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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.