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.