A.M. Godfrey has written a magnificent, multilayered study with wide-ranging implications for legal history and for an understanding of sixteenth-century Scotland. Though the central pivot of his volume is the foundation of the College of Justice in 1532, this book also offers answers to the broad questions of what constituted civil justice during the Renaissance period and what role a central court had to play in changing the legal culture of early modern Scotland.
Arising out of a PhD thesis examining the business and jurisdiction of the Court of Session before and after the foundation of the College of Justice, the core of historical evidence within the volume (chapters 4 to 7) has come from an exhaustive trawl through the manuscript records of the Session. The precise analysis of the procedure, judicial business, and jurisdiction of the Court of Session demonstrates exactly how that court worked during the crucial years around 1532. This detailed chronological snapshot has been placed firmly within the story of the development of a Scottish central court. A perceptive narrative (chapters 1 and 2) of the twists, turns, and false starts from 1426 to 1532 sets the scene for the main argument that the foundation of the College of Justice was critical for the future direction of Scottish legal culture.
Some of Godfrey's arguments concerning the extension of the jurisdiction of the Court of Session have been aired in previous articles, but they are here drawn together and linked to his view of the Session's omnicompetence in civil matters. The claim that the Session had already established itself before 1532 as a supreme central court with unlimited civil jurisdiction—by completely throwing off previous constraints concerning fee and heritage—leads to an interesting discussion of times of “overlap” between different legal frameworks. This approach is likely to provoke further useful debate about the nature of change within legal cultures and mentalities.
The detailed study of the Session as a ius commune central court is successfully combined with a broad comparative perspective of changes within other European polities. Particularly in the introduction and conclusion, Godfrey generates some important general observations concerning the development of legal cultures within Renaissance states.
The wide lens has also been applied to Scottish governance and society. In a thought-provoking modification to the commonly accepted view of sixteenth-century Scotland as a “feuding society,” Godfrey adds the label “litigating society” and holds the two in tension. The fine section on dispute resolution (chapters 8 and 9) includes a strong case for the integration of arbitration and formal court proceedings. It is shown that contemporaries viewed them primarily as different options for handling disputes. This sheds fresh light upon the relationship between “public” and “private” justice, which were viewed as complementary rather than alternatives. The important distinction between developments in civil and in criminal justice during this period helps highlight the role of a central court and the crucial significance of the expectations of litigants to the whole process. Within the debate about state formation, Scotland is viewed as changing its legal culture and increasing central governance more as the result of pressure from below than the imposition from above of a master-plan of centralization. A chronological argument is also advanced giving the earlier decades of the sixteenth century, and obviously 1532, greater prominence in the story of the re-formation of the kingdom. Considerably earlier than has hitherto been recognized, major cultural shifts were underway within the legal and governmental framework.
Less overtly perhaps, but with considerable strength, this book makes a powerful case for valuing the approach within legal history that examines in detail the operation of a court of law. Through such studies developments can be spotted that do not show themselves when studying other kinds of legal sources.
This valuable study has riches to offer to those interested in law and/or history. As one who straddles these disciplines, Godfrey also manages the harder task of showing each constituency how intertwined their concerns should be. Despite its unfortunate price, this volume should be on the bookshelves and booklists of everyone interested in the development of the ius commune, or more generally, in sixteenth-century legal history and early modern Scotland.
