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.