[p. 143] Protocol Books and Towns in Medieval Scotland
One day in 1472 the Stirling notary public, James Darow, was called to the sickbed of Andrew Symsoun. There he drew up a notarial instrument, recording that
Andrew Symsoun, exercised in his heart that despite his infirmities and the decrepitude of his age and his urgent need and burden of debt, he was in no way helped by his eldest son, James, an ingrate
granted a property rental to his second son Walter instead. Two weeks later the notary was back at the sickbed to record that “Andrew Symsoun, finding himself defrauded by his second son, revokes the original grant and assigns it once again to his eldest son, James”1.
This incident was recorded by the notary in his protocol book, a book registering summaries of the notarial instruments which the notary’s clients asked him to draw up. Scottish protocol books, of which the earliest dates from 1469, are a rich source of information for the social historian, and, because many notaries were based in towns, for urban historians in particular. Because of the poor survival of many other types of town records, the protocol books, which often record the transactions of other urban institutions, also provide information for the researcher interested in the diplomatic of medieval towns.
The position of notary developed from Roman law. Common in Italy, especially in the northern Italian towns, from the eleventh century, the office spread throughout much of Europe in the following centuries with the influence of Roman law and the growth of the church’s legal activities2. Scottish notaries are first recorded in the late thirteenth century, about the [p. 144] same time as they begin to appear in the Low Countries and England3. The extent to which notaries became part of local urban government varied. In Italy, notaries were closely connected with the early communes and notarial guilds were common in northern Italian cities by the thirteenth century4. Urban notaries seem never to have been very prominent in England ; no urban protocol books survive and the few registers of notaries which are extant are from ecclesiastical courts5. In the Netherlands, it has been argued, there was little support for what was seen as an Italian institution in competition with local aldermen and diocesan officials6. A recent study of notaries in Bruges has suggested that many were largely concerned with ecclesiastical affairs7.
In Scotland, the notary was accepted as a useful official from the fourteenth century onwards, especially as notarial instruments of sasine took on an increasingly important role in the conveyance of property. Earlier proof of the delivery of sasine had depended on the memory of the court but it was increasingly found that the best system was to have a notary present to draw up an instrument recording the delivery of sasine8. In 1477 an entry in a notary’s protocol book showed this transition from memory to written record when it recorded that a man had been given possession of his father’s land 20 years previously but that “the sasine after such a great time was not in men’s recent memory” and therefore he requested he be infeft again, with this time an instrument to record the transaction9. Increasingly the instrument of sasine became the main proof of rightful possession of land. In this, Scotland was perhaps closer to Italian than northern European practice ; in Flanders and [p. 145] England there was greater reluctance to accept the replacement of the seal as an authenticating mark by the notary’s sign and identification paragraph10. In Scotland the notarial instrument of sasine remained effective until the mid-nineteenth century11.
The later fifteenth century in Scotland saw the beginning of a professionalisation of the law, and notaries were an important branch of the new legal profession12. By the sixteenth century their work was considered so important to the smooth functioning of society that acts of Parliament and the church were passed in order to regulate them. An Act of 1567, echoing earlier Italian legislation, required that protocol books of deceased notaries in burghs be handed over to the town magistrates for safe keeping13. As a result, many protocol books were preserved in town archives, where they could be and were consulted after the notary’s death. In Italy and later medieval France, the protocols of a dead notary could be examined by another notary and created as a public document14. A similar practice existed in Scotland ; in a court case in 1477 a protocol book of a dead notary was produced to prove the authenticity of an instrument of 1442, and then a new instrument was drawn up15. The protocol books served as authentic records of property conveyances until the establishment of the Register of Sasines in the seventeenth century.
Many notaries learned their craft by apprenticeship with other notaries16, sometimes their fathers. As in Italy, families of notaries were quite common17. The growth of burgh grammar schools also helped provide [p. 146] training for laymen, who needed to know Latin in order to draw up notarial instruments. Despite the growing use of the vernacular in town documents, notarial instruments continued to be written in Latin, perhaps in order to endow them with greater authority. Other notaries received education in canon and civil law, at first on the Continent, and then, with the foundation of Scottish universities in the fifteenth century, also in their own country18. Some entered the church, but others took minor orders at most, as many of them married. Some may have had clerical status but married secretly19. As married men, notaries were firmly part of the secular burgh society in which they lived.
Until 1469 notaries were appointed by either papal (apostolic) or imperial authority. Both pope and emperor could delegate the power of appointment ; indeed, the earliest record of a notary in Scotland comes in 1288 when Nicholas IV granted the bishop of Dunkeld power to appoint one notary in his diocese. The emperor could similarly delegate power to a Count Palatine. There are no records of the creation of notaries by bishops or nobles on Scotland, although it seems likely that many Scottish notaries were constituted in this way20. Several notaries claimed their authority to be both imperial and apostolic, giving them jurisdiction in both church and secular courts. In 1469 the Scottish crown moved to take control of the admission of all secular notaries ; from this time on imperial notaries were forbidden to practice unless they were approved by the king, and new notaries could be appointed only by papal or royal authority21. This action can be seen in the context both of the strengthening of royal authority in Scotland and as part of increasing royal interference in town affairs22. Perhaps as a result of this closer supervision of notaries, it is from 1469 that protocol books begin to survive. Most of these are from notaries living and practising in Scottish towns, from smaller communities such as Haddington and Selkirk to the largest such as Aberdeen, Edinburgh, Perth and Dundee. Several of these have been printed by the Scottish Record Society ; many others can be found in the [p. 147] Scottish Record Office or in local town archives23.
The extensive training of notaries equipped them to provide many legal services as well as producing records of property transactions. It was common for notaries to act as witnesses, serve as procurators or advisers for people in court, give legal advice in drawing up marriage contracts, and spend time in royal service. Several served as the common clerks of their towns or in other capacities on the town government24. James Young, a notary from the Canongate beside Edinburgh, may have been the first common clerk of the Canongate25. As products of the humanist education of the time, they also contributed to the culture of their day. Walter Chepman, an Edinburgh notary, helped set up the first printing business in Scotland in Edinburgh in 1508. Other notaries compiled literary collections such as the Asloan Manuscript, or wrote poetry which often reflected urban life26.
Possibly because notaries performed so many functions, there do not appear to have been “official” town notaries with specific duties. Instead individual notaries might be formally appointed as town clerks for certain periods of time, or they might represent the town on different occasions in legal disputes. It is difficult to determine if such town service raised a notary’s reputation among prospective customers ; it is possible that clients might seek such a man’s legal expertise to represent them at court rather than to draw up routine documents. The most prominent Edinburgh notary of the early sixteenth century, Adam Otterburn, seems to have spent more time acting for the town and various individuals in the courts of the realm than in writing notarial instruments, although this impression may be due to the poor survival of his protocol book which is only extant for five years27. In smaller towns, there might be only one notary and so no choice ; in Edinburgh, however, there were at least fourteen and probably more in practise in the early [p. 148] sixteenth century28. Such a number in a town of under 12,000 people compares well with estimates for later medieval Bruges29.
Until recently the full richness of the protocol books has not really been recognised by social or urban historians, although a recent essay on documentary sources for the Scottish medieval town does point out their potential30. They have tended to be the preserve of legal historians or students of Scottish central government. They have been perceived as mainly records of property transactions. However, closer inspection shows them to be rich sources of evidence, casting light on everything from marriage to personal relationships, material conditions of life, inheritance, crime, trade and many other aspects of daily life. Because so many notaries were based in towns, a large proportion of their clients were townspeople, and thus the books are a rich source of the realities of urban life.
What sorts of things can historians learn from these books ? There is a rich variety, but I will focus on five areas, property, law, economic matters, family concerns and personal affairs. Examples will be drawn from a range of protocol books from towns across Scotland 1469-1540.
Not surprisingly, property transactions are the largest category of instruments. Families often used the same notary for many different land transactions and so although the original property deeds have long vanished, the history of individual urban properties and family landholdings can be traced over time. Because most urban wealth was invested in land, the protocol books were a crucial record of the property of the urban elite. Using this evidence, historians can begin to build up a picture of land use at various periods. Reconstruction of the urban townscape is, however, a slow process, rather like trying to complete a jigsaw without all the pieces31.
Many property records give some description of the buildings involved. Almost no medieval domestic buildings survive in Scottish towns so these records are the only evidence for the shape of buildings above the [p. 149] foundations uncovered by archaeologists. For example an Edinburgh property in 1489 contained a hall, a room, a kitchen, a room in the south end of the mansion, with four cellars and a vault under the hall, rooms and kitchen. Rather more intriguing, although unfortunately not described, is a Stirling property which was called Paradis32.
Detailed descriptions are especially useful in towns such as Edinburgh which by this period was experiencing rapid population growth on a congested site. The solution was to subdivide the original burgages, first by constructing more buildings on one property, and then through expansion upwards. By the sixteenth century Edinburgh was known for its tall flatted buildings, each of which might be subdivided between several families. The protocol books allow historians to trace this process, as they describe the sale of properties consisting of for example one wing of a house, or the lower cellars, or the upper rooms. They also show the complexity of subdivision, as someone might purchase a property including one whole floor, an upper room on another floor and a cellar. It was important for these divisions to be noted so that when a property owner died, his heirs only claimed their fair share of the property.
At a more basic level, some documents also show arrangements for sanitation, something which presumably increasingly occupied the inhabitants’ minds as the numbers living in one property increased. Overcrowding could result in conflicts over the direction of drains and gutters ; the problems which might be caused by a latrine situated over a front entrance as described in one protocol entry for the town of Ayr can be imagined33. In Edinburgh, such conflicts often ended up in the Dean of Guild court which dealt with issues of “good neighbourhood”34, but some protocols show attempts by towndwellers to anticipate problems by agreements over sewage disposal at the time of a property transaction35.
The protocol books show the wide range of uses of land by townspeople. The most common way to raise capital was to grant land for a certain period, with the profits for that time going to the creditor as a form of unofficial interest. Even more common was the practice of assigning parts of the rents paid by tenants as payment to a creditor or others. These payments or annual rents became a form of property themselves and could be sold. [p. 150] They could also be used for spiritual purposes. One of the most common ways to endow a chaplain to say masses for one’s soul was to grant him annual rents from a particular property, as did John Corsby of Dumfries36 ; historians can get a detailed picture of the practices of late medieval popular piety in the towns from the records of such. In this way the protocol book could be of service to the church.
Another useful aspect of the protocol books is the light they cast on the Scottish legal system and how it functioned. They also show how the courts and laws were used by people. Again this is particularly useful in the urban context because it was common for many of the different types of courts to be held in urban centres. Thus the tolbooth (townhouse) could be the site of local town courts, sheriff courts, church courts, justiciary courts or even the central courts of the king’s council. This was especially the case in Edinburgh which by the late fifteenth century was becoming the permanent site of the central institutions of Scottish government. Notaries were often asked to record the decisions of these courts37, and thus the protocol books provide glimpses of the workings of courts whose own records have not survived.
One of the greatest losses has been the records of the Scottish medieval church courts, of which very little survives before the Reformation. However, the people recorded in the protocol books often took their cases before the church courts and the way in which they made use of these courts sometimes survives. Mariota Nesbitt, daughter of a burgess of Ayr made an agreement with John Kennedy in the court of the official of Glasgow in 1529 ; this was recorded by the notary in 1529 when she promised to relieve her uncle who had stood with her in the agreement38.
Perhaps of most interest to urban historians is the working of the town courts. Medieval town court records have not survived in great number. However, use of the protocol books can supplement these records. Moreover, the town usually appointed a notary as its common clerk, and so some of the actions in which the town itself was involved were recorded in his protocol book. Mr. Adam Otterburn who served as common clerk of Edinburgh for many years was a notary public. In his book can be seen the protracted disputes between Edinburgh burgesses and the merchants of its port of Leith and disputes between the town and various noble factions during the troubled [p. 151] minority of the king James V in the early sixteenth century39. Other notaries also record town affairs, for example disputes between merchant and craft guilds in Dundee40. James Young of Canongate recorded the decisions not only of Canongate but also of the regality court of Broughton, as both were under the purview of the abbot of Holyrood41.
Another route for resolving conflicts was not to take a dispute to court but to try arbitration. If a case went to arbitration, it usually disappeared from the court records, but the arbitration itself and sometimes the decision was recorded in protocol books. One of the reasons for seeking arbitration was revealed in an agreement to do so when the parties said that they wished “to cut off the windings of the law”42.
The protocol books show the differences between the law in theory and practice. Notarial instruments often record agreements which are designed to get around the law as it stands. For example, in marriage a woman’s property came under her husband’s administration during the time of the marriage ; she also had no power to make a testament without his consent. This meant that sometimes a husband would alienate a wife’s property against her wishes ; she had no power to try to recover it until after his death. This process of recovery could be described in some detail by the notary. In 1490 a new widow appeared at a property with a document which was read out
Her I, Katering, the widow of Alexander Home, interrupt the pretendit sessing gevin…to Nicholas Elphinstone of this land…considering the sad pretendit sessing wes given without my consent, and therfor now, efter the desces of my said spouse, I brek, revokis and adnullis the said…sessing…ande herapone I cast furtht erd and stane43 ;
However, these restrictions on wives’ property rights could be got around through the use of marriage contracts. In a few cases, we can see this motive at work. Legally, spouses were not allowed to make gifts of property to each other after marriage. Richard Bannatyne, burgess of Ayr, had apparently promised to make certain grants to his fiancée Jonet Campbell but had not as yet done so. He therefore promised that all contracts and promises formerly made between them should receive effect, notwithstanding the solemnisation of their said marriage which was about to take place ; perhaps [p. 152] the date of the marriage been moved forward for some reason44.
Sometimes the notary records the terms of the actual marriage contract although unfortunately not nearly as often as historians would like. Other transactions by women imply that such contracts had been made. In towns such arrangements were particularly useful because of the likelihood that a wife would be involved in the family business and would need easy access to credit to carry on her responsibilities. The extent to which women were involved in actions concerning property and goods is shown by their very great visibility in the protocol books.
One interesting insight which sometimes appears is how people tried to argue themselves out of a case. In 1490 a man on his deathbed accused Agnes Chalmer, his second wife, of stealing goods which had belonged to his first wife, including a silver belt which weighed five ounces. Agnes indignantly denied this and then in a legal defence which would have made modern lawyers proud said that technically speaking she was not guilty as the belt only weighed three ounces45.
In another case, the truth only came out in a confession by a condemned man, perhaps hoping to erase at least one crime from his conscience before his death. The notary records that at the common moor of Edinburgh,
Robert Wardlaw the spouss of Margaret Browne, confessit and grantit oppenlie at the fute of the gallows passand till his deid and tuke the samyn on his saule that at the tyme of the seisin geven till Clement Litill of a land and tenement liand in Edinburgh that he causit Margaret Richy the spouse of George Dischingtone till pass and disguise herself as Robert’s own wife and to cum apone the ground of the said land and there resign the said tenement of land for sasine to be given to Clement. And Robert confessit oppinlie that no manner of persone knew of this dissait at the tyme of the said seissing gevin except himself alannerlie46.
One crucial area of the urban economy was trade, within the burgh, within the country and abroad. One historian of protocol books has commented that they are not very useful for economic matters but this can be questioned. It depends a little on which protocol books are being examined. Some [p. 153] notaries register more economic agreements than others. For example, in Dundee a high proportion of the instruments are concerned with trading agreements or disputes, both foreign and domestic. Similarly the trade of west coast burghs such as Ayr with Ireland appears in protocol books47. Government records of trade are mainly concerned with the export of certain goods such as wool and hides from which the crown received customs revenue. This leaves much of the overseas trade in other goods and most domestic trade within the country invisible, because the crown had no financial interest in recording it. Once again the protocol books come to the rescue, recording agreements between Scottish and foreign merchants, between merchants of different towns, and between traders within the town itself. Through these records we can get insights into how partnership agreements worked in overseas trade, how credit arrangements were agreed, and the relations between urban traders and those outside the burghs.
The protocol books also give insight into other aspects of the urban economy, such as the crafts practiced in the different towns. Few craft guild records survive for the middle ages in Scotland, nor do apprenticeship registers ; however, a number of apprenticeship agreements appear in the protocol books, as well as some documents which show the temptations which youths could face. In Dundee in 1519 Henry Halis received from James Wedderburn a worset doublet for which he became bound on his oath not to play at dice in future48.
Domestic service was a common occupation for young people, especially for women. For the early modern period, it has been shown that domestic service was the most common occupation for unmarried women in Scottish towns, and the medieval records also suggest that female servants were ubiquitous. One protocol describes an entrance to a property as being high enough for any servant bearing a water tub on her head49.
The protocols can provide fascinating insights into the family networks of many townspeople, as well as throw light on the not always harmonious relationships between family members. Because possession of land was so central in medieval society, there was pressure to keep as much of it as possible within the family. This involved ensuring that it passed to relatives of the owner where possible, especially at the time of death. As a result the kinship connections between the property-owning classes of the town can often be reconstructed from the protocol books. This has been done recently [p. 154] to trace the connections between legal families in Edinburgh, literary figures, Protestant and Catholic families before the Reformation, and the trading network among Edinburgh merchants50. Protocol books could be used to similar effect in other towns, allowing at least some reconstitution of urban families.
The importance of property meant that marriages were often arranged by parents or guardians. This situation was accepted with complete resignation by some. In 1527 Alexander Black, a Dundee butcher, appeared in the tolbooth and in exchange for £ 20 publicly gave to David Wedderburn the right to arrange Alexander’s marriage. Moreover, he swore that he would
receive in marriage any woman offered by said David, as long as she was free from diseases especially syphilis, and was of honourable character, notwithstanding however blind or lame she may be51.
Not everyone was so content, however ; notaries also record elopements by those wishing to marry without parental consent.
Within the family, relationships between family members can be examined by looking at marriage contracts and arrangements, patterns of land grants to children and bequests, provision for the surviving spouse after the death of one. Few testaments survive for urban inhabitants before Reformation, but some are recorded in protocol books. These also provide evidence about material conditions of town life.
Relations between family members can be inferred. Sometimes the tensions in the family broke out after the father’s death into conflicts over property between the widow and children or step-children. In other cases, widows and children came to amicable agreements. In 1488 Margaret Lamb, widow of William Dais renounced in favour of her son Thomas her liferight to all lands of the late William in Leith, and in return Thomas bound himself to maintain her in house, food, and clothing for her lifetime52.
Perhaps the most fascinating evidence which can come out of protocol books is that which sheds light on the personality of the people recorded therein. Many of the instruments recording a dying husband’s provision for his wife are matter of fact53, but occasionally the notary departs from the standard formula so that the love and affection between husbands and wives comes through. In 1489 Patrick Brown had the notary record that Patrick
[p. 155] for services rendered to him by Margaret Joy his spouse and for his love and affection towards her, gave and assigned her all his movable goods to be held by Margaret with power freely to dispone the same54.
Andrew Symsoun, the man who disinherited one son and then the other, seems to have felt more kindly towards his wife than to his sons, so much so that the notary commented that Andrew was “moved by most tender affection towards Elizabeth Livingston his spouse as appeared to the notary”55.
In 1473 a Stirling burgess thought he was near death. The notary recorded that
Adam Cosour for the affection and love he bears to his spouse Katherine Fotheringham and in consideration of her service to him in his old age and debility of body, gave to her with his own hands his domestic furniture and all other things acquired by him for her lifetime irrevocably.
If he or his heirs attempted to trouble her, they were to pay her £ 100 Scots. Despite Adam’s professed love, Katherine seems to have considered it a distinct possibility as it was she who asked the notary to draw up the instrument recording the gift, perhaps just as well as Adam lived for at least another 11 years56.
The evidence of the protocol books suggests that most urban marriages were partnerships with wives entering into demands of business and investment along with their husbands. As one husband put it when making his testament, “the goods that I have and the debts that are owed me, the said Margaret my spouse knows”57. Not all marital unions were quite so trusting. In 1488 a locksmith confessed before a notary that without the command of William Black but at the command of William’s wife Elizabeth, while William was on pilgrimage, John broke a box of William’s and took a print of the key of the box in plaster and made a duplicate key, giving it to Elizabeth and receiving for his labour 6d58.
Occasionally the client’s authentic voice appears, even if briefly. In Stirling, the priest demanded of Alexander Cosour, lying on his sickbed with closed eyes, whether he was under any financial obligation to two men. [p. 156] Alexander, in a low voice, replied “No”59. Some insults were also recorded. In 1507, a Glasgow notary recorded that a priest had said of a merchant that “Johne Elphinstoun is a defamit persone perpetuall, and ane verray erratik, and a Jow”60. Nor were insults always restricted to words. When the sergeant of Selkirk banned George Michelhill from using a particular quarry, George replied “by repudiating him and turning his back and disobediently gesticulating with a rod in his hand in a sign of reviling repudiation”61.
Finally, the protocol books also reveal something about the notaries themselves, their family connections and careers. And this provides important evidence about the contribution of the towns to the cultural life of late medieval Scotland. For many of the notaries were also poets and contributed to Scottish renaissance culture. Adam Otterburn and James Foulis, Edinburgh notaries, were heavily involved in arranging the royal entry of Mary of Guise to the town in 153862. If much of this culture appears urban in tone, it may be because the daily experience of drawing up their protocol books gave the notaries an insight into the character and foibles of medieval urban life that few other commentators could match.
