Part 10

[18] The evidence upon which the theory of popular representation is based is as vague as the theory itself. Eadmer (_Hist. Nov._ p. 97, Lond. 1623; cf. also p. 134) tells us of an election, in 1107, of a bishop of St. Andrews "by Alexander, king of Scotland, the clergy, and the people." The Book of Scone (_Liber de Scon._ p. 1) describes the re-foundation of the abbey in 1114-15 by King Alexander. It is confirmed by his wife and nephew, several bishops, and a number of nobles, "consilio proborum hominum." Ten years later, at the foundation of the abbey of Dunfermline (_Registrum de Dunfermelyn_, p. 3; cf. also the Charters of Holyrood), we find a phrase employed to which some importance has been attached. Bishops and nobles confirm as usual, but with the acquiescence of the people and clergy. The form "clero etiam acquiescente et populo" is of frequent occurrence. The phrase "all the community of the kingryk" has been treated in the text. The similar phrases "probi homines" and "clero acquiescente et populo" are simply common technical terms belonging to the Chancery imitated by the Scottish scribe. The latter does not even imply consultation, and the former means the smaller tenants-in-chief. In the _Laws of the Burghs_ we find it used for the leading men--the _optimates_--of the town. It is not a popular term at all. On the other hand, too, we have councils described in quite different terms. In 1174 William the Lion held a council at Stirling, and asked an aid from his "optimates" (Fordun, viii. 73). In 1190 the "prelati et proceres" of Scotland gave the king 10,000 marks (Fordun, viii. 62). On the death of Alexander III the guardians describe themselves as "de communi consilio constituti" (_Hist. Doc. relating to Scotland_, i. 95), while Rishanger tells how "omnes Scoti" chose Wallace. The change in the political circumstances is sufficient to account for whatever importance may be attached to the words. It is true that Fordun, speaking of the same period, frequently uses the word Estates ("communitates"). But Fordun was not a contemporary, and the word had acquired a technical meaning by his time. Moreover, he uses the word very loosely. Sometimes he intends by it the land itself, as when he tells us how the English ravaged it.

[19] _Acts of the Parliament of Scotland_, i. 371, &c.

[20] _Ibid._ i. 377. The use of the word "community" appealed more strongly than anything else to the older historians.

[21] Cf. _Ancient Laws of the Burghs of Scotland_ (Burgh Record Soc.).

[22] So important was their meeting that when Edward I of England held a parliament at Newcastle in 1292, and some question arose regarding their privileges, the four burghs were consulted, and the decision was made in conformity with their laws and customs (_Rot. Parl._, i. 107).

[23] Fordun, viii. I.

[24] _Thoughts on the Origin of Feudal Tenures and the Descent of Ancient Peerages in Scotland_, by George Wallace, 1783.

[25] _E.g._ Wigton in 1342, and Sutherland in 1347.

[26] Wallace, _op. cit._, p. 163.

[27] Wallace, _op. cit._, p. 192, &c.

[28] Robertson, _Hist. of Scotland_, App. iv. The claim is not based upon any constitutional right or theory. It is stated as a matter founded on common sense, and the efficacy of the petition lay in the support of those who had special reasons for desiring the presence of the smaller barons. The language of Randolph's letter shows how far the strictly legal position was from being understood.

[29] _Foreign Calendar_, 19th Aug., 1560; Laing, _Knox_, vi. 116.

[30] Cf. Innes, _Legal Antiquities_, p. 116.

[31] _Charters of the Burgh of Aberdeen_, ed. P. J. Anderson; also in the Spalding Club edition of Gordon's _Description of Aberdeen_.

[32] Innes, _op. cit._, p. 116.

[33] _Acts_, vol. i. References to acts when no authority is quoted are always from the volumes of _Acts of the Parliaments of Scotland_.

[34] _Acts_, i. 492. We have no reason for supposing that "proceres" included burgesses, as it is generally used in contradistinction to them.

[35] "Plebanos, qui ad parliamentum non erunt, nec voluerint promittere interesse ibidem."

[36] Although the burgesses had thus successfully asserted their right to a place in Parliament, the theory was not at once extended to the meetings known as conventions, which could impose taxes, and possessed every parliamentary power except that of passing general laws. In 1503 an act was passed, ordering that "commissioners and head men of burghs be warned" to attend conventions; but it had to be re-enacted in 1563, and even after that date it was not completely operative. Between 1566 (the first date of their recorded presence) and the end of the sixteenth century burgesses were present at only half of the conventions which were held. It is important to note that the royal burghs alone had parliamentary representation up to the year 1832.

[37] We have no evidence that the Court of the Four Burghs was in any sense strictly representative.

[38] The possible objection that a similar theory of burghal representation has been stated and rejected by English constitutional historians is scarcely applicable. For it is agreed that the idea of representation existed in England before the towns were summoned to Parliament, while in Scotland no such idea is traceable, nor are there any writs such as were issued for the English towns. It might even be argued that, in strict theory, there was no representation in Scotland till 1832; that commissioners both from shires and burghs only saved their fellows the trouble of attendance, the right to attend being, not _de facto_ but in ultimate theory, possessed by all who were entitled to vote. Such a statement is certainly true of the shire, at all events.

[39] The chief officers of state were the lord chancellor, the lord high treasurer, and the lord privy seal, who took precedence of all the nobility; the secretary, the clerk of register, the king's advocate, the treasurer's deputy, and the lord justice clerk.

[40] They were excluded from 1640 to 1662.

[41] _Acts_, i. 491. The use of the term in connection with the coronation of Alexander II in 1214 (_Acts_, i. 67) is explained by its being simply a quotation from Fordun (ix. 1).

[42] Cf. _supra_, pp. 21-25.

[43] Cf. _supra_, pp. 25-26.

[44] Cf. _supra_, pp. 18-19.

[45] Vide _supra_, p. 24.

[46] Laing, _Knox_, ii. 87.

[47] Speech at Whitehall, 31st March, 1607.

[48] The right of prorogation is tacitly assumed by the king in this speech. It was the cause of a dispute in the troublous times which followed 1638. The Parliament of 1640 protested that "Johne, Erle of Traquair, his Majestie's Commissioner, did take upon him without consent of the Estates, upon a private warrand, procured by himself, against his Majestie's publict patent, under the great seall," to prorogue Parliament. They therefore continued to sit, and took up stronger ground, viz. that prorogation without consent of Parliament was "against the lawes and libertie of the kingdom, ... without precedent, example, and practice." The language is clearly taken from the contemporary protests of the English Commons, and it cannot be regarded as more than a political weapon, borrowed for this occasion from the English constitutional armoury. It in no way corresponds with the general state of feeling in Scotland. In 1661 the Estates resolved that "the King hath sole power to call and prorogue Parliaments." Both resolutions were recognitions of fact, not of theory. At various times, from 1398 onwards, acts were passed that Parliament should meet once a year. These were probably connected with the judicial powers of the Estates. In point of fact, they were dead letters.

[49] Convocatis tribus communitatibus Regni ... certi personae electi fuerunt per easdem ad parliamentum tenendum, data aliis causa autumpni licencia ad propria redeundi.

[50] De concessu et confirmatione trium communitatum congregatarum, propter importunitatem et caristiam temporis ... electi fuerunt certi personae ad ipsum parliamentum tenendum, data licencia aliis remeandi.

[51] _Acts_, i. 173.

[52] Imitando videlicet ordinem illum et modum qui servabantur in parliamento tento apud Perth tempore venerandae memoriae domini Regis David, anno Regni ipsius quadragesimo [1369], electi fuerunt quidam....

[53] Ad tractandum et deliberandum super certis specialibus Regis et Regni negociis, antequam perveniant ad noticiam consilii generalis, licentiatis autem aliis ut recedant.

[54] De consensu et assensu trium communitatum per presidentes sive per personas electas ad determinationem negociorum in parliamento eodem.

[55] Primo et principaliter, iuxta predictos modum et ordinem, est ordinatum quod nullus electus ad consilium cuiuscunque conditionis gradus pre-eminentiae sive status alium non electum ad consilium seu in consilio Regis sibi consiliarium vel assessorem aut alia de causa adducat.

[56] "Comparentibus tribus Regni statibus apud Edinburgh, omnes comites nobiles et barones ac libere tenentes dicti regni...." The omission of the burgesses seems to have attracted the attention of Sir John Skene, who in his edited volume of the _Acts_ (temp. Jac. VI) includes the formal revocation in the proceedings of the Parliament of 1437-38, and prints, instead of the somewhat less emphatic words of the original, a statement that the revocation was sanctioned by "the haill three Estates of the Realme, sittand in plane Parliament, that is to say, the Clergie, Barrones, and Commissioners of Burrowes."

[57] In 1445, three burgesses, along with fifteen of the clergy and barons, attest the erection of the lordship of Hamilton; but there is no further evidence of their being present or taking any part in the parliament of that year.

[58] From 1467 to 1482 the numbers of the Lords of the Articles were from three to five representatives of each Estate. During the struggles which marked the end of the reign of James III, and before his son had succeeded in asserting the royal power, we find burgesses forming a very small proportion of the Committee of the Articles. The numbers are instructive:

YEAR CLERGY BARONS BURGESSES

1483 6 6 4 (_Acts_, ii. 145.) 1485 6 6 3 (_Acts_, ii. 169.) 1488 9 14 5 (_Acts_, ii. 200.) 1489 8 10 4 (_Acts_, ii. 217.) 1491 10 10 3 (_Acts_, ii. 229.)

On the other hand in 1503, under the strong rule of James IV, six clergy, six barons, and seven burgesses were chosen (_Acts_, ii. 239).

[59] The final form assumed by the Courts of the Four Burghs and the Hanse Burghs.

[60] It was next employed in 1581.

[61] Randolph to Cecil, 3rd June, 1563, _Foreign Calendar, Elizabeth_.

[62] Proclamation of James VI, July 1578.

[63] _Acts_, ii. 289.

[64] Robertson, app. iv. This is the only evidence that we possess to show that the burgesses chose their own representatives.

[65] In the speech quoted _supra_, pp. 38-39, King James ignores the Lords of the Articles altogether.

[66] _Miscellany of the Maitland Club_, iii. 112-18.

[67] Afterwards the first earl of Haddington.

[68] "Humble Supplication of a great number of the Nobility and other Commissioners in the late Parliament," _State Trials_, iii. 604. Cf. also Row, _History of the Church of Scotland_, pp. 365-66 (Wodrow Soc.).

[69] _History_, vi. 87.

[70] The numbers of the Lords of the Articles varied considerably. In 1587 it was fixed at any number varying from six to ten from each Estate, and this may be taken as fairly representative of their number throughout, though in early times it is somewhat smaller. Cf. _supra_, p. 48, n.

[71] The title of "Lord" was early assumed by the president and senators of the College of Justice. The title was prefixed to the surname of the judge, if he did not take a territorial designation. An attempt was made by the wives of the early senators to adopt the corresponding title "Lady," but, according to tradition, their ambition received a check from King James, who remarked: "I made the carls lords, but wha made the carlines ladies?"

[72] The befurred and bedecked gowns and hoods of every Estate are minutely described in an act of 1455.

[73] Innes, _op. cit._, pp. 152-53.

[74] One spectator of the scene remained cold and indifferent. John Knox protested against "such stinking pride of women," and feared that the "targetting of their taillies" (bordering of their robes with tassels) would "provock Goddis vengeance, not onlie against those foolish women, but against the haill Realme" (Laing, _Knox_, ii. 381).

[75] _Register of the Privy Council_, 1600.

[76] Parliament sat, almost invariably, in Edinburgh, from the beginning of the seventeenth century.

[77] The law of treason is stated in book iv of the transcript of Glanvill's _De Legibus Angliae_, entitled "Regiam Maiestatem," and it should be compared with the acts against "Leasing-making" which were published from time to time.

[78] There are two accounts, in the _Acts_, of the appointment of this Committee. In one place, they are elected to treat of certain special business (super certis specialibus Regis et Regni negociis--_Acts_, i. 173), and, in another, of secret business (super certis et specialibus et secretis ... negociis--_Acts_, i. pp. 507, 508). The lists of members are identical, and only one Committee is intended.

[79] "In secreta camera domini Regis--in suo secreto concilio."--_Acts_, i. p. 546.

[80] "In camera sui parliamenti in publico."--_Ibid._

[81] There seem, indeed, to have frequently been two royal councils apart from Parliament, and to the smaller and more carefully selected of these the title of "Secret Council" is applied. At other times, there is evidence of only one advisory council apart from the Estates.

[82] Privy Council Register, vol. i, introd. p. xi.

[83] Cf. p. 56.

[84] Cf. p. 56.

[85] _Acts_, ii. p. 241.

[86] _Ibid._, ii. pp. 215, 220.

[87] _Original Cronykil of Scotland_, book viii, c. 46.

[88] The control of taxation was maintained by Parliament, and the king was informed that the grants were to be used for special purposes. No general statement was made which could be construed into a definite claim of the right of appropriation of supplies. The "Parliament" merely used for a particular purpose the power which at that moment it chanced to possess. It is the absence of any assertion of or struggle for constitutional principle that is ultimately decisive against the "constitutional" theory. When, as here, the nobles had the power, they said they would do certain things, and they did them. But there is no conscious effort, traceable from generation to generation, such as we find in English history.

[89] Cf. John Riddell, _Stewartiana_, Edinburgh, 1843.

[90] Tytler, _History of Scotland_, iii. 26.

[91] Burton, _History of Scotland_, ii. 351.

[92] Burton, _History of Scotland_, ii. 373.

[93] A declaration was made to Parliament regarding Rothesay's death, in answer to rumours against Albany. But this was merely a formal protest of innocence made to a semi-judicial body.

[94] It may be remarked that the Act does not say that "in all time coming" a king or a regent is to be responsible, although it endows Rothesay with all the powers of a king. It was passed solely with reference to the immediate circumstances.

[95] Acts against "baratry"--_i.e._ the purchase of benefices at Rome.

[96] The king's interest in the maintenance of justice is illustrated by Fordun's well-known story that, on his return to Scotland, when he found the misery caused by the incompetence and negligence of the second Albany, he vowed to devote his life to the restoration of order: "Si Deus mihi vitam dederit, ipso auxiliante, et vitam saltem mihi caninam praestante, faciam per universum regnum clavem castrum, et dumetum vaccam, absque possessoris ambiguo ad modum custodire" (_Scotichronicon_, xv. 34).

[97] King James VI, _Basilikon Doron_, Book ii.

[98] The picture of Graham, the king's murderer, as an outraged exponent of constitutionalism is a pious imagination.

[99] This has been viewed as a serious constitutional claim (_e.g._ Ridpath, _op. cit._, p. 4), and it illustrates the type of error on which the "constitutional" theory has thriven.

[100] Edition of 1778, p. 24.

[101] _Basilikon Doron_, Book ii.

[102] There is no evidence that the Estates knew anything about this war.

[103] The only incident that tells for the "constitutional" interpretation is the refusal of the Lords of the Articles to allow the king to aid Louis XI of France in 1473. But the action of the Estates was simply the action of the chancellor, Evandale, and his party, who ruled the king with a rod of iron. It is very likely that there was, especially among the clergy, a strong general feeling against going to war, and this feeling strengthened the king's jailers. But the opposition of a small ruling clique of nobles to the whim of a powerless monarch is scarcely to be regarded as a great constitutional fact. It must also be remembered that the few who constituted the Lords of the Articles were virtually the Estates.

[104] William Elphinstone.

[105] _History of Greater Britain_, p. 352 (Scottish Hist. Soc. ed.).

[106] Pedro de Ayala to Ferdinand and Isabella, 25 July 1498 (_Spanish Calendar_, i. no. 210). The context shows that the remark was incidental, and was induced by an allusion by the ambassador to the king's behaviour in battle.

[107] _Lives of the Bishops of Aberdeen_, pp. 102-5 (New Spalding Club ed.).

[108] The burgesses and "a parte of the nobilitie" had petitioned for the act (Laing, _Knox_, i. 100).

[109] In 1558, indeed, before the outbreak of hostilities, the Lords of the Congregation asked the queen-regent to abrogate the acts against heresy, and Mary made the pretext of her refusal the difficulty of obtaining the consent of the prelates (Spottiswood, _History of the Church of Scotland_, sub anno 1558).

[110] Laing, _Knox_, ii. 87.

[111] For other important points in connection with this Parliament, cf. _supra_, pp. 24-5.

[112] _Autobiography and Diary of Mr. James Melville_, p. 370 (Wodrow Society). The year is 1596.

[113] _The Book of the Universall Kirk of Scotland_, i. 329, 362, &c. (Maitland Club).

[114] _Ibid._ i. 59.

[115] _Ibid._ i. 506.

[116] _The Book of the Universall Kirk of Scotland_, passim.

[117] "We farther give over in the hands and power of the devill the said N., to the destruction of his flesh; straitlie charging all that professe the Lord Jesus, to whose knowledge this our sentence sall come, to repute and hold the said N. accursed, and unworthie of the familiar societie of Christians; declaring unto all men that suche as hereafter, before his repentance, sall haunt or familiarlie accompanie him, are partakers of his impietie and subject to the like condemnation."--Sentence of excommunication in the _First Book of Discipline_.

[118] Calderwood, _Historie of the Kirk of Scotland_, v. 341-2 (Wodrow Society).

[119] _Ibid_. pp. 396-7.

[120] Cf. _Presbytery Examined: an Essay on the Ecclesiastical History of Scotland since the Reformation_, by the late Duke of Argyll; and the various books on Scottish Church history.

[121] The same Parliament asked the council to bring forward its evidence against Mary. If we knew all that lay behind this motion, we should probably possess a key to the problems on which so much ingenuity has been exercised. The statement, frequently quoted, that the Estates passed a solemn resolution affirming their power to depose the sovereign rests solely on the authority of Buchanan, and is directly antagonistic to the language both of the _Acts_ and of the Scottish commissioners' protestations at York and Westminster, in which Mary is represented as abdicating of her own free will.

[122] Speech at Whitehall, 31st March, 1607.

[123] "A Perfect Description of the People and Country of Scotland," printed in the _Abbotsford Miscellany_.

[124] "Answer to the 'Perfect Description'," _Ibid._

[125] Hacket, _Scrinia Reserata_.

[126] Letter of the Estates to the Assembly, 17th July, 1641 (_Acts_, v. 625).

[127] Some Brieffe Memorialls and Passages of Church and State from 1641-49 (_Historical Works of Sir James Balfour_, vol. iii.).

[128] Cf. _Scotland and the Commonwealth_, ed. Firth (Scottish Hist. Soc.).

[129] _Principal Baillie's Letters and Journals_, iii. 225-26, ed. Laing.

[130] _The Government of Scotland during the Commonwealth_ (_Acts_, vol. vi, pt. 2). See also Mr. Firth's volumes _Scotland under the Commonwealth_ and _Scotland and the Protectorate_ (Scottish History Society).

[131] Middleton, Appendix, &c., _ut supra_.

[132] _Report on the State and Condition of the Burghs of Scotland_, 1692 (Miscellany of the Scottish Burgh Record Soc.).

[133] The main heads of James's delinquencies were: (1) erecting schools and societies of Jesuits, &c.; (2) making papists great officers of state; (3) enforcing oaths contrary to law; (4) taxation and the maintenance of a standing army without consent of Parliament; (5) the employment of military officers as judges; (6) exorbitant fines; (7) illegal imprisonment; (8) forfeitures by obsolete laws; (9) subversion of rights of royal burghs; (10) interference with justice.

[134] In spite of the irritating interferences which provoked the indignant rhetoric of Fletcher of Saltoun, and these had reference mainly to peace and war, the maintenance of an army, and places and pensions.

[135] Party names here for the first time in strictly parliamentary history. The Resolutioners and Protestors of 1649 were religious divisions.

[136] Cf. the present writer's Map of the Parliamentary Representation of Scotland, in Mr. R. L. Poole's _Historical Atlas_. (No. XXVIII.)

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Transcriber's note:

Typographical errors were corrected without note.

A Table of Contents was added by the transcriber.