This paper examines the distinct customs
for guardianship of minor inheritors under Norse and Scots law in
the Late Middle Ages. Focusing on a controversial case from the
frontier community of Orkney, investigation reveals that the Scots
custom of testamentary tutorship, which granted fathers the exclusive
right to arrange for their children’s care upon their death, contradicted
Norse tradition, which placed authority with a network of this child’s
kinsmen. Furthermore, discussion underscores the differing rules
for how children’s estates were to be managed, and how and when
adolescents were regarded as reaching full legal majority.
Tutor Testamentary – A Case of
Guardianship in Late Norse Orkney
Due primarily to a lack of sources, few studies have looked at
the laws and practices of guardianship in late medieval Norse societies.
While normative sources from the thirteenth century provide an ideal
model for guardianship, historians know very little about how children
were cared for in practice. This paper examines a controversial
case from fifteenth-century Orkney in which a Scottish nobleman,
David Menzies of Weem, acted as guardian to the heir to the Earldom
of Orkney, William Sinclair. At the heart of the discussion is a
previously unstudied document from 1416 which outlines the parameters
for his office as ‘tutor testamentary’. Based on Scottish legal
principles, the tutor testamentary arrangement for guardianship
differed in several key respects from the model presented in the
Norse legislation. By comparing stipulations of Norse law (Gulating, Frostating and National
Laws) to those of Scottish legal custom, this paper sheds light
on the origin and content of several of the main controversies in
that case. Two principal points of contention are highlighted: First,
the authority of kinsmen in determining the guardianship of minors
and, second, the age and procedures by which a minor was to attain
majority and free himself from the guardianship arrangement. This
paper also considers the actions of the parties involved and determines
whether contentions stemmed from contradictions between Norse and
Scottish traditions, or from the corruption of individuals.