Notes

1 E. Frankot, �Maritime law and practice in late medieval Aberdeen’, Scottish Historical Review 89, 2010, pp. 136–52 and E. Frankot, �Of Laws of Ships and Shipmen’: Medieval Maritime Law and Its Practice in Urban Northern Europe, Edinburgh: Edinburgh University Press, 2012.

2 The change in jurisdiction is briefly outlined in J.D. Ford (ed.) Alexander King’s Treatise on Maritime Law, Edinburgh: Stair Society, 2018, pp. lxxi–vii.

3 Aberdeen City and Aberdeenshire Archives (hereafter ACAA), CA1/1 Aberdeen Council, Baillie and Guild Court Registers (hereafter ACR). As is explained in the chapter of this volume by William Hepburn and Graeme Small, �council registers’ may be a misleading description of these varied records.

4 This chapter is written for the benefit of �legal historians’ in the broad sense of scholars committed to tracing the development of law and thinking about law. There is of course much in the records examined that should be of interest to social, economic and other historians as well, but these aspects are only touched on in passing.

5 A first attempt to pursue the approach proposed, in which some of the entries discussed here are explored more fully, will appear soon under the title �General Average in Scotland during the Sixteenth Century’ in a collection of essays on The History of Insurance Lawedited by Guido Rossi and Phillip Hellwege.

6 As well as thinning out generally in the later 1540s, the entries relating to maritime trade by then fall mainly into the first two categories.

7 In most of the relevant entries in the council register parties were generally said to have appeared before the curia ballivorum burgi, though sometimes the provost sat along with the bailies in this court and sometimes maritime matters were considered elsewhere.

8 W.C. Dickinson (ed.) Early Records of the Burgh of Aberdeen, 1317 and 1398–1407, Edinburgh: Scottish History Society, 1957.

9 ACAA, ACR, vol. 9, p. 543, vol. 10, p. 211, and vol. 12/2, p. 520.

10 ACAA, ACR, vol. 8, p. 1036, vol. 11, p. 636, vol. 12/1, pp. 16, 164, 278, 286, and vol. 12/2, pp. 520, 701, 753, 773.

11 T.D. Fergus (ed.) Quoniam Attachiamenta, Edinburgh: Stair Society, 1996, pp. 116–7; see too C. Innes and R. Renwick (eds) The Ancient Laws and Customs of the Burghs of Scotland, 2 vols, Edinburgh: Burgh Record Society, 1868–1910, vol. 1, pp. 27, 36–7, 54, 57.

12 P.J. Hamilton-Grierson (ed.) Habakkuk Bisset’s Rolment of Courtis, 3 vols, Edinburgh: Scottish Text Society, 1920–1926, vol. 3, pp. 29–84.

13 ACAA, ACR, vol. 13, p. 95.

14 ACAA, ACR, vol. 13, pp. 96–7.

15 Although it is possible that petitions were already in use in other types of cases, a more comprehensive search through the two parts of ACAA, ACR, vol. 12, has revealed that they contain as many as forty borghs but not a single petition. Similarly, in the first 95 pages of ACR, vol. 13, five borghs have been found but no petitions.

16 ACAA, ACR, vol. 13, p. 303; ACR, vol. 14, pp. 256–7, 260, 587–8; ACR, vol. 15, pp. 286, 298, 334–5, 368–9, 445, 653–5, 662, 665, 682–3, 736–7; ACR, vol. 16, pp. 90–1, 122, 189, 452, 454, 467, 521–2, 561–2, 611, 711–2, 741, 760, 794, 855; ACR, vol. 17, pp. 440–1; ACR, vol. 18, p. 248; and ACR, vol. 19, pp. 4, 98, 123–4.

17 Instead of court officers receiving borghs from defenders, for example, defenders were increasingly required to provide the bailies themselves with security in the form of �caution’, which could be both de iudicio sisti et iudicatum solvi (that is, a guarantee both that they would appear before the court to hear sentence given and that any award of damages the court made would be satisfied).

18 The study of petitions as a direct link between rulers and ruled has of course become a growth industry in recent years (see, for example, K. Bowie, �From customary to constitutional right: The right to petition in Scotland before the 1707 act of union’, Parliaments, Estates and Representation 38, 2018, pp.

19 ACAA, ACR, vol. 13, pp. 15–23, 103, 115–7, 134–9, 143–4.

20 A.B. Calderwood (ed.) Acts of the Lords of Council, 1501–1503, Edinburgh: HM Stationary Office, 1993, p. xxv.

21 The Records of the Parliaments of Scotland to 1707,ed. K.M. Brown et al., St Andrews, 2007–2020, (hereafter RPS), 1540/12/14.

22 ACAA, ACR, vol. 14, pp. 587–8; ACR, vol. 15, pp. 286, 298, 334–5, 368–9, 445, 655, 662, 665, 736–7; ACR, vol. 16, pp. 90–1, 122, 452, 454, 467, 521–2, 561–2, 611, 627–8, 760, 855; and ACR, vol. 19, pp. 123–4.

23 ACAA, ACR, vol. 8, pp. 798, 830; ACR, vol. 10, pp. 29, 115, 167, 169, 277, 366; ACR, vol. 11, pp. 521, 636; ACR, vol. 12/1, pp. 126, 261–3; ACR, vol. 12/2, pp. 522, 666, 700–1, 710–1, 753–4; ACR, vol. 13, pp. 172, 180, 506, 508; ACR, vol. 14, pp. 254, 256, 259, 264–5, 266–7, 536, 545, 620; ACR, vol. 15, pp. 33–5, 48, 55, 108, 110, 167, 204, 294, 387, 445, 448; ACR, vol. 16, pp. 104–5, 131, 155, 375; ACR, vol. 18, p. 243; and ACR, vol. 19, pp. 310, 316–7, 394.

24 A. Harding, �Rights, wrongs and remedies in late medieval English and Scots law’, in H.L. MacQueen (ed.) Miscellany Four, Edinburgh: Stair Society, 2002, pp. 1–8 and H.L. MacQueen, �Some notes on wrang and unlaw’, in H.L. MacQueen (ed.) Miscellany Five, Edinburgh: Stair Society, 2006, pp. 13–26.

25 A.M. Godfrey, Civil Justice in Renaissance Scotland: The Origins of a Central Court, Leiden: Brill, 2009, pp. 239–47.

26 ACAA, ACR, vol. 14, pp. 566–8, 570–2, ACR, vol. 15, pp. 485–6, and ACR, vol. 18, p. 241. Actions for spuilzie can be found in D. Littlejohn (ed.) Records of the Sheriff Court of Aberdeenshire, 3 vols, Aberdeen: New Spalding Club, 1904–1907, vol. 1, pp. 47–63, 149–63, 255–6, and they may well be found elsewhere in the burgh records, though Edda Frankot has found that the term �spuilzie’ is absent from the volumes up to 1511.

27 ACAA, ACR, vol. 17, pp. 434–6.

28 ACAA, ACR, vol. 17, p. 440.

29 ACAA, ACR, vol. 17, pp. 441, 446, 450, 453, 463, 571.

30 ACAA, ACR, vol. 15, pp. 711–2.

31 For the later use of this Aristotelian distinction by Scots lawyers, see J.D. Ford, Law and Opinion in Scotland during the Seventeenth Century, Oxford: Hart Publishing, 2007, pp. 513–5.

32 J.G.H. Hudson, �Court cases and legal arguments in England, c. 1066–1166’, Transactions of the Royal Historical Society 10, 2000, pp. 91–116, explains why this may have happened and how historians may respond in dealing with truncated pleadings.

33 ACAA, ACR, vol. 9, p. 399 and ACR, vol. 11, p. 535.

34 The process was backed up with recurring threats of seizure of property (poinding) or person (warding), and occasionally with other threats too.

35 A particularly instructive example can be found at ACAA, ACR, vol. 16, pp. 632, 637.

36 ACAA, ACR, vol. 16, p. 617.

37 See again the quotations in note 28.

38 This expression is equiparated with the equally common �within thre tydis’ in ACAA, ACR, vol. 12/2, p. 672.

39 ACAA, ACR, vol. 14, p. 413.

40 T. Twiss (ed.) The Black Book of the Admiralty, 4 vols, London: Longman, 1871–1876, vol. 4, p. 283.

41 ACAA, ACR, vol. 13, pp. 403–4 and ACR, vol. 12/2, pp. 675, 689–90.

42 ACAA, ACR, vol. 13, pp. 410, 425.

43 A. Watson (ed.) The Digest of Justinian, 4 vols, Philadelphia: University of Pennsylvania Press, 1985, vol. 1, p. 419.

44 ACAA, ACR, vol. 13, pp. 465, 506–9, 511–3; ACR, vol. 14, pp. 139–40; and ACR, vol. 15, pp. 711–2.

45 ACAA, ACR, vol. 16, p. 784.

46 For the protestations, see ACAA, ACR, vol. 8, pp. 1029–30; ACR, vol. 9, p. 732; ACR, vol. 12/1, pp. 407–8; ACR, vol. 12/2, p. 529; ACR, vol. 15, pp. 89–90, 94, 96, 118, 278; for the legislation see RPS, 1467/1/4, ratified in 1487/10/19, and ACAA, ACR, vol. 9, p. 398. It is this particular topic and these particular entries that are examined more fully in the essay referred to in note 5.

47 For a persuasive explanation of the involvement of lawyers in an unusual episode, see A.R.C. Simpson, �Spuilzie and shipwreck in the burgh records’, Journal of Irish and Scottish Studies 9, 2018, pp. 70–92.

48 Cf. Dickinson, Early Records of the Burgh of Aberdeen, pp. cxxviii–ix.

49 ACAA, ACR, vol. 13, p. 18.

50 ACAA, ACR, vol. 13, pp. 157–8. Another entry in which similar language is used will be returned to below.

51 ACAA, ACR, vol. 13, p. 502; ACR, vol. 15, p. 230; ACR, vol. 16, p. 205; ACR, vol. 17, pp. 573–4, 579–80; and ACR, vol. 19, p. 4.

52 Twiss, Black Book of the Admiralty, vol. 4, p. 270. The corresponding article in the laws of Oleron (Black Book of the Admiralty, vol. 1, pp. 94–7) was less supportive.

53 ACAA, ACR, vol. 12/2, p. 672 and Twiss, Black Book of the Admiralty, vol. 4, p. 281.

54 ACAA, ACR, vol. 19, p. 401 and Twiss, Black Book of the Admiralty, vol. 4, p. 280.

55 None of the findings listed matches the terms of the code exactly. Frankot, �Of Laws of Ships and Shipmen’, pp. 154–7, 195, found not only that the code was unknown in the fifteenth century but also that rulings then were influenced in the same vague and probably indirect way by the laws of Oleron. She is presumably correct in suggesting that legislation informing the laws of Wisby is more likely to have been known about earlier in the sixteenth century than the code itself. Essentially, though, mariners and merchants in Scotland are less likely to have consulted written statements of the law at any stage than to have remembered conversations they had been engaged in with mariners and merchants from overseas.

56 ACAA, ACR, vol. 14, p. 413.

57 Again, the practice was not covered exactly by the terms of the provision in the code.

58 ACAA, ACR, vol. 20, p. 24.

59 ACAA, ACR, vol. 12/2, p. 865.

60 ACAA, ACR, vol. 12/1, p. 245.

61 ACAA, ACR, vol.

62 ACAA, ACR, vol. 16, p. 389. For the hard of Scots, �skaytht’ means loss or harm.

63 D. Heirbaut, �Exploring the law in medieval minds: The duty of the legal historian to write the books of non-written law’, in A. Musson and C. Stebbings (eds) Making Legal History: Approaches and Methodologies, Cambridge: Cambridge University Press, 2012, pp. 118–30, recommends such an approach.

64 See, for example, E. Kadens, �Custom’s past’, in C.A. Bradley (ed.) Custom’s Future: International Law in a Changing World, Cambridge: Cambridge University Press, 2016, pp. 11–33.

65 As Heirbaut points out, German historians distinguish between legal customs of the kind found in Aberdeen (Rechtsgewohnheiten) and the customary laws reconstructed from them by lawyers (Gewohnheitsrechten). The precise significance of these terms tends to vary from one historian to another, but the crucial point is that lay people and trained lawyers tended to view customs in different ways.

66 Even when the aim was to record satisfaction with something that had been done, the expectation generally was that the person responsible would be released from an obligation.

67 This is not a roundabout way of saying that children need to know the rules of the game, although some of them may think in these terms. On this point much can, of course, be learned from the later Wittgenstein.

68 Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology, London: Fontana, 1993, pp. 167–234.

69 On the reworking of adat by legal scholars, see, for instance, Z.Z. Mutaqin, �Indonesian customary law and European colonialism: A comparative analysis on adat law’, Journal of East Asia and International Law 4, 2011, pp. 351–76.

70 The Interpretation of Cultures: Selected Essays, New York: Basic Books, 1973, pp. 3–30.

71 Whether this is generally true of all law, as Geertz suggested, need not be considered here.

72 Geertz, Local Knowledge, p. 232.

73 See too Geertz, Available Light: Anthropological Reflections on Philosophical Topics, Princeton, NJ: Princeton University Press, 2000, pp. 133–40.

74 ACAA, ACR, vol. 12/1, pp. 170, 173, 216, 351; ACR, vol. 12/2, pp. 477, 480–1, 526, 674, 697–701, 711; ACR, vol. 13, pp. 15–23, 134–9, 143–4, 406, 410–3, 415–8, 421–5, 495–8, 513; ACR, vol. 14, pp. 141, 191, 215, 429, 546–7, 589; ACR, vol. 15, pp. 20, 36, 47, 70, 87, 167, 408, 485; ACR, vol. 16, pp. 67, 83, 175, 195, 256, 271, 316, 391, 452, 462, 465, 474, 487, 604, 612, 632, 653, 744; ACR, vol. 17, pp. 573–4; ACR, vol. 18, pp. 235, 251, 364, 373, 512, 529, 579; and ACR, vol. 19, pp. 104, 291, 301, 303, 310, 324, 412, 418.

75 Interesting questions are raised in S. Teuscher, �Document collections, mobilized regulations and the making of customary law at the end of the middle ages’, Archival Science 10, 2010, pp. 211–29.

76 ACAA, ACR, vol. 12/1, pp. 216–7, 228; ACR, vol. 14, p. 360; ACR, vol. 17, p. 575; and ACR, vol. 18, p. 415.

77 The relevant literature is reviewed with characteristic insight in J. Goody, The Logic of Writing and the Organisation of Society, Cambridge: Cambridge University Press, 1986, pp. 127–70.

78 To be clear, it has been seen that the draftsman of a petition may have remembered a previous ruling, which is not the same thing as citing a previous ruling as if it provided some sort of authority for a rule. There is evidence in the records of other burghs during the sixteenth century that court decisions were sometimes expected to have an effect on legal development, but not as what lawyers would now call precedents.

79 Something could perhaps be learned from the varied contributions made in recent years to �legal narratology’ (see, for example, G. van Niekerk, �Indigenous law and narrative: Rethinking methodology’, Comparative and International Law Journal of South Africa 32, 1999, pp. 208–27). But there is a difference between attending to the stories people sometimes tell about the law and recognising that some law sometimes consists in the stories people tell.

80 See, for example, A. Brett, �What is intellectual history now?’, in D. Cannadine (ed.) What Is History Now? Basingstoke: Palgrave Macmillan, 2003, pp. 113–31.

81 The connection is formed by a shared debt to linguistic philosophy.

82 ACAA, ACR, vol. 15, pp. 167–8. For what may have been a different view of the law applicable to prize-taking, a matter generally left to the admiralty courts, see ACAA, ACR, vol. 20, p. 120.

83 ACAA, ACR, vol. 13, pp. 157–8 and ACR, vol. 15, p. 716.

84 ACAA, ACR, vol. 13, p. 425.

85 The entries involving maritime law may be compared with ACAA, ACR, vol. 19, pp. 341–2, where a case about customs dues was taken to be governed by the �use and prattik of the burrowis of the realme’. Whether the attitudes encountered in Aberdeen in the early sixteenth century were widespread throughout the country and century needs further investigation.

86 Cf. C. Hawes, �The urban community in fifteenth century Scotland: Language, law and political practice’, Urban History 44, 2017, pp. 365–80.

87 T. Johnson, �Law, space and local knowledge in late medieval England’, unpublished PhD thesis, Birkbeck, University of London, 2014, deals with law as local knowledge in this sense.

88 The fundamental importance to work in this area of J. Kopaczyk, The Legal Language of Scottish Burghs: Standardization and Lexical Bundles, 1380–1560, Oxford: Oxford University Press, 2013, will be apparent.

89 The classic study remains Q. Skinner, �The principles and practice of opposition: The case of Bolingbroke versus Walpole’, in N. McKendrick (ed.) Historical Perspectives: Studies in English thought and Society in Honour of J. H. Plumb, London: Europa, 1974, pp. 93–128.