Ewan J. Innes, MA(Hons Scot. Hist.) FSA Scot
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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policy if you wish to cite any part of this essay.
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...."
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
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
A 1426 ordination that only the kings 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
Jamess 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
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
".... 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
"...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
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
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 kings 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
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
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
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
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 IIIs 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
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
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
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 kings 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 IVs 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
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 lords 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
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 [kings] 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 1520s
which forced James to look elsewhere for money.
In the spring of 1530-1, Erskine of Haltoun, the kings secretary,
went to Rome to instruct Albany (the chief cause of the kings financial
difficulties) in his task before the Pope. On the 13th of September 1531, Clement VII
issued a bull narrating Jamess 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
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
Donaldsons 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
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
Ewan Innes, April 6 1994
- Chron. Bower, VIII pp323.
- There had been no full parliament for about twenty years and James therefore reverted to a procedure used
before where "certain persons were chosen to determine the articles given in by the lord king, the rest being given leave to withdraw.
(licentia recedendi)" [APS, II, pp3.] This procedure would gradually take shape over the century and by the sixteenth century would be
in its final form, where a committee of parliament discussed and then drafted the "articles" in the form of legislation before
submitting them to parliament for enactment.
- Ibid., pp4.
- Ibid., pp3 c.2.
- Nicholson, Middle Ages, pp302-9.
- APS, II, pp9.
- Ibid., pp10.
- SS XX pp282.
- APS, II, pp11.
- Ibid., pp17-19.
- Ibid., pp8.
- Ibid., pp16.
- Ibid., pp23.
- Ibid., pp9, 14, 16, 23.
- Ibid., pp3.
- Ibid, I, pp557.
- SHR Vol. XV pp211.
- APS, II, pp8.
- RMS, No. 146; APS, II, pp28.
- Ibid., pp11.
- Chron Bower, VIII, pp219.
- APS, II, pp32.
- Ibid., pp36
- Ibid., pp41.
- Ibid., pp49.
- Ibid., pp32.
- Ibid., pp34.
- Ibid., pp46.
- Ibid., pp47-8.
- Ibid., pp52.
- Dunlop, Bishop Kennedy, pp324, 326.
- APS, II, pp46.
- Ibid., pp84.
- Ibid., XII, pp31.
- Ibid., II, pp88, ADC i, pp4.
- APS, II, pp94, c. 2; pp111, c.3.
- Ibid., pp107, c.11.
- A major problem during James reign was the holding of justice ayres. While several acts had called
for them to be held twice a year through all the realm to deal with criminal cases, the fact seems to be that they were not frequent
enough. [APS, II, pp111, c.2; Scot. Legal Hist. pp19.] Indeed, as an expedient to regular ayres, judicial duel under arms in
"courtis of geurra" was making an appearance as an act of November 1475 complained. It was held that "justice aris ...
ar spylt be the said guerra courtis" and were believed to lead to "grete hereschip and skathe" and henceforth were no
longer to be held, those ignoring the statute were to be considered guilty of manslaughter and usurpation of royal authority.
[APS, II, pp112 c.11.]
- Ibid., pp107, c.14.
- Ibid., pp97, c.20; pp100, c.9; pp111-2, c.4.
- Ibid., pp97, c.20.
- Ibid., pp105, c.14.
- e.g. Ibid., pp94-5, c.3; pp95, c.4; pp96, c.12; pp106-7, c.6; pp107, c.8-10; pp112, c.8.
- Ibid., pp104, c.6, c.7.
- Ibid., pp118, c.2.
- ADC i, pp143; APS, II, pp220, c.11.
- Ibid., pp226, c.16.
- Ibid pp238.
- Hannay, College of Justice, pp197.
- MacMillan, Scots Judiciary, pp52.
- Hannay, College of Justice, pp198.
- Ibid., pp201.
- ADCP, pp152
- Ibid., pp256-7.
- Hannay dates it to November or December 1528. Hannay, College of Justice, pp207.
- Ibid., pp207-9.
- For further details see Donaldson, James V, pp23-25 and pp44-46.
- Ibid., pp43 see also Athol L. Murray, "The Exchequer and Crown Revenues in Scotland
1437-1542" (Edinburgh Ph.D. Thesis), Appendix K. and W. Stanford Reid, Skipper from Leith, pp127-8, 137, 142, 160, 175,
201, 204, 209, 233, 241.
- APS, II, p335-6.
- Acts of Sederunt of the Court of Session pp1-7
James V, pp48. A tax of £1,400 was imposed from the assigned benefices together with not more than £200 from benefices
within the patronage of the crown.
- APS, II, pp371.
- Donaldson, James V, pp48.
- ADCP, pp548.
- APS, II, pp476.
- Hannay, College of Justice, pp76.
- Ibid., pp77.
- Balfour, Practicks, pp267, c. VII
- ADCP ppxvii
- Sources and Literature, pp201; See also ADCP Cases, 15, 33, 83, 89, 93.
- Ibid., Cases, 13, 14, 36, 98, 77, 113, 114, 116
- Ibid., Cases 15, 19, 30, 34, 49, 33, 59, 70, 78, 86, 99, 103.
- Ibid., Cases 22, 106.
- Hannay, College of Justice, pp135.
- Ibid., pp145-6.
- Ibid., pp147. Donaldson, James V, pp267-8.
- APS, III, pp294, c.6.
- Ibid., V, pp297, c.53.
- Ibid., VII, pp86, c.126.
- Hannay, College of Justice, pp214.
- See Lord Cooper in SS XX pp340.
- Hannay, College of Justice, pp148-153.
The following abbreviations have been used in the notes,
they follow the guidelines laid down in the "List of Abbreviated Titles of the
Printed Sources of Scottish History to 1560" SHR XLII (1963).
||Acta Dominorum Concilii in Civil Causes, 1478-1495, ed. T Thomson (Edinburgh
||Acta Dominorum Concilii in Civil Causes, 1496-1501, ed. Neilson & Paton
||Acts of the Lords of Council in Public Affairs 1501-1554: Selections from the Acta
Dominorum Concilii, ed. R.K. Hannay (Edinburgh 1932)
||The Acts of the Parliaments of Scotland, eds T. Thomson and C. Innes (Edinburgh
||Balfour's Practicks, Stair Society Vols. III and IV
||Walter Bower, Scotichronicon, ed.. D.E.R. Watt (Aberdeen 1987-)
|Dunlop, Bishop Kennedy
||Dunlop A.I. The Life and Times of James Kennedy, Bishop of St. Andrews
|Donaldson, James V
||Donaldson G. Scotland- James V-James VII (Edinburgh 1990)
|Hannay, College of Justice
||Hannay R.K. The College of Justice Stair Society Supplementary Volume I (1990)
|MacMillan, Scots Judiciary
||MacMillan A. The Evolution of the Scottish Judiciary (Edinburgh 1941)
|MacQueen SS Misc. II
||MacQueen H. "Jurisdiction in Heritage and the Lords of Council and Session after
1532" Stair Society Miscellany II
|Nicholson, Middle Ages
||Nicholson R. Scotland- The Later Middle Ages (Edinburgh 1989)
||Registrum Magni Sigilli Regum Scotorum, Vol. II, ed. J. Balfour Paul (Edinburgh
|Scot. Legal Hist.
||An Introduction to Scottish Legal History (Stair Soc. 1958)
||Scottish Historical Review (1903-28, 1947-)
|Sources and Literature
||Sources and Literature of Scots Law. Stair Society Vol. I.
|Acta Dominorum Auditorum of Causes and Complaints, 1466-94, ed. T.Thomson
|Acta Dominorum Concilii in Civil Causes, 1478-1495, ed. T Thomson (Edinburgh
|Acta Dominorum Concilii in Civil Causes, 1496-1501, ed. Neilson & Paton
|Acta Dominorum Concilii 1501-1503, ed. J.A. Clyde, Stair Society Vol. VIII
|Acta Dominorum Concilii 1532-1533, ed. I.H. Shearer, Stair Society Vol. XIV
|Acts of the Lords of Council in Public Affairs 1501-1554: Selections from the Acta
Dominorum Concilii, ed. R.K. Hannay (Edinburgh 1932)
|Balfour's Practicks, Stair Society Vols. III and IV
|The Acts of the Parliaments of Scotland, eds. T. Thomson and C. Innes
|Registrum Magni Sigilli Regum Scotorum, Vol. II, ed. J. Balfour Paul (Edinburgh
|Register of the Privy Council of Scotland, Vol. II, ed. J.Balfour Paul &
J.M. Thomson (Edinburgh 1984)
|Scotichronicon, Walter Bower, ed. D.E.R. Watt (Aberdeen 1987-)
|The Faculty of Advocates in Scotland 1532-1943. ed. Sir Francis Grant (Edinburgh 1944)
|An Introduction to Scottish Legal History. Stair Society Vol. XX
|Cooper Rt. Hon. Lord "The Central Courts after 1532" Stair Society Vol. XX
|Donaldson G. Scotland- James V-James VII (Edinburgh 1990)
|Duncan A.A.M. "The Central Courts before 1532" Stair Society Vol. XX
|Dunlop A.I. The Life and Times of James Kennedy, Bishop of St. Andrews
|Hannay R.K. The College of Justice Stair Society Supplementary Volume I
|Lynch M. Scotland- A New History (London 1991)
|MacDougall N. James III (Edinburgh 1982)
|MacDougall N. James IV (Edinburgh 1989)
|MacFarlane L. William Elphinstone and the Kingdom of Scotland (Aberdeen 1983)
|MacMillan A.R.G. The Evolution of the Scottish Judiciary (Edinburgh 1941)
|MacQueen H.L. "Jurisdiction in Heritage and the Lords of Council and Session
after 1532" Stair Society Miscellany II
|Nicholson R. Scotland- The Later Middle Ages (Edinburgh 1989)
|Philipson N.T. "Scottish Whigs and the Reform of the Court of Session" Stair
Society Vol. XXXVII
|Sources and Literature of Scots Law. Stair Society Vol. I.