In 1609, the Scottish lawyer and Lord Advocate Sir John Skene published an edition of Scotland’s ancient laws in two versions, one containing the texts in Latin, the other in Scots.Footnote 1 Both were entitled Regiam maiestatem and the Auld Lawes and Constitutions of Scotland. Skene’s book was the first to print any Scottish legal material which pre-dated the 1424 parliament of James I, king of Scots, and contained ‘ancient law’ from the early eleventh century to the early fifteenth.Footnote 2 Yet instead of announcing this major contribution to the history of Scots law with a great triumphal fanfare, Skene’s ‘note to the reader’ in his Latin edition spoke of a rather more traumatic personal history of his work on these legal texts.Footnote 3 He wrote:
While after only a short time looking into these early and ancient laws, I fell into an Augean stable which not even the labours of Hercules could ever cleanse or purge. Many books were thrown before me, some of ancient authority – now feasts for moths and worms. In these books, there is much that the passage of time has made unknown to us … all of which is easier to admire than to interpret. In these books, there is unwise and careless writing, much of which is corrupt, contrary, abbreviated and confusingly rendered, which falsifies the meaning and renders it as nothing.
These despairing words have been quoted many times, so much so that the manuscript corpus of early Scottish law has become almost a totemic lacuna in the history of early Scots law.Footnote 4 Yet, although these books as a whole are not, perhaps, as unyielding and forbidding as Skene has had us imagining, their contents still need a great deal of illumination. Chief among their contents is Skene’s headline piece, Regiam maiestatem, a work which survives in multiple manuscript copies in various forms from the late fourteenth to the early seventeenth century. It was probably Regiam which caused the most difficulty for Skene, and it would continue to do so for generations of lawyers and legal scholars down to the present day. For, although Skene’s edition of Regiam maiestatem became the one most widely circulated and, indeed, was the ‘standard’ text used by lawyers and scholars well into the twentieth century, it did not illuminate what Regiam was, and how it had come into being, as much as one might have hoped.Footnote 5 This was, in part, because Skene had what might loosely be called a flexible attitude towards the authority of his texts, making clear emendations, deletions of entire chapters and chunks of text, and often preferring the readings of the latest manuscripts instead of the earliest ones. Almost three hundred years after Skene’s edition had been published, George Neilson (1858–1923), the Scottish historian and antiquary, wrote in 1891 that ‘thick Cimmerian darkness girds the Regiam round: its date, its object, its history, lie in primeval doubt. The cobwebs have closed over it once more’.Footnote 6 Nearly 130 years after Neilson’s plaint, this essay offers a reconsideration, not only of how Regiam survives but also of its original state and, crucially, its intended purpose. In so doing, it will be argued that not only would Regiam’s content have mattered very much indeed, but, moreover, the example of Regiam adds something to how we understand late thirteenth- and early fourteenth-century political and legal thought in Western Europe.
The Later History of Regiam maiestatem
That Regiam should be subject to so much doubt is, at first glance, odd. From the beginning of the second quarter of the fifteenth century onwards, Regiam was first understood as the kingdom’s ‘auld law’, and was later used as an authoritative source of law. The tractate is first mentioned in 1426, under James I, with the well-known provision that six wise and discreet men should examine the two books of law of Scotland – Regiam and Quoniam attachiamenta – to discover what they had to say about exceptions.Footnote 7 Parliamentary attempts were made to reform and codify the kingdom’s ancient law in 1469 and 1473;Footnote 8 Regiam’s chapters were cited (correctly) in parliamentary legislation of 1471 and 1475;Footnote 9 another was reformed in parliament in 1481–2.Footnote 10 Hector MacQueen has shown that Regiam is also cited chapter and verse in notarial instruments (sometimes correctly) and in lawyers’ notes to pleading.Footnote 11 In short, the fifteenth-century status of the lawbook known as Regiam maiestatem is not in doubt: it was the ancient law of the kingdom of the Scots, had received parliamentary sanction and was the subject of law reform.Footnote 12
Regiam continued to be influential well into the early modern and modern periods. Over the sixteenth century, the authority of Regiam was discussed in the context of wider conversations about which kind of legal authority should take precedence in the judicial decisions of the Court of Session: Roman or Scottish Common.Footnote 13 The discussion was to change emphasis in the seventeenth century: by 1604, it had been discovered that Regiam was not an ‘original’ compilation (in the modern sense) of Scots law but, instead, derived mostly from the twelfth-century English tractate on jurisdiction, law and procedure known as Glanvill, itself written between 1187 and 1189.Footnote 14
The implications of the suddenly discovered link between the English Glanvill and the Scottish Regiam were explosive. Hector MacQueen has emphasised that the issue was not simply the immediate one of how far Regiam was derived from Glanvill, but the potential consequence of that question: how far medieval Scots law was ‘simply a version of the English common law’.Footnote 15 This was no small question: in the context of the Union of Crowns (1603), a union of law between England and Scotland was a real possibility; if Scots law was derived from English law, could it, indeed should it, be subsumed by it? Quite understandably, many thought Regiam was not part of Scots law. But, although the political implications of Regiam’s origins had grown gradually less significant by the end of the eighteenth century – particularly after the 1707 parliamentary union between England and Scotland and the quashing of the 1745/6 Jacobite rising against the Hanoverian dynasty – nothing like consensus as to where, when, how and why Regiam had been composed emerged.Footnote 16 Theories ranged from Regiam being compiled on the orders of Edward I of England to its belonging to the last few years of Alexander II’s reign in 1240s, and the sheer range of opinion makes Neilson’s complaint of ‘Cimmerian darkness’ surrounding Regiam understandable, particularly as the debate was no longer raging quite so fiercely by the end of the nineteenth century.Footnote 17
It is thus worth recapping what is, currently, known – or thought to be known – about the composition of Regiam maiestatem. It is known that it is the earliest surviving jurisprudential tractate to have survived from Scotland. It must have been compiled before 1424/5, because its earliest surviving manuscript was in existence by that point as it was sold on 20 January 1424 (it is unclear whether the year started on Lady Day or not).Footnote 18 The manuscript in question – known as ‘the Bute manuscript’ – may have been produced as early as the very late 1380s or 1390s, as, in its current form, the codex is composite, with the first two gatherings being added on to what palaeographically looks like a volume of the late fourteenth century, and, indeed, the latest date in it (1389) seems to be near-contemporary, with Robert Stewart (II) being described as ‘reigning’ (he died in 1390).Footnote 19 But if the later fourteenth century is the terminus ante quem of Regiam maiestatem, what is its terminus post quem? Internally, Regiam states that it was compiled on the command of King David I (1124–53).Footnote 20 Yet, despite the attribution, it cannot have been compiled during David I’s reign because much of it is derived or taken verbatim from Glanvill (1187×9).Footnote 21 In addition, there is a substantial section at the end of its books 1 and 2, taken from the Canon law Summa super titulis decretalium, compiled by Goffredus Tranensis – or Goffredo di Trani – between 1241 and 1244.Footnote 22
Any twelfth-century origin for Regiam should therefore be discounted, and indeed, although there were attempts in the mid-twentieth century to date the tractate to the mid-thirteenth century, research undertaken since the 1960s has located the treatise in the early fourteenth century, during the reign of Robert I (1306–29).Footnote 23 In particular, A. A. M. Duncan reexamined a passage in book 1 of Regiam which was also found, near-verbatim, in a chapter of a well-circulated piece of legislation enacted by Robert I in his parliament held at Scone on 3–5 December 1318.Footnote 24 Duncan concluded that, pace Lord Cooper, this passage could not be an interpolation but was instead so fundamentally integrated into and expanded in Regiam that Regiam had to have been compiled after the issue of the legislation in December 1318, not before.Footnote 25 Yet the post-1318 date is, in fact, debatable, as new material has recently been discovered and edited which has questioned whether the passage in Regiam was directly derived from the 1318 legislation and whether Regiam was, in fact, developing provisions first laid down in that legislation.Footnote 26 Instead of Regiam directly developing the 1318 legislation, it is more probable that Regiam and the 1318 legislation share a common source or, even, that the 1318 legislation was derived from the work which came to be known as Regiam maiestatem, rather than the other way around.Footnote 27
It will be outlined below that Regiam’s content and emphasis echo other changes to royal charter diplomatic occurring in the 1310s, thus creating a wider context for its compilation in the 1310s. As a result, the cumulative effect of the new evidence destabilising the post-1318 date is, happily, to locate the text more precisely in the reign of Robert I (1306–29). Indeed, in 1984, Alan Harding drew attention to how well Regiam broadly fitted Robert’s reign, seeing in it (although without any probative evidence) a desire to concoct ancient law which was probably located in Robert I’s own political insecurity.Footnote 28 Despite his later mythologised role as national hero ‘The Bruce’, Robert’s reign was extremely tumultuous, controversial and thus necessarily full of new ideas about Scottish kingship and government.Footnote 29 It began in a period when Scotland had been conquered by the English king, Edward I, in 1304–5. Robert was inaugurated king of Scotland in late March 1306, not as an obvious successor to the previous king John Balliol, but in an attempt to resurrect the very idea of an autonomous kingship of the Scots. This move was an even more audacious one since it was done less than two months after he had murdered his main political rival, John Comyn, in a church in Dumfries in February 1306. The early years of his reign were marked by warfare, exile and severe internal political divisions, and, although a famous military victory at Bannockburn in 1314 granted him some time and space to stabilise his rule, his government was extremely uncompromising and could be experienced as ambitious, radical and divisive. Chief among Robert’s innovative ideas was the formation of a joint-Bruce-kingship in Scotland and Ireland through his brother Edward Bruce’s invasion of Ireland and Edward’s proclamation as king of Ireland in 1314. In 1314, Robert’s government effectively made cross-border landholding illegal, enacting in a parliament held that year that anyone who refused to swear fealty to him for their lands against all others would be disinherited and treated as his enemy. The unrest around him continued to bubble until his kingship was finally recognised in 1328 (the year before he died). Until that point, he was repeatedly excommunicated; his kingship was not recognised by either the English kings or popes Clement V or John XXII; and, indeed, he had a rival for the Scottish kingship in the figure of Edward Balliol, son of the earlier king of Scots John (1292–1314, deposed 1296 but still recognised), with whom members of the Scottish nobility aimed to replace Robert in an assassination attempt now known as the Soules Conspiracy of 1320. Contextualising these undoubtedly tumultuous political circumstances, the power of Harding’s piece lay in its emphasis on law’s capacity to offer a salve to ease and cover much more profound political divisions. By attributing Regiam to David I, Robert’s own kingship was confirming the work of the great law-giving and, crucially, undisputed king of Scots.Footnote 30 Harding thus stressed that it was Regiam’s symbolic value which mattered far more than its procedural and legal content.
This was an important position because it at least directly confronted one of the, perhaps-surprising, problems which has long bedevilled Regiam: its content does not make very much sense, despite its later medieval parliamentary sanction.Footnote 31 As stated above, much of it is derived from Glanvill. In fact, from about a third of the way through, the text is essentially Glanvill verbatim, minus its writ formulae, until the last book, when Regiam becomes a miscellany of Scottish legal chapters, mostly witnessed in other sources.Footnote 32 Regiam’s reliance on Glanvill has caused historians many headaches because Regiam imports long sections on rules, jurisdictions and procedures, some of which were never part of Scots law or its judicial system. For example, Regiam contains Glanvill’s passage on the assize utrum, which determined whether land was alms or lay fee, despite utrum never having been adopted as Scots legal procedure.Footnote 33 Regiam preserves a reference to the King’s Bench – never a Scottish institution.Footnote 34 Regiam also contains long sections taken entirely verbatim from Glanvill on the writs of novel disseisin, mort d’ancestor and right, and it is unclear how far these were intended to mirror the procedure of their Scottish equivalents (dissasine, mortancestor, and right).Footnote 35 Susan Marshall has shown how misleading Regiam’s testimony banning inheritance by children born before their parents’ marriage was as a statement of Scots law. Regiam had adopted Glanvill’s view (which said pre-nuptial children could not inherit) despite Canon law later stipulating the opposite. Regiam’s testimony has been the basis for subsequent historical work which has argued that pre-nuptial children could not inherit in fourteenth-century Scotland, even though, as Marshall points out, there is no evidence save Regiam that they could not and, indeed, more evidence to show that the Canon law doctrine of legitimation per subsequens matrimonium did apply.Footnote 36 The authority of Regiam as an authority on fourteenth-century Scots law is therefore ambiguous because of the seemingly automatic dependence on Glanvill in its middle section. Indeed, the change in quality of work by the compiler of Regiam has led historians to argue that its compiler either lost interest in the task about a third of the way through (after the first thirteen chapters in book 2), and thereafter completed his job at a shoddy standard, or that a skilled compiler was ‘interrupted’ at his task and replaced by someone else who did not have the skill or knowledge to continue the work at the level of his predecessor.Footnote 37
There are thus many reasons why historians have been wary about tackling the content of Regiam. Combined with a complicated and changing manuscript tradition, and three editions which do not in any way represent this tradition effectively, Regiam’s position within Scottish legal and medieval history remains ambivalent and its content viewed as a minefield abandoned after generations of Anglo-Scottish political and legal conflict.Footnote 38 This essay reconsiders the original form, intended content and purpose of Regiam based not on any published edition of the work, but on the evidence offered by its two earliest surviving manuscripts which, unless other manuscripts are rediscovered, contain the only two witnesses to its earliest surviving form.
The Survival Context of Regiam maiestatem
Regiam survives in over thirty manuscripts as either a Latin or a Scots text.Footnote 39 The earliest manuscript dates from the later fourteenth century (c. 1389); manuscripts were still being produced in the last third of the sixteenth.Footnote 40 The Scots translations represent, on the whole, a later tradition that is first derived from and then responds to changes in the Latin text.Footnote 41 The earliest Scots manuscripts containing Regiam date from the third quarter of the fifteenth century at the earliest.Footnote 42 Not all Scots manuscripts are the same, suggesting that there was not a single ‘official’ translation made, but rather continually evolving ones which were responding to changes made to the Latin text over the fifteenth century.Footnote 43
Two points have to be made about the manuscript corpus as a whole. First, all the known surviving books containing texts of Regiam are consciously archaicising in their form and content. That is, they all contain texts of veteres leges – of old law. Even the earliest manuscript to survive, the so-called Bute manuscript, is a book containing works of law mostly attributed to a king, David I, who ruled almost three hundred years before the production of that particular codex.Footnote 44 But the Bute manuscript also contains works attributed to kings Mael Coluim mac Cinaeda (1005–34), William the Lion (1165–1214) and Alexander II (1214–49).Footnote 45 By the end of the fifteenth century, the self-consciously archaic nature of these books was proclaimed in a contents’ list which appears to have been understood as the ‘official’ order in which the works should appear.Footnote 46 Thus, throughout its later medieval life, Regiam was not only understood by external sources as ancient law, but also survives wholly within a manuscript tradition which explicitly identifies it as such. There is thus no firm evidence to suggest that, even when Regiam was originally circulated, it did so as anything other than as part of a broadly based tradition of ‘auld law’.Footnote 47
Second, despite the consistently archaic presentation of these books, the texts within them do change. As the fifteenth century progressed, the books become more ordered, and more likely to contain the same corpus of texts. More works were added, and all works within them, including Regiam, become longer; but not all these ‘additions’ were of new work, as certain texts which first appear as autonomous legal ‘works’ become incorporated into other, large tractates, within the same book, with the result that some texts appear two or three times, leading to several desperate declarations from scribes.Footnote 48 The increasing tendency to standardise the order of these ‘books of law’ seems to have been a response to central directives of the parliaments of James II and III which were concerned at certain points with the precise content of ancient law and aimed to create an authoritative ‘book of law’.Footnote 49
Consequently, it is not possible to examine these later fifteenth-century manuscript-texts of Regiam and treat them as though they represent Regiam as it was first compiled and, possibly, circulated. Regiam as it appears in these later manuscripts is connected with its contemporary context, first within a burgeoning interest in old law in the first half of the fifteenth century – particularly within the institutional Church, religious houses and the burghs, and also among magistri – then in centralised efforts to control the circulation of that ancient law and what authority certain texts had.Footnote 50 This is a particularly important point to grasp for Regiam, given that even the best of the four editions currently available (that by Thomas Thomson, published in 1844) is based predominantly on a mid-fifteenth-century manuscript of Regiam whose text of Regiam contains material resulting from an extension and revision which had already occurred.Footnote 51 Thus, in order to understand what Regiam originally intended to say, we have to look at its text only as preserved in its earliest surviving version, which is in only two manuscript witnesses, one from the last quarter of the fourteenth century, the other from the early fifteenth. One is the Bute manuscript (NLS, MS 21246); the other is known by its modern repository and shelfmark, BL Additional MS 18111.Footnote 52
The State of the Earliest Surviving Version and the Work of the Compiler
Full manuscript descriptions of both these manuscripts can be found elsewhere.Footnote 53 It suffices to say here that the Bute manuscript’s text of Regiam is dated palaeographically to the last quarter of the fourteenth century, and the manuscript itself probably does not long post-date 1389; the Additional manuscript’s text dates to the first quarter of the fifteenth century, and that manuscript may well have been produced at or commissioned by Dunfermline Abbey.Footnote 54 Despite the Additional manuscript being the later, it has been postulated by A. A. M. Duncan that it preserves a slightly earlier text, and, indeed, further work has only strengthened this conclusion.Footnote 55 The work by John Reuben Davies on the two manuscripts preserving the earliest-known version of Regiam maiestatem is demonstrating that both manuscripts preserve predominantly the same text, divided into four books. This quadripartite structure was, most probably, the work of the original compiler.Footnote 56 On occasion, there are notes or citations in the main text in Regiam which are expanded in notes and commentary in the margin in the Bute manuscript, but not the Additional manuscript.Footnote 57 Equally, there are some occasions when Bute highlights in the margin a Questio/Solucio structure to the text where it is not explicitly made in the main text, and it also makes marginal cross-references where none appear in the Additional manuscript.Footnote 58 Bute also contains two extra chapters on the end which are not present in the Additional manuscript’s text, and, of the two, only the Additional manuscript includes a clear explicit, stating that the work (called here the Constitutiones regie regni Scocie) has ended, saving the Constitutiones burgorum, suggesting that Regiam was conceived as part of the kingdom’s constitutions, rather than constituting their entirety.Footnote 59 The Additional manuscript also has a more fluid structure, with some chapters containing multiple rubricated sub-sections, many of which have hardened into separate chapters in the Bute manuscript. As a result, Duncan’s position is borne out by further work on the texts: although preserving in general the same version of the text, the Additional manuscript should be preferred over the Bute manuscript as representing the earliest-known text of Regiam, even if, on occasion, the Bute manuscript preserves better readings.
What, then, is the status of the text contained in both manuscripts? Do they confirm the consensus of current scholarship, that Regiam is divided into a polished first third and an unfinished and unpolished second two-thirds? What follows summarises extensive research into what can be discerned about the original compiler’s editorial techniques, to be set out fully in the introduction to the forthcoming edition of Regiam. Two points here are most relevant. First, these two manuscripts show that Regiam was originally conceived as a single work: it calls itself a ‘book’ and contains internal cross-references.Footnote 60 Second, it has been possible to identify five editorial techniques that appear throughout the book, to greater and lesser degrees.Footnote 61 All concern the compiler’s treatment of his sources, whether Glanvill, Goffredo’s Summa or the Scottish legal material. The techniques range from simple interventions in the compiler’s source material (removing almost all the writ formulae from Glanvill, for example), to slightly altering technical words or phrases to make them better fit the Scottish situation, to wholesale rewrites of passages within Glanvill.Footnote 62 These editorial interventions, particularly the smallest ones, appear consistently throughout Regiam: this suggests that Regiam does not contain, as is currently thought, a ‘finished’ section and an ‘unfinished’ section, nor does it constitute the work of two compilers, one diligent, the other lackadaisical; instead, it is unfinished all the way through, albeit to greater and lesser degrees. Regiam is most finished in the prologue and in book 1, as has long been acknowledged, but there are also relatively finished passages in book 2 and also, most interestingly, at the start of book 4, normally castigated as just a mishmash of Scottish legal chapters. In addition, there are passages in book 1 whose text has been subjected to minimal editorial intervention, and, conversely, even the long-ignored book 3 displays a degree of editorial intervention which is wholly consistent with the basic techniques identified in more heavily edited sections.Footnote 63 Thus the earliest manuscripts of Regiam reveal it to be originally unfinished all the way through: there was no replacement of one compiler by another. The interesting question is how and why this clearly unfinished work was then recopied and circulated as though it was a finished authority. This point will be returned to briefly at the end of this article.
But what is the significance of this conclusion? Two points about both his editorial work and his knowledge of the law are key to appreciating what the original compiler of Regiam was trying to do with his work. First, what he would have done with the figure of David I, the king to whom Regiam is attributed, had he finished his work, and second, why and how he relied so heavily on Glanvill. It is well known that he attributed the tractate to an unknown compiler working on the command of King David, who, as shown above, had a long-standing reputation as a law-maker and law-giver. Indeed, when Edward I set out the plans for governing his newly conquered kingdom in 1305, he equated the entire law of Scotland with the figure of King David, relegating all David’s successors to having simply provided additions and emendations.Footnote 64 Yet the position of David throughout Regiam is rather ambiguous because, perhaps surprisingly for a work which attributes its existence to his command, David rarely appears. This would not be so problematic had David only appeared in Regiam in the prologue: the laws of Hywel Dda, for example, do not refer explicitly to Hywel himself as a legislator; some manuscripts of Glanvill attribute the work to Henry II without Henry appearing in a similar role.Footnote 65 Yet, other than in the prologue, David appears in Regiam as a named legal actor twice, and there are further references to an unnamed ‘lord king’ enacting (statuit) various provisions.Footnote 66 This choice, therefore, marks a departure in Regiam from its main source, Glanvill.
In the context of a work containing over 32,000 words, these few references to David do not stand out; yet it is possible that David’s role as law-giver might have been more prominent had the compiler finished his work. As John Reuben Davies has pointed out, the two earliest surviving manuscripts of Regiam not only contain references to Roman and Canon law, but also to their major commentaries and glosses.Footnote 67 These cross-references are quite accurate, although not always perfectly preserved in the two manuscripts. Whoever made them was demonstrably learned in the most up-to-date thought on Canon and Civil law in the early fourteenth century: most of the references are to the Digest, the Institutes and the Canon law collections the Liber extra (1234), the Liber sextus (compiled on the command of Boniface VIII in 1298) and the ordinary gloss of the Liber extra by Bernardus Parmensis (d.1266).Footnote 68 No later manuscript contains these references in this form: they are edited out or expanded in the margins, or readmitted to the main text and discussed further.Footnote 69 What is particularly interesting is that all these references to Roman and Canon law in any manuscript of Regiam, early or late, have been removed from all print editions. This was, perhaps, not a particularly surprising action for post-Reformation editors to have taken. Yet, as a result, these editions of Regiam have confined the Roman and Canon law material in Regiam to the unattributed material from Goffredus’s Summa.Footnote 70 Examining this extra material across the manuscript tradition of Regiam is not the subject of this article; what is pertinent here is that not only were these citations probably part of the original work of the compiler himself but that, as will be shown below, they might also have been more elegantly incorporated into Regiam’s text, had the compiler finished his work.
There are two places in the main text of Regiam where David I’s name is explicitly invoked. The first is in book 1, where a lengthy text on warranty, originating, probably, after 1184 in the reign of William the Lion, has been edited slightly and ascribed wholly to the actions of David I.Footnote 71 The second is slightly more complex and more revealing of how the compiler might have treated the direct citations of Roman and Canon law texts had he finished. It also occurs in book 1, in a relatively heavily edited section on essoins (lawful excuses for non-appearance in court), based on Glanvill.Footnote 72 The passage starts with Glanvill, taking the problem outlined there of when plaintiffs or pursuers come into a vill, initiate their plea, but suddenly essoin themselves owing to illness.Footnote 73 The passage in Regiam is, however, concerned with a different problem to the one in Glanvill: Regiam was not, as Glanvill was, outlining what should happen if this occurred (essentially a procedural matter), it was questioning the legality of this happening in the first place.Footnote 74 It asks: ‘should such an essoin ever by law be received?’ Regiam then states that the problem was solved by a statute enacted by King David, which answered, yes, they were to be received, if such essoins were lawful in the first place.Footnote 75 The reason David gave was as follows: ‘since law is made for the common profit (communis utilitas) of both parties – both the pursuer and the tenant – it would indeed be a wickedness if the remedy of benefit was taken away, because the actor and the reus ought not to be judged unequally or for the detriment of one over the other’.Footnote 76 This last sentence, beginning quia actor, is first found as part of what became the ordinary gloss to the Liber sextus, a collection of papal decretals compiled by Pope Boniface VIII in 1298; the ordinary gloss was compiled by Giovanni d’Andrea in 1306.Footnote 77 Thus, if the ordinary gloss to the Liber sextus was being used here, it was not only incorporated into the compiler’s prose, its authority was also transposed from its canonical context and placed into the mouth of King David. What this might conceivably suggest is that the original compiler had intended to write these citations of Roman and Canon law into the prose of his text and, on occasion, even transform their authority into statutory pronouncements – one might even say, legislation – of King David I.Footnote 78 Had the compiler of Regiam finished his work, the figure of David I might have appeared much more frequently as a Gesetzgeber than he currently does in any known version of Regiam.Footnote 79
The Choice of Glanvill as Textual Authority
In this context, why was Glanvill chosen as the textual authority through which these aims could be communicated? Although there are long passages taken from Goffredo di Trani’s Summa, the structure of Regiam follows Glanvill: its prologue is based on Glanvill; it starts, like Glanvill, with a description of jurisdictions and pleas; and then, like Glanvill, it takes the reader through the process of making a plea – from summons and essoins, to the pleading of the case itself, to visnet and judgment, and so on. In this way, the underpinning structure, the literary model and, thus, the authority of Regiam is taken from Glanvill, not from any other legal work. This is important, as the compiler’s choice of Glanvill seems even more deliberate given his expertise in four kinds of law: Canon, Civil, English Common and Scottish Common. Why Glanvill was used is often the question which is first asked about Regiam before its content is ever analysed. The underlying issue, of course, is: surely Scottish law was not so similar to late twelfth-century English procedures on writ that Glanvill was the most appropriate choice of text?
The very formulation of this question reveals the basic assumption behind any treatment of Regiam: it is approached as a ‘legal transplant’, a borrowing from one legal system and implanting it into another, thus stimulating legal development in the recipient system.Footnote 80 While Regiam eventually had this effect, it is suggested here that the compiler of Regiam wanted to takeover and transform the authority of Glanvill, not its legal content per se. Although in the least finished sections, Glanvill’s prose is reproduced almost verbatim in Regiam (leading, as was noted above, to the inclusion of procedures and judicial fora which were never part of the Scottish legal system), the same is not true in what look like the most finished sections, mainly in books 1, the start of book 2 and book 4. Here, we can see that Glanvill’s prose often provided the skeletal structure of each chapter – its first sentence, or first few sentences, its last sentence, its area of concern – but, to follow through with the image, not the muscle, ligaments, tendons or organs.Footnote 81 As a result, it is helpful to see Regiam not as transplant but as translation, thus serving the same appropriative functions which Rita Copeland has identified for medieval interlingual translations of literary works from Latin into the vernacular.
On this subject, Copeland has written of medieval translation that ‘translation reinvents its source and appropriates it’.Footnote 82 She expands:
The aim of translation is to reinvent the source, so that … attention is focused on the active production of a new text … translation seeks to erase the cultural gap from which it emerges by contesting and displacing the source and substituting itself: it forges no synthetic links with its source.Footnote 83
To translate is therefore to appropriate and, potentially, to displace and to challenge. To forge ‘no synthetic link’ with its source raises the possibility that Regiam’s reliance on Glanvill might not be an obviously imitative act; it might instead have served a more disruptive function. How, then, might Regiam be functioning as a translation of Glanvill? As a Latin text, Regiam is not an interlingual translation. Rather, it should viewed as an intercontextual translation, that is, the ‘making legible’ of one text in another social, political or legal context.Footnote 84 Instead of ‘matching form and substance [of the original] in a different language’, as Copeland has written about interlingual translation, an inter-contextual translation matches the ‘form and substance’ of the source in a different context, here, a legal context.Footnote 85 This explains the compiler’s ultimate approach to Glanvill: to replace much of its precise procedure but retain the verbatim shell of the work as a whole. A ‘new text’, to use Copeland’s phrase, would have been produced, but one which retained the outward form of its source.Footnote 86 This method of working suggests that the aim of Regiam was not to transplant rule and procedure; it was to translate – and thus appropriate – Glanvill’s authority in a different context. It reinvented Glanvill while still constituting it.
But what authority did Glanvill have to offer? This question has baffled historians, who have thought that, by the early fourteenth century, Glanvill is the last work one would use: there were many other more up-to-date legal tractates written within the English judicial system, not only Bracton, but also Hengham Magna, which survives in multiple manuscript copies by the early fourteenth century.Footnote 87 However, this ignores the manuscript evidence of Glanvill and, of course, its very antiquity. Glanvill was old and it was outdated, but it was still known. Of the forty-one surviving manuscripts of Glanvill which survive from (perhaps) the late twelfth century to the first quarter of the fourteenth, over half (twenty-one) were put together in the last quarter of the thirteenth and beginning of the fourteenth. Glanvill was still popular.Footnote 88 Most of these manuscripts were in England, but we can surmise that Glanvill was circulating in Scotland too from as early as 1230, if not before, and influenced other legal compilations dating from the late thirteenth and early fourteenth centuries.Footnote 89 By ‘translating’ Glanvill, the compiler of Regiam was appropriating its status as a crucially old but still-foundational text of the English Common law to reinvent its authority to serve the law and legal procedure of the Scottish kingdom.
This reinvention was simple but would have been extremely effective, particularly had the compiler finished his work. It could also have unsettled Glanvill’s reputation. By invoking David I, the compiler of Regiam was not only invoking the authority of the king whose law was, by a conquering government, held to be equivalent in 1305 to the law of the entire kingdom, but a king of more ancient authority than the king whose name was associated with Glanvill, Henry II.Footnote 90 Regiam, if taken at face value, was the earlier work; Glanvill derived from it, not the other way around. It may have been in the compiler’s mind for someone to look at Glanvill and look at Regiam and ask which text was the legal authority? Which one was the foundational text of both legal systems? The fact that these were the very questions asked when the link between Glanvill and Regiam was rediscovered in the early seventeenth century might have amused the original compiler as much as irritated him that it took so long for anyone to ask the question that the compilation of Regiam may well have been originally designed to prompt. The choice of Glanvill as the structuring source for Regiam was probably far more strictly political than legal. In the context of early fourteenth-century Anglo-Scottish relations, the audacious aim of using Glanvill – as opposed to any other legal text – was to displace that text’s authority and relocate it in a Scottish context as a Davidian invention, a statement of the Scottish king’s legislative power and his position as the inventor of law. This proposition receives further evidential support from an analysis of the surviving content of Regiam, as witnessed by its two earliest manuscripts.
Maiestas in Regiam maiestatem
Can any theoretical ideas about authority be identified in Regiam? Concerns about its content as well as the absence of an authoritative edition have prevented this question from being asked of Regiam, and, in consequence, it is best to start from the beginning, which, in the case of Regiam, is its opening prologue. As is well known, both Regiam and Glanvill use the opening lines of Justinian’s Institutes for the opening of their prologue. In the Institutes, this is: ‘imperial majesty must not only be decorated with arms but also be armed with laws’.Footnote 91 In Glanvill, however, the text opens with the words regia potestas – royal power – and continues with the more verbose injunction that ‘royal power must not only be decorated with arms against the rebels and peoples who rise up against it and the kingdom but it is also fitting that it is decorated with laws to rule its subjects and peoples peacefully’.Footnote 92 The compiler of Regiam, however, changed Glanvill’s regia potestas half-back to the reading of the Institutes. Its opening words are, of course, regiam maiestatem, royal majesty. The injunction then follows Glanvill, sometimes returning tellingly to the prose of the Institutes: royal majesty must not only be ‘decorated with arms against the rebels who rise up against it and the kingdom but it is also fitting to be armed with laws for subject and peaceful peoples’.Footnote 93
Despite Regiam’s unfinished state, it is clear that the compiler intended for the maiestas of the Scottish king to be advanced throughout the work. It was not only in the prologue that the compiler substituted Glanvill’s words to emphasise royal maiestas. For example, in Glanvill, no one accused of homicide could be released on bail save ‘ex regie dispensationis beneficio’; this stipulation is repeated in Regiam but the exception is ‘nisi ex regie maiestatis beneficio’ – ‘save with the benefit of royal majesty’.Footnote 94 The king in Regiam was thus a king who exercised maiestas.
Maiestas is an odd word. Although transposed into English as ‘majesty’, its direct translation is ‘greaterness’. Its legal origins lie in Roman law, in the first-century BC Lex Julia on maiestas, where it was defined as any action which acted against the Roman people or their security.Footnote 95 Recorded in the Digest, Ulpian’s opinion was that the crime of offended or harmed maiestas was the crime closest to sacrilege, sacrilegium, because it so endangered authority and public order. By the early fourteenth century, maiestas was a key concept in political and juristic thought, and it was invoked to represent the authority of a ruler who had no temporal superior. It is sometimes asserted (if not interrogated) that, for most of the twelfth century, if anyone thought much about the issue at all, the emperor was the only secular ruler who exercised maiestas (then in Staufer hands).Footnote 96 This is, however, questionable, particularly if one looks outside juristic sources and towards visual, diplomatic and literary ones. Yet, as the thirteenth century progressed, the possession of maiestas became increasingly discussed, contested and politicised. Whom it could be applied to and with what justification needed to be made more explicit.Footnote 97 Did all kings have maiestas or was it only the Roman emperor? What constituted an offense against that maiestas, once demonstrated?Footnote 98 Could treason only be committed against a ruler who held maiestas?Footnote 99
Most of these discussions focused on the relationship between the kings of Sicily, the pope and the emperor because of their peculiar political relationships, or between the emperor and the king of France. In the 1280s, the preface and gloss to Frederick II’s Liber Augustalis by Marinus de Caramanico focused on the very right of kings – and particularly the kings of Sicily, the role in which Frederick had legislated – to make law.Footnote 100 Since Francesco Calasso published an edition of the preface, Marinus’s arguments have been given much attention, so it is unnecessary to repeat them here.Footnote 101 His basic point, however, was that there was no difference between the authority of a king and the authority of an emperor: even a king who was a vassal of the pope had the authority to make law as superior lord over the singula of his kingdom. For Marinus, kings, as much as emperors, deserved the name prince, exercised maiestas and thus could punish the crime of lesa maiestas for offences against their own maiestas.Footnote 102
Maiestas was used alongside a few other highly contestable and politically volatile legal terms, in particular princeps and superior.Footnote 103 Some jurists (particularly in France) argued that a ruler who exercised maiestas was a prince who ruled without any superior (although, as Kenneth Pennington has shown, even this was debated, even within France).Footnote 104 Others disagreed, like Marinus, and thought that some kings could be princes and exercise maiestas even though they had superior and direct lords according to feudal law. In a lovely parallel to the opening words of Regiam, Marinus even argued against those who made the rather facile point that it could only be the emperor who exercised maiestas because the opening words of the Institutes were ‘imperial majesty’ and not ‘royal majesty’.Footnote 105
These words – maiestas, superior, princeps – were thus part of a live juristic discussion that was erupting in the later thirteenth and early fourteenth centuries, even though this discussion is often written about as though it was only occurring in Italy, France and the Empire.Footnote 106 Yet the compiler of Regiam situated his work within this much broader conversation. This is obvious from its first few chapters. We already know that the king in Regiam exercised ‘royal maiestas’. In the prologue we learn that the ‘king’ in Regiam governs, his ‘rule committed to him by God’, and ‘has no superior save the Creator of heaven and earth himself, who governs all things, and the most holy mother, the Roman Church’.Footnote 107 In the prologue again, the compiler of Regiam emphasised the sceptre of the king as the rod of equity which crushed the ungovernable and overmighty and provided justice for the meek and humble – the sceptre being one of the six items of regalia which Marinus had argued signified the maiestas of a sacred ruler.Footnote 108 Moreover, the compiler made even more effort to present its king as a princeps, a prince. In a section based on Goffredus’s Summa, the compiler substituted Goffredus’s praetor for princeps uel balliuus suus.Footnote 109 The overall view of the compiler of Regiam on the status of the Scottish kingship is clear: the king was a prince, exercised maiestas and had no superior save God and the Church.
But would the participation of Regiam in this juristic discussion have been legible or understandable at all within an Anglo-Scottish political context? The letters exchanged between Alexander III and Edward I offer a rich avenue of enquiry for how the authority of the king of Scots was perceived by the English chancery and vice-versa, and how far the two perceptions matched up to one another.Footnote 110 The potential of letters to be a mine for political thinking is often dismissed by both political historians and legal historians: by the former because letters often explicitly say that the real message they were conveying would be delivered orally, and by the latter because the ideas expressed within them are often referred to in passing rather than developed. Only when dossiers of letters were explicitly composed as part of legal struggles are letters given real attention.Footnote 111 Yet letter writing was an ‘art’: manuals of dictamen survive which tried to educate individuals in the ars dictaminis to avoid causing offence to the other party and increasing the chances of a good outcome on behalf of the sender.Footnote 112 The most important part of a letter to get right was the order of a letter’s address, its salutatio, because that was the place where relative status was asserted. If an individual was writing to a person of higher status, the recipient’s name and title was put first; if the sender was of higher status, then his or her intitulatio was placed first.Footnote 113 If there was any doubt, then it was safer to put the recipient first: better to be humble than to immediately offend someone you were hoping to persuade by making an ill-advised claim of higher status.
The letters exchanged between Alexander III and Edward I leave no doubt as to relative status. Edward’s always put Alexander second, addressing him from first position in the letter, and calling him his dilectus frater and his fidelis, the language of family and service (dilectus et fidelis was the standard address to royal officials). By contrast, Alexander III’s capella regis did not assert the king’s status in his replies: they always addressed Edward as Alexander’s frater (the two were related by marriage) but, crucially, as his serenissmus princeps, his most serene prince, or magnificus princeps, magnificent prince.Footnote 114 Princeps was not a title used in any of Edward’s surviving letters to Alexander. This does not mean they were devoid of affection: Edward addressed Alexander as his karissimus frater, his dearest brother, in his letter of condolence sent on hearing of the death of Alexander III’s eldest son, Alexander, in 1284 (all three of Alexander’s children – as well as his own mother – had died within three years of each other).Footnote 115 Yet Edward’s letters were still soaked through with a language expressing juristic hierarchy. Indeed, it was not uncommon for Alexander’s letters in their conclusio to refer to Edward’s maiestas, and reassure him (often because the two kings were in conflict) that he and his men would do nothing that would harm Edward’s maiestas or, once, his regia maiestas.Footnote 116 Serenissimus princeps was also the formal title adopted by Edward during the Great Cause of 1291–2.Footnote 117 While contemporary political and legal thought thus provided the immediate contemporary context for the implications of a theory of Scottish royal maiestas to be understood, the correspondence between Edward I and Alexander III provided more local contextual power: these were concepts and ranks which the king of Scots had long been excluded from in his immediate dealings with the English king, and which Regiam was explicitly claiming.Footnote 118
Regiam was intended to be a treatise setting out the Scottish king’s maiestas, thus situating itself within the major political discussions of the day and resonating deeply with, but challenging, a longer-held hierarchy between the English and Scottish rulers. The aim was obviously to present the Scottish kingship as one without any superior, thus creating a legal argument for jurisdictional autonomy. It is probable that one of the intended audiences was the pope, then John XXII: Robert was a king without papal recognition and Regiam did, after all, stress in the prologue that the king had no superior ‘save God and the sacrosanct mother, the Roman Church’, an emphasis which Sir John Skene, writing in the generations after the Scottish Reformation, removed from his edition. In the summer of 1320, John XXII would be the recipient of the Declaration of Arbroath, an appeal by the Scottish communitas regni which used (partly) history to try to persuade the pope of the legitimacy and antiquity of the Scottish kingship and, more particularly, the right of Robert Bruce to hold it. Expecting the pope to issue a written confirmation of kingship was not unusual: in September 1319, John XXII was to use apostolic authority to ‘promote’ (literally) Duke Władysław as king of Poland, granting him a royal diadem.Footnote 119 But that Regiam was written with one eye on the papal curia did not mean it was originally intended only for an exterior purpose. Even in its unfinished form, Regiam’s aim of emphasising Scottish royal maiestas not only affected its presentation of the Scottish legal system but also highlights that there was an additional political discourse circulating in Scotland to the ‘community of the realm’ traditionally focused upon by historians.Footnote 120
Maiestas and Communitas: Parallel Legal Discourses
How did Regiam’s aims affect its content? First, Regiam contains the first formal reference to treason – lese-majesty – in Scotland. While the crimen lese maiestatis was referred to in the 1266 Treaty of Perth between Alexander III and Magnus VI of Norway, we have no explicit reference to treason legislation or law within Scotland before its appearance in Regiam, where it is listed at the beginning as the first plea belonging only to the Crown: the ‘crime of lese-majesty’ or ‘of harmed or offended maiestas’, that is, for the death of or sedicio against the king, kingdom or army.Footnote 121 Indeed, the opening sentence of Regiam highlights an underlying concern for internal order upheld by legitimate royal authority: whereas Glanvill follows the Institutes by saying that royal power must be decorated with arms against the ‘rebels and peoples’ (rebelles et gentes) who rise up against it, Regiam says that ‘royal majesty must be decorated with arms to act against rebels’, consciously avoiding the diluting effect of the gentes.Footnote 122
The stress on royal maiestas was not confined to Regiam. In the 1310s, the clerks of Robert I’s ‘chapel’, or chancery, were developing the position that the Scottish king exercised maiestas, offending which constituted a crime risking life, limb or disinheritance, and made reference to the king’s maiestas in his charters for the first time. Formulae mentioning the crime of offending the king’s maiestas started to appear in royal charters from 1310 onwards.Footnote 123 Some royal charters even set out a conception of princely authority mirroring that which is found in Regiam. An intriguing letter – which now only survives as an inspection of James I made in 1424, but which was originally drawn up in 1315 and confirms the possessions of Kinloss Abbey – unusually calls all Scottish kings princes: in this document, Robert was following in the footsteps of those ‘most serene princes’ (serenissimi principes), his predecessors, the kings of Scotland.Footnote 124 The charter then ends with the injunction that Kinloss Abbey should hold all their lands peacefully, on pain of the king’s full forfeiture and ‘offence of our royal majesty’. This is particularly interesting as it suggests an extremely wide and flexible definition of treason which included harming the property of a monastery under the king-prince’s protection. ‘Lese-majesty’ is also included in another legal compilation compiled in Robert’s reign, known as the Assizes of David I (not to be confused with Regiam).Footnote 125
Indeed, that Robert and his government were actually following through on their own idea of maiestas is shown not only in the parliament held at Scone in early December 1318 but also by the way they treated the so-called Soules Conspiracy in 1320, a plot to assassinate Robert himself.Footnote 126 The parliament held at Scone not only issued a series of rather influential legislation, but also recognised Robert’s nephew Robert Stewart as his heir (his brother and heir, Edward, had been killed earlier in the year, after having been proclaimed king of Ireland). In addition, Thomas Randolph was named guardian of the kingdom if Robert Stewart succeeded as a minor (in the event he succeeded over half a century later). Crucially, anyone who went against these provisions would be treated as ‘a traitor to the kingdom and guilty of the crime of lesa maiestas in perpetuity’ – a reference to maiestas otherwise absent in the 1318 legislation itself.Footnote 127
The so-called ‘Soules Conspiracy’ of 1320 showed that Robert and his government would be true to their legislative word. Although later chroniclers have the rather odd story that the coup was to raise to the kingship the relatively minor political actor, William de Soules, it has been convincingly argued that this conspiracy aimed at replacing Robert with Edward Balliol.Footnote 128 Edward was the son of the king of Scots, John Balliol (1292–6), who had substantial English backing and who indeed would be consecrated as a rival king of Scots to Robert’s young son, David, following Robert’s death and as externally sponsored civil war broke out again.Footnote 129 The charge against these conspirators was lesa maiestas, according to Gesta annalia II and Walter Bower.Footnote 130 Horrific executions are an accepted part of the political narrative of this period: a decade and a half earlier the body parts of William Wallace had been displayed in four towns (three Scottish, one English) following his conviction for treason and sacrilege, while Robert I’s younger brother, Niall, had been hanged, drawn and quartered at Berwick in 1306, to name but two high-profile mutilations.Footnote 131 Yet it is still worth pointing out that not only was the fate of the conspirators in the Soules Conspiracy unprecedented in a Scottish judicial forum (one unfortunate even sentenced to being hanged, drawn and quartered despite already being dead, and two others to be pulled apart by horses), so too was the very idea of a formal treason trial.Footnote 132 The formal legal category of treason, of lese-majesty, against the Scottish king should perhaps be seen as a picking up of the pace of Robert’s reign, with Regiam being an early manifestation of its more prominent conceptualisation.
A further way in which Regiam’s aim of stressing royal maiestas is developed is in its presentation of jurisdiction and courts. Regiam depicts jurisdiction, substantive law and procedure as being clearly hierarchical, bounded, co-dependent and, more importantly, completely royal. Regiam only describes procedure in royal courts, those of the justiciar and the sheriff. We see this hierarchical element clearly in Regiam’s presentation of the procedure to be followed in a case of rape, which is to be found in book 4: the victim has to show injuries first to the leading men of the vill, then to the sheriff, then to the justiciar.Footnote 133 In addition, Regiam also minimises non-royal secular jurisdiction. This is important because Scottish royal justice explicitly incorporated non-royal temporal jurisdiction to a much greater extent than its English counterpart, with certain individuals and institutions able to hear pleas of the Crown.Footnote 134 Not only does Regiam explicitly deny this jurisdictional fact, its compiler also describes such courts as curie private – private courts – to be contrasted with the res publica over which the law of the king ran.Footnote 135
What this suggests, therefore, is that the emphasis on the maiestas of the Scottish king may have quite significantly affected the presentation of Scottish law and its legal system within Regiam itself, had the compiler finished his work. The emphasis on royal maiestas could well have resulted in a presentation of the relationship between the king and the law in which the king was the sole source of law and the conduit by which other sources of law – particularly Roman and Canon – were upheld within his kingdom. All this suggests a rather different idea of kingship than is normally emphasised in scholarship of this period, where the political dominant idea examined has been that of the community of the realm.Footnote 136 This is a powerful narrative: after the death of Alexander III, the elite of the kingdom bound together as the communitas regni to guard it, first until its minor heiress came of age and, then, against English aggression. The new and controversial king, Robert, had then to align himself with this notion, for, in addition to being a member of the aristocracy himself, the communitas regni was the basis of his own legitimate authority.Footnote 137 In this way, the communitas regni became a historical witness to the idea of a Scottish political nation.Footnote 138 But Regiam allows us to identify an alternative and not-necessarily-conflicting strain of thought around royal maiestas: a conception of singular legal authority residing in the king alone which could have been just as influential as communitas in our understanding of political thought during this period, had Regiam been finished and circulated. Indeed, the compiler of Regiam himself seems to have shied away from developing the idea that legal authority resided in the communitas as opposed to the maiestas of the prince, for he removed the sections of Glanvill’s prologue which mentioned counsel and consent from its counterpart in Regiam.Footnote 139 The word communitas appears only once in Regiam, in one of its least-edited sections.Footnote 140
Conclusion
Notwithstanding the moths and worms of Skene’s ‘old books’, there is merit in trying to understand what Regiam maiestatem actually says, and what that might mean. Regiam is unfinished in its earliest surviving manuscripts and was probably originally an unfinished work. Questions must now be asked of how, why and when this unfinished work was transformed (probably by making a fair copy) and circulated as though it was finished. It will be argued elsewhere that, although it is impossible to prove, Regiam was resurrected during the second rule of David II, who issued quite extensive and wide-ranging pieces of legislation in the 1360s, and whose reign seems to have witnessed the ‘rewriting’ of the kingdom’s ‘auld law’, through the composition of works such as Leges Malcolmi Mackenneth, Ordo justiciarie and, probably, the legal compilations attributed to William the Lion (1165–1214) and Alexander II (1214–49).Footnote 141 Regardless of immediate origin, however, Regiam had obtained the status of an authoritative source of law by 1426 and, in the fifteenth century, was circulated and revised as the kingdom’s ‘auld law’, thus ushering in centuries of confusion about why a lawbook which did not make much sense as a guide to the early Scottish Common law could have achieved such authoritative status.
Yet, moving aside centuries of textual accretion, we can still see the original conception of Regiam as a work of political legal theory by a well-ordered, knowledgeable and intellectually creative mind of the early fourteenth century. Much like the reason why Regiam was circulated in its unfinished state, the identity of the compiler of Regiam will never be known definitively. Whoever he was, he was closely connected with promoting the legitimacy of Robert’s kingship, knew Canon, Civil and Common law, was informed of the latest commentaries, and was probably acquainted with the major controversies over legal authority and jurisdictional boundaries which were coursing through France, the Empire and Sicily in this very period. Given that context, it is tempting to see the compiler as the university-educated Robert Wishart, bishop of Glasgow (1273–1316), auditor and defender of the Bruce claim in the Great Cause, stalwart supporter of Robert’s incipient and controversial kingship in 1306, and captive of the English from 1308 to 1315, when he was released, blind (although this is according to John Barbour in his vernacular epic, The Brus, produced in the 1370s) but still politically active, and returned to Scotland.Footnote 142 The possibility that Robert was the compiler of Regiam is suggested by his university education, the presence of Roman law terminology in some charters closely associated with his episcopate and the fact that he spent some of his captivity at the papal curia (and seemingly witnessed at least the early stages of the conflict between Robert of Naples and Henry VII play out, a conflict which in part raised the question of each ruler’s maiestas).Footnote 143 Wishart’s death on 26 November 1316 might also provide an explanation of why Regiam was left unfinished: if Robert were the compiler, he might have been mid-way through his work when he died.
Robert Wishart’s authorship will never be proven and remains only a likelihood or a possibility. What can be said is that the aim of Regiam’s compiler was to show, through a variety of techniques – hidden intertextual citation, intercontextual translation and explicit statement – and a variety of legal authorities that the king in his kingdom had no superior other than God and the Church, and certainly not, by implication, the king of England. This intention behind Regiam reveals not only that a polity on the ‘periphery’ of Europe was as engaged in debates about authority as any jurist in Paris or Naples, but also highlights how far our understanding of political thinking during the thirteenth and fourteenth centuries is still framed by the big political crises and intellectual centres of the ‘core’ areas of Europe. Regiam instead reveals how widely embedded this legal language was, both geographically and, also through letters and more ephemeral sources, in political communication.
Finally, Regiam reveals an alternative conceptualisation of the Scottish king’s political authority which centred around his regia maiestas, and only a long-standing but perhaps uncritical focus on the idea of ‘the community of the realm of Scotland’ has prevented the identification of this strain of thought in Robert’s kingship, as much as the fact that Regiam was unfinished. Indeed, that Regiam may have intended to create a new – or at least different – legal underpinning for Scottish kingship is suggested not only by its innovative content but also by its presentation of royal jurisdiction as the only legitimate temporal forum. But Regiam was not finished, the aims and ambitions of its compiler were abandoned and what survives of it retains only the foundations of its original design, buried beneath a mass of Glanvill unadapted to its intended field of application. In 1681, Viscount Stair wrote in his Institutions of the Law of Scotland that Regiam, because of its heavy dependence on Glanvill, was ‘no part’ of Scots law.Footnote 144 Stair might have been surprised to learn that a historian writing nearly three-hundred-and-fifty years later now suspects that, could the original compiler of Regiam have seen what is now recognised as Regiam maiestatem, he might well have agreed with the Viscount’s damning judgment.
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