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.