British Legal History Conference 2013

  • Thomas Green (Speaker)

Activity: Participating in or organising an event typesParticipation in conference


On 8 February 1563/4, the Commissaries of Edinburgh were appointed by Mary, Queen of Scots, to hear all actions which used to be discussed in the spiritual courts of the Catholic Church in Scotland. The Commissaries of Edinburgh enjoyed a national jurisdiction in all consistorial actions, which concerned questions relating to marriage, divorce and legitimacy. The Commissaries' early decisions in effect created Scots consistorial law from a range of legal sources, and questions concerning the authority of these sources within Scotland highlight several of the complex issues concerning the consistorial jurisdiction in Reformation Scotland. A consideration of the consistorial decisions of the Commissaries of Edinburgh demonstrates that they continued to draw upon the sources of the Ius Commune, whilst incorporating various aspects of the early consistorial law of the Church of Scotland. So whilst litigants and their procurators continued to cite Roman and Canon law before the Commissaries, it was also relevant to cite the 'law of God' as interpreted by early kirk sessions and superintendents' courts, which 'law of God' was often based upon Levitical law. On the one hand the continued use of Canon law raises questions about the legality of the abrogation of papal authority in Scotland by act of the Reformation Parliament of August 1560, which act was not ratified by a lawfully summoned Parliament until December 1567. On the other hand, the extent to which the consistorial law of the Church of Scotland was accepted into the law of the Commissaries of Edinburgh raises questions about the authority of the 'law of God', particularly during Mary's personal reign, when the Catholic Church was not fully disestablished, nor the Church of Scotland fully established. This picture is further complicated by various Acts passed by Parliaments held after the appointment of the Commissaries, which sought to declare what various aspects of consistorial law had become by virtue of the start of the Reformation, which was variously dated to March 1558/1559 and August 1560. Yet whilst some aspects of the 'law of God' were declared to be the law of Scotland by parliamentary statute, other aspects of the consistorial law of the Church of Scotland had already been accepted or rejected by the Commissaries, without any guidance from Parliament. This paper considers the various complex relations between the Commissaries of Edinburgh, the Ius Commune, the laws of the early Church of Scotland, and the authority of Parliament, which went into making early Scots consistorial law.
PeriodJul 2013
Event typeConference
LocationGlasgow, United KingdomShow on map