37 



JUSTICIARY, CHIEF. 



JUSTICIARY, CHIEF. 



38 



Durward removed to England, joined King Henry III. in France, and 

 served in his army, till in a few years he was, by the influence of the 

 English king, restored to his office of justiciar, whence he was dis- 

 placed only by the more powerful Comyn. The incident in Durward's 

 life to which we have just alluded, was not singular : the justiciar was 

 caput kyit et militia;, at the head both of the law and also of the military 

 force of the kingdom, and repeated instances occur in early times of 

 their military prowess as well as judicial firmness. 



The death of King Alexander III. left the crown open to a com- 

 petition which allowed Edward I. of England to invade the kingdom 



in 1305, Edward, having again put down the Scots, distributed the 

 kingdom into four districts, and constituted for each district two 



kingdi , 



justices (an Englishman and a Scotchman), in the nature of the 

 English justices of assize with a view to put the whole island under 

 one and the same judicial system. Edward's early death, however, 

 rendered the scheme abortive ; and Galloway had soon its own laws, 

 and Lothian and Scotland their justiciars as before, with this difference, 

 that the metropolis of the kingdom was now shifting southwards to 

 Edinburgh, and the term Scotland, in its strict acceptation, had given 

 place to the appellation " north of the Forth." Sir Hugh de Eglinton, 

 Justiciar of Lothian in the middle of the 14th century, and distinguished 

 for his poetical genius, was now thorefore " Hugh of the Awl Ryal," or 

 of the royal palace ; and towards the end of the next century Andrew, 

 Lord Gray, was advanced from the situation of Justiciar North of 

 Forth to that of Justiciar South of Forth. He continued in this place 

 with approbation for eleven years, and died but a few months before 

 the calamitous affair of Flodden. 



On this event, which happened in the beginning of the 16th century, 

 the office of lord justiciar, or, an he was now styled, justice-general (in 

 contradistinction to the special justiciars, now frequently appointed as 

 well for particular trials as for particular places and districts), came 

 into the noble family of Argyle, where it was hereditary for a century, 

 and comprehended at once the entire kingdom. The High Court of 

 Justiciary then also began to be settled at Edinburgh, and the regular 

 cries of its records, or books of adjournal, to commence. It was at 

 this time also that the Court of Session was erected by ecclesiastical 

 Influence. Various attempts had been made by the clergy in former 

 reigus to establish such a court. In 1425 the first " Court of the 

 Session " was instituted under the influence of Wardlaw, bishop of St. 

 Andrew's, and founder of the university there ; but immediately on his 

 death, which happened soon after, it drooped and expired. In 1468 

 Bishop Shoreswood, the king's secretary, tried to revive it ; and about 

 thirty years after, Elphinstone, Bishop of Aberdeen, did so likewise. 

 In 1494, however, the latter founded, or rather re-founded, the univer- 

 sity of Aberdeen, and had interest enough to get an act passed in par- 

 liament to enforce in all the courts of the kingdom the study and 

 practice of the Roman laws ; and in 1503 the " Court of Daily Council " 

 was established. This court had a more extensive jurisdiction than 

 the former ; it was universal, being instituted to decide all manner of 

 Summonses in civil matters, complaints, and causes daily as they 



iied to occur; and it was calculated to be permanent. But the 



t was not an opportunity to be lost; and accordingly, in the 

 minority f King James V. and while the nation was weakened and 



ted by the logs at Flodden, the Court of Session was esta- 

 blished under the lord chancellor, and with a majority of ecclfsiastics 

 both on ita bench and at its bar. The consequence was, that from that 

 day forward the Court of Justiciary declined; ita civil jurisdiction 

 ceased, being engrossed by the Court of Session; and the latter 

 became In its place the supreme court of the kingdom. The Refor- 

 mation effected a change in the composition of the Court of Session, 

 but not much in ita position or powers; and in 1672 an act was passed 

 in parliament constituting a certain number of the judges, or lords of 

 session, judges of justiciary under the justice-general and justice-clerk, 

 who was now made vice-president of the Court of Justiciary. 



Nothing else of consequence touching the constitution of the 

 court occurred till, by 1 Will. IV., c. 89, s. 18, the office of lord- 

 justice-general, which had become in a manner a perfect sinecure, 

 was appointed to devolve on and remain with the office of lord- 

 president of the Court of Session, who should perform the duties 

 thereof as presiding judge in the Court of Justiciary. The effect of 

 this enactment was to place the lord- justice-general again at the head 

 of the administration of the law; and thus, oy a singular revolution, 

 restore him. after the lapse of 300 years, to his former situation of 



lief-justice of Scotland. 



rriCIARY, CHIEF, of England (CapitaZii Jiutitiariiu A nylia). 

 None either of the English lawyers or legal antiquaries who have 

 handled this subject have given at all a satisfactory explanation of it. 

 In order to comprehend the functions of the great officer, it is necessary 

 firt to understand those of " The Grand Senetchall, or Dapifer 

 StntKalliu, or Dapifer Anylux : in modern phraseology, the lord high 

 steward coma pafatil, major domui rryitc, or maire du palaix. The 

 word Kruichalch, about the etymology of which opinions vary some- 

 what, meant originally a sort of steward in the household of the Frank 

 kings. After th*ir conquest of Gaul, it came to signify a high political 



dignity. Dapifer means the same thing, being the Latin synonyme for 

 it. This officer was the highest in the state after the king, executing 

 all the chief offices of the kingdom as the king's representative. He 

 was not only at the head of the king's palace, but of all the depart- 

 ments of the state, civil and military, chief administrator of justice, 

 and leader of the armies in war. This is proved not only to have been 

 the case in France, by Ducange and other high authorities, as well as 

 by the public records of that kingdom, but to have been EO also in 

 England, by a document published by Madox, from the black and red 

 books of the Exchequer, the celebrated ' Dialogus de Scaccario,' 

 written in the time of Henry II. ; and likewise by curtain MSS. 

 preserved in Sir Robert Cotton's collection iu the British Museum, 

 particularly an old MS. entitled ' Quis sit Seneschallus Anglise, et quid 

 ejus officium.' " (' Pict. Hist. Eng.' i. 567.) 



By the nature of the feudal system everything had a tendency to be 

 given in fief. Among other things, the office of seneschal was given in 

 fief too, and became hereditary among the Franks, Normans, and 

 at the conquest of England, among the Anglo-Normans. In France, 

 under the Merovingian dynasty, the office was in the family of Charles 

 Martel, from whom sprung the Carlovingian dynasty ; afterwards the 

 Plantagenet counts of Anjou were hereditary seneschals of France; 

 and in England this high office was granted by William the Conqueror 

 to the Grantmesnils, and thence came by marriage to the earls of 

 Leicester. After the attainder of the family of Montfort, earl of 

 Leicester, the office was given to Edmund, the second son of king 

 Henry III., and it then remained in the royal family till its abolition 

 Thomas Plantagenet, second son of king Henry IV., being the lost 

 permanent high steward, the office being conferred afterwards only fro 

 unicd vice. 



In France, when the office became hereditary in the counts of 

 Anjou, it soon became necessary, for various reasons, to have another 

 seneschal, or dapifer, besides the hereditary one ; and this officer, 

 whether he be considered as the representative or deputy of the 

 hereditary seneschal, still took precedence, as appears from the charters 

 of the French kings, of all the other great officers of state. In 

 England also something of the same kind took place, but with this 

 difference that the various functions of the original grand seneschal, 

 or tenetcattui A uglier, were divided into two parts, and committed to 

 two distinct officers as his representatives : the judicial functions being 

 committed to an officer styled the High, or rather Chief Justiciary ; 

 the administrative and those relating to the affairs of the king's palace 

 or household, to an officer styled, not the Senescallus An;/li(f, but the 

 Senescallus, or Dapifer Rtyii. This explanation will be found to com- 

 pletely remove the confusion that has so long prevailed among the 

 English historians, antiquaries, and lawyers on this subject. And 

 this view of the subject, if it needed it, would be corroborated by the 

 high privileges of the officer created in later times, to preside in tho 

 House of Lords at state trials, which officer, be it observed^ is not 

 "high justiciary," but "lord high steward," that is " Senescallua 

 Anijlicc." This explanation also removes the difficulty of accounting 

 for the extraordinary powers of the lord high steward's court, which 

 some English lawyers have attempted to get over by saying that the 

 lord high steward succeeded to some of the powers of the high 

 j usticiary , whereas he merely exercises powers which he had delegated 

 to the high justiciary. 



The chief justiciary was usually, even in those times, when, from 

 the circumstance of the king and the great officers of his household 

 acting as judges, we may conclude that a special education was not 

 considered absolutely neeesaary to fit a man for the judicial office, 

 a person who had given particular attention to the study of juris- 

 prudence. As the representative of the judicial portion of the grand- 

 seneschal's power, his authority extended over every court in the king- 

 dom. For as to what Blackstone says of the court of the rnarahalsea, 

 that is, the court of the lord steward of the king's household, having 

 never been subject to the jurisdiction of the chief justiciary and no 

 writ of error lying from it to the king's bench, it merely amounts to 

 this, that the court of the lord steward was in fact originally the court 

 of the lord high steward, and in that court either of his representatives, 

 the chief justiciary or the lord steward, might preside: 



The chief justiciary not only presided in the lung's court and in the 

 exchequer, but he was originally (or rather when the lord high steward 

 fell into abeyance, partly from dread of his power and partly from the 

 impossibility of securing an hereditary succession of the qualities 

 necessary to fulfil his great and numerous duties), by virtue of his 

 office, regent of the kingdom during the king's absence ; and at those 

 times writs ran in his name, and were tested by him. And in this 

 light the chief justiciary is regarded as having been the greatest subject 

 in England. One of the most distinguished men who held this high 

 office was Ranulph de Glanville, who is usually regarded as the author 

 of the ' Tractatus de Legibus et Consuetudinibus Anglise,' the oldest 

 book extant on English law. 



The last who held the office and bore the title of Capitalii Jiiititia- 

 riut AnylUe was Philip Basset : and the first who held the office of 

 i '.i/'i'ntii Jiustitiariua ad jilacita coram Rege tencnda, that is, chief 

 justice of the king's bench, was Robert de Bruis, appointed in the 

 fifty second year of Henry III. Sir Edward Coke was fond of indulging 

 hit vanity by bestowing the same title, " Chief Justice of England, ' 

 upon himself and on tha Grand Justiciary, the mighty Capitalii 



