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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.
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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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