The present volume
The essays gathered in this collection are drawn from across the fields of history, law and historical sociolinguistics and discuss cultures of law in Scotland (with a special focus on Aberdeen), the Low Countries, Norway, Germany and Poland.
The essays had their origins in a series of symposia led by the Law in the Aberdeen Council Registers project. In 2017 prospective contributors brought source extracts together for discussion, and they returned in 2018 with draft papers which were pre-circulated and to each of which a respondent was assigned. This proved to be a stimulating and fruitful exercise, not least in bringing the same group together on more than one occasion. That creative process, and the pleasurable task of editing these contributions in 2019–2020, has allowed us to see the interconnections between the various papers, some expected, some unexpected. What has resulted in the final collection of studies has been organised into five parts: Telling Tales; Communication of Law; Jurisdiction and Conflict; Law in Practice, in and out of Court; and Men of Law in Scotland. Although the church, churchmen and canon law do feature in some of what follows, it should be made clear at the outset that the discussion of legal culture in these essays is predominantly conducted with regard to a secular context. That results primarily from our shared focus on records generated by urban governmental administration rather than any intentional exclusion. An acknowledgement that the perspectives raised here may yet be pursued by others with reference to ecclesiastical law and law courts is appropriate. It should also be noted that some of the contributions which have been assembled could easily have been placed into other parts in this book, comfortably touching on two or even three of these themes, and numerous connections may be made between them. Some of the main connections may be briefly highlighted.First of all, J.D. Ford’s contribution on maritime law proposes a way in which medieval and early modern urban court records may be understood in terms of the expected purpose of the legal record for the parties, officials and other contemporary audiences who created and used these records, and in terms of how they may be used by modern historians. In relation to maritime affairs, Ford observes that many entries in the records of Aberdeen’s courts in the early sixteenth century appear simply �to have been attempts to have it put on record that something has happened in the way it should have’.75 He suggests that, in the resulting accumulation of such �tales’ relating to maritime affairs in the shared record, the legal process generated social awareness of legal norms, without stating them explicitly as legal propositions. For Ford, the task proposed is �to identify certain broad forms of narrative that came to be considered acceptable, and to examine the presuppositions that made them acceptable’.76 The insight in this approach to sources is one which we expect readers will appreciate to keep in mind as they proceed through the other contributions in this volume.
Language and the written record are a primary concern in the second part, where the chapters address the theme of �Communication of Law’. These essays focus on material and linguistic aspects of how law and legal matters were communicated and on the multilingual nature of this communication. William Hepburn and Graeme Small in their contribution focus on the �common books’ of late medieval Aberdeen as the �central node in the town’s documentary network’ and a �physical symbol of burgh authority’.77 The expansion of writing in this period was part of a Europe-wide development of literacy. Hepburn and Small argue, however, that the common books should not only be understood in terms of literacy; these records also functioned as a powerful symbol of the burgh community, as represented by the urban elite.
Joanna Kopaczyk’s contribution in this part focuses on multilingualism in a comparative study of Scottish and Polish legal records. She argues that, despite a mixture of Latin and a vernacular apparent in both source sets, such medieval legal texts should be considered to have been written in one linguistic code with a complex structure. It was not the case that the individual languages functioned as separate codes; rather, the single complex multilingual code functioned to exchange information between the �community of practice’ (scribes, notaries, and so on) and the �text community’.78 Anna Havinga’s chapter examines the process of vernacularisation in the fifteenth-century Aberdeen Council Registers, considering in greater detail the multilingual character of these records and the increasing use over time of vernaculars in relation to Latin. There was no consistent pace to this process in which a mixture of Latin and vernacular languages persisted over time, and Havinga argues that this vernacularisation resulted in more open and transparent legal record-keeping, even as the creation of and access to these sources were controlled by the urban elite. Together these three chapters explore cultures of law by addressing the topic in the wider European context of expanding literacy and vernacular writing, whereby late medieval elites harnessed languages and changing forms of written records and brought them into the service of a range of governing processes among which matters of law were paramount.Part III presents a series of chapters on jurisdictions and conflicts. These contributions focus on four different regions of northern Europe: Norway, Scotland, Germany and Flanders. The question of jurisdiction can have different implications: who has jurisdiction where, over whom and with regard to what? As Miriam Tveit demonstrates in her chapter on law in Norwegian market towns, those who used law in these towns appear to have relied on the Code of the Realm, despite the existence of a separate town law for the kingdom.
As such, the legal culture in these smaller towns reveals �overlapping and fluid’ legal boundaries, rather than overlapping jurisdictions.79 Michael Brown’s treatment of late medieval Peebles shows there was a clash of competing jurisdictions in the Scottish context. Townspeople claimed their autonomy from the crown’s officers of adjacent forest jurisdiction. The burgesses of Peebles were able to defend their rights by harnessing their urban privileges, granted by the king, which allowed for the magistrates to have jurisdiction over their own citizens (with some exceptions). Peebles appears to have been much more jurisdictionally minded than the market towns of Norway; nevertheless, both Tveit and Brown show the �urban’ context as the setting for intense legal activity, for example in the convening of courts and the resolution of conflict.Such heightened legal activity is also recognisable in Germany and Flanders. In his contribution on Pax Urbana, Jörg Rogge takes us to Braunschweig, Halle/Saale and Magdeburg. In examining the use of law for the achievement of political goals he focuses on the keeping of the peace, and how citizens and councils created and maintained this peace and sought to protect it from overbearing lords. Citizens also expected the town council to uphold the peace although, as Rogge shows, different groups could have different expectations of what the peace meant, and how it could be maintained, not least in the resolution of disputes. Chanelle Delameillieure and Jelle Haemers turn our attention to gender, age and intergenerational conflicts in their investigation of how the wealthy citizens of Ghent used the law to address disputes between parents and children in matters of marriage. They argue that relatively accessible legal institutions in towns like Ghent provided opportunities for men and women to defend their rights, by reference to law and local custom. In all four contributions in this part different parties’ expectations of the law and of the law courts come to the fore, especially concerning the protection of rights that was offered through law, often against external authorities.
The extent to which legal culture can be understood helpfully as �urban’, and indeed the extent to which it was a culture dominated by senior male elites, are aspects of the topic opened up in these chapters.The contributions in part IV examine law in practice, in and out of court, in Aberdeen, Kampen (in the Netherlands) and Danzig. Many surviving urban sources derive from the law as it was put into practice as they record the pursuit or resolution of disputes, legal transactions and contracts, mostly conducted in court or before legal professionals such as notaries. It is more unusual to find sources that concern law in practice outside of official spaces, but one such source is considered by Edda Frankot in her contribution which focuses on private and public houses as spaces of law. In Kampen, Frankot shows, legal culture was not confined to the official fora of law courts but could be enacted through the performance of modest ceremonies, and in non-official spaces where women were also to be found among legal actors. In this part, too, the expectations of the law are pertinent: in how far were rights protected when transactions occurred outside courts and, when conflict arose, in the circumstances required for justice to be served. From the contribution by Justyna Wubs-Mrozewicz on ships and inheritances in Danzig and in the Hanse area, it is clear that there existed expectations that laws and practices were different in the variety of places in which merchants or skippers might be seeking justice, but also that their rights would still be protected, like those of resident burghers. For Wubs-Mrozewicz, urban legal culture in the context of international trade and diplomacy demanded the acceptance of local variation in law and a reliance on flexibility. Looking at the practice of law through the use of particular legal terminology, Armstrong’s contribution on �malice’ and motivation for hostility in Aberdeen questions the appearance (and then the demise) of the information that an offender acted out of malice in case entries involving interpersonal violence.
Considering the national legislation which shaped this terminology and the local application of those rules in practice (in both Latin and Scots), this chapter argues that what counted most was the registration in the court record of the social relationship of hostility between opponents. Implicit in this is the expectation that personal rights will be better protected in future once the notice of malice is documented and saved for posterity. These expectations are linked to that already noted in relation to Ford’s chapter, which is that things should be done in a certain way – an expectation and consensus that was shared between all in a locality. Usages and customs, as noted by both Ford and Wubs-Mrozewicz, are those things that are considered to be normal and customary in a certain place. As such, as Ford argues, legal culture tended to be local: shaped in particular through use of shared linguistic conventions which could describe lawful behaviour and, as such, resulted in the shared expectations of the law. However, this does not mean that one could not also accept that which was considered to be right elsewhere as equally valid. The awareness and acceptance of variations in usages and customs and, as such, of legal cultures is arguably the only characteristic of an overarching northern European urban legal culture in this period.Part V focuses on �men of law’ in Scotland in the fifteenth, sixteenth and seventeenth centuries. Legal experts and professionals were of vital importance to the character of legal cultures. Their education and training affected what such men thought of the law, of rules and of practices, and, as such, it influenced the use of law and legal sources, legal practices and the recording of business, and the languages used in courts and in written documents. The character of notaries as the most educated legal professionals in fifteenth- and sixteenth-century Scotland is reflected in the practice of noting time in legal documents, as explored by David Ditchburn in his chapter which examines how changing understandings and ways of marking of daily time could come to shape legal events, memories and records. The emergence of recorded time of the clock as a feature of notarial practice is to be explained, according to Ditchburn, by a focus on the usefulness of the practice to those participating as witnesses to legal transactions. Time was thus a cultural tool which was adopted by notaries in their role as �guardians of private memory’.80 There is a clear chronological development recognisable between the contributions by Andrew Simpson, exploring the career of Andrew Alanson in the fifteenth century, and by Adelyn Wilson on legal education in Aberdeen in the sixteenth and seventeenth centuries. On the one hand, with the exception of notaries, in late medieval Aberdeen �men of law’ were men without formal legal training but their expertise was derived from experience and familiarity with the operations of the burgh courts. On the other hand, in the seventeenth century legal training was a formal requisite for practice, gained either through university education or through legal apprenticeship. While the importance of the social networks which interlinked legal specialists remained the same in both periods (recalling the points advanced by Kopaczyk on �communities of practice’ and �text communities’), by the seventeenth century a formal legal community with a professional organisation had grown in Scotland and, as Wilson demonstrates, this was a profession that was very much urban in nature and distributed across different towns of the kingdom.
It has been an enriching exercise working together and with the contributors, and it is our hope that together these essays will help to advance the understanding of historical legal culture, or more precisely the problem of how law worked in urban societies in Scotland and among a number of northern European comparators.