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To What Extent was the foundation of the College of Justice in 1532 a watershed in the history of Scots Law and of the Scottish legal profession?

Ewan J. Innes, MA(Hons Scot. Hist.) FSA Scot

1994

Synopsis:  This essay describes the foundation of the College of Justice and the impact it had on Scots Law and the Scottish legal profession.

Please see my copyright policy if you wish to cite any part of this essay.

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Similar arrangements were made by parliament in March 1458, but the question of finance was still a problem; the three estates reckoning that the Lords of Session "of thair awne benevolence sulde beir thair awne costis"30 It can be inferred from the details of this parliament, that many of the judicial reforms did not spring from the initiative of the king. The three estates gave notice to the king and his ministers that they should support "the quiet and commoune profett of the realme" and see that justice was "kepit amangis his liegis" they also asked "with all humilitie" that the king

"be inclynit with sik diligence to the execucioune of thir statutis....that God maybe emplesit of him, and all his liegis... may pray for him to Gode, and gif thankynge to Hime that sende thame sik a prince to thair governour and defendour"31

It has been claimed that it was Bishop Kennedy who "inspired parliament to do all that parliament could do in the way of judicial reform" and, that it was he who "tried to systemise the procedure of the Lords of Session as an independent court".32 There is however no evidence of this whatsoever and we should perhaps look to the clergy in general rather than Kennedy himself for the inspiration for the judicial reform. In the general council of 1456 for example, the clergy considered that an "artikill belangande justice" no doubt drafted by a committee of the articles was "weill made" and besought the king to implement it.33

The sudden death of James II in 1460 plunged Scotland into turmoil again. With his eldest son only eight years old, yet another royal minority ensued with all of the problems this would cause. The strength of Kennedy ensured that the turmoil would not be as bad as that which afflicted the minority of James II. In 1464 Bishop Kennedy summoned a "congregation" of Lords spiritual and temporal to deal with a diverse programme of business, part of which was to work "for the peace and tranquillity of the realm and doing justice,"34 especially since a parliament some months earlier had thought it "speidfull" that three sessions be held each year, one in Edinburgh, one in Perth, and one in Aberdeen, to deal with civil causes which had arisen since the "cessing of the last sessionis".35

The holding of these sessions was inhibited by the lack of money available to those who served on them. Parliament in 1468 had again thought it "speidfull" for a session to be held for a month in Edinburgh, and for five weeks in Perth. Three clerics, three barons and three burgh commissioners are named to serve on them, but a reference in the record of parliament to the "expensis of thaim" was deleted. The nine Lords obviously expected to finance themselves as before from the unlaws which they levied in their court. For the rest of James III’s reign there was no other move towards the creation of a salaried and professional judiciary nor any other reference to the holding of a judicial session.

Some of the role of the session had begun to be taken on by the court of the Lords of Council.36 That it proved to be very popular is seen not only in the large numbers of cases but also in the attempts to reduce the flood of litigants. In an act of November 1469, and reaffirmed in 1475, it was stipulated that litigants should take their suits before the judges ordinary in the first instance.37 Only if the judge ordinary refused to do, or administered only partial justice would complaint be allowed to be brought before the king and council, who would then administer justice and punish the judge with suspension from office. In May 1474 the judges ordinary were enjoined to give justice so that plaintiffs "vex nocht our soverane lorde nor his consale with no complayntis bot gif it be on officiaris that will nocht do justice".38

The weaknesses in the administration of justice during the reign of James III39 were derived not only from the lack of a professional judicial bench, but also from other debilitating factors- the attitude of the king, contempt for law and order in society (especially where "maintenance" was taken for granted) and the confusion of the law itself.

There were several attempts to legislate against maintenance and restore belief in law and order. In May 1474 for instance,there was legislation against the "gret derisione ande skorne of justice" which was shown by people who preferred to pay "ane litill unlaw of silver" rather than resort to the justice ayre.40 Moreover, perjury was evidently common with many "false inquestis and assisses", a situation which must have led many to be cynical of the law.41

The confusion in the law was to be dealt with by parliamentary commission. A commission had, in 1469, been instructed to consider "the reductione of the kingis lawis, Regiam Majestatem, actis, statutis and uther bukes" the intention being for these sources to "be put in a volum and to be autorizat, and the laif to be distroyit"42

In 1473, parliament was again involved with "the mending of the lawis for the declaracioun of diverss obscure materis." The barons asked the king to take two wise persons from each estate "to fynd gude invenciouns... for to declare the daily materis that cumys befor the kingis hienes that as yit thare is na law for the decisioune of thame" Their findings were to be placed before the next parliament for ratification so that

"at that tyme thare be a buke maid contenand al the lawis of this realme that sall remain at a place quhare the lafe may have copy and nane uther bukis be usit, for the gret diverssite now fundin in diverss bukis put in be diverss persouns that ar callit men of law."43

There was nothing done however to produce a digest of Scottish law, with the only "mending" of the law taking place being piecemeal and small scale.44 James was only ever intermittently interested in the overcoming of the problems both within the justice system and within the country as a whole.

That these could be done, at least partly, was to be shown in the next reign; James III simply lacked the constant determination required to see any change through to its end. While strong royal power had been suggested by the acts of the 1469 parliament, by July 1473, the king’s attention was evidently elsewhere. In that parliament, the prelates exhorted him to take action himself to ensure the good governance of the realm by travelling about the country.45

The king had however set up a major stumbling block to improving the situation, through the supply of grants of remission and respite. The three estates repeatedly sought an end to these grants, and in 1478 gave the granting of remission and respite as the reason that slaughter, treason, robbery and theft were "sa commoun throuout the hale realme". The king agreed therefore to stop these grants for three years so that the country could be put in peace.46 He was never able to do so effectively, and, when he fell ten years later at Sauchieburn, his son was to take over the mantle of a reforming king which his father had worn only fitfully.

After the fall of James III, the problem of judicial administration, both criminal and civil, was taken up by the supporters of his son. The estates, appointed "a secret council" whose chief concern was to see to reform. In addition, "Lords of Session" were selected to deal with civil causes under the presidency of the Chancellor, of the sixteen members, eleven were members of the secret council.47 In 1491 it was enacted that, under the presidency of the chancellor, "certane lordis of consale or ellis the lordis of sessioun" were to administer justice at three fixed terms.48

The early years of James IV’s reign, showed a movement towards the expansion of Scots law through the universities. In 1496, parliament passed an ordination49 where the heirs of barons and freeholders should be put to school and university in preparation for their service as judges. While there would be no immediate effect on the administration of justice, the act did, provide a possible solution to the relative lack of Lords freely able to deal with business as it worked itself through, and, moreover, it provided the foundation for the training of a future lay judiciary.

Further organisational changes were made to improve the efficiency of the courts. A particular problem was the summoning of all litigants to council on the same day. Consequently, in 1495, the distribution of cases by the clerks in the offices of the chancery and secretary were ordered to be systemised according to the tables. There were now to be eight cases per diem, with no new summonses being allowed once the Session had begun.

An act of 1503 which set up a ‘daily council" was an important step towards the development of a judiciary, for, despite being a council chosen by the king, it was to have the same powers as the session. The exact importance of this body is difficult to fathom. Hannay suggested that this council was simply an expedient to help deal with the congestion of cases before the session.50 MacMillan on the other hand, while noting the opinions of both Hannay and the Institutional writers, stated that "the act is of importance as affirming the principle of a permanent court."51 The true nature is probably somewhere in between the two; where an expedient of James IV became accepted and used as a model for later writers to form their opinions around- although Hannay does later state that

"We shall not be far wrong in supposing that the ‘daily council,’ so ambitiously begun, dwindled into a somewhat uncertain convenience for litigants in the provinces, chiefly in connexion with the criminal circuits."52

James IV never succeeded in putting the administration of civil justice on an adequate footing. Right up to the end of his reign there were consistent arrears which the Lords were struggling to deal with. While James IV (in stark contrast to his father) held justice ayres regularly and assiduously, it was still not enough to cope effectively with the situation. The government was fluctuating between a centralised and an itinerant court and the inability to provide regular sessions accentuated this.

Flodden was to mark a watershed in Scottish politics and society. The scale of the losses through all the grades of Scottish society meant that any progress towards improved justice and improvements generally was arrested. The consequences of Flodden were far reaching and multifarious- not least to the fact that much of the material relating to James V still remains in manuscript form.53

The arrival from France of the new regent, Albany, saw a serious attempt to deal with civil actions. However, the lord’s attention was taken up with questions of state and international relations rather than the administration of justice. When Albany left for France in 1517 he appointed seven vice-regents sworn to administer justice.

The vice-regents did attempt to deal with justice, quartering the realm to allow for separate sessions. The scheme was however no more successful than its predecessors. The various pressures of state, and unforeseen problems in the country caused the systematic structure of the session to be interrupted constantly. That regular attendance and action was almost impossible during the early years of the reign is shown in an act of the Lords of Council in 1522. The Lords of Council and Session insisted in regularity by appointing various days of the week to the different classes of actions.54

Demands for a more diligent court became louder, and the postponement of the spring 1527 session led to a very important act. Henceforth, Gavin Dunbar the Archbishop of Glasgow was to preside over a session of thirty Lords split almost equally between the temporal and spiritual estates. They were charged to enrol causes so that

"ther be na cummyrsum besines, truble, nor inoportunite in the calling of tham, providing that the thesaurer and his [king’s] advocat have thair dais kepit oukly for the materis concernyng his grace, and actiones of recent spulze and retreting of letteris be alsua ordorit be the president for the tym to be callit with sic diligens at the persewaris be nocht postponit lang tym nor hurt."55

There was also a repeat of the 1511 ordinance on restriction of entry to the "consell hous" and a call to the Lords to ignore any letters under the kings hand if the were going "to stop or hynder justice"56

There is an undated royal letter57 which lays an important foundation for the College of Justice. In the letter, James lays out the directions for the administration of the business of the session. The names of those Lords allowed to sit on the session were to be written down and fixed to the door of the council house to prevent interference of those not allowed to serve. Also, the Lords of the session were to leave their households outside the council house, with no-one to enter except the council and those with a "licence" to attend. Any bills of complaint were to be handed in before the council entered, although a "greit man of gud" could present a bill when proceedings had begun but had to retire immediately.

A separate table was to be kept for the registering of recent spuilzie and retreting of letters so that they could be called without any delay. As many actions as possible were to be called during the present term with the rest continued to the next term including privileged matters, but excepting proper actions, actions of strangers, recent spuilzie and retreting of letters.

Parties were excluded from bring in their friends and could only have two "forspekkaris" before having to withdraw after "ressonable dusputation" to allow the Lords to discuss freely. The final item allowed eight or nine people to sit on "the lang bynk" and listen under oath of secrecy.58 These last were probably serious students of law and procedure, preparing for a career as advocates.

The roots of the College of Justice are as we have seen extensive. The foundation itself was tied together with the fiscal and matrimonial concerns of James V and the international situation of the time.59 That James was desperate for money can be seen from the financial records. While the total ordinary revenue under James IV had been nearly 30,000, by 1525-6 it was a mere 13,000.60 It was this failure of finance during the late 1520’s which forced James to look elsewhere for money.

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