Written pleadings and legal reasoning
On 13 April 1543 an �obligatioun’ was produced before the court by a creditor.27 A date was set for the debtors named in the document to respond, but their procurator – a university graduate who may possibly have studied law – argued that they need not answer since �the balze ma nocht decerne bot on wrangs, and thair is na wrang done specifiit in the obligatioun’, adding that the debtors �sould nocht be decernytt to gyf ony answer thairto withtout formaill petitioun and liball war maid thairupoun’.28 The creditor was informed that he would need to present a petition if he wished to proceed, but whether any need was sensed for a wrong like �breach of contract’ to be specified is doubtful.
No petition was presented for the creditor, perhaps because the debtors’ procurator had meanwhile presented a successful petition on their behalf, alleging that the creditor had removed their goods from a ship and was refusing to return them �wrangously and aganes the law’.29 The wrong was not specified here either, nor was a wrong identified precisely in any of the other petitions entered in the records. There is one petition however that does go further than the rest. On 9 August 1538 it was alleged that certain merchants were refusing to contribute towards losses sustained by others when a ship they shared was plundered of some of its cargo by pirates.30 What makes the petition exceptional is that it declared their refusal to contribute to be inconsistent with a rule of law established by the �ald lovabill use lang observit withtin this nobill burght’. This petition at least went beyond alleging vaguely that the merchants were acting wrongfully and against the law by making some attempt to identify the law they were contravening. The court agreed that the merchants were obliged to contribute, �conforme to the ald lovabill consuetud of this burght’.If this exceptional petition may be taken to contain a syllogism, in which averments of fact were connected as a minor premiss with a proposition of law as a major premiss, leading to the conclusion that a legal remedy must be granted, the other petitions and borghs may perhaps be regarded as enthymemes, in which the major premiss of the argument was left unstated.31 There are several reasons why it could have been considered appropriate for the law underpinning pleadings to remain implicit.32 The applicable law could have been considered too uncontentious to be in need of statement, especially if the dispute centred on the accuracy of factual averments, as it clearly did in many cases. Conversely, where the law did seem contentious, the writers of petitions and borghs could have been reluctant to commit parties to defined positions before argument was engaged in before the court. That legal argument was sometimes expected is suggested by entries recording the willingness of defenders to do whatever �happennit to be decernit and fundin, other be law or prettike’, or to make payments �gif it wer fundin of law that thai aucht to’.33 Entries like these are unusual, however, and when they do occur there is rarely any indication of a finding being made, still less of how it was made. It is possible that the clerks who compiled the records preferred not to set down in writing the oral exchanges they heard in the court, but before it is assumed that the task of the legal historian must be to fill in gaps in the records by identifying propositions of law that would have rendered the reasoning in the pleadings coherent, the traces of legal argument that do exist need to be examined carefully.
When parties petitioned the court for �remeid of law’, seeking to have their opponents �compellit be the law’ to do something, and when it was stated that their opponents should appear before the court to �underly the lawe’ or �answer as law will’, the word �law’ was used primarily to signal a desire for disputes to be determined by way of a coercive process.34 The first of these expressions recurs quite frequently in statements that a party objected to how a case was being handled and �protestit for remeid of law’, meaning that he intended to take any steps he could to challenge the court’s ruling.35 When one party asked the court for copies of depositions received from witnesses, the other party’s procurator �protestit that he gett nocht the same, becaus it is aganis the pratik and styill of court, and for remeid of law gif the bailzeis dois in the contrar’.36 As parties who protested for �remeid of law’ were making a procedural move, the likelihood is that parties who petitioned for �remeid of law’ were doing the same, and were asking not so much to have their opponents compelled to fulfil their obligations under substantive law as to have them subjected to a process governed by procedural law. It was apparently the procurator who referred to �the pratik and styill of court’ who also complained in a case mentioned earlier about parties being summoned to answer an �obligatioun’.37 Given that types of wrong never were specified in petitions, his concern was presumably less with the lack of specification than with the attempt to initiate an action with an obligation instead of a petition.
Another common use of the word �law’ was in court orders requiring payments to be made �within terme of law’, which meant that payments were to be made within the period prescribed by procedural law.38 Accordingly, the point of saying that parties would make payments �gif it wer fundin of law that thai aucht to’ may simply have been that they were prepared to make payments if they were ordered to do so in a court process governed by law, not that they were prepared to make payments if required to do so by substantive law. But what about parties who undertook to do whatever �happennit to be decernit and fundin, other be law or prettike’? Were they referring to rules directly regulating the activities of mariners and merchants?A few entries in the records from the 1530s and 1540s are indicative of inquiry into law of a more substantive variety. In one case it was found to be �the law of the sey’ that someone employed as an ordinary sailor on one ship could accept appointment as �ane bottsman’ on another.39 What exactly was meant by �the law of the sey’ is not apparent, but the idea that sailors should be free to assume more responsible positions on other vessels was broadly consistent with a provision of the maritime code known as the laws of Wisby.40 In other cases equally vague reference was made to �the ammarrellis lawis’, �the commont law’ or simply �the law’.41 When the question was raised �quhidder gold and silver cumand hayme in ane schip to this realme suld scot and lote witht uther gudis or nocht’, the court found that �all kind of mony, baitht gold and silver, cunzeit and uncunzeit, and als rings, being in ane schip, suld lott and scott witht the uther guds of the said schip’.42 It is unclear where this answer was found, but it could have been in Justinian’s Digest, where the same question had been answered in the same way by a Roman jurist.43 The issue remained controversial in Aberdeen, yet the court’s ruling seems to have been remembered by the draftsman of the exceptional petition in which a proposition of law was enunciated, for his complaint related to merchants who carried goods alone; yet the proposition was that if goods were lost, everyone else with �gudds and money’ aboard a ship had to contribute towards the loss sustained.44 Another exceptional entry contains a protestation that merchants whose goods were stowed in the hold of a ship should not contribute towards losses sustained by those whose goods were stacked above deck, �conform to the act of parliament maid thairupoune’.45 Protestations in similar terms were actually quite frequent, but on no other occasion was support drawn from an act of parliament, or for that matter from an ordinance of the burgh council on the same subject.46