JUSTIC1AR OF SCOTLAND. The earliest individual in this high office which extant records name seems to be Geoffrey tic Male ville, of 3Ialeville, in the county of Edinburgh, temp. Malcolm IV.
The term " Scotland " was then less extensive in its application than at present ; it designated, properly speaking, not the whole territory of the realm, but that part only which lay north of the Forth, or Sects eta, aa it was called; and accordingly, contemporary with Malevllle there was another justiciar, David Olifard, justiciar of Lothian, that is to say, the territory south of the Forth, excepting the district of Galloway, which had long its own peculiar laws end customs. About the middles of the 13th century, however, Oalloway too had its justiciar, so at this time there were three justiciars to the realm of Scotland--a justiciar of Galloway, a justieler of Lothian, and a justiciar of Scotland strictly so called. They were all probably of coordinate authority: each, next to the sovereign, supreme in his district; but the district of the last was the most extensive, end, containing within it the metropolis of the kingdom, it was also no doubt the moat important and the most coveted. The justiciara of Scotland were accordingly the most conspicuous men of the time :—the Cotnyne, eerie of Buchan ; the Macbuffs, 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 II., 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 great a displeasure at tide, that he Immediately turned the chancellor out of office, and soon afterwards 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, 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 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 com petition 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 Ormesby, a justice of the Common Pleas and justice in eyre in England, was constituted, by Edward, lord juetieiar of Scotland- This appointment was of short duration ; but in 1305, Edward, having again put down the Scots, distributed the kingdom into four districts, and constituted for each district two justices (an Englishman and a Scotehman), in the nature of the English justices of assize—with a view to put the whole Wand 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 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 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 juaticiar, or, as 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 series of its records, or books of adjournsl, 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 reigue to establish such a court. In 1425 the first " Court of the Session " was instituted under the influence of War law, 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 1458 Bishop Shoreawood, the king's secretary, tried to revive it ; and about thirty years after, Elphinatone, 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 end 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, complainta, and causes daily as they happened to occur ; and it was calculated to be permanent. But the present was not an opportunity to be lost ; and accordingly, in the minority of King James V. and while the nation was weakened and distracted by the loss at Flodden, the Court of Session was esta blished under the lord chancellor, and with a majority of ecclesiastics both on its bench and at its bar. The consequenco was, that from that day forward the Court of Justiciary declined ; its 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 its 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-cierk, who was now made vice-president of the Court of Justiciary.
Nothing else of consequence touching the constitution of tho court occurred till, by 1 'Will. IV., .c. 69, a. 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, by a singular revolution, restore him, after the Lapse of 300 years, to his former situation of lord-chief-justice of Scotland.