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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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In the spring of 1530-1, Erskine of Haltoun, the king’s secretary, went to Rome to instruct Albany (the chief cause of the king’s financial difficulties) in his task before the Pope. On the 13th of September 1531, Clement VII issued a bull narrating James’s desire to establish a College of Justice. As the king had no money to spend on it, the bull imposed the permanent subsidy requested by James of 10,000 gold ducats of the camera, equivalent to 10,000 Scots, to be paid by the prelates. The Scottish parliament replied the following year by passing an act establishing the College of Justice.61

The act of parliament which set up the College of Justice provided for a mixed ecclesiastical and lay tribunal, consisting of the chancellor, the president, 14 Ordinary Lords and three or four Extraordinary Lords. The rules, statutes and ordinances to be observed in the Session were multifarious and were ratified by the king on 10th of June 1532. Aside from domestic statements on the coverings of the benches and the layout of the court, the quarters of the country were designated, the order of the table was outlined and provision made for privileged summonses.

The business of the day would start at eight in the morning and proceed until eleven. Three Lords, alternately two spiritual and one temporal and two temporal and one spiritual, would meet as required at two in the afternoon to examine witnesses. When the Lords were seated and bills were being read, no-one was allowed to speak unless required to do so by the chancellor or President. There was also an ordinance that ten advocates and procurators should be admitted to procure in all actions. Also included in this was a request that if any other "cunningne and able" men wished to be admitted they could be admitted if approved by the Lords.

After approving the statutes the king promised not to interfere with the course of justice by his private writings, and promised that he would defend the Lords from all wrongs by any persons. He also exempted the Lords from any tax or contribution to come in the future and allowed them to confine anyone in Edinburgh castle who dishonoured them.62

The College did not however benefit from the large sums appointed to it. James had agreed to a compromise sum of 72,000 to be paid over four years rather than the 10,000 in perpetuity. Moreover, certain benefices were to be assigned for judicial salaries on the understanding that the crown would also contribute.63 The prelates were in no hurry to pay this sum however, and the assigned benefices were to be available only when they fell vacant.

In 1541, parliament ratified the "erection of the said college" and endowment in general terms.64 While this was intended to give permanence to the foundation, with the Lords empowered to frame acts of sederunt, there was no mention of the liability of the prelates for their contribution. It was, to use Donaldson’s phrase, simply the

"inadequate endowment of the ‘session’ of semi-professional and specialist judges which had already been taking shape."65

The financial problems of the College of Justice were not solved by the 1541 act. In 1546 the Lords were contemplating a strike as they had "concludit nocht to remain without thai gett payment for thair labouris"66 After the assassination of Cardinal Beaton, parliament commanded that all monies due to the College be paid on pain of distraint.67 A Lord Ordinary was appointed to collect the debts, and there soon followed a string of prosecutions.68

In 1549, the salaries of the judges were regularised by the then president the Bishop of Orkney. The salary of 40 per year of service was intended to clear the ground of arrears, although there was still a failure to collect fully the 1,400 due to them from the church.69

Jurisdictionally, the College was to be the highest court in the realm. The king was only answerable to the Lords and no other court, as Balfour stated

"the Lordis of Session and na ither inferiour Judge within this realme are Jugeis to the Kingis actiounis, for his Heiness nor his Advocat may not be callit befoir ony inferiour Judge bot befoir thame alanerlie"70

The Lords did not interfere with the jurisdiction of the church on most matters, but it was used by the clerics in relation to civil matters. The effectiveness of the highest ecclesiastical court was evidently dependent on the Session and could be procedurally investigated.71

The Lords of Session set themselves up as the ultimate arbitrators in matters affecting the feudal courts as well. In a decision in 1542, they claimed competence in all matters of fee and heritage.72 The Session was also used by the Burghs when questions regarding their privileges came up. It was also the court to which the foreigner could come for justice and those who had been involved in litigation abroad.73 The Lords could also act as a court of appeal from lesser courts, and also as a court of arbitration.74 The records of the court were also used to give force in cases, whether on appeal or in relation to inheritance.75

The establishment of the College of Justice also had an effect on the legal profession. Since the reign of James I professional men of law had been a recognisable class, who by 1455 were well established.76 The ‘education act’ of 1496 had opened up the body of lawyers to the temporal estate rather than being confined to the spiritual. The extent to which this was the case by the mid sixteenth century is shown by the records. Between 1575 and 1608 there were 60 successful applicants for the status of advocate. Of these, 2/3 had an academic qualification, often having studied and taught abroad. This was supplemented by attendance at the Court of Session and often practice in inferior courts. The others had been servitors to advocates over many years.77

The Reformation affected the study of law in Scotland, as attendance at universities in Catholic countries caused many misgivings. In consequence the College of Edinburgh was established by the town council in 1582, and seven years later there was a proposal to endow systematic legal instruction in the capital.78

The Reformation also had a great affect on the College of Justice. In 1584, clerics were disqualified from sitting as Ordinary Lords79 although this was not enforced and had to be re-enacted by 1640.80 Despite the disqualification being revoked in 1661,81 the last cleric to hold office was Archbishop Burnett of Glasgow, Extraordinary lord from 1664 until his death in 1668.

Hannay has stated that "the foundation of the College of Justice was the inevitable end of a long development."82 This is however, simply not the case. The College of Justice was but a step along a long road and was itself to change over the course of the sixteenth and seventeenth centuries under the various policies of James VI, Charles I, Cromwell and Charles II. The formation of the College of Justice was itself not responsible for the developments in jurisdiction and the law after that date. It was parliament which was to be the main catalyst for innovation and development.

In conclusion, it can be seen that the formation of the College of Justice was not a watershed in the history of Scots law or the legal profession. Other acts of parliament could have an equal claim to that title. What the College of Justice represents is simply a further step (albeit a major one) towards a fully developed and modern legal system.83

The ‘education act’ of James IV had laid the bedrock for the development of a lay legal system which was further augmented by both the College of Justice and other events such as the Reformation. The direction by the Lords to the advocates in 1610 to form their own body to remedy abuses and deal with the standards of pleading before the Court is a clear sign of this. Moreover, the change in the admission procedure to the faculty after the Restoration, showed the extent to which royal influence had its effect.84

The problems and confusion of the fifteenth century were the main reason that the development of Scots law was slowed and at times halted. Only through the actions of strong minded and active kings was this development reinstated, often from actions not really connected with the law. That this was the case with the College of Justice is clear from the manner in which it was funded. James V was simply not a man to let the effective endowment of judges and the improvement of the justice system get in the way of an easy 10,000.

Ewan Innes, April 6 1994

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