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

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.¹1

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).

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.⁴4

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.

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”.⁵5

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

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:⁷7

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.

The Law of Clann Duib is referred to in fourteenth- and fifteenth-century Scottish sources as the Law of Clan Macduff.⁹9

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...