Law and change: Scottish legal heroes
Law and change: Scottish legal heroes

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Law and change: Scottish legal heroes

2.1 The emergence of a professional judiciary

There are a number of points in the history of the courts where significant and far-reaching change took place. In medieval times, a number of courts with varying powers had emerged and by the start of the sixteenth century, a complex system for administering justice was in place. In addition, the possibility of applying to the monarch directly further complicated matters.

The year 1532 is one of the key dates in the legal history of Scotland. In this year the College of Justice was established and the Court of Session was created. The legal system was transformed as the judicial activities of the monarch’s council and justiciars evolved into a formal court structure.

The College of Justice was established by the College of Justice Act 1532 and consisted of some 15 judges supported by clerks. Whilst their work and roles have evolved over the centuries, the College of Justice still plays a key role today.

Figure 7 The College of Justice Act 1532 explanatory purpose

The explanatory purpose of the Act may seem strange to us and helps illustrate the fact that the meaning of words can change over time. Whilst the words administration of justice are still in use, the word ‘cunning’ now has a slightly different usage.

The Court of Session covered civil matters and became a final court of appeal. Its purpose was to deliver justice to the subjects of the monarch. The Court of Session subsequently gained powers to make laws which enabled the expedient delivery of justice through what were known as Acts of Sederunt (these now take the form of Scottish statutory instruments).

The Court of Session provided Scotland with a Supreme Court staffed by professional judges and legal clerks. As the Court of Session established itself, a secular legal profession also began to emerge. To assist them in their work a new requirement for professional legal writing emerged. This led to the practicks. The practicks were a form of early written reports of decisions in legal cases (the earliest case appearing in Sinclair’s practicks is 1541). These were the forerunner of formal law reports and the institutional writings.

Changes in the law itself began to emerge with the development of increasingly sophisticated principles in land and contract law and the subsequent inclusion or reform of the law through Acts of the parliament.

Figure 8 Depiction of the inauguration of the Court of Session in 1532 Parliament House

Box 1 Modern definitions

College of Justice Created in 1532, it consisted of the Lords of Council and Session (the judges of the Court of Session) who are the Senators of the College of Justice, the Faculty of Advocates, the clerks to the Signet (later the Writers to HM Signet, a Society of solicitors) and the macers (the court officer who carried a mace before the judges). It may now be said to consist of the senators, Advocates, Writers to the Signet, Solicitors to the Supreme Courts, Macers and Supreme Courts staff.

Senator of the College of Justice Judges of the Court of Session and the High Court of Justiciary, the supreme courts of Scotland, are appointed by HM Queen as senators of the College of Justice created in 1532.

(Judicial Office for Scotland, 2017)

Administering the law was still a matter for the monarch’s justice but the civil aspects were now on a firmer and more obvious footing. Reform in criminal matters was to follow. Whilst we still speak of administering justice on behalf of the crown today, the medieval beliefs in the divine rights of monarchs have significantly changed. The gradual development of the law and evolution of the legal system helps illustrate this with its move towards parliamentary lawmaking and the development of a court system with a professional judiciary.

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