Conclusion

In a ground-breaking study that explored the construction of national identities in the Middle Ages the late Rees Davies drew attention to the existence of a plurality of conceptual frontiers within the British Isles. Each represented a space where the ‘political cultures, values and processes’ of an indigenous Gaelic population confronted those of English and European aristocrats.1 The boundaries limning these frontiers, he showed, were at times hotly contested, but everywhere they changed over the course of the three centuries after 1050 as a consequence of close contact between these peoples. The story of that interaction, the telling of which earned Davies widespread admiration, was one of accommodation and acculturation, of the establishment of a successful and productive modus vivendi.2 Davies was quick, none the less, to liken the cultural divide that distinguished natives and newcomers to a shifting tide rather than a yawning gulf. The aptness of the metaphor is readily apparent in the history of the Gaelic language over the duration of the ‘Anglo-Norman era’ and its immediate aftermath. In 1050 the Gaelicspeaking population vastly outnumbered that of the incoming settlers, but already by 1250 lords like Malise II earl of Strathearn, Maoldomhnaich earl of Lennox and Duncan earl of Carrick had all been forced to acquire competence in the language of a royal court now dominated by noblemen of English, French and Flemish descent. By 1400, moreover, the Inglis of lowland Scotland had so thoroughly triumphed over the Gàedil of the highlands that the chronicler John of Fordun could refer to the spoken word as the trait that most obviously distinguished the civility and peacefulness of the former region from the barbarity and rudeness of the latter.3 Yet, as the work of Davies and several other scholars has demonstrated, the process by which Inglis displaced Gaelic was by and large peaceful.4

The several chapters in this book have revealed much about other contexts in which Gaels and Europeans in Scotland first ventured into each other’s conceptual frontiers and the means by which they effected a shift in the boundary lines of each other’s worlds. Some of the encounters saw contest and conflict: long after the erection of new lordships in Moray, for example, noblemen loyal to the Mac Malcolm rulers had to deal with the efforts of a displaced and deeply disgruntled aristocracy reluctant to surrender its

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authority in the region.5 Likewise, settlers in the south-west competed for authority, often bitterly, with the descendants of the once dominant native dynasty of Feargus of Galloway.6 Moray and Galloway, however, were exceptional. In most other regions of the kingdom, and in virtually all encounters in which the issues at stake were something other than territory and the exercise of power, relations between Gaels and Europeans were less antagonistic and the process of transculturation more fruitful. In 1150 the cultural touchstones of the Anglo-Norman aristocrat Walter FitzAlan were manifestly unlike those that animated the activities of his near neighbour, Maol Iosa of Strathearn .7 As the studies above have shown, however, close interaction between their descendants effaced many of those differences. In the generations that followed the deaths of Walter and Maol Iosa, each of the ethnic groups they represented found in the customs, mores and practices of the other much to attract it, so that by 1400 the aristocratic culture of Scotland owed as much to its Gaelic as it did to its European antecedents.

The pace at which this process of hybridisation took place varied according to circumstances, although the ‘tides’ sometimes shifted discernibly under the impetus of one or the other culture. Thus, the adoption of written instruments as the normal medium for preserving the memory of acts of conveyance occurred almost everywhere in the kingdom after 1150 when European norms associated with record keeping prevailed over the native preference for entrusting the memory of deeds done and actions taken to oral recitations and eye-witness recollections. As Chapter 3 has shown, the spread of the concomitant practice of authenticating documents with waxen seals was more measured in part because, initially at least, the idea of reducing complex notions of kindred and lineage to a two-dimensional medium failed to capture the imagination of Gaelic landholders. That said, by the mid-fourteenth century men and women of consequence throughout the kingdom had come to regard the probative value of seals as virtually unassailable. In a discussion of valid proofs, for example, the text of a midfourteenth century assize recalled the liability that had befallen Malise V of Strathearn in the 1330s, when he had foolishly left his seal in the possession of a treacherous follower: the earl lost title to his patrimony.8 A decade later, by contrast, when he was led off to captivity in England, William Bisset took care to entrust his seal to his mother, who subsequently used it to authenticate agreements on behalf of her son.9

As yet another of the chapters in this book has demonstrated, deeply rooted views about personal status among the native population survived relatively unscathed the establishment of a new aristocracy on Scottish soil in the late twelfth and the thirteenth centuries. Legal unfreedom persisted in large part because the incomers found a place within the structure of the

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English-style manorial economy they brought with them for a class of men and women to whom Gaelic custom had historically denied rights at law. So, too, were they willing (if not always happy) to accommodate the social aspirations of men of local consequence described in Chapter 5 as ‘promoted natives’.10 By the turn of the fourteenth century, and more certainly as a consequence of the shock that war with England wrought on the kingdom after 1296, many of the linguistic, cultural and political reference points that had once distinguished natives from newcomers were fast becoming obsolete. As Chapter 4 has argued, the single-mindedness that drove both Malise II of Strathearn and his son-in-law Nicholas de Graham to protect title to their estates at all costs was a shared appreciation of the close link between land and family that transcended each man’s ethnic background. In a different way, the study of friendship offered in Chapter 6 reveals that Scottish understandings of amicitia were informed by both Gaelic and European notions of affinity, affection and alliance.

Perhaps nowhere was the boundary between the customs of the native Gaels and those of the settlers at once more resilient and more porous than in the realm of law. Nowhere, more certainly, is the ebb and flow of competing ideas and traditions that characterised the years between 1150 and 1400 more compellingly illustrated. In the first part of this period incoming aristocrats confronted a legal system that was in most respects alien to that which they had known in England or the continent, a body of law redolent of precepts and practices that they must have considered at least outdated and at worst barbaric. In 1150, for example, the beheading of hand-having thieves and the resolution of disputes by recourse to judicial combat were fast becoming vestigial in all but the most remote reaches of England, but they were still – and they remained – deeply entrenched in Scottish procedure.11 In the fourteenth century scribes trained in the most up-to-date chancery practices of England and Europe still struggled to cope with terms such as ranscauth, haymhald and the ‘law of Clan MacDuff’ and the special rules that they prescribed in Scottish courts of law, including payment in kine rather than coin.12 Two centuries later, finally, James VI’s legal expert Sir John Skene thought it timely to draft a handbook that identified and explained such arcana to his professional brethren.13 Still again, the many customs and practices associated with the feud and its pacification – letters of slains and remission, assythment, judicial exile – must have struck incoming aristocrats as challenging obstacles to the style of lordly governance for which the vigorous legal reforms of Angevin-era England had prepared them. None the less they adopted them readily enough, just as they did the wide-ranging powers of mediation and arbitration with which these conventions endowed them within their territories.

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And yet, as Frederic Maitland long ago opined (and the work of his commentators has since confirmed) there was much in twelfth-century Scotland that the settlers found familiar, and a host of conditions that made it possible for them to shape the law to their advantage.14 The most fundamental, but also the most important, of these was the social, political and economic status that all magnates associated with the possession of land, and the power over men and women that it placed in the hands of aristocratic landholders. As Chapter 1 has shown, after 1150 baronial courts quickly became principal venues for the exercise of lordship the length and breadth of Scotland, much like the assemblies of the mormaers of old had been before the reign of David I. The cohesion of native Gaelic communities offered a ready-made medium through which to give expression to the English institution of the visnet, and juries composed of the probi homines drawn from the locality were everywhere rapidly put to work conducting inquests into matters as varied as confirming the age of a dead man’s heir, assessing property for the purpose of warrandice and determining the guilt or innocence of an accused felon.15 As Chapter 2 has argued, the cooperation of native and newcomer was crucial to the all-important business of estate creation: simply put, the carving out of new holdings would not have proceeded as smoothly as it did if the newcomers had not been prepared to give the indigenous Gaels a voice in the restructuring of the rural landscape.

Historians have long acknowledged the debt that the common law of later medieval Scotland owed its English antecedents. The best of recent scholarship acknowledges the extent to which Scottish litigants rejected English practice where this threatened to dislocate too starkly conditions that obtained on the ground. Thus, while William I no doubt ‘borrowed shamelessly’ from his contemporary Henry II when he formulated some of his assizes,16 neither he nor his royal successors were willing to reject Gaelic customs out of hand in ‘slavish’ deference to English sophistication.17 The process of hybridisation that in the years between 1150 and 1400 transformed the aristocracy of Scotland, the laws by which they governed and the kind of lordship that they exercised over people were the consequence of a rich reciprocal exchange between the cultures of the Gàidhealtachd and Europe in which each of the components was instrumental.

Notes

1.R. R. Davies, The First English Empire: Power and Identities in the British Isles,

1093–1343 (Oxford, 2000), p. 92.

2.R. R. Davies, Domination and Conquest: The Experience of Ireland, Scotland and Wales, 1100–1300 (Cambridge, 1990), p. 62. Other scholars have since taken up

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use of the term: see, for example, D. Broun, ‘Anglo-French acculturation and the Irish element in Scottish identity’, in B. Smith (ed.), Britain and Ireland, 900–1300: Insular Responses to Medieval European Change (Cambridge, 1999),

p.152; D. Broun, ‘Gaelic literacy in eastern Scotland between 1124 and 1249’, in H. Pryce (ed.), Literacy in Medieval Celtic Societies (Cambridge, 1998), pp. 185, 198.

3.Chron. Fordun, i, p. 38.

4.G. W. S. Barrow, ‘The lost Gàidhealtachd of medieval Scotland’, in G. W. S. Barrow, Scotland and its Neighbours in the Middle Ages (London, 1992), pp.

105–26; Broun, ‘Gaelic literacy’, pp. 183–201; D. D. Murison, ‘Linguistic relationships in medieval Scotland’, in G. W. S. Barrow (ed.), The Scottish Tradition: Essays in Honour of Ronald Gordon Cant (Edinburgh, 1974), pp. 71–83; H. L. MacQueen, ‘Linguistic communities in medieval Scots law’, in C. W. Brooks and M. Lobban (eds), Communities and Courts in Britain, 1150–1900 (London, 1997), pp. 13–23.

5.See here B. E. Crawford, ‘The earldom of Caithness and the kingdom of Scotland, 1150–1266’, in K. J. Stringer (ed.), Essays on the Nobility of Medieval Scotland (Edinburgh, 1985), pp. 25–43 and R. D. Oram, ‘David I and the Scottish conquest and colonisation of Moray’, Northern Scotland, 19 (1999),

pp.1–19.

6.K. J. Stringer, ‘Periphery and core in thirteenth-century Scotland: Alan, son of Roland, lord of Galloway and constable of Scotland’, in A. Grant and K. J. Stringer (eds), Medieval Scotland: Crown, Lordship and Community – Essays presented to G. W. S. Barrow (Edinburgh, 1993), pp. 82–113; K. J. Stringer, ‘Acts of lordship: the records of the lords of Galloway to 1234’, in T. Brotherstone and D. Ditchburn (eds), Freedom and Authority: Scotland c. 1050–c. 1650: Historical and Historiographical Essays presented to Grant G. Simpson (East Linton, 2000),

pp.203–34; R. Oram, The Lordship of Galloway (Edinburgh, 2000); R. Oram, ‘Fergus, Galloway and the Scots’, in R. D. Oram and G. Stell (eds), Galloway: Land and Lordship (Edinburgh, 1991), pp. 117–30; R. D. Oram, ‘A family business?: colonization and settlement in twelfthand thirteenth-century Galloway’, Scottish Historical Review, 72 (1993), pp. 111–45.

7.For FitzAlan, see G. W. S. Barrow, The Kingdom of the Scots: Government, Church and Society from the Eleventh to the Fourteenth Century, 2nd edn (Edinburgh, 2003), p. 314; for Strathearn, see C. J. Neville, Native Lordship in Medieval Scotland: The Earldoms of Strathearn and Lennox, c. 1140–1365

(Dublin, 2005), pp. 14, 17–19.

8.APS, i, p. 736; C. J. Neville, ‘The political allegiance of the earls of Strathearn during the war of independence’, Scottish Historical Review, 65 (1986), pp. 143–51.

9.Dunfermline Reg., nos. 382, 383.

10.See above, p. 157.

11.C. J. Neville, Violence, Custom and Law: The Anglo-Scottish Border Lands in the Later Middle Ages (Edinburgh, 1998), p. 7; Wigtownshire Chrs, p. xxviii;

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Glasgow Reg., i, no. 110; Melrose Liber, nos. 175, 325; ‘Miscellaneous monastic charters’, ed. D. E. Easson, Scottish History Society Miscellany, vol. VIII

(Edinburgh, 1951), pp. 809; J. Raine, The History and Antiquities of North Durham (London, 1852), App., nos. 397, 398; Exch. Rolls, i, pp. 4, 17, 442; BL, Add MS 24703, fos. 28v–29r.

12.RMS, ii, no. 187; Barrow, The Scottish Tradition: Essays in Honour of Ronald Gordon Cant, p. 125; Exch. Rolls, i, p. 436; Quoniam Attachiamenta, ed. T. D. Fergus (Edinburgh, 1996), pp. 135, 207; Inchaffray Chrs, App. to Preface, no. 34; J. Bannerman, J., ‘MacDuff of Fife’, in A. Grant and K. J.

Stringer (eds), Medieval Scotland: Crown, Lordship and Community – Essays presented to G. W. S. Barrow (Edinburgh, 1993), p. 38. For some examples of fines, forfeitures, amercements and reparations paid in kine, see

Historiae Dunelmensis scriptores tres: Gaufridus de Coldingham, Robertus de Graystanes, et Willelmus de Chambre, ed. J. Raine (Durham, 1839), i, App., pp. lv–lvi; Exch. Rolls, i, pp. 5, 6, 8, 17, 19–20, 49–50, 154; Aberdeen-Banff Collections, p. 523; Documents Illustrative of the History of Scotland from the Death of King Alexander the Third to the Accession of Robert Bruce, ed. J. Stevenson, 2 vols (Edinburgh, 1870), i, p. 408; CDS, v, no. 366.

13.J. Skene, De significatione verborum (Edinburgh, 1597).

14.F. Pollock and F. W. Maitland, The History of English Law Before the Time of Edward I, 2 vols, 2nd edn (Cambridge, 1968), i, p. 222; G. W. S. Barrow, The Anglo-Norman Era in Scottish History (Oxford, 1980), p. 164; J. Hudson, ‘Legal aspects of charter diplomatic in the twelfth century: a comparative approach’, Anglo-Norman Studies, 25 (2003), p. 132. More generally, see H. L. MacQueen,

Common Law and Feudal Society in Medieval Scotland (Edinburgh, 1993).

15.For some examples of each, see NAS, RH 2/2/13, no. 10a, RH 5/45, RH 5/29; Highland Papers, ed. J. R. N. MacPhail, 4 vols (Edinburgh, 1914–34), ii, pp. 125–9; Arbroath Liber, i, no. 231.

16.Davies, First English Empire, p. 160.

17.H. L. MacQueen, ‘Tears of a legal historian: Scottish feudalism and the ius commune’, Juridical Review, New Series (no vol.) (2003), p. 13.

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