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Title: The Scottish Parliament
Before the Union of the Crowns
Author: Robert S. (Robert Sangster) Rait
Release Date: June 26, 2014 [eBook #46106]
Language: English
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THE SCOTTISH PARLIAMENT
Before the Union of the Crowns
by
ROBERT S. RAIT
Fellow of New College, Oxford
London
Blackie & Son, Limited, 50 Old Bailey, E.C.
Glasgow and Dublin
1901
CONTENTS
PAGE
PREFATORY NOTE v
INTRODUCTION vii
THE SCOTTISH PARLIEMENT BEFORE THE UNION OF CROWNS 1
I. ORIGIN, MEMBERSHIP, AND METHOD 13
II. THE INFLUENCE OF PARLIEMENT 60
APPENDIX 119
PREFATORY NOTE
The outline of the history of the Scottish Parliament, up to the
Union of the Crowns, contained in the present work, is based upon
the Essay on the Scottish Parliament, to which was adjudged, in
1899, the Stanhope Prize in the University of Oxford. A large
portion of it has appeared in the _English Historical Review_ for
April and July 1900, and to the Editors of that periodical thanks
are due for their courteous permission to reprint. Although the
main theme closes with the Union of the Crowns in 1603, it has been
thought desirable to include a brief sketch of the history of the
Estates up to the Union of the Kingdoms in 1707; but the section
dealing with the seventeenth century makes no attempt to do more
than provide a very brief outline of general tendencies.
The writer wishes to make acknowledgments of helpful criticism,
received in the later stages of the preparation of this book, from
Professor Lodge of Edinburgh, and from Mr. H. A. L. Fisher, Fellow
and Tutor of New College. To Mr. Fisher, his former teacher (not of
History alone), who continues to the colleague the same unfailing
sympathy and kindness which he bestowed upon the pupil, the author
gladly takes this opportunity of expressing his especial gratitude,
together with the hope that a debt so pleasant may be allowed to
increase through many years to come.
R. S. R.
NEW COLLEGE, OXFORD,
_January, 1901_.
INTRODUCTION
The History of Institutions scarcely requires to-day, the eloquent
defence with which the Bishop of Oxford prefaced his great book,
almost thirty years ago. His own work has proved more than
sufficient defence for his field of labour, and universal assent
would now be given to his claim that "nothing in the past is dead
to the man who would learn how the present comes to be what it
is." Within the last few years, Professor Maitland has shown us
the importance of much in the past that was generally regarded
as trivial and incidental. He has illumined, with the torch of
history, the dungeons of learning which have been generally
supposed to form the abode of the antiquary, and, apart from
the brilliant results he has personally attained, the present
generation of investigators owes to him a clearer conception of the
relation that should exist between more purely antiquarian pursuits
and wider historical studies.
It is true that the institutions which have provided a theme for
Bishop Stubbs and Professor Maitland, have in part survived from
the seventh century to the twentieth, and that they still form the
basis of the constitutional life of a great people. For a period
of a thousand years, historical inquirers have been attempting
to discover their origin, and, within the last two centuries,
distinguished thinkers and writers have, from time to time,
attempted to leave to posterity a worthy record of their history.
They have served as models for continents the very existence
of which was unknown for centuries after English institutions
had assumed a definite shape, and they have proved capable of a
development so important that they have become the centre of an
empire more than one hundred times the size of the country in which
they originated.
Nothing of this description can be written of the history of
Scottish institutions. They have, in large measure, disappeared,
and it is not always easy to trace any influence in modern life
which may fairly be attributed to the fact that they once existed.
The constitutional history of Scotland is partially unrecorded and
is, in any formal way, wholly unwritten. Of the constitution of
the kingdom, as it was when the sixth James took his seat on the
throne of Elizabeth, only one portion has survived to our own day.
It is a large portion, for it comprises the legal and judicial
system which furnishes so great a proof of the wisdom of our
ancestors, and which still serves to differentiate a nationality
that inventions and commerce have combined to destroy. All else
has gone. There is still in Edinburgh "a ghost of speech" which
reminds the curious that men once did more in the Scottish capital
than merely administer the law; but the "Parliament House" is only
a name--_vox et praeterea nihil_. The system of administration,
the methods of finance, the royal prerogative, the Privy Council,
the hereditary jurisdictions, have vanished. Local jealousies,
clan and family hatreds, the hopes and fears of noble and burgess
and peasant have ceased to find a place in the national records.
The relations between Church and State, after undergoing numerous
transformations, have been decided in accordance with the
Revolution Settlement, and have once and again been modified under
Queen Anne and under Queen Victoria. The General Assembly still
meets, but it is not, and could not be, the General Assembly of
John Knox or of Andrew Melville. The Royal Burghs maintain their
wonted Conventions, but only to take counsel, and never to act. It
is no longer possible to recognize the fabric of the constitution
of the kingdom which King James left in 1603.
Such a subject as this must, of necessity, occupy the border
between antiquities and history, and it possesses its full share of
the difficulties that beset the antiquary more than the historian.
The information which it is the antiquary's duty to collect is
widely scattered in bounds of space, and is possessed of but
a meagre connection in thought. He must be prepared to bring
together his material from many different quarters and to find
it in many varying forms. Facts that have been preserved because
of their local import, and have been buried in local records
far from the scene of his interest, rumours and legends that
continue to exist in connection with some individual who finds no
place in his main theme, casual remarks of accidental observers,
inferences deduced from half-forgotten customs and from dying
myths, carefully kept records which, either wilfully or by chance,
are designed to give a false impression unless read in the light
of some apparently irrelevant circumstance--such are the materials
on which the antiquary depends. The writer who is bold enough to
undertake an investigation into the Scottish Constitution will
find the difficulties of the antiquary added to the troubles of
the historian. His task is that which, of old, Pharaoh set to the
children of Israel--"Go yourselves, get ye straw where ye can ...
for there shall no straw be given you, yet shall ye deliver the
tale of bricks." The student of the English Constitution can point
to a body of documentary evidence such as no other nation can
produce. What would not the Scottish student give for the _corpus_
of Anglo-Saxon law, the magnificent record of Domesday Book,
the Dialogue concerning the Exchequer, and the _Modus Tenendi
Parliamentum_? Yet these constitute only a small fraction of the
material which now lies ready for the beginner in the study of
English history, and he may learn more in a month than years of
patient labour will yield to the investigator of the _origines_
of Scottish civilization. The Scottish Constitution began to take
shape between the reigns of David I and Alexander III, that is,
in the twelfth and thirteenth centuries, and the records of these
years have been, in large measure, destroyed. The shock of the
War of Independence arrested its development, but constitutional
movements can again be traced under David II and James I, and
for the century which connects their reigns (1329-1437) our
information is scattered and meagre. The English historian knows
definitely the racial distribution with which he has to deal, and
he can disintegrate the influence of Saxon and Dane and Norman. In
Scotland, we have to face at the very outset, a racial problem as
yet unsolved, and we are called upon to disassociate influences of
the origin of which we are ignorant, and whose effects we meet only
in the mass.
The student who would attempt such a problem as this must be
familiar with the outlines of English constitutional development,
but he must also be prepared to banish from his mind all prejudices
and prepossessions derived from such knowledge. For he will find
here no record of liberty slowly broadening from precedent to
precedent, no statesmen kings, surrounded by sagacious advisers,
defining the scope and the purpose of a legal system, no patriotic
barons, banded together to wrest from an unwilling monarch a power
which was not being wielded for the national good, no common aim
uniting reformers of the thirteenth century with reformers of the
seventeenth. He can name here no great names in the progress of
constitutional freedom or in the growth of a consistent system of
law; Scotland produced no Henry the Second, no Simon de Montfort, no
Edward the First, no Hampden and no Sydney. He must divest himself
of the atmosphere of English history and be prepared to find a
separate people, affected by influences widely different, and
responding to impulses clearly divergent from the familiar movements
of English history. The story is not without its heroes, but they
are of a wilder and more romantic type than in England. James I,
throwing himself bravely and fiercely against the system of abuses
which he found in Scotland, and paying with his life for his courage
and devotion, is a constitutional hero utterly unlike a Henry or an
Edward. This aspect of Scottish history is the less interesting and
the less definite because it is so largely impersonal; there are
many famous names in the political and in the ecclesiastical story
of Scotland, but few indeed lend themselves to brighten the pages
that tell of constitutional development. It is, perhaps, for this
reason that historians have left it alone. Writers on Scottish
history from Boece and Major to Tytler and Hill Burton have ignored
its existence; even the learned editors of such constitutional
documents as the Privy Council Register and the Treasurer's Accounts
have been pre-occupied by the varying scenes of the political drama,
and are largely silent on questions relating to the constitution.[1]
The conditions of government, justice, and finance before the reign
of Malcolm Canmore, and the relations of the king to his seven
mormaers or earls, are unexplored mysteries. Not less difficult are
the questions that relate to the next period. How did the burghs
come into being, and whence did they derive that system of law and
custom which was administered by the Four Burghs and the Hanse
Burghs, and which even Edward I was unable to ignore? How did the
clan-system of the tenth century pass, in the Lowlands, into the
family-system of the twelfth? Who were the good men who formed the
community of the kingdom, and on whose advice the kings granted
charters and liberties? What was the real signification of these
charters themselves, and what privileges did they confer? What was
the precise nature of the threat implied in the warning that a man
who neglected the king's ordinances should lose his court for
evermore? All these are as uncertain as are the powers of the
Executive, the administration of justice, the police-system outside
the towns, or the arrangements for national defence. Even in the
centuries of our separate history which are most fully known, the
fourteenth, fifteenth, and sixteenth, we are beset by many of
the same problems and by others not less obscure. How far was
constitutional development in Scotland affected by the short-lived
union under Edward I? How far by the three hundred years of alliance
with France? Can we infer any connection between the German Diet and
the Scottish Estates, between the Lords of the Articles and the
Committee by which Richard II attempted to supersede the English
Parliament? What is the explanation of the relative position of
the Estates of Scotland, and of their seemingly capricious periods
of importance under David II and Robert II? Questions like these,
to which no answer has yet been attempted, await the student of
Scottish institutions, along with the usual problems of finance
and justice, the Church, the Crown, and the Legislature.
The present Essay is an attempt to deal, in outline, with a single
aspect of this constitutional problem. It is the part of the
subject on which most evidence is available, and yet the limits of
evidence are such as to render many of the difficulties incapable
of solution. Almost our only sources for the earlier period are
formal charters and incidental references by chroniclers. The
scribes who drew up the formal documents were not concerned with
the actual circumstances which had produced these deeds; it was
their duty to follow the recognized rules of Diplomatic, rules
which had originated in foreign Chanceries and which bore the
impress of a different civilization. The technical terms in which
they abound are not of Scottish origin, and are frequently used
to describe conditions to which, in reality, they are totally
inapplicable.[2] The historians often belong to an era much later
than that of which they write, and they apply, to questions
dealing with origins, the phraseology of a relatively late stage
of development. When the records of the Acts of Parliament begin,
in the twelfth century, they yield us only incidental enactments
mainly relating to police methods, and, as they become more
numerous, they retain their characteristic of dealing, almost
exclusively, with administrative detail. We possess no writs
summoning a Parliament, no report of a debate in the Scottish
Estates. The constitution of a valid Parliament, the procedure
necessary for prorogation and dissolution, the rights of the
burgess members, were never definitely decided. The "three Estates"
was a technical term having a different meaning at different times,
and the word Parliament was applied to bodies so diverse as the
great Council which negotiated the ransom of King David II and
the nobles who entered into a hasty consultation with James IV at
Twiselhaugh. As English constitutional liberty advanced, phrases
borrowed from the English Commons find a place in the Scottish
records, but they possess no real significance, and they render
more difficult the task of interpreting the Acts. It is only now
and again that we can speak with certainty of the membership
of Parliament, or of the proportion of burgesses to barons and
ecclesiastics. The Acts of the Parliament of Scotland give as
little assistance to the historian as it is possible for such
documents to yield.
Our information certainly becomes less meagre as time goes on. The
publications of the Burgh Records Society are important evidence of
the state of administration in the most favourable circumstances.
The professed histories become more valuable, and from the
beginning of the sixteenth century there is a large amount of
contemporary description, mainly incidental. Such references must
be collected from the works of historians like Boece and Major;
from the writings of controversialists like John Knox, George
Buchanan, and James VI; from the diaries of private gentlemen,
preserved to us by an unusually benignant fate, or from the
reports of ambassadors. We owe more to the intelligent curiosity
of Pedro de Ayala (the emissary of Ferdinand and Isabella), and
of Thomas Randolph (the agent of Elizabeth), than to many more
serious sources. But contemporary evidence of this kind must be
subjected to rigid scrutiny. The historian of his own times is
seldom free from the taint of political prejudice, and the eyes
of controversialists are blinded that they cannot see. The simple
diarist is not impressed by the even tenour of life; his pen finds
an inspiration only in the unusual and the abnormal, and it is
difficult for us to discover the rules when we are given only the
exceptions, or to keep a true proportion in our mental vision when
we can find no standard of comparison. Least of all can we give
implicit trust to the political agent, whose motives are uncertain,
and who was himself quite likely to mistake the accidental for
the normal. Lastly, there are the formal accounts and the figures,
facts, and dates which appear in official records; but such
evidence is only of subsidiary importance, and, of itself, can
rarely give adequate support to any theory.[3]
The effect of these limits of evidence will be obvious on every
page of the present work, and such conclusions as the writer
has drawn must, of necessity, be merely tentative. It is, in
some respects, unfortunate that these conclusions should be so
largely negative in character: that the general effect is, not
so much to show what the Parliament was, as to point out what it
might have been and was not. One may claim, however, that even
these negative conclusions will produce ultimately a positive
effect, for the reader must seek out other causes for the results
that the Parliament did not achieve, and other means for the
training that was not supplied by the Estates; and such an essay
as this may serve to warn him from the wrong track. It may also
be useful as exemplifying the limitations of the doctrine that
national progress can be measured by constitutional advance. It
is impossible to question the progress of Scotland between the
murder of the first and the death of the fourth James; a comparison
of the description of Scotland written by Aeneas Sylvius[4]
(Pius II), who visited it about 1438, and the account of the
resources of the kingdom supplied by Pedro de Ayala to Ferdinand
and Isabella,[5] is a satisfactory object-lesson. The future Pope
writes of a poverty-stricken land, with miserable inhabitants,
dwelling in wretched houses. The Spaniard found considerable
prosperity and increasing commerce, with houses "all built of hewn
stone, and provided with doors, glass windows, and chimneys," and
Italian and French furniture. But between 1437 and 1513 it is
not easy to discover any single token of definite constitutional
development, either in the direction of absolute government or in
that of popular liberty. Not only does Scotland fail to produce a
constitutional movement like that which characterizes the history
of England; she does not develop any kind of constitution at
all. No absolute monarch, no oligarchical council, no democratic
parliament occupies the stage of her history for any length
of time, nor does she know any free cities or any independent
duchies. This constant condition of unstable equilibrium is not
precisely analogous to the history of any other European country,
and least of all is it like that of England, where we are apt to
judge of national, by constitutional, progress. Yet, advance there
certainly was, if not unbroken, still persistent, and persistently
unconnected with questions relating to the constitution.
The conclusions here stated with regard to the Scottish Parliament
are, however, not entirely negative. The work of the Estates has
left some positive and definite results of more than incidental
character. The long series of administrative enactments, dealing
mainly with police methods and with trade, helped the rise and
growth of the Scottish burghs, and, even outside the burghs, they
added something to the forces that made for peace and good order.
There are occasional measures which found a lasting influence upon
the character of the people. The Education Act of 1496, which
provided that "all barons and freeholders that are of substance
put their eldest sons and heirs to the schools, fra they be aught
or nine years of age, to remain at the grammar schools until they
be competently founded and have perfect Latin, and thereafter to
remain at the schools of art and jure (_i.e._ the universities),
so that they may have knowledge of the laws," forms a fitting
conclusion to a century in which the spirit of poetry had deserted
England for her northern neighbour, and in which the successors of
Chaucer are to be found beyond the Tweed. It was not obeyed in the
letter (although we do find the barons of the sixteenth century
possessed of clerkly skill), but its influence may be traced in
the provision for education made at the Reformation. Even when
the definite results were less clearly marked, the existence, in
the statute book, of words and phrases to which a constitutional
meaning might conceivably be attached (like the existence of
parliamentary institutions themselves), served as a rallying cry
for men who desired reform, and gave to what was really a new
demand the advantage of ancient tradition. As we proceed, we
shall note some instances of this. The greatest and most lasting
effect of the Scottish Parliament is, however, the judicial
system of the country. Alone among European countries, Scotland
still possesses a judicature which is the direct descendant of
a Committee of the Estates. The College of Justice, which, in
its present form, was established in the year 1540, ultimately
derives its powers from the Scottish Parliament, which, in 1370,
first appointed a small committee to deal with its judicial work.
The system of Scots law, which the Senators of the College of
Justice are appointed to administer, is, in so far as it differs
from the law of England, the product, direct or indirect, of the
wisdom of the Scottish Estates, working on the material supplied
by the civil and the canon law. In the thirteenth century, the
law of Scotland, which had supplanted the ancient customs of the
Picts and Scots, was largely based on English law. The Saxon and
Norman influences, which had altered the Scottish Church and
the Scottish language, had introduced into Scotland many of the
leading features of Anglo-Norman law. "It seems clear enough,"
says Professor Maitland,[6] "that, at the outbreak of the War of
Independence, the law of Scotland, or of southern Scotland, was
closely akin to English law. That it had been less Romanized than
English law had been is highly probable: no Bracton had set it in
order.... Romanism must come sooner or later; the later it comes
the stronger it will be, for it will have gone half-way to meet the
mediæval facts." We find, accordingly, that, later and stronger,
the Roman law did come. After the War of Independence, Scottish
lawyers borrowed little from England, and, gradually, important
differences began to emerge. Mr. Hill Burton has pointed out that
the statement, frequently made, that the civil law is part of
the law of Scotland, "can only be true of those portions which
have from time to time been incorporated with it." The selection
of these portions and their local adaptation formed part of the
work of the Judicial Committee of the Estates. No attempt was made
to codify Scots law for forty years after the Judicial Committee
had been constituted as the Court of Session, but, in 1574, a
commission was appointed to investigate into the condition of the
law and to report on what they considered "meet and convenient
to be statute."[7] The source of such additions as those made in
accordance with this enactment was the Roman law, and the result
has been to produce many discrepancies between Scots and English
judicial institutions. The distinction between law and equity,
for example, so important in England, is unknown to Scots law,
for there never arose in Scotland a separate series of courts to
administer a common law differing from the Roman civil law. The
fact that the College of Justice was, in theory, a Committee of
the Estates, has produced some interesting results. The idea of
appeal was unknown in Scotland, or almost so. The records of the
Privy Council show that the acts of the Court of Session were
sometimes rendered null and void by the Council,[8] but the Council
in no way exercised an appellate jurisdiction. In the reign of
Charles II, an attempt was made to create the Estates into a Court
of Appeal from the College of Justice, and it failed, for the
technical and historical reason that the Parliament had already
delegated its powers to the Senators. At the Revolution, the Claim
of Right demanded the introduction of some process of appeal, but
the Union negotiations did not deal with the question, and when,
about 1711, in a case between the Presbytery of Edinburgh and an
episcopal clergyman, the House of Lords heard an appeal from the
Court of Session, they afforded the first instance of an appellate
jurisdiction in Scottish causes. It is another consequence of the
parliamentary origin of the Courts of Law that the High Court of
Justiciary still possesses authority "competently to punish (with
the exception of life and limb) every act which is obviously of a
criminal nature, though it be such which in times past has never
been the subject of prosecution."[9] The English courts have no
such powers of "declaring" a crime.
There are also such familiar technical differences as those
relating to Conveyancing and the Law of Purchase, and such
divergencies from English custom as the number of a Scottish jury,
and its power to bring in a verdict which is not unanimous, or the
judgment of "Not Proven," which is unknown to English law. But
beyond all such debatable issues, there are many important respects
in which the law of Scotland is more considerate of the rights
of the weak than is the law of England. In questions relating to
movable succession, for example, widows and children are protected
from the eccentricities of death-bed piety; in cases of legitimacy
and marriage the weak can claim privileges refused to them by
English law; and with regard to divorce, the rights of husband
and wife are equal. The principles of Scots law which protect the
lease-holder and the tenant against the caprice of the landlord can
be traced to an Act of the Scottish Parliament as far back as 1449.
If the general tendency of the Romanization of Scots law has been
to render it less harsh, it forms an interesting contrast to the
Romanization of German law, which met with strenuous opposition,
and which increased the severity of German municipal legislation.
If the production of a legal system forms but a small _apologia_
for a Parliament which existed for several centuries, it
nevertheless entitles the Scottish Estates to be reckoned among
the forces which have made the nation; and it is legitimate cause
of satisfaction that, in spite of all the forces of misgovernment
which held sway for so long, the peculiarity of the law of Scotland
is its regard for the poor and the weak. If Scottish parliamentary
institutions never produced the complacent Whiggism of the
triumphant middle class of England, it certainly produced many
worse things, and it is pleasant to find some few that are better.
THE SCOTTISH PARLIAMENT
BEFORE
THE UNION OF THE CROWNS
"In Sterling, the king being convoyit to the parliament hous, and
set at the burde, be fortune he espyit a hole in the burde-cloth;
so that, as young childer are alwayis unconstant and restles,
he preissit to attene to the hole with his finger, and askit
of a lord wha sat nar by him to know what hous that was; and
he answerit that it was the parliament hous. 'Then', said the
king, 'this parliament hes a hole into it.' Whether God inspyrit
the babe then with prophecie at that tyme or not, I will not
dispute."[10]
The chronicler wrote of the year 1571; but there are on record few
meetings of the Scottish Parliament at which the "prophecie" might
not with propriety have been made. "This parliament" throughout
nearly all its history "hes a hole into it." The ruler of Scotland
might be the king; the supreme power might be in the hands of this
or that noble or of this or that combination of nobles; or it might
belong to the General Assembly of the Church: but rarely indeed
was the country governed or guided by the Estates.
The people of Scotland have ever had a wholesome horror of works
of supererogation. The Parliament did not meet to rule the
country, but it did meet nevertheless, and those who summoned
it had a definite purpose in view. What that purpose was may be
best understood if we take, as an illustration, one small section
of Scottish history and note the action of the parliaments that
met during these years. The reign of Queen Mary nominally lasted
from 1542 to 1567; her actual period of rule commenced with her
arrival in Scotland in the summer of 1561, and ended six years
later. During these six years, four parliaments were summoned. The
first of these met in June 1563. While it transacted some details
of business, the main purpose of its meeting was the forfeiture
of the Earl of Huntly. But the forfeiture of Huntly was already
an accomplished fact, and it gained nothing in reality from the
ghastly scene when sentence was pronounced upon the half-embalmed
corpse of the rebel lord. A year later Parliament again met, and
annulled the sentence of forfeiture which had been pronounced, in
1544, upon the Earl of Lennox. A contemporary inserted in his diary
the innocent remark: "In this parliament, thair was nathing done,
except the reductioun of the said proces of forfaltoure."[11] But
the Earl of Lennox had already been some months in Scotland. In
the spring of 1566, a parliament was summoned which never met. It
was called together to pass sentence of forfeiture upon the Earl of
Murray and his accomplices in the "Run-about-Raid," and the murder
of Rizzio prevented its assembling. But the insurgent lords had
been exiles for nearly a year. Finally, in April 1567, Parliament
made certain ratifications of lands--mainly to nobles against whom
sentences had been passed by the secret council for their share
in the Run-about-Raid and in the Rizzio murder. But all these
lords had returned and had for some time been in quiet possession
of their estates. The explanation of all these forfeitures and
reductions of forfeitures belongs to political history. The student
of the constitution will note that the Parliament had no voice in
the matter. The Estates were convoked because their sanction gave
an unquestionable legality to what had already been done by the
executive power, whatever that might be. Their function was that of
the official who places the necessary stamp upon an agreement. If
the official were to decline to stamp the paper, questions about
its lawfulness might arise. But it was just as certain that the
three Estates would sanction the forfeiture of Huntly or the return
of Lennox as it is to-day that an agreement may be stamped and so
made to hold in law.
This is not the view that has appealed to Scottish historians.
The late Mr. Hill Burton maintained a position almost the reverse
of the thesis we have proposed. But, with all deference to that
distinguished scholar, one may be allowed to argue that he wrote
with all the prejudices of a Whig of the middle of the nineteenth
century. Constitutional progress was, for him, as for other writers
on this subject, the only justification of a nation's existence.
It did not seem possible that a people could advance worthily,
except as England had advanced. This predisposition to find in
Scotland an analogy to English parliamentary institutions was
encouraged by the occurrence of many words and phrases in the rolls
of the Scottish Parliament which seem to the English student quite
decisive in favour of a "constitutional" point of view. But the
history of institutions cannot be written from their own records.
If we possessed, as material for the constitutional history
of Scotland, only the "Acts" of the Scottish Parliament, our
conclusions would be more radically false than if there remained
to us only the narratives of the chroniclers and the more strictly
political documents. The "Acts" are written in cipher and we have
to find the key. An important part, for example, of the records
of the revolutions of 1560 and 1640 is to be found in the volumes
which contain the parliamentary proceedings; but, as we shall
have occasion to notice, the explanation lies elsewhere. It is a
further illustration of our contention, that so few contemporary
writers were sufficiently impressed by the Parliament to give any
space to the story of its growth. No man knew the powers of his
time better than did John Knox; and in Knox's _History of the
Reformation in Scotland_ there are very few references to the
Scottish Parliament, and only one of these is more than incidental.
In this respect, Knox is a fair specimen of early historians. The
only exception is George Buchanan, who tells of many meetings of
"the Estates, who possess the supreme power in everything."[12]
Buchanan's historical reputation is not sufficiently high to lend
much importance to his unattested word; and the emphasis which he
lays upon the action of Parliament is so unusual that it has led
to Father Innes's conjecture that he wrote his "History" in the
interests of a republican theory of government.[13] Although Innes
had all the prejudices of a Jacobite who lived before Culloden, his
scholarship was undoubted, and his accusation is striking testimony
to the small place held by Parliament in the pages of Buchanan's
predecessors and contemporaries.
An obvious parallel may be drawn between the Scottish Parliament,
as we have described it, and the English Parliament under the
Houses of York and Tudor. Historians of English constitutional
history have frequently pointed out that these sovereigns were, by
their use of Parliament, establishing, not their own power, but
that of the institution which they regarded as a passive instrument
in their hands; that Edward IV and Henry VIII were preparing
difficulties for James I and Charles I. The force of this argument,
as applied to Scotland, is greatly lessened by the fact that the
rulers of Scotland did not regard as essential the consent even of
a subservient body of Estates. Parliamentary ratification was, at
best, a convenient method of declaring and recording what had been
done. But it was no obstacle to an act of the executive that it had
not been thus sanctioned. This want of the continuous and normal
employment of parliamentary procedure combined with political
causes to prevent the appearance of the effect produced in England.
The view that we have stated can, of course, be pressed too far.
The mere existence of parliamentary institutions, whatever be
their condition at any given time, is in itself a menace to any
government not founded on the will of the people. They represent
what physicists call "potential energy." It is, moreover,
impossible for such institutions not to affect, in some way,
the life of the people, and to influence the civilization of the
country. There were various times when the Scottish Parliament gave
an earnest of what power lay underneath its acquiescence. There
were occasions when the rise of a constitutional opposition was
even probable; and there are places of which we can definitely say
that here or there occurred an event in constitutional progress.
But an investigation in the light of political history will, we
think, go to establish the general truth of the theory we have
adopted. It might be objected, _a priori_, that such a theory does
not afford sufficient reason for the continuous existence of the
Estates. But in the troubled story of mediæval Scotland we find,
readily enough, the explanation at once of the continuous existence
of Parliament and of the place that it occupied. It was a strictly
feudal society, but it lacked the redeeming features of feudal
government. Feudalism as a system of land tenure was complete, and
it still remains the basis of Scots law. As a system of government
founded upon land tenure, Scottish feudalism was, from one point
of view, equally efficient, while, in another aspect, it could
scarcely be said to exist. The Scottish baron was also the Scottish
chief, and to the power of the oath of allegiance was added the
mighty influence of clan loyalty. But outside this feudal hierarchy
stood the king. Every land-owner in Scotland held from him, and
none regarded him as deserving of more than tolerance. The royal
domains were not large enough to enable the Crown to cope with
the resources of the greater nobles. The king's best policy was
to ally himself with one faction to destroy another, as James
II overthrew the great house of Douglas. We cannot speak of any
definite coalescence of the nobles against the king. The jealousy
of noble house to noble house was always greater than their common
dislike of the Crown. So far were they from being able to unite,
that a comparatively insignificant family like the Crichtons or the
Livingstones were now and again able to place themselves at the
head of affairs.
The frequent occurrence of royal minorities was at once a cause
and a consequence of this condition of matters. The reigns of the
first five kings of the name of James cover, nominally, a period
of one hundred and thirty-six years. For fifty-seven years during
that time the sovereign was a minor, and two of the five kings met
their death at the hands of rebellious subjects. One of them--James
III--can scarcely be said to have ruled at all. The weakness of the
Crown is the formula of the explanation of which we are in search.
That weakness was a consequence, largely, of the action of Edward I
of England. The Bruce was occupied with guarding against the enemy,
and could not offend the nobles, whose desertion would have been
fatal to the cause of Scotland. The War of Independence was the
source of the bitter hatred which separated Scotland from England
from the fourteenth century to the seventeenth, and disputes with
England were directly responsible for the premature death of the
second, the fourth, and the fifth James, and for the exile of James
I--that is to say, for four out of the six minorities between 1406
and 1560.
It is obvious that, in such circumstances, each of the
ever-changing factions who strove for political importance had an
object in availing themselves of the advantage of parliamentary
and legal sanction. The delegation of work to committees made it
certain that the party in power could absolutely rely on having
its own way, and the form of law was desirable as legalizing
their present action, and as forming some kind of defence, should
misfortune overtake them. Similarly the king, when he chanced to
be powerful, found in his parliament a most useful instrument
for carrying out his wishes. It was, for ruling faction and for
powerful king alike, the best method of registering and declaring
the will or the policy of the rulers of Scotland for the time
being. A parliament, and just this kind of parliament, was always
wanted by the government.
An alliance between the Crown, the Church, and the burgesses was,
in the circumstances, out of the question. It was rendered so,
in the first place, by the constant recurrence of minorities.
Any such alliance was impossible between 1437 and 1450; between
1460 and 1488; between 1513 and 1530. Moreover, the bishoprics
were often private appanages of noble families,[14] and the
burgesses were not desirous, so far as we can judge, of taking any
part in political life. At times, the burgh records are full of
instructions to the commissioners sent to Parliament. These refer
invariably to administrative detail, never to great political
questions. The burgesses were left to fight for their liberties
alone and unaided. Scotland did not produce, till after the
Reformation, a great middle class of country gentlemen. The smaller
freeholders, influenced by their strong sense of clan and family
loyalty, attached themselves to the great barons. They were, as we
shall see, never really represented in Parliament till the reign of
James VI, and not till religious questions assumed a position of
importance did they find any bond of union with the representatives
of the burghs. The growth of English parliamentary liberty is
largely due to the coalescence of the knights of the shires with
the burgesses, and no such alliance was made in Scotland before the
reign of Queen Mary. It was in the General Assembly of the Church
that they learned the lesson of combination.
As we have already indicated, the most valuable work of the
Parliament is its record as an instrument for the peace of the
country. It was a court of justice, and the existing judicature of
Scotland is directly traceable to a committee of the Estates. It
was also the source of administrative order. Amid all the struggles
of contending factions in the interests of which the Estates were
summoned, there were always a few--bishops, or permanent officials,
or burgesses--who desired to see some acts passed for the peace
of the land. The kings, too, were never neglectful of this aspect
of the work of Parliament. The great lords had no motive for
opposing; it was always sufficiently easy to ignore; and, in point
of fact, an overwhelming proportion of the many administrative
pronouncements of the Estates dealt with details of burghal life,
and largely with seaport commerce. When the Crown was powerful,
acts were passed against the misgovernment of the great lords; but
we know that they were almost invariably futile, although they
offered, at times, a strong offensive weapon against a noble house
which was, for the moment, in the minority. In this way they were
used alike by king against noble and by clique against clique. In
all that we have to say of the subservience of the Estates, this
great work of administrative order must not be forgotten; nor is
the student of municipal history likely to forget it. Parliament,
too, was, if not the originator, the instrument of taxation,
although its importance in this respect was lessened by the fact
that the hereditary revenues were secured without the possibility
of interference, and it was not till the close of its history that
the Scottish Estates used the English rallying cry of redress
before supply.[15]
In treating of the subject we propose first to discuss the origin
of the Scottish Parliament, its membership, and its methods of
transacting business, for on these, in the first place, the power
of any assembly must depend. Afterwards the question may properly
be asked: What value can we ascribe to the Parliament as an element
in the life of the nation?
I.--ORIGIN, MEMBERSHIP, AND METHOD
1. The two most important dividing lines in Scottish history
between the tenth century and the sixteenth are the reign of
David I (1124-1153) and the War of Independence, which forms a
distinct period not less in constitutional than in political
history. Before the reign of David I, the Scottish kings had a
council of seven mormaers or earls; but it is difficult to assign
to these any definite status or power, and we are unable to speak
definitely of a General Council till the mormaers had become
feudal barons. The change is to be attributed to the work of
David I. His Saxon mother, St. Margaret, had made many changes in
her husband's kingdom, and, by bringing Scotland into line with
other European nations in ecclesiastical matters, had prepared
the way for her son, who was to place his people under the sway
of the great feudal impulse which was transforming the nations of
Europe. Under David, the new influences were Norman rather than
Saxon. Norman adventurers, like those who had made for themselves
kingdoms in England, in Italy, and in the Holy Land, came to the
Scottish court, and received grants of land in the south and east
of Scotland. In this connection, we find, first of all, names which
were to be the most illustrious in the annals of the country.
To David I the Bruces owed their lands of Annandale, and the
Fitzalans, who were to become the royal house of Stewart, received
from him their earliest possessions in their future kingdom. By
such grants of land Scotland was transformed from a tribal into
a feudal country, and there arose a royal council formed on the
normal feudal theory. The "sair sanct for the crown" completed his
work by adding five to the four already existing bishoprics, and
by founding the great abbeys which were to gain for him the honour
of popular canonization. Thus bishop and abbot and prior could
come with earl and baron to take counsel for the weal of the land.
Burghs arose and became prosperous; but two centuries had to elapse
ere the burgesses found a place among the advisers of the king.
Many of the charters after the time of David I describe, in
somewhat vague terms, those who gave their consent and attestation;
and their descriptions have been interpreted so as to afford
ground for a theory of popular representation in the great council
which developed into the Scottish Parliament. Gilbert Stuart
convinced himself that he had proved that Scotland possessed
a full parliament long before the English burgesses found a
place at Westminster.[16] Even the more cautious Hill Burton
considered that "these curious intimations stand by themselves,
an acknowledgment--sincere or not--of the admission of popular
influence in the actions of the government."[17] The claim to
have anticipated the mother of parliaments rests, however, upon a
misconstruction. The phrases on which it is founded are of three
kinds. Some of them are vague words used by chroniclers, into
which an exact constitutional meaning has been read. Others are
the commonplaces of diplomatic, used without any appreciation of
their strict signification.[18] The rest depend upon a misreading
of the texts from which they are taken. The most important term
which comes under the last-mentioned head is one on which Stuart
laid special emphasis. The phrases "all gude men of the kynrik"
and "all the community of the kynrik" are frequently found in the
assizes.[19] The king statutes "be the counsel of the communite."
But there is an assize of William the Lion, which is quite definite
as to the meaning of the word. It was made at Perth, on St.
Augustine's Day, 1184, and it bound "byschoppis, abbotis, erlis,
baronis, and thanys, and all the communyte of the kynrik ... for to
seyk and to get all misdoaris."[20] The penalty for disobedience
was the loss of a manorial court. "Gif ony of thaim be attayntit of
brekand this assyse, he sall tyne his court for evirmar." The whole
"community" were lords of manors. The king, the prelates, and the
barons, great and small, were "the community of the kingdom."
The burgesses had, indeed, a method of communicating with the
king. Fordun tells us that in 1211 "King William held a great
council at Stirling, when there were present his optimates, who
gave him ten thousand marks, besides six thousand marks promised
by the burgesses." It was with this quotation that Stuart clinched
his argument. But the chronicler's words do not imply that the
grants were made at the same meeting. We know, too, that each town
sometimes treated separately with the king; and that for centuries
before they were represented in the Great Councils the burgesses
met in purely burghal assemblies. The "four burghs" of the
South,[21] of which Edinburgh was the head, and the "Hanse burghs"
of the North, which grouped themselves round Aberdeen, held their
own conventions, legislated for themselves, and dealt directly
with the king.[22] There was no necessity for their representation
in the council. Beyond statements of chroniclers about the whole
people's choosing a king[23] and so forth, we have absolutely no
evidence that the Great Council, before the War of Independence,
was anything more than a strictly feudal assembly, attended by such
tenants-in-chief as chose to be present.
2. We pass now to consider the membership of the Scottish
Parliament after the War of Independence. The first instance of
the use of the word "parliamentum" is in connection with the
treaty of Brigham, made in 1289 between Edward I of England and the
Scots; but the terminology is obviously due to English influence,
and there is no evidence whatsoever of any popular representation.
It is not till the year 1326 that we find a complete parliament,
containing lords and commons, and this must be kept in mind while
we proceed to the consideration of the normal form of the "Estates
of Scotland."
In the first place, we have the clergy. Bishops, abbots, and priors
possessed, as tenants-in-chief, the same right of attendance in
councils as secular freeholders had, and they could more easily
make use of their opportunities. At the Reformation, the bishops
who became protestants, the lay commendators, and the "tulchan
bishops," seem to have kept their seats. But acts between 1560 and
1597 speak of the "decay of the ecclesiastical estate," and we know
from the lists of Lords of the Articles that the clergy almost
ceased to be an essential portion of the Scottish Parliament.
Presbyterianism neither desired nor claimed any such right. Its
aim, as we shall see, was higher. We do, indeed, find that in 1567
Parliament
thocht expedient ... that thair be adjoynit unto thame in treating
of the thingis concerning the kirkis, thir personis underwritten,
to wit, Maister John Spottiswood, Maister Johne Craig, Johne Knox,
Maister Johne Row, and Maister David Lindesay or any three or
foure of thame.
This, of course, was a special arrangement to meet a particular
contingency. But in 1597 James VI, acting on his principle of "No
bishop, no king," found himself strong enough to enact that
sik pasturis and ministeris ... as at ony tyme his maiestie sall
pleis to provyid to the office, place, title, and dignitie of ane
bischoip, abbott, or other prelat sall at all tyme heirafter haif
voitt in Parliament.
Next year, the ranks of "sik pasturis and ministeris" produced
three bishops and five abbots, and thenceforward they increase in
numbers, being reinforced by the Act of 1606 which established
Episcopacy. The Parliament of 1640, acting on the claim of the
General Assembly of the Church, that "the civill power and place
of kirkmen" was "predjudiciall to hir Liberties, and incompatible
with hir spirituall nature," ordained "all parliaments to consist
of noblemen, barronis, and burgesses," and of these alone. At the
Restoration, bishops again formed one of the Estates; but they
appear for the last time on the rolls of Parliament in 1689.
The place of the greater lords in the Scottish Parliament has long
been understood. The brilliant pen of Professor Innes and the
accurate investigations of Mr. Robertson have, in this respect,
added little to the statement of the case made by George Wallace
more than a century ago.[24] The earl or the duke had just the
same right to sit in Parliament as the smaller freeholder. His
title gave him only rank, not power. It did not even necessarily
entail jurisdiction, for we have instances of earldoms being
raised to the position of regalities.[25] The king in creating an
earldom did not directly confer the title upon the new possessor.
He created the lands into an earldom. When the lands were sold the
title fell to the purchaser. Territorial honours could descend to
a female--although no female might sit in the king's council--and
could be borne by the husband of the female possessor. In criminal
trials, lairds were the peers of earls. Had the Act of 1427 been
carried out, it would have led to an assimilation to the English
system of peerage. The actual change is to be attributed to the
Act of 1587. Really, as we shall see, this act was a guarantee
that the freeholders should have some influence in Parliament;
theoretically, it involved the abolition of their right to sit in
person, and so converted that right, as it remained to the greater
barons, into the essentials of a peerage. Personal honours were
certainly known in Scotland before 1587;[26] but they were not
peerages in the English sense. The bearers of these purely personal
titles--the earliest of which belong to the fifteenth century--sat
in Parliament in virtue of other claims. But, after the Act of
1587, all honours became personal, and the rules of descent were
altered.[27] In 1689, the Scottish nobles obtained a strictly legal
recognition of their rights as possessors of peerages.
The right of the smaller barons to attend councils as
tenants-in-chief of the king had never been denied; but there was
little to induce them to take advantage of their opportunities.
Travelling was expensive and dangerous, and unpleasant incidents
were not unlikely to occur in their absence. Their power in
Parliament was small. Most of them felt that they were sufficiently
represented by the great lord to whose person and interest they
had attached themselves. We frequently find them appearing by
procurators. When King James I returned from his long imprisonment
in England he adopted the policy of using the smaller barons
against the too powerful nobles. He had been captured by Henry IV,
and educated amid the influences of Lancastrian constitutionalism.
His aim in Scotland was to introduce a "new monarchy," and he
determined to make the existence of Parliament the main weapon in
the encounter with his rebellious lords. Accordingly, in the year
1425, we find that all prelates, earls, barons, and freeholders,
"since they are holden to give their presence in the king's
parliament and general council," are enjoined to appear in person
"and not by a procuratour, but if that procuratour allege and
prove lawful cause of his absence." The result perhaps surprised
the king. There were many "lawful causes." We have no record of
the form they took; nor do we need any record, for the political
history of the period is clear enough. All that the rolls of
Parliament can tell us is that the experiment was unsuccessful, for
two years later James adopted a much bolder plan, and introduced a
serious modification of the constitution:
Item, the king, with consent of his whole council general, has
statute and ordained that the small barons and free tenandry need
not to come to parliament nor general councils, so that of every
shiredome there be sent chosen at the head court of the shiredome,
two or more wise men after the largeness of the shiredome, except
the shiredomes of Clackmannan and Kinross, of the which one be
sent of ilk ane of them, the which shall be called commissioners
of the shire.
It was not, of course, the English system of representation.
The English voter had no right to be present in Parliament. His
representative did more than merely save him the trouble of
attendance. King James did not propose to extend the franchise
as it had been extended in England. His proposal was much more
conservative. But it was never operative, and, in a few years,
it was completely forgotten. The smaller barons continued to
be regarded as bound to give attendance in Parliament, and
occasionally some of them were punished for absence.
There is here no indication of the rise of a constitutional spirit.
It was a method of private revenge, and measures were passed
to relieve the smaller barons. In 1457 Parliament declared that
"all freeholders under twenty pounds" were exempted. The limit
was raised in 1503 to "a hundred marks of this extent [_i.e._
assessment] that now is." All whose holdings were under that
amount might send procurators, unless they were specially summoned
by the king's own writ. The procurators were to attend "with the
barons of the shire or the most famous persons." The phraseology
suggests that the "procurators" might be merely retainers of the
greater lords. All "above the extent of a hundred marks" were
bound to attend "under the pain of the old unlaw." These acts are
generally regarded as freeing the lesser barons from the burden
of attending Parliament. From all that is known, alike of the
political and of the constitutional condition of the country,
it seems much more likely that the real burden from which it
freed them was that of "the old unlaw." The distinction is not
without a difference. It was a protection from the occasional
arbitrary employment of a partially obsolete penalty. The result
was the entire absence of the smaller barons from the meetings of
Parliament. In 1560, when a great question fell to be decided,
and the leaders of the revolutionary party desired the presence
of the freeholders, the old right was so far doubtful that a
petition was laid before the Estates, in which the smaller barons
claimed--adopting unwonted language--that "statutes which they had
not been required and suffered to reason and to vote at making,
should not bind them."[28] The proceedings of the parliament
of that year were not confirmed, and our knowledge of them is
incomplete. But we learn from a letter written by Randolph, the
English ambassador, to Cecil, that among the acts passed on the
first day of meeting was this: "That the Barons, according to ane
old Act of Parliament, made in James's tyme the first, the year of
God 1427, shall have free voice in Parliament. This Acte passed
without aine contradiction as well of the Bishopes, Papysts, as
all other present."[29] Randolph has not merely recorded the
fact: he has given us the key to the situation. It would not have
surprised him if the "Papysts" had objected to the proposal. The
smaller barons were notoriously attached to the reforming party,
and the reassertion of their right was a precaution taken to secure
an overwhelming preponderance for the new movement. In 1567,
Parliament was again divided. There was a "queen's party" and a
"king's party." It is not improbable that the experience of 1560
led the insurgent lords to enact that, because "the barons of this
realm ought to have vote in Parliament as a part of the nobility,"
each sheriff was to be instructed to summon the barons of his shire
"by open proclamation at the market cross of the head burgh of the
same, to compear within the Tolbooth upon eight days' warning ...
and there to choose one or two of the most qualified barons ... to
be commissioners for the whole shire." Once again legislation was
fruitless, and the fact confirms the suggestion that it was a mere
party move. But it called attention to a constitutional grievance,
and twenty years later the matter was taken up in earnest. It is
not easy to believe that action was taken in 1585 purely out of
love for constitutional principles. A keen religious contest was
in progress, and the smaller barons were, as in 1560 and 1567, on
the side of the General Assembly. One is therefore inclined to
infer that the "article" which was presented to Parliament urging
how "necessary it is that his highness and they be well and truly
informed of the needs and causes pertaining to his loving subjects
in all Estates, especially the commons of the Realm," originated
in ecclesiastical quarters. It was decided to reaffirm the "gude
and lovable" Act of 1427. The details of machinery need not detain
us. There was to be an election of "two wise men being the king's
freeholders resident indwellers of the shire of good rent," chosen
by "all freeholders of the king under the degree of prelates and
lords of Parliament," who have "forty shillings land in free
tenandry of the king and their actual dwelling and residence within
the same shire." The act was ratified two years later, when his
Majesty had reached "his lawful and perfect age of twenty-one years
complete"; and it was added that the shires should be taxed to
pay the expenses of their commissioners. No other alteration of
principle took place until the Reform Act of 1832. In the reign
of William and Mary the proportion of members to each shire was
readjusted. But the Acts of 1585 and 1587, succeeding where the
Act of 1427 had failed, detached the small barons from the greater
freeholders and created a new "Estate" of the realm.
3. We have seen that down to the War of Independence there is no
ground for believing that burgesses attended the great council
of the kings. When the first Scottish "Parliament" met after the
battle of Bannockburn, there was no indication that anything had
happened in the interval to change its constitution. In 1314, and
again in 1315, in 1318 and in 1320, we read of "full parliaments,"
the members of which are described in the old terms. At none of
these meetings, so far as we know, was any momentary business
transacted. But in 1326 King Robert summoned to meet him, at the
Abbey of Cambuskenneth, associated with the victory of Wallace,
and almost within sight of the field of Bannockburn, a parliament
which was to settle the pecuniary relationships of king and people,
and reimburse the king for the expenses of the war. To this
parliament King Robert called not only noblemen, but "burgesses
and all other free tenants of the kingdom." To the agreement then
made, the seals of the burghs were appended. To what circumstances
are we to attribute this development? It is, of course, natural
that the royal burghs should come to be represented in a council of
tenants-in-chief, as the "barons of London" and the imperial cities
found their way into the Parliament of England and the Diet of
the Empire. But the institutions of the Courts of the Four Burghs
and of the Hanse Burghs offered an alternative line along which
the development of burghal representation might have gone; and,
in point of fact, the Convention of Royal Burghs did continue to
possess and to exercise certain powers which appear to us proper to
Parliament. The meeting at Cambuskenneth in 1326 is thus, to some
extent, a critical point, and its importance is increased by the
king's attempts to render burghs dependent on great nobles instead
of upon the Crown.[30] These attempts were rendered illegal by
Parliament in the reign of David II; but plainly, if they had not
possessed, at this juncture, a voice in Parliament, the history of
the burghs might have been widely different.
We may hazard a guess why King Robert did not negotiate with
the burghs in the accustomed way. In 1305, when the chances
of the independence of Scotland seemed very small, Edward
held a parliament in London, which was attended by Scots
representatives--by whom elected or chosen, we do not know. Robert
the Bruce was also present, as an English lord. Possibly he found
his model in the burgesses who thronged the English Parliament.
It must also be recollected that, since the end of the war, King
Robert had entered into a new relation with a burgh. Hitherto
the Scottish kings had spoken of the burgesses rather than of
the burgh. But, in 1319, Robert I gave a charter to the city of
Aberdeen, in which he recognized it as a corporation, and granted
it certain possessions, on condition of an annual payment, assessed
by the burgh itself.[31] Edinburgh received a similar charter in
1329.
It is generally assumed that the presence of burgesses at
Cambuskenneth in 1326 was an admission of their right to a share
in the work of Parliament. "From henceforth," says Professor
Innes, "undoubtedly, the representatives of the burghs formed the
Third Estate, and an essential part of all parliaments and general
councils."[32] The records, as we possess them, do not bear this
out. It is true that the "parliaments" of Edward Balliol refer
to the "assent des Prelatz Countes Barouns Chivalers et toux
autres assemblez":[33] but this is merely a return to the older
nomenclature. In 1339, Robert the Steward of Scotland speaks of
the prelates and magnates of the kingdom alone as constituting a
"full parliament." Two years later, a "full parliament" was held at
Aberdeen, and although part of its business was to grant a charter
to the burgh, only bishops, lords, and freeholders ("milites") were
present. Similarly, in 1358 and 1359, we have no record of the
presence of burgesses. The Parliament of 1363 speaks of the "three
estates," but we know that there were present only the "prelati
et proceres" of the realm.[34] But in 1356-57, and again in 1363,
councils were held at which burgesses were present. On both these
occasions the subject under discussion was the raising of money.
It is probable that the constitutional theory at this date was
that the burghs were to be consulted only on pecuniary matters.
In confirmation of this view, we may point to the wording of the
record of the Council of 1363. It tells us that the lords were
present as usual, and that there were also summoned others "who
are wont to be called to a council of this kind," _i.e._ a money
council. Three years later, money was again needed. A convention
was held at Holyrood in May 1366, to consider the terms of peace
with England, which involved considerable pecuniary adjustment. The
nobles decided to call a parliament and to summon the common people
"who will not be present and will not promise to be present."[35]
Bishops, abbots, and lords were called "in the accustomed manner,"
and there attended "from every burgh certain burgesses, who
were cited for this purpose." They were represented in 1367, in
June 1368, possibly in March 1368-69, and certainly in February
1369-70 and March 1371-72. It is possible that from the end of
the fourteenth century the burgesses took their place in every
parliament; but there are many instances between 1372 and 1455 in
which we cannot trace their presence. From 1455 onwards they are
found in every parliament and on the regular committees.[36]
It remains, in this connection, to determine how far the
burgess members were elective or representative in the strict
sense of the word. In the early references to the presence
of burgesses in Parliament, we have no hint of any idea of a
definite representation constituted by a form of election. To the
Cambuskenneth Parliament of 1326 the burgesses seem to have come as
other free tenants came. There attended "burgesses and all other
free tenants of the kingdom." We know nothing of the conditions of
attendance of the burgesses in 1356-57; and in 1366, as we have
seen, "certain burgesses" were present, who had been specially
summoned. In neither case, nor anywhere else, do we find any
suggestion that the burghs chose representatives. We are brought,
therefore, to the year 1367. In that year, when the Estates met, it
was found that so many burgesses attended that their presence would
interfere with harvesting operations, and, accordingly, "certain
persons were elected to hold parliament, and permission was given
to the rest to go home, because of the harvest." This, then, is
the first record of the election of a committee to do the work of
Parliament. The wording of the record is important. "On the part of
the burgesses there were elected: from Edinburgh, Adam de Bronhill
and Andro Bec; from Aberdeen, William of Leth and Johne Crab; from
Perth, Johne Gill and Johne of Petscoty; from Dundee, William of
Harden and William of Inverpeffer," and so forth. Burgesses were
present in considerable numbers--at all events, in such numbers
that two members could be chosen (_electi_) to represent each town.
Similarly, in the next instance (1369), "it did not seem fitting
that the whole community should be kept in attendance," and two
committees were appointed, one for the general work of legislation,
and the other to conduct the judicial business which belonged to
the Estates. It seems not improbable that we have here a system
according to which any burgess that chose might attend. If so,
these elections to committees were really the earliest efforts
at parliamentary representation in Scotland.[37] In short, the
evidence, positive and negative, warrants, perhaps, the conjecture
that, at the first, the burghs chose no representatives, but that
such burgesses as cared to attend were the representatives of the
burgh; that the appointment of committees formed really the germ of
the elective idea, by necessitating a choice after Parliament met;
and that, in course of time, it became apparent that the election
might as well be made at home as in Edinburgh or at Scone.[38] The
earliest records of parliamentary elections that we possess are
statements, in burgh accounts, of payments made to commissioners to
the Estates. It is significant that they date from the beginning
of the fifteenth century, by which time the device of appointing
committees had been frequently employed.
There are two other points in the membership of the Scottish
Parliament which must deserve mention. The great officers of
state[39] possessed _ex officio_ seats in Parliament. It was an
arrangement which had much to commend it; but there was a tendency
for it to become burdensome; and in 1617 an act was passed
prohibiting more than eight officers of state from possessing
official seats in Parliament. It was customary also, from an early
period, for the eldest sons of the great nobles to be present at
meetings of the Estates.[40] They were in no sense members of
Parliament. They had no right either of speaking or of voting. But
had circumstances been more favourable to the growth of the power
of Parliament, the conception of such a training for legislative
responsibility might have been rich in practical results.
The composition of the Scottish Estates offers a tempting
parallel to that of the German Diet after the Great Interregnum.
Constitutional development ran in the two countries on somewhat
similar lines: the position of the king of Scotland was often
analogous to the place held by the emperor; nobles and prelates
correspond to the temporal and ecclesiastical princes, and the
royal burghs to the free cities, while in neither assembly were
there any members like the English "knights of the shire." But
there does not seem to be any ground for regarding the likeness
as more than a coincidence, or for disputing the "orthodox"
theory which declines to admit the existence of German influence
over Scotland before the sixteenth century. Had we any definite
constitutional life to record, it would be of interest to discover
in what relation the three Estates stood to each other. But as
to this we have almost no evidence. The first instance of the
occurrence of the term the "three Estates" (_tres communitates_)
in the acts belongs to the year 1357.[41] In mediæval times,
the three Estates are the clergy, barons, and burgesses. When
James I attempted to introduce commissioners from shires into
Parliament,[42] he really contemplated the creation of an
additional Estate, and after his scheme was actually carried out
by James VI[43] there were three or four Estates according as the
clergy were represented or not.[44] The word "Estates" is not
specially appropriate, and the Estates of the realm of Scotland
must not be confused with the English use of the word.
It has been surmised that the clergy and the burgesses acted
with the Crown, in opposition to the nobles; but to state such
a formula is to read English ideas into Scottish history. The
historian can point to scarcely an instance where the nobles were
definitely ranged in a body against the king. If nobles were the
most prominent opponents of the Crown, nobles were also its most
prominent supporters, although the _personnel_ of both parties
constantly varied. The bishops, as we have seen, were often
dependent upon the great lords. As to the burgesses, it seems to be
clear that the three or four of them who were included among the
Lords of the Articles acted with the party in power. Only thus can
we explain the fact that alike when the Douglases and the Boyds
and the Hamiltons ruled the land the administrative enactments
of Parliament progressed without any difficulty. These acts were
frequently passed "by request of the burgesses," and they were
obeyed only in the towns. The people of the towns had small reason
to oppose either noble or king. The hand of the great lord lay
heavy on the inhabitants of the country, but the burghs knew no
such pressure.
4. Scarcely less important than the membership of a parliamentary
body is the method of its deliberation. In this respect the
Scottish Parliament was widely different from that which sat at
Westminster. The three Estates met in one chamber. In the centre
was the seat occupied by the sovereign, when he was present in
person; in later times, by his commissioner. On the left hand
sat the noblemen and barons; on the right, the prelates and
the representatives of burghs. The Estates voted together. The
president was, in general, the lord chancellor. He was, at the
first, nominated by the king for the purpose, but he gradually
came to hold the position _ex officio_. The absence of a speaker
for the Commons deprived them of much of the power possessed by
the third Estate in England. The Act of 1427, to which we have
already referred, included among its provisions the creation of
this office; but, like the rest of the act, this clause was not
enforced, and it was never resuscitated. The theory of the three
Estates was practically complete by the year 1400, although we
have occasional instances of legislation without this formality.
A parliament of James II, for example, made a statute regarding
merchants "with consent of the clergy and barons alone," and in
1449, on a question of heirship, the prelates and burgesses were
"removed" before the decision was made.
The relations of the Estates to the Crown were in an unsatisfactory
condition. In times of stress the Parliament had no hesitation in
appointing its own president. Randolph, in his letter to Cecil,[45]
mentions that, in 1560, Lethington was "chosen harangue-maker."
In 1640, again, Robert, Lord Burley, was elected "president of
this court and session of Parliament, in the absence of the king's
commissioner." In strict legal theory both of these meetings
were probably invalid. It is difficult to understand how far the
royal assent was necessary to the validity of acts. In ordinary
circumstances, a necessary condition of a valid parliament was the
presence of the regalia, and the king gave his approval by touching
the bills or "articles" with the sceptre, whereupon they became
acts of parliament. The want of constitutional life prevented the
question from arising in a definitely constitutional manner. When
the difficulty did appear, it was, like the similar problem of the
presidency, settled without any debate; and we have no instance
except in times of revolution. There is an interesting passage in
Knox's _History_[46] in which he discusses the matter in connection
with the great Parliament of 1560, which established the Protestant
faith, and which did not receive the royal consent till it was
ratified in 1567, when the Earl of Murray had assumed the regency
for the infant whom he had made James VI. The historian tells us
that Francis and Mary withheld their consent. "But that we litill
regarded or yit do regarde; for all that we did was rather to
schaw our debtfull obedience, than to beg of thame any strength
to our Religion." The point is thus contemptuously dismissed, but
Knox considered it necessary to give more attention to a possible
objection that the Parliament was not legally summoned in the
first instance. "But somewhat most we answer to suche as since hes
whispered, that it was bot a pretended parliament." He solved the
matter by a legal quibble, and proceeded to affirm, in addition,
that it was the only free parliament which had been held: "In it,
the votes of men were free and gevin of conscience; in otheris
thai war bought or gevin at the devotioun of the prince." Such
sentiments as these can scarcely be said to represent any advance
in constitutionalism. We may place alongside of them the views of
King James VI, as he expressed them to his English Parliament in
1607.[47]
For here I must note unto you the difference of the Parliaments
in these two kingdomes, for there they must not speak without
the Chancellor's leave, and if any man doe propound or utter
any seditious or uncomely speeches, he is straight interrupted
and silenced by the Chancellor's authoritie.... About a twentie
dayes or such a time before the Parliament, Proclamation is
made throughout the kingdom, to deliver into the King's Clearke
of Register all Bills to be exhibited that Session before a
certain day. Then are they brought unto the king, and perused and
considered by him, and only such as I allowe of are put into the
Chancellor's hand to be propounded to the Parliament. Besides,
when they have passed them for lawes, they are presented unto
me,[48] and I with my Scepter put into my hand, by the Chancellor,
must say: "I ratifie and approve all things done in this present
Parliament." And if there bee anything that I dislike, they rase
it out before. If this may bee called a negative voyce, then I
have one, I am sure, in this Parliament.
The contradictions find, as usual, their reconciliation in fact:
King James described the forms normally used; Knox regarded them
as not in any degree essential to the validity of Parliament. The
rules of procedure certainly tended to a despotic monarchism.
But they owed their existence simply to custom, and could not be
regarded with any peculiar reverence, when the popular party was
uppermost. There had never been any definite settlement. They
governed who had the power; they kept the forms who could.
5. The most characteristic portion of the procedure of the Scottish
Parliament was the devolution of the work of legislation upon
committees. The origin of the committee which became famous under
the title of the Lords of the Articles is one of the standing
puzzles of Scottish history. The date of its first appearance is
well known, but how or wherefore parliamentary procedure took this
peculiar form has been a standing problem.
The first instance of the appointment of a committee (1367)
has been already quoted. The record for that year mentions
that certain persons were elected by the Estates to hold the
Parliament, and leave was given to the rest to go home, on account
of the harvest.[49] As we have seen, burgesses found a place on
the committee. The next Parliament met in June, 1368, and it
contained burgesses among its members, but there is no mention of
a committee. In March 1368-69, certain persons were again elected
to hold Parliament,[50] and the reason for allowing the rest to go
home is stated to be the political and economic difficulties of the
time. On this occasion burgesses do not appear on the list of the
committee, and we have no definite assurance of their presence.
In February 1369-70 we know that burgesses were present,[51] and
we are told that when Parliament met it did not seem expedient
that the whole "communitas" should take part in the business
("universalis communitas ad deliberationem huiusmodi intenderet seu
eciam expectaret"), and two committees were appointed--one to deal
with general business and the other with matters connected with the
administration of justice.
At this point it may be well to state the kind of business
transacted at these various parliaments. In 1367 financial matters
formed the most important portion of the business of Parliament,
and we are therefore prepared to find burgesses on the committee.
In March 1368-69, when we have no assurance that burgesses were
present, the most important item of business was the pacification
of the Highlands; but an enactment was made which was of special
interest to the burghs, for Lanark and Linlithgow were given places
in the Court of the Four Burghs, instead of Berwick and Roxburgh,
now held by "our adversaries the English." In 1369, when burgesses
were elected to the Committee for Justice, that committee had to
deal with a dispute between the town of St. Andrews and the guild
of Cupar, while the committee for general business, on which
they do not appear, dealt with the question of the king's debts,
taxation, police, and the war with England. There is little in all
this to give us any guidance as to the origin of committees. The
facts, so far, seem equally compatible with the unwillingness of
burgesses to attend, of which the nobles had complained in 1366,
and with an attempt on the part of the nobles to reduce the burgess
element and to monopolize the efficient power of Parliament.
The subsequent history of these committees proves that, whatever
was their origin, they did become an instrument in the hands of
cliques of nobles. The next instance is in March 1371-72, when
the precedent of 1369 was deliberately followed,[52] and two
committees were again elected--one for justice, and the other
to treat and deliberate upon special business as a preliminary
to its being brought before the great council.[53] It is simply
stated that leave was given to the rest to go away. There are
no lists of members of either committee, nor is there any record
that the "special business" was ever submitted to a parliament.
The statutes promulgated by the committee bear that they have
been made by the consent of the three Estates, or by persons
elected in the same parliament to transact business.[54] An oath
to observe the statutes was taken after they were passed, and it
is remarkable that only the barons are mentioned as taking it.
This is suggestive of the absence of burgesses from the General
Committee, in accordance with the precedent of 1369, and the very
first clause[55] in the recital of the actions of the General
Committee gives some indication that it was desired to exclude
certain persons from it. It was ordained that no one who had been
elected a member of the committee should bring to its meetings
anyone not so elected, except a member of the Privy Council. The
business included an act which is summarized by an assertion that
the commands of the king are not to be obeyed in preference to the
law of the land ("Mandata Regis non exequenda contra statuta vel
formam iuris"). The weakness of Robert II, already an old man, and
the general political history of the time, render it impossible
to accept this as a constitutional claim, and the overwhelming
probability is that Parliament was, as so often afterwards, in
the hands of a small clique of nobles, who used it for their own
purposes. Possibly, the barons who were really responsible for
the misgovernment of the country, wished to avoid meeting, in the
committee, anyone who might be bold enough to draw attention to the
real facts of the case. At all events there must have been some
reason for following the precedent of 1369 instead of that of 1367,
and thus excluding the burgess element.
Between the year 1371 and the return of James I from exile we have
no information regarding Parliament. There are references to the
three Estates in 1384, and again in 1398; but we are without any
hint of the method of conducting business, and almost the only
records that have come down to us are charters. In 1424 the old
phraseology reappears: Certain persons were elected to decide upon
the articles submitted by the king ("Electi fuerunt certi personae
ad articulos datos per dominum regem determinandos"). This is
the first recorded instance of the term "Articles," by which the
committee was to be known. In March 1425-26, there is no record of
any such committee. In March 1425-26, in May 1426, and in September
1426, we find committees which are said to be elected by the whole
counsel of the three Estates. In July 1427, in March 1427-28, in
July 1428, in April 1429, in March 1429-30, and in April 1432, we
have again no record of their existence. At a parliament held at
Perth in October 1431, a committee was appointed for special police
and judicial purposes, and it met in May 1432 and passed certain
acts. In March 1433, we read of no committee; in October 1434, only
of a committee for justice, which included burgess members; and in
1436, of no committee. From the second year of the active reign
of James I to his death we have, then, no trace of the General
Committee of the Articles.
Between the murder of James I, in February 1436-37, and the fall
of the house of Douglas, in February 1451-52, there are records of
several meetings of Parliament, but there is rarely any evidence of
the presence of burgesses at all. In connection with the coronation
of James II, there is a formal document, of uncertain date, which
revokes grants of land made by James I without consent of the
three Estates, and commissioners of burghs are mentioned as being
present at this "general council." The revocation is of political
importance, and has no real constitutional significance. When
Parliament met, in March 1437-38, the three Estates are mentioned,
but only nobles and barons and freeholders went to Holyrood to
crown the young king.[56] These are just the formal occasions on
which it was desirable to have the unquestionable legal authority
of the "three Estates," and burgesses may have been really there,
though it is strange that they were not present at the ceremony
in the Abbey. There is no trace of their presence till 1449,
and, in their absence (if absent they were), we find no hint of
the existence of committees. They were present at the Parliament
which met in January 1449-50,[57] when the young James II first
asserted himself by procuring the forfeiture of the Livingstones.
It is equally significant that committees were not elected on this
occasion; it is becoming evident that the device of the Articles
was employed, not in every case when burgesses were present, but
only when their aid was not desired by the predominant party in
Parliament. During the final struggle with Douglas there is again
no reference to burgesses, but in August 1452, when the king
had defeated the great house, we find burgesses represented in
Parliament, and there is again no mention of the Articles. In
August 1455 the dress of burgess members is regulated by statute,
and their attendance is regarded as normal. During the personal
rule of James II, which continued till his death in 1460, burgesses
are constantly represented, and the only committees of which we
read are for justice alone, to which burgess members were elected.
During the first few years of the minority of James III the policy
of the late king was continued under the strong hand of Bishop
Kennedy, and it is not till after his death, in 1465, that the
Lords of the Articles reappear. In 1467, Lords of the Articles
were appointed, and thenceforth their power and importance greatly
increased. In 1469, they were empowered to report, not to the
whole Parliament, but to a committee constituted on the analogy
of the Lords of the Articles themselves, "with power committed by
the whol Estates ... to advise, commune, and conclude." Two years
later the membership of this plenipotentiary committee became
almost identical with that of the Lords of the Articles, who thus,
practically, received power to report to themselves and to ratify
their own conclusions "upon all matters concerning the welfare of
our Sovereign lord ... and the common good of the realm." "Our
Sovereign lord" was, at the time, a captive in the hands, at first
of the Boyds, and afterwards of the Hamiltons, and the rapid
development of the powers of the Lords of the Articles is explained
by the desire to exclude any adherents of the opposite faction
from voice or vote in Parliament, and, as such, it continued to be
employed.[58]
On a general review of the evidence several points are clear. The
device of superseding Parliament by a committee was employed for
the first time under a weak king, and precisely at the moment
when burgesses were first appearing as an integral part of
Parliament. After it was elaborated in 1369, the method continued
to be employed on every occasion on which burgesses were present,
and, so far as we know, only when burgesses were present, till
the return of James I from England; and its usual result was to
exclude the burgess element from the effective work of Parliament.
From the date when James I had established his power to the time
of his murder, in 1436-37, burgesses were regularly present,
and there were no committees, except for judicial purposes, and
on these burgesses were represented. The ordinary business of
Parliament was transacted by the three Estates meeting in their
full numbers. Between the death of James I and the fall of the
house of Douglas, in 1451-52, we are again uncertain as to the
presence of burgesses in Parliament, and there were no Lords of the
Articles, so far as can be ascertained. The one occasion on which
we know that burgesses took a share in the work of Parliament was
in January 1449-50, when the young James II first asserted himself
by procuring the forfeiture of the Livingstones, and here, as
under the strong rule of James I, the presence of burgesses is no
longer accompanied by the existence of the committees which occupy
so prominent a place when burgesses are present and the barons
are in power. So, again, after the king had defeated the great
House, and had begun to rule in person, we find burgesses regularly
present in Parliament, and the only committee was the judicial
one, on which they find a place. During the first few years of the
minority of James III the policy of the late king was continued
by Bishop Kennedy, and it is not till after his death that the
Lords of the Articles reappear. During the years of intrigue and
faction which followed the death of Kennedy in 1465, the Committee
of the Articles was developed and established as a normal part of
parliamentary procedure.
The invariable correspondence between the presence of burgesses
in Parliament and the use or disuse of the system of committees,
according as the king was weak or powerful, suggests as a possible
explanation that the origin of the Committee of the Articles may be
traced to an attempt of the barons to exclude the burgesses from
Parliament. This view is confirmed to some extent by the fact that
in 1371-72, within two years of the first employment of the device,
the committee for the general business of Parliament seems to have
been used for the purpose of excluding certain persons, while, both
in 1369 and in 1371-72, burgesses were present in Parliament and
were not elected to the General Committee. It was, further, only
in this indirect way that Parliament could control the number of
burgess members, for there is no evidence of the passing of any
act dealing with burgess representation, and, as late as 1619,
the Convention of Royal Burghs[59] ordered that every burgh,
except Edinburgh, should send only one, instead of two, members
to Parliament, and the resolution was carried into effect without
even the formality of consulting the Estates. It cannot, however,
be said that the evidence excludes the alternative explanation
that these committees originated simply in the unwillingness of the
burgesses to attend Parliament, and were afterwards employed by the
barons for purposes of faction. But it is difficult to reconcile
this view with the fact of the appearance of burgesses, in 1367,
in such numbers that a choice of two members from each town could
be made from among them, and with the instances of their retention
for judicial purposes only, as well as with the concomitance, just
pointed out, of the presence of burgesses and the election of Lords
of the Articles.
The next development in the history of the General Committee
belongs to the year 1535, when King James V dispensed with the
cumbrous device of two committees, and the Lords of the Articles
entirely superseded the three Estates. As the Crown chanced to be
strong, the committee was not allowed to deal with "all matters"
as in the days when the king was weak, but only with such matters
as it might "please his grace to lay before them," and King James
reserved to himself the power of summoning all his prelates and
barons if he should so wish. The new scheme was only for occasional
use,[60] but it familiarized people with the all-sufficiency of
the Lords of the Articles, and during the next reign Parliament
ratified, without comment and as a matter of form, what they had
done. Randolph, the English ambassador, has preserved for us a
record of the proceedings in 1563.[61]
Their Parliament here has begun. On the 26th ulto. the Queen,
accompanied with all her nobles and above thirty picked ladies,
came to the Parliament House, her robes upon her back, and a rich
crown upon her head. The Duke [Chatelhérault] next before her with
the regal crown, the Earl of Carlyle the sceptre, and the Lord of
Murray the sword. She made an oration to her people.... The Lords
of the Articles are chosen, and sit daily at the Court, where
ordinarily the Queen is present, in debating all matters. Upon
Friday next, she comes again to the Parliament House to confirm
such Acts as are concluded upon, and to prorogue the Parliament.
During the early part of the reign of Charles I, and between
the Restoration and the Revolution of 1689, this was the normal
procedure. The Parliament met in full only on the first and
the last days of its meeting. It was of small value that every
liege had free access to the Lords of the Articles, to lay his
complaints before them, but even that privilege seems to have been
occasionally doubtful.[62]
The importance of the Lords of the Articles clearly depended
upon the method of their election. It has been supposed that,
at first, each Estate elected its own representatives. But the
non-appearance of burgesses on the General Committee in 1369 is,
perhaps, an indication to the contrary. In 1524, the spiritual
lords were chosen by the temporal lords. We know this only from
certain protests which were made, and it is not easy to draw any
inference from it.[63] Randolph,[64] to whom we owe so much of
our information regarding Scottish affairs in the latter half of
the sixteenth century, described to Cecil the method in vogue in
1560. His words imply that it was the ordinary custom. "The lords
proceeded immediately hereupon to the chusing of the Lords of the
Articles. The order is that the lords spiritual chuse the temporal,
and the temporal the spiritual, and the burgesses their own."
From 1592 to 1609 the selection is said to be made by "the whole
Estates"--whether collectively or independently is not stated. In
1606, 1607, and 1609, King James nominated the members who were
elected, and in 1612 he devised a very characteristic arrangement
which, in part, reverted to the method described by Randolph.
There were at this date very few prelates, and they were all his
own creatures.[65] The lords temporal, therefore, could not but
choose lords spiritual agreeable to the king, and they, in turn,
could select from the nobles men as obsequious as themselves. The
representatives of the prelates and nobles must select suitable
men from the Third Estate. Such was the royal scheme. We hear
of it first in 1612.[66] We are fortunate enough to possess an
account of the "Ordour and Progres of the Parlement, October 1612,"
from a manuscript in the handwriting of Sir Thomas Hamilton, the
secretary.[67] When the Estates had met, and had listened to a
sermon by the archbishop of Glasgow and a speech from the king's
commissioner, the prelates and noblemen were instructed to retire,
to choose the Lords of the Articles. The secretary intimated
privately to the lords temporal the names of the prelates whom
the king wished to be chosen. They "debaited the mater verie
preciselie," having first dismissed the secretary, "and after many
discourses of the necessitie of the mentenance of thair privilegis
and libertie, be pluralitie of votes, changed so many of the roll
of the prelates as they had men to make chainge of." The bishops,
on the other hand, received "the roll of the noblemen whom his
Maiestie recommended to be upon the Articles, whilk thay presentlie
obeyed be thair electioun." When the prelates and noblemen met to
choose the commissioners of barons and burgesses, both maintained
their attitude, "and maid sum chainge, so far as the noblemen
could." This method did not become fixed till 1633, but it
represents more or less accurately the condition of matters between
1612 and 1638.
The usurpation of all parliamentary power was, of course, bitterly
resented. As early as 1524 we have evidence of opposition; but
the dispute of that year was rather personal than political,
and not in any sense constitutional. The first constitutional
protest dates from the year 1633.[68] But even this is rather a
remonstrance against the decisions of the Lords of the Articles
than against their election and procedure, although there are
references to these. Burton guardedly describes the incident as
containing "distinct vestiges of a constitutional parliamentary
opposition."[69] In 1640, Parliament, no longer under royal
control, ordained that the Lords of the Articles should be "ane
equall number of all Estates, and ... chosen by the haill bodie
of the Estates promiscououslie and togidder, and not separatlie,
by ilk ane of the thrie Estatis apairt." In 1663, by command of
the king the older method was restored, and it continued in force
till the Revolution. The parliament of 1690 abolished the Lords
of the Articles, and declared that "the estates may appoint such
Committees as they choose, there being an equal number of each
estate." Such is the history of that important body.[70]
The history of the Judicial Committee has been often told, and
need not detain us long. We have already seen the first appointment
of a commission to undertake the judicial work of Parliament. From
1368 to 1532 this cumbrous method was maintained, although the
membership of the committee of the "Lords Auditors" was frequently
altered, and the acts of parliament contain many references to
their sitting. James I introduced a modification into the system.
In 1425 the lord chancellor and "sundry discreet persons" of
the Estates received power to "examine, conclude, and finally
determine" all complaints. In the next reign the judgment of these
"lords of session" was declared to be as decisive as that of
the Lords Auditors themselves. In 1503 the judicial work of the
King's Secret Council was organized and a co-ordinate court was
instituted, chosen by the king, and endowed with full powers, so
that there were three courts of justice to deal with the numberless
grievances of the lieges. The judicial system took its final shape
from France. In 1532 King James V proposed "to institute ane
college of cunning and wise men baith of spiritual and temporale
estate ... to sitt and decyde upon all actiounis civile." The
Estates thought this "wele consavit"; and accordingly the cunning
and wise men were created into a College of Justice, with a
president at its head. It was sanctioned by the Pope, and confirmed
by Parliament in 1540, when the Estates granted "to the President,
Vice-President, and the Senators power to make such acts, statutes,
and ordinances, as they shall think expedient for ordering of
process and hasty expedition of Justice." It then consisted of
a president, with seven spiritual and seven temporal lords of
session,[71] and, with slight modifications, the Court of Session
continues to decide all civil cases in Scotland. It represents the
Lords Auditors or the original committee of the Estates to which
judicial powers were entrusted, and not the judicial work of the
Secret Council. So strongly was it felt that the College of Justice
was a committee of Estates, that, at first, it did not sit during
the meeting of Parliament, which the Lords of Session were expected
to attend. Exceptions to the rule occur frequently, and as early as
1538. The High Court of Justiciary was instituted by James VI in
1587, to supersede the old jurisdiction of the justiciar, and was
remodelled in the reign of Charles II.
6. We know, from various sources, something of the pomp and
circumstance which accompanied a meeting of Parliament. The dress
of the members was strictly prescribed,[72] and formed often
the most expensive item[73] in a member's account-book. The
Stewart sovereigns, with scarcely an exception, loved display,
and the meeting of the three Estates afforded an unusually good
opportunity. Queen Mary's personal beauty gave an additional
splendour to the meeting of Parliament in 1563, and as she rode in
procession the populace of the capital could not restrain their
enthusiasm, and hailed her with shouts of applause, "God save that
sweet face!"[74] Her son took strong measures to prevent what he
termed the decay of the majesty of his parliament. In 1600 he
enjoined that all members "rydand on horseback, clad with fut
mantellis, and utheris abuilzementis and clething requisit for
the honour of the present actioun, repair, attend, and accompany
his Majesty" to and from Holyrood and the Tolbooth, "and that
nane schaw themselves unhorsit or vantand fut mantellis under
the pane of tinsell of thair vot and place."[75] The procession
was marshalled in reverse order of precedence. First came the
commissioners of burghs in their black gowns. They were followed
by the commissioners of barons, members of the privy council,
and officers of state not being lords. The clergy came next,
priors, bishops, and abbots, being alike attired in silk gowns,
and immediately after them, lords and earls with their mantles
of velvet. Trumpeters preceded pursuivants and heralds, and the
Lord-Lyon-King-at-Arms in his gorgeous apparel, walking "him
alane," immediately in front of the honours of Scotland. Behind
his sword, sceptre, and crown, rode the king himself, between
the captain of his guard and the constable of the kingdom. The
chancellor and the great chamberlain were in immediate attendance
upon their master. Last of all came the marquesses and the royal
household. After the Reformation the work of Parliament was
invariably preceded by a sermon. When the full Parliament met again
to ratify the proceedings of the Lords of the Articles, the "Lyon
Herauld" solemnly presented the sceptre to the king, who touched
the articles. Prayers followed, and the House was dissolved. It was
small wonder that the citizens of Edinburgh felt some regret when
the glory of the Parliament House departed.[76]
II.--THE INFLUENCE OF PARLIAMENT
When the Great Council developed into what we understand by
the word "parliament," it took its place as one of a series
of competitors for the chief power in the kingdom. The king's
prerogative was sufficient to cover everything that he was able
to do, and an undefined law of treason[77] gave him a valuable
weapon, which he did not fail to use. The most notable danger to
the prerogative was the supersession of the royal power by the
rise of certain noble families from time to time. The strength of
these nobles lay in the number of their retainers, over whom they
had absolute power. Most of them were hereditary sheriffs of their
own districts, and it was rarely that either king or parliament
ventured seriously to interfere with their judicial powers.
The Parliament found an additional rival in the Secret--afterwards
called the Privy--Council, which formed the Executive of the realm.
Little is known of the early history of this important body. Its
origin has generally been ascribed to the Parliament of 1369,
which, as we have seen (cf. pp. 40, 41), appointed a Committee to
discuss certain matters before they came before Parliament.[78]
This, however, refers to the Lords of the Articles, and when the
Committee of the Articles was appointed two years later, the
precedent of 1369 was avowedly followed. It is not, therefore,
possible to identify this body with the king's secret council,
mentioned two years later, when urgent private business, relating
to the succession, was discussed "in the king's secret chamber in
his secret council,"[79] as contrasted with the king's chamber
of public Parliament.[80] This allusion to a secret council
probably indicates not the origin, but the existence, of such a
secret council of royal advisers as must have come into being
centuries before. The small place held by the Parliament in the
government of the country left the Executive or Secret Council
a still more valuable instrument for those in power, and it is
impossible that the kings of Scotland did not possess a private
council before 1369. The next definite reference is in 1389; when
the Duke of Rothesay was appointed regent for Robert III (cf.
p. 75), his power was limited by a council, of which eighteen
members were appointed by the Estates--probably an enlarged
form of the Secret Council.[81] But this was only a temporary
arrangement, and it is very doubtful if Mr. Hill Burton is right
in treating the King's Secret Council as one of "the three great
Committees of Parliament."[82] It is more natural to regard it as
analogous to the English Curia Regis, and not ultimately connected
with parliamentary institutions. Like the English Curia Regis,
it exercised judicial powers from an early period, probably in
connection with its general work of administrative order. It is not
easy to distinguish between the jurisdiction of the Council, and
that of the Lords Auditors, or Committee of Parliament, elected
from 1369 onwards,[83] to decide legal cases, and a further
complication arises from the additional Committee of the Estates,
appointed by James I in 1425.[84] The jurisdiction of the Council
in matters of litigation was further defined by James IV, who, in
an act of 1503, provided that "there be a council chosen by the
King's Highness, which shall sit continually in Edinburgh or where
the king makes residence or where he pleases, and decide all manner
of summons and civil matters, complaints, and causes, daily, when
they shall occur, so that there shall not be so great confusion
of summons to call at the session"[85] of the Lords Auditors,
or Judicial Committee of the Estates. We are probably right in
connecting this council, chosen by the king, with the judicial
powers of the Lords of Secret Council, and it may be an imitation
of the English Courts of King's Bench and Common Pleas. The special
powers of this body came to an end with the establishment of the
Court of Session.
The constitution of the Secret Council, as an executive body,
was the subject of legislation during the temporary rise of the
importance of Parliament in the beginning of the reign of James
IV.[86] In 1489 the King's Council was chosen in Parliament. Its
numbers were increased, and an act was passed that this council
should act as the advisers of the king till the next meeting of
Parliament, and should be "responsable and accusable to the king
and his Estates." They were appointed to deal, not only with
justice, but also with all matters concerning the sovereign or the
realm. A quorum consisted of six members, of whom the Chancellor
must be one. But there is no second instance of a parliamentary
choice of the members of the Secret Council, nor any indication
of any control over them, and, as we have just seen, the members
of the Secret Council sitting for judicial purpose were, on the
creation of the committee in 1503, selected by the king alone.
Thus matters continued till the minority of James V, when Council
and Parliament alike became the object of the intrigues of the
factions who were struggling for power, and the Estates were, as
usual, powerless. In 1524 the Lords of the Articles chose the Lords
of the Secret Council, and in 1528, when the Earl of Arran was in
power, he obtained the election, in Parliament, of a Council to
advise the king, and of a smaller Secret Council, from both of
which the leader of the opposite party, Archbishop Beaton, was
excluded. When the records of the Privy Council begin, in 1545,
the council was a small body of advisers of the queen-mother and
the regent, and there is no evidence that the Act of 1489 was
ever really in operation. The Register shows that the council
possessed very full executive powers, and it continued to carry on
the real government of the country. Its numbers increased during
the minority of James VI, the circumstances of which differed
widely from those of any previous minority, and, in 1598, the king
succeeded in reducing the number of its members to thirty-one, and
in rendering it completely dependent on the Crown, while, at the
same time, he made it, as far as he could, the paramount authority
in the land, not only in matters pertaining to the Executive,
but also in connection with justice. It was in no sense a Court
of Appeal; but it not infrequently reversed judgments of the
Court of Session, and sometimes dictated their course of action
to the judges. Any such interference arose, however, from the
plenary powers of the council as an executive body. After James's
accession to the English throne, the Privy Council became the mere
instrument of the king's will, and dared in no way to oppose him,
while he, on his part, treated it with scant respect or courtesy.
At the outbreak of the troubles in the reign of Charles I, it was
prominent in opposing the king; but it was afterwards eclipsed
by the Parliamentary Committees and by the Assembly. After the
Restoration it became again an instrument of absolute monarchy, but
from the Revolution to the Union of the Parliaments it possessed
very important powers.
With this preface, we may proceed to our main issue: what was the
influence exerted by the Scottish Parliament, thus constituted,
governed by such rules of procedure as we have described, and
surrounded by so many powerful rivals? The early laws which have
come down to us as illustrating the powers of the Great Council are
mainly concerned--like so many later enactments--with matters of
administrative detail. The assizes of William the Lion deal largely
with merchandise and the rights and obligations of merchants, and
scarcely fall within our province. The work of the Great Council,
up to the War of Independence, was to deal with police and
judicial administration, to settle feudal claims and obligations,
and to make grants to the king. We find the council consulted
on marriage treaties (_e.g._ in 1153 and in 1295); but marriage
treaties involved expenditure. The task of advising the king and of
carrying on the government must have belonged to a select council
of which our constitutional documents bear no trace.
In the reign of Robert the Bruce, as we find the first advance
in membership we meet also the first indications of a growth of
power. His parliaments took measures for the security and defence
of the kingdom; they passed laws regulating the succession;
they established the English principle involved in the writs of
Novel Disseisin and Mort d'ancestor; they addressed the Pope on
the subject of the English claims, and told him of their great
deliverance at the hands of King Robert. The great parliament of
1326 made a bargain with the king. In consideration of the "many
hardships he had sustained both in person and goods," during his
ten years' conflict with the invaders, they granted him "the tenth
penny of all their fermes and rents, as well of demesne lands and
wards as of their other lands." The collection was to be made
by the king's officers; and all who claimed liberties promised
faithfully to pay the proper sum to the royal servants. The grant
was made only for the king's life, and two conditions were
attached to it. Any remission made by the king would invalidate the
whole grant. The king must not impose any further taxes (except,
of course, the ordinary feudal dues), nor must he take prisage or
carriage, except on a journey, and, even then, not without payment.
In the last parliament of the reign, the treaty of Northampton,
by which England acknowledged the independence of Scotland, was
discussed.
The first reign in which the term parliament is really applicable
is that of King Robert. At the very beginning of parliamentary
history in Scotland, we have, then, distinct precedents for three
important constitutional rights--the regulation of the succession,
participation in the settlement of foreign affairs, and powers
of taxation. If we could regard these as having been claimed
by Parliament with consciousness of their full significance,
and admitted by the Crown, we might fairly join with the older
historians in urging that Scotland can be said to have anticipated
the parliamentary institutions of England. The explanation lies
in the circumstances of the reign. The king's title consisted in
his leadership in his glorious war. The succession was uncertain;
the Crown was poor; the nation was loyal. A writer on the English
constitution could take these three points of which we have spoken,
and trace their history through the centuries. Such a method would
be futile here. These rights, and all other rights, stand or fall
together. We can scarcely draw the wonted distinction between
political and constitutional history. At times, we have neither, in
any strict national sense; only family and personal history.
The leprosy-stricken age of King Robert was cheered by two
important events--the birth of an heir, and the acknowledgment
of the national independence. When he sank into the grave, he
left the heritage of the nation's freedom, and the guardianship
of his son, to the loyalty of the nobles. It was an opportunity
for Parliament to make good its position. But, as we have already
seen, the precedent of 1326 was assumed to be valid only for the
raising of money, and the "Parliament" was, at first, only the
old council. The political events of the beginning of the reign
relate chiefly to the attempt made by England to place Edward
Balliol on the Scottish throne, as a vassal-king. When that
design had been, not without some difficulty, defeated, we find
the Parliament, without the burgesses, conducting all the affairs
of the kingdom, and acting, for almost the only time in Scottish
history, as the executive. It granted lands and charters; passed
ordinances regarding the Staple; arranged (with the co-operation
of the burghs) the treaty of peace with England and the ransom of
the king; settled the privileges of the church and of the burghs,
with which the king had been tampering; made provisions for the
Highlands and Islands; and decided the mode of succession. This,
however, is not parliamentary government, though it is more like
it than anything else in Scottish history before the revolution
of 1640. The king was at the first an infant, and afterwards a
prisoner, and his character was at all times weak and contemptible.
The nobles were divided by feuds. Nobody was strong enough to make
himself supreme. The country was governed by a committee of the
nobles. Still, the reign of David II made two contributions to such
constitutional theory as Scotland possessed. One of these is an
emphatic reiteration of what had been done in the preceding reign.
After his return from England, David, in pursuance of a private
agreement with Edward III, attempted to persuade the Estates to
acknowledge Prince Lionel of England as his heir. The account given
of the affair by Wyntoun[87] is notable as the first report of a
debate in the Parliament of Scotland:
"That ilke yere quhen that wes don,
A Parliament gart he hald at Scone.
Thare til the Statis of his land,
That in counsal ware sittand,
He movit and said, He wald that ane
Off the Kyng Edwardis sonnys were tane
To be king in to his sted
Off Scotland, eftyr that he ware dede.
Til that said all his lieges, nay;
Na thair consent wald be na way,
That ony Ynglis mannys sone
In [to] that honour suld be done,
Or succede to bere the Crown,
Off Scotland in successione,
Sine of age and off wertew there
The lauchfull airis apperand ware.
Quhen this denyit was utraly,
The King wes rycht wa and angry;
Bot his yarnyng nevyrtheles
Denyit off al his liegis wes."
The words of the original Act are quite as emphatic.
The Parliament of 1326 had declared that any personal remission
of taxation by the king would render the whole grant null and
void. The Parliament of 1369 went much further. It enacted that
no remission granted by the king to a convicted offender should
have any force, and it asserted that any writ of the king was
invalid which contradicted any statute or was not in accordance
with the common law of the realm. This constitutional statement
marks the "highest" doctrine propounded by the Scottish Parliament
till the seventeenth century. While it is necessary to guard
against laying too much stress on the history of the reign of
David II as illustrating the growth of strictly constitutional and
parliamentary principles, it would be erring on the other side to
deny that here we have a distinct assertion of principle. We have
been forced to discount much of the recorded action of Parliament,
on the ground that it is merely an instance of a number of
nobles uniting to do what none of them was powerful enough to do
alone. But the Parliament of 1369 contained burgesses (at least
on the roll of its members); and the wording of its resolution
is distinctly suggestive of the existence of some constitutional
feeling.[88] The weakness and unpopularity of the king must be
allowed due weight on the other hand; and the tone of the record
suggests a jealous interference with the personal schemes of the
king rather than any broader view of rights.
With the ignominious reign of David II the direct line of King
Robert the Bruce came to an end. The question of the succession
had already been settled by the Parliament in favour of King
Robert's grandson, Robert, the High Steward of Scotland, son of
Marjory Bruce and Walter the Steward. We know that Robert had
been a prominent figure during the reign of his uncle, and that
David II regarded him with no good will. The reign of Robert II
is one of the periods of Scottish history which stand in need of
more thorough investigation. We possess no account of it that
is in any way satisfactory. There are wars and rumours of wars;
vague traditions of conspiracies; dim hints of a constitutional
conflict between the Estates and the King. No figure stands
out pre-eminently from the crowd; no man of the time left any
impression on succeeding generations. The one event that has
given significance to the name of Robert II is the "hontynge of
the Cheviot," the battle where the dead Douglas won the field.
Two points demand notice from a constitutional stand-point. The
family difficulties of the king led to the establishment of the
succession by the Estates.[89] But the crown was entailed in
accordance with the king's wish, and the fact affords no indication
of the power of Parliament. In the second place the early years of
the reign mark the renewal of a definite alliance with France, of
the circumstances of which we know but little. The instructions
to the ambassadors contain a mention of the consent of the
_prelati proceres et tota communitas regni_ to the proposal for a
Franco-Scottish league; and one of the conditions of its acceptance
was that the Scottish Parliament alone should decide a disputed
succession without French interference--clearly a reminiscence of
the pretext of which Edward I of England had availed himself. The
French negotiations led to an _imbroglio_ with England, to which
undue weight has been attached. Robert had, in 1383, agreed to a
truce with England. A number of his nobles, mainly to amuse a
band of French knights, made a raid into the northern counties, in
revenge for a recent English incursion. There is no reference to
the affair in the Scots Acts. Froissart gives the most detailed
account; and there seems to be no reason to attach to it any
constitutional value whatsoever. Tytler, whose _History_ is still
in many ways our best authority, merely remarks that "These were
not the days when Scottish barons, having resolved upon war, stood
upon much ceremony, either as to the existence of a truce, or the
commands of a sovereign."[90] Hill Burton, following Buchanan,
regards the incident as the first of a series of instances showing
that the power of peace and war was throughout Scottish history
"jealously retained by the Estates."[91] We shall have occasion to
refer to the other statements on which this bold generalization
is grounded. Meanwhile, it is sufficient to say that three years
previously, an agreement for a truce had been made at a private
meeting between John of Gaunt and the Earl of Carrick, King
Robert's eldest son; and we have no evidence that anyone thought of
consulting the Estates at all.
During the latter half of his reign, the king was rendered quite
incapable both in body and mind by some disease, the nature
of which is uncertain. For a few years, therefore, there was
considerable parliamentary activity. A laudable effort was made
to restore order in the north, by sending Carrick to deal with
the rebellious lords. We do not know how far he was successful.
He was soon afterwards temporarily disabled by an accident, and
his brother, the Earl of Fife, succeeded to his place. These years
are marked by certain police measures, and by efforts to suppress
private feuds and carry out the decisions of the law courts. It is
scarcely possible to say whether Parliament gained or lost ground
under Robert II. It is the transition period between the great
council of the reign of David II and the rise of individual nobles
which alternated with intervals of regal government from the reign
of Robert III to that of James VI.
The change of Carrick's name from "John," hateful by reason of
its association with Balliol, to that of the hero of Bannockburn,
could not avail to alter the weak disposition and character of
the new monarch. The first years of the reign were free from
conflict with the troublesome neighbour in the south; but they
were years of internal feud, almost of anarchy. The career of the
Wolf of Badenoch is typical of the time. Possibly the mysterious
combat at Perth, where Hal o' the Wynd carved for himself a path
to fame, is connected with some attempt to introduce order.
Parliament met during these years only to sanction charters and
other formal documents. But the meeting of the Estates in 1398 is
a distinct epoch in the story. Burton[92] tells us that "At length
the cry of the nation reached and was re-echoed by the Estates
in Parliament"; that, although "in this assembly were those who
had been the most flagrant and powerful transgressors, yet the
Parliament collectively emphatically denounced the evils of the
day and sought to find a remedy for them"; and that "no one who
could have checked the mischief was spared." If we could accept
this view of the situation, it would be an interesting exception to
the common belief that an individual may have a conscience, but a
body of councillors has none. But Burton's characterization of this
parliament is, _pace tanti viri_, a psychological impossibility.
He founds his interpretation upon the often quoted Act which
attributed to the king all responsibility for the misgovernment
of the realm, and called upon him, if he desired to exculpate
himself, to show that the blame lay with his officers. The Duke of
Rothesay was appointed regent, and he was instructed to consult
a council of "wise and leal men." We are not informed under what
auspices the parliament met. But it is certain that the king was
not responsible for his actions, and that the anarchy was largely
due to the rivalry of the Duke of Rothesay, the king's eldest
son, and the Duke of Albany, a brother of King Robert, who, as
Earl of Fife, had held the title of "Governor" in the end of the
"preceding" reign. They and they alone could have "checked the
mischief." The probability is that the meeting of Parliament was
really an incident in their struggle for power; that Rothesay was
powerful enough to secure the regency; and that Albany succeeded
in circumscribing his power by a council and by a decision that
Parliament was to be summoned once a year. But it is not necessary
to allow even this importance to the appointment of a yearly
parliament. The Act says that the king shall hold a parliament "swa
that his subjects be servit of the law." It was to meet merely
to overtake its judicial work--the decisions in feudal quarrels
and on complaints of robbery and oppression. Our explanation
of the _motif_ of the meeting of the Estates of 1398 receives
some confirmation from subsequent events--the misgovernment of
Rothesay, his imprisonment by the Duke of Albany, his mysterious
death, and the peaceful succession of Albany to the governorship
without, so far as the records go, any appointment by the Estates
whatsoever.[93] The view we have taken seems the most probable
when we consider the circumstances, the composition of Parliament,
and the whole tone of the reign. It is, however, not incompatible
with an acknowledgment that there possibly existed in 1398 a
neutral party which was able to wield a certain influence in the
fierce division of parties. It is noteworthy that a resolution was
passed that the names of Rothesay's councillors who agreed to an
act of government should be recorded, so that he and they alike
might be responsible to the Estates. It would be rash to speak
dogmatically in the present condition of our knowledge. There is a
strong temptation to accept this as a constitutional movement; but
it must be remembered that it is at least equally probable that we
have here a device by which Albany aimed at ridding himself on the
first opportunity of his reckless and dissipated nephew and of that
nephew's favourite counsellors.[94] The great pitfall of Scottish
historians has been to read later or foreign ideas into the scanty
records of the national history.
If they are right who argue that under David II and the two Roberts
we have a discernible impulse towards parliamentary government,
we certainly lose all trace of it after the death of the Duke of
Rothesay. The Duke of Albany kept complete control of the country
till his death in 1419, when he was succeeded by his son, without
any trace of parliamentary sanction. The government of the first
Albany was firm, but he ruled as absolute master. A parliament
had met in 1402, before Rothesay's death, and had passed some
useful acts for the maintenance of internal order, probably under
Albany's guidance. The most important of these refer to justice,
and illustrate the difficulty of dealing with hereditary sheriffs.
While the country was divided between Rothesay and Albany,
Parliament still had a place. After Rothesay's death it practically
disappears till a great council was summoned in 1423 to discuss the
propositions for the king's return, which involved the question of
a ransom.
Under the personal rule of James I we have the best instance in
Scottish history of government in accordance with what would now
be called the theory of the Scottish constitution. But it was not
"constitutional government" in our modern derived sense of the
word. The Parliament was not intended to be the ruling body. King
James was a masterful man, and he aimed at using the Parliament
as the best means of creating a powerful monarchy, not at giving
it a power to rival his own. His experience immediately on his
return does not strengthen our belief in the "Parliamentarianism"
of the preceding century. He found it impossible to persuade the
smaller barons to attend, even by deputy, and he had to threaten
with the penalties of treason his great lords who declined to be
present. The burgesses alone seem to have regarded with sympathy
his meditated reorganization of the kingdom. The acts of his
reign provided for the defence of the country on the analogy of
the English Assize of Arms. They dealt with labour disputes; they
instituted the system of licensed beggars to which we are indebted
for Edie Ochiltree, and forbade anyone to beg between the ages of
fourteen and seventy. The numerous Parliaments that met between
1424 and 1437 are full of police regulations, some of them petty
enough, but all bearing the impress of the master-mind of the
king. He vindicated his orthodoxy by enactments against Lollardry,
while he emulated the English kings in their prohibitions of papal
interference.[95] But, above all, the reign is memorable for the
king's attempt to enforce justice.[96] His great difficulty lay
in the independence of the sheriffs, who continued to impede all
improvements for three centuries after his death. The history of
Scotland is full of complaints on this subject. "The greatest
hindrance to the execution of our lawes in this countrie," wrote
a later king, "are these heritable Shiredomes and Regalities,
which being in the hands of the great men, do wracke the whole
countrie."[97] It was more easy to ordain frequent sessions of "the
Chancellor and discreet persons," to forbid riding to the court
"with multitudes of folkis na with armys," and to threaten the
punishment of negligent sheriffs, than to carry out these schemes.
The only guarantee for their receiving any obedience lay in the
personal strength of the king. With the tragedy at Perth, which
rendered the Christmas of 1437 for ever memorable, the great plans
of the first James lost all chance of fruition. Parliament had
done good work during his reign. It had conferred a legality on
his ordinances which rendered them less the creatures of the royal
will and weakened the protests of the nobles against the king's
tyranny.[98] But we cannot reasonably credit the Estates with any
initiative. The acts are the king's acts. Even the judges--the
lords of session--were no longer elected by Parliament; they were
chosen by the king.
From the murder of King James I to the commencement of the
personal rule of his son, Parliament rarely met, and there is
no evidence of any activity. The minority was occupied with the
miserable rivalry of Crichton and Livingston, and with schemes for
preventing the undue growth of the power of the house of Douglas.
It is an illustration of how far Scotland was from possessing a
parliamentary theory, that Douglas was credited with an intention
of setting up a Parliament of his own. His aim seems to have been
to create for himself a sort of kingdom with some vague feudal
dependence on the King of Scotland. Beyond some administrative
acts of 1449, there is no parliamentary progress to record till
after the second and final defeat of the great House in 1454. The
Douglas influence was so strong in 1449 that they passed an act
which rendered it lawful to seize by force, with the consent of
the three Estates, the person of the young king, who was growing
restive under the Douglas domination.[99] When James of the Fiery
Face at last succeeded in throwing off the yoke, he set himself
to carry out the work that his father had left unfinished. His
legislation covers some pages on the statute book. But it is mainly
a repetition of the work of James I, and many of the acts are
really decisions in private cases. Pitscottie[100] describes to us
the suitors that thronged when Parliament met--"widows, bairns, and
infants, seeking redress for their husbands, kindred, and friends
that were cruelly slain by wicked bloody murderers." The reign is
not devoid of some progress in justice and police regulations. But
it exemplifies the tendency of the Scots Parliament to exercise
the functions merely of a court of justice. Under good influence,
like that of James II and Bishop Kennedy, it decided causes in
favour of the poor and the oppressed, and made general regulations
to meet all such cases in the future. Under the influence of some
ambitious nobleman, it passed partisan measures which rendered
legal his treatment of his opponents. King James VI[101] did not
speak purely out of prejudice against the power of parliaments
when, years before the fateful journey that brought him into
contact with the English Commons, he wrote:
As a Parliament is honourablest and highest judgement in the
land--if it be well used--so is it the injustest judgement seat
that may be being abused to men's particulars; irrevocable
decreets against particular parties being given therein, under
colour of generall lawes, and oft-times the Estates not knowing
themselves whom they hurt.
The credit of the wise legislation which marked the last six
years of the life of James II belongs to the king and the Bishop
Kennedy of St. Andrews. Parliament was merely a good tool in wise
hands. There is no proof that it ever really decided--or even had
a voice in deciding--anything of importance. In March, 1457-58,
all the leading acts of the reign were confirmed, and the Estates
petitioned the sovereign "with all humilitie ... to be inclynit
with silk diligence to the execucione of these statutis, acts
and decretis above writtyn that God may be emplesit of him," and
congratulated him on the peace of the realm. Two years later, in
prosecuting a war[102] with "our enemy of England," James, "more
curious than became him or the majesty of a king," was watching the
firing of a cannon, before Roxburgh Castle, when it exploded, and
Scotland was again plunged into the troubles of a minority.
The death of the king made at first but little difference to the
conduct of affairs. Bishop Kennedy continued to rule till his
death, in 1465. No sooner did the statesman and patriot disappear
from the scene than a coalition headed by Lord Boyd seized the
young monarch, and carried him in triumph from Linlithgow to
Edinburgh. A parliament was at once summoned to sanction their
proceedings. The king was made to declare that he had gone
willingly, and the Estates created Boyd James's governor, and
somewhat illogically granted him a full pardon. Under the sway of
the Boyds, Parliament met every year; but it was merely a tool in
the hands of Lord Boyd, who combined in his own person the offices
of governor of the royal family, justiciar, and lord chamberlain.
In 1469 the Boyds fell. A strong rival party had formed an
opposition of which we find traces all through the brief term of
power enjoyed by Boyd. It is significant that this opposition is
found everywhere except in Parliament, which unanimously agreed
to measures against the malcontents. The parliamentary tactics of
the Boyds were used against themselves. A meeting of the Estates
was at once called by the king, now under the influence of Lord
Hamilton, and the whole of the late ruling faction were condemned
to the penalties of treason, on the ground of the king's seizure,
for which the same body had, three years before, solemnly pardoned
them. Their vast possessions were confiscated. The Hamiltons, who
had gained the confidence of the young queen, continued to rule. So
far the political history of the reign is clear, and the position
of Parliament falls at once into line with it. But we dare not
attempt to unravel the tale of intrigue which convulsed the country
during the next twenty years. The reign of James III is an unsolved
problem. But the constitutional feeling may be illustrated by a
representative incident. The Parliament of 1482 was completely
under the control of the Duke of Albany. The Estates passed acts
which gave to him control of the property of the Crown, and
power over the life and liberty of the lieges. One year later it
rescinded all these acts and proscribed the duke. They may be right
who have found great constitutional activity in the mysterious
records of the reign. It may be that amid all the disorder and
confusion the burgesses and some neutral prelates were able to
exercise some influence. It is certain that there was as usual no
lack of attention to judicial and police requirements. But until
some intelligible and consistent account of the reign has been
offered, the sceptic may be pardoned for refusing to believe that
out of these unruly struggles of selfish and grasping lords came
calm constitutional progress.[103]
The rebellion in which James III lost his life was, as usual,
discussed in Parliament: that is to say, the first Parliament
of the new reign declared that it was not a rebellion at all,
and that, whatever it was, the new monarch and his advisers were
not responsible for it. At first, James IV was in the hands of
the nobles who had persuaded him to enter the field against his
father. His second Parliament is memorable for a claim raised by
the Lords of the Articles "that Compts and Rekyning be takin of
all the king's officiaris, his thesaurars and comptrollers, auld
and new of our soverane lord's tyme that now is and that auditors
be chosen and named by the avise and autorite of this Parliament."
This is not the tone in which we have been accustomed to hear
the Parliament speak. It is coincident with the appointment in
Parliament of "our Sovereign Lord's Secret Council," and with a
resolution that the king has "humilit his highness," so far as to
promise to act by its advice. The council was composed solely of
prelates and great lords representing mainly the party in power,
although including the patriotic bishop of Aberdeen,[104] who had
been a faithful servant of James III. We have here a distinct
constitutional advance. The king owed his power, not to a small
clique such as had been frequently formed in the late reign, but
to a large confederation of the greater nobles, who took the
opportunity of legally defining the position of the sovereign.
But within a few years we find James ruling alone. He was an able
man and he ruled well. The Parliament met frequently and did what
the king wished. We find in its records references to embassies
to Spain, France, and England, and to the king's marriage. But we
know, from the foreign correspondence of England and Spain, that
the policy of Scotland depended upon the king, and on him alone.
Parliament regulated in certain cases the incidence of taxation:
at all events it passed acts for this purpose. Contemporaries did
not imagine that the Estates alone had powers of taxation. John
Major,[105] writing a few years after the strong hand of James IV
had been removed, made this remark:
As to the levying of taxes, I will limit my opinion to this
expression: that in no wise should the power be granted to kings
save in cases of clear necessity. Further it belongs not to the
king nor to his privy council to declare the emergence of any
sudden necessity but only to the three estates.... I am aware that
Aristotle in his second book of the _Politics_ says wisely that
laws are not to be changed; yet, in the judgment of the wise, they
may be modified in accordance with the demands of equity.
Major remarks on the difficulty of collecting taxes in Scotland
and on the folly of the kings in alienating confiscated estates,
"since there is no regular taxation of the people." His remedy is,
as we have seen, the regulation of taxation by Parliament. He was a
scholar and a traveller, and it matters not how he came to think as
he did; but it is clear that he advocated a change.
Nor did James regard the Estates as possessing "powers of peace
and war." Pedro de Ayala[106] tells us of a conversation which he
held with the king which gives us the royal views: "He said to me
that his subjects serve him with their persons and goods, in just
and unjust quarrels, exactly as he likes, and that therefore he
does not think it right to begin any warlike undertaking without
being himself the first in danger." Boece, in his biography of
Elphinstone,[107] tells us of councils which preceded Flodden: but
they are meetings of the king's private advisers. It is instructive
to note that one parliament was held with reference to the
English war. About a fortnight before the battle, what is termed
"Parliament" was held at Twiselhaugh. It was composed of "all his
lords being there for the time in his host," and it secured that
the heirs of all who were slain should be exempted by the king from
certain feudal dues. The exemption can only have been the king's
own act. It is an additional testimony to the purpose for which the
Scots Parliament normally existed--to ratify what somebody else
had done. If there are vestiges of constitutional claims at the
opening of the reign, there are none at the end of it. But though
the Parliament had not been free, neither had it been idle. It was
a time of unusual prosperity and of great expansion of trade. The
pages of the statute-books are full of useful acts, especially
for the encouragement of shipping, in which the king was greatly
interested.
While the "lilt of dule and woe" which followed the disaster at
Flodden was still filling the land, the country was again plunged
into the misery of feudal quarrels. The ambition of the lords,
and the caprices of the queen-mother--a true sister of Henry
VIII--fill up the minority of the king. Parliament met only to
ratify appointments which it had no power to question, and to
deal with official business. It is possible that the Estates
chose the Duke of Albany as regent. But it is almost certain that
the impulse must have come from some of the leading nobles or
prelates; and when we recollect that the "Estates" meant the Lords
of the Articles, it is scarcely necessary to discuss the matter as
presenting even the remotest possibility of a parliamentary choice.
James V was nominally declared of full age in 1524. But he was
then only thirteen years of age, and the "erection of the king"
was merely a pretext for the transference of the power from Albany
to Queen Margaret, the Parliament of course approving, when it was
told to do so. Until the king became personally responsible for
the government, there was little done in Parliament. If we except
a slight activity in 1526 (mainly relating to such incidental
matters as the capture of ships and the furnishing of the royal
residences), there is scarcely anything to record till we reach
the year 1535. Parliament met; but its business was purely of an
official nature. All that we know of the Parliament of May, 1527,
for example, is that it issued two continuations of summons, one
"reduction" of a process of forfeiture, eleven ratifications of
charters, and received four protestations. A single official,
appointed for the purpose, could have done all the work.
James V is known in history as the "Commons' King." We are
therefore prepared to find during the five years of his personal
government a considerable amount of social legislation of the
ordinary type, dealing often with trivial details, which show
that the burgesses were in co-operation with the king. But of
parliamentary interference there is not a trace. The hostilities
with the "auld enemy," a mischance in which broke the king's heart,
seem not to have been referred to the Estates in any way. The reign
of James V was contemporaneous with the English Reformation, and
before the king died the new doctrines had gained considerable
strength in Scotland. But James himself, after his alliance with
the House of Guise, had become more rigidly orthodox, and his last
Parliament passed acts enjoining obedience to the Pope, the worship
of the Virgin Mary, and prohibiting any convention to discuss
Scripture. The royal influence was supreme.
The stories of the minorities of James II, James III, and James V
read almost like repetitions of each other. The names and dates
vary; the essential facts are the same. The minority of Queen Mary
is widely different. The difficulties no longer arise from petty
squabbles and contemptible personal intrigues. There is a deeper
significance in every movement. It is a conflict, not of men, but
of principles. On the one hand was the ancient French alliance,
associated with the ancient faith. On the other hand stood the
possibility of new relations with England and the acceptance of
the Reformed doctrines. At first the revolutionary party held the
power. The Scottish nobles had observed the English king's dealings
with the lands of the Church. In Scotland there was no masterful
Tudor to enrich himself. We find accordingly the acceptance of
the marriage proposals of Henry VIII, and, significantly enough,
among the domestic legislation of the time is an act making it
lawful "to haif the haly write, baith the new testament and the
auld in the vulgar toung in Englis or Scottis of ane gude and
trew translation."[108] The "English wooing," which passed into a
proverb in Scotland, did not merely put an end to the suggestion
of a marriage between Queen Mary and Edward VI; it altered the
situation in Scotland, and deprived the reforming section of their
hopes of success, by forcing the nation into a French alliance.
In 1545, Parliament, always obedient, inveighed against "heretiks
and thair dampnable opinionis incontrar the fayth and lawis of
halykirk." But it was not till the regency was transferred from the
Earl of Arran (now Duke of Chatelhérault) to the queen-dowager (in
1554) that the success of the conservative section in the realm was
complete. "Thus," wrote Knox, in reference to the event, "did light
and darkness stryve within the realm of Scotland; the darkness
ever befoir the world suppressing the light." The reservation,
"befoir the world," is significant. Knox knew that every year since
the death of James V had added converts, ever increasing in number,
to the new faith. But all the time Parliament became more and more
rigidly orthodox.
The struggle between the two parties found an issue in open
warfare. The Protestants formed themselves into "the Congregation
of the Lord." But they did not look upon Parliament[109] as the
proper field for their contest with "the Synagogue of Satan." The
insurgents and their English allies gained no success on the field;
but the death of Mary of Guise and the absence of her daughter
in France procured for them the results of victory. Scotland was
definitely in the hands of the Protestant nobles.
Parliament met in 1560, and abolished the Roman Catholic faith
within the realm. But, as we know from Knox's _History_, Parliament
merely ratified what was otherwise settled. Behind it were the
nobles and the Protestant clergy. The ministers petitioned the
Estates to establish the Protestant faith. They were told[110] "to
draw in playne and severall heidis, the summe of that Doctrine,
quhilk they wald menteyne, and wald desyre that present Parliament
to establische, as hailsome, trew, and onlie necessarie to be
beleivit and resaivit." Within four days Knox and his colleagues
presented the very comprehensive Confession of Faith which
continued for nearly a century to be one of the Standards of the
Church. It
was redd, everie article by itself ... and the vottis of everie
man war requyred accordinglie. Of the Temporall Estate onlie voted
in the contrair, the Earl of Atholl, the Lordis Somervaill and
Borthwik; and yit for thair disassenting thei produced ne better
reassone, but "We will beleve as oure fatheris beleved."
Acts were passed against the mass, and against papal
supremacy.[111] But the whole of the desire of the ministers
was not accorded. The First Book of Discipline did not receive
parliamentary sanction, because it contradicted the views of the
nobles as to the disposal of Church property.
While, then, the Parliament of 1560 was in some sense the creature
of the Assembly, and though its resolutions were conditioned by
the wishes of the nobility, it occupies a very important position
in Scottish constitutional history. We do not lay much stress on
its opposition to the sovereigns. That, in itself, was neither
novel nor remarkable in any way. It was obedient to the powers of
the day. But it is the first Parliament where the burgesses and
the smaller barons attended and voted in accordance with their own
feeling. They were Protestants and they were in complete agreement
with those who were guiding the meeting of Estates. It is also
the first Parliament which had the consciousness of power. They
and their leaders were making a great national change. The people
were beginning to learn what possibilities they possessed. The
Parliament of 1560 was the first step towards a constitutional
theory for Scotland.
This meeting of the Estates has still another aspect. It was
significant that an assembly of ecclesiastics drew up the acts
by which the Parliament became famous, for we have here the
first appearance in constitutional history of a greater than the
Parliament. Into the General Assembly of the Church there soon
drifted those principles and aspirations that might have given life
to the Estates. We shall have occasion to notice the part taken by
the Assembly in the coming struggles; but it may be well here to
indicate its claims. These claims were not formulated in 1560. They
were of gradual growth. We find them implicit in the writings of
Knox; but they were first definitely advanced by a man of no less
intellect than the rugged reformer--Andrew Melville, the antagonist
of James VI. Melville, in his frequent interviews with the king,
"talkit all his mynd in his awin manner, roundly, soundly, fully,
freely, and fervently." But he never stated his view in more
explicit terms than on the memorable day when, after calling King
James "God's sillie vassal," he addressed him thus:
And thairfor, Sir, as divers tymes befor, sa now again, I mon tell
yow, thair is twa Kings and twa Kingdomes in Scotland. Thair is
Chryst Jesus the King, and his Kingdom the Kirk, whase subject
King James the Saxt is: and of whase Kingdom nocht a King, nor a
lord, nor a heid, bot a member.[112]
Knox, in his interviews with James's mother, had taken lower
ground. But Melville was not using idle words. There was no power
in the land that could cope with the Church. From 1567 the Assembly
met some days before the opening of Parliament, and prepared
Church business, which was generally the principal item on the
parliamentary list of _agenda_.[113] As early as 1565 it sent Queen
Mary an overture against "the papisticall and blasphemous masse
... not only in the subjects, but also in the Queen's Majestie's
awin person," and Mary's reply was couched in sufficiently
humble terms.[114] Two years later it issued instructions to
the Parliament about the ratification of the Acts of 1560, the
question of the Darnley murder, and the treatment of the young
prince.[115] It claimed the old ecclesiastical jurisdiction in all
questions of morality, religion, education, and marriage.[116]
It imprisoned offenders, and it informed magistrates how they
were to act and threatened them with the censure of the Kirk. Its
sentence of the Greater Excommunication involved the cessation
of human intercourse[117] and the forfeiture of legal rights.
The presbyterian system of Church government, with its careful
distribution of authority, was able to make such a sentence a
terrible reality. Not only the General Assembly, but the Synod or
the Presbytery or the Kirk Session, was a court of justice. The
records which have been published show with what vigour their power
was used. Men of position and influence quailed before those stern
judges. The old Church had often been powerful, under a strong
bishop. But the secular forces gained strength while a see was
vacant, and sometimes secured the appointment of a lay figure. A
Presbytery never died: its members might change, but it continued
its work, calmly and relentlessly, "grinding exceeding small."
Nor was the power of the Church confined to criminal jurisdiction.
Two instances will serve to show the extent of its influence. In
1594, King James asked the presbytery of Edinburgh to "procure
the leveing of six hundreth footmen, and four hundreth horsemen"
to suppress a rebellion; and the presbytery complied with his
request.[118] At the meeting of the General Assembly in March,
1596, King James was present. "He urged a contribution of the
whole realme, not to be lifted presentlie, but when need sould
require," and, to gain the sympathetic consideration of the
Assembly, he promised that "his chamber doors sould be made patent
to the meanest minister of Scotland, there sould not be anie meane
gentleman in Scotland more subject to the good order and discipline
of the Kirk than he would be."[119] It would be easy to multiply
examples.
It was no case of ecclesiastical tyranny. The leaders of the Church
might well apply to themselves the promise, "a willing people in
the day of thy power." Modern democrats have denounced the Assembly
as the oppressors of a priest-ridden populace. But the Assembly
had made possible the existence of a public opinion in Scotland,
and the public opinion of Scotland was with the Assembly. It is
true that the documents to which assent was required appear to
us crowded with metaphysical subtleties, to some of which no
man who valued his freedom of thought could subscribe; but it
must be remembered that these cast-iron theories registered the
results to which that generation had attained. Moreover, it was
in the Church courts, first of all, that Scotsmen learned the
value and the power of debate. The Church did for Scotland what
the Parliament accomplished for England. The Assembly was not a
meeting of ecclesiastics alone. The strength of the Church lay in
the presence of lay members in her courts,[120] to which there came
earls, lords, and barons, and commissioners from provinces and
universities. Each member, be he lord or peasant, the minister of
St. Giles, or a Glasgow baillie, had equal right to speak, and no
man's vote counted for more than that of his neighbour. The history
of Scotland from the Reformation to the Revolution is the history
of the General Assembly. The motto which it shared with other
reformed churches is the story of the seventeenth century. _Nec
tamen consumebatur._ Yet the flames burned fiercely enough.
From what we have said of the Assembly, the inference as to the
Parliament is clear. It follows that its history between the
year of Queen Mary's return and the day when Andrew Melville
addressed King James in the words we have quoted is one rather
of retrogression than of progress; nor did it, at any subsequent
period, overawe the General Assembly. Further than this point we
cannot go in any detail. The history of Scotland between 1567 and
1707 is so intricate, and has been so thoroughly expounded, that
only a brief concluding sketch is necessary in a thesis of the
present nature, however essential to a constitutional history of
Scotland. In 1560 it was, to some extent, a free parliament, as
Knox said, and it could claim to represent popular opinion. During
the reign of Mary, as we have already seen, it relapsed into its
old position of ratifying the acts of the privy council. Nor was
the Parliament which met in December, 1567, while the hapless
queen was spending at Lochleven her first year of captivity, in
much better case. The country was divided between "king's men"
and "queen's men." The Estates did what Murray and Morton wished
to be done. There is one provision which, though in conformity
with Murray's views, does not bear the impress of his hand. It
reminds us that the author of the _First Blaste against the
Monstrous Regiment of Women_ was present as an assessor in the
Parliament when we read: "Als it is thocht expedient that in na
tymes cuming ony wemen sal be admittit to the publict autoritie of
the realme or functioun in publict government within the same."
It was not a deliberate attempt to alter the succession: it was
merely an additional illustration of bad feeling towards the
captive queen.[121] Until the "Black Acts" there is little in the
proceedings of the Parliament which calls for remark. The meetings
were largely occupied with the usual sentences of forfeiture.
Sometimes the queen's party held rival parliaments, and on such
occasions everybody in Scotland of any importance was declared a
traitor by one side or the other. A considerable amount of valuable
work was done. Murray, whatever his personal character, was a
statesman, and he left the impression of "a still strong man" upon
those who survived him. His policy and that of his successors was
guided by their dependence upon Elizabeth and by their associations
with the Assembly. Parliament was largely occupied with the
settlement of the Church, but it found time to regulate matters
of police and trade. The influence of the Assembly continued to
be paramount till 1584, when, for the first time, King James was
able to assert his personality. The "Black Acts" of that year
included a declaration of the king's royal power over all subjects,
the supremity of Parliament, the illegality of conventions or
assemblies not sanctioned by the king, and the subjection of
ministers of the Church to the civil courts. No weight whatever
can be given to the phrase "supremity of Parliament." It meant only
that the king knew that he could use the Parliament as he liked,
while the Assembly was as yet beyond his control. We do not intend
to enter into the complicated story of the conflict between the
king and the Church. But from 1584 the Parliament was generally
at the disposal of the king. Still more is this the case after
the year 1603. The Parliament became the mere shadow of the royal
power. It declared in 1606--the year after the defiance of the king
by the Aberdeen assembly--"our soverane monarche, absolute prince,
Judge, and governor over all persones, Estaittis, and causis, baith
spirituall and temporall, within his said realme." Only twelve
years had elapsed since Andrew Melville's speech. The union with
England meant that the king had power to coerce Scotland. The same
obsequious Parliament outraged the national sentiment by the first
establishment of episcopacy, although the assembly was still so
strong that the bishops protested that there was no design to alter
the discipline of the Kirk, "and submitted themselves in all time
comeing to the judgement of the General Assemblie." Parliament was
governed by the Lords of the Articles, and they were the creatures
of the king. James did not exaggerate when he said:[122] "Here I
sit and governe it [Scotland] with my pen, I write and it is done,
and by a Clearke of the Councell I governe Scotland now, which
others could not do by the sword." The satirist who accompanied
King James on his visit to Scotland in 1617 gave vent to a merited
sneer at the three Estates. "Their parliaments," he wrote,
"hold but three days; their statutes are but three lines."[123]
The anonymous apologist who replied made no effort to meet the
accusation. It might have been King James himself that wrote: "For
the brevitie of your parliaments ye are beholden to your wisdom,
for the brevitie of your statutes to your justice."[124]
The conduct of affairs in Scotland remained, at first, unchanged
by the death of James VI. The few parliaments of the reign are
occupied with taxation, ratification, and other formal business.
James had been statesman enough to fear the influence of Laud in
Scotland.[125] Charles allowed a meddling ecclesiastic to stretch
too far the allegiance of his people to their ancient House.
The Parliament of 1628-30 is of no importance in the history of
Scotland. It was poorly attended, and its deliberations were a
foregone conclusion. The Parliament of 1639 was crowded, and it
began its work with a protest against the method of electing
the Lords of the Articles. The protest was feeble enough to be
the first faint symptom of a revolution; but the revolution had
already taken place. The people were led as before, not by the
Parliament, but by the Assembly. The Glasgow Assembly of 1638,
which continued to meet in spite of its "dissolution" by the
king's commissioner, was the means by which a fatal blow was
given to the first _régime_ of episcopacy and absolute monarchy.
It rendered possible the revolutionary Parliament of 1640. We
have already noticed the more important of its proceedings. It
continued to look for support to the Assembly. It grounded its
resolution against the presence of prelates in Parliament on the
Act of Assembly abolishing episcopacy. In 1641 it beseeched the
assembly to sit in Edinburgh instead of in St. Andrews, sending
"some of everie estait to represent" its sense of "the great
necessitie at this tyme of the concurring advyse of both the
Assemblie and Parliament," and promising "to sett down ane solid
course for the beiring of the chairges of the Commissioners to
your yeirlie Generall Assemblies."[126] From 1641 to 1650 Scotland
was ruled by the Scottish Parliament, in conjunction with the
Assembly. The Estates undertook the management of the war, carried
out the negotiations with the English Parliament, and with the
king, and were at the same time able to give due attention to
the minutest local details. Like the Reformation Parliament of
1560, the Covenant Parliament of 1640 marks a distinct stage in
Scottish constitutional history. After we make all allowance for
the revolutionary nature of the time, and for its dependence on
the Assembly, it remains true that it grew to occupy a position
different from that of any of its predecessors. It had learned much
from England. Not for the first time, but more emphatically than
ever before, do we find the Estates adopting the language of the
English parliamentary opposition. On the other hand, the Scottish
Parliament was in some ways in advance of its English sister. When
Charles I paid his second visit to Scotland, in 1641, he found
himself a puppet in the hands of his erstwhile obedient Estates. As
we have seen, the Lords of the Articles became open committees of
Parliament, and they were jealously watched by their colleagues.
Parliament claimed the appointment of the privy council, and all
the officers of state.[127] The reader will note with surprise the
large amount of space occupied by the proceedings of Parliament
during these years. Much is merely the record of judicial acts, and
much was done by Parliament that we should regard as pertaining to
the executive. For our present purpose it is unnecessary to descend
to particulars. Our main contention is that the supersession of
the royal power was rendered the more easy and the less significant
because of the official character of the normal parliamentary
procedure. The Estates, having the power to defy the king, could
point to their own history as good warrant for their use of it.
The sovereign had never dared to prorogue them against their will,
they argued. Charles knew that they spoke the truth, and he could
but accept the position. If the record of the Estates was one
long submission, it did not contain a defeat, and it was capable
of two interpretations. So, after the death of the king, the men
who had just executed Huntly sent to offer terms to Charles II.
It is significant that there were four representatives of the
Estates, and three of the Assembly. The power was still conjoint,
although Parliament during these years of struggle had learned to
act. When the young king came to Scotland he found himself little
more than a prisoner in the hands of the grim, staunch fearless
men who surrounded him. He was forced to sign the most humiliating
confessions of the sins of his family, and he abjured "Prelacy and
all errors, schism, and profaneness." Cromwell's victory changed
the aspect of affairs,[128] and ended, for the time, the history
of the Parliament of Scotland. The short-lived "union" did not
take effect till 1654, but from the date of the battle of Dunbar
both Assembly and Estates had to acknowledge their master. In
1653 the General Assembly was reduced to plead "that we were ane
Ecclesticall synod, ane spirituall court of Jesus Christ, which
medled not with anything civile."[129] But the Assembly ceased to
meet: and the Government of Scotland was neither ecclesiastical nor
civil, but martial. The Parliament agreed to the union: once again
because it was ordered so to do.
The story of the Cromwellian parliaments is no part of our subject.
Scottish counties and burghs were represented, and an elaborate
scheme was prepared to adjust the proper proportions--a scheme
which afterwards was the model for further developments.[130]
Two acts were passed by the united Parliament which affected the
current of Scottish history--the establishment of free trade with
England and the abolition of feudality.
The Commonwealth passed away, and Scotland had once more its
Covenanted King. The irony of fate used the Committee of Estates,
the body which Charles I had known as an enemy, to deliver the
country to an absolute monarchy. The Committee of Estates was
followed, when the king's commissioner arrived, by the meeting of
the Restoration Parliament. The main difficulty was the religious
one. Parliament was reduced to the position it had occupied
before 1638. In 1661 it passed an act which rescinded all its
own statutes since 1640. It humbly confessed the king's right to
choose all officers of state, and members of the privy council;
it acknowledged his right to call and prorogue Parliament; it
re-established the tyranny of the Lords of the Articles. It
recalled bishops to Parliament, and proscribed the national
religion. Even when the English Parliament had recovered from its
emotional loyalty, and begun to resume its old attitude to the
king, the Scottish Estates remained absolutely at his disposal.
When, later still, the succession was disputed in England, an act
was passed in Scotland to declare that it could not be altered
"without involving the subjects in perjury and rebellion."
When Charles II died, Parliament addressed James VII in terms
ludicrously obsequious. "The death of that our excellent monarch is
lamented by us to all the degrees of grief that are consistent with
our great joy for the succession of your sacred majesty." Between
1660 and 1689 the Scottish Parliament was once more the merest
instrument for official sanction. A contemporary has left us his
impressions of the time. He tells us that the methods of the Lords
of the Articles were not quite so secret as they used to be.
Of late times matters have been at full length and freely debated
in Parliament. They sit all in one House, and every one answers
distinctly to his name and gives his vote, which is in these
terms, _I approve_ or _not_; only those who are not satisfied
one way or another, say _Non liquet_, which is a great ease to
those who are conscientious, and a common refuge to the cunning
Politicians; the major vote carries it. No dissents or protests
are allowed in public acts, but are accounted treasonable.[131]
The arm of the Government was all-powerful, and they had not even
to guard against opposition. A caricature of the General Assembly
was maintained to give a further ecclesiastical ratification to the
king's acts, "But," adds our informant,
as the calling of this synod is wholly in the Crown, so there is
little need of it, since the King's Supremacy is so large, that He
needs not there concurrence, to adde their Authority to anything
that He shall think fit to doe about Church affairs.
It may be at first matter of surprise that Scotland should so
completely have succumbed. All that the popular party could do
was to suffer. Only on rare occasions could they take the field.
Suffering or fighting, they never yielded. But the dearth of
constitutional life is not inexplicable. Had the Restoration
occurred ten years earlier, it would have been otherwise. The
Commonwealth had blotted out the recollection of the years which
preceded it, and prepared the way for the years that followed it.
Bishop Burnet's remark, that the root of the trouble lay in the
king's "entering in without condition," was true, at all events,
for the historian's own country. Moreover, we must not forget
the condition of the country. The long-continued struggle had
brought desolation where before the union of the crowns we can
trace prosperity. In Glasgow, in 1692, "near fyve hundredth houses
[were] standing waste." The harbour of Ayr was ruinous. The High
Street of Dumfries contained scarcely a habitable house.[132] Trade
and commerce had declined. The short interval of freedom of trade
had but served to intensify the pressure of the Navigation Act.
Scotsmen boasted of their "conquest" of England in 1603. England
had but given their kings the power to oppress them.
A free Parliament met again in 1689. The absence of any strict
constitutional feeling led, as so often before, to the assumption
of a much more advanced position than that of the English
Parliament. Nothing is more characteristic of the slowly broadening
growth of English parliamentary claims than the delicate adjustment
of conflicting theories by the Convention. In Scotland no such nice
adjustment was possible. The proceedings are marked rather by a
rude logic. The Estates enumerated the misdeeds of the unfortunate
monarch in language distinguished from that of the Claim of Rights
only by its strength.[133] The details are not important for
our purpose. There is no appeal to precedent, nor any nicety of
phrasing. James, having been guilty of this catalogue of crimes,
had "forfaulted the right to the Crown, and the throne is become
vacant." The underlying theory is sufficiently clear, but it was
based on the logic of events. It was probably an effect of the
English connections that the Estates went further than usual,
and laid down two general principles. All the acts that they had
enumerated were illegal. No papist might be king or queen of
Scotland. With these conditions, and one other limitation, they
proceeded to offer the crown to William and Mary and to entail
it, in default of their heirs, upon the Princess Anne. That other
clause expressed a claim which, for the people of Scotland,
included civil liberties, and had been throughout the troubles
synonymous with freedom. The Estates declared that "Prelacy is a
great and insupportable grievance to the nation." A "Covenanted
King" it was impossible to hope for, nor is there evidence that
they desired to repeat the experiment. But the new sovereigns
must understand the situation. When the acceptance of William
and Mary converted, without any further change, the Convention
into a Parliament, the Estates set themselves to solving the
religious problem. They rescinded the act of Charles II asserting
"his majestie's supremacy over all persons and in all causes
ecclesiastical" as "inconsistent with the establishment of Church
government now desired." They restored the presbyterian clergy to
their churches and manses. They approved the Westminster Confession
of Faith--the sole product of those efforts towards a covenanted
uniformity which had led the Church into somewhat devious
paths--and they established Church government "by Kirk Sessions,
Presbyteries, Provincial Synods, and General Assemblies." The more
rigid presbyterians were disappointed. It was not so emphatic
a settlement as they desired. Independent as the Establishment
was, it seemed Erastian to men whose only associations with the
functions of government had been connected with Grierson of Lagg
and Bloody Mackenzie. King William insisted upon the extension of
a toleration to Episcopalian Dissenters in Scotland which, as the
Church more than once complained, was lacking in the treatment of
Presbyterian Dissenters in England. The Revolution Settlement,
therefore, was not accepted by the whole of the popular party,
and the Jacobites were reinforced by ousted episcopalians on the
one hand, and presbyterian malcontents on the other. But the
compromise of 1690 satisfied the majority of the nation. The credit
of the arrangement belongs neither to the Parliament nor to the
king, but to the wise statesman who presided over the University
of Edinburgh. The English Revolution of 1689 was in its origin
religious, but it early assumed the aspect of a purely civil
movement. The Revolution in Scotland suggests to-day only the
Church Settlement, and the course it took was decided by William
Carstares.
The Parliament of 1690 proceeded to assert its own freedom of
action. Henceforward till the Treaty of Union took effect, we have
parliamentary independence in Scotland,[134] as far as purely
internal affairs were concerned. After William's death we find
still wider claims. The events of William's reign had not been
such as to draw the nations nearer each other, or to reconcile
the Parliament to the limitation of its sphere of influence to
internal administration. King William had been responsible for the
Massacre of Glencoe; he had forced Scotland to expend large sums
upon a war in which, after the battle of Killiecrankie, she took
no interest. The Parliament of England had urged the king to an
interference with the Darien Scheme, which could not be regarded
in Scotland as other than a betrayal. The Scottish Estates had
not responded to the Act of Settlement in 1700, and when Queen
Anne succeeded, the attitude of the two countries was becoming
increasingly threatening. England regarded any advance of Scottish
prosperity as a success gained at her own cost. Scotland feared
that the country was to be permanently under foreign influence.
The rapid growth of a constitutional feeling since 1690 aided
the circumstances of the time in the production of parliamentary
parties, a unique event in Scottish history. The meeting of Estates
in 1703 contained Williamites, Patriots, and Cavaliers.[135] The
first of these supported the government of King William and his
successor as, at all events, the least of the many possible evils.
The Cavaliers clamoured for the return of the exiled House. The
Patriot or "Country" party, headed by Hamilton, Tweeddale, and
Fletcher of Saltoun, argued that, if foreign domination were to
continue, it made but little difference whether it emanated from
St. Germains or from the Court of St. James's. A combination of
Cavaliers and Patriots passed the Act of Security. This famous act
named no successor to Queen Anne. It invested the Parliament with
the power of the Crown, in case of the queen's dying without heirs,
and entrusted to it the choice of a Protestant sovereign "from the
Royal line." It refused to such king or queen, if also sovereign of
England, the power of peace and war, without consent of Parliament.
It enacted, further, that the union of the crowns should determine,
unless Scotland was admitted to equal trade and navigation
privileges with England. Nor was there lacking the intention to
make good the threat. The same act provided for the compulsory
training of every Scotsman to bear arms. The Scottish Parliament
debated each clause with vigour. The Estates recognized that now,
if scarcely ever before, momentous issues hung upon their decision,
and the walls of the Parliament House re-echoed with the unwonted
excitement of party cries. The royal commissioner declined to give
the queen's assent. The Parliament refused to grant supplies,
and the meeting broke up amid confused shouts of "Liberty before
Subsidy." The bitterness of the struggle was accentuated by a silly
dispute about the Jacobite Plot, and the temper of the two nations
was strained to the utmost.
The union of the crowns had been rendered possible only by the
self-restraint which permitted the people of England to accept
a Scotsman as the king. A similar spirit of self-restraint now
actuated Queen Anne's advisers. The queen assented to the Act of
Security, and the Scots began to train for a war that was not to
be fought by the sword. The English ministers proposed a union
of the kingdoms. Fortunately, they recognized that Scotland was
in earnest, and expressed their willingness to yield somewhat
on the main point--freedom of trade. Into the long and dreary
negotiations which preceded the union we need not enter. Amid
jealousy, faction, and evils still more sordid, the treaty of union
was concluded. The agreement secured to Scotland the maintenance
of her law, and the continued existence of her universities, and it
guaranteed that there would be no interference with the Church as
by law established. On the other hand, the kingdom surrendered her
national existence, and was forced to be content with a miserably
inadequate representation in the English Parliament. It is little
wonder that the people in general, and especially the populace of
Edinburgh, regarded the treaty with horror and looked upon its
supporters as traitors. Amid riot and uproar, and with howls of
execration sounding in their ears, the Estates of Scotland met for
the last time on 25th March, 1707, under the presidency of the
lord chancellor, the Earl of Seafield. Among some of the senators
themselves there was an uneasy feeling that they had sold their
country for trade privileges which the givers would strain every
nerve to render worthless. Others were more callous. "There's the
end o' an auld sang," laughed the Chancellor, as the Honours of
Scotland were carried out of the Parliament House for the last time.
There is a touch of pathos in this final scene. To us, it can
appear sad only with the sadness of changefulness. But the faces
of contemporaries were turned backwards. The three Estates had
survived many revolutions. It was true that their history did not
represent the best of the nation's life; but with that best it had
ever been more or less closely associated. In recent years the
Parliament had come to mean national existence. It had entered into
a new sphere, and assumed new functions. A career of usefulness
seemed to lie before it. In spite of its age, its end was, in
this sense, premature. The conditions, too, were ignominious. The
accumulated hatred of four hundred years had attached itself to the
names of Darien and Glencoe. England had yielded much less than a
free and independent nation had a right to ask, and Scotland could
not demand more, because the men whom she trusted had failed her.
No doubt the Chancellor was right. It was "the end o' an auld
sang." But, after all, the Estates had received "the wages of
going on, and still to be." It did not appear so at the first. The
Parliament of Great Britain broke more than one pledge solemnly
made at the union. The highest boon that King James or Prince
Charles could promise to Scotland was the repeal of the union. The
Scottish representatives had little weight in the councils of the
Empire. Even the faithful Argyll was thwarted, and his service
lightly esteemed. The best blood of the country was spilt on
foreign battlefields and in alien quarrels. The genius of a Keith
served only to lead to victory the troops of Frederick the Great,
and to guide the steps of Russia towards Constantinople. Among the
exiles, there were others, less fortunate, who found no scope for
their talents, and no friends in the land of the stranger. But, as
time passed, the tragic element faded out of the story, and, with
the rapid growth of prosperity, the influence of Scotland on the
destinies of the nation became more apparent. The land of Kennedy
and Elphinstone, of Lethington and Carstares, could not fail to
produce wise and prudent statesmen, who might find, on a wider
stage, the renown that had been denied to those who went before
them. The music of the "auld sang" resounded again, although the
walls that re-echoed it were those of Westminster. The Imperial
Parliament meets close to the ancient Abbey, the guardian of the
Stone of Fate, which the first Edward carried in triumph from
Scotland, and on which, for nigh three hundred years, descendant
after descendant of his enemy has sat. As the old prophecy has not
been rendered void by the transference of its subject from Scone
to London, so the promise that gave meaning to the last years of
the Scottish Parliament has not failed of fulfilment. _Nec tamen
consumebatur._
APPENDIX
REPRESENTATION IN THE SCOTTISH PARLIAMENT[136]
Although we know that burgesses were present at the Cambuskenneth
Parliament, we possess no information as to what towns they
represented. The first list of burghs in the Acts of Parliament
refers to the Council held in 1357 to arrange about the ransom of
King David II, and it includes the following towns:--Aberdeen,
Crail, Cupar, Dumbarton, Dumfries, Dundee, Edinburgh, Haddington,
Inverkeithing, Lanark, Linlithgow, Montrose, Perth, Peebles,
Rutherglen, Stirling, and St. Andrews. From 1367, we have,
occasionally, records of the election of burgesses to the Committee
of the Articles, and these give us our only information regarding
representation. (Cf. pp. 26-33.) We subjoin the first known date
of the representation of any burgh at a regular meeting of the
Estates in Parliament assembled. It must, of course, be understood
that this list does not, in any way, pretend to completeness;
the material is incomplete, and, in most cases when burghs are
mentioned, up to the sixteenth century, it is only in connection
with the Lords of the Articles.
FOURTEENTH CENTURY:--Aberdeen, Dundee, Montrose, Linlithgow,
Perth, Edinburgh, Haddington (1367).
FIFTEENTH CENTURY:--Inverness (1439); Stirling (1449); St.
Andrews, Cupar (1456); Lanark (1467); Peebles (1468); Elgin,
Banff, Ayr, Irvine, Dumfries, Wigtown, Kirkcudbright, Selkirk,
Jedburgh, Dunbar (1469); Forfar, Crail, Kinghorn, Inverkeithing,
Dumbarton (1471); Brechin, Rutherglen, Renfrew, North Berwick
(1478); Rothesay (1484); Forres (1488).
SIXTEENTH CENTURY:--Glasgow (1560); Tain, Nairn, Lauder (1567);
Kintore, Pittenweem (1579); Kirkcaldy (1585); Burntisland (1586);
Dingwall (1587); Cullen, Culross, E. and W. Anstruther (1593);
Dysart (1594).
SEVENTEENTH CENTURY:--Inverurie, Bervie, Kilrenny, Lochmaben,
Annan (1612); Sanquhar (1621); Dunfermline, New Galloway (1628);
Dornoch, Arbroath, Queensferry, Whithorn (1639); Fortrose,
Inverary (1660); Kirkwall (1667); Stranraer (1685); Campbeltown
(1689); Wick (1690).
In addition to these, Berwick-on-Tweed was represented between 1469
and 1481, Cromarty from 1660-72, and Findhorn in 1648.
Representation of the shires does not begin till 1593; but between
that date and 1617, we find nearly all the counties represented.
Argyleshire, however, does not appear till 1628, Sutherland not
till 1633, and Kinross not till 1681.
It gradually became usual for each burgh to send two members; but,
in 1619, the Convention of Royal Burghs reduced the number to one,
except in the case of Edinburgh. Under the Protectorate, Scotland
was represented by twenty members for the shires and ten for the
burghs, which, with the exception of Edinburgh, were divided into
nine groups, each returning one member. Edinburgh, alone, returned
two representatives. At the union of the Parliaments in 1707,
Scotland received forty-five members. The burghs, except Edinburgh,
were divided into fourteen groups, returning one member each,
and one member was allotted to Edinburgh. It is to be remembered
that only Royal Burghs had any representation in Scotland up to
1832, except in so far as burghs of barony were represented by the
county members, along with the other freeholders of the country.
When the town of Cromarty ceased to be a Royal Burgh, in 1672,
it was excised from the parliamentary records. Of the remaining
thirty members, each shire, except six, returned a member each.
These six were divided into three groups, Bute and Caithness,
Clackmannan and Kinross, and Nairn and Cromarty. The two shires
which each group contained were given the right to return a member
to alternate parliaments, _e.g._ Bute, Clackmannan, and Nairn in
1708, and Caithness, Kinross, and Cromarty in 1710.
From these facts, various interesting conclusions can be drawn. The
meagre nature of the evidence prevents our making any inferences of
a constitutional nature; but the rise of the small burghs on the
East coast in the end of the fifteenth century, throws considerable
light upon the economic history of Scotland. It is also suggestive
that the burgh of Inverary was not represented till 1660, and
Argyleshire not till 1628. But such matters as these belong rather
to the domain of political history, and do not fall within our
province.
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FOOTNOTES:
[1] The later volumes of the Privy Council Register, under the
editorship of Professor Masson and Mr. P. Hume Brown, deal with the
period immediately before and after the Union of the Crowns, and so
do not fall within our subject.
[2] On this subject, cf. Maitland, _Domesday Book and Beyond_, pp.
226-244.
[3] After the Union of the Crowns, the sources of information
became very much more numerous, and the subject has been treated
with much greater fulness. The work of Professor Masson, Mr.
Gardiner, and Mr. Firth on the period between 1603 and 1660 has
placed the constitutional history of Scotland for that period in
a position quite different from that which it occupies in the
centuries preceding the Union.
[4] _Opera Geographica et historica_, edition of 1707, p. 318.
[5] _Spanish Calendar_, i, 210.
[6] _History of English Law_, vol. i, pp. 222-224 (1st edn., pp.
201-203).
[7] Cf. Pitscottie's _Chronicles of Scotland_, vol. ii, p. 477.
Scottish Text Soc. Edn., ed. Aeneas Mackay. Sheriff Mackay's notes
are specially valuable from the legal stand-point, and his edition
gives a new importance to Pitscottie's work.
[8] Cf. Hill Burton's Introduction to the Privy Council Register,
vol. ii.
[9] Baron Hume, quoted in Renton's _Encyclopaedia of the Laws of
England_, vol. xi, p. 402.
[10] _History of King James the Sext_, p. 88 (Bannatyne Club ed.).
[11] _Diurnal of Occurrents in Scotland_, p. 76 (Bannatyne Club).
[12] Aikman, _Buchanan_, i. 437. Buchanan is the source of the
whole constitutional myth. The second founder of the legend was
George Ridpath, who published, anonymously, in 1703, _An Historical
Account of the Ancient Rights and Power of the Parliament of
Scotland_. This brilliant and ingenious political tract is based
on Buchanan, who is always the real, and frequently the avowed,
authority for Ridpath's view; and by Ridpath, in turn, many more
recent writers have been influenced.
[13] Innes, _Critical Essay_, i. 361-95.
[14] For a typical instance of this cf. Boece, _Lives of the
Bishops of Aberdeen_ (New Spalding Club ed.), pp. 112-13.
[15] Pedro de Ayala, writing to Ferdinand and Isabella in July,
1498 (_Spanish Calendar_, i. 210), divides the revenue of James
IV into six main heads--(1) Leases of Crown lands, held for three
years and redeemable by a fine. (2) Customs. "The import duties are
insignificant, but the exports yield a considerable sum of money,
because there are three principal articles of export, that is to
say, wood, hides, and fish." (3) The profits of justice. James's
predecessors "farmed it to certain persons called justices....
This king does not like to farm the administration of the law,
because justice is not well administered in that way." (4) The
ordinary feudal incidents--reliefs, wardships, and marriage. (5)
Vacant bishoprics, abbacies, &c. (6) Rent in kind, from meat and
poultry, and especially from fisheries. Only one of these, namely,
customs duties, could have been regulated by the Estates, and there
is on record no instance of any attempt to do so. The revenue was
collected on the English system, described in the _Dialogus de
Scaccario_. The sheriffs and the king's stewards collected the
sums due in the counties, and the bailiffs and "custumars" had
charge of the amercement of the burghs and the collection of the
customs. The main differences between the system in Scotland under
James IV and that of England under Henry VII is that the Scottish
Exchequer Court was not so fully organized as the English, and that
the system of checks on the honesty of the sheriffs, &c., was much
less elaborate. All the sources of revenue were, as a rule, "farmed
out"; the king received a composition, and the actual collector
made as much profit as he could.
[16] Gilbert Stuart, _Of the Public Law and Constitution of
Scotland_, note xxviii.
[17] Hill Burton, _History of Scotland_, ii. 82.
[18] The evidence upon which the theory of popular representation
is based is as vague as the theory itself. Eadmer (_Hist. Nov._
p. 97, Lond. 1623; cf. also p. 134) tells us of an election, in
1107, of a bishop of St. Andrews "by Alexander, king of Scotland,
the clergy, and the people." The Book of Scone (_Liber de Scon._
p. 1) describes the re-foundation of the abbey in 1114-15 by King
Alexander. It is confirmed by his wife and nephew, several bishops,
and a number of nobles, "consilio proborum hominum." Ten years
later, at the foundation of the abbey of Dunfermline (_Registrum de
Dunfermelyn_, p. 3; cf. also the Charters of Holyrood), we find a
phrase employed to which some importance has been attached. Bishops
and nobles confirm as usual, but with the acquiescence of the
people and clergy. The form "clero etiam acquiescente et populo"
is of frequent occurrence. The phrase "all the community of the
kingryk" has been treated in the text. The similar phrases "probi
homines" and "clero acquiescente et populo" are simply common
technical terms belonging to the Chancery imitated by the Scottish
scribe. The latter does not even imply consultation, and the former
means the smaller tenants-in-chief. In the _Laws of the Burghs_
we find it used for the leading men--the _optimates_--of the
town. It is not a popular term at all. On the other hand, too, we
have councils described in quite different terms. In 1174 William
the Lion held a council at Stirling, and asked an aid from his
"optimates" (Fordun, viii. 73). In 1190 the "prelati et proceres"
of Scotland gave the king 10,000 marks (Fordun, viii. 62). On the
death of Alexander III the guardians describe themselves as "de
communi consilio constituti" (_Hist. Doc. relating to Scotland_,
i. 95), while Rishanger tells how "omnes Scoti" chose Wallace. The
change in the political circumstances is sufficient to account
for whatever importance may be attached to the words. It is true
that Fordun, speaking of the same period, frequently uses the word
Estates ("communitates"). But Fordun was not a contemporary, and
the word had acquired a technical meaning by his time. Moreover,
he uses the word very loosely. Sometimes he intends by it the land
itself, as when he tells us how the English ravaged it.
[19] _Acts of the Parliament of Scotland_, i. 371, &c.
[20] _Ibid._ i. 377. The use of the word "community" appealed more
strongly than anything else to the older historians.
[21] Cf. _Ancient Laws of the Burghs of Scotland_ (Burgh Record
Soc.).
[22] So important was their meeting that when Edward I of England
held a parliament at Newcastle in 1292, and some question arose
regarding their privileges, the four burghs were consulted, and the
decision was made in conformity with their laws and customs (_Rot.
Parl._, i. 107).
[23] Fordun, viii. I.
[24] _Thoughts on the Origin of Feudal Tenures and the Descent of
Ancient Peerages in Scotland_, by George Wallace, 1783.
[25] _E.g._ Wigton in 1342, and Sutherland in 1347.
[26] Wallace, _op. cit._, p. 163.
[27] Wallace, _op. cit._, p. 192, &c.
[28] Robertson, _Hist. of Scotland_, App. iv. The claim is not
based upon any constitutional right or theory. It is stated as a
matter founded on common sense, and the efficacy of the petition
lay in the support of those who had special reasons for desiring
the presence of the smaller barons. The language of Randolph's
letter shows how far the strictly legal position was from being
understood.
[29] _Foreign Calendar_, 19th Aug., 1560; Laing, _Knox_, vi. 116.
[30] Cf. Innes, _Legal Antiquities_, p. 116.
[31] _Charters of the Burgh of Aberdeen_, ed. P. J. Anderson; also
in the Spalding Club edition of Gordon's _Description of Aberdeen_.
[32] Innes, _op. cit._, p. 116.
[33] _Acts_, vol. i. References to acts when no authority is
quoted are always from the volumes of _Acts of the Parliaments of
Scotland_.
[34] _Acts_, i. 492. We have no reason for supposing that
"proceres" included burgesses, as it is generally used in
contradistinction to them.
[35] "Plebanos, qui ad parliamentum non erunt, nec voluerint
promittere interesse ibidem."
[36] Although the burgesses had thus successfully asserted their
right to a place in Parliament, the theory was not at once extended
to the meetings known as conventions, which could impose taxes, and
possessed every parliamentary power except that of passing general
laws. In 1503 an act was passed, ordering that "commissioners
and head men of burghs be warned" to attend conventions; but it
had to be re-enacted in 1563, and even after that date it was
not completely operative. Between 1566 (the first date of their
recorded presence) and the end of the sixteenth century burgesses
were present at only half of the conventions which were held. It
is important to note that the royal burghs alone had parliamentary
representation up to the year 1832.
[37] We have no evidence that the Court of the Four Burghs was in
any sense strictly representative.
[38] The possible objection that a similar theory of burghal
representation has been stated and rejected by English constitutional
historians is scarcely applicable. For it is agreed that the idea
of representation existed in England before the towns were summoned
to Parliament, while in Scotland no such idea is traceable, nor are
there any writs such as were issued for the English towns. It might
even be argued that, in strict theory, there was no representation
in Scotland till 1832; that commissioners both from shires and
burghs only saved their fellows the trouble of attendance, the
right to attend being, not _de facto_ but in ultimate theory,
possessed by all who were entitled to vote. Such a statement is
certainly true of the shire, at all events.
[39] The chief officers of state were the lord chancellor, the lord
high treasurer, and the lord privy seal, who took precedence of
all the nobility; the secretary, the clerk of register, the king's
advocate, the treasurer's deputy, and the lord justice clerk.
[40] They were excluded from 1640 to 1662.
[41] _Acts_, i. 491. The use of the term in connection with the
coronation of Alexander II in 1214 (_Acts_, i. 67) is explained by
its being simply a quotation from Fordun (ix. 1).
[42] Cf. _supra_, pp. 21-25.
[43] Cf. _supra_, pp. 25-26.
[44] Cf. _supra_, pp. 18-19.
[45] Vide _supra_, p. 24.
[46] Laing, _Knox_, ii. 87.
[47] Speech at Whitehall, 31st March, 1607.
[48] The right of prorogation is tacitly assumed by the king in
this speech. It was the cause of a dispute in the troublous times
which followed 1638. The Parliament of 1640 protested that "Johne,
Erle of Traquair, his Majestie's Commissioner, did take upon him
without consent of the Estates, upon a private warrand, procured
by himself, against his Majestie's publict patent, under the
great seall," to prorogue Parliament. They therefore continued to
sit, and took up stronger ground, viz. that prorogation without
consent of Parliament was "against the lawes and libertie of
the kingdom, ... without precedent, example, and practice." The
language is clearly taken from the contemporary protests of the
English Commons, and it cannot be regarded as more than a political
weapon, borrowed for this occasion from the English constitutional
armoury. It in no way corresponds with the general state of feeling
in Scotland. In 1661 the Estates resolved that "the King hath sole
power to call and prorogue Parliaments." Both resolutions were
recognitions of fact, not of theory. At various times, from 1398
onwards, acts were passed that Parliament should meet once a year.
These were probably connected with the judicial powers of the
Estates. In point of fact, they were dead letters.
[49] Convocatis tribus communitatibus Regni ... certi personae
electi fuerunt per easdem ad parliamentum tenendum, data aliis
causa autumpni licencia ad propria redeundi.
[50] De concessu et confirmatione trium communitatum congregatarum,
propter importunitatem et caristiam temporis ... electi fuerunt
certi personae ad ipsum parliamentum tenendum, data licencia aliis
remeandi.
[51] _Acts_, i. 173.
[52] Imitando videlicet ordinem illum et modum qui servabantur in
parliamento tento apud Perth tempore venerandae memoriae domini
Regis David, anno Regni ipsius quadragesimo [1369], electi fuerunt
quidam....
[53] Ad tractandum et deliberandum super certis specialibus Regis
et Regni negociis, antequam perveniant ad noticiam consilii
generalis, licentiatis autem aliis ut recedant.
[54] De consensu et assensu trium communitatum per presidentes sive
per personas electas ad determinationem negociorum in parliamento
eodem.
[55] Primo et principaliter, iuxta predictos modum et ordinem, est
ordinatum quod nullus electus ad consilium cuiuscunque conditionis
gradus pre-eminentiae sive status alium non electum ad consilium
seu in consilio Regis sibi consiliarium vel assessorem aut alia de
causa adducat.
[56] "Comparentibus tribus Regni statibus apud Edinburgh, omnes
comites nobiles et barones ac libere tenentes dicti regni...." The
omission of the burgesses seems to have attracted the attention
of Sir John Skene, who in his edited volume of the _Acts_ (temp.
Jac. VI) includes the formal revocation in the proceedings of the
Parliament of 1437-38, and prints, instead of the somewhat less
emphatic words of the original, a statement that the revocation
was sanctioned by "the haill three Estates of the Realme, sittand
in plane Parliament, that is to say, the Clergie, Barrones, and
Commissioners of Burrowes."
[57] In 1445, three burgesses, along with fifteen of the clergy and
barons, attest the erection of the lordship of Hamilton; but there
is no further evidence of their being present or taking any part in
the parliament of that year.
[58] From 1467 to 1482 the numbers of the Lords of the Articles
were from three to five representatives of each Estate. During
the struggles which marked the end of the reign of James III, and
before his son had succeeded in asserting the royal power, we find
burgesses forming a very small proportion of the Committee of the
Articles. The numbers are instructive:
YEAR CLERGY BARONS BURGESSES
1483 6 6 4 (_Acts_, ii. 145.)
1485 6 6 3 (_Acts_, ii. 169.)
1488 9 14 5 (_Acts_, ii. 200.)
1489 8 10 4 (_Acts_, ii. 217.)
1491 10 10 3 (_Acts_, ii. 229.)
On the other hand in 1503, under the strong rule of James IV, six
clergy, six barons, and seven burgesses were chosen (_Acts_, ii.
239).
[59] The final form assumed by the Courts of the Four Burghs and
the Hanse Burghs.
[60] It was next employed in 1581.
[61] Randolph to Cecil, 3rd June, 1563, _Foreign Calendar,
Elizabeth_.
[62] Proclamation of James VI, July 1578.
[63] _Acts_, ii. 289.
[64] Robertson, app. iv. This is the only evidence that we possess
to show that the burgesses chose their own representatives.
[65] In the speech quoted _supra_, pp. 38-39, King James ignores
the Lords of the Articles altogether.
[66] _Miscellany of the Maitland Club_, iii. 112-18.
[67] Afterwards the first earl of Haddington.
[68] "Humble Supplication of a great number of the Nobility and
other Commissioners in the late Parliament," _State Trials_, iii.
604. Cf. also Row, _History of the Church of Scotland_, pp. 365-66
(Wodrow Soc.).
[69] _History_, vi. 87.
[70] The numbers of the Lords of the Articles varied considerably.
In 1587 it was fixed at any number varying from six to ten from
each Estate, and this may be taken as fairly representative of
their number throughout, though in early times it is somewhat
smaller. Cf. _supra_, p. 48, n.
[71] The title of "Lord" was early assumed by the president and
senators of the College of Justice. The title was prefixed to the
surname of the judge, if he did not take a territorial designation.
An attempt was made by the wives of the early senators to adopt
the corresponding title "Lady," but, according to tradition, their
ambition received a check from King James, who remarked: "I made
the carls lords, but wha made the carlines ladies?"
[72] The befurred and bedecked gowns and hoods of every Estate are
minutely described in an act of 1455.
[73] Innes, _op. cit._, pp. 152-53.
[74] One spectator of the scene remained cold and indifferent. John
Knox protested against "such stinking pride of women," and feared
that the "targetting of their taillies" (bordering of their robes
with tassels) would "provock Goddis vengeance, not onlie against
those foolish women, but against the haill Realme" (Laing, _Knox_,
ii. 381).
[75] _Register of the Privy Council_, 1600.
[76] Parliament sat, almost invariably, in Edinburgh, from the
beginning of the seventeenth century.
[77] The law of treason is stated in book iv of the transcript of
Glanvill's _De Legibus Angliae_, entitled "Regiam Maiestatem," and
it should be compared with the acts against "Leasing-making" which
were published from time to time.
[78] There are two accounts, in the _Acts_, of the appointment
of this Committee. In one place, they are elected to treat of
certain special business (super certis specialibus Regis et Regni
negociis--_Acts_, i. 173), and, in another, of secret business
(super certis et specialibus et secretis ... negociis--_Acts_, i.
pp. 507, 508). The lists of members are identical, and only one
Committee is intended.
[79] "In secreta camera domini Regis--in suo secreto
concilio."--_Acts_, i. p. 546.
[80] "In camera sui parliamenti in publico."--_Ibid._
[81] There seem, indeed, to have frequently been two royal councils
apart from Parliament, and to the smaller and more carefully
selected of these the title of "Secret Council" is applied. At
other times, there is evidence of only one advisory council apart
from the Estates.
[82] Privy Council Register, vol. i, introd. p. xi.
[83] Cf. p. 56.
[84] Cf. p. 56.
[85] _Acts_, ii. p. 241.
[86] _Ibid._, ii. pp. 215, 220.
[87] _Original Cronykil of Scotland_, book viii, c. 46.
[88] The control of taxation was maintained by Parliament, and
the king was informed that the grants were to be used for special
purposes. No general statement was made which could be construed
into a definite claim of the right of appropriation of supplies.
The "Parliament" merely used for a particular purpose the power
which at that moment it chanced to possess. It is the absence of
any assertion of or struggle for constitutional principle that is
ultimately decisive against the "constitutional" theory. When, as
here, the nobles had the power, they said they would do certain
things, and they did them. But there is no conscious effort,
traceable from generation to generation, such as we find in English
history.
[89] Cf. John Riddell, _Stewartiana_, Edinburgh, 1843.
[90] Tytler, _History of Scotland_, iii. 26.
[91] Burton, _History of Scotland_, ii. 351.
[92] Burton, _History of Scotland_, ii. 373.
[93] A declaration was made to Parliament regarding Rothesay's
death, in answer to rumours against Albany. But this was merely a
formal protest of innocence made to a semi-judicial body.
[94] It may be remarked that the Act does not say that "in all time
coming" a king or a regent is to be responsible, although it endows
Rothesay with all the powers of a king. It was passed solely with
reference to the immediate circumstances.
[95] Acts against "baratry"--_i.e._ the purchase of benefices at
Rome.
[96] The king's interest in the maintenance of justice is
illustrated by Fordun's well-known story that, on his return to
Scotland, when he found the misery caused by the incompetence and
negligence of the second Albany, he vowed to devote his life to the
restoration of order: "Si Deus mihi vitam dederit, ipso auxiliante,
et vitam saltem mihi caninam praestante, faciam per universum
regnum clavem castrum, et dumetum vaccam, absque possessoris
ambiguo ad modum custodire" (_Scotichronicon_, xv. 34).
[97] King James VI, _Basilikon Doron_, Book ii.
[98] The picture of Graham, the king's murderer, as an outraged
exponent of constitutionalism is a pious imagination.
[99] This has been viewed as a serious constitutional claim (_e.g._
Ridpath, _op. cit._, p. 4), and it illustrates the type of error on
which the "constitutional" theory has thriven.
[100] Edition of 1778, p. 24.
[101] _Basilikon Doron_, Book ii.
[102] There is no evidence that the Estates knew anything about
this war.
[103] The only incident that tells for the "constitutional"
interpretation is the refusal of the Lords of the Articles to
allow the king to aid Louis XI of France in 1473. But the action
of the Estates was simply the action of the chancellor, Evandale,
and his party, who ruled the king with a rod of iron. It is very
likely that there was, especially among the clergy, a strong
general feeling against going to war, and this feeling strengthened
the king's jailers. But the opposition of a small ruling clique
of nobles to the whim of a powerless monarch is scarcely to be
regarded as a great constitutional fact. It must also be remembered
that the few who constituted the Lords of the Articles were
virtually the Estates.
[104] William Elphinstone.
[105] _History of Greater Britain_, p. 352 (Scottish Hist. Soc.
ed.).
[106] Pedro de Ayala to Ferdinand and Isabella, 25 July 1498
(_Spanish Calendar_, i. no. 210). The context shows that the remark
was incidental, and was induced by an allusion by the ambassador to
the king's behaviour in battle.
[107] _Lives of the Bishops of Aberdeen_, pp. 102-5 (New Spalding
Club ed.).
[108] The burgesses and "a parte of the nobilitie" had petitioned
for the act (Laing, _Knox_, i. 100).
[109] In 1558, indeed, before the outbreak of hostilities, the
Lords of the Congregation asked the queen-regent to abrogate the
acts against heresy, and Mary made the pretext of her refusal the
difficulty of obtaining the consent of the prelates (Spottiswood,
_History of the Church of Scotland_, sub anno 1558).
[110] Laing, _Knox_, ii. 87.
[111] For other important points in connection with this
Parliament, cf. _supra_, pp. 24-5.
[112] _Autobiography and Diary of Mr. James Melville_, p. 370
(Wodrow Society). The year is 1596.
[113] _The Book of the Universall Kirk of Scotland_, i. 329, 362,
&c. (Maitland Club).
[114] _Ibid._ i. 59.
[115] _Ibid._ i. 506.
[116] _The Book of the Universall Kirk of Scotland_, passim.
[117] "We farther give over in the hands and power of the devill
the said N., to the destruction of his flesh; straitlie charging
all that professe the Lord Jesus, to whose knowledge this our
sentence sall come, to repute and hold the said N. accursed, and
unworthie of the familiar societie of Christians; declaring unto
all men that suche as hereafter, before his repentance, sall haunt
or familiarlie accompanie him, are partakers of his impietie and
subject to the like condemnation."--Sentence of excommunication in
the _First Book of Discipline_.
[118] Calderwood, _Historie of the Kirk of Scotland_, v. 341-2
(Wodrow Society).
[119] _Ibid_. pp. 396-7.
[120] Cf. _Presbytery Examined: an Essay on the Ecclesiastical
History of Scotland since the Reformation_, by the late Duke of
Argyll; and the various books on Scottish Church history.
[121] The same Parliament asked the council to bring forward its
evidence against Mary. If we knew all that lay behind this motion,
we should probably possess a key to the problems on which so much
ingenuity has been exercised. The statement, frequently quoted,
that the Estates passed a solemn resolution affirming their power
to depose the sovereign rests solely on the authority of Buchanan,
and is directly antagonistic to the language both of the _Acts_
and of the Scottish commissioners' protestations at York and
Westminster, in which Mary is represented as abdicating of her own
free will.
[122] Speech at Whitehall, 31st March, 1607.
[123] "A Perfect Description of the People and Country of
Scotland," printed in the _Abbotsford Miscellany_.
[124] "Answer to the 'Perfect Description'," _Ibid._
[125] Hacket, _Scrinia Reserata_.
[126] Letter of the Estates to the Assembly, 17th July, 1641
(_Acts_, v. 625).
[127] Some Brieffe Memorialls and Passages of Church and State from
1641-49 (_Historical Works of Sir James Balfour_, vol. iii.).
[128] Cf. _Scotland and the Commonwealth_, ed. Firth (Scottish
Hist. Soc.).
[129] _Principal Baillie's Letters and Journals_, iii. 225-26, ed.
Laing.
[130] _The Government of Scotland during the Commonwealth_ (_Acts_,
vol. vi, pt. 2). See also Mr. Firth's volumes _Scotland under the
Commonwealth_ and _Scotland and the Protectorate_ (Scottish History
Society).
[131] Middleton, Appendix, &c., _ut supra_.
[132] _Report on the State and Condition of the Burghs of
Scotland_, 1692 (Miscellany of the Scottish Burgh Record Soc.).
[133] The main heads of James's delinquencies were: (1) erecting
schools and societies of Jesuits, &c.; (2) making papists great
officers of state; (3) enforcing oaths contrary to law; (4)
taxation and the maintenance of a standing army without consent
of Parliament; (5) the employment of military officers as judges;
(6) exorbitant fines; (7) illegal imprisonment; (8) forfeitures
by obsolete laws; (9) subversion of rights of royal burghs; (10)
interference with justice.
[134] In spite of the irritating interferences which provoked the
indignant rhetoric of Fletcher of Saltoun, and these had reference
mainly to peace and war, the maintenance of an army, and places and
pensions.
[135] Party names here for the first time in strictly parliamentary
history. The Resolutioners and Protestors of 1649 were religious
divisions.
[136] Cf. the present writer's Map of the Parliamentary
Representation of Scotland, in Mr. R. L. Poole's _Historical
Atlas_. (No. XXVIII.)
* * * * * *
Transcriber's note:
Typographical errors were corrected without note.
A Table of Contents was added by the transcriber.
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