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Tutor Testamentary - a case of guardianship in late norse orkney

f. 1983, PhD 2014, universitetslektor ved Institutt for historiske studier, NTNU.


  • Side: 217-241
  • Publisert på Idunn: 2014-09-08
  • Publisert: 2014-09-08

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.

Keywords: Tutorship, guardianship, medieval, Orkney history
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