An example of legal culture: falsing the doom in Scottish burghs

One mechanism of legal procedure throughout medieval Scotland, an appeal process known as �falsing of dooms’, serves as a useful illustration of legal culture as a historical problem.

The earliest surviving example of a falsing anywhere in Scotland dates from 1382. This relates to a case heard in the baron court of the bishop of Aberdeen, involving the bishop himself against one John Crab, where a doom in favour of the bishop was falsed by Crab to be taken to the higher jurisdiction of the sheriff’s court. That record is in Latin â€?…si iudicium dici debeat in se putridum est et corruptum…’.⁴⁹ The medieval legal treatise Quoniam Attachiamenta set out the falsing procedure in baron courts.⁵⁰ Various other legal texts of the period also mention the process.⁵¹ In 1430 parliament aimed to regulate doom falsing throughout the kingdom: the unsatisfied party was to say out loud â€?that dome is fals, stinkande and rottyn in the self’ immediately after judgement was given in court. This is a fair translation into Scots of the Latin expression just noted. Further national legislation on the matter updated procedure in 1504.⁵² Falsing was, however, part of an older legal framework. A supposed dissatisfaction with the old ordinary courts – where their administration by officials who were not trained specialists in the law was seen to be ineffective – is understood to have grown in the fifteenth century, a sentiment well expressed by an act of parliament in 1488.⁵³ That act reversed an experiment in 1487 where a law had been introduced requiring lower ordinary courts to hear cases in the first instance, and so avoid litigants bringing cases directly to parliament or the judicial sessions of the royal council (the precursor of the court of session).⁵⁴ At this time the rule also prevailed which required cases concerning feudal tenure of land to be initiated with documents issued by the royal chancery, known as brieves, to be heard in the ordinary courts.

Methods of appeal in Aberdeen’s courts are a subject worthy of research in their own right,⁵⁶ but as for falsing of dooms, there are very few instances to be found between 1398 and 1511, which suggests that falsing was not a familiar process. The earliest is an occurrence in 1399, in Crab v. Spryng.⁵⁷ Here a doom had been given that Spryng should be restored to real property which his opponent also claimed. A memorandum entirely in Latin recorded that Paul Crab (possibly some relation of John, just noted)⁵⁸ had found a plegium for the falsed doom to go before the chamberlain ayre. The next occurrence is not until 1444, in Scherar v. Henrison, a case initiated with a brieve of right, over possession of a croft situated in Aberdeen’s own adjacent rural lands. The defender appears to have waited until the pursuer left the court, and then to have secured a judgement in his own favour. When the pursuer returned to the court, the clerk recorded his spoken statement â€?that the dome gefyne […] agaynnis me is fals il and Rotyne in the self and thar to a borch and for this resone / for the balye gif me leve’.⁵⁹

There is no further mention of falsed dooms in Aberdeen until the 1480s, when an entry on â€?the falsing of a dewme’ in the burgh’s so-called Sasine Register occurs alongside other business dated to 1486.⁶⁰ This was a regulatory statement on procedure for falsing in different courts, somewhat like the 1430 act of parliament, but not the same.⁶¹ It seems perhaps that this was included because the burgh officials sought to remind themselves of the procedure for falsing around the time of the 1487 and 1488 legislation, necessary given that (apparently) just one falsing had occurred in the burgh courts in nearly nine decades.

A patch of doom falsings then occurs in the main council register series, and at a similar date one can also be found in the court of Dunfermline, another burgh.⁶² The first of these was in 1489 in Eduardson v. Days.⁶³ This case concerned the enforcement of a contract for the freight of goods shipped to other northern Scottish ports but unloaded in Aberdeen. This was in the court of the town’s bailies and judgement went in favour of Eduardson, a burgess of Edinburgh. His opponent’s procurator immediately falsed this doom, saying: â€?Jonhe Williamsone dempstar of this courte that dome that thow has gewin aganis me is fals evile ande rottyne in it selff’ (and some 53 further words), and found a borgh in the hands of the court sergeand. Some days later the procurator presented his client’s â€?resonis’ (statements of justification) for the falsing which were â€?putt in the common kyst to the decision of the saide mater’.⁶⁴ In the case of Murray v. Menzies (1494), the subject at law was the sum of £80 for the redemption of a share of a fishing on the River Dee.⁶⁵ The bailie court’s judgement had favoured David Menzies, then provost of the burgh.⁶⁶ Some weeks later his opponent appeared in court to false the doom (with some 200 words of speech, and alleging that the doom had been given in an improper court), finding a borgh in the hands of the sergeand and asking for a record of the falsing.⁶⁷ On a later date he presented â€?certane allegeance and resonis closin vndir his Seill’, which the court clerk laid in the â€?common kyst’.⁶⁸

The next case was Gray v. Monrow (1496). Here one party claimed the other did not procure a dispensation from the papal curia as promised. Doom was given on 11 January in the burgh’s head court for Monrow, who also protested for his expenses. Gray falsed the doom in person in the bailie court on 10 February (with some 220 words of speech).

There is no evidence of these cases actually coming before the chamberlain ayre, although as the last case makes clear this is why â€?resonis’ were produced and sometimes lodged in the common â€?kyst’ or chest.⁷² These latter cases are few in number, but generally they involved litigants of a high social profile (current or recent provosts, a burgess of Edinburgh, rural landowners) and matters of some weight (shipping contracts, the pursuit of a papal licence and rights in lucrative river fisheries). They give the flavour of a deliberate revival of an older process of falsing in the burgh. However, this was not so much a general innovation as one used for its performative flourish and, one suspects, the rarity of the process served to punctuate a legal challenge. In Murray v. Menzies the falser also expressly questioned the authority of the court which had given judgement.

By contrast to the latter examples, the earliest case of 1399 is recorded in Latin, and this raises the question of the language in which proceedings between Crab and Spryng were conducted. Did Paul Crab false the doom in the vernacular, while the clerk compiling the register set down the memorandum in Latin? By the 1480s any need for such translation had become obsolete due to a significant amount of court business having come in recent decades to be recorded in Scots. While this may appear to be a straightforward demonstration of the rise of the vernacular, it is worth noting that Latin continued to be used for a variety of court business in Aberdeen throughout this period and beyond. The multilingual nature of law even in this one jurisdiction is plain to see (an issue explored by the contributions to this volume by Anna Havinga and Joanna Kopaczyk), but so is the question of the importance of the spoken word. While these cases provide numerous references to written documents used in court, they show clearly that a spoken formula in the vernacular was indeed required for the falsing process itself to be valid. The extent to which recorded speech represents a legal language in its own right, distinct from the written language of legal record, is a topic for future exploration, and one in which the explicit or implicit relationship between Latin and the vernacular needs to be better understood. Was it then acceptable for a speech act to be rendered as a memorandum in the Latin record in the 1390s, whereas, by the 1440s and again in the 1480s and 1490s, a direct written record of vernacular speech had become necessary in these courts? Questions like these are about cultures of law, and are ripe to be considered in comparison with evidence from other towns.⁷³

It should perhaps be no surprise that the most prominent members in Aberdeen’s local society revived the legal older process of doom falsing.