CHAPTER XVII

ON THE CONSTITUTION OF SCOTLAND--INTRODUCTION OF THE FEUDAL SYSTEM

It is not very profitable to enquire into the constitutional

antiquities of a country which furnishes no authentic historian, nor

laws, nor charters, to guide our research, as is the case with

Scotland before the twelfth century. The latest and most laborious of

her antiquaries appears to have proved that her institutions were

wholly Celtic until that era, and greatly similar to those of

Ireland.[418] A total, though probably gradual, change must therefore

have taken place in the next age, brought about by means which have

not been satisfactorily explained. The Crown became strictly

hereditary, the governors of districts took the appellation of earls,

the whole kingdom was subjected to a feudal tenure, the Anglo-Norman

laws, tribunals, local and municipal magistracies were introduced as

far as the royal influence could prevail; above all, a surprising

number of families, chiefly Norman, but some of Saxon or Flemish

descent, settled upon estates granted by the kings of Scotland, and

became the founders of its aristocracy. It was, as truly as some time

afterwards in Ireland, the encroachment of a Gothic and feudal polity

upon the inferior civilisation of the Celts, though accomplished with

far less resistance, and not quite so slowly. Yet the Highland tribes

long adhered to their ancient usages; nor did the laws of English

origin obtain in some other districts two or three centuries after

their establishment on both sides of the Forth.[419]

_Scots parliament._--It became almost a necessary consequence from

this adoption of the feudal system, and assimilation to the English

institutions, that the kings of Scotland would have their general

council or parliament upon nearly the same model as that of the

Anglo-Norman sovereigns they so studiously imitated. If the statutes

ascribed to William the Lion, contemporary with our Henry II., are

genuine, they were enacted, as we should expect to find, with the

concurrence of the bishops, abbots, barons, and other good men (probi

homines) of the land; meaning doubtless the inferior tenants in

capite.[420] These laws indeed are questionable, and there is a great

want of unequivocal records till almost the end of the thirteenth

century. The representatives of boroughs are first distinctly

mentioned in 1326, under Robert I.; though some have been of opinion

that vestiges of their appearance in parliament may be traced higher;

but they are not enumerated among the classes present in one held in

1315.[421] In the ensuing reign of David II., the three estates of the

realm are expressly mentioned as the legislative advisers of the

Crown.[422]

A Scots parliament resembled an English one in the mode of

convocation, in the ranks that composed it, in the enacting powers of

the king, and the necessary consent of the three estates; but differed

in several very important respects. No freeholders, except tenants in

capite, had ever any right of suffrage; which may, not improbably,

have been in some measure owing to the want of that Anglo-Saxon

institution, the county court. These feudal tenants of the Crown came

in person to parliament, as they did in England till the reign of

Henry III., and sat together with the prelates and barons in one

chamber. A prince arose in Scotland in the first part of the fifteenth

century, resembling the English Justinian in his politic regard to

strengthening his own prerogative and to maintaining public order. It

was enacted by a law of James I., in 1427, that the smaller barons and

free tenants "need not to come to parliament, so that of every

sheriffdom there be sent two or more wise men, chosen at the head

court," to represent the rest. These were to elect a speaker, through

whom they were to communicate with the king and other estates.[423]

This was evidently designed as an assimilation to the English House of

Commons. But the statute not being imperative, no regard was paid to

this permission; and it is not till 1587 that we find the

representation of the Scots counties finally established by law;

though one important object of James's policy was never attained, the

different estates of parliament having always voted promiscuously, as

the spiritual and temporal lords in England.

_Power of the aristocracy._--But no distinction between the national

councils of the two kingdoms was more essential than what appears to

have been introduced into the Scots parliament under David II. In the

year 1367 a parliament having met at Scone, a committee was chosen by

the three estates, who seem to have had full powers delegated to them,

the others returning home on account of the advanced season. The same

was done in one held next year, without any assigned pretext. But in

1369 this committee was chosen only to prepare all matters

determinable in parliament, or fit to be therein treated for the

decision of the three estates on the last day but one of the

session.[424] The former scheme appeared possibly, even to those

careless and unwilling legislators, too complete an abandonment of

their function. But even modified as it was in 1369, it tended to

devolve the whole business of parliament on this elective committee,

subsequently known by the appellation of lords of the articles. It

came at last to be the general practice, though some exceptions to

this rule may be found, that nothing was laid before parliament

without their previous recommendation; and there seems reason to think

that in the first parliament of James I., in 1424, such full powers

were delegated to the committee as had been granted before in 1367 and

1368, and that the three estates never met again to sanction their

resolutions.[425] The preparatory committee is not uniformly mentioned

in the preamble of statutes made during the reign of this prince and

his two next successors; but there may be no reason to infer from

thence that it was not appointed. From the reign of James IV. the

lords of articles are regularly named in the records of every

parliament.[426]

It is said that a Scots parliament, about the middle of the fifteenth

century, consisted of near one hundred and ninety persons.[427] We do

not find however that more than half this number usually attended. A

list of those present in 1472 gives but fourteen bishops and abbots,

twenty-two earls and barons, thirty-four lairds or lesser tenants in

capite, and eight deputies of boroughs.[428] The royal boroughs

entitled to be represented in parliament were above thirty; but it was

a common usage to choose the deputies of other towns as their

proxies.[429] The great object with them, as well as with the lesser

barons, was to save the cost and trouble of attendance. It appears

indeed that they formed rather an insignificant portion of the

legislative body. They are not named as consenting parties in several

of the statutes of James III.; and it seems that on some occasions

they had not been summoned to parliament, for an act was passed in

1504, "that the commissaries and headsmen of the burghs be warned when

taxes or constitutions are given, to have their advice therein, as one

of the three estates of the realm."[430] This however is an express

recognition of their right, though it might have been set aside by an

irregular exercise of power.

_Royal influence in parliament._--It was a natural result from the

constitution of a Scots parliament, together with the general state of

society in that kingdom, that its efforts were almost uniformly

directed to augment and invigorate the royal authority. Their statutes

afford a remarkable contrast to those of England in the absence of

provisions against the exorbitances of prerogative.[431] Robertson has

observed that the kings of Scotland, from the time at least of James

I., acted upon a steady system of repressing the aristocracy; and

though this has been called too refined a supposition, and attempts

have been made to explain otherwise their conduct, it seems strange to

deny the operation of a motive so natural, and so readily to be

inferred from their measures. The causes so well pointed out by this

historian, and some that might be added; the defensible nature of

great part of the country; the extensive possessions of some powerful

families; the influence of feudal tenure and Celtic clanship; the

hereditary jurisdiction, hardly controlled, even in theory, by the

supreme tribunals of the Crown; the custom of entering into bonds of

association for mutual defence; the frequent minorities of the

reigning princes; the necessary abandonment of any strict regard to

monarchical supremacy, during the struggle for independence against

England; the election of one great nobleman to the Crown and its

devolution upon another; the residence of the two first of the Stuart

name in their own remote domains; the want of any such effective

counterpoise to the aristocracy as the sovereigns of England possessed

in its yeomanry and commercial towns, placed the kings of Scotland in

a situation which neither for their own nor their people's interest

they could be expected to endure. But an impatience of submitting to

the insolent and encroaching temper of their nobles drove James I.

(before whose time no settled scheme of reviving the royal authority

seems to have been conceived), and his two next descendants into some

courses which, though excused or extenuated by the difficulties of

their position, were rather too precipitate and violent, and redounded

at least to their own destruction. The reign of James IV., from his

accession in 1488 to his unhappy death at Flodden in 1513, was the

first of tolerable prosperity; the Crown having by this time obtained

no inconsiderable strength, and the course of law being somewhat more

established, though the aristocracy were abundantly capable of

withstanding any material encroachment upon their privileges.

Though subsidies were, of course, occasionally demanded, yet from the

poverty of the realm, and the extensive domains which the Crown

retained, they were much less frequent than in England, and thus one

principal source of difference was removed; nor do we read of any

opposition in parliament to what the Lords of articles thought fit to

propound. Those who disliked the government stood aloof from such

meetings, where the sovereign was in his vigour, and had sometimes

crushed a leader of faction by a sudden stroke of power; confident

that they could better frustrate the execution of laws than their

enactment, and that questions of right and privilege could never be

tried so advantageously as in the field. Hence it is, as I have

already observed, that we must not look to the statute-book of

Scotland for many limitations of monarchy. Even in one of James II.,

which enacts that none of the royal domains shall for the future be

alienated, and that the king and his successors shall be sworn to

observe this law, it may be conjectured that a provision rather

derogatory in semblance to the king's dignity was introduced by his

own suggestion, as an additional security against the importunate

solicitations of the aristocracy whom the statute was designed to

restrain.[432] The next reign was the struggle of an imprudent, and,

as far as his means extended, despotic prince, against the spirit of

his subjects. In a parliament of 1487, we find almost a solitary

instance of a statute that appears to have been directed against some

illegal proceedings of the government. It is provided that all civil

suits shall be determined by the ordinary judges, and not before the

king's council.[433] James III. was killed the next year in attempting

to oppose an extensive combination of the rebellious nobility. In the

reign of James IV., the influence of the aristocracy shows itself

rather more in legislation; and two peculiarities deserve notice, in

which, as it is said, the legislative authority of a Scots parliament

was far higher than that of our own. They were not only often

consulted about peace or war, which in some instances was the case in

England, but, at least in the sixteenth century, their approbation

seems to have been necessary.[434] This, though not consonant to our

modern notions, was certainly no more than the genius of the feudal

system and the character of a great deliberative council might lead us

to expect; but a more remarkable singularity was, that what had been

propounded by the lords of articles, and received the ratification of

the three estates, did not require the king's consent to give it

complete validity. Such at least is said to have been the Scots

constitution in the time of James VI.; though we may demand very full

proof of such an anomaly, which the language of their statutes,

expressive of the king's enacting power, by no means leads us to

infer.[435]

_Judicial power._--The kings of Scotland had always their aula or

curia regis, claiming a supreme judicial authority, at least in some

causes, though it might be difficult to determine its boundaries, or

how far they were respected. They had also bailiffs to administer

justice in their own domains, and sheriffs in every county for the

same purpose, wherever grants of regality did not exclude their

jurisdiction. These regalities were hereditary and territorial; they

extended to the infliction of capital punishment; the lord possessing

them might reclaim or re-pledge (as it was called, from the surety he

was obliged to give that he would himself do justice) any one of his

vassals who was accused before another jurisdiction. The barons, who

also had cognisance of most capital offences, and the royal boroughs,

enjoyed the same privilege. An appeal lay, in civil suits, from the

baron's court to that of the sheriff or lord of regality, and

ultimately to the parliament, or to a certain number of persons to

whom it delegated its authority.[436]

_Court of Session._--This appellant jurisdiction of parliament, as

well as that of the king's privy council, which was original, came, by

a series of provisions from the year 1425 to 1532, into the hands of a

supreme tribunal thus gradually constituted in its present form, the

court of session. It was composed of fifteen judges, half of whom,

besides the president, were at first churchmen, and soon established

an entire subordination of the local courts in all civil suits. But it

possessed no competence in criminal proceedings; the hereditary

jurisdictions remained unaffected for some ages, though the king's two

justiciaries, replaced afterwards by a court of six judges, went their

circuits even through those counties wherein charters of regality had

been granted. Two remarkable innovations seem to have accompanied, or

to have been not far removed in time from, the first formation of the

court of session; the discontinuance of juries in civil causes, and

the adoption of so many principles from the Roman law as have given

the jurisprudence of Scotland a very different character from our

own.[437]

In the reign of James V. it might appear probable that by the

influence of laws favourable to public order, better enforced through

the council and court of session than before, by the final subjugation

of the house of Douglas and of the Earls of Ross in the North, and

some slight increase of wealth in the towns, conspiring with the

general tendency of the sixteenth century throughout Europe, the

feudal spirit would be weakened and kept under in Scotland or display

itself only in a parliamentary resistance to what might become in its

turn dangerous, the encroachments of arbitrary power. But immediately

afterwards a new and unexpected impulse was given; religious zeal, so

blended with the ancient spirit of aristocratic independence that the

two motives are scarcely distinguishable, swept before it in the first

whirlwind almost every vestige of the royal sovereignty. The Roman

catholic religion was abolished with the forms indeed of a parliament,

but of a parliament not summoned by the Crown, and by acts that

obtained not its assent. The Scots church had been immensely rich;

its riches had led, as everywhere else, to neglect of duties and

dissoluteness of life; and these vices had met with their usual

punishment in the people's hatred.[438] The reformed doctrines gained

a more rapid and general ascendancy than in England, and were

accompanied with a more strenuous and uncompromising enthusiasm. It is

probable that no sovereign retaining a strong attachment to the

ancient creed would long have been permitted to reign; and Mary is

entitled to every presumption, in the great controversy that belongs

to her name, that can reasonably be founded on this admission. But,

without deviating into that long and intricate discussion, it may be

given as the probable result of fair inquiry, that to impeach the

characters of most of her adversaries would be a far easier task than

to exonerate her own.[439]

_Power of the presbyterian clergy._--The history of Scotland from the

reformation assumes a character, not only unlike that of preceding

times, but to which there is no parallel in modern ages. It became a

contest, not between the Crown and the feudal aristocracy as before,

nor between the assertors of prerogative and of privilege, as in

England, nor between the possessors of established power and those who

deemed themselves oppressed by it, as is the usual source of civil

discord, but between the temporal and spiritual authorities, the Crown

and the church; that in general supported by the legislature, this

sustained by the voice of the people. Nothing of this kind, at least

in anything like so great a degree, has occurred in other protestant

countries; the Anglican church being, in its original constitution,

bound up with the state as one of its component parts, but subordinate

to the whole; and the ecclesiastical order in the kingdoms and

commonwealths of the continent being either destitute of temporal

authority, or at least subject to the civil magistrate's supremacy.

Knox, the founder of the Scots' reformation, and those who concurred

with him, both adhered to the theological system of Calvin, and to the

scheme of polity he had introduced at Geneva, with such modifications

as became necessary from the greater scale on which it was to be

practised. Each parish had its minister, lay-elder, and deacon, who

held their kirk-session for spiritual jurisdiction and other purposes;

each ecclesiastical province its synod of ministers and delegated

elders presided over by a superintendent; but the supreme power

resided in the general assembly of the Scots' church, constituted of

all ministers of parishes, with an admixture of delegated laymen, to

which appeals from inferior judicatories lay, and by whose

determinations or canons the whole were bound. The superintendents had

such a degree of episcopal authority as seems implied in their name,

but concurrently with the parochial ministers, and in subordination to

the general assembly; the number of these was designed to be ten, but

only five were appointed.[440] This form of church polity was set up

in 1560; but according to the irregular state of things at that time

in Scotland, though fully admitted and acted upon, it had only the

authority of the church, with no confirmation of parliament; which

seems to have been the first step of the former towards the

independency it came to usurp. Meanwhile it was agreed that the Roman

catholic prelates, including the regulars, should enjoy two-thirds of

their revenues, as well as their rank and seats in parliament; the

remaining third being given to the Crown, out of which stipends should

be allotted to the protestant clergy. Whatever violence may be imputed

to the authors of the Scots' reformation, this arrangement seems to

display a moderation which we should vainly seek in our own. The new

church was, however, but inadequately provided for; and perhaps we may

attribute some part of her subsequent contumacy and encroachment on

the state to the exasperation occasioned by the latter's parsimony, or

rather rapaciousness, in the distribution of ecclesiastical

estates.[441]

It was doubtless intended by the planners of a presbyterian model,

that the bishoprics should be extinguished by the death of the

possessors, and their revenues be converted, partly to the maintenance

of the clergy, partly to other public interests. But it suited better

the men in power to keep up the old appellations for their own

benefit. As the catholic prelates died away, they were replaced by

protestant ministers, on private compacts to alienate the principal

part of the revenues to those through whom they were appointed. After

some hesitation, a convention of the church, in 1572, agreed to

recognise these bishops, until the king's majority and a final

settlement by the legislature, and to permit them a certain portion of

jurisdiction, though not greater than that of the superintendent, and

equally subordinate to the general assembly. They were not

consecrated; nor would the slightest distinction of order have been

endured by the church. Yet even this moderated episcopacy gave offence

to ardent men, led by Andrew Melville, the second name to Knox in the

ecclesiastical history of Scotland; and, notwithstanding their

engagement to leave things as they were till the determination of

parliament, the general assembly soon began to restrain the bishops by

their own authority, and finally to enjoin them, under pain of

excommunication, to lay down an office which they voted to be

destitute of warrant from the word of God, and injurious to the

church. Some of the bishops submitted to this decree; others, as might

be expected, stood out in defence of their dignity, and were

supported both by the king and by all who conceived that the supreme

power of Scotland, in establishing and endowing the church, had not

constituted a society independent of the commonwealth. A series of

acts in 1584, at a time when the court had obtained a temporary

ascendant, seemed to restore the episcopal government in almost its

pristine lustre. But the popular voice was loud against episcopacy;

the prelates were discredited by their simoniacal alienations of

church-revenues, and by their connection with the court; the king was

tempted to annex most of their lands to the Crown by an act of

parliament in 1587; Adamson, Archbishop of St. Andrews, who had led

the episcopal party, was driven to a humiliating retractation before

the general assembly; and, in 1592, the sanction of the legislature

was for the first time obtained to the whole scheme of presbyterian

polity; and the laws of 1584 were for the most part abrogated.

The school of Knox, if so we may call the early presbyterian ministers

of Scotland, was full of men breathing their master's spirit; acute in

disputation, eloquent in discourse, learned beyond what their

successors have been, and intensely zealous in the cause of

reformation. They wielded the people at will; who, except in the

Highlands, threw off almost with unanimity the old religion, and took

alarm at the slightest indication of its revival. Their system of

local and general assemblies infused, together with the forms of a

republic, its energy and impatience of exterior control, combined with

the concentration and unity of purpose that belongs to the most

vigorous government. It must be confessed that the unsettled state of

the kingdom, the faults and weakness of the regents Lennox and Morton,

the inauspicious beginning of James's personal administration under

the sway of unworthy favourites, the real perils of the reformed

church, gave no slight pretext for the clergy's interference with

civil policy. Not merely in their representative assemblies, but in

the pulpits, they perpetually remonstrated, in no guarded language,

against the misgovernment of the court, and even the personal

indiscretions of the king. This they pretended to claim as a privilege

beyond the restraint of law. Andrew Melville, second only to Knox

among the heroes of the presbyterian church, having been summoned

before the council in 1584, to give an account of some seditious

language alleged to have been used by him in the pulpit, declined its

jurisdiction, on the ground that he was only responsible, in the first

instance, to his presbytery for words so spoken, of which the king and

council could not judge without violating the immunities of the

church. Precedents for such an immunity it would not have been

difficult to find; but they must have been sought in the archives of

the enemy. It was rather early for the new republic to emulate the

despotism she had overthrown. Such, however, is the uniformity with

which the same passions operate on bodies of men in similar

circumstances; and so greedily do those, whose birth has placed them

far beneath the possession of power, intoxicate themselves with its

unaccustomed enjoyments. It has been urged in defence of Melville,

that he only denied the competence of a secular tribunal in the first

instance; and that, after the ecclesiastical forum had pronounced on

the spiritual offence, it was not disputed that the civil magistrate

might vindicate his own authority.[442] But not to mention that

Melville's claim, as I understand it, was to be judged by his

presbytery in the first instance, and ultimately by the general

assembly, from which, according to the presbyterian theory, no appeal

lay to a civil court; it is manifest that the government would have

come to a very disadvantageous conflict with a man, to whose defence

the ecclesiastical judicature had already pledged itself. For in the

temper of those times it was easy to foresee the determination of a

synod or presbytery.

James however and his counsellors were not so feeble as to endure this

open renewal of those extravagant pretensions which Rome had taught

her priesthood to assert. Melville fled to England; and a parliament

that met the same year sustained the supremacy of the civil power with

that violence and dangerous latitude of expression so frequent in the

Scots' statute-book. It was made treason to decline the jurisdiction

of the king or council in any matter, to seek the diminution of the

power of any of the three estates of parliament, which struck at all

that had been done against episcopacy, to utter, or to conceal, when

heard from others in sermons or familiar discourse, any false or

slanderous speeches to the reproach of the king, his council, or their

proceedings, or to the dishonour of his parents and progenitors, or to

meddle in the affairs of state. It was forbidden to treat or consult

on any matter of state, civil or ecclesiastical, without the king's

express command; thus rendering the general assembly for its chief

purposes, if not its existence, altogether dependent on the Crown.

Such laws not only annihilated the pretended immunities of the

church, but went very far to set up that tyranny, which the Stuarts

afterwards exercised in Scotland till their expulsion. These were in

part repealed, so far as affected the church, in 1592; but the Crown

retained the exclusive right of convening its general assembly, to

which the presbyterian hierarchy still gives but an evasive and

reluctant obedience.[443]

These bold demagogues were not long in availing themselves of the

advantage which they had obtained in the parliament of 1592, and

through the troubled state of the realm. They began again to

intermeddle with public affairs, the administration of which was

sufficiently open to censure. This licence brought on a new crisis in

1596. Black, one of the ministers of St. Andrews, inveighing against

the government from the pulpit, painted the king and queen, as well as

their council, in the darkest colours, as dissembling enemies to

religion. James, incensed at this attack, caused him to be summoned

before the privy council. The clergy decided to make common cause with

the accused. The council of the church, a standing committee lately

appointed by the general assembly, enjoined Black to decline the

jurisdiction. The king by proclamation directed the members of this

council to retire to their several parishes. They resolved, instead of

submitting, that since they were convened by the warrant of Christ, in

a most needful and dangerous time, to see unto the good of the church,

they should obey God rather than man. The king offered to stop the

proceedings, if they would but declare that they did not decline the

civil jurisdiction absolutely, but only in the particular case, as

being one of slander, and consequently of ecclesiastical competence.

For Black had asserted before the council, that speeches delivered in

the pulpits, although alleged to be treasonable, could not be judged

by the king, until the church had first taken cognisance thereof. But

these ecclesiastics, in the full spirit of the thirteenth century,

determined by a majority not to recede from their plea. Their contest

with the court soon excited the populace of Edinburgh, and gave rise

to a tumult, which, whether dangerous or not to the king, was what no

government could pass over without utter loss of authority.

It was in church assemblies alone that James found opposition. His

parliament, as had invariably been the case in Scotland, went readily

into all that was proposed to them; nor can we doubt that the gentry

must for the most part have revolted from these insolent usurpations

of the ecclesiastical order. It was ordained in parliament, that every

minister should declare his submission to the king's jurisdiction in

all matters civil and criminal; that no ecclesiastical judicatory

should meet without the king's consent, and that a magistrate might

commit to prison any minister reflecting in his sermons on the king's

conduct. He had next recourse to an instrument of power more

successful frequently than intimidation, and generally successful in

conjunction with it; gaining over the members of the general assembly,

some by promises, some by exciting jealousies, till they surrendered

no small portion of what had passed for the privileges of the church.

The Crown obtained by their concession, which then seemed almost

necessary to confirm what the legislature had enacted, the right of

convoking assemblies, and of nominating ministers in the principal

towns.

_Establishment of episcopacy._--James followed up this victory by a

still more important blow. It was enacted that fifty-one ministers, on

being nominated by the king to titular bishoprics and other prelacies,

might sit in parliament as representatives of the church. This seemed

justly alarming to the zealots of party; nor could the general

assembly be brought to acquiesce without such very considerable

restrictions upon these suspicious commissioners, by which name they

prevailed to have them called, as might in some measure afford

security against the revival of that episcopal domination, towards

which the endeavours of the Crown were plainly directed. But the king

paid little regard to these regulations; and thus the name and

parliamentary station of bishops were restored in Scotland after only

six years from their abolition.[444]

A king like James, not less conceited of his wisdom than full of the

dignity of his station, could not avoid contracting that insuperable

aversion to the Scottish presbytery, which he expressed in his

_Basilicon Doron_, before his accession to the English throne, and

more vehemently on all occasions afterwards. He found a very different

race of churchmen, well trained in the supple school of courtly

conformity, and emulous flatterers both of his power and his wisdom.

The ministers of Edinburgh had been used to pray that God would turn

his heart: Whitgift, at the conference of Hampton Court, falling on

his knees, exclaimed, that he doubted not his majesty spoke by the

special grace of God. It was impossible that he should not redouble

his endeavours to introduce so convenient a system of ecclesiastical

government into his native kingdom. He began, accordingly, to prevent

the meetings of the general assembly by continued prorogations. Some

hardy presbyterians ventured to assemble of their own authority; which

the lawyers construed into treason. The bishops were restored by

parliament, in 1606, to a part of their revenues; the act annexing

these to the Crown being repealed. They were appointed by an

ecclesiastical convention, more subservient to the Crown than

formerly, to be perpetual moderators of provincial synods. The clergy

still gave way with reluctance; but the Crown had an irresistible

ascendancy in parliament; and in 1610 the episcopal system was

thoroughly established. The powers of ordination, as well as

jurisdiction, were solely vested in the prelates; a court of high

commission was created on the English model; and, though the general

assembly of the church still continued, it was merely as a shadow, and

almost mockery, of its original importance. The bishops now repaired

to England for consecration; a ceremony deemed essential in the new

school that now predominated in the Anglican church; and this gave a

final blow to the polity in which the Scottish reformation had been

founded.[445] With far more questionable prudence, James, some years

afterwards, forced upon the people of Scotland what were called the

five articles of Perth, reluctantly adopted by a general assembly held

there in 1617. These were matters of ceremony, such as the posture of

kneeling in the eucharist, the rite of confirmation, and the

observance of certain holidays; but enough to alarm a nation

fanatically abhorrent of every approximation to the Roman worship, and

already incensed by what they deemed the corruption and degradation of

their church.[446]

That church, if indeed it preserved its identity, was wholly changed

in character; and became as much distinguished in its episcopal form

by servility and corruption as during its presbyterian democracy by

faction and turbulence. The bishops at its head, many of them abhorred

by their own countrymen as apostates and despised for their vices,

looked for protection to the sister church of England in its pride and

triumph. It had long been the favourite project of the court, as it

naturally was of the Anglican prelates, to assimilate in all respects

the two establishments. That of Scotland still wanted one essential

characteristic, a regular liturgy. But in preparing what was called

the service book, the English model was not closely followed; the

variations having all a tendency towards the Romish worship. It is far

more probable that Laud intended these to prepare the way for a

similar change in England, than that, as some have surmised, the

Scottish bishops, from a notion of independence, chose thus to

distinguish their own ritual. What were the consequences of this

unhappy innovation, attempted with that ignorance of mankind which

kings and priests, when left to their own guidance, usually display,

it is here needless to mention. In its ultimate results, it preserved

the liberties and overthrew the monarchy of England. In its more

immediate effects, it gave rise to the national covenant of Scotland;

a solemn pledge of unity and perseverance in a great public cause,

long since devised when the Spanish armada threatened the liberties

and religion of all Britain, but now directed against the domestic

enemies of both. The episcopal government had no friends, even among

those who served the king. To him it was dear by the sincerest

conviction, and by its connection with absolute power, still more

close and direct than in England. But he had reduced himself to a

condition where it was necessary to sacrifice his authority in the

smaller kingdom, if he would hope to preserve it in the greater; and

in this view he consented, in the parliament of 1641, to restore the

presbyterian discipline of the Scottish church; an offence against his

conscience (for such his prejudices led him to consider it) which he

deeply afterwards repented, when he discovered how absolutely it had

failed of serving his interests.

_Innovations of Charles I._--In the great struggle with Charles

against episcopacy, the encroachments of arbitrary rule, for the sake

of which, in a great measure, he valued that form of church polity,

were not overlooked; and the parliament of 1641 procured some

essential improvements in the civil constitution of Scotland.

Triennial sessions of the legislature, and other salutary

reformations, were borrowed from their friends and coadjutors in

England. But what was still more important, was the abolition of that

destructive control over the legislature, which the Crown had obtained

through the lords of articles. These had doubtless been originally

nominated by the several estates in parliament, solely to expedite the

management of business, and relieve the entire body from attention to

it. But, as early as 1561, we find a practice established, that the

spiritual lords should choose the temporal, generally eight in

number, who were to sit on this committee, and conversely; the

burgesses still electing their own. To these it became usual to add

some of the officers of state; and in 1617 it was established that

eight of them should be on the list. Charles procured, without

authority of parliament, a further innovation in 1633. The bishops

chose eight peers, the peers eight bishops; and these appointed

sixteen commissioners of shires and boroughs. Thus the whole power

devolved upon the bishops, the slaves and sycophants of the Crown. The

parliament itself met only on two days, the first and last of their

pretended session, the one time in order to choose the lords of

articles, the other, to ratify what they proposed.[447] So monstrous

an anomaly could not long subsist in a high-spirited nation. This

improvident assumption of power by low-born and odious men

precipitated their downfall, and made the destruction of the hierarchy

appear the necessary guarantee for parliamentary independence, and the

ascendant of the aristocracy. But, lest the court might, in some other

form, regain this preliminary or initiative voice in legislation,

which the experience of many governments has shown to be the surest

method of keeping supreme authority in their hands, it was enacted in

1641, that each estate might choose lords of articles or not, at its

discretion; but that all propositions should in the first instance be

submitted to the whole parliament, by whom such only as should be

thought fitting might be referred to the committee of articles for

consideration.

_Arbitrary government._--This parliament, however, neglected to

abolish one of the most odious engines that tyranny ever devised

against public virtue, the Scots law of treason. It had been enacted

by a statute of James I. in 1424, that all leasing-makers, and tellers

of what might engender discord between the king and his people, should

forfeit life and goods.[448] This act was renewed under James II. It

was aimed at the factious aristocracy, who perpetually excited the

people by invidious reproaches against the king's administration. But

in 1584, a new antagonist to the Crown having appeared in the

presbyterian pulpits, it was determined to silence opposition by

giving the statute of leasing-making, as it was denominated, a more

sweeping operation. Its penalties were accordingly extended to such as

should "utter untrue or slanderous speeches, to the disdain, reproach,

and contempt of his highness, his parents and progenitors, or should

meddle in the affairs of his highness or his estate." The "hearers and

not reporters thereof" were subjected to the same punishment. It may

be remarked that these Scots statutes are worded with a latitude never

found in England, even in the worst times of Henry VIII. Lord

Balmerino, who had opposed the court in the parliament of 1633,

retained in his possession a copy of an apology intended to have been

presented by himself and other peers in their exculpation, but from

which they had desisted, in apprehension of the king's displeasure.

This was obtained clandestinely, and in breach of confidence, by some

of his enemies; and he was indicted on the statute of leasing-making,

as having concealed a slander against his majesty's government. A jury

was returned with gross partiality; yet so outrageous was the

attempted violation of justice that Balmerino was only convicted by a

majority of eight against seven. For in Scots juries a simple majority

was sufficient, as it is still in all cases except treason. It was not

thought expedient to carry this sentence into execution; but the

kingdom could never pardon its government so infamous a stretch of

power.[449] The statute itself however seems not to have shared the

same odium; we do not find any effort made for its repeal; and the

ruling party in 1641, unfortunately, did not scruple to make use of

its sanguinary provisions against their own adversaries.[450]

The conviction of Balmerino is hardly more repugnant to justice than

some other cases in the long reign of James VI. Eight years after the

execution of the Earl of Gowrie and his brother, one Sprot, a notary,

having indiscreetly mentioned that he was in possession of letters,

written by a person since dead, which evinced his participation in

that mysterious conspiracy, was put to death for concealing them.[451]

Thomas Ross suffered, in 1618, the punishment of treason for

publishing at Oxford a blasphemous libel, as the indictment calls it,

against the Scots nation.[452] I know not what he could have said

worse than what their sentence against him enabled others to say,

that, amidst a great vaunt of Christianity and civilisation, they took

away men's lives by such statutes, and such constructions of them, as

could only be paralleled in the annals of the worst tyrants. By an act

of 1584, the privy council were empowered to examine an accused party

on oath; and, if he declined to answer any question, it was held

denial of their jurisdiction, and amounted to a conviction of treason.

This was experienced by two jesuits, Crighton and Ogilvy in 1610 and

1615, the latter of whom was executed.[453] One of the statutes upon

which he was indicted contained the singular absurdity of "annulling

and rescinding everything done, or hereafter to be done, in prejudice

of the royal prerogative, in any time bygone or to come."

_Civil war._--It was perhaps impossible that Scotland should remain

indifferent in the great quarrel of the sister kingdom. But having set

her heart upon two things incompatible in themselves from the outset,

according to the circumstances of England, and both of them ultimately

impracticable, the continuance of Charles on the throne and the

establishment of a presbyterian church, she fell into a long course of

disaster and ignominy, till she held the name of a free constitution

at the will of a conqueror. Of the three most conspicuous among her

nobility in this period, each died by the hand of the executioner; but

the resemblance is in nothing besides; and the characters of Hamilton,

Montrose, and Argyle are not less contrasted than the factions of

which they were the leaders. Humbled and broken down, the people

looked to the re-establishment of Charles II. on the throne of his

fathers, though brought about by the sternest minister of Cromwell's

tyranny, not only as the augury of prosperous days, but as the

obliteration of public dishonour.

_Tyrannical government of Charles II._--They were miserably deceived

in every hope. Thirty infamous years consummated the misfortunes and

degradation of Scotland. Her factions have always been more

sanguinary, her rulers more oppressive, her sense of justice and

humanity less active, or at least shown less in public acts, than can

be charged against England. The parliament of 1661, influenced by

wicked statesmen and lawyers, left far behind the Royalist Commons of

London; and rescinded as null the entire acts of 1641, on the absurd

pretext that the late king had passed them through force. The Scots'

constitution fell back at once to a state little better than

despotism. The lords of articles were revived, according to the same

form of election as under Charles I. A few years afterwards the Duke

of Lauderdale obtained the consent of parliament to an act, that

whatever the king and council should order respecting all

ecclesiastical matters, meetings, and persons, should have the force

of law. A militia, or rather army, of 22,000 men, was established, to

march wherever the council should appoint, and the honour and safety

of the king require. Fines to the amount of £85,000, an enormous sum

in that kingdom, were imposed on the covenanters. The Earl of Argyle

brought to the scaffold by an outrageous sentence, his son sentenced

to lose his life on such a construction of the ancient law against

leasing-making as no man engaged in political affairs could be sure to

escape, the worst system of constitutional laws administered by the

worst men, left no alternative but implicit obedience or desperate

rebellion.

The presbyterian church of course fell by the act, which annulled the

parliament wherein it had been established. Episcopacy revived, but

not as it had once existed in Scotland; the jurisdiction of the

bishops became unlimited; the general assemblies, so dear to the

people, were laid aside.[454] The new prelates were odious as

apostates, and soon gained a still more indelible title to popular

hatred as persecutors. Three hundred and fifty of the presbyterian

clergy (more than one-third of the whole number) were ejected from

their benefices.[455] Then began the preaching in conventicles, and

the secession of the excited and exasperated multitude from the

churches; and then ensued the ecclesiastical commission with its

inquisitorial vigilance, its fines and corporal penalties, and the

free quarters of the soldiery, with all that can be implied in that

word. Then came the fruitless insurrection, and the fanatical

assurance of success, and the certain discomfiture by a disciplined

force, and the consternation of defeat, and the unbounded cruelties of

the conqueror. And this went on with perpetual aggravation, or very

rare intervals, through the reign of Charles; the tyranny of

Lauderdale far exceeding that of Middleton, as his own fell short of

the Duke of York's. No part, I believe, of modern history for so long

a period, can be compared for the wickedness of government to the

Scots administration of this reign. In proportion as the laws grew

more rigorous against the presbyterian worship, its followers evinced

more steadiness; driven from their conventicles, they resorted,

sometimes by night, to the fields, the woods, the mountains; and, as

the troops were continually employed to disperse them, they came with

arms which they were often obliged to use; and thus the hour, the

place, the circumstance, deepened every impression, and bound up their

faith with indissoluble associations. The same causes produced a dark

fanaticism, which believed the revenge of its own wrongs to be the

execution of divine justice; and, as this acquired new strength by

every successive aggravation of tyranny, it is literally possible that

a continuance of the Stuart government might have led to something

very like an extermination of the people in the western counties of

Scotland. In the year 1676 letters of intercommuning were published; a

writ forbidding all persons to hold intercourse with the parties put

under its ban, or to furnish them with any necessary of life on pain

of being reputed guilty of the same crime. But seven years afterwards,

when the Cameronian rebellion had assumed a dangerous character, a

proclamation was issued against all who had ever harboured or communed

with rebels; courts were appointed to be held for their trial as

traitors, which were to continue for the next three years. Those who

accepted the test, a declaration of passive obedience repugnant to the

conscience of the presbyterians, and imposed for that reason in 1681,

were excused from these penalties; and in this way they were eluded.

The enormities of this detestable government are far too numerous,

even in species, to be enumerated in this slight sketch; and of course

most instances of cruelty have not been recorded. The privy council

was accustomed to extort confessions by torture; that grim divan of

bishops, lawyers, and peers sucking in the groans of each undaunted

enthusiast, in hope that some imperfect avowal might lead to the

sacrifice of other victims, or at least warrant the execution of the

present. It is said that the Duke of York, whose conduct in Scotland

tends to efface those sentiments of pity and respect which other parts

of his life might excite, used to assist himself on these

occasions.[456] One Mitchell having been induced, by a promise that

his life should be spared, to confess an attempt to assassinate Sharp

the primate, was brought to trial some years afterwards; when four

lords of the council deposed on oath that no such assurance had been

given him; and Sharp insisted upon his execution. The vengeance

ultimately taken on this infamous apostate and persecutor, though

doubtless in violation of what is justly reckoned an universal rule of

morality, ought at least not to weaken our abhorrence of the man

himself.

The test above mentioned was imposed by parliament in 1681, and

contained, among other things, an engagement never to attempt any

alteration of government in church or state. The Earl of Argyle, son

of him who had perished by an unjust sentence, and himself once before

attainted by another, though at that time restored by the king, was

still destined to illustrate the house of Campbell by a second

martyrdom. He refused to subscribe the test without the reasonable

explanation that he would not bind himself from attempting, in his

station, any improvement in church or state. This exposed him to an

accusation of leasing-making (the old mystery of iniquity in Scots

law) and of treason. He was found guilty through the astonishing

audacity of the Crown lawyers and servility of the judges and jury. It

is not perhaps certain that his immediate execution would have ensued;

but no man ever trusted securely to the mercies of the Stuarts, and

Argyle escaped in disguise by the aid of his daughter-in-law. The

council proposed that this lady should be publicly whipped; but there

was an excess of atrocity in the Scots on the court side, which no

Englishman could reach; and the Duke of York felt as a gentleman upon

such a suggestion.[457] The Earl of Argyle was brought to the scaffold

a few years afterwards on the old sentence; but after his unfortunate

rebellion, which of course would have legally justified his execution.

The Cameronians, a party rendered wild and fanatical through

intolerable oppression, published a declaration, wherein, after

renouncing their allegiance to Charles, and expressing their

abhorrence of murder on the score of religion, they announced their

determination of retaliating, according to their power, on such privy

counsellors, officers in command, or others, as should continue to

seek their blood. The fate of Sharp was thus before the eyes of all

who emulated his crimes; and in terror the council ordered that

whoever refused to disown this declaration on oath, should be put to

death in the presence of two witnesses. Every officer, every soldier,

was thus entrusted with the privilege of massacre; the unarmed, the

women and children, fell indiscriminately by the sword: and besides

the distinct testimonies that remain of atrocious cruelty, there

exists in that kingdom a deep traditional horror, the record, as it

were, of that confused mass of crime and misery which has left no

other memorial.[458]

_Reign of James VII._--A parliament summoned by James on his

accession, with an intimation from the throne that they were assembled

not only to express their own duty, but to set an example of

compliance to England, gave, without the least opposition, the

required proofs of loyalty. They acknowledged the king's absolute

power, declared their abhorrence of any principle derogatory to it,

professed an unreserved obedience in all cases, bestowed a large

revenue for life. They enhanced the penalties against sectaries; a

refusal to give evidence against traitors or other delinquents was

made equivalent to a conviction of the same offence; it was capital to

preach even in houses, or to hear preachers in the fields. The

persecution raged with still greater fury in the first part of this

reign. But the same repugnance of the episcopal party to the king's

schemes for his own religion, which led to his remarkable change of

policy in England, produced similar effects in Scotland. He had

attempted to obtain from parliament a repeal of the penal laws and the

test; but, though an extreme servility or a general intimidation made

the nobility acquiesce in his propositions, and two of the bishops

were gained over, yet the commissioners of shires and boroughs, who

voting promiscuously in the house, had, when united, a majority over

the peers, so firmly resisted every encroachment of popery, that it

was necessary to try other methods than those of parliamentary

enactment. After the dissolution the dispensing power was brought into

play; the privy council forbade the execution of the laws against the

catholics; several of that religion were introduced to its board; the

royal boroughs were deprived of their privileges, the king assuming

the nomination of their chief magistrates, so as to throw the

elections wholly into the hands of the Crown. A declaration of

indulgence, emanating from the king's absolute prerogative, relaxed

the severity of the laws against presbyterian conventicles, and,

annulling the oath of supremacy and the test of 1681, substituted for

them an oath of allegiance, acknowledging his power to be unlimited.

He promised at the same time that "he would use no force nor

invincible necessity against any man on account of his persuasion, or

the protestant religion, nor would deprive the possessors of lands

formerly belonging to the church." A very intelligible hint that the

protestant religion was to exist only by this gracious sufferance.

_Revolution and establishment of presbytery._--The oppressed

presbyterians gained some respite by this indulgence, though instances

of executions under the sanguinary statutes of the late reign are

found as late as the beginning of 1688. But the memory of their

sufferings was indelible; they accepted, but with no gratitude, the

insidious mercy of a tyrant they abhorred. The Scots' conspiracy with

the Prince of Orange went forward simultaneously with that of England;

it included several of the council, from personal jealousy, dislike of

the king's proceedings as to religion, or anxiety to secure an

indemnity they had little deserved in the approaching crisis. The

people rose in different parts; the Scots' nobility and gentry in

London presented an address to the Prince of Orange, requesting him to

call a convention of the estates; and this irregular summons was

universally obeyed.

The king was not without friends in this convention; but the whigs had

from every cause a decided preponderance. England had led the way;

William was on his throne; the royal government at home was wholly

dissolved; and, after enumerating in fifteen articles the breaches

committed on the constitution, the estates came to a resolution: "That

James VII., being a professed papist, did assume the royal power, and

acted as king, without ever taking the oath required by law, and had,

by the advice of evil and wicked counsellors, invaded the fundamental

constitution of the kingdom, and altered it from a legal limited

monarchy to an arbitrary despotic power, and hath exerted the same to

the subversion of the protestant religion, and the violation of the

laws and liberties of the kingdom, whereby he hath forfaulted

(forfeited) his right to the Crown, and the throne has become vacant."

It was evident that the English vote of a constructive abdication,

having been partly grounded on the king's flight, could not without

still greater violence be applied to Scotland; and consequently the

bolder denomination of forfeiture was necessarily employed to express

the penalty of his mis-government. There was, in fact, a very striking

difference in the circumstances of the two kingdoms. In the one, there

had been illegal acts and unjustifiable severities; but it was, at

first sight, no very strong case for national resistance, which stood

rather on a calculation of expediency than an instinct of

self-preservation or an impulse of indignant revenge. But in the

other, it had been a tyranny, dark as that of the most barbarous ages;

despotism, which in England was scarcely in blossom, had borne its

bitter and poisonous fruits: no word of slighter import than

forfeiture could be chosen to denote the national rejection of the

Stuart line.

_Reign of William III._--A declaration and claim of rights was drawn

up, as in England, together with the resolution that the crown be

tendered to William and Mary, and descend afterwards in conformity

with the limitations enacted in the sister kingdom. This declaration

excluded papists from the throne, and asserted the illegality of

proclamations to dispense with statutes, of the inflicting capital

punishment without jury, of imprisonment without special cause or

delay of trial, of exacting enormous fines, of nominating the

magistrates in boroughs, and several other violent proceedings in the

two last reigns. These articles the convention challenged as their

undoubted right, against which no declaration nor precedent ought to

operate. They reserved some other important grievances to be redressed

in parliament. Upon this occasion, a noble fire of liberty shone forth

to the honour of Scotland, amidst those scenes of turbulent faction or

servile corruption which the annals of her parliament so perpetually

display. They seemed emulous of English freedom, and proud to place

their own imperfect commonwealth on as firm a basis.

One great alteration in the state of Scotland was almost necessarily

involved in the fall of the Stuarts. Their most conspicuous object had

been the maintenance of the episcopal church; the line was drawn far

more closely than in England; in that church were the court's friends,

out of it were its opponents. Above all, the people were out of it,

and in a revolution brought about by the people, their voice could not

be slighted. It was one of the articles accordingly in the declaration

of rights, that prelacy and precedence in ecclesiastical office were

repugnant to the genius of a nation reformed by presbyters, and an

unsupportable grievance which ought to be abolished. William, there is

reason to believe, had offered to preserve the bishops, in return for

their support in the convention. But this, not more happily for

Scotland than for himself and his successors, they refused to give. No

compromise, or even acknowledged toleration, was practicable in that

country between two exasperated factions; but, if oppression was

necessary, it was at least not on the majority that it ought to fall.

But besides this, there was as clear a case of forfeiture in the

Scots' episcopal church, as in the royal family of Stuart. The main

controversy between the episcopal and presbyterian churches was one of

dry antiquarian criticism, little more interesting than those about

the Roman senate, or the Saxon wittenagemot, nor perhaps more capable

of decisive solution; it was at least one as to which the bulk of

mankind are absolutely incapable of forming a rational judgment for

themselves. But, mingled up as it had always been, and most of all in

Scotland, with faction, with revolution, with power and emolument,

with courage and devotion, and fear, and hate, and revenge, this arid

dispute of pedants drew along with it the most glowing emotions of the

heart, and the question became utterly out of the province of

argument. It was very possible that episcopacy might be of apostolical

institution; but for this institution houses had been burned and

fields laid waste, and the gospel had been preached in wildernesses,

and its ministers had been shot in their prayers, and husbands had

been murdered before their wives, and virgins had been defiled, and

many had died by the executioner, and by massacre, and in

imprisonment, and in exile and slavery, and women had been tied to

stakes on the sea-shore till the tide rose to overflow them, and some

had been tortured and mutilated; it was a religion of the boots and

the thumb-screw, which a good man must be very cool-blooded indeed if

he did not hate and reject from the hands which offered it. For, after

all, it is much more certain that the Supreme Being abhors cruelty and

persecution, than that he has set up bishops to have a superiority

over presbyters.

It was, however, a serious problem at that time, whether the

presbyterian church, so proud and stubborn as she had formerly shown

herself, could be brought under a necessary subordination to the civil

magistrate, and whether the more fanatical part of it, whom Cargill

and Cameron had led on, would fall again into the ranks of social

life. But here experience victoriously confuted these plausible

apprehensions. It was soon perceived that the insanity of fanaticism

subsides of itself, unless purposely heightened by persecution. The

fiercer spirit of the sectaries was allayed by degrees; and, though

vestiges of it may probably still be perceptible by observers, it has

never, in a political sense, led to dangerous effects. The church of

Scotland, in her general assemblies, preserves the forms, and affects

the language, of the sixteenth century; but the Erastianism, against

which she inveighs, secretly controls and paralyses her vaunted

liberties; and she cannot but acknowledge that the supremacy of the

legislature is like the collar of the watch-dog, the price of food and

shelter, and the condition upon which alone a religious society can be

endowed and established by any prudent commonwealth.[459] The

judicious admixture of laymen in these assemblies, and, in a far

greater degree, the perpetual intercourse with England, which has put

an end to everything like sectarian bigotry, and even exclusive

communion, in the higher and middling classes, are the principal

causes of that remarkable moderation which for many years has

characterised the successors of Knox and Melville.

The convention of estates was turned by an act of its own into a

parliament, and continued to sit during the king's reign. This, which

was rather contrary to the spirit of a representative government than

to the Scots constitution, might be justified by the very unquiet

state of the kingdom and the intrigues of the jacobites. Many

excellent statutes were enacted in this parliament, besides the

provisions included in the declaration of rights; twenty-six members

were added to the representation of the counties, the tyrannous acts

of the two last reigns were repealed, the unjust attainders were

reversed, the lords of articles were abolished. After some years, an

act was obtained against wrongous imprisonment, still more effectual

perhaps in some respects than that of the habeas corpus in England.

The prisoner is to be released on bail within twenty-four hours on

application to a judge, unless committed on a capital charge; and in

that case must be brought to trial within sixty days. A judge refusing

to give full effect to the act is declared incapable of public trust.

Notwithstanding these great improvements in the constitution, and the

cessation of religious tyranny, the Scots are not accustomed to look

back on the reign of William with much complacency. The regeneration

was far from perfect; the court of session continued to be corrupt and

partial; severe and illegal proceedings might sometimes be imputed to

the council; and in one lamentable instance, the massacre of the

Macdonalds in Glencoe, the deliberate crime of some statesmen

tarnished not slightly the bright fame of their deceived master:

though it was not for the adherents of the house of Stuart, under whom

so many deeds of more extensive slaughter had been perpetrated, to

fill Europe with their invectives against this military

execution.[460] The episcopal clergy, driven out injuriously by the

populace from their livings, were permitted after a certain time to

hold them again in some instances under certain conditions; but

William, perhaps almost the only consistent friend of toleration in

his kingdoms, at least among public men, lost by this indulgence the

affection of one party, without in the slightest degree conciliating

the other.[461] The true cause, however, of the prevalent

disaffection at this period was the condition of Scotland, an ancient,

independent kingdom, inhabited by a proud, high-spirited people,

relatively to another kingdom, which they had long regarded with

enmity, still with jealousy; but to which, in despite of their

theoretical equality, they were kept in subordination by an

insurmountable necessity. The union of the two crowns had withdrawn

their sovereign and his court; yet their government had been national,

and on the whole with no great intermixture of English influence. Many

reasons, however, might be given for a more complete incorporation,

which had been the favourite project of James I., and was discussed,

at least on the part of Scotland, by commissioners appointed in 1670.

That treaty failed of making any progress; the terms proposed being

such as the English parliament would never have accepted. At the

revolution a similar plan was just hinted, and abandoned. Meanwhile,

the new character that the English government had assumed rendered it

more difficult to preserve the actual connection. A king of both

countries, especially by origin more allied to the weaker, might

maintain some impartiality in his behaviour towards each of them. But,

if they were to be ruled, in effect, nearly as two republics; that is,

if the power of their parliaments should be so much enhanced as

ultimately to determine the principal measures of state (which was at

least the case in England), no one who saw their mutual jealousy,

rising on one side to the highest exasperation, could fail to

anticipate that some great revolution must be at hand; and that an

union, neither federal nor legislative, but possessing every

inconvenience of both, could not long be endured. The well known

business of the Darien company must have undeceived every rational man

who dreamed of any alternative but incorporation or separation. The

Scots parliament took care to bring on the crisis by the act of

security in 1704. It was enacted that, on the queen's death without

issue, the estates should meet to name a successor of the royal line,

and a protestant; but that this should not be the same person who

would succeed to the crown of England, unless during her majesty's

reign conditions should be established to secure from English

influence the honour and independence of the kingdom, the authority of

parliament, the religion, trade, and liberty of the nation. This was

explained to mean a free intercourse with the plantations, and the

benefits of the navigation act. The prerogative of declaring peace and

war was to be subjected for ever to the approbation of parliament,

lest at any future time these conditions should be revoked.

_Act of security._--Those who obtained the act of security were partly

of the jacobite faction, who saw in it the hope of restoring at least

Scotland to the banished heir; partly of a very different description,

whigs in principle, and determined enemies of the Pretender, but

attached to their country, jealous of the English court, and

determined to settle a legislative union on such terms as became an

independent state. Such an union was now seen in England to be

indispensable; the treaty was soon afterwards begun, and, after a long

discussion of the terms between the commissioners of both kingdoms,

the incorporation took effect on the 1st of May 1707. It is provided

by the articles of this treaty, confirmed by the parliaments, that the

succession of the united kingdom shall remain to the Princess Sophia,

and the heirs of her body, being protestants; that all privileges of

trade shall belong equally to both nations; that there shall be one

great seal, and the same coin, weights, and measures; that the

episcopal and presbyterian churches of England and Scotland shall be

for ever established, as essential and fundamental parts of the union;

that the united kingdom shall be represented by one and the same

parliament, to be called the parliament of Great Britain; that the

number of peers for Scotland shall be sixteen, to be elected for every

parliament by the whole body, and the number of representatives of the

Commons forty-five, two-thirds of whom to be chosen by the counties,

and one-third by the boroughs; that the Crown be restrained from

creating any new peers of Scotland; that both parts of the united

kingdom shall be subject to the same duties of excise, and the same

customs on export and import; but that, when England raises two

millions by a land-tax, £48,000 shall be raised in Scotland, and in

like proportion.

It has not been unusual for Scotsmen, even in modern times, while they

cannot but acknowledge the expediency of an union, and the blessings

which they have reaped from it, to speak of its conditions as less

favourable than their ancestors ought to have claimed. For this

however there does not seem much reason. The ratio of population would

indeed have given Scotland about one-eighth of the legislative body,

instead of something less than one-twelfth; but no government except

the merest democracy is settled on the sole basis of numbers; and if

the comparison of wealth and of public contributions was to be

admitted, it may be thought that a country, which stipulated for

itself to pay less than one-fortieth of direct taxation, was not

entitled to a much greater share of the representation than it

obtained. Combining the two ratios of population and property, there

seems little objection to this part of the union; and in general it

may be observed of the articles of that treaty, what often occurs with

compacts intended to oblige future ages, that they have rather tended

to throw obstacles in the way of reformations for the substantial

benefit of Scotland, than to protect her against encroachment and

usurpation.

This however could not be securely anticipated in the reign of Anne;

and, no doubt, the measure was an experiment of such hazard that every

lover of his country must have consented in trembling, or revolted

from it with disgust. No past experience of history was favourable to

the absorption of a lesser state (at least where the government

partook so much of the republican form) in one of superior power and

ancient rivalry. The representation of Scotland in the united

legislature was too feeble to give anything like security against the

English prejudices and animosities, if they should continue or revive.

The church was exposed to the most apparent perils, brought thus

within the power of a legislature so frequently influenced by one

which held her not as a sister, but rather a bastard usurper of a

sister's inheritance; and, though her permanence was guaranteed by the

treaty, yet it was hard to say how far the legal competence of

parliament might hereafter be deemed to extend, or at least how far

she might be abridged of her privileges, and impaired in her

dignity.[462] If very few of these mischiefs have resulted from the

union, it has doubtless been owing to the prudence of our government,

and chiefly to the general sense of right, and the diminution both of

national and religious bigotry during the last century. But it is

always to be kept in mind, as the best justification of those who came

into so great a sacrifice of natural patriotism, that they gave up no

excellent form of polity, that the Scots constitution had never

produced the people's happiness, that their parliament was bad in its

composition, and in practice little else than a factious and venal

aristocracy; that they had before them the alternatives of their

present condition, with the prospect of unceasing discontent, half

suppressed by unceasing corruption, or of a more honourable, but very

precarious, separation of the two kingdoms, the renewal of national

wars and border-feuds, at a cost the poorer of the two could never

endure, and at a hazard of ultimate conquest, which, with all her

pride and bravery, the experience of the last generation had shown to

be no impossible term of the contest.

The union closes the story of the Scots constitution. From its own

nature, not more than from the gross prostitution with which a

majority had sold themselves to the surrender of their own legislative

existence, it was long odious to both parties in Scotland. An attempt

to dissolve it by the authority of the united parliament itself was

made in a very few years, and not very decently supported by the whigs

against the queen's last ministry. But, after the accession of the

house of Hanover, the jacobite party displayed such strength in

Scotland, that to maintain the union was evidently indispensable for

the reigning family. That party comprised a large proportion of the

superior classes, and nearly the whole of the episcopal church, which,

though fallen, was for some years considerable in numbers. The

national prejudices ran in favour of their ancient stock of kings,

conspiring with the sentiment of dishonour attached to the union

itself, and jealousy of some innovations which a legislature they were

unwilling to recognise thought fit to introduce. It is certain that

jacobitism, in England little more, after the reign of George I., than

an empty word, the vehicle of indefinite dissatisfaction in those who

were never ready to encounter peril or sacrifice advantage for its

affected principle, subsisted in Scotland as a vivid emotion of

loyalty, a generous promptitude to act or suffer in its cause; and,

even when all hope was extinct, clung to the recollections of the

past, long after the very name was only known by tradition, and every

feeling connected with it had been wholly effaced to the south of the

Tweed. It is believed that some persons in that country kept up an

intercourse with Charles Edward as their sovereign till his decease in

1787. They had given, forty years before, abundant testimonies of

their activity to serve him. That rebellion is, in more respects than

one, disgraceful to the British government; but it furnished an

opportunity for a wise measure to prevent its recurrence, and to break

down in some degree the aristocratical ascendancy, by abolishing the

hereditary jurisdictions which, according to the genius of the feudal

system, were exercised by territorial proprietors under royal charter

or prescription. Much however still remains to be done, in order to

place that now wealthy and well-instructed people on a footing with

the English, as to the just participation of political liberty; but

what would best conform to the spirit of the act of union might

possibly sometimes contravene its letter.

FOOTNOTES:

[418] Chalmers's _Caledonia_, vol. i. _passim_.

[419] _Id._ 500 _et post_; Dalrymple's _Annals of Scotland_, 28, 30,

etc.

[420] Chalmers, 741; Wight's _Law of Election in Scotland_, 28.

[421] _Id._ 25; Dalrymple's _Annals_, i. 139, 235, 283; ii. 55, 116;

Chalmers, 743. Wight thinks they might perhaps only have had a voice

in the imposition of taxes.

[422] Dalrymple, ii. 241; Wight, 26.

[423] Statutes of Scotland, 1427; Pinkerton's _History of Scotland_,

i. 120; Wight, 30.

[424] Dalrymple, ii. 261; Stuart on _Public Law of Scotland_, 344;

Robertson's _History of Scotland_, i. 84.

[425] Wight, 62, 65.

[426] _Id._ 69.

[427] Pinkerton, i. 373.

[428] _Id._ 360.

[429] _Id._ 372.

[430] Pinkerton, ii. 53.

[431] In a statute of James II. (1440) "the three estates conclude

_that it is speedful_ that our sovereign lord the king ride throughout

the realm incontinent as shall be seen to the council where any

rebellion, slaughter, burning, robbery, outrage, or theft has

happened," etc. Statutes of Scotland, ii. 32. Pinkerton (i. 192),

leaving out the words in italics, has argued on false premises. "In

this singular decree we find the legislative body regarding the king

in the modern light of a chief magistrate, bound equally with the

meanest subject to obedience to the laws," etc. It is evident that the

estates spoke in this instance as counsellors, not as legislators.

This is merely an oversight of a very well-informed historian, who is

by no means in the trammels of any political theory.

A remarkable expression, however, is found in a statute of the same

king, in 1450; which enacts that any man rising in war against the

king, or receiving such as have committed treason, or holding houses

against the king, or assaulting castles or places where the king's

power shall happen to be, _without the consent of the three estates_,

shall be punished as a traitor. Pinkerton i. 213. I am inclined to

think that the legislators had in view the possible recurrence of what

had very lately happened, that an ambitious cabal might get the king's

person into their power. The peculiar circumstances of Scotland are to

be taken into account when we consider these statutes, which are not

to be looked at as mere insulated texts.

[432] Pinkerton, i. 234.

[433] _Statutes of Scotland_, ii. 177.

[434] Pinkerton, ii. 266.

[435] Pinkerton, ii. 400; Laing, iii. 32.

[436] Kaims's _Law Tracts_; Pinkerton, i. 158 _et alibi_; Stuart on

_Public Law of Scotland_.

[437] Kaims's _Law Tracts_; Pinkerton's _Hist. of Scotland_, i. 117,

237, 388, ii. 313; Robertson, i. 43; Stuart on _Law of Scotland_.

[438] Robertson, i. 149; M'Crie's _Life of Knox_, p. 15. At least one

half of the wealth of Scotland was in the hands of the clergy, chiefly

of a few individuals. _Ibid._

[439] I have read a good deal on this celebrated controversy; but,

where so much is disputed, it is not easy to form an opinion on every

point. But, upon the whole, I think there are only two hypotheses that

can be advanced with any colour of reason. The first is, that the

murder of Darnley was projected by Bothwell, Maitland, and some

others, without the queen's express knowledge, but with a reliance on

her passion for the former, which would lead her both to shelter him

from punishment, and to raise him to her bed; and that, in both

respects, this expectation was fully realised by a criminal connivance

at the escape of one whom she must believe to have been concerned in

her husband's death, and by a still more infamous marriage with him.

This, it appears to me, is a conclusion that may be drawn by reasoning

on admitted facts, according to the common rules of presumptive

evidence. The second supposition is, that she had given a previous

consent to the assassination. This is rendered probable by several

circumstances, and especially by the famous letters and sonnets, the

genuineness of which has been so warmly disputed. I must confess that

they seem to me authentic, and that Mr. Laing's dissertation on the

murder of Darnley has rendered Mary's innocence, even as to

participation in that crime, an untenable proposition. No one of any

weight, I believe, has asserted it since his time except Dr. Lingard,

who manages the evidence with his usual adroitness, but by admitting

the general authenticity of the letters, qualified by a mere

conjecture of interpolations, has given up what his predecessors

deemed the very key of the citadel.

I shall dismiss a subject so foreign to my purpose, with remarking a

fallacy which affects almost the whole argument of Mary's most

strenuous advocates. They seem to fancy that, if the Earls of Murray

and Morton, and Secretary Maitland of Lethington, can be proved to

have been concerned in Darnley's murder, the queen herself is at once

absolved. But it is generally agreed that Maitland was one of those

who conspired with Bothwell for this purpose; and Morton, if he were

not absolutely consenting, was by his own acknowledgment at his

execution apprised of the conspiracy. With respect to Murray indeed

there is not a shadow of evidence, nor had he any probable motive to

second Bothwell's schemes; but, even if his participation were

presumed, it would not alter in the slightest degree the proofs as to

the queen.

[440] Spottiswood's _Church History_, 152; M'Crie's _Life of Knox_,

ii. 6; _Life of Melville_, i. 143; Robertson's _History of Scotland_;

Cook's _History of the Reformation in Scotland_. These three modern

writers leave, apparently, little to require as to this important

period of history; the first with an intenseness of sympathy that

enhances our interest, though it may not always command our

approbation; the two last with a cooler and more philosophical

impartiality.

[441] M'Crie's _Life of Knox_, ii. 197 _et alibi_; Cook, iii. 308.

According to Robertson, i. 291, the whole revenue of the protestant

church, at least in Mary's reign, was about 24,000 pounds Scots, which

seems almost incredible.

[442] M'Crie's _Life of Melville_, i. 287, 296. It is impossible to

think without respect of this most powerful writer, before whom there

are few living controversialists that would not tremble; but his

presbyterian Hildebrandism is a little remarkable in this age.

[443] M'Crie's _Life of Melville_; Robertson; Spottiswood.

[444] Spottiswood; Robertson; M'Crie.

[445] M'Crie's _Life of Melville_, ii. 378; Laing's _History of

Scotland_, iii. 20, 35, 42, 62.

[446] Laing, 74, 89.

[447] Wight, 69 _et post_.

[448] _Statutes of Scotland_, vol. ii. p. 8; Pinkerton, i. 115; Laing,

iii. 117.

[449] Laing, _ibid._

[450] Arnot's _Criminal Trials_, p. 122.

[451] The Gowrie conspiracy is well known to be one of the most

difficult problems in history. Arnot has given a very good account of

it (p. 20), and shown its truth, which could not reasonably be

questioned, whatever motive we may assign for it. He has laid stress

on Logan's letters, which appear to have been unaccountably slighted

by some writers. I have long had a suspicion, founded on these

letters, that the Earl of Bothwell, a daring man of desperate

fortunes, was in some manner concerned in the plot, of which the Earl

of Gowrie and his brother were the instruments.

[452] Arnot's _Criminal Trials_, p. 70.

[453] Arnot, pp. 67, 329; _State Trials_, ii. 884. The prisoner was

told that he was not charged for saying mass, nor for seducing the

people to popery, nor for anything that concerned his conscience; but

for declining the king's authority, and maintaining treasonable

opinions, as the statutes libelled on made it treason not to answer

the king or his council in any matter which should be demanded.

It was one of the most monstrous iniquities of a monstrous

jurisprudence, the Scots criminal law, to debar a prisoner from any

defence inconsistent with the indictment; that is, he might deny a

fact, but was not permitted to assert that, being true, it did not

warrant the conclusion of guilt. Arnot, 354.

[454] Laing, iv. 20; Kirkton, p. 141. "Whoso shall compare," he says,

"this set of bishops with the old bishops established in the year

1612, shall find that these were but a sort of pigmies compared with

our new bishops."

[455] Laing, iv. 32. Kirkton says 300. P. 149. These were what were

called the young ministers, those who had entered the church since

1649. They might have kept their cures by acknowledging the authority

of bishops.

[456] Laing, iv. 116.

[457] _Life of James II._, i. 710.

[458] _Cloud of Witnesses_, passim; De Foe's _Hist. of Church of

Scotland_; Kirkton; Laing; Scott's notes in _Minstrelsy of Scottish

Border_, etc., etc.

[459] The practice observed in summoning or dissolving the great

national assembly of the church of Scotland, which, according to the

presbyterian theory, can only be done by its own authority, is rather

amusing. "The moderator dissolves the assembly in the name of the Lord

Jesus Christ, the head of the church; and, by the same authority,

appoints another to meet on a certain day of the ensuing year. The

lord high commissioner then dissolves the assembly in the name of the

king, and appoints another to meet on the same day." Arnot's _Hist. of

Edinburgh_, p. 269. I am inclined to suspect, but with no very certain

recollection of what I have been told, that Arnot has misplaced the

order in which this is done, and that the lord commissioner is the

first to speak. In the course of debate, however, no regard is paid to

him, all speeches being addressed to the moderator.

[460] The king's instructions by no means warrant the execution,

especially with all its circumstances of cruelty, but they contain one

unfortunate sentence: "If Maclean [sic], of Glencoe, and that tribe

can be well separated from the rest, it will be a proper vindication

of the public justice to extirpate that seat of thieves." This was

written, it is to be remembered, while they were exposed to the

penalties of the law for the rebellion. But the massacre would never

have been perpetrated, if Lord Breadalbane and the master of Stair,

two of the worst men in Scotland, had not used the foulest arts to

effect it. It is an apparent great reproach to the government of

William, that they escaped with impunity; but political necessity

bears down justice and honour. Laing, iv. 246; Carstares' _State

Papers_.

[461] Those who took the oaths were allowed to continue in their

churches without compliance with the presbyterian discipline, and many

more who not only refused the oaths but prayed openly for James and

his family. Carstares, p. 40. But in 1693 an act for settling the

peace and quiet of the church ordains, that no person be admitted or

continued to be a minister or preacher unless he have taken the oath

of allegiance, and subscribed the assurance that he held the king to

be _de facto et de jure_, and also the confession of faith; and that

he owns and acknowledges presbyterian church-government to be the only

government of this church, and that he will submit thereto and concur

therewith, and will never endeavour, directly or indirectly, the

prejudice or subversion thereof. _Id._ 715; Laing, iv. 255.

This act seems not to have been strictly insisted upon; and the

episcopal clergy, though their advocates did not forget to raise a cry

of persecution, which was believed in England, are said to have been

treated with singular favour. De Foe challenges them to show any one

minister that ever was deposed for not acknowledging the church, if at

the same time he offered to acknowledge the government and take the

oaths; and says they have been often challenged on this head. _Hist.

of Church of Scotland_, p. 319. In fact, a statute was passed in 1695,

which confirmed all ministers who would qualify themselves by taking

the oaths: and no less than 116 (according to Laing, iv. 259) did so

continue; nay, De Foe reckons 165 at the time of the union. P. 320.

The rigid presbyterians inveighed against any toleration, as much as

they did against the king's authority over their own church. But the

government paid little attention to their bigotry; besides the

above-mentioned episcopal clergymen, those who seceded from the

church, though universally jacobites, and most dangerously so, were

indulged with meeting-houses in all towns; and by an act of the queen

(10 Anne, c. 7) obtained a full toleration, on condition of praying

for the royal family, with which they never complied. It was thought

necessary to put them under some fresh restrictions in 1748, their

zeal for the Pretender being notorious and universal, by an act 21

Geo. II., c. 34; which has very properly been repealed after the

motive for it had wholly ceased, and even at first was hardly

reconcilable with the general principles of religious liberty; though

it ill becomes those to censure it who vindicate the penal laws of

Elizabeth against popery.

[462] Archbishop Tenison said, in the debates on the union, he thought

the narrow notions of all churches had been their ruin, and that he

believed the church of Scotland to be as true a protestant church as

the church of England, though he could not say it was as perfect.

Carstares, 759. This sort of language was encouraging; but the

exclusive doctrine, or _jus divinum_, was sure to retain many

advocates, and has always done so. Fortunately for Great Britain, it

has not had the slightest effect on the laity in modern times.