The Source:
John D. Ford, ‘Conciliar authority and equitable jurisdiction in early-modern Scotland’, in Law and Authority in British Legal History, 1200–1900, edited by Mark Godfrey, Cambridge University Press 2016
Personages discussed:
James I (1566–1625), son of Mary, Queen of Scots, king of Scotland as James VI 1567–1625, and of England and Ireland 1603–25. He inherited the English throne from Elizabeth I. His son Charles I, also mentioned below, was executed in 1649.
George Buchanan, and here, humanist scholar.
Thomas Craig, jurist and poet.
[MH: Latin translations in square brackets below are not in the original]
In his Basilikon doron, James VI instructed his elder son and heir [Charles] ‘to haunt your Session, and spie carefully their proceedings’, believing that his own presence in the supreme civil court of Scotland had served to prevent partiality and to encourage expedition in the handling of cases. The court comprised fifteen judges generally known as ‘lords of council and session’, though since 1532 they had become formally designated ‘Senators of the College of Justice’. Originally appointed under the auspices of parliament or council to determine disputes that could not be brought within the ordinary legal process, the lords of council and session had become by the later sixteenth century judges of law as well as equity, with the primary role of administering justice according to law.
James recognised as much in proceeding to instruct his son that he must ‘discerne betwixt Justice and equitie’, not redistributing wealth between the rich and the poor … but protecting the rights of his subjects … [and] be mindful that ‘Justice, by the Law, giveth every man his owne’, whereas ‘equitie, in things arbitrall, giveth every one that which is meetest for him’ James did not explain what he meant by ‘things arbitrall’, or how far the lords of session might legitimately deal with such matters …
[MH: In this context viz. law of equity ‘meetest’ may mean ‘made to fit’ one’s own interest/motive.].
I. A historical perspective
In offering instruction on kingship to his son, James was inevitably mindful of the instruction he had himself been offered by his former tutor, the humanist scholar George Buchanan. In his Rerum Scoticarum historia, dedicated to James in 1582, Buchanan had remarked that the foundation of the College of Justice had proved to be a disappointment.
He [Buchanan] explained that in Scotland there were virtually no laws (leges) except acts of parliament (conventuum decreta), that these acts were not normally introduced on a permanent basis (non in perpetuum, sed in tempus facta) and that the judges did all they could to obstruct further legislative intervention (lationem legum impediant).
The consequence was that property rights (omnium civium bona) were entrusted to the will (arbitrium) of fifteen men, whose power seemed wholly tyrannical (imperium plane tyrannicum) since their rulings alone served as laws (arbitria sola sunt pro legibus). The lords of session therefore failed to administer justice according to law and were in effect quindecim tyranni, a complaint that was revived and widely recirculated a century later. …
… Buchanan certainly aimed in writing about Scotland to rework classical models like Livy’s history of Rome, and recollection of this passage would help to explain his remark that the property rights of the people were placed under the perpetua potestas of the judges. Another, and more obvious, source was Justin’s epitome of the lost Historiae Philippicae of Pompeius Trogus, which was not unusual among ancient histories in maintaining that nations subjected themselves to princes before they were subjected to laws, but was unique in stating that until laws were introduced, arbitria principum pro legibus erant.
Elsewhere in his book, Buchanan tended to use the word arbitrium to signify unlimited discretion or mere caprice. … Conscious that they had no laws except acts of parliament (nullas habeant leges, praeter conventuum decreta), the Scots had been alarmed at the prospect of life under a queen cuius arbitrium pro legibus habendum esset [whose discretion was to be regarded as laws].
In … attempt to justify [Queen of Scots] Mary’s deposition, still on the basis of veterum sententiae, Buchanan argued again in his De iure regni apud Scotos dialogus that it was their experience of a time cum libido regum pro legibus esset [when the lust of kings was for laws] (another phrase from Justin) that induced people to enact laws, and that afterwards it was the touchstone of tyranny for kings to dispense with the laws enacted. Throughout his Historia he contrasted examples of kings who enacted and enforced sound leges with those who nullified and neglected them. …
… [Buchanan distinguished] between the legitimum imperium of rulers who adhered ad legum praescriptum [as prescribed by law] and the tyrannis of others who directed their rule ad unius libidinem [to the lust of one] … Buchanan also made reference to the ancient customs, habits and institutions of the Scots, to which he clearly attached some importance, but he never described any of them as a kind of law. The closest he came to doing so was in a passage concerned with the law (lex) regulating the succession to the throne, which he described as giving new force to an existing custom (vetustam Scotorum consuetudinem nova sanctione confirmasse), yet his purpose here was to prove that the law was just by arguing that the Scots had conducted their affairs in the way later stipulated even when they were not obliged (obstricti) to do so. …
Buchanan’s apparent reluctance to regard tacitus consensus populi as a source of legal authority needs to be considered further in connection with a passage in his Dialogus that has attracted a great deal of attention. Having argued that kings must rule in accordance with laws and must not be trusted to make laws for themselves, Buchanan added that he did not mean to entrust law-making instead to the people at large (universi populi iudicio).
His idea, broadly in keeping with Scottish practice (prope ad consuetudinem nostram), was that representatives of every class of people should meet with the king in council (ex omnibus ordinibus selecti ad regem in consilium coirent), and that any bill they approved should be placed before the people for final approval (ad populi iudicium deferretur). … [This could] appear to apply … to the people when assembled in a parliament.
A serious difficulty is that while the phrase ad regem in consilium coirent [they should come together to consult the king] may be taken to describe quite accurately the assembling of the people in a parliament, it can only be taken to describe the meeting of the lords of the articles if they are reckoned to have been members of the king’s council who directed the business of parliament on his behalf.
The difficulty is that recent research has shown this conventional view to be untenable. In an attempt to preserve the second reading of the passage, it has been suggested that Buchanan was drawing no more than a rough parallel between Scottish practice and the constitution of ancient Athens, which provided for the approval by a popular assembly (ekklesia) of motions (probouleuma) prepared by a council (boule) it had appointed. An acknowledged difficulty with this suggestion is that the Athenian ekklesia comprised the entire people, while the boule was a more representative body comprising several hundred, so that the more obvious parallel would have been between the boule and the Scottish parliament.
Another possible reading is that Buchanan was mindful in addition of the constitution of ancient Rome, where at one time leges were approved by assemblies of the entire people (comitia) after first being refined by the senate. The title of Justinian’s Digest … contained the opinion of Julian that customs had the force of laws (leges) because laws were themselves binding through popular approval (quod iudicio populi receptae sunt). Julian thought it should make no difference whether this iudicium populi (the phrase used by Buchanan) was exercised by voting in a legislative assembly or by behaving in a consistent manner, adding that this was why statutes were able to lose force not only by being formally repealed but also by being allowed to fall into desuetude [state of disuse] (tacito consensu omnium per desuetudinem). …
… The third possible reading of the difficult passage in his Dialogus is thus that he believed the statutes enacted in the Scottish parliaments needed not only to be approved by the king, when he touched them with the royal sceptre, but also to be approved by the people, when they followed them in practice.
This reading would fit quite neatly with the view that Buchanan was an author of republican tendencies who was keen to identify a balance in the Scottish constitution between the rule of the one, the few and the many.
Although there are also difficulties with the third reading, they are not perhaps insuperable. One is that allowing the people at large to decide whether or not to abide by acts of parliament is not obviously reconcilable with Buchanan’s insistence that he did not mean to entrust law-making to the people instead of the king. However, the explanation may be that there is a difference between allowing tacitus consensus populi to play a part in the legislative process and allowing it to give rise independently to customary laws. … A second difficulty is that Buchanan was clearly objecting to the current state of affairs when he wrote that the acts of the Scottish parliaments tended to be non in perpetuum, sed in tempus facta [not for ever, but for a time]. He was complaining that the adjudication of the lords of session was tyrannous partly because such statutes as were enacted could later be deprived of force, which is not easily reconciled with a belief that the force of statutes ought to depend on their acceptance into practice by those to whom they were applicable.
It may be, however, that he was comfortable with the idea that statutes would only come into force if accepted by the people, but uncomfortable with the idea that once statutes had come into force they might later lose force again through popular disregard. It may also be that his complaint about the acts of the Scottish parliaments lacking permanent validity was connected with the complaint he proceeded to make about the lords of session obstructing further statutory intervention. At this point, he may have been thinking of particular instances of obstructive behaviour by lords of session, or connecting Mary’s refusal to ratify the legislation of the Reformation parliament with the support she received from [some] judges …
… Alternatively, he may have been thinking of the repeated failure in the fifteenth and sixteenth centuries of commissions appointed by parliament to codify the law of Scotland. In 1575, the purpose of these commissions had been declared to be the provision of a ‘certain writtin law to all oure soverane lordis jugeis and ministeris of law to juge and decyde be’. …
[MH: Much detail omitted here concerning obstructions and comparisons with France and ancient Roman law making, e.g. Cicero, Ulpian]
II. A juridical perspective
Near the end of the sixteenth century another account of the origins of law was written by an advocate who had been in practice before the lords of session when Buchanan’s Historia and Dialogus were published. In the opening chapter of his Ius feudale, Thomas Craig took the same line as Buchanan – as it happened, his wife’s uncle – in agreeing with Cicero that in order to ensure the just settlement of their disputes people had introduced first kings and then laws.
Again like Buchanan and Cicero, he explained that kings had initially administered justice in accordance with aequitas naturale, or ius naturale et gentium, constrained nulla lege yet guided instinctu naturae. …
… Craig … offered a significantly different perspective on the lords of session from the one offered by Buchanan. His reading of the important text attributed to Julian led him to agree with Buchanan that the first thing the judges should try to do in handling a case was interpret and apply a relevant act of parliament, for he also agreed that acts of parliament were the only leges in force in Scotland.
But he did not agree that where a relevant act could not be found, there could be no law to apply.
Popular custom, quite apart from having the power to deprive acts of parliament of force by leaving then in desuetudine, could in principle at least amount to law, and how Craig believed forensic custom could develop becomes clearer if attention is paid to how he believed cases ought to be handled in the absence of either statute or custom. …
… The expert appraisal of the learned laws had to be undertaken locally, but account could be taken of how they had been appraised by expert lawyers elsewhere, and the opinion formed by the court could then be compared with the opinions formed elsewhere. Eventually, if the judges adhered to their opinion consistently in similar cases, it would become a customary law, but it was not at this stage alone that their decisions would be legally founded. The learned authority behind forensic custom came into play as soon as lawyers looked for answers to their questions in learned sources, and although only probable, it still had binding force, at least in the minds of lawyers like Craig.
Buchanan seems to have held a different view. As already mentioned, he thought advice should be taken from iurisprudentes on the interpretation of statutes, but in identifying the iurisconsultus with the orator, and expecting forensic debates to be governed by rhetorum praecepta, he revealed that he was thinking more of court practitioners like Cicero than of jurists like Julian. When he talked about lawyers, it was in disparaging terms as mercenary pettifoggers who were more interested in devising clever arguments than discovering the truth.
Hostile to the canon law, he [Buchanan] regarded it as a body of legislation that had been entirely deprived of force at the Reformation, and in reproducing a document defending the deposition of the late queen, which in most respects involved arguments similar to his own, he carefully omitted the references it contained to the civil law, including the comment that the civil law was ‘receaved in Scotland in all decisions wher there is no expresse municipall law wrytten’. In a surprising number of passages in his Historia, Buchanan gave the impression that Scots law was unlike French law and more like English law.
The similarity with French law that was especially significant for Craig was the place allotted to a senatus in which account could be taken of equity as well as law. As counsellors to the monarch in his own supreme court, the judges of the parlement of Paris were believed to have the authority to ground their decisions in deserving cases on equity, and it was this authority that enabled them, among other things, to find answers to questions that the statutory and customary laws of France left unanswered. …
… In talking about the exercise of judicial discretion, Craig tended to remark that matters were left ad arbitrio iudicis [at the discretion of the judge]. It was a principle of the canon law that bonus iudex nihil ex arbitrio suo facit, sed iuxta leges et iura pronunciat [a good judge does nothing of his own discretion, but pronounces according to laws and rights], but while it might be maintained that applicable iura were generally available even when leges were lacking, the problem remained that sometimes matters had to be left to the discretion of the judge. Craig often used the word arbitrium in something like the sense favoured by Buchanan, as in writing that a superior potest uti vel abuti pro arbitrio suis rebus [he can use or abuse things at his own discretion], whereas no vassal alium pro suo arbitrio et sua electione substituere potest [can substitute another at his own discretion and choice].
He also noted, however, that the word had a different significance in iure. Not only were judges expected to exercise their arbitrium as boni viri [good men], striving to implement the requirements of ius naturale et gentium, but they were also expected to exercise any discretion left to them within the general context provided by the law they applied more strictly in other cases. They were to pursue the purposes for which the discretion was left to them, were to reach their decisions ex circumstantiis et praesumptionibus [from circumstances and presumptions] and were to proceed wherever possible a similibus ad similia, making use of provisions of the law designed for other cases. In exercising discretion they were to follow, if not the letter, then at least the spirit of the law. …
III. A theological perspective
In 1607, shortly before his death, Craig dedicated his Ius feudale to James VI, by then also James I of England. Just days earlier, the king had said more about the lords of session in a speech he delivered before both houses of his parliament at Westminster in defence of his desire for a closer union between Scotland and England.
On the supposed ‘Antipathy of the Lawes and Customes of these two Nations’, he had attempted to put the minds of his listeners at rest by telling them a little about the legal system in operation north of the border, claiming to be speaking on the strength of advice received from ‘the best Lawyers of Scotland’. One piece of reassurance he felt able to offer was that when the Scots talked about preserving their ‘fundamentall lawes’, as they had done in appointing representatives to discuss a closer union three years earlier, they were not using the expression ‘as you doe, of their Common Law, for they have none’.
After explaining that they meant only the constitutional laws sustaining the monarchy, he later modified his position by saying that they did not have ‘any olde Common Law of their owne, but such as in effect is borrowed from yours’. He understood that James I of Scotland had introduced forms of action ‘drawen out of the Chauncerie of England’, with the result that much of the law there differed from English law only ‘in certaine termes’.
Had he read Craig’s treatise, he would have found it vigorously insisted that the similarities between the two laws resulted from their shared origins in the learned tradition, not from any adoption by the Scots of English institutions. It was James’ impression that the Scots had not become involved in the learned tradition until his grandfather founded the College of Justice less than a century before, ‘according to the forme of the Court of Parliament of Fraunce’, and he was less interested here in celebrating the emergence of the session as a centre of learning than in emphasising the limited use that was made of the learned laws. Since they were only used ‘to supply such cases wherein the Municipall Law is defective’ and not to supplant the common law borrowed from England, ‘it is not so hard a matter as is thought, to reduce that Countrey to bee united with you under this Law’.
As for the acts of the Scottish parliament, these could be altered ‘as oft as occasion shall require’, and the first task in moving towards a legal union would be ‘to reconcile the Statute Lawes of both Kingdomes’.
If this hinted after all at some alteration to English law, James made it clear that he did indeed have this in mind. ‘For who can blame Scotland to say’, he asked, ‘if you will take away our owne Lawes, I pray you give us a better and cleerer in place thereof?’
He believed the opportunity should be taken to enact ‘standing Lawes’ in parliament, so that the people of the whole of Britain would not live in future under ‘an uncertaine and arbitrarie Law’. Identifying the civil law with ius gentium, ‘which in the point of conjunction of Nations should beare a great sway’, James adopted from Justinian the related propositions that it was the sovereign’s prerogative ‘to supply the Law where the Law wants’, and that eius est explicare, cuius est condere [whoever is authorized to establish the law is authorized to interpret it].
That James was not entirely out of sympathy with the teaching of his former tutor [Buchanan] was confirmed in another speech he delivered to both houses of the Westminster parliament three years later. ‘In the first originall of Kings’, he remarked then, ‘their wills at that time served for Law’. Only later were laws introduced, but once they had been, a king who did not rule in accordance with them would degenerate into a tyrant.
Where James disagreed with Buchanan was in maintaining – as he had already done before leaving Scotland in his Trew Law of Free Monarchies – that it was kings who made laws for their people, not vice versa, and that kings were answerable for their conduct of government to God alone.
Again identifying the civil law with ius gentium, ‘being most necessary for matters of Treatie with all forreine Nations’, James also noted that it was followed in England in ‘the Ecclesiasticall Courts, Court of Admiraltie, Court of Requests, and such like’. He emphasised once more, however, that there was no country in the world, ‘not onely Scotland, but not France, nor Spaine nor any other Kingdome, governed meerely by the Civill Law’, since each people had ‘their owne municipall Lawes agreeable to their Customes, as this Kingdome hath the Common Law’.
James had no wish to replace the common law with the civil law, but he did still hope to see it amended by legislation, ‘for the King with his Parliament here are absolute (as I understand) in making or forming of any sort of Lawes’.
He was aware that ‘no Text of Law can be so certaine, wherein the circumstances will not make a variation in the Case’, and that the civil law texts were themselves the subject of constant controversy and commentary in the schools. Nevertheless, he wished ‘some more certaintie were set downe in this case by Parliament’. The common law, he understood, ‘hath not a setled Text in all Cases, being chiefly grounded either upon old Customes, or else upon the Reports and Cases of Judges’. These reports were referred to as responsa prudentum, and were indeed like the ‘Presidents’ found in other countries, yet because they were ‘not alwayes so binding, but that divers times Judges doe disclaime them, and recede from the judgment of their predecessors’, people were effectively dependent ‘upon the bare opinions of Judges, and uncertaine Reports’.
Whatever respect James may have had for his judges, he had not entirely escaped the assumption that prescriptive legislation was the only reliable antidote to arbitrary adjudication.
The lords of session were mentioned again in a speech James delivered to a gathering of his English judges in the Star Chamber in 1616, through which he hoped to terminate a dispute that had been raging for some years over the relationship between the courts of common law and equity. In all free kingdoms, he declared, kings not only made laws but also delegated responsibility for their enforcement to judges, though how this was done differed in detail in England, Scotland, France and other realms.
Just as kings were responsible to God for the administration of justice according to his laws, and must ‘make conscience not to alter, but to declare and establish the will of God’, so it was the responsibility of judges ‘to interprete the Law of the King’, without presuming ‘to make Law’.
In England, admittedly, judges had not only ‘Statute Law’ to interpret and implement, but also ‘Common Law’, which was ‘the Law set downe in our forefathers time, expounded by learned men divers times after in declaratory Comments, called Responsa Prudentum’. James made it clear, however, that he did not regard these expository and declaratory opinions as a source of new law.
‘You are no makers of Law, but Interpreters of Law’, he reminded the judges again, ‘for your Office is Ius dicere, and not Ius dare’. Although it might require great expertise to declare the law accurately and precisely as it applied to particular cases, and although the common law in particular might be ‘a mystery and skill best knowen unto yourselves’, James insisted that it was not ‘Sophistrie or straines of wit that must interprete, but either cleare Law, or solide reason’, meaning ‘common sense and reason, and trew Logicke’.
He was evidently remembering here the occasion a few years earlier when Sir Edward Coke had enraged him by observing that while he was possessed of ‘excellent science, and great endowments of nature’, he nevertheless lacked the ‘artificial reason and judgment of law’ relied on by the judges in their decision of cases.
James now warned his judges that ‘if your interpretation be such, as other men which have Logicke and common sense understand not the reason, I will never trust such an Interpretation’. His judges were to keep within the bounds of existing law and natural reason in their decisions, and also within the bounds of their separate jurisdictions, with those who sat in courts of common law respecting the authority of the court of chancery. A court of equity rather than law, ‘called the dispenser of the Kings Conscience’, the chancery did not subvert the law but did perform the king’s function before God of ‘mixing Mercie with Justice’, in cases where ‘the rigour of the Law’ would ‘undoe a Subject’. …
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