Court actions and legal remedies
The entries in the records relating to maritime trade are of various types, but they can mostly be divided into three categories. In the first place, many entries simply state that something has happened, such as the delivery of goods from a ship or the payment of freight for the carriage of goods.
Although some of these entries may conceivably have been made in the course of disputes that were otherwise unrecorded, they appear usually to have been attempts to have it put on record that something has happened in the way it should have. In the second place, and in sharp contrast, many entries record protestations that something has not happened in the way it should have, for instance (to take the same examples) that goods have not been delivered or that freight has not been paid. Although these entries too may sometimes have been made in the course of disputes, they appear usually to have been made by or at the behest of mariners or merchants who wished to put it on record not only that something had not been done properly, but also that any loss resulting should be borne by another party. In the third place, many entries more clearly record the stages of disputes between parties.6 They record the making of complaints by mariners and merchants against one another, the summoning of parties to respond to complaints, the setting of dates for hearings, the receipt of arguments or evidence and the delivery of decisions by the bailie court.7 When decisions were delivered, parties were ordered to deliver goods, to pay freight, to contribute towards losses sustained by others or something similar.To some extent the entries in the third category resemble those found in the earliest surviving records of the burgh, which date back to the fourteenth century.8 At the beginning of the sixteenth century defenders were still summoned to answer a �borgh’, of which they were given a copy and of which a copy was sometimes entered in the records.9 These documents typically opened with an assertion – in the first person – that the pursuer had �found ane borgh’ on the defender, went on to explain that something had happened because of which the defender ought to do something else, �and wrangis and he do it nocht’, and closed with the formula �and tharto my borgh and ane borgh to follow my borgh’.10 Although the term �borgh’ was applied to the documents used to initiate actions, it applied more precisely to the security parties were required to provide for their appearance before the court.
Borghs were a form of the attachiamenta referred to in the opening words of a famous procedural manual that formed part of the �auld lawes’ of Scotland.11 In accordance with a process widely used in previous centuries, defenders were given four opportunities to appear before the court.12 If they failed to appear at the fourth hearing, a penalty or �amerciament’ was imposed upon them and the court proceeded to give judgement in their absence. If they did appear, pleas and proofs were received from either party, usually at further hearings, before the court proceeded to deliver its decision.In the early 1530s, actions started to be initiated in a different way. On 23 February 1531, the bailies assigned further dates to a defender to appear and answer two �petitions’ submitted against him.13 These petitions were like borghs in complaining that something had been done because of which the defender ought to do something else, �and wrangs that he dois it nocht’, but instead of being addressed to the officer of the court to whom security was given, they begged the judges directly to provide �remeid of lawe’.14 For the next fifteen years defenders were often summoned to answer �petitions’ submitted against them.15 Those copied into the records followed the style of the 1531 petitions, except that they typically opened with a formal address to the court, contained a standardised statement that the defender was acting �wranguslie and aganes the law’ and ended by saying something like �and this my complent and petitioun to haf the strynth of ane borgh gif neid beis’.16 As the phrases added at the end indicate, some effort was made to reconcile the use of petitions with the established procedure, though other changes were made at the same time.17 In the first petition submitted in 1531, the judges were actually asked to provide remeid of law �conforme to our soverane lords letters direktat to you’, which had probably been issued in response to a petition presented to the king.18 Around the same time, the bailies received letters from the king concerning a ship wrecked on the coast nearby, in relation to which a �summonds of spulzie’ was being raised before �the lords of counsall’.19 When a summons was raised before this central court it was in response to a bill of complaint or supplication of a type similar to the petitions coming into use in Aberdeen.20 Within a decade, local courts throughout the country would be instructed to imitate the procedure favoured by the lords of council.21 It may be that awareness of how cases were raised in Edinburgh was already encouraging the bailie court of Aberdeen to move in that direction.
Whatever the reason for the move from borghs to petitions may have been, it clarified the purpose of raising actions.
Many petitions – resembling again the documents used before the lords of council – spelled out the pursuer’s concern that the defender would not do as he should �without he be compellit be the law’.22 Of course, whichever form of process was used, all pursuers must have wanted defenders to be subjected to legal compulsion, as is borne out by the recurrence throughout the records of statements that defenders should �underly the lawe’ or �answer as law will’.23 The adoption of the standard phrase �wranguslie and aganes the law’ similarly served to clarify the significance of the phrase �wrangis and he do it nocht’ found in the earlier borghs. Both phrases are reminiscent of the technical expression �wrang et unlaw’, which appears in the fourteenth-century records. Historians studying these and other records have observed that lawyers in late medieval Scotland had an opportunity to develop the law by teasing out the meaning of this expression in relation to the cases they handled.24 Whether or not that actually happened, lawyers appearing before the lords of council certainly did something similar in refining their understanding of various species of wrong like �spuilzie’.25 As it happens, while spuilzie is mentioned in the entries examined here, it is always in connection with the practice of the lords of council, yet it may be wondered whether a comparable process of legal abstraction was under way in the bailie court of Aberdeen.26 As mariners and merchants complained there about �wrangis’ done to them, it may be wondered whether different categories of wrong were carefully distinguished, and whether conditions of liability for each type of wrong were painstakingly specified.