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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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The history of the development of the College of Justice and the overall development of the Scottish legal system is long and involved, tying together as it does political, religious and foreign developments over the fifteenth and early sixteenth centuries. To understand fully the development, we must look at the particular problems faced by the first five James’ and see how they affected the development of the legal system during the century or so before the foundation of the College of Justice.

When James I returned to Scotland in 1424 after eighteen years of English captivity, he was nearly thirty years old. During his long incarceration, he had seen at first hand how the government of England was managed and was to use this knowledge in his reforms within Scotland. Walter Bower tells of James’ reaction to hearing of the theft, fraud and extortion afflicting Scotland when he exclaimed

"If God spares me, gives me help and offers me at best the life of a dog, I shall see to it throughout the whole of my kingdom that the key to a great extent guards the castle and the thorn bushes the cow...." 1

From the beginning, James was determined to restore good government and law to the realm.

James’ first parliament met on May 26th 1424, a few days after his coronation. Some of the articles which were enacted by the parliamentary commission2 show the directions in which James was looking. He was clearly determined to take a firm stance against lawlessness, and parliament enacted that no-one should "opinly or notourly rebell aganis the kyngis persone under the payne of forfautour or lif, landis and gudis" and that "thar be maide officiaris and ministeris of lawe throu all the realme that can and may halde the lawe to the kingis commonis."3

A threat was also made against the holders of heritable jurisdictions who were warned that they would be made responsible to the king for any defaults of justice. These measures were summed up with the pronouncement "that ferme and sikkir pece be kepit and haldin throu all the realme and amangis all and sundry liegis and subjectis of our soveran lorde the kyng"4

While James was innovative in his social and economic legislation5, he could be said to be less so in legal and judicial matters. Since 1371, these traditional responsibilities of the crown had been observed only occasionally. James’ legislative program attempted to make up for past deficiences, with statute after statute showing his predilection with law, justice and the preservation of order.

A 1426 ordination that only the king’s laws and statutes were to observed6 was accompanied by an ambitious attempt to revise the two legal codes used in the country. A parliamentary committee of eighteen, composed of six wise men from the three estates, was to "examyn the bukis of law of this realme, that is to say Regiam Majestatem and Quoniam Attachiamenta, and mend the lawis that nedis mendment."7

It was clearly evident that it was not enough to redefine the traditional laws, and the outpouring of new laws by James saw the beginnings of a real statutory law.8 Representative of the importance of the new law was the statute enacted whereby new laws were to be registered and publicly proclaimed by sheriffs and bailies so that no-one could plead ignorance of them.9 There were also a whole series of statutes enacted at the Perth parliament of 1430 aimed at clarification of the technicalities of judicial procedure.10

James was also determined to ensure that justice was speedy, efficient and impartial. In 1425 there was an important enactment which was to become a permanent feature of the judicial system. He ordained that judges should assign a "lele and a wys advocate" to plead for "ony pur creatur" who was unable to pursue his case through lack of knowledge or wealth11 in effect, the setting up of free legal counsel for the poor - some five hundred years in advance of England.

James’s intention was clearly to purge the whole system of corruption. Symptomatic of this, the same statute ordered that all judges should do justice "als wele to pur as to rych" without fraud or favour and should any judges fail to observe this statute the king would see that they were "rygorusly punyst" as an "ensampill til all utheris".12 Moreover, an act of 1428, forbade anyone to come to court with "multitude of folkys na with armys"13 and in 1436, statutes were passed whereby jurors were to swear that they had received no financial rewards or solicitations from any litigant.14 Clearly, his intention was to stop the intimidation of the courts, and they themselves were repeatedly charged to act with fairness and impartiality.15

The training of the legal profession in Scotland is important here. In Scotland there were no institutions to produce a body of professionally trained lawyers as existed in England. The Scottish approach was academic rather than professional, through the study, by ecclesiastics, of canon and civil law at the universities. The Scottish judicial system of David I had remained virtually unaltered and incorporated feudal elements long discarded in England. While James did not make any attempt to reform this he did try to insist that holders of heritable jurisdictions appointed competent deputies, for whose actions they were to be held responsible, to administer justice.16

A major deficiency of the Scottish judicial system was its openness to abuse, and the king had a duty, as the fountain of justice, to remedy any default of justice. It had been stated that all grievances could be brought before parliament if it coincided with the advertised public occasion at which it was claimed "justice ought to be done to any with a complaint".17 Cases of falsed dooms, questions, and complaint were brought before the supreme court of parliament and the privy council18 and these organs were therefore burdened with "billis of complayntis" or appeals for "remeid of justice"19 These appeals were taking up much needed time in parliament, and, although judicial committees continued to be elected by parliament, and despite some appeals heard by parliament as a whole, the system was being overwhelmed by the wealth of cases.20

A major step to improve this situation was taken in 1426 with the passing of a very important act- one which was to have important consequences for the future.

".... ordanit that his chancellor and with hym cartane discrete personis of the thre estatis to be chosyn and depute be oure soverane lorde the king, sall syt fra hynfurthe thre tymis in the yere quhare the king likis to commande thaim, quhilk sall knaw, examyn conclude and finally determyne all and sundry complayntis, causes and querellis that may be determynit befor the kingis consal, the quhilk personis sal haf thare expens of the partiis fundin fautyre and of the unlawis, or uthir ways as beis pleasande to our soverane lord the king"21

This meant that for the first time, a serious attempt was being made to deal with the problems faced by both parliament and the legal system in the dealing with the judicial process. The committee - modelled on the auditorial committee of parliament - was composed of 9 auditors, three from each of the three estates, and the Clerk Register; and was to sit for between a month and six weeks in three sessions during the autumn, spring and summer. By the beginning of the reign of James II it had acquired the technical term of "sessioun"

When James II formally entered politics after his marriage in 1449, he showed a similar bent to that of his father. The period of the minority of James had been one of great unrest within Scotland. An outbreak of plague was followed by outbreaks of famine in 1438 and 1439, added to which was the lawlessness which Bower described so vividly:

"...the groans of needy people and the misfortunes of the poor, whom even I who write this have seen and heard on this very same day being stripped of their clothes nearby in my neighbourhood and inhumanly despoiled of their necessities"22

The government had tried to deal with these problems during the minority by passing various ordinances on both spuilzie and "rebellys or unrewlful menne within ony castellys or fortalicis"23

James was better prepared to take on the role of king than any of his recent predecessors, having spent his youth in Scotland, and also in expectation of the crown. He was thus thoroughly aware of the conditions and various factions within the country. His first parliament in January 1450 passed legislation to regulate access to "the king and his consale"and other acts very reminiscent to that of his father, showing a fourfold concern for justice, social order, economic stability and royal authority.24 It also boded ill for the remaining factions within Scotland.

After the fall of the Black Douglases, the three estates got round to reaffirming old statutes for "the keping and execucione of justice"25 By 1458, parliament was dealing with the failure of the justice ayres to deal with justice, deeming it "speidfull" that they be held yearly throughout the realm "for gude of the communys".26

The sessions were also experimented with again. In 1439, the work of the sessions was to have been done by the lord lieutenant and the king’s chosen council who would hold two sessions a year.27 By 1450 however, the king was choosing persons from the three estates, who, together with the chancellor, were to hold three sessions a year.28 In 1456 three representatives of the clergy, three of the barons and three of the burghs plus the clerk register were to hold sessions for one month, after which they would be relieved by another nine representatives who in their turn would be relieved after their month holding the session.29

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