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Jusficiar of Scotland

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JUSFICIAR OF SCOTLAND. The earliest individual in this high office which extant records name seems to be Geoffrey de Maleville of Maleville, temp. K. Male. IV.

The term " Scotland" was then less extensive in its application than at pre sent : it designated, properly speaking, not the whole territory of the realm, but that part only which lay north of the Forth, or Scots sea, as it was called ; and accordingly, contemporary with Male ville there was another justiciar, David Olifard, justiciar of Lothian, that is to say, the territory south of the Forth, ex cepting the district of Galloway, which had long its own peculiar laws and cus toms. About the middle of the thirteenth century, however, Galloway too had its justiciar, so at this time there were three justiciars in the realm of Scotland—a jus ticiar of Galloway, a justiciar of Lothian, and a justiciar of Scotland strictly so called. They were all probably of co ordinate authority : each, next to the king, supreme in his district ; but the district of the last was the most exten sive, and contained the metropolis of the kingdom. The justiciars of Scotland were accordingly the most conspicuous men of the time :—the Comyns, earls of Buchan ; the Mac Duffs, earls of Fife ; Melville ; and Sir Alan Durward. This last had an eye to the crown itself; for having married the illegitimate daughter of King Alexander he gained over the chancellor to move in council her legitimation, and that, on failure of issue of the king's body, she and her heirs might inherit her father's throne. But the king conceived so at a displeasure at this, that he immediately turned the chancellor out of office, and soon after wards the justiciar also. The proud 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, re stored to his office of justiciar, whence he was displaced 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 legis 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 competition which allowed Edward I. of England to invade the kingdom. In 1292 the English Court of King's Bench sat for some time in Rox burgh; and in 1296 Sir William Ormes by, a justice of the Common Pleas and justice in eyre in England, was •xmsti tuted, by Edward, lord justiciar of Scot land. This appointment was of short duration ; but in 1305 Edward, having again put down the Scots, distributed the kingdom into four districts, and consti tuted for each district two 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. Ed ward'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 differ ence, that the metropolis of the kingdom was now shifting southwards to Edin burgh, and the term Scotland, in its strict acceptation, had given place to the appel lation " north of the Forth." Sir Hugh de Eglinton, justiciar of Lothian in the middle of the fourteenth century, and dis tinguished for his poetical genius, was now therefore " 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 jus ticiar south of Forth. He continued in

this place with approbation for eleven years, and died but a few months before the calamitous affair of Floddeu.

On this event, which happened in the beginning of the sixteenth century, the office of lord justiciar, or, as he was now styled, justice-general (in contradistinc tion to the special justiciary, now fre quently appointed as well for particular trials as for particular places and dis tricts), 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 series of its records, or books of adjournal, to com mence. It was at this time also that the Court of Session was erected by ecclesi astical influence. Various attempts had been made by the clergy in former reigns 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 uni versity 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 inparliament to en force 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 bad 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 hap pened to occur ; and it was calculated to be permanent. But the present was not fin opportunity to be lost; and accordingly, in the minority of King James V. and while the nation was weakened and dis tracted by the loss at Flodden, the Court of Session was established under the lord chancellor, and with a majority of eccle siastics both on its bench and at its bar. The consequence was, that from that day forward the Court of Justiciary declined ; its civil jurisdiction ceased. being en grossed by the Court of Session ; and the latter became in its place the supreme court of the kingdom. The Reformation effected a change in the composition of the Court of Session, but not much in its position or powers ; and in 1672 an act was passed in parliament constituting 0 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 lately, when, by 1 Wm. IV. c. 69, sec. 18, the office of lord justice-general, which had become in a manner a perfect sine cure, was appointed to devolve on and remain with the office of lord president of the Court of Session, who should per form the duties thereof as presiding judge in the Court of Justiciary ; the effect of which enactment is to place the lord jus tice-general again at the head of the ad ministration of the law ; and thus, by a singular revolution, restore him, after the elapse of 300 Tears, to his former situation of lord chief-justice of Scotland. On the death, in 1886, of the late Duke of Mont rose, who was lord justice-general, the office devolved on Mr. Hope, who was then lord president of the Court of Ses sion.