Part 2

The conclusions here stated with regard to the Scottish Parliament are, however, not entirely negative. The work of the Estates has left some positive and definite results of more than incidental character. The long series of administrative enactments, dealing mainly with police methods and with trade, helped the rise and growth of the Scottish burghs, and, even outside the burghs, they added something to the forces that made for peace and good order. There are occasional measures which found a lasting influence upon the character of the people. The Education Act of 1496, which provided that "all barons and freeholders that are of substance put their eldest sons and heirs to the schools, fra they be aught or nine years of age, to remain at the grammar schools until they be competently founded and have perfect Latin, and thereafter to remain at the schools of art and jure (_i.e._ the universities), so that they may have knowledge of the laws," forms a fitting conclusion to a century in which the spirit of poetry had deserted England for her northern neighbour, and in which the successors of Chaucer are to be found beyond the Tweed. It was not obeyed in the letter (although we do find the barons of the sixteenth century possessed of clerkly skill), but its influence may be traced in the provision for education made at the Reformation. Even when the definite results were less clearly marked, the existence, in the statute book, of words and phrases to which a constitutional meaning might conceivably be attached (like the existence of parliamentary institutions themselves), served as a rallying cry for men who desired reform, and gave to what was really a new demand the advantage of ancient tradition. As we proceed, we shall note some instances of this. The greatest and most lasting effect of the Scottish Parliament is, however, the judicial system of the country. Alone among European countries, Scotland still possesses a judicature which is the direct descendant of a Committee of the Estates. The College of Justice, which, in its present form, was established in the year 1540, ultimately derives its powers from the Scottish Parliament, which, in 1370, first appointed a small committee to deal with its judicial work. The system of Scots law, which the Senators of the College of Justice are appointed to administer, is, in so far as it differs from the law of England, the product, direct or indirect, of the wisdom of the Scottish Estates, working on the material supplied by the civil and the canon law. In the thirteenth century, the law of Scotland, which had supplanted the ancient customs of the Picts and Scots, was largely based on English law. The Saxon and Norman influences, which had altered the Scottish Church and the Scottish language, had introduced into Scotland many of the leading features of Anglo-Norman law. "It seems clear enough," says Professor Maitland,[6] "that, at the outbreak of the War of Independence, the law of Scotland, or of southern Scotland, was closely akin to English law. That it had been less Romanized than English law had been is highly probable: no Bracton had set it in order.... Romanism must come sooner or later; the later it comes the stronger it will be, for it will have gone half-way to meet the mediæval facts." We find, accordingly, that, later and stronger, the Roman law did come. After the War of Independence, Scottish lawyers borrowed little from England, and, gradually, important differences began to emerge. Mr. Hill Burton has pointed out that the statement, frequently made, that the civil law is part of the law of Scotland, "can only be true of those portions which have from time to time been incorporated with it." The selection of these portions and their local adaptation formed part of the work of the Judicial Committee of the Estates. No attempt was made to codify Scots law for forty years after the Judicial Committee had been constituted as the Court of Session, but, in 1574, a commission was appointed to investigate into the condition of the law and to report on what they considered "meet and convenient to be statute."[7] The source of such additions as those made in accordance with this enactment was the Roman law, and the result has been to produce many discrepancies between Scots and English judicial institutions. The distinction between law and equity, for example, so important in England, is unknown to Scots law, for there never arose in Scotland a separate series of courts to administer a common law differing from the Roman civil law. The fact that the College of Justice was, in theory, a Committee of the Estates, has produced some interesting results. The idea of appeal was unknown in Scotland, or almost so. The records of the Privy Council show that the acts of the Court of Session were sometimes rendered null and void by the Council,[8] but the Council in no way exercised an appellate jurisdiction. In the reign of Charles II, an attempt was made to create the Estates into a Court of Appeal from the College of Justice, and it failed, for the technical and historical reason that the Parliament had already delegated its powers to the Senators. At the Revolution, the Claim of Right demanded the introduction of some process of appeal, but the Union negotiations did not deal with the question, and when, about 1711, in a case between the Presbytery of Edinburgh and an episcopal clergyman, the House of Lords heard an appeal from the Court of Session, they afforded the first instance of an appellate jurisdiction in Scottish causes. It is another consequence of the parliamentary origin of the Courts of Law that the High Court of Justiciary still possesses authority "competently to punish (with the exception of life and limb) every act which is obviously of a criminal nature, though it be such which in times past has never been the subject of prosecution."[9] The English courts have no such powers of "declaring" a crime.

There are also such familiar technical differences as those relating to Conveyancing and the Law of Purchase, and such divergencies from English custom as the number of a Scottish jury, and its power to bring in a verdict which is not unanimous, or the judgment of "Not Proven," which is unknown to English law. But beyond all such debatable issues, there are many important respects in which the law of Scotland is more considerate of the rights of the weak than is the law of England. In questions relating to movable succession, for example, widows and children are protected from the eccentricities of death-bed piety; in cases of legitimacy and marriage the weak can claim privileges refused to them by English law; and with regard to divorce, the rights of husband and wife are equal. The principles of Scots law which protect the lease-holder and the tenant against the caprice of the landlord can be traced to an Act of the Scottish Parliament as far back as 1449. If the general tendency of the Romanization of Scots law has been to render it less harsh, it forms an interesting contrast to the Romanization of German law, which met with strenuous opposition, and which increased the severity of German municipal legislation.

If the production of a legal system forms but a small _apologia_ for a Parliament which existed for several centuries, it nevertheless entitles the Scottish Estates to be reckoned among the forces which have made the nation; and it is legitimate cause of satisfaction that, in spite of all the forces of misgovernment which held sway for so long, the peculiarity of the law of Scotland is its regard for the poor and the weak. If Scottish parliamentary institutions never produced the complacent Whiggism of the triumphant middle class of England, it certainly produced many worse things, and it is pleasant to find some few that are better.

THE SCOTTISH PARLIAMENT

BEFORE

THE UNION OF THE CROWNS

"In Sterling, the king being convoyit to the parliament hous, and set at the burde, be fortune he espyit a hole in the burde-cloth; so that, as young childer are alwayis unconstant and restles, he preissit to attene to the hole with his finger, and askit of a lord wha sat nar by him to know what hous that was; and he answerit that it was the parliament hous. 'Then', said the king, 'this parliament hes a hole into it.' Whether God inspyrit the babe then with prophecie at that tyme or not, I will not dispute."[10]

The chronicler wrote of the year 1571; but there are on record few meetings of the Scottish Parliament at which the "prophecie" might not with propriety have been made. "This parliament" throughout nearly all its history "hes a hole into it." The ruler of Scotland might be the king; the supreme power might be in the hands of this or that noble or of this or that combination of nobles; or it might belong to the General Assembly of the Church: but rarely indeed was the country governed or guided by the Estates.

The people of Scotland have ever had a wholesome horror of works of supererogation. The Parliament did not meet to rule the country, but it did meet nevertheless, and those who summoned it had a definite purpose in view. What that purpose was may be best understood if we take, as an illustration, one small section of Scottish history and note the action of the parliaments that met during these years. The reign of Queen Mary nominally lasted from 1542 to 1567; her actual period of rule commenced with her arrival in Scotland in the summer of 1561, and ended six years later. During these six years, four parliaments were summoned. The first of these met in June 1563. While it transacted some details of business, the main purpose of its meeting was the forfeiture of the Earl of Huntly. But the forfeiture of Huntly was already an accomplished fact, and it gained nothing in reality from the ghastly scene when sentence was pronounced upon the half-embalmed corpse of the rebel lord. A year later Parliament again met, and annulled the sentence of forfeiture which had been pronounced, in 1544, upon the Earl of Lennox. A contemporary inserted in his diary the innocent remark: "In this parliament, thair was nathing done, except the reductioun of the said proces of forfaltoure."[11] But the Earl of Lennox had already been some months in Scotland. In the spring of 1566, a parliament was summoned which never met. It was called together to pass sentence of forfeiture upon the Earl of Murray and his accomplices in the "Run-about-Raid," and the murder of Rizzio prevented its assembling. But the insurgent lords had been exiles for nearly a year. Finally, in April 1567, Parliament made certain ratifications of lands--mainly to nobles against whom sentences had been passed by the secret council for their share in the Run-about-Raid and in the Rizzio murder. But all these lords had returned and had for some time been in quiet possession of their estates. The explanation of all these forfeitures and reductions of forfeitures belongs to political history. The student of the constitution will note that the Parliament had no voice in the matter. The Estates were convoked because their sanction gave an unquestionable legality to what had already been done by the executive power, whatever that might be. Their function was that of the official who places the necessary stamp upon an agreement. If the official were to decline to stamp the paper, questions about its lawfulness might arise. But it was just as certain that the three Estates would sanction the forfeiture of Huntly or the return of Lennox as it is to-day that an agreement may be stamped and so made to hold in law.

This is not the view that has appealed to Scottish historians. The late Mr. Hill Burton maintained a position almost the reverse of the thesis we have proposed. But, with all deference to that distinguished scholar, one may be allowed to argue that he wrote with all the prejudices of a Whig of the middle of the nineteenth century. Constitutional progress was, for him, as for other writers on this subject, the only justification of a nation's existence. It did not seem possible that a people could advance worthily, except as England had advanced. This predisposition to find in Scotland an analogy to English parliamentary institutions was encouraged by the occurrence of many words and phrases in the rolls of the Scottish Parliament which seem to the English student quite decisive in favour of a "constitutional" point of view. But the history of institutions cannot be written from their own records. If we possessed, as material for the constitutional history of Scotland, only the "Acts" of the Scottish Parliament, our conclusions would be more radically false than if there remained to us only the narratives of the chroniclers and the more strictly political documents. The "Acts" are written in cipher and we have to find the key. An important part, for example, of the records of the revolutions of 1560 and 1640 is to be found in the volumes which contain the parliamentary proceedings; but, as we shall have occasion to notice, the explanation lies elsewhere. It is a further illustration of our contention, that so few contemporary writers were sufficiently impressed by the Parliament to give any space to the story of its growth. No man knew the powers of his time better than did John Knox; and in Knox's _History of the Reformation in Scotland_ there are very few references to the Scottish Parliament, and only one of these is more than incidental. In this respect, Knox is a fair specimen of early historians. The only exception is George Buchanan, who tells of many meetings of "the Estates, who possess the supreme power in everything."[12] Buchanan's historical reputation is not sufficiently high to lend much importance to his unattested word; and the emphasis which he lays upon the action of Parliament is so unusual that it has led to Father Innes's conjecture that he wrote his "History" in the interests of a republican theory of government.[13] Although Innes had all the prejudices of a Jacobite who lived before Culloden, his scholarship was undoubted, and his accusation is striking testimony to the small place held by Parliament in the pages of Buchanan's predecessors and contemporaries.

An obvious parallel may be drawn between the Scottish Parliament, as we have described it, and the English Parliament under the Houses of York and Tudor. Historians of English constitutional history have frequently pointed out that these sovereigns were, by their use of Parliament, establishing, not their own power, but that of the institution which they regarded as a passive instrument in their hands; that Edward IV and Henry VIII were preparing difficulties for James I and Charles I. The force of this argument, as applied to Scotland, is greatly lessened by the fact that the rulers of Scotland did not regard as essential the consent even of a subservient body of Estates. Parliamentary ratification was, at best, a convenient method of declaring and recording what had been done. But it was no obstacle to an act of the executive that it had not been thus sanctioned. This want of the continuous and normal employment of parliamentary procedure combined with political causes to prevent the appearance of the effect produced in England.

The view that we have stated can, of course, be pressed too far. The mere existence of parliamentary institutions, whatever be their condition at any given time, is in itself a menace to any government not founded on the will of the people. They represent what physicists call "potential energy." It is, moreover, impossible for such institutions not to affect, in some way, the life of the people, and to influence the civilization of the country. There were various times when the Scottish Parliament gave an earnest of what power lay underneath its acquiescence. There were occasions when the rise of a constitutional opposition was even probable; and there are places of which we can definitely say that here or there occurred an event in constitutional progress. But an investigation in the light of political history will, we think, go to establish the general truth of the theory we have adopted. It might be objected, _a priori_, that such a theory does not afford sufficient reason for the continuous existence of the Estates. But in the troubled story of mediæval Scotland we find, readily enough, the explanation at once of the continuous existence of Parliament and of the place that it occupied. It was a strictly feudal society, but it lacked the redeeming features of feudal government. Feudalism as a system of land tenure was complete, and it still remains the basis of Scots law. As a system of government founded upon land tenure, Scottish feudalism was, from one point of view, equally efficient, while, in another aspect, it could scarcely be said to exist. The Scottish baron was also the Scottish chief, and to the power of the oath of allegiance was added the mighty influence of clan loyalty. But outside this feudal hierarchy stood the king. Every land-owner in Scotland held from him, and none regarded him as deserving of more than tolerance. The royal domains were not large enough to enable the Crown to cope with the resources of the greater nobles. The king's best policy was to ally himself with one faction to destroy another, as James II overthrew the great house of Douglas. We cannot speak of any definite coalescence of the nobles against the king. The jealousy of noble house to noble house was always greater than their common dislike of the Crown. So far were they from being able to unite, that a comparatively insignificant family like the Crichtons or the Livingstones were now and again able to place themselves at the head of affairs.

The frequent occurrence of royal minorities was at once a cause and a consequence of this condition of matters. The reigns of the first five kings of the name of James cover, nominally, a period of one hundred and thirty-six years. For fifty-seven years during that time the sovereign was a minor, and two of the five kings met their death at the hands of rebellious subjects. One of them--James III--can scarcely be said to have ruled at all. The weakness of the Crown is the formula of the explanation of which we are in search. That weakness was a consequence, largely, of the action of Edward I of England. The Bruce was occupied with guarding against the enemy, and could not offend the nobles, whose desertion would have been fatal to the cause of Scotland. The War of Independence was the source of the bitter hatred which separated Scotland from England from the fourteenth century to the seventeenth, and disputes with England were directly responsible for the premature death of the second, the fourth, and the fifth James, and for the exile of James I--that is to say, for four out of the six minorities between 1406 and 1560.

It is obvious that, in such circumstances, each of the ever-changing factions who strove for political importance had an object in availing themselves of the advantage of parliamentary and legal sanction. The delegation of work to committees made it certain that the party in power could absolutely rely on having its own way, and the form of law was desirable as legalizing their present action, and as forming some kind of defence, should misfortune overtake them. Similarly the king, when he chanced to be powerful, found in his parliament a most useful instrument for carrying out his wishes. It was, for ruling faction and for powerful king alike, the best method of registering and declaring the will or the policy of the rulers of Scotland for the time being. A parliament, and just this kind of parliament, was always wanted by the government.

An alliance between the Crown, the Church, and the burgesses was, in the circumstances, out of the question. It was rendered so, in the first place, by the constant recurrence of minorities. Any such alliance was impossible between 1437 and 1450; between 1460 and 1488; between 1513 and 1530. Moreover, the bishoprics were often private appanages of noble families,[14] and the burgesses were not desirous, so far as we can judge, of taking any part in political life. At times, the burgh records are full of instructions to the commissioners sent to Parliament. These refer invariably to administrative detail, never to great political questions. The burgesses were left to fight for their liberties alone and unaided. Scotland did not produce, till after the Reformation, a great middle class of country gentlemen. The smaller freeholders, influenced by their strong sense of clan and family loyalty, attached themselves to the great barons. They were, as we shall see, never really represented in Parliament till the reign of James VI, and not till religious questions assumed a position of importance did they find any bond of union with the representatives of the burghs. The growth of English parliamentary liberty is largely due to the coalescence of the knights of the shires with the burgesses, and no such alliance was made in Scotland before the reign of Queen Mary. It was in the General Assembly of the Church that they learned the lesson of combination.

As we have already indicated, the most valuable work of the Parliament is its record as an instrument for the peace of the country. It was a court of justice, and the existing judicature of Scotland is directly traceable to a committee of the Estates. It was also the source of administrative order. Amid all the struggles of contending factions in the interests of which the Estates were summoned, there were always a few--bishops, or permanent officials, or burgesses--who desired to see some acts passed for the peace of the land. The kings, too, were never neglectful of this aspect of the work of Parliament. The great lords had no motive for opposing; it was always sufficiently easy to ignore; and, in point of fact, an overwhelming proportion of the many administrative pronouncements of the Estates dealt with details of burghal life, and largely with seaport commerce. When the Crown was powerful, acts were passed against the misgovernment of the great lords; but we know that they were almost invariably futile, although they offered, at times, a strong offensive weapon against a noble house which was, for the moment, in the minority. In this way they were used alike by king against noble and by clique against clique. In all that we have to say of the subservience of the Estates, this great work of administrative order must not be forgotten; nor is the student of municipal history likely to forget it. Parliament, too, was, if not the originator, the instrument of taxation, although its importance in this respect was lessened by the fact that the hereditary revenues were secured without the possibility of interference, and it was not till the close of its history that the Scottish Estates used the English rallying cry of redress before supply.[15]

In treating of the subject we propose first to discuss the origin of the Scottish Parliament, its membership, and its methods of transacting business, for on these, in the first place, the power of any assembly must depend. Afterwards the question may properly be asked: What value can we ascribe to the Parliament as an element in the life of the nation?

I.--ORIGIN, MEMBERSHIP, AND METHOD