Of the English Language. A complete Encyclopedic Lexicon, Literary,
Etymological, Scientific, Technological, and Pronouncing.
By JOHN OGILVIE, LL.D.
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FOOTNOTES:
[1] The later volumes of the Privy Council Register, under the
editorship of Professor Masson and Mr. P. Hume Brown, deal with the
period immediately before and after the Union of the Crowns, and so
do not fall within our subject.
[2] On this subject, cf. Maitland, _Domesday Book and Beyond_, pp.
226-244.
[3] After the Union of the Crowns, the sources of information
became very much more numerous, and the subject has been treated
with much greater fulness. The work of Professor Masson, Mr.
Gardiner, and Mr. Firth on the period between 1603 and 1660 has
placed the constitutional history of Scotland for that period in
a position quite different from that which it occupies in the
centuries preceding the Union.
[4] _Opera Geographica et historica_, edition of 1707, p. 318.
[5] _Spanish Calendar_, i, 210.
[6] _History of English Law_, vol. i, pp. 222-224 (1st edn., pp.
201-203).
[7] Cf. Pitscottie's _Chronicles of Scotland_, vol. ii, p. 477.
Scottish Text Soc. Edn., ed. Aeneas Mackay. Sheriff Mackay's notes
are specially valuable from the legal stand-point, and his edition
gives a new importance to Pitscottie's work.
[8] Cf. Hill Burton's Introduction to the Privy Council Register,
vol. ii.
[9] Baron Hume, quoted in Renton's _Encyclopaedia of the Laws of
England_, vol. xi, p. 402.
[10] _History of King James the Sext_, p. 88 (Bannatyne Club ed.).
[11] _Diurnal of Occurrents in Scotland_, p. 76 (Bannatyne Club).
[12] Aikman, _Buchanan_, i. 437. Buchanan is the source of the
whole constitutional myth. The second founder of the legend was
George Ridpath, who published, anonymously, in 1703, _An Historical
Account of the Ancient Rights and Power of the Parliament of
Scotland_. This brilliant and ingenious political tract is based
on Buchanan, who is always the real, and frequently the avowed,
authority for Ridpath's view; and by Ridpath, in turn, many more
recent writers have been influenced.
[13] Innes, _Critical Essay_, i. 361-95.
[14] For a typical instance of this cf. Boece, _Lives of the
Bishops of Aberdeen_ (New Spalding Club ed.), pp. 112-13.
[15] Pedro de Ayala, writing to Ferdinand and Isabella in July,
1498 (_Spanish Calendar_, i. 210), divides the revenue of James
IV into six main heads--(1) Leases of Crown lands, held for three
years and redeemable by a fine. (2) Customs. "The import duties are
insignificant, but the exports yield a considerable sum of money,
because there are three principal articles of export, that is to
say, wood, hides, and fish." (3) The profits of justice. James's
predecessors "farmed it to certain persons called justices....
This king does not like to farm the administration of the law,
because justice is not well administered in that way." (4) The
ordinary feudal incidents--reliefs, wardships, and marriage. (5)
Vacant bishoprics, abbacies, &c. (6) Rent in kind, from meat and
poultry, and especially from fisheries. Only one of these, namely,
customs duties, could have been regulated by the Estates, and there
is on record no instance of any attempt to do so. The revenue was
collected on the English system, described in the _Dialogus de
Scaccario_. The sheriffs and the king's stewards collected the
sums due in the counties, and the bailiffs and "custumars" had
charge of the amercement of the burghs and the collection of the
customs. The main differences between the system in Scotland under
James IV and that of England under Henry VII is that the Scottish
Exchequer Court was not so fully organized as the English, and that
the system of checks on the honesty of the sheriffs, &c., was much
less elaborate. All the sources of revenue were, as a rule, "farmed
out"; the king received a composition, and the actual collector
made as much profit as he could.
[16] Gilbert Stuart, _Of the Public Law and Constitution of
Scotland_, note xxviii.
[17] Hill Burton, _History of Scotland_, ii. 82.
[18] The evidence upon which the theory of popular representation
is based is as vague as the theory itself. Eadmer (_Hist. Nov._
p. 97, Lond. 1623; cf. also p. 134) tells us of an election, in
1107, of a bishop of St. Andrews "by Alexander, king of Scotland,
the clergy, and the people." The Book of Scone (_Liber de Scon._
p. 1) describes the re-foundation of the abbey in 1114-15 by King
Alexander. It is confirmed by his wife and nephew, several bishops,
and a number of nobles, "consilio proborum hominum." Ten years
later, at the foundation of the abbey of Dunfermline (_Registrum de
Dunfermelyn_, p. 3; cf. also the Charters of Holyrood), we find a
phrase employed to which some importance has been attached. Bishops
and nobles confirm as usual, but with the acquiescence of the
people and clergy. The form "clero etiam acquiescente et populo"
is of frequent occurrence. The phrase "all the community of the
kingryk" has been treated in the text. The similar phrases "probi
homines" and "clero acquiescente et populo" are simply common
technical terms belonging to the Chancery imitated by the Scottish
scribe. The latter does not even imply consultation, and the former
means the smaller tenants-in-chief. In the _Laws of the Burghs_
we find it used for the leading men--the _optimates_--of the
town. It is not a popular term at all. On the other hand, too, we
have councils described in quite different terms. In 1174 William
the Lion held a council at Stirling, and asked an aid from his
"optimates" (Fordun, viii. 73). In 1190 the "prelati et proceres"
of Scotland gave the king 10,000 marks (Fordun, viii. 62). On the
death of Alexander III the guardians describe themselves as "de
communi consilio constituti" (_Hist. Doc. relating to Scotland_,
i. 95), while Rishanger tells how "omnes Scoti" chose Wallace. The
change in the political circumstances is sufficient to account
for whatever importance may be attached to the words. It is true
that Fordun, speaking of the same period, frequently uses the word
Estates ("communitates"). But Fordun was not a contemporary, and
the word had acquired a technical meaning by his time. Moreover,
he uses the word very loosely. Sometimes he intends by it the land
itself, as when he tells us how the English ravaged it.
[19] _Acts of the Parliament of Scotland_, i. 371, &c.
[20] _Ibid._ i. 377. The use of the word "community" appealed more
strongly than anything else to the older historians.
[21] Cf. _Ancient Laws of the Burghs of Scotland_ (Burgh Record
Soc.).
[22] So important was their meeting that when Edward I of England
held a parliament at Newcastle in 1292, and some question arose
regarding their privileges, the four burghs were consulted, and the
decision was made in conformity with their laws and customs (_Rot.
Parl._, i. 107).
[23] Fordun, viii. I.
[24] _Thoughts on the Origin of Feudal Tenures and the Descent of
Ancient Peerages in Scotland_, by George Wallace, 1783.
[25] _E.g._ Wigton in 1342, and Sutherland in 1347.
[26] Wallace, _op. cit._, p. 163.
[27] Wallace, _op. cit._, p. 192, &c.
[28] Robertson, _Hist. of Scotland_, App. iv. The claim is not
based upon any constitutional right or theory. It is stated as a
matter founded on common sense, and the efficacy of the petition
lay in the support of those who had special reasons for desiring
the presence of the smaller barons. The language of Randolph's
letter shows how far the strictly legal position was from being
understood.
[29] _Foreign Calendar_, 19th Aug., 1560; Laing, _Knox_, vi. 116.
[30] Cf. Innes, _Legal Antiquities_, p. 116.
[31] _Charters of the Burgh of Aberdeen_, ed. P. J. Anderson; also
in the Spalding Club edition of Gordon's _Description of Aberdeen_.
[32] Innes, _op. cit._, p. 116.
[33] _Acts_, vol. i. References to acts when no authority is
quoted are always from the volumes of _Acts of the Parliaments of
Scotland_.
[34] _Acts_, i. 492. We have no reason for supposing that
"proceres" included burgesses, as it is generally used in
contradistinction to them.
[35] "Plebanos, qui ad parliamentum non erunt, nec voluerint
promittere interesse ibidem."
[36] Although the burgesses had thus successfully asserted their
right to a place in Parliament, the theory was not at once extended
to the meetings known as conventions, which could impose taxes, and
possessed every parliamentary power except that of passing general
laws. In 1503 an act was passed, ordering that "commissioners
and head men of burghs be warned" to attend conventions; but it
had to be re-enacted in 1563, and even after that date it was
not completely operative. Between 1566 (the first date of their
recorded presence) and the end of the sixteenth century burgesses
were present at only half of the conventions which were held. It
is important to note that the royal burghs alone had parliamentary
representation up to the year 1832.
[37] We have no evidence that the Court of the Four Burghs was in
any sense strictly representative.
[38] The possible objection that a similar theory of burghal
representation has been stated and rejected by English constitutional
historians is scarcely applicable. For it is agreed that the idea
of representation existed in England before the towns were summoned
to Parliament, while in Scotland no such idea is traceable, nor are
there any writs such as were issued for the English towns. It might
even be argued that, in strict theory, there was no representation
in Scotland till 1832; that commissioners both from shires and
burghs only saved their fellows the trouble of attendance, the
right to attend being, not _de facto_ but in ultimate theory,
possessed by all who were entitled to vote. Such a statement is
certainly true of the shire, at all events.
[39] The chief officers of state were the lord chancellor, the lord
high treasurer, and the lord privy seal, who took precedence of
all the nobility; the secretary, the clerk of register, the king's
advocate, the treasurer's deputy, and the lord justice clerk.
[40] They were excluded from 1640 to 1662.
[41] _Acts_, i. 491. The use of the term in connection with the
coronation of Alexander II in 1214 (_Acts_, i. 67) is explained by
its being simply a quotation from Fordun (ix. 1).
[42] Cf. _supra_, pp. 21-25.
[43] Cf. _supra_, pp. 25-26.
[44] Cf. _supra_, pp. 18-19.
[45] Vide _supra_, p. 24.
[46] Laing, _Knox_, ii. 87.
[47] Speech at Whitehall, 31st March, 1607.
[48] The right of prorogation is tacitly assumed by the king in
this speech. It was the cause of a dispute in the troublous times
which followed 1638. The Parliament of 1640 protested that "Johne,
Erle of Traquair, his Majestie's Commissioner, did take upon him
without consent of the Estates, upon a private warrand, procured
by himself, against his Majestie's publict patent, under the
great seall," to prorogue Parliament. They therefore continued to
sit, and took up stronger ground, viz. that prorogation without
consent of Parliament was "against the lawes and libertie of
the kingdom, ... without precedent, example, and practice." The
language is clearly taken from the contemporary protests of the
English Commons, and it cannot be regarded as more than a political
weapon, borrowed for this occasion from the English constitutional
armoury. It in no way corresponds with the general state of feeling
in Scotland. In 1661 the Estates resolved that "the King hath sole
power to call and prorogue Parliaments." Both resolutions were
recognitions of fact, not of theory. At various times, from 1398
onwards, acts were passed that Parliament should meet once a year.
These were probably connected with the judicial powers of the
Estates. In point of fact, they were dead letters.
[49] Convocatis tribus communitatibus Regni ... certi personae
electi fuerunt per easdem ad parliamentum tenendum, data aliis
causa autumpni licencia ad propria redeundi.
[50] De concessu et confirmatione trium communitatum congregatarum,
propter importunitatem et caristiam temporis ... electi fuerunt
certi personae ad ipsum parliamentum tenendum, data licencia aliis
remeandi.
[51] _Acts_, i. 173.
[52] Imitando videlicet ordinem illum et modum qui servabantur in
parliamento tento apud Perth tempore venerandae memoriae domini
Regis David, anno Regni ipsius quadragesimo [1369], electi fuerunt
quidam....
[53] Ad tractandum et deliberandum super certis specialibus Regis
et Regni negociis, antequam perveniant ad noticiam consilii
generalis, licentiatis autem aliis ut recedant.
[54] De consensu et assensu trium communitatum per presidentes sive
per personas electas ad determinationem negociorum in parliamento
eodem.
[55] Primo et principaliter, iuxta predictos modum et ordinem, est
ordinatum quod nullus electus ad consilium cuiuscunque conditionis
gradus pre-eminentiae sive status alium non electum ad consilium
seu in consilio Regis sibi consiliarium vel assessorem aut alia de
causa adducat.
[56] "Comparentibus tribus Regni statibus apud Edinburgh, omnes
comites nobiles et barones ac libere tenentes dicti regni...." The
omission of the burgesses seems to have attracted the attention
of Sir John Skene, who in his edited volume of the _Acts_ (temp.
Jac. VI) includes the formal revocation in the proceedings of the
Parliament of 1437-38, and prints, instead of the somewhat less
emphatic words of the original, a statement that the revocation
was sanctioned by "the haill three Estates of the Realme, sittand
in plane Parliament, that is to say, the Clergie, Barrones, and
Commissioners of Burrowes."
[57] In 1445, three burgesses, along with fifteen of the clergy and
barons, attest the erection of the lordship of Hamilton; but there
is no further evidence of their being present or taking any part in
the parliament of that year.
[58] From 1467 to 1482 the numbers of the Lords of the Articles
were from three to five representatives of each Estate. During
the struggles which marked the end of the reign of James III, and
before his son had succeeded in asserting the royal power, we find
burgesses forming a very small proportion of the Committee of the
Articles. The numbers are instructive:
YEAR CLERGY BARONS BURGESSES
1483 6 6 4 (_Acts_, ii. 145.)
1485 6 6 3 (_Acts_, ii. 169.)
1488 9 14 5 (_Acts_, ii. 200.)
1489 8 10 4 (_Acts_, ii. 217.)
1491 10 10 3 (_Acts_, ii. 229.)
On the other hand in 1503, under the strong rule of James IV, six
clergy, six barons, and seven burgesses were chosen (_Acts_, ii.
239).
[59] The final form assumed by the Courts of the Four Burghs and
the Hanse Burghs.
[60] It was next employed in 1581.
[61] Randolph to Cecil, 3rd June, 1563, _Foreign Calendar,
Elizabeth_.
[62] Proclamation of James VI, July 1578.
[63] _Acts_, ii. 289.
[64] Robertson, app. iv. This is the only evidence that we possess
to show that the burgesses chose their own representatives.
[65] In the speech quoted _supra_, pp. 38-39, King James ignores
the Lords of the Articles altogether.
[66] _Miscellany of the Maitland Club_, iii. 112-18.
[67] Afterwards the first earl of Haddington.
[68] "Humble Supplication of a great number of the Nobility and
other Commissioners in the late Parliament," _State Trials_, iii.
604. Cf. also Row, _History of the Church of Scotland_, pp. 365-66
(Wodrow Soc.).
[69] _History_, vi. 87.
[70] The numbers of the Lords of the Articles varied considerably.
In 1587 it was fixed at any number varying from six to ten from
each Estate, and this may be taken as fairly representative of
their number throughout, though in early times it is somewhat
smaller. Cf. _supra_, p. 48, n.
[71] The title of "Lord" was early assumed by the president and
senators of the College of Justice. The title was prefixed to the
surname of the judge, if he did not take a territorial designation.
An attempt was made by the wives of the early senators to adopt
the corresponding title "Lady," but, according to tradition, their
ambition received a check from King James, who remarked: "I made
the carls lords, but wha made the carlines ladies?"
[72] The befurred and bedecked gowns and hoods of every Estate are
minutely described in an act of 1455.
[73] Innes, _op. cit._, pp. 152-53.
[74] One spectator of the scene remained cold and indifferent. John
Knox protested against "such stinking pride of women," and feared
that the "targetting of their taillies" (bordering of their robes
with tassels) would "provock Goddis vengeance, not onlie against
those foolish women, but against the haill Realme" (Laing, _Knox_,
ii. 381).
[75] _Register of the Privy Council_, 1600.
[76] Parliament sat, almost invariably, in Edinburgh, from the
beginning of the seventeenth century.
[77] The law of treason is stated in book iv of the transcript of
Glanvill's _De Legibus Angliae_, entitled "Regiam Maiestatem," and
it should be compared with the acts against "Leasing-making" which
were published from time to time.
[78] There are two accounts, in the _Acts_, of the appointment
of this Committee. In one place, they are elected to treat of
certain special business (super certis specialibus Regis et Regni
negociis--_Acts_, i. 173), and, in another, of secret business
(super certis et specialibus et secretis ... negociis--_Acts_, i.
pp. 507, 508). The lists of members are identical, and only one
Committee is intended.
[79] "In secreta camera domini Regis--in suo secreto
concilio."--_Acts_, i. p. 546.
[80] "In camera sui parliamenti in publico."--_Ibid._
[81] There seem, indeed, to have frequently been two royal councils
apart from Parliament, and to the smaller and more carefully
selected of these the title of "Secret Council" is applied. At
other times, there is evidence of only one advisory council apart
from the Estates.
[82] Privy Council Register, vol. i, introd. p. xi.
[83] Cf. p. 56.
[84] Cf. p. 56.
[85] _Acts_, ii. p. 241.
[86] _Ibid._, ii. pp. 215, 220.
[87] _Original Cronykil of Scotland_, book viii, c. 46.
[88] The control of taxation was maintained by Parliament, and
the king was informed that the grants were to be used for special
purposes. No general statement was made which could be construed
into a definite claim of the right of appropriation of supplies.
The "Parliament" merely used for a particular purpose the power
which at that moment it chanced to possess. It is the absence of
any assertion of or struggle for constitutional principle that is
ultimately decisive against the "constitutional" theory. When, as
here, the nobles had the power, they said they would do certain
things, and they did them. But there is no conscious effort,
traceable from generation to generation, such as we find in English
history.
[89] Cf. John Riddell, _Stewartiana_, Edinburgh, 1843.
[90] Tytler, _History of Scotland_, iii. 26.
[91] Burton, _History of Scotland_, ii. 351.
[92] Burton, _History of Scotland_, ii. 373.
[93] A declaration was made to Parliament regarding Rothesay's
death, in answer to rumours against Albany. But this was merely a
formal protest of innocence made to a semi-judicial body.
[94] It may be remarked that the Act does not say that "in all time
coming" a king or a regent is to be responsible, although it endows
Rothesay with all the powers of a king. It was passed solely with
reference to the immediate circumstances.
[95] Acts against "baratry"--_i.e._ the purchase of benefices at
Rome.
[96] The king's interest in the maintenance of justice is
illustrated by Fordun's well-known story that, on his return to
Scotland, when he found the misery caused by the incompetence and
negligence of the second Albany, he vowed to devote his life to the
restoration of order: "Si Deus mihi vitam dederit, ipso auxiliante,
et vitam saltem mihi caninam praestante, faciam per universum
regnum clavem castrum, et dumetum vaccam, absque possessoris
ambiguo ad modum custodire" (_Scotichronicon_, xv. 34).
[97] King James VI, _Basilikon Doron_, Book ii.
[98] The picture of Graham, the king's murderer, as an outraged
exponent of constitutionalism is a pious imagination.
[99] This has been viewed as a serious constitutional claim (_e.g._
Ridpath, _op. cit._, p. 4), and it illustrates the type of error on
which the "constitutional" theory has thriven.
[100] Edition of 1778, p. 24.
[101] _Basilikon Doron_, Book ii.
[102] There is no evidence that the Estates knew anything about
this war.