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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.

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

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.

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

Footnotes

  1. Chron. Bower, VIII pp323.
  2. 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.
  3. Ibid., pp4.
  4. Ibid., pp3 c.2.
  5. Nicholson, Middle Ages, pp302-9.
  6. APS, II, pp9.
  7. Ibid., pp10.
  8. SS XX pp282.
  9. APS, II, pp11.
  10. Ibid., pp17-19.
  11. Ibid., pp8.
  12. Ibid.
  13. Ibid., pp16.
  14. Ibid., pp23.
  15. Ibid., pp9, 14, 16, 23.
  16. Ibid., pp3.
  17. Ibid, I, pp557.
  18. SHR Vol. XV pp211.
  19. APS, II, pp8.
  20. RMS, No. 146; APS, II, pp28.
  21. Ibid., pp11.
  22. Chron Bower, VIII, pp219.
  23. APS, II, pp32.
  24. Ibid., pp36
  25. Ibid., pp41.
  26. Ibid., pp49.
  27. Ibid., pp32.
  28. Ibid., pp34.
  29. Ibid., pp46.
  30. Ibid., pp47-8.
  31. Ibid., pp52.
  32. Dunlop, Bishop Kennedy, pp324, 326.
  33. APS, II, pp46.
  34. Ibid., pp84.
  35. Ibid., XII, pp31.
  36. Ibid., II, pp88, ADC i, pp4.
  37. APS, II, pp94, c. 2; pp111, c.3.
  38. Ibid., pp107, c.11.
  39. 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.]
  40. Ibid., pp107, c.14.
  41. Ibid., pp97, c.20; pp100, c.9; pp111-2, c.4.
  42. Ibid., pp97, c.20.
  43. Ibid., pp105, c.14.
  44. e.g. Ibid., pp94-5, c.3; pp95, c.4; pp96, c.12; pp106-7, c.6; pp107, c.8-10; pp112, c.8.
  45. Ibid., pp104, c.6, c.7.
  46. Ibid., pp118, c.2.
  47. ADC i, pp143; APS, II, pp220, c.11.
  48. Ibid., pp226, c.16.
  49. Ibid pp238.
  50. Hannay, College of Justice, pp197.
  51. MacMillan, Scots Judiciary, pp52.
  52. Hannay, College of Justice, pp198.
  53. Ibid., pp201.
  54. ADCP, pp152
  55. Ibid., pp256-7.
  56. Ibid.
  57. Hannay dates it to November or December 1528. Hannay, College of Justice, pp207.
  58. Ibid., pp207-9.
  59. For further details see Donaldson, James V, pp23-25 and pp44-46.
  60. 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.
  61. APS, II, p335-6.
  62. Acts of Sederunt of the Court of Session pp1-7
  63. Donaldson, 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.
  64. APS, II, pp371.
  65. Donaldson, James V, pp48.
  66. ADCP, pp548.
  67. APS, II, pp476.
  68. Hannay, College of Justice, pp76.
  69. Ibid., pp77.
  70. Balfour, Practicks, pp267, c. VII
  71. ADCP ppxvii
  72. Sources and Literature, pp201; See also ADCP Cases, 15, 33, 83, 89, 93.
  73. Ibid., Cases, 13, 14, 36, 98, 77, 113, 114, 116
  74. Ibid., Cases 15, 19, 30, 34, 49, 33, 59, 70, 78, 86, 99, 103.
  75. Ibid., Cases 22, 106.
  76. Hannay, College of Justice, pp135.
  77. Ibid., pp145-6.
  78. Ibid., pp147. Donaldson, James V, pp267-8.
  79. APS, III, pp294, c.6.
  80. Ibid., V, pp297, c.53.
  81. Ibid., VII, pp86, c.126.
  82. Hannay, College of Justice, pp214.
  83. See Lord Cooper in SS XX pp340.
  84. Hannay, College of Justice, pp148-153.

Abbreviations

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).

ADC i Acta Dominorum Concilii in Civil Causes, 1478-1495, ed. T Thomson (Edinburgh 1839)
ADC ii Acta Dominorum Concilii in Civil Causes, 1496-1501, ed. Neilson & Paton (Edinburgh 1918)
ADCP Acts of the Lords of Council in Public Affairs 1501-1554: Selections from the Acta Dominorum Concilii, ed. R.K. Hannay (Edinburgh 1932)
APS The Acts of the Parliaments of Scotland, eds T. Thomson and C. Innes (Edinburgh 1814-75)
Balfour, Practicks Balfour's Practicks, Stair Society Vols. III and IV
Chron. Bower 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 (Edinburgh 1950)
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)
RMS Registrum Magni Sigilli Regum Scotorum, Vol. II, ed. J. Balfour Paul (Edinburgh 1984)
Scot. Legal Hist. An Introduction to Scottish Legal History (Stair Soc. 1958)
SHR Scottish Historical Review (1903-28, 1947-)
Sources and Literature Sources and Literature of Scots Law. Stair Society Vol. I.
SS Stair Society

Bibliography

Primary
Acta Dominorum Auditorum of Causes and Complaints, 1466-94, ed. T.Thomson (London 1839)
Acta Dominorum Concilii in Civil Causes, 1478-1495, ed. T Thomson (Edinburgh 1839)
Acta Dominorum Concilii in Civil Causes, 1496-1501, ed. Neilson & Paton (Edinburgh 1918)
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 (Edinburgh 1814-75)
Registrum Magni Sigilli Regum Scotorum, Vol. II, ed. J. Balfour Paul (Edinburgh 1984)
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)
 
Secondary
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 (Edinburgh 1950)
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.