The community of the realm in Scotland, 1249–1424
History, law and charters in a recreated kingdom
References to Roman and canon law in Regiam Maiestatem
by John Reuben Davies,
John Reuben Davies blogs about references to Roman and Canon Law in Regiam Maiestatem
We have already seen how the name Regiam maiestatem comes from the opening words of the Preface, which are as follows.
Regiam maiestatem non solum armis contra rebelles sibi regnoque insurgentes oportet esse decoratam, sed etiam legibus ad subditos et populos pacificos oportet esse armatam
(‘Not only must royal majesty be furnished with instruments of war against rebels who rise up against the realm, but for subject and peaceable peoples it is also necessary to be equipped with laws’).
Legal historians would recognise this as more or less the opening of Glanvill’s Treatise (or Tractate) of the laws and customs of the realm of England, except that Glanvill opens with Regiam potestatem ‘royal power’, rather than ‘royal majesty’. But both derive from the Proemium of Justinian’s Institutes,
Imperatoriam maiestatem non solum armis decoratam, sed etiam legibus oportet esse armatam
(‘Not only must imperial majesty be furnished with instruments of war, but it is also necessary to be equipped with laws’).
Of the various versions of Regiam maiestatem, the text of the Preface found in NLS, MS. 21246 (‘Bute’) and BL Add. MS. 18111 is closer to the Institutes.
This opening therefore illustrates the two principal debts which the compiler or compilers owed, namely to Glanvill and to Roman law.
A third source, canon law, was also used, and the process of reception or borrowing of thirteenth-century canon law into Regiam maiestatem was demonstrated in 1969 by Peter Stein (Regius Professor of Civil Law in the University of Cambridge, 1968–1993).[1]
At the end of Part I and the beginning of Part II of Regiam maiestatem a series of chapters has been taken from Roman and canon law.
- De Pactis
- De Arbitris
- De seruis non ordinandis
- De donationibus
Stein showed that these sections were in fact derived from a summary of Roman and canon law called Summa in Titulos Decretalium, compiled by Goffredus de Trani (died 1245).
Stein appears to have been working from the text of Regiam maiestatem printed in The Acts of the Parliaments of Scotland. Volume I. A.D. 1124–1423 (Edinburgh, 1844), which is based on the ‘Bute’ and ‘Cromertie’ (NLS, Adv. MS. 25.5.10) manuscripts. If, however, we look at these manuscripts they display in places a little more information about their sources than the 1844 printed text reproduces. In various places throughout, in passages based on Glanvill, there are explicit references to the Roman and Canon law sources, that is, to the Institutes, the Digesta, and the Liber Extra of Gregory IX. These references were edited out of later versions of Regiam maiestatem (and even were sometimes scored out in the manuscripts!). Here are a couple of examples.
- Bute (NLS, MS. 21246), fol. 32v
XXX. De eo qui neglegit allegare warantum.
Contigit quandoque quod is qui tenet licet warantum habeat tamen inde nullum in curia uocat warantum set ius petentis omnino per se defendit. Si hoc fecerit et terram amiserit, nunquam de cetero ab illo uersus warantum eam recuperare poterit. Ut extra de empcione et uendicione capitulo finale (‘As in the Liber Extra, “On buying and selling”, in the last chapter’). Eodem modo fiet de qualibet re super quam warantus vocatur .
- BL Additional MS. 18111, fols 17r–v
XXVIII. De querela finita et de pena resuscitantis.
Contigit multotiens loquelas motas in curia domini regis per amicabilem composicionem aut finalem concordiam, ex pacto conuento terminari per arbitrium. Dicitur autem concordia finalis eo quod negocio finem apponit adeo quod neuter litigancium [fol. 17v] ab eo poterit recedere. Ut extra de litis contestacione capitulo excepciones peremtorie libro sexto (‘As in Liber Extra, the “Litis contestatio” [the final act in a lawsuit], the chapter on “Peremptory exceptions”, the sixth book’).
One cannot tell whether the compiler of Regiam maiestatem had these sources to hand, or whether he was reproducing the references from a Summa. There are no surviving versions of Glanvill which have this kind of information. The compiler of the Bute version (copying from the same or very similar manuscript text or Regiam maiestatem as the scribe of the Additional manuscript) had a far greater concern for the identification of his sources than later redactors of Regiam. The contemporary annotators of the Bute manuscript (in most cases it was the main scribe) also added further references in the margins, some of which found their way (maybe directly) into the Cromertie manuscript, and thence to other versions. One is therefore tempted to suggest that the Bute manuscript represents a far more scholarly text than subsequent versions. We might also look at it as an example of a ‘live’ manuscript; that is, unlike other manuscripts of Regiam maiestatem, it existed in a context where it was used and added to by those who had custody of it.
In a subsequent post we shall look at some of the other sources that the annotator of the Bute manuscript used to add to the text, which were then taken up in the Cromertie version.
[1] Peter G. Stein, ‘The Source of the Romano-canonical Part of Regiam Maiestatem’, Scottish Historical Review 48 (1969) 107–123.