Epistolary Control of the College of Justice in Scotland

On 17 May 1532 a statute was passed in the Scottish parliament authorising the reconstitution of the central civil court known as the session in the form of a College of Justice. On 27 May the fifteen judges of the court, who were still to be known colloquially as lords of council and session, albeit now formally designated Senators of the College of Justice, met to swear their oaths of office and to enact rules to govern their procedure. On 10 June the reigning monarch, James V, expressed his approval of the rules in a statement of his ‘gud minde anent the lordes of the session’. Declaring that the court was being reconstituted and rules enacted as a result of ‘the ardent affection that wee have for justice to be done and equallie ministrate to all our lieges’, the king went on: ‘Attour, wee promit to our saids lords that we sal not be ony private writing charge or command [or] at the instance of ony person desire them to do utherwaies in ony mater that sall cum before them bot as justice requiris’. The honour of the court would be maintained against criticism, ‘because the saidis lordes chosen upon our session presentis our person and bearis our authoritie in doing of justice’, and the judges would be exempt from the payment of taxation and fulfilment of other charges, ‘because the saidis persones man awaite dailie upon our saide session’. At the king’s instruction, his statement was entered, along with the rules the judges had enacted, in the records of the court’s proceedings, where many other rules and letters were to be recorded over the centuries ahead. For some reason, the letter of 10 June 1532 and the rules enacted on 27 May came to be associated with the statute passed in parliament on 17 May, a mistake sometimes perpetuated to this day. The letter and rules were printed in all the major collections of legislation produced in the early modern period, and lawyers generally referred to them collectively as an ‘act of parliament’. How this came about is a mystery that need not be solved here. For present purposes, the important question is how the king’s promise to refrain from sending private writings to the lords of council and session related to the control that he might exercise over the judges’ proceedings. What was meant by ‘private writings’? If the king would not instruct his judges to do anything contrary to justice, was the implication that he might write on behalf of particular parties to encourage the due administration of justice? Could litigants who suspected they were about to suffer an injustice petition the monarch to intervene on their behalf?