Laws and Languages: Some historical Notes from scotland Hector L. MacQueen Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenwise, except for reasonable quoting clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use i would like to begin by thanking the lus commune research School for a generous invitation to my Scottish colleagues and me to attend this meeting in Utrecht. The opportunity to join you on this occasion is an extremely welcome one, and I hope that it may be a basis upon which future co-operation and collaboration between us will grow. So far as the Scots are concerned, this is a further renewal of the links that have long bound our country to the low countries in matters of law. It is well known, I think, that these links were probably at their strongest in the seventeenth and early eighteenth centuries, when generations of Scottish students made their way to the law schools of Leiden and Utrecht, leading to a major Roman-Dutch influence on the development of Scots law in that period 2 But such links do in fact have a longer history still; when the University of louvain was founded in 1425, Scots were amongst its earliest students and their ranks include a number of figures which were to play a major role in Scottish law and government in the fifteenth century. 3 Going still further back into the Middle Ages, we can find extensive settlement from Flanders occurring in twelfth-and thirteenth-century Scotland much of it mercantile in nature and so extremely important in east-coast Scottish towns such Berwick, Dundee and Aberdeen, but also including a significant feudal or military d imension in such as Clydesdale in the south and moray and Garioch in the north-east. 4 This explains to this day 'Fleming remains a common Scottish surname, although it does not explain a fourteenth-century charter of Thomas earl of Mar in favour of his faithful and beloved clerk John November 2001.Parts of it are extracted from a previously published paper, Li. oaper delivered at Utrecht on 29 ustic Communities in Medieval Scots Law, in Communities and Courts in Britain 1150-1900,ed C w. Brooks and M. Lobban (London and rio Grande, 1997). I am grateful for the help provided in preparing this text by my colleagues George Gretton and Niamh nic Shuibhne, and by my father, John Mac Queen on Scot The most recent discussion is J.W. Caims, "Importing our Lawyers from Holland:Netherlands Influences Law and Lawyers in the Eighteenth Century,, in Scotland and the Low Countries 1124-1994, ed GG Simpson(East Linton, 1996) See J H. Baxter, Scottish Students at Louvain University 1425-1484, Scottish Historical Review xXv ( 1928)327;R. Lyall, "Scottish Students and Masters at the Universities of Cologne and Louvain in the Fifteenth Century, Innes Review xxxvi(1985)55 See the contributions of L. Toorians( Twelfth-century Flemish Settlements in Scotland )and A. Steven (The Flemish Dimension of the Auld Alliance') to Simpson(ed ) Scotland and the Low Countries 1124-1994 Garioch, which comes from the gaelic gairbheach, rough, rocky place, is today pronounced geery, but possibly not so in medieval times
Laws and Languages: Some Historical Notes from Scotland Hector L. MacQueen1 Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. I would like to begin by thanking the Ius Commune Research School for a generous invitation to my Scottish colleagues and me to attend this meeting in Utrecht. The opportunity to join you on this occasion is an extremely welcome one, and I hope that it may be a basis upon which future co-operation and collaboration between us will grow. So far as the Scots are concerned, this is a further renewal of the links that have long bound our country to the Low Countries in matters of law. It is well known, I think, that these links were probably at their strongest in the seventeenth and early eighteenth centuries, when generations of Scottish students made their way to the law schools of Leiden and Utrecht, leading to a major Roman-Dutch influence on the development of Scots law in that period.2 But such links do in fact have a longer history still; when the University of Louvain was founded in 1425, Scots were amongst its earliest students and their ranks include a number of figures which were to play a major role in Scottish law and government in the fifteenth century.3 Going still further back into the Middle Ages, we can find extensive settlement from Flanders occurring in twelfth- and thirteenth-century Scotland: much of it mercantile in nature and so extremely important in east-coast Scottish towns such as Berwick, Dundee and Aberdeen, but also including a significant feudal or military dimension in areas such as Clydesdale in the south and Moray and Garioch in the north-east.4 This explains why to this day ‘Fleming’ remains a common Scottish surname, although it does not explain a fourteenth-century charter of Thomas earl of Mar in favour of his faithful and beloved clerk John 1 Professor of Private Law, University of Edinburgh. This is the text of a paper delivered at Utrecht on 29 November 2001. Parts of it are extracted from a previously published paper, ‘Linguistic Communities in Medieval Scots Law’, in Communities and Courts in Britain 1150-1900, ed. C.W. Brooks and M. Lobban (London and Rio Grande, 1997). I am grateful for the help provided in preparing this text by my colleagues George Gretton and Niamh nic Shuibhne, and by my father, John MacQueen. 2 The most recent discussion is J.W. Cairns, ‘Importing our Lawyers from Holland: Netherlands Influences on Scots Law and Lawyers in the Eighteenth Century’, in Scotland and the Low Countries 1124-1994, ed. G.G. Simpson (East Linton, 1996). 3 See J.H. Baxter, ‘Scottish Students at Louvain University 1425-1484’, Scottish Historical Review xxv (1928) 327; R.J. Lyall, ‘Scottish Students and Masters at the Universities of Cologne and Louvain in the Fifteenth Century’, Innes Review xxxvi (1985) 55. 4 See the contributions of L. Toorians (‘Twelfth-century Flemish Settlements in Scotland’) and A. Stevenson (‘The Flemish Dimension of the Auld Alliance’) to Simpson (ed.), Scotland and the Low Countries 1124-1994. Garioch, which comes from the Gaelic gairbheach, ‘rough, rocky place’, is today pronounced ‘geery’, but possibly not so in medieval times
of Mar, canon of Aberdeen, giving him lands in Garioch with all its rightful customs and just pertinents etc, together with lege Fleminga which is called"Fleming lauch"?. "5 This suggests that as late as the mid -fourteenth century there still survived in north-east Scotland a community with sufficiently distinctive local traits or customs to be identified as Flemish. At present, however, there seems no way to tell what these traits or customs may have been, or what they may have contributed to the development of Scots law. However, some traces of low Country links may have been left in the Scots language, words such as golf? scone croon(sing softly ) dowp'(buttocks), 'pinkie(little finger), redd'(tidy up), mutch mans cap),"loun'(rogue, lad ) callant(lad) and"bucht(sheep-pen) apparently havin borrowed from Dutch at different times before 1600 6 It was thought about these med ieval matters and the connections between the low Countries and Scotland in the development of the ius commune, old and new, that first provided me with the theme I wish to develop a little today. The thoughts were further reinforced a few weeks ago in the appropriate setting of Maastricht when I was a member of a panel of about ten persons, six of whom were Germans, three Dutch and one(me)a Scot; yet our language for the purposes of the panel was English, an issue about which I was reproached -quite rightly -later in the conference when discussing the meaning of the word principles. That in turn brought to mind a debate that has occasionally surfaced in the proceedings of the Commission on European Contract Law, where the language is generally English but French is also officially allowed How far is a common language a prerequisite of a common law? If so, how far does the choice of language then dictate the substantive outcome of the rules to be the common law? Scotland may not appear to be the most obvious place in which to start such a discussion to which they give rise, might seem much more likely to prove fertile territory for exploration s the rich linguistic complexities of the Low Countries, and the intense political and legal debate Yet Scotland is not so monoglot as might be thought from a distance. Certainly English is the dominant language of public and private discourse, but the Scots vernacular, springing ultimately from the old or Middle English of the Anglo-Saxons who were penetrating south-east Scotland from the seventh century on, has a good claim to be something more than a variant or dialect of standard modern English, in terms of both vocabulary and syntax, even before one begins to take its regional differences into account. Then there is gaelic, the language of the Highlands and Islands, now mostly confined to the Western isles as a first tongue but also enjoying something of a revival in cities such as Edinburgh and Glasgow(there is a Gaelic-speaking playgroup near where I live). Finally, there are the diverse languages of the immigrant communities, in particular Urdu. Sometimes the languages, or their supporters, come into political conflict reminiscent of the late medieval ' Flyting of Dunbar and Kennedie'(a lively exchange of vol 1, app. 1, no. 128; see also ibid. app 2, no. 1297. The lands granted were called d as modern Courtestown, near Leslie, Aberdeenshire, in K.J. Stringer, Earl David oj Huntingdon /l A Studyin Anglo-Scottish History (Edinburgh, 1985),p. 84) 6 See D. Murison, The Dutch Element in the Vocabulary of Scots', in Edinburgh Studies in English and Scots,ed. A.J. Aitken et al.(London, 1971), pp. 159-76 Note that in the modem New Testament in Scots by W.L. Lorimer(Edinburgh, 1985 )the Devil alone speaks in standard English
of Mar, canon of Aberdeen, giving him lands in Garioch ‘with all its rightful customs and just pertinents etc, together with lege Fleminga which is called “Fleming lauch”.’5 This suggests that as late as the mid-fourteenth century there still survived in north-east Scotland a community with sufficiently distinctive local traits or customs to be identified as Flemish. At present, however, there seems no way to tell what these traits or customs may have been, or what they may have contributed to the development of Scots law. However, some traces of Low Country links may have been left in the Scots language, words such as ‘golf’, ‘scone’, ‘croon’ (sing softly), ‘dowp’ (buttocks), ‘pinkie’ (little finger), ‘redd’ (tidy up), ‘mutch’ (woman’s cap), ‘loun’ (rogue, lad), ‘callant’ (lad) and ‘bucht’ (sheep-pen) apparently having been borrowed from Dutch at different times before 1600.6 It was thought about these medieval matters and the connections between the Low Countries and Scotland in the development of the ius commune, old and new, that first provided me with the theme I wish to develop a little today. The thoughts were further reinforced a few weeks ago in the appropriate setting of Maastricht when I was a member of a panel of about ten persons, six of whom were Germans, three Dutch and one (me) a Scot; yet our language for the purposes of the panel was English, an issue about which I was reproached - quite rightly - later in the conference when discussing the meaning of the word ‘principles’. That in turn brought to mind a debate that has occasionally surfaced in the proceedings of the Commission on European Contract Law, where the language is generally English but French is also officially allowed. How far is a common language a prerequisite of a common law? If so, how far does the choice of language then dictate the substantive outcome of the rules to be the common law? Scotland may not appear to be the most obvious place in which to start such a discussion; the rich linguistic complexities of the Low Countries, and the intense political and legal debates to which they give rise, might seem much more likely to prove fertile territory for exploration. Yet Scotland is not so monoglot as might be thought from a distance. Certainly English is the dominant language of public and private discourse, but the Scots vernacular, springing ultimately from the Old or Middle English of the Anglo-Saxons who were penetrating south-east Scotland from the seventh century on, has a good claim to be something more than a variant or dialect of standard modern English, in terms of both vocabulary and syntax, even before one begins to take its regional differences into account.7 Then there is Gaelic, the language of the Highlands and Islands, now mostly confined to the Western Isles as a first tongue but also enjoying something of a revival in cities such as Edinburgh and Glasgow (there is a Gaelic-speaking playgroup near where I live). Finally, there are the diverse languages of the immigrant communities, in particular Urdu. Sometimes the languages, or their supporters, come into political conflict reminiscent of the late medieval ‘Flyting of Dunbar and Kennedie’ (a lively exchange of 5 Reg. Mag. Sig., vol. 1, app. 1, no. 128; see also ibid., app. 2, no. 1297. The lands granted were called ‘Cruceristoun’ (identified as modern Courtestown, near Leslie, Aberdeenshire, in K.J. Stringer, Earl David of Huntingdon 1152-1219: A Study in Anglo-Scottish History (Edinburgh, 1985), p. 84). 6 See D. Murison, ‘The Dutch Element in the Vocabulary of Scots’, in Edinburgh Studies in English and Scots, ed. A.J. Aitken et al. (London, 1971), pp. 159-76. 7 Note that in the modern New Testament in Scots by W.L. Lorimer (Edinburgh, 1985) the Devil alone speaks in standard English
linguistic abuse across the Scots/Gaelic divide) &For example, Scottish Nationalist Party proposals for a Gaelic Language Bill, imposing upon public bodies in Scotland a duty to prepare publish and implement a Gaelic Language Plan, were followed recently by complaints from a Scottish Parliament cross-party group on the Scots language, that there are people, including MSPS, who speak very disparagingly about both Scots and gaelic, but Scots in particul Gaelic(but not Scots as distinct from standard English) is one of the official languages of the Scottish Parliament, and a debate on a Programme of Action for Scots and Gaelic in the European Year of Languages was conducted with some contributions(includ ing the Ministerial response)in the latter tongue on 7 September 2000. 12 In December 1993 and again in April 1994 Scottish judges made headlines and generated newspaper correspondence column controversy by threatening to hold accused persons guilty of ontempt of court for using the word aye rather than ' when seeking to answer a question the affirmative. In particular Sheriff Irvine Smith, who has a well-earned reputation as a legal historian and also as a superb speaker at Burns suppers and other post-prandial occasions, is in Scotland is to be the Queen's English. 4 This is borne out by other recent case law: in 1982a c reported to have advised one hapless individual that the word ay in Scots means always'rathe than yes,. 3 Rightly or wrongly, it appears that in general the language of Her Majesty's cour and 1985, for example, accused persons were denied the right to be tried in Gaelic with an interpreter, when each was also able to speak in English. 5 We may note that, exceptionally, the See The of william Dunbar, ed. P. Bawcutt, 2 vols. (GI Dunbar calls the Gaelic-speaking Kennedy an lerche bry bour baird(ie a Gaelic-speaking vaga bond minstrel and adds Thy trechour tung has tane an heland strynd-Ane lawland ers wald mak a better nois'(ie. your treacherous tongue has a Highland character, a lowland arse would make a betternoise) For Kennedy Gaelic is all trew Scottis mennis lede [speech]. the gud langage of this land, while treasoun broght Inglise rumplis [tails] into Scotland. He notes that Scotland fought England because Scottis lordis could nocht obey Inglis lawis SeetheScottishParliamentwebsite:<http:wwwscottis See The Scotsman, 9 Jan 2002, forthe complaints Standing Orders of the Scottish Parliament, Rule 7. 1(accessible by way of the Scottish Parliament website) See Scottish Parliament Official Report, vol. 8 no. 2, col. 165 ff.(accessible at the Scottish Parliament websiteshttp:/wwwscottishparliamentuklofficialrenort/session-0dlor080202htm#-co165> The Scotsman, 30 April 1994; The Herald, 30 April 1994. The earlier controversy arose from comments by Sheriff James nolan: The Scotsman. 1 1 Dec 1993 Note, however, that Austra lian researchers have argued that the Queens pronunciation of English has lapsed somewhat in the course of her long reign, with her vowel sounds becom ing less upper-class' and more akin to the standard accent of southen England; J. Harrington, S. Palethorpe and C I. Watson, " Does the Queen Speak the Queens English?, Nature, 408(2000)927 Taylor v Haughey 1982 SCCR 360, commented on by A.C. Evans, 'Use of Gaelic in Court Proceedings 1982 Scots Law Times (News)286. See also Aitchison v Wringe 1985 SCCR 134. It is also doubtful whetherthis approach will survive the UKs 200 1 accession to the European Charter for Regional or Minority Languages discussed below note 14 and text accompany ingnote 63 In present practice, if an accused or witness has no English (a not uncommon occurrenc ctice), an interpreter will be provided by the Crown, or the appropriate party This is not always free from difficulty: see Mikhailitchenko v Normand 1993 SLT 1138, and A -s. Vassenaix, Court Interpreters in Scotland,, 1996 Scots Law Times News)197. The expense may be bome by legal aid if the Scottish
linguistic abuse across the Scots/Gaelic divide).8 For example, Scottish Nationalist Party proposals for a Gaelic Language Bill, imposing upon public bodies in Scotland a duty to prepare, publish and implement a Gaelic Language Plan,9 were followed recently by complaints from a Scottish Parliament cross-party group on the Scots language, that ‘there are people, including MSPs, who speak very disparagingly about both Scots and Gaelic, but Scots in particular.’10 Gaelic (but not Scots as distinct from standard English) is one of the official languages of the Scottish Parliament,11 and a debate on a ‘Programme of Action for Scots and Gaelic in the European Year of Languages’ was conducted with some contributions (including the Ministerial response) in the latter tongue on 7 September 2000.12 In December 1993 and again in April 1994 Scottish judges made headlines and generated newspaper correspondence column controversy by threatening to hold accused persons guilty of contempt of court for using the word ‘aye’ rather than ‘yes’ when seeking to answer a question in the affirmative. In particular Sheriff Irvine Smith, who has a well-earned reputation as a legal historian and also as a superb speaker at Burns suppers and other post-prandial occasions, is reported to have advised one hapless individual that the word ‘ay’ in Scots means ‘always’ rather than ‘yes’.13 Rightly or wrongly, it appears that in general the language of Her Majesty’s courts in Scotland is to be the Queen’s English.14 This is borne out by other recent case law: in 1982 and 1985, for example, accused persons were denied the right to be tried in Gaelic with an interpreter, when each was also able to speak in English.15 We may note that, exceptionally, the 8 See The Poems of William Dunbar, ed. P. Bawcutt, 2 vols. (Glasgow, 1998), no. 65. The Scots-speaking Dunbar calls the Gaelic-speaking Kennedy an ‘Iersche brybour baird’ (i.e. a Gaelic-speaking vagabond minstrel) and adds ‘Thy trechour tung has tane an heland strynd - Ane lawland ers wald mak a better nois’ (i.e. your treacherous tongue has a Highland character; a lowland arse would make a better noise). For Kennedy Gaelic is ‘all trew Scottis mennis lede [speech]. the gud langage of this land’, while ‘treasoun broght Inglise rumplis [tails] in’ to Scotland. He notes that Scotland fought England because ‘Scottis lordis could nocht obey Inglis lawis.’ 9 See the Scottish Parliament website: <http://www.scottish.parliament.uk/parl_bus/membill.htm>. 10 See The Scotsman, 9 Jan. 2002, for the complaints. 11 Standing Orders of the Scottish Parliament, Rule 7.1 (accessible by wa y of the Scottish Parliament website). 12 See Scottish Parliament Official Report, vol. 8 no. 2, col. 165 ff. (accessible at the Scottish Parliament website, <http://www.scottish.parliament.uk/official_report/session-00/or080202.htm#-Col165>. 13 The Scotsman, 30 April 1994; The Herald, 30 April 1994. The earlier controversy arose from comments by Sheriff James Nolan: The Scotsman, 11 Dec. 1993. 14 Note, however, tha t Australian researchers have argued that the Queen’s pronunciation of English has lapsed somewhat in the course of her long reign, with her vowel sounds becoming less ‘upper-class’ and more akin to the standard accent of southern England; J. Harrington, S. Palethorpe and C.I. Watson, ‘Does the Queen Speak the Queen’s English?’, Nature, 408 (2000) 927. 15 Taylor v Haughey 1982 SCCR 360, commented on by A.C. Evans, ‘Use of Gaelic in Court Proceedings’, 1982 Scots Law Times (News) 286. See also Aitchison v Wringe 1985 SCCR 134. It is also doubtful whether this approach will survive the UK’s 2001 accession to the European Charter for Regional or Minority Languages, discussed below note 14 and text accompanying note 63. In present practice, if an accused or witne ss has no English (a not uncommon occurrence in practice), an interpreter will be provided by the Crown, or the appropriate party. This is not always free from difficulty: see Mikhailitchenko v Normand 1993 SLT 1138, and A.-S. Vassenaix, ‘Court Interpreters in Scotland’, 1996 Scots Law Times (News) 197. The expense may be borne by legal aid if the Scottish
Scottish Land Court must by statute include at least one Gaelic speaker amongst its members n July 2001 the Sheriff Principal of Grampian, Highland and Islands, inspired by the recent UK ratification of the European Charter for Regional or Minority Languages, laid down that the sheriff courts in Stornoway and Lochmaddy in the Western Isles, and Portree in Skye, would allow party litigants to address the court, or witnesses to give evidence, in Gaelic in civil(but not criminal) proceedings, provided that notice of two weeks was given(to allow for the provision of an interpreter). Sheriffs might, however, veto the right to speak in Gaelic if they considered that otherwise the proper administration of justice would be hampered. 7 Of course there may always be a dash of lawyers' Latin(or code mixing, as linguistic discourse would have it )to bring nguistic variety in court proceedings and in legal writing and teaching, 8 although in June 2001 the appeal Court of the High Court of Justiciary had to consider a claim that use of the maxim omnia rite et solemniter acta praesumuntur in proceedings arising from the eleven-times repeated failure of an individual known as Robbie the Pict to pay the toll exigible to cross the Skye Bridge infringed Robbie's right to a fair trial under Article 6 of the European Convention on Human Rights. 9 The court rejected the argument, presented by robbie in person, that he was entitled to have the proceedings conducted in a language that he could understand, because ' it was clear from the appellant's presentation of his argument that he did fully understand the maxim ?20 We therefore seem rather far in modern practice from the linguistic diversity(or reverting to the terminology of linguistics, language contact)which, as I shall now argue, characterised the practice of law as it became the common law -or ius commune-of the medieval kingdom of the Scots. The development of Scottish common law began in the twelfth entury, and from the start its language of record was Latin. The law centred on land, and the charters and other documents which recorded grants and transfers of land were generally in Latin although over time documents in Scots became more common. 21 Only in 1847 did statute provide that henceforth Crown writs would be in English rather than Latin. 22 The " brieves'or Legal Aid Board can be persuaded that it is justified. See forexample Montes v HMA 1990 SCCR 645 Scottish Land Court Act 1993, s 1, replacing the Small Landholders( Scotland) Act 1911, s. 3, as amended by Agriculture(Scotland) Act 1948, s. 70(1) 148), enacted 5 November 1992 and ratified by the UK 27 March 2001(entering into force i July 2001), see No For the text ofthe Act of Court, see 2001 Scots Law Times(News)194. For the language charter(ETS No 18 See W.A. Wilson, Introductory Essays on Scots Law, 2nd edn.(Edinburgh, 1985), pp14-17. 2001Gwd20-764.OnRobbiethePictsee<http:/www.pictphddemonco.uk> Further on the Latin charter tradition in Celtic countries, see several contributions in Literacy in Medieval celts o c For an interesting analysis of the deployment of the Latin charter in Gaelic Scotland and a challenge to the idea of the 'Celtic charter, at least in Scotland, see D. Broun, The Charters of Gaelic Scotland and ireland in the Early and Central Middle Ages, Quiggin Pamphlets on the Sources of Medieval Gaelic H istory 2(Cam bridge, 1995) Societies, ed. H Pryce(Cambridge, 1998) Lands Transference Act 1847(10& 11 Vict, c 51), S. 25. See also P. Gouldesbrough, Formulary of old Scots Legal Documents, Stair Society vol. 36(Edinburgh, 1985), chs. 11-15
Scottish Land Court must by statute include at least one Gaelic speaker amongst its members.16 In July 2001 the Sheriff Principal of Grampian, Highland and Islands, inspired by the recent UK ratification of the European Charter for Regional or Minority Languages, laid down that the sheriff courts in Stornoway and Lochmaddy in the Western Isles, and Portree in Skye, would allow party litigants to address the court, or witnesses to give evidence, in Gaelic in civil (but not criminal) proceedings, provided that notice of two weeks was given (to allow for the provision of an interpreter). Sheriffs might, however, veto the right to speak in Gaelic if they considered that otherwise the proper administration of justice would be hampered.17 Of course there may always be a dash of lawyers’ Latin (or code mixing, as linguistic discourse would have it) to bring linguistic variety in court proceedings and in legal writing and teaching;18 although in June 2001 the Appeal Court of the High Court of Justiciary had to consider a claim that use of the maxim omnia rite et solemniter acta praesumuntur in proceedings arising from the eleven-times repeated failure of an individual known as Robbie the Pict to pay the toll exigible to cross the Skye Bridge infringed Robbie’s right to a fair trial under Article 6 of the European Convention on Human Rights.19 The court rejected the argument, presented by Robbie in person, that he was entitled to have the proceedings conducted in a language that he could understand, because ‘it was clear from the appellant’s presentation of his argument that he did fully understand the maxim’.20 We therefore seem rather far in modern practice from the linguistic diversity (or, reverting to the terminology of linguistics, language contact) which, as I shall now argue, characterised the practice of law as it became the common law - or ius commune - of the medieval kingdom of the Scots. The development of Scottish common law began in the twelfth century, and from the start its language of record was Latin. The law centred on land, and the charters and other documents which recorded grants and transfers of land were generally in Latin, although over time documents in Scots became more common.21 Only in 1847 did statute provide that henceforth Crown writs would be in English rather than Latin.22 The ‘brieves’ or Legal Aid Board can be persuaded that it is justified. See for example Montes v HMA 1990 SCCR 645. 16 Scottish Land Court Act 1993, s. 1, replacing the Small Landholders (Scotland) Act 1911, s. 3, as amended by Agriculture (Scotland) Act 1948, s. 70(1). 17 For the text of the Act of Court, see 2001 Scots Law Times (News) 194. For the language charter (ETS No. 148), enacted 5 November 1992 and ratified by the UK 27 March 2001 (entering into force 1 July 2001), see <http://conventions.coe.int/>. 18 See W.A. Wilson, Introductory Essays on Scots Law, 2nd edn. (Edinburgh, 1985), pp. 14-17. 19 2001 GWD 20-764. On Robbie the Pict see <http://www.pictphd.demon.co.uk>. 20 At para. 4. 21 For an interesting analysis of the deployment of the Latin charter in Gaelic Scotland and a challenge to the idea of the ‘Celtic charter’, at least in Scotland, see D. Broun, The Charters of Gaelic Scotland and Ireland in the Early and Central Middle Ages, Quiggin Pamphlets on the Sources of Medieval Gaelic History 2 (Cambridge, 1995). Further on the Latin charter tradition in Celtic countries, see several contributions in Literacy in Medieval Celtic Societies, ed. H. Pryce (Cambridge, 1998). 22 Lands Transference Act 1847 (10 & 11 Vict, c. 51), s. 25. See also P. Gouldesbrough, Formulary of Old Scots Legal Documents, Stair Society vol. 36 (Edinburgh, 1985), chs. 11-15
writs with which many forms of process before the medieval courts were commenced were also in Latin as were the earliest records of the courts themselves The assizes statutes and othe legislative acts of the twelfth to the fourteenth centuries have all come down to us in Latin although it needs to be borne in mind that the surviving manuscripts in which they are recorded are all of significantly later date than the material itself and may not therefore reflect absolutely faithfully the original texts. and finally by and large the treatises and other writings of the medieval common law were composed in Latin as well On the face of it, the Latinity of the Scots common law began to be eroded only in the later fourteenth century. It is at this point that we begin to find formal documents in Scots as well as Latin. The Scots of such documents was ' closely modelled upon the Latin forms which had been current for three hundred years and more; thus, for example, Till al that thir present lettres seis or herys'is the Scots of Universis hac presentes literas visuris vel audituris 23 The sciatis or noveritis with which many formal Latin documents open became ' Be it kenned in Scots ones Latinisms can also be observed in Scots word order-verbs at the end of sentences, adjectives following nouns-and in the use of plural forms of adjectives and pronouns. 4 The Latin treatises of the law Regiam Majestatem, Quoniam Attachiamenta, Leges burgorum, Leges Forestarum and Statuta Gilde -began to be translated into Scots around this time. 2) Some of the vernacular technical terms that become apparent from these translations were evidently derived from the Latin: brieve'or brief for writ is from breve, while spuilzie' seems to come ultimately from the canonist actio spolii. Court and other records were certainly being kept in Scots rather than Latin by the fifteenth century, although the latter was retained for some processes, most notably those involving the use of royal brieves But it is not simply the case that Latin material and material which had formerly been kept in Latin was now presented in Scots instead. The language of legislation shifted also, and evidently this was not simply a matter of translating existing texts or well-known formulae. Thus in 1397 and 1399 legislation of the council general was recorded in Scots, 2 although it was to be another twenty-five years before parliamentary acts ceased to be laid down in Latin. 28 The use of Scots in 1397 was'probably to ensure accurate proclamation and wide understanding, 29an important point to which I shall return R.J. Lyall,"Vernacular Prose before the Reformation, in The History of Scottish Literature: Origins to 1660,edRDS. Jack(Aberdeen, 1988), p. 164 G.G. Simpson, Scottish Handwriting 1150-1650, rev. edn. (Aberdeen, 1986), p. 41 For references see H L MacQueen, Common Law and Feudal Society in Medieval Scotland(Edinburgh 1993), pp. 93-4 and relevant notes Sheriff Court Book of Fife, ed. w.C. Dickinson(Scottish History Society, Edinburgh, 1929); Court Book of le Baronyof Carnwath, ed W.C. Dickinson(Scottish History Society, Edinburgh, 1937) Acts of the Parliaments of Scotland (APS), ed T. Thomson and C. Innes(Edinburgh, 1844-1875),1, pp 570,572 See APs,, passim shif ole A. Grant, Independence and Nationhood: Scotland 1306-1469(London, 1984),p 103. See also on this gislative language, W.D. H. Sellar, "Courtesy, Battle and the Brieve of Right 1368-A Story Continued Miscellany ll(Stair Society, Edinburgh, 1984), p 9
writs with which many forms of process before the medieval courts were commenced were also in Latin, as were the earliest records of the courts themselves. The assizes, statutes and other legislative acts of the twelfth to the fourteenth centuries have all come down to us in Latin, although it needs to be borne in mind that the surviving manuscripts in which they are recorded are all of significantly later date than the material itself and may not therefore reflect absolutely faithfully the original texts. And finally, by and large the treatises and other writings of the medieval common law were composed in Latin as well. On the face of it, the Latinity of the Scots common law began to be eroded only in the later fourteenth century. It is at this point that we begin to find formal documents in Scots as well as Latin. The Scots of such documents was ‘closely modelled upon the Latin forms which had been current for three hundred years and more’; thus, for example, ‘Till al that thir present lettres seis or herys’ is the Scots of Universis hac presentes literas visuris vel audituris. 23 The sciatis or noveritis with which many formal Latin documents open became ‘Be it kenned’ in Scots ones. Latinisms can also be observed in Scots word order - verbs at the end of sentences, adjectives following nouns - and in the use of plural forms of adjectives and pronouns.24 The Latin treatises of the law - Regiam Majestatem, Quoniam Attachiamenta, Leges Burgorum, Leges Forestarum and Statuta Gilde - began to be translated into Scots around this time.25 Some of the vernacular technical terms that become apparent from these translations were evidently derived from the Latin: ‘brieve’ or ‘brief’ for writ is from breve, while ‘spuilzie’ seems to come ultimately from the canonist actio spolii. Court and other records were certainly being kept in Scots rather than Latin by the fifteenth century, although the latter was retained for some processes, most notably those involving the use of royal brieves.26 But it is not simply the case that Latin material and material which had formerly been kept in Latin was now presented in Scots instead. The language of legislation shifted also, and evidently this was not simply a matter of translating existing texts or well-known formulae. Thus in 1397 and 1399 legislation of the council general was recorded in Scots,27 although it was to be another twenty-five years before parliamentary acts ceased to be laid down in Latin.28 The use of Scots in 1397 was ‘probably to ensure accurate proclamation and wide understanding’,29 an important point to which I shall return. 23 R.J. Lyall, ‘Vernacular Prose before the Reformation’, in The History of Scottish Literature: Origins to 1660, ed. R.D.S. Jack (Aberdeen, 1988), p. 164. 24 G.G. Simpson, Scottish Handwriting 1150-1650, rev. edn. (Aberdeen, 1986), p. 41. 25 For references see H.L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh, 1993), pp. 93-4 and relevant notes. 26 Sheriff Court Book of Fife, ed. W.C. Dickinson (Scottish History Society, Edinburgh, 1929); Court Book of the Barony of Carnwath, ed. W.C. Dickinson (Scottish History Society, Edinburgh, 1937). 27 Acts of the Parliaments of Scotland (APS), ed. T. Thomson and C. Innes (Edinburgh, 1844-1875), i, pp. 570, 572. 28 See APS, ii, passim. 29 A. Grant, Independence and Nationhood: Scotland 1306-1469 (London, 1984), p. 103. See also on this shift of legislative language, W.D.H. Sellar, ‘Courtesy, Battle and the Brieve of Right 1368 - A Story Continued’, Miscellany II (Stair Society, Edinburgh, 1984), p. 9