CHAPTER XVII.

ON THE CONSTITUTION OF SCOTLAND.

§ 1. Early State of Scotland. Introduction of Feudal System. § 2. Scots Parliament. 3. Power of the Aristocracy. 4. Royal Influence in Parliament. 5. Judicial Power. Court of Session. 6. Reformation. 7. Power of the Presbyterian Clergy. Their Attempts at Independence on the State. Andrew Melville. § 8. Success of James VI. in restraining them. 9. Establishment of Episcopacy. 10. Innovations of Charles I. § 11. Arbitrary Government. § 12. Civil War. 13. TyranLical Government of Charles II. § 14. Reign of James VII. 15. Revolution and Establishment of Presbytery. 16. Reign of William III. 17. Act of Security. Union. Gradual Decline of Jacobitism.

§ 1. It is not very profitable to inquire 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. Her institutions were wholly Celtic until that era, and greatly similar to those of Ireland. 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.

§ 2. 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

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POWER OF THE ARISTOCRACY.

CHAP. XVII. homines) of the land; meaning doubtless the inferior tenants in capite. 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. In the ensuing reign of David II., the three estates of the realm are expressly mentioned as the legislative advisers of the

crown.

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. 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.

§ 3. 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. 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. 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.

It is said that a Scots parliament, about the middle of the fifteenth century, consisted of near 190 persons. 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. 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. 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 headmen 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." This, however, is an express recognition of their right, though it might have been set aside by an irregular exercise of power.

§ 4. 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. 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 opera

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CHAP. XVII. tion 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 jurisdictions, 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; all these together 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. 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. 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. 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.

§ 5. 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 repledge (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 cognizance 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. This appellant jurisdiction of parliament, as well as that of the king's privy council, which was original, came, by a