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“A Strange Archaic Provision of Mercy”: The Procedural Rules for the Duellum under the Law of Clann Duib

Document Cited authorities 1 Cited in Related
Vincent
Pages418-450
AuthorA D M Forte
Published date01 September 2010
Date01 September 2010
DOI10.3366/elr.2010.0304
INTRODUCTION

In the “cold and dark mornings of winter 1868-69”, as he described them, Cosmo Nelson Innes delivered a series of lectures in the Advocates Library in Edinburgh.1

Subsequently published as C Innes, Lectures on Scotch Legal Antiquities (1872). For a brief biography of Innes, see W W Wroth, rev H C G Matthew, “Innes, Cosmo Nelson”, in H C G Matthew and B Harrison (eds), Oxford Dictionary of National Biography (2004).

In the third lecture he touched upon “Celtic Institutions” and criticised the practice then fashionable among scholars of drawing a “marked line of distinction between the Celtic and Teutonic peoples and their customs”.2

Innes, Lectures 97-98.

 Innes’ thesis was that “Celtic institutions … [largely] resembled those of … other northern nations”. But, pleading absence of written sources, he did not enlarge upon the point and concluded that all that the Celtic inhabitants of Scotland had bequeathed to posterity were “circle[s] of grey stones on the heath”. Yet his speculation, that “[i]t would be curious if it should turn out that those monuments, which our antiquaries of last century named Druids’ circles, were places where the old Celtic people met for … legislation [and] for judgment-giving”, has proved to be correct, for there is an association between some of these circles and the holding of both popular and more formal courts in early medieval Scotland.3

G W S Barrow, “Popular courts in early medieval Scotland: some suggested place-name evidence” (1981) 25 Scottish Studies 1; G W S Barrow, “Popular courts in early medieval Scotland: some suggested place-name evidence – additional note” (1983) 27 Scottish Studies 67-68.

Much more of course is known about Celtic Scotland today, and, even though the sources are not nearly as abundant as in Ireland for the period 600-1000 AD, we are still considerably better informed about law in the medieval Gàidhealtachd than was the case when Innes wrote.4

A sample of the contributions to the study of law in the Gaelic-speaking parts of Scotland in the medieval period includes: J Cameron, Celtic Law: The “Senchus Mór” and “The Book of Aicil”, and the Traces of an Early Gaelic System of Law in Scotland (1937); W C Dickinson, “The Toschederach” (1941) 53 JR 85; G W S Barrow, The Kingdom of the Scots (2003) 57-67; W D H Sellar, “Marriage, divorce and concubinage in Gaelic Scotland” (1981) 51 Transactions of the Gaelic Society of Inverness 464; W D H Sellar, “Celtic law and Scots law: survival and integration” (1989) 29 Scottish Studies 1; H L MacQueen, “The Laws of Galloway: a preliminary survey”, in R D Oram and G P Stell (eds), Galloway: Land and Lordship (1991) 131; H L MacQueen, “The Kin of Kennedy: ‘kenkynnol’ and the common law”, in A Grant and K J Stringer (eds), Medieval Scotland: Crown, Lordship and Community (1993) 274; A D M Forte, “‘Ane horss turd’? Sir John Skene of Curriehill – a Gaelic-speaking lawyer in the courts of James VI?” (2007) 23 Scottish Gaelic Studies 21.

Nonetheless, Innes’ view – that drawing sharp, ethnological, boundaries may not always be appropriate when considering law in early medieval Scotland – remains thought-provoking and has helped inform this paper, which offers an interpretation of a Scottish text on the conduct of the duellum (duel). The paper is confined to the Gàidhealtachd and so does not examine Cumbric-speaking Strathclyde. Furthermore, it is primarily concerned with the application of the law in the late eleventh and twelfth centuries, and not in its fourteenth- and fifteenth-century manifestations when it had altered in its essential character; though some reference to this phase is unavoidable. What follows, then, is essentially a comparative historical study of a problematic subject in a problematic text in the Scottish record set against the background of similar difficulties associated with some early Irish law tracts and the Icelandic sagas. Used collectively but carefully these accounts of the duellum may better inform our understanding of this particular mode of dispute resolution THE LAW OF CLAN MACDUFF

The fulcrum of this paper is a passage in a text which Innes and Thomson could not allocate to a precise date or reign and so consigned to that part of the first volume of the Acts of the Parliaments of Scotland designated “Fragmenta Collecta”.5

T Thomson and C Innes (eds), The Acts of the Parliaments of Scotland (1814-1875) (henceforth APS) vol I, 746 c 26.

The text deals with the duellum and identifies three circumstances in which such combat should not be fought to a fatal conclusion

Sciendum est quod in tribus casibus potest duellum remitti et relaxari scilicet quando aliquis fornicatur seu adulteratur cum vxore vicini sui de ipso duellum habere potest si nagauerit factum. Et illud duellum sic potest remitti scilicet quando fixerint lanceas suas potest calumniatus concedere delictum et ly enach et facere pacem. Item per legem de Clanmakduff pro morte progeniei scilicet si progenies alterius partis venire poterit in platea inter probatorem et lanceam suam. Item in casu sanguinis extracti subtus anhelitum quando fixerint lanceas suas potest defensor concedere sanguinem et ly enach et facere pacem. Et in nullo alio casu.

 Sir John Skene (c 1540-1617) ascribed this “statute” to the reign of William (1165-1214) and translated it as follows:6

“The statutes of King William made at Perth” fol 7r (chap 27 “For Qvhat Cavses Battell may be remitted”), in Sir John Skene of Curriehill, Regiam Majestatem. The Avld Lawes and Constitutions of Scotland, faithfvllie collected fvrth of the Register, and other avld authentick bukes, fra the dayes of King Malcolme the second, vntill the time of King James the first, of gude memorie (Edinburgh, 1609).

In three cases battell may be remitted and relaxed: that is, quhen anie man commits fornication, or adulterie with his neighbours wife : he may be compelled to fecht. Bot that battell may be swa remitted : that is, quhen they haue sticken downe their speres; the defender may grant the fault, & swa mak peace.

2. Item, be the Law of clanmak-duff, anent the slauchter of mak-duffes progenie (and kindsmen) gif anie of the progenie of the ane partie may come vpon the hie way (quhere the battell is) betwix the prover (appeller) and his spere.

3. Item, gif blude be drawen (in anie part of the bodie) vnder the end (or mouth) quhen they haue fixed their speres : the defender may confesse the fault; and grant to amend it, and swa mak peace. And in na other case.

Interesting though the other provisions are, this paper is only concerned with exploring the meaning and significance of the second of these exceptions, i.e. the one specifically ascribed to the Law of Clan Macduff. George Neilson's only comment on this exception was both despairing and defeatist:7

G Neilson, Trial by Combat from Before the Middle Ages to 1819 AD (1890) 121. Neilson's prognostications on the study of medieval Scots law tended to the gloomy as witnessed by his comment on Regiam Majestatem that “Thick Cimmerian darkness girds the Regiam round … its date, its object, its history lie in … primeval doubt”: see G Neilson, “The study of early law” (1891) 3 JR 12 at 17.

[B]y the strange law of Clan Macduff, a duel for the death of a clansman might be stayed if a fellow clansman of either combatant could pass between the accuser and his spear – a strange archaic provision of mercy, the origin of which it is hopeless to seek.

 It is true that this text presents problems both as to its origins and, if we are prepared to accept it as a rule of law, as to its interpretation. But it is certainly not a text which defies further comment.8

D M Walker, A Legal History of Scotland vol 1 (1988) 289 is content to accept Neilson's view of the provision.

 This paper begins by posing and discussing three questions. First, what was the “strange” Law of Clan Macduff? Secondly, should we accept this particular instance of its application as historically credible? And thirdly, how should the text itself be interpreted? THE LAW OF <italic>CLANN DUIB</italic> – A CELTIC LEGAL REGIME?

The Law of Clann Duib is referred to in fourteenth- and fifteenth-century Scottish sources as the Law of Clan Macduff.9

The use of clann here to denote a Gaelic kindred in the 11th and 12th centuries is attested by references in the 12th-century Gaelic Notitiae in the Book of Deer to Clann Chanann and Clann Morgainn: see K Jackson, The Gaelic Notes in the Book of Deer (1972) 21, 22; R Ó Maolalaigh, “The Property Records: diplomatic edition including accents”, in K Forsyth (ed), Studies on the Book of Deer (2008) 119 at 124. However, my reference to a particular kindred as Clann Duib requires a more detailed explanation. So far as I am aware, there is no attested use of the name Clann Duib in the period considered by this paper. Clan Macduff, on the other hand, is referred to in several 14th- and 15th-century records and in the Latin text on the duellum. I have nonetheless chosen to refer to the Macduff kindred in the 11th and 12th centuries as Clann Duib since at this time Gaelic was the majority language in Scotland and, just as an individual Macdonald belonged to Clann Domnaill, so too an individual Macduff would have regarded himself (and been so regarded by other Gaels) as a member of Clann Duib. “Clan Macduff” represents a surname, and reflects a Lowland usage which placed greater emphasis on this form than on the forename of an eponymous ancestor Dub whose kindred were Clann Duib. I draw support for my contention from the following: J Bannerman, “The Scots language and the kin-based society”, in D S Thomson (ed), Gaelic and Scots in Harmony: Proceedings of the Second International Conference on the Languages of Scotland (1990) 1 at 5; J Bannerman, “The king's poet and the inauguration of Alexander III” (1989) 68 Scottish Historical Review 120; J Bannerman, “MacDuff of Fife”, in A Grant and K J Stringer (eds), Medieval Scotland: Crown, Lordship and...

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