IUS COMMUNE, PRACTICK AND CIVIL PROCEDURE 283

IUS COMMUNE, PRACTICK AND CIVIL PROCEDURE IN THE SIXTEENTH-CENTURY COURT OF SESSION

by

A. MARK GODFREY ()*, **

1. – Introduction

It is comparatively recently that the history of Scottish civil procedure has begun to receive sustained scholarly attention, though this has mostly concentrated upon the medieval period1. The purpose of this article is to extend existing scholarship by discussing in a preliminary manner some aspects of civil procedure in the sixteenth century, in what was an important transitional period between medieval and early modern procedural models in Scotland. The Scottish example may provide an interesting comparison with other European jurisdictions in this regard. However, there is also an underlying question of more general relevance, namely how should the relationship between Romano-canonical procedure as a supra-national source of procedural law and the development of a native and localised style of court or ‘practick’ be conceptualised? It is necessary to address this question in order to elaborate the wider framework within which the content of Scottish procedural law can be evaluated. The early sixteenth century provides an apt period within which to examine these issues. The period 1426–1532 was one of experiment and reform in the central administration of justice in Scotland2. It also witnessed a fundamental re-

* For a summary see below, p. 295. ** Versions of this article were given as papers at a conference entitled ‘Scotland and the Netherlands, Workshops on Private Law and the Ius Commune’ held on 19–20 June 2003, University of , organised jointly by the Universities of Edinburgh and Utrecht, and also at a conference on the history of delay in civil procedure held at the University of Maastricht on 24–25 April 2003. I am grateful to participants at both conferences for their contributions to discussion. 1. R.C. van Caenegem, History of European Civil Procedure, in: M. Cappelletti (ed.), International Encyclopedia of Comparative Law, Tubingen 1973, vol.16; H.L. MacQueen, Pleadable brieves, pleading, and the development of Scots law, Law and History Review, 4 (1986), p. 403–422 ; H.L. MacQueen, Common Law and Feudal Society in Medieval Scotland, Edinburgh 1993; J. Finlay, Men of Law in Pre-Reformation Scotland, East Linton 2000, p. 87–122; G. Dolezalek, The Court of Session as a Ius Commune Court – Witnessed by “Sin- clair’s Practicks”, 1540–1549, in H.L. MacQueen (ed), Miscellany Four, [Stair Society, 49], Edinburgh 2002, p. 51–84. Taking account of the Scottish position, see also J.M.J. Chorus, Civilian Elements in European Civil Procedure, in D.L. Carey Miller and R. Zimmermann (eds.), The Civilian Tradition and Scots Law, Berlin 1997, p. 295–305. 2. A.A.M. Duncan, The Central Courts before 1532, in G.C.H. Paton (ed.), An Introduction to Scottish Legal History, [Stair Society, 20], Edinburgh 1958, p. 321–340. 284 A. MARK GODFREY [2] orientation of the legal system away from procedure by brieve (writ) and inquest and towards Romano-canonical and summary procedure. A central feature in these developments was a growing resort to central justice, an important factor in which seems to have been dissatisfaction with the effectiveness of local courts, procedure and remedies. Court actions were structured around a series of jurisdictions rooted principally in the locality, united under the overall jurisdiction of Parliament. The procedure for most legal action until the fifteenth century required initiation of actions in these local courts. The fifteenth century seems to have witnessed a preference by litigants for central justice at first instance rather than merely as a residual final court of appeal, and in response Parliament did gradually give way to the smaller, more flexible King’s Council as the primary central judicial forum. A possible implication of this is that central justice was regarded as more effective. The period culminated in 1532 with the establishment of a new institu- tion, the College of Justice, into which was channelled the judicial business of the King’s Council3.

2. – Influences on sixteenth-century procedural law in the Court of Session

The sixteenth century marked a fundamental new departure for Scots law in developing a permanent central court4. What civil procedure did it use? The Court of Session grew out of the King’s Council following innovations and developments in its role in the fifteenth and early sixteenth centuries. The role of churchmen trained in canon law in running royal government, and therefore taking leading roles on the medieval Council, seems to help explain why in judicial matters the Council may have been inclined to adopt a form of Romano-canonical procedure to expedite the determination of legal complaints5. Of course, Romano-canoni- cal procedure was also applied in Scotland routinely in its ecclesiastical courts. However, although the procedure of the Session possessed significant, recogni- sable Romano-canonical features, the ius commune was not the only substantial

3. The King’s Council was referred to as ‘the Session’ when sitting for judicial business, and was also known simply as the College of Justice after 1532, and by some time after 1532 as the Court of Session. It was constituted by Lords of Council and Session in both its pre- 1532 and post-1532 forms, the main difference in composition after 1532 being that Lords of Council had to be specifically nominated to office as Lords of Session, and admitted as such by the court. Its judges were nevertheless Lords of Council. At particular times, therefore, the Session, the King’s Council, the Lords of Council, the Lords of Session or the College of Justice could be synonymous terms. 4. For a recent reassessment, see A.M. Godfrey, The Assumption of Jurisdiction: Parlia- ment, the King’s Council and the College of Justice in Sixteenth-Century Scotland, Journal of Legal History, 22 (2001), p. 21–36. 5. For example, William Elphinstone (1431–1514), Official of the diocese of Glasgow (1471–78); Official of Lothian and Commissary General of the archdiocese of St Andrews (1478–83); member of parliamentary judicial committees and of King’s Council (from 1478); Bishop of (1483–1514); Chancellor (1488). See L.J. Macfarlane, William Elphin- stone and the , Aberdeen 1985, especially chapters 2 (‘The Canon Lawyer at Work 1471–1488’) and 3 (‘Auditor of Causes 1478–1488’).