Charter Diplomatic and Governmental Development: Possibilities, Problems and Pathways
Feature Article 4: Alice Taylor
One of the main aims of Models of Authority is to show how the study of charter diplomatic can aid our understanding of the emergence of more centralised governmental structures in the twelfth and thirteenth centuries. This is explained in Dauvit Broun's recent Feature of the Month. But what is charter diplomatic and how can it do this?
Put at its simplest, charter diplomatic is the formal language of charters. This language ranges from individual word-choice, to small sets of words arranged in a regular and repeatable way (a 'formula'), to larger groups of words unified by their content and purpose so as to be defined as a coherent and formal part of a charter's content (a 'clause'). One of the ways a charter could show itself to be authentic was to look and, if read out, sound like other charters. All original charters, as the text database in Models of Authority reveals, will have, at least, an address clause, a dispositive clause and a testing clause (a witness list) if not more. Charters, if they had similar functions to each other, often had similar clauses and, within the clauses, similar phrasing. It is, after all, not only the clauses which are similar, the precise phrasing and choice of words can also be similar.
This is particularly the case when one is dealing with royal charters and it was in the interests of those who were writing royal charters to make them so. When charter diplomatic becomes more formal and stable, deviations from these diplomatic norms become extremely noteworthy. Indeed, this is one of the aims of Models of Authority (MoA): to show the extent of formality and stability in the diplomatic of royal charters of the twelfth century and those of the first half of the thirteenth and suggest explanations for any deviation from these potential norms. But stability and repetition was an end in itself. Because the content of charters often had legal consequences (for inheritance, for disputes over land and privileges), similar—if not identical—phrasing was useful, indeed, important, if the content of the charter was to retain force in the future. Just as handwriting was imitative and imitable, as Tessa Webber points out in the the next Feature of the Month, so too were the conventions of charter diplomatic.
How, then, can charter diplomatic be used to study the development of royal government and why is it important that we do so for medieval Scotland? Essentially, charters constitute our most numerous surviving source for understanding this subject. We have legal codes, but these survive either in later thirteenth- or fourteenth-century compilations. We also have chronicles but these give us information about governmental form only sporadically. To take one example, which will be addressed in a forthcoming feature of the month, royal 'justices' were introduced in the reign of David I (either in or around 1140), working mainly south of the Firth of Forth. By the 1220s, these 'justices' had developed into regional justiciars: there was one justiciar responsible for Scotia (denoting Scotland north of the Firth of Forth), and another for Lothian. But the first time a major chronicle source written in Scotland during this period refers to a justiciar was in 1249, when the title was used to describe Alan Durward, an important (and controversial) member of Alexander III's minority government. The first time the surviving corpus of law mentions 'justices' is in 1184, in a statute of William the Lion, king of Scots (1165–1214), which was enacted at Perth. If we went by the evidence of Scottish chronicles alone, we would have to start our story of the justiciar over 100 years after a royal judicial officer first appears in the diplomatic of royal charters. If we went by the evidence of law, the situation is slightly better; we would only have lost around 44 years of administrative development.
Royal charters, by contrast, survive from 1094, and form a continuous corpus of evidence with which to work throughout the period covered by Models of Authority. Changes in the diplomatic of these charters, therefore, may be indicative of wider administrative, governmental and legal expectations, and are worthy of examination in that context. But there are, of course, problems and pitfalls with using charter diplomatic in this way. The most obvious is that not all charters come down to us as authentic originals. Some only survive in (much) later copies, most commonly in books of (mostly) charters, known as 'cartularies' from the Latin cartularium or chartularium. As many of the words in charters were abbreviated and contracted, later copyists could have chosen to expand those words according to their own diplomatic conventions and governmental worldview. This is a particular danger when dealing not with whole clauses but with single words, or short phrases and formulae, which constitute charter diplomatic as much as whole clauses do.
A good example of this danger is, again, the justice. Twelfth-century charters make it clear that the Latin word behind this official was iusticia ('justice'), as can be seen in this charter of William the Lion, issued for Melrose Abbey in 1173x77, which Richard Cumin is given the title of Iusticia, which is unabbreviated and uncontracted. Iusticia, however, was often contracted as iust' or iustic'. William's Melrose Abbey charter in fact survives in two copies, and, in the second copy, Richard Cumin's title is rendered as iust'.
Later scribes, however, who knew the 'justice', not as the justice but as the 'justiciar', could expand this contraction as iusticiarius. The first royal charter to describe the 'justice' as a iusticiarius (and which also survives as an original) was not drawn up until 21 July 1222, during the reign of Alexander II.
It is not uncommon, therefore, to find references to iusticiarii—'justiciars'—in twelfth-century charters which survive only in cartulary copies; scribes would have naturally expanded iust' or iustic' as iusticiarius. However, what lies behind these twelfth-century 'justiciars' may, in fact, be the Latin iusticia. The issue can get even more complex. Later scribes and copyists knew not only 'justiciars' (rather than 'justices'), but justiciars of Scotland (Scotia), Lothian (Laodonia) and of Galloway (Galwidia). A seventeenth-century summary of a later twelfth-century charter made by Sir James Balfour, adds Scotiae to iusticiarius (H1/6/249), thus describing Earl Donnchad, who died in 1204, who had served as a justice since the early 1170s, as 'justiciar of Scotland', which is a title that no twelfth-century charter scribe bestowed upon him.
In this way, later copies can be misleading, and the practice of abbreviation and contraction means that we have to be sure that what we are seeing is a common enough feature of charter diplomatic, and witnessed in a number of different documents surviving in different archives for it to be viewed as a general trend. If this practice is adhered to, charter diplomatic can become an extremely rich source of evidence for governmental development.
A Case Study: Potestas, Ballia, Vicecomitatus and the development of the sheriffdom.
The sheriff (Latin: vicecomes) has long been understood to be a local administrative official, introduced as part of Scottish royal governance during the reign of David I (1124–53). Scottish sheriffs were denoted by the same Latin word as their English counterparts, and have long been thought to have similar responsibilities (put simply: collecting revenue, royal expenditure, defence obligations, and presiding over the court of their county in England or sheriffdom in the kingdom of the Scots). But when and where these responsibilities developed is much more difficult to pin down. Did sheriffs hold courts in the reign of David I or was that something which only became standard and routine during the long reign of William the Lion? The evidence from legal texts prefers the reign of William the Lion. The first time a surviving statute mentions the existence of shrieval courts was in 1184. We learn here that sheriffs were expected to hold their courts every forty days, and that barons, knights and free men, as well as the stewards of bishops, abbots and earls, were expected to attend them.
Examination of charter diplomatic allows us to say a lot more. First, we can examine the address clause. The address clause is the part of the charter that allows us to identify who or what was the intended audience of the document. This could be as simple as 'to all the worthy men of [the king's] land', or more complex, addressing a group of individuals and commanding them to do something (for an example, see this brieve of Mael Coluim IV). If a 'charter' was addressed to an individual, or a group of individuals, or a court or institution, and contained a command, then it is more correct to call that document a 'brieve' from the Latin breve, meaning 'short document', rather than a charter. (In England, these breves are called 'writs'.)
Charters generally were notificatory rather than mandatory in function; this is the simplest way of distinguishing a 'brieve' from a 'charter' (although, rather confusingly, charters are also a catch all term for all these sorts of documents). There are, nevertheless, cross-overs between these two categories—which are in any case imposed by modern scholarship as a way of being clearer on their function and purpose. If, for example, a notificatory charter was issued but was addressed to a group of individuals or a particular forum, then that document is called a 'brieve-charter' in modern scholarship, a term coined to denote its deliverable address (making it more like a brieve) but its notificatory content (making it more like a charter).
The term 'brieve-charter' is adopted from English historiography, in particular the work of Richard Sharpe, who has pioneered the study of writ-charters. In an article published in 2005, Sharpe drew attention to the fact that many surviving original Anglo-Norman charters (understood in the technical sense) were addressed to county court(s), headed by the local bishop and sheriff. These, he called writ-charters to denote their hybrid form and, because most of them were addressed to individual or multiple shire courts, they were, in fact, good sources of information for the workings and functionings of the shire court, in particular as a forum in which information could be bestowed with ease from the king to the broader locality, until, that is, the shire address slipped out of charter conventions in the 1170s.
The importance of the shire court in the address clauses of Anglo-Norman royal writ-charters raises the question of whether the sheriffdom has an equally prominent place in the address clauses of Scottish brieves and brieve-charters? As the earliest sheriff appears in the charter record in the 1120s, our search must begin with the extant charters of David I (1124–53).
The surviving brieves and brieve-charters of David I address only six sheriffdoms: Perth, Berwick, Edinburgh, Stirling, Linlithgow, and Roxburgh. Only Perth was situated within Scotland (Scotia), the area which, as Dauvit Broun has emphasised in his recent Feature of the Month, lay north of the Firth of Forth, east of the mountain range known as Druim Alban, and south and east of the River Spey. Addressable sheriffdoms, in the surviving charters of David I, therefore, lay predominantly south of the Firth of Forth, outside of Scotland. Moreover, all of these sheriffdoms were referred to by different Latin descriptors: Berwick and Perth were both called a vicecomitatus, Linlithgow, Edinburgh and Stirling were called a scira - a 'shire', and Roxburgh was denoted by a provincia or, in the reign of William the Lion, a comitatus. The diplomatic of Anglo-Norman royal charters was different: the administrative unit of the shire (or county) and its court were, invariably, denoted by the word comitatus, which perhaps reflects the earlier responsibilities earls (and, before them, ealdormen) had at shire level, as the most common Latin word used for 'earl' was comes. It is clear that sheriffdoms were what was meant in these Scottish address clauses: they first address the relevant sheriff, and then the sheriffdom, and the majority of these lay south of the Forth, outside Scotia. Only in the charters of the reign of David I's grandson and successor, Mael Coluim IV (1153–65), do sheriffs start appearing north of the Firth of Forth outside Perth.
Did these early sheriffs hold courts as their counterparts did in England? A brieve of Mael Coluim IV, datable to 1162x65, reveals that, in the 1160s, sheriffs south of the Forth could, but sheriffs north of the Forth couldn't. This brieve survives only in an antiquarian transcript, recently discovered by Nicholas Vincent and edited by G.W.S. Barrow, but we shall see that its diplomatic choices are repeated in other documents. The brieve recorded that Mael Coluim IV had given his peace to the servants of Guisborough Priory who came into his kingdom to recover their stolen goods. If these possessions were found in Lothian and Teviotdale, both regions south of the Firth of Forth, the sheriff of the particular provincia (i.e. the sheriffdom) would do justice. If, however, the goods were found in Scotia—Scotland—north of the Firth of Forth, then the goods should be taken to the king's regional justices, who were operating mostly south of the Firth of Forth in the 1160s. What this brieve tells us, therefore, is that sheriffs outside of Scotia had jurisdictional power and could do 'justice' whereas sheriffs in Scotia, in the 1160s, could not. It might be thought, of course, that because Guisborough Priory was in Yorkshire, Mael Coluim allowed justice to be done at a more local level in the area of his kingdom closer to the northern English beneficiary. But this would be erroneous. The key point is that these different levels of shrieval power were denoted by different words: the choice of provincia for sheriffs south of the Firth of Forth reflected their capacity to hold courts; the choice of potestas for shrieval authority north of the Firth of Forth reflected the absence of that capacity. The change in diplomatic language was representative of a larger administrative difference, in which local officials in different parts of the kingdom had differing levels of responsibility.
Moreover, the shrieval potestas exercised by sheriffs north of the Forth had become part of charter diplomatic during the reign of Mael Coluim IV. A brieve of Mael Coluim IV, datable to 1161x64, recorded the king's command that 'sheriffs and servants of his whole land in whose power (potestates)' St Andrews Cathedral Priory held land ensure that teind (Scots for 'tithe') be paid lawfully to that institution. Potestas did not have a formal territorial element; a community which made up shrieval potestas never appears in the diplomatic of surviving address clauses to Scottish brieve-charters. The use of potestas to denote shrieval authority north of the Firth of Forth was continued by the scribes of William the Lion's charters. A brieve of William the Lion, drawn up in 1172, informed all sheriffs and servants that they were again to ensure that teind be paid lawfully, this time in the bishopric of Moray; if there were defaulters, then the 'sheriff in whose potestas' the wrongdoer dwelt would compel him to pay and take a fine from him. Potestas gave sheriffs enforcing authority but, in this context, did not denote the capacity to hold a court.
When, then, did sheriffs north of the Firth of Forth start routinely holding courts? As mentioned above, the statute of William the Lion, enacted in 1184, informs us that sheriffs should hold their courts every forty days. No formal exception appears to have been allowed; all sheriffs appear to have been expected to do this. This statute is, however, accompanied by yet another change in charter diplomatic; the potestas of the sheriff was replaced by the ballia of a sheriff. Brieves and brieve-charters which had previously referred to the vicecomes in cuius potestate now started referring to the vicecomes in cuius ballia - 'the sheriff in whose sheriffdom'. The change was not complete, of course; those individual sheriffdoms which had long been called a vicecomitatus, or a scira, could still be called such. But, when a charter of Alexander II, issued for the bishops of Moray in 1238, referred to the lands within the sheriffdoms which had been given to the bishopric, the word they used for sheriffdom was ballia.
These slight and subtle changes in the diplomatic of royal charters have allowed a fuller narrative of the development of the sheriffdom to be written. We can see more clearly that north and south of the Firth of Forth experienced administrative change according to different chronologies. Sheriffdoms were predominantly introduced south of the Firth of Forth. It was these sheriffs too who were first expected to hold courts; only from the 1180s did it become a standard expectation that sheriffs south and north of the Firth of Forth, in Scotland as in Moray, in Lothian as in Scotland, would hold courts. This did not mean that charter diplomatic became wholly standard; it does, however, mean that there are more overall patterns in the diplomatic of royal charters—more repetition, more standardisation—that was reflective of the developing local administrative institutions of royal government in the kingdom of the Scots in the later twelfth century. It is these sorts of narratives that examining charter diplomatic can help to uncover.
A future feature of the month will show the fruits of combining this sort of diplomatic analysis with palaeography.
 The earliest is Leges Scocie, which survives in a manuscript datable to 1267x72. It is a compilation of 21 chapters and the latest datable chapter is LS, c.19, which can be dated to 1210; see Alice Taylor, 'Leges Scocie and the lawcodes of David I, William the Lion and Alexander II', Scottish Historical Review 88 (2009), 207–88. For the early fourteenth-century compilation attributed to David I (1124–53), see Alice Taylor, 'The Assizes of David I, king of Scots, 1124–53', Scottish Historical Review 91 (2012), 197–234.
 This summarises some of the points in my book, Alice Taylor, The Shape of the State in Medieval Scotland, 1124–1290 (Oxford, 2016), chapter 4. The reference to Alan Durward is found in Gesta Annalia I, where the title anyway is rendered in a rather peculiar fashion: 'totius tunc Scotie justiciarius'—'then justiciar of all Scotland'. My thanks to Dauvit Broun for this reference. This particular part of Gesta Annalia I is found in Joannis de Fordun Chronica Gentis Scotorum, ed. W. F. Skene (Edinburgh, 1871), 293. The 1184 statute is chapter 14 of Leges Scocie, edited in Taylor, 'Leges Scocie', 270–1.
 Joanna Tucker, the project's PhD's student, is examining Scotland's earliest cartularies for her doctorate, entitled 'Documentary Culture in Thirteenth-Century Scotland: the physical context of cartularies'.
 The content of what follows summarises and simplifies (for the sake of clarity) the arguments and evidence presented in Taylor, Shape of the State, chapter 4.
 See Regesta Regum Scotorum Volume II: the Acts of William I, 1165–1214 (Edinburgh, 1971), 42–3; Hector L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh, 1993), 49.
 Richard Sharpe, 'Address and Delivery in Anglo-Norman Royal Charters', in Marie Therese Flanagan and Judith A. Green (ed.), Charters and Charter Scholarship in Britain and Ireland (Basingstoke: Palgrave Macmillan, 2005), 32–52 ISBN 9780230523050
 Philip M. Dunshea, 'Druim Alban, Dorsum Britanniae—'the Spine of Britain'', Scottish Historical Review, vol. 92 (2013), 275–89.
 Leges Scocie, c.14.Share on Twitter Share on Facebook