Adjudication in the Scottish Parliament, 1532–1707

Towards the end of the sixteenth century James VI remarked that the parliament of Scotland was ‘nothing else but the head courte of the King and his vassals’. Several other writers in the early modern period – professional lawyers among them – made similar remarks, which were not difficult to justify. Parliaments were assembled by the summoning of suitors in the same way as other feudal courts. The parliament summoned in the year before James made his remark was typical in opening with a formal ‘fenssing’ ceremony, recorded in the phrase ‘curia parliamenti affirmata’, and its handling of substantive business was at once postponed with the equally conventional statement that the king ‘continewis the samyn and all actionis and causes to be decydit thairin’. The first item of business dealt with when the parliament reassembled a few days later was the review of a sentence of forfeiture imposed in a treason case heard by a previous parliament, and the handling of the last case of this type to be raised had again been quite typical in concluding with the decree of ‘the court of parliament’ being ‘gevin for dome’ by a ‘dempster’, an official also found in other feudal courts. It seems that judicial business predominated in the early parliaments of Scotland, as it continued to do in at least some parliaments until as late as the beginning of the sixteenth century, when one of the first things the estates did when they assembled was to delegate to committees of auditors the handling of cases raised at both first and second instance. In handling cases raised at second instance under the ‘falsing of dooms’ procedure, parliaments had been understood to sit at the head of a hierarchy of feudal courts.