Despite the scarcity of source material and the difficulty of interpreting such evidence as exists, it is clear that the development of royal justice led to the emergence of a unified common law in medieval Scotland. This was achieved although no structure of central courts like that of England emerged until the fifteenth century. Instead royal justice was administered by courts based in the localities such as those of the sheriff and the burghs, or by courts such as those of the justiciar which went on circuit through the kingdom. Within this structure there operated from the thirteenth century a rule that actions conqerning the recovery of land from intruders had to be raised by pleadable brieves. There were various types of such writs; the relevant ones were the brieves of dissasine and mortancestor, pleadable in the justiciar's court, and the brieve of right, pleadable in the sheriff and burgh courts. It appears that round these brieves there developed a considerable body of law, and at least some of them remained in use until the sixteenth century. It is against this background that the exclusion of the developing 'central' courts of the fifteenth century from cases concerning fee and heritage, or landownership, must be considered. These courts developed as a method of handling the judicial functions of parliament and the king's council. To begin with these functions were confined to the supervision and correction of the ordinary courts of the common law, but by the mid-fifteenth century the jurisdiction of council in particular as an alternative forum was established in most areas other than that of fee and heritage. This limitation, it is argued, continued because the common.law still required that pleadable brieves (which were not addressed to either parliament or council) be used to commence actions of that kind. Only when the pleadable brieves had fallen into desuetude in the first half of the sixteenth century did the council come to have jurisdiction in fee and heritage.