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Session 1426–1532

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Session 1426–1532 CHAPTER TWO THE EVOLUTION OF THE SESSION 1426–1532 As noted in the previous chapter, the word “session” was used to describe a series of judicial bodies which developed in the century or so after 1426. It described simply a “sitting” of a body with special judicial com- petence. Though at fi rst a form of tribunal outside the normal structure of courts, the history of the Session charts a process in which it became a permanent court. It continued to be referred to as the Session after the foundation of the College of Justice in 1532, though later it came generally to be referred to more expansively as the “Court of Session”. This development in nomenclature seems to refl ect nothing of deeper signifi cance. However, within the period 1426–1532 we can categorise three distinguishable institutions which were designated by the word “session”. The fi rst could be termed the auditorial Session, composed of members of the three estates of Parliament (nobility, church and burghs) and sitting as a statutory judicial tribunal enabled by successive though intermittent acts of Parliament.1 The second could be termed the conciliar Session, being sessions of the King’s Council which were devoted to judicial work. The third was constituted by the Session as defi ned within the institutional framework of the College of Justice after its foundation in 1532, conducted by individuals who continued to be Lords of Council and Session. The auditorial-type Session of the 1420s was a very different type of body from the conciliar one of the 1490s, and both differed from the Session of the mid-1530s and later. Although all are linked by certain threads of continuity in their evolution, there was no trajectory or path of development which saw the original tribunal of 1426 reshaped and modifi ed as a matter of consistent policy aiming towards the goal of a permanent central civil court. Over the longer term, there was no such goal. The apparent continuity in nomenclature should therefore not disguise the highly contingent nature of the developments. 1 See J. Goodare, “The Estates in the Scottish Parliament, 1286–1707”, Parliamentary History 15 (1996), 11–32. the evolution of the session 1426–1532 41 The evolution related to changing political circumstances over time rather than to any long-adumbrated goals of policy. It also occurred within a wider institutional framework which was itself evolving—the governmental framework of Parliament and its committees, the insti- tutions of Council, General Council, and Exchequer, as well as the developing roles of individual offi ces of state. These developments also had implications for the use of royal seals and the arrangement of the associated writing offi ces, as well as the framework provided by the existing structure of jurisdiction and law courts, secular and eccle- siastical. The Session was a constitutional and judicial novelty when it fi rst appeared in 1426, though to some extent it resembled Parliament’s judicial committees, in particular the committee of Auditors of Causes and Complaints. However, the new Session was a body liberated from the structure of a sitting of Parliament or Council. This must have been the main purpose of the 1426 innovation, and suggests that earlier arrangements were considered inadequate, or that by 1426 judicial work was now competing for attention less successfully with other forms of parliamentary business. In our examination of the role of Parliament as a central court in the previous chapter, we noted the improvisations made during the fourteenth century involving the delegation of judicial work to parliamentary committees. This might suggest some increase in central judicial business in the century following the crystallisation of Parliament’s judicial role in the 1290s. However, without further research that remains a matter of speculation. At least as plausibly, it might represent simply the establishment of an effi cient procedure within Parliament to transact its judicial business in a manner which spared the plenary sessions from being dominated by involved legal hearings. Although the judicial business of the medieval parliament has never been systematically examined, it would appear that by the later fourteenth century there is little such business for which records survive. However, precisely the absence of surviving records makes it diffi cult to draw any conclusion about the scale of such business. In any event, the effect on central justice of the captivity of James I in England from 1406 to 1424 could have generated a feeling by the time of James’s return that institutions of central justice had become damag- ingly moribund and needed to be revived. For such a purpose, however, Parliament itself would have proved unsuited. However frequently it met, the fi fteenth-century parliament nevertheless sat for very short periods and was thereby obstructed from easily transacting any large quantity of business. Furthermore, it did not possess the administrative .
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