JUSTICIAR, or Justice-General of Scotland, officially the chief judge of the supreme criminal court of Scotland, but of old, as in England, the chief justice of the kingdom. The origin of this high office cannot, from the want of records, be traced. There can scarcely be a doubt, however, but that it was derived to us from England after the Norman conquest. The earliest notice we [7:12:655]have of it is in the time of Male. IV.; and then two justiciars appear, a justiciar of Scotland, and a justiciar eA' Lothian, or the territory subject to the king of Scots south of the Forth. Here, as in England, the justiciar was the king’s chief officer, and at the head, not only of the law in all its departments, civil, criminal, and maritime, but also of the military force of the kingdom, caput legis et militiae ; and accordingly we find several instances of the martial prowess, as well as judicial authority, of the justiciar of Scotland in early times, particularly of the valiant justiciaries Buchan and Durward, in the middle of the thirteenth century. Durward, indeed, during his temporary removal from office, is known to have joined the standard of King Henry III. of England in the French campaign; and Fordun’s character of him is more that of a gallant military officer than a sober gownsman.

In 1296, a single justiciar appears for the whole kingdom, in the person of Sir William de Ormesby, a justice of the Common Pleas in England, who was constituted by King Edward I. lord-justiciar of Scotland; but this appointment was of short continuance. In 1305, the English monarch having again put down the Scotch, distributed the kingdom into four districts, and appointed for each district two justices; an arrangement in which the English Justinian had certainly an eye to the judicial system of England, and to the introduction of justices in eyre or of assize, as delegates of the aula regia, or justice-deputes, such as were established in that country. The death of Edward, however, soon .afterwards put an end to the project; and the old practice of having two justiciars was returned to, and continued till the time of King James IV., but under the designation of a justiciar north of Forth, and a justiciar of Lothian, or south of Forth.

Soon after the fatal battle of Flodden, in the beginning of the sixteenth century, the office of justiciar, or, as he was now styled, justice-general (in contradistinction to the special justices now frequently appointed, as well for particular places as for particular trials), came again into the hands of a single individual, viz. the Earl of Argyll, in which noble family it was hereditary for a century. The High Court of Justiciary, also, began then to be settled at Edinburgh; whereas, before, the parliament and superior courts were held chiefly north of Forth.

Towards the end of the same century, an alteration was made on the manner of going circuit. In the time of King Robert HL, the justiciars were each required to pass twice in circuit through every shire of their jurisdiction. But by 1587, cap. 82, instead of passing through the realm from shire to shire successively, the realm was divided into four quarters, and two senators or advocates of the College of Justice were appointed as justice-deputes for each quarter. This system continued about a century, when, by 1672, cap. 16, instead of the former justice-deputes, certain lords of Session were constituted commissioners of Justiciary, along with the justice-general, and the justice-clerk was made vice-president of the court, to preside in absence of the justice-general; an arrangement which has continued to the present day.

The jurisdiction and the powers of the justiciar of England arc known to have been distributed amongst the superior courts now existing there. The history of the powers possessed by the justiciar of Scotland we shall now notice. In England the justiciar became a formidable officer, a terror at once to the crown and the people. It does not appear that such was ever the case in Scotland. This no doubt arose much from the early partition of the office into a justiciary north and south oř Forth. But his great adversary was the lord-chancellor, as the organ and instrument of the papal clergy, in whose hands the office of chancellor had here, as in the other countries of Europe, long been vested. The high office or justiciar was the envy of the ecclesiastics, always noted for their ambition; but it being forbidden them by the papal constitutions, as a secular tribunal and a place of blood, they could not directly seize upon it as they had done upon the office of chancellor. They therefore set about filching its jurisdiction; and in 1425 the first Court of Session was erected, composed of the chancellor, and with him “certaine discreete persones of the three estates,” chosen by the king, with power to judge in all matters competent to the king and his council. In 1503, the Court of Daily Council was instituted instead of the Court of the Session; and at length, in 1532, the present Court of Session and College of Justice was established at Edinburgh, with a jurisdiction in all civil causes. From that time forward, the civil jurisdiction of the justiciar (whose office, it will be remembered, was now hereditary in the family of Argyll, and consequently feeble and inefficient) ceased. And not only so, but its relative importance expired, and the Court of Session became the supreme court of the kingdom; for, by clerical ability, or by lay subserviency not found in England, where the old common Jaw has ever continued the antagonist of Roman jurisprudence, an act passed here (1540, cap. 72), requiring all sheriffs and other temporal judges to copy the proceedings (not of the justiciar, as heretofore, but) of the Court of Session. The triumph of the papal clergy was then complete; the old common law ceased; its records became obsolete, and are to this day of apocryphal authority; and the civil and canon laws became, what they were in use to be denominated, the common law of Scotland. And what the Court of Session effected ∕n the civil jurisdiction of the justiciar, the Court of Admiralty did in its maritime jurisdiction. That court was little known before the end of the sixteenth century. About that time Mr Alexander King, advocate, was appointed judge of the Admiralty; and almost immediately, owing to the compilation of his Treatise on Maritime Law (perhaps the earliest regular work on that branch of jurisprudence in Britain), the Court of Admiralty rose to importance; and in 1681 it was declared a sovereign judicature, and the high-admiral, the king’s lieutenant, and justice-general on the seas. In our own day, however, the High Court of Admiralty has been abolished, and the Court of Justiciary has re-acquired a criminal jurisdiction on the seas. As respects the military power once possessed by the justiciar, that departed from him long ago, and became vested in the army itself, superintended by the crown; yet to this day a recognition of the ancient power may be observed at the Justiciary circuits.

The supreme judicative power of Scotland is therefore now vested in the Courts of Session and Justiciary. The justice-general being now wholly nominal, and a sinecure, the chief judge of Justiciary is the justice-clerk, and the puisne judges are certain lords of Session. The justiceclerk is also president of the Second Division of the Court of Session, though, which is singular, he is not necessarily a lord of Session; and by a late act of parliament, the president of the Court of Session is, on the termination of the existing interest, to assume the office of justice-general. In effect, therefore, though in a very bungling and awkward sort of way the Court of Session will, on the act in question coming into operation, take the place and jurisdiction of the ancient justiciar, (u. u. u.)