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majority of the senators themselves. To parliament, however, was reserv ed the power of confirming these appointments, or rescinding them altogether. At the Restoration, the crown resumed this branch of its prerogative, which had been wrenched from it during the turbulent period of the civil war in the reign of the first Charles. The estates declaring it to be an inherent privilege of the crown, and an undoubted part of the royal prerogative, to have the sole nomination of the lords of session, as in the former times preceding the year 1637. At the Revolution, the whole of the judges were nominated by the crown; but this exercise of the prerogative occasioned violent debates in parliament, and serious tamults out of doors, it being contended, that although the king had the power to nominate a single judge, who must be tried and found qualified by the others before he could be admitted, yet his prerogative did not extend to the supplying a total vacancy, when no such test of individual fitness could be applied.
In the original act of institution, no provision was made to secure the senators against the influence of the crown, by declaring their places permanent during their life or good behaviour. And for many years, their political conduct does not appear to have afforded any just grounds of dismissal. In 1641, when the triumph of rebellion enabled the chiefs of the Covenanters to dictate to their sovereign, they decreed that the officers of state and judges should be elected by consent of the estates, and that their commission should be ad vitam aut culpam. This ordinance, (for the decrees of the parliaments during the usurpation were not called acts, but ordinances,) was rescinded with many others at the Restoration, and a new commission was granted by Charles II. to the exclusion of several individuals who had been appointed judges for life by the estates. In 1681, a new commission was granted, in which the names of Sir James Dalrymple of Stair, then lord president, and of two other judges, were omitted, and their places supplied by others. At the accession of James VII., a new commission was again issued; and, having been displeased with the parliamentary conduct of Sir Alexander Seton of Pitmedden, he displaced that judge by a letter to the court, in the following terms: "For reasons known to ourself, we have thought fit to remove Sir Alexander Seton from being one of the senators of the College of Justice. We do duly authorize and require you to cause make the necessary intimation thereof to all concerned." Shortly afterwards, two judges (lords Edmonstone and Harcarse) were deprived, in consequence, as was generally supposed, of a vote given on the bench against the king's wishes; the letter on that occasion also bearing that they had been removed for reasons known to the king, and signifying his royal pleasure that they might no more be admitted. There can be no doubt that the political subserviency which disgraced the court, during the period which intervened
between the Restoration and the Revolution, was chiefly to be attributed to the debasing dependence to which this right of removal on the part of the crown reduced the senators. "The changing of the nature of the judges' gifts ad vitam aut culpam, and giving them commissions ad bene placitum, to dispose them to compliance with arbitrary courses, and turning them out of their offices when they did not comply," was accordingly assigned as one of the reasons for declaring the throne vacant in 1689; and since that time, the senators of the College of Justice have uniformly held their places during life or good behaviour.
As formerly noticed, the senators were to be cunning and wise men, but of this qualification the king was to be the sole judge; and it appears from the earliest admissions of the senators, that simply on the presentation of the king's letter and taking the oath de fideli administratione, the new judge was admitted without farther question. The first restriction on the power of presentation, arose in consequence of the change of the national religion. By the act 1567, it was provided, that "nae manner of persone nor personis be ressaifit in ony tyme heerefter to beer publict office removabill of judgement, within this realme, but sic as professes the puretie of religioun and doctrine now presentlie establischeit." In 1579, on a complaint that "the king elects and chooses young men without gravity, knowledge, or experience, not having sufficient living of their own, and that some of them by themselves, their wives, or servants, takes buddes, bribes, goods, and gear, so that justice in effect is bought and sold," it was enacted, that the king should nominate as a senator in future "a man that fears God, of good literature, understanding of the laws, of good fame, having sufficient living of his own, and who can make good expedition and despatch of matters concerning the laws of the realm." Those nominated were to be tried by the other judges, and if found disqualified might be rejected, they continuing to present, until an individual sufficiently qualified appeared. The nomination of John Lindsay, parson of Menmure, was made in terms of this statute, and he was accordingly tried before being admitted. In 1584, an act was passed prohibiting all employed in the ministry from being judges; but an exception was made in favour of Robert Pont, presbyterian minister of the West Kirk, who, by compromise with the General Assembly, was allowed to continue as one of the judges.
On the first August, 1590, when Archibald Douglas, younger of Whittingham, was admitted a senator, the court directed trial to be taken of his qualifications in the following manner: "The said Archibald, three days togidder, sall pass and ische in company with the ordinar lordis, reporters of interlocutors, in the utter tolbooth; and the said Archibald, all the samyn three days, sall mak report, in presens of the hail lordis of all allegeances, of all answers, duplies, &c., had and proponit be the parties
and procuratouris in the utter house, and all the space, the said Archibald to gif his opinion, in the first place, upon ilk questione, and interlocutor; and thir three days being expirit, ordanis the said Archibald to sit in the inner house, and all the space to be heard to reason on ilk actioun and cause whilk sall happen to be callit during the time; and the said sax dayes being by past and all finissit, the lordis immediately thereafter sall pas to voting and consultation among themselves, and give answer to the king's magesty within written."
In 1592, it was enacted, that "nane sall be ressavit to ane place of ane senator in the College of Justice, except he be sufficiently tryit and knawin be his hieness and the haill lordis of session: that the said persoun sall have in yearly rent, properlie belonging to himself, the soume of one thousan merkes usual monie of this realme, or els twentie chaders of victuall: and, that his experience, qualitie, and conversation may be the better tryit, that he be of the age of twentie-five years at the least complete in all time coming."
Two years afterwards, an act of sederunt was passed by king James VI., with consent of the court, having for its object the prevention of two crying evils connected with the presentation of the judges of the supreme court. The first of these was an abuse which had gradually crept in, of senators anxious to retire from the toils of office resigning their places into the king's hand, in favour of a person named in the deed of demission. This transfer of the judicial office was afterwards ratified by the king, through the influence of some favourite at court; and the senators, overawed by the royal mandate, never ventured to dispute the admission of an individual so presented. It was now attempted to remedy this abuse by the act 26th June, 1593, by which it was declared, that in future, no resignation in favorem should be accepted of, nor any presentation proceeding thereon be admitted by the court; and that all admis sions of this nature which might occur hereafter should be null and void.
At the same time the crown consented to some additional restrictions on its presentations. The vacancy was not to be filled up until twenty days after it had occurred, in order to afford sufficient time for a judicious selection, and to disappoint the importunate solicitations of rapacious courtiers and secondly, the king was to present at least three persons to the court, out of whom they were to select the individual who was, in their estimation, best qualified to fill the vacant situation. This act appears to have come first into operation in filling up the vacancy occasioned by the death of David Macgill, of Cranstoun-riddle, lord advocate; and the manner in which the right of election was managed, is not a little singular and interesting. King James himself came to the court, and in his usual good-natured manner harangued the judges on the affection which
he had always felt towards the College of Justice, and the many honours and dignities which he had conferred upon the senators, more particularly the lately conferred privilege of electing their fellow judges. He then presented Mr Peter Rollock, bishop of Dunkeld; David Macgill, eldest Le son of the deceased, and John Preston of Fenton; all sufficiently qualiNfied for the vacant office. Further, in order to ensure the election of the best qualified individual, the senators were sworn, that, according to the best of their knowledge and conscience, they should choose the most worthy person to fill the vacant office. On this occasion, the vote by ballot was adopted. The record expressly bears "that the said senatouris being ilk ane of them solemnly sworne to the effect as said is, conjectis in pileum nominibus, electit and chosit the said Maister John Preston as maist qualifiet to occupie ye rowme in sessioun.”
In 1605, James VI. further limited the number of persons from among whom the judges of the supreme court were to be elected. Those now declared qualified to be received as senators were, first, six advocates, who were to be selected by the court from the ancient, wise and learned advocates, "wha hes given best proof of their wisdome, learning, honesty, and good behaviour in the exercise of their procuration," under the title of Elected, and which number the court were required to keep up: secondly, the principal clerks of session, having served two years in office : thirdly, peers of parliament, or their sons: and lastly, knights possessing a free revenue of £2000 Scots, yearly. The intrant-judges were further to swear, that they had neither directly nor indirectly procured their presentations, nor the resignations of their predecessors, by any sinister means, "for gold, or silver, or any other good deed and promise thereof:" and instant deprivation and the punishment of perjury were denounced against the guilty.
At the same time the judges were directed to prescribe a certain form of trial of "the sufficiency and literature in learning and knowledge" of all those aspiring to the rank of senators. They accordingly determined that in the first place, the chancellor, or in his absence, the president, should assign to the candidate one or more texts of the civil or canon law, on which he should discourse in Latin before their lordships in the inner house on the third day after, and for such space as they should enjoin. Secondly, the chancellor or president was directed, to call, in presence of the candidate, any of the controverted actions then in dependence, which was to be fully pleaded before him. After the removal of parties, the candidate was then to resume the state of the process, narrating, in their due order, the various pleas, objections, and replies which he had just heard debated. He was then to deliver his own opinion on these various points, and on the action generally, it being incumbent on him, in doing so, to declare the reasons of his judgment. The court were then to
take his presentation into consideration, and admit or reject the candidate according as he had sustained the prescribed trial.
On the 17th February, 1649, the estates drew up an ordinance, that no person malignant and disaffected to the work of Reformation and the Covenants, that is, those who stood for episcopacy and the king, or against whom there existed any just grounds of suspicion of such disaffection, nor any person given to drunkenness, swearing, uncleanness, or any other scandalous offence, should thenceforward be chosen as a judge.
At the Restoration it was declared, that the admission of senators should in future be in conformity with the laws and acts of parliament before 1640. These were, however, frequently disregarded; and Sir George Mackenzie says, seats on the bench were given solely with regard to the political influence of those who obtained them. The judges then admitted were not subjected to any trial, but were required to take the oaths of allegiance and de fideli administratione, and to subscribe an acknowledgment of the royal prerogative, which had been agreed to by the estates of parliament. On the admission of Sir David Nevoy of Reidie, on the 26th June, 1661, the court, while they admitted Sir David without trial or examination, on the ground that he had been nominated by the king in place of the viscount Oxford, who had been named in the general appointment, but who had never accepted, resolved, that in future, persons appointed as judges should be tried and examined by the lords, and give proof of their "literature and knowledge of the laws and practick of this kingdom, conform to the ancient customes and acts of parliament maid thereanent."
In June, 1662, when Sir James Dundas of Arniston was appointed, instead of subjecting the candidate to the trial anciently prescribed, the court simply deputed two of their number to confer with Sir James, and to examine him privately "anent his literature and knowledge of the laws and practick of this kingdom, conforme to act of parliament." On the following day the committee returned a favourable verdict, and he was admitted accordingly.
This mode of private examination was not calculated to satisfy the public as to the legal qualifications of the men selected to be the supreme judges of the land, and it afterwards degenerated into a mere form. The candidate retired with two judges, who, after a few minutes' conversation, returned and reported him fully qualified for the vacant office. The temptation which this laxity offered to ministerial corruption to fill the bench with their own political friends, was abused by the unprincipled Lauderdale, who in two years appointed four of his own creatures, who had not so much as studied law. The complaints of the people, and the remonstrances of the duke of Hamilton and his party, who even introduced a bill on the subject into the committee of Articles, at length