Part 5

On a general review of the evidence several points are clear. The device of superseding Parliament by a committee was employed for the first time under a weak king, and precisely at the moment when burgesses were first appearing as an integral part of Parliament. After it was elaborated in 1369, the method continued to be employed on every occasion on which burgesses were present, and, so far as we know, only when burgesses were present, till the return of James I from England; and its usual result was to exclude the burgess element from the effective work of Parliament. From the date when James I had established his power to the time of his murder, in 1436-37, burgesses were regularly present, and there were no committees, except for judicial purposes, and on these burgesses were represented. The ordinary business of Parliament was transacted by the three Estates meeting in their full numbers. Between the death of James I and the fall of the house of Douglas, in 1451-52, we are again uncertain as to the presence of burgesses in Parliament, and there were no Lords of the Articles, so far as can be ascertained. The one occasion on which we know that burgesses took a share in the work of Parliament was in January 1449-50, when the young James II first asserted himself by procuring the forfeiture of the Livingstones, and here, as under the strong rule of James I, the presence of burgesses is no longer accompanied by the existence of the committees which occupy so prominent a place when burgesses are present and the barons are in power. So, again, after the king had defeated the great House, and had begun to rule in person, we find burgesses regularly present in Parliament, and the only committee was the judicial one, on which they find a place. During the first few years of the minority of James III the policy of the late king was continued by Bishop Kennedy, and it is not till after his death that the Lords of the Articles reappear. During the years of intrigue and faction which followed the death of Kennedy in 1465, the Committee of the Articles was developed and established as a normal part of parliamentary procedure.

The invariable correspondence between the presence of burgesses in Parliament and the use or disuse of the system of committees, according as the king was weak or powerful, suggests as a possible explanation that the origin of the Committee of the Articles may be traced to an attempt of the barons to exclude the burgesses from Parliament. This view is confirmed to some extent by the fact that in 1371-72, within two years of the first employment of the device, the committee for the general business of Parliament seems to have been used for the purpose of excluding certain persons, while, both in 1369 and in 1371-72, burgesses were present in Parliament and were not elected to the General Committee. It was, further, only in this indirect way that Parliament could control the number of burgess members, for there is no evidence of the passing of any act dealing with burgess representation, and, as late as 1619, the Convention of Royal Burghs[59] ordered that every burgh, except Edinburgh, should send only one, instead of two, members to Parliament, and the resolution was carried into effect without even the formality of consulting the Estates. It cannot, however, be said that the evidence excludes the alternative explanation that these committees originated simply in the unwillingness of the burgesses to attend Parliament, and were afterwards employed by the barons for purposes of faction. But it is difficult to reconcile this view with the fact of the appearance of burgesses, in 1367, in such numbers that a choice of two members from each town could be made from among them, and with the instances of their retention for judicial purposes only, as well as with the concomitance, just pointed out, of the presence of burgesses and the election of Lords of the Articles.

The next development in the history of the General Committee belongs to the year 1535, when King James V dispensed with the cumbrous device of two committees, and the Lords of the Articles entirely superseded the three Estates. As the Crown chanced to be strong, the committee was not allowed to deal with "all matters" as in the days when the king was weak, but only with such matters as it might "please his grace to lay before them," and King James reserved to himself the power of summoning all his prelates and barons if he should so wish. The new scheme was only for occasional use,[60] but it familiarized people with the all-sufficiency of the Lords of the Articles, and during the next reign Parliament ratified, without comment and as a matter of form, what they had done. Randolph, the English ambassador, has preserved for us a record of the proceedings in 1563.[61]

Their Parliament here has begun. On the 26th ulto. the Queen, accompanied with all her nobles and above thirty picked ladies, came to the Parliament House, her robes upon her back, and a rich crown upon her head. The Duke [Chatelhérault] next before her with the regal crown, the Earl of Carlyle the sceptre, and the Lord of Murray the sword. She made an oration to her people.... The Lords of the Articles are chosen, and sit daily at the Court, where ordinarily the Queen is present, in debating all matters. Upon Friday next, she comes again to the Parliament House to confirm such Acts as are concluded upon, and to prorogue the Parliament.

During the early part of the reign of Charles I, and between the Restoration and the Revolution of 1689, this was the normal procedure. The Parliament met in full only on the first and the last days of its meeting. It was of small value that every liege had free access to the Lords of the Articles, to lay his complaints before them, but even that privilege seems to have been occasionally doubtful.[62]

The importance of the Lords of the Articles clearly depended upon the method of their election. It has been supposed that, at first, each Estate elected its own representatives. But the non-appearance of burgesses on the General Committee in 1369 is, perhaps, an indication to the contrary. In 1524, the spiritual lords were chosen by the temporal lords. We know this only from certain protests which were made, and it is not easy to draw any inference from it.[63] Randolph,[64] to whom we owe so much of our information regarding Scottish affairs in the latter half of the sixteenth century, described to Cecil the method in vogue in 1560. His words imply that it was the ordinary custom. "The lords proceeded immediately hereupon to the chusing of the Lords of the Articles. The order is that the lords spiritual chuse the temporal, and the temporal the spiritual, and the burgesses their own." From 1592 to 1609 the selection is said to be made by "the whole Estates"--whether collectively or independently is not stated. In 1606, 1607, and 1609, King James nominated the members who were elected, and in 1612 he devised a very characteristic arrangement which, in part, reverted to the method described by Randolph. There were at this date very few prelates, and they were all his own creatures.[65] The lords temporal, therefore, could not but choose lords spiritual agreeable to the king, and they, in turn, could select from the nobles men as obsequious as themselves. The representatives of the prelates and nobles must select suitable men from the Third Estate. Such was the royal scheme. We hear of it first in 1612.[66] We are fortunate enough to possess an account of the "Ordour and Progres of the Parlement, October 1612," from a manuscript in the handwriting of Sir Thomas Hamilton, the secretary.[67] When the Estates had met, and had listened to a sermon by the archbishop of Glasgow and a speech from the king's commissioner, the prelates and noblemen were instructed to retire, to choose the Lords of the Articles. The secretary intimated privately to the lords temporal the names of the prelates whom the king wished to be chosen. They "debaited the mater verie preciselie," having first dismissed the secretary, "and after many discourses of the necessitie of the mentenance of thair privilegis and libertie, be pluralitie of votes, changed so many of the roll of the prelates as they had men to make chainge of." The bishops, on the other hand, received "the roll of the noblemen whom his Maiestie recommended to be upon the Articles, whilk thay presentlie obeyed be thair electioun." When the prelates and noblemen met to choose the commissioners of barons and burgesses, both maintained their attitude, "and maid sum chainge, so far as the noblemen could." This method did not become fixed till 1633, but it represents more or less accurately the condition of matters between 1612 and 1638.

The usurpation of all parliamentary power was, of course, bitterly resented. As early as 1524 we have evidence of opposition; but the dispute of that year was rather personal than political, and not in any sense constitutional. The first constitutional protest dates from the year 1633.[68] But even this is rather a remonstrance against the decisions of the Lords of the Articles than against their election and procedure, although there are references to these. Burton guardedly describes the incident as containing "distinct vestiges of a constitutional parliamentary opposition."[69] In 1640, Parliament, no longer under royal control, ordained that the Lords of the Articles should be "ane equall number of all Estates, and ... chosen by the haill bodie of the Estates promiscououslie and togidder, and not separatlie, by ilk ane of the thrie Estatis apairt." In 1663, by command of the king the older method was restored, and it continued in force till the Revolution. The parliament of 1690 abolished the Lords of the Articles, and declared that "the estates may appoint such Committees as they choose, there being an equal number of each estate." Such is the history of that important body.[70]

The history of the Judicial Committee has been often told, and need not detain us long. We have already seen the first appointment of a commission to undertake the judicial work of Parliament. From 1368 to 1532 this cumbrous method was maintained, although the membership of the committee of the "Lords Auditors" was frequently altered, and the acts of parliament contain many references to their sitting. James I introduced a modification into the system. In 1425 the lord chancellor and "sundry discreet persons" of the Estates received power to "examine, conclude, and finally determine" all complaints. In the next reign the judgment of these "lords of session" was declared to be as decisive as that of the Lords Auditors themselves. In 1503 the judicial work of the King's Secret Council was organized and a co-ordinate court was instituted, chosen by the king, and endowed with full powers, so that there were three courts of justice to deal with the numberless grievances of the lieges. The judicial system took its final shape from France. In 1532 King James V proposed "to institute ane college of cunning and wise men baith of spiritual and temporale estate ... to sitt and decyde upon all actiounis civile." The Estates thought this "wele consavit"; and accordingly the cunning and wise men were created into a College of Justice, with a president at its head. It was sanctioned by the Pope, and confirmed by Parliament in 1540, when the Estates granted "to the President, Vice-President, and the Senators power to make such acts, statutes, and ordinances, as they shall think expedient for ordering of process and hasty expedition of Justice." It then consisted of a president, with seven spiritual and seven temporal lords of session,[71] and, with slight modifications, the Court of Session continues to decide all civil cases in Scotland. It represents the Lords Auditors or the original committee of the Estates to which judicial powers were entrusted, and not the judicial work of the Secret Council. So strongly was it felt that the College of Justice was a committee of Estates, that, at first, it did not sit during the meeting of Parliament, which the Lords of Session were expected to attend. Exceptions to the rule occur frequently, and as early as 1538. The High Court of Justiciary was instituted by James VI in 1587, to supersede the old jurisdiction of the justiciar, and was remodelled in the reign of Charles II.

6. We know, from various sources, something of the pomp and circumstance which accompanied a meeting of Parliament. The dress of the members was strictly prescribed,[72] and formed often the most expensive item[73] in a member's account-book. The Stewart sovereigns, with scarcely an exception, loved display, and the meeting of the three Estates afforded an unusually good opportunity. Queen Mary's personal beauty gave an additional splendour to the meeting of Parliament in 1563, and as she rode in procession the populace of the capital could not restrain their enthusiasm, and hailed her with shouts of applause, "God save that sweet face!"[74] Her son took strong measures to prevent what he termed the decay of the majesty of his parliament. In 1600 he enjoined that all members "rydand on horseback, clad with fut mantellis, and utheris abuilzementis and clething requisit for the honour of the present actioun, repair, attend, and accompany his Majesty" to and from Holyrood and the Tolbooth, "and that nane schaw themselves unhorsit or vantand fut mantellis under the pane of tinsell of thair vot and place."[75] The procession was marshalled in reverse order of precedence. First came the commissioners of burghs in their black gowns. They were followed by the commissioners of barons, members of the privy council, and officers of state not being lords. The clergy came next, priors, bishops, and abbots, being alike attired in silk gowns, and immediately after them, lords and earls with their mantles of velvet. Trumpeters preceded pursuivants and heralds, and the Lord-Lyon-King-at-Arms in his gorgeous apparel, walking "him alane," immediately in front of the honours of Scotland. Behind his sword, sceptre, and crown, rode the king himself, between the captain of his guard and the constable of the kingdom. The chancellor and the great chamberlain were in immediate attendance upon their master. Last of all came the marquesses and the royal household. After the Reformation the work of Parliament was invariably preceded by a sermon. When the full Parliament met again to ratify the proceedings of the Lords of the Articles, the "Lyon Herauld" solemnly presented the sceptre to the king, who touched the articles. Prayers followed, and the House was dissolved. It was small wonder that the citizens of Edinburgh felt some regret when the glory of the Parliament House departed.[76]

II.--THE INFLUENCE OF PARLIAMENT

When the Great Council developed into what we understand by the word "parliament," it took its place as one of a series of competitors for the chief power in the kingdom. The king's prerogative was sufficient to cover everything that he was able to do, and an undefined law of treason[77] gave him a valuable weapon, which he did not fail to use. The most notable danger to the prerogative was the supersession of the royal power by the rise of certain noble families from time to time. The strength of these nobles lay in the number of their retainers, over whom they had absolute power. Most of them were hereditary sheriffs of their own districts, and it was rarely that either king or parliament ventured seriously to interfere with their judicial powers.

The Parliament found an additional rival in the Secret--afterwards called the Privy--Council, which formed the Executive of the realm. Little is known of the early history of this important body. Its origin has generally been ascribed to the Parliament of 1369, which, as we have seen (cf. pp. 40, 41), appointed a Committee to discuss certain matters before they came before Parliament.[78] This, however, refers to the Lords of the Articles, and when the Committee of the Articles was appointed two years later, the precedent of 1369 was avowedly followed. It is not, therefore, possible to identify this body with the king's secret council, mentioned two years later, when urgent private business, relating to the succession, was discussed "in the king's secret chamber in his secret council,"[79] as contrasted with the king's chamber of public Parliament.[80] This allusion to a secret council probably indicates not the origin, but the existence, of such a secret council of royal advisers as must have come into being centuries before. The small place held by the Parliament in the government of the country left the Executive or Secret Council a still more valuable instrument for those in power, and it is impossible that the kings of Scotland did not possess a private council before 1369. The next definite reference is in 1389; when the Duke of Rothesay was appointed regent for Robert III (cf. p. 75), his power was limited by a council, of which eighteen members were appointed by the Estates--probably an enlarged form of the Secret Council.[81] But this was only a temporary arrangement, and it is very doubtful if Mr. Hill Burton is right in treating the King's Secret Council as one of "the three great Committees of Parliament."[82] It is more natural to regard it as analogous to the English Curia Regis, and not ultimately connected with parliamentary institutions. Like the English Curia Regis, it exercised judicial powers from an early period, probably in connection with its general work of administrative order. It is not easy to distinguish between the jurisdiction of the Council, and that of the Lords Auditors, or Committee of Parliament, elected from 1369 onwards,[83] to decide legal cases, and a further complication arises from the additional Committee of the Estates, appointed by James I in 1425.[84] The jurisdiction of the Council in matters of litigation was further defined by James IV, who, in an act of 1503, provided that "there be a council chosen by the King's Highness, which shall sit continually in Edinburgh or where the king makes residence or where he pleases, and decide all manner of summons and civil matters, complaints, and causes, daily, when they shall occur, so that there shall not be so great confusion of summons to call at the session"[85] of the Lords Auditors, or Judicial Committee of the Estates. We are probably right in connecting this council, chosen by the king, with the judicial powers of the Lords of Secret Council, and it may be an imitation of the English Courts of King's Bench and Common Pleas. The special powers of this body came to an end with the establishment of the Court of Session.

The constitution of the Secret Council, as an executive body, was the subject of legislation during the temporary rise of the importance of Parliament in the beginning of the reign of James IV.[86] In 1489 the King's Council was chosen in Parliament. Its numbers were increased, and an act was passed that this council should act as the advisers of the king till the next meeting of Parliament, and should be "responsable and accusable to the king and his Estates." They were appointed to deal, not only with justice, but also with all matters concerning the sovereign or the realm. A quorum consisted of six members, of whom the Chancellor must be one. But there is no second instance of a parliamentary choice of the members of the Secret Council, nor any indication of any control over them, and, as we have just seen, the members of the Secret Council sitting for judicial purpose were, on the creation of the committee in 1503, selected by the king alone. Thus matters continued till the minority of James V, when Council and Parliament alike became the object of the intrigues of the factions who were struggling for power, and the Estates were, as usual, powerless. In 1524 the Lords of the Articles chose the Lords of the Secret Council, and in 1528, when the Earl of Arran was in power, he obtained the election, in Parliament, of a Council to advise the king, and of a smaller Secret Council, from both of which the leader of the opposite party, Archbishop Beaton, was excluded. When the records of the Privy Council begin, in 1545, the council was a small body of advisers of the queen-mother and the regent, and there is no evidence that the Act of 1489 was ever really in operation. The Register shows that the council possessed very full executive powers, and it continued to carry on the real government of the country. Its numbers increased during the minority of James VI, the circumstances of which differed widely from those of any previous minority, and, in 1598, the king succeeded in reducing the number of its members to thirty-one, and in rendering it completely dependent on the Crown, while, at the same time, he made it, as far as he could, the paramount authority in the land, not only in matters pertaining to the Executive, but also in connection with justice. It was in no sense a Court of Appeal; but it not infrequently reversed judgments of the Court of Session, and sometimes dictated their course of action to the judges. Any such interference arose, however, from the plenary powers of the council as an executive body. After James's accession to the English throne, the Privy Council became the mere instrument of the king's will, and dared in no way to oppose him, while he, on his part, treated it with scant respect or courtesy. At the outbreak of the troubles in the reign of Charles I, it was prominent in opposing the king; but it was afterwards eclipsed by the Parliamentary Committees and by the Assembly. After the Restoration it became again an instrument of absolute monarchy, but from the Revolution to the Union of the Parliaments it possessed very important powers.

With this preface, we may proceed to our main issue: what was the influence exerted by the Scottish Parliament, thus constituted, governed by such rules of procedure as we have described, and surrounded by so many powerful rivals? The early laws which have come down to us as illustrating the powers of the Great Council are mainly concerned--like so many later enactments--with matters of administrative detail. The assizes of William the Lion deal largely with merchandise and the rights and obligations of merchants, and scarcely fall within our province. The work of the Great Council, up to the War of Independence, was to deal with police and judicial administration, to settle feudal claims and obligations, and to make grants to the king. We find the council consulted on marriage treaties (_e.g._ in 1153 and in 1295); but marriage treaties involved expenditure. The task of advising the king and of carrying on the government must have belonged to a select council of which our constitutional documents bear no trace.