Part 6

In the reign of Robert the Bruce, as we find the first advance in membership we meet also the first indications of a growth of power. His parliaments took measures for the security and defence of the kingdom; they passed laws regulating the succession; they established the English principle involved in the writs of Novel Disseisin and Mort d'ancestor; they addressed the Pope on the subject of the English claims, and told him of their great deliverance at the hands of King Robert. The great parliament of 1326 made a bargain with the king. In consideration of the "many hardships he had sustained both in person and goods," during his ten years' conflict with the invaders, they granted him "the tenth penny of all their fermes and rents, as well of demesne lands and wards as of their other lands." The collection was to be made by the king's officers; and all who claimed liberties promised faithfully to pay the proper sum to the royal servants. The grant was made only for the king's life, and two conditions were attached to it. Any remission made by the king would invalidate the whole grant. The king must not impose any further taxes (except, of course, the ordinary feudal dues), nor must he take prisage or carriage, except on a journey, and, even then, not without payment. In the last parliament of the reign, the treaty of Northampton, by which England acknowledged the independence of Scotland, was discussed.

The first reign in which the term parliament is really applicable is that of King Robert. At the very beginning of parliamentary history in Scotland, we have, then, distinct precedents for three important constitutional rights--the regulation of the succession, participation in the settlement of foreign affairs, and powers of taxation. If we could regard these as having been claimed by Parliament with consciousness of their full significance, and admitted by the Crown, we might fairly join with the older historians in urging that Scotland can be said to have anticipated the parliamentary institutions of England. The explanation lies in the circumstances of the reign. The king's title consisted in his leadership in his glorious war. The succession was uncertain; the Crown was poor; the nation was loyal. A writer on the English constitution could take these three points of which we have spoken, and trace their history through the centuries. Such a method would be futile here. These rights, and all other rights, stand or fall together. We can scarcely draw the wonted distinction between political and constitutional history. At times, we have neither, in any strict national sense; only family and personal history.

The leprosy-stricken age of King Robert was cheered by two important events--the birth of an heir, and the acknowledgment of the national independence. When he sank into the grave, he left the heritage of the nation's freedom, and the guardianship of his son, to the loyalty of the nobles. It was an opportunity for Parliament to make good its position. But, as we have already seen, the precedent of 1326 was assumed to be valid only for the raising of money, and the "Parliament" was, at first, only the old council. The political events of the beginning of the reign relate chiefly to the attempt made by England to place Edward Balliol on the Scottish throne, as a vassal-king. When that design had been, not without some difficulty, defeated, we find the Parliament, without the burgesses, conducting all the affairs of the kingdom, and acting, for almost the only time in Scottish history, as the executive. It granted lands and charters; passed ordinances regarding the Staple; arranged (with the co-operation of the burghs) the treaty of peace with England and the ransom of the king; settled the privileges of the church and of the burghs, with which the king had been tampering; made provisions for the Highlands and Islands; and decided the mode of succession. This, however, is not parliamentary government, though it is more like it than anything else in Scottish history before the revolution of 1640. The king was at the first an infant, and afterwards a prisoner, and his character was at all times weak and contemptible. The nobles were divided by feuds. Nobody was strong enough to make himself supreme. The country was governed by a committee of the nobles. Still, the reign of David II made two contributions to such constitutional theory as Scotland possessed. One of these is an emphatic reiteration of what had been done in the preceding reign. After his return from England, David, in pursuance of a private agreement with Edward III, attempted to persuade the Estates to acknowledge Prince Lionel of England as his heir. The account given of the affair by Wyntoun[87] is notable as the first report of a debate in the Parliament of Scotland:

"That ilke yere quhen that wes don, A Parliament gart he hald at Scone. Thare til the Statis of his land, That in counsal ware sittand, He movit and said, He wald that ane Off the Kyng Edwardis sonnys were tane To be king in to his sted Off Scotland, eftyr that he ware dede. Til that said all his lieges, nay; Na thair consent wald be na way, That ony Ynglis mannys sone In [to] that honour suld be done, Or succede to bere the Crown, Off Scotland in successione, Sine of age and off wertew there The lauchfull airis apperand ware. Quhen this denyit was utraly, The King wes rycht wa and angry; Bot his yarnyng nevyrtheles Denyit off al his liegis wes."

The words of the original Act are quite as emphatic.

The Parliament of 1326 had declared that any personal remission of taxation by the king would render the whole grant null and void. The Parliament of 1369 went much further. It enacted that no remission granted by the king to a convicted offender should have any force, and it asserted that any writ of the king was invalid which contradicted any statute or was not in accordance with the common law of the realm. This constitutional statement marks the "highest" doctrine propounded by the Scottish Parliament till the seventeenth century. While it is necessary to guard against laying too much stress on the history of the reign of David II as illustrating the growth of strictly constitutional and parliamentary principles, it would be erring on the other side to deny that here we have a distinct assertion of principle. We have been forced to discount much of the recorded action of Parliament, on the ground that it is merely an instance of a number of nobles uniting to do what none of them was powerful enough to do alone. But the Parliament of 1369 contained burgesses (at least on the roll of its members); and the wording of its resolution is distinctly suggestive of the existence of some constitutional feeling.[88] The weakness and unpopularity of the king must be allowed due weight on the other hand; and the tone of the record suggests a jealous interference with the personal schemes of the king rather than any broader view of rights.

With the ignominious reign of David II the direct line of King Robert the Bruce came to an end. The question of the succession had already been settled by the Parliament in favour of King Robert's grandson, Robert, the High Steward of Scotland, son of Marjory Bruce and Walter the Steward. We know that Robert had been a prominent figure during the reign of his uncle, and that David II regarded him with no good will. The reign of Robert II is one of the periods of Scottish history which stand in need of more thorough investigation. We possess no account of it that is in any way satisfactory. There are wars and rumours of wars; vague traditions of conspiracies; dim hints of a constitutional conflict between the Estates and the King. No figure stands out pre-eminently from the crowd; no man of the time left any impression on succeeding generations. The one event that has given significance to the name of Robert II is the "hontynge of the Cheviot," the battle where the dead Douglas won the field. Two points demand notice from a constitutional stand-point. The family difficulties of the king led to the establishment of the succession by the Estates.[89] But the crown was entailed in accordance with the king's wish, and the fact affords no indication of the power of Parliament. In the second place the early years of the reign mark the renewal of a definite alliance with France, of the circumstances of which we know but little. The instructions to the ambassadors contain a mention of the consent of the _prelati proceres et tota communitas regni_ to the proposal for a Franco-Scottish league; and one of the conditions of its acceptance was that the Scottish Parliament alone should decide a disputed succession without French interference--clearly a reminiscence of the pretext of which Edward I of England had availed himself. The French negotiations led to an _imbroglio_ with England, to which undue weight has been attached. Robert had, in 1383, agreed to a truce with England. A number of his nobles, mainly to amuse a band of French knights, made a raid into the northern counties, in revenge for a recent English incursion. There is no reference to the affair in the Scots Acts. Froissart gives the most detailed account; and there seems to be no reason to attach to it any constitutional value whatsoever. Tytler, whose _History_ is still in many ways our best authority, merely remarks that "These were not the days when Scottish barons, having resolved upon war, stood upon much ceremony, either as to the existence of a truce, or the commands of a sovereign."[90] Hill Burton, following Buchanan, regards the incident as the first of a series of instances showing that the power of peace and war was throughout Scottish history "jealously retained by the Estates."[91] We shall have occasion to refer to the other statements on which this bold generalization is grounded. Meanwhile, it is sufficient to say that three years previously, an agreement for a truce had been made at a private meeting between John of Gaunt and the Earl of Carrick, King Robert's eldest son; and we have no evidence that anyone thought of consulting the Estates at all.

During the latter half of his reign, the king was rendered quite incapable both in body and mind by some disease, the nature of which is uncertain. For a few years, therefore, there was considerable parliamentary activity. A laudable effort was made to restore order in the north, by sending Carrick to deal with the rebellious lords. We do not know how far he was successful. He was soon afterwards temporarily disabled by an accident, and his brother, the Earl of Fife, succeeded to his place. These years are marked by certain police measures, and by efforts to suppress private feuds and carry out the decisions of the law courts. It is scarcely possible to say whether Parliament gained or lost ground under Robert II. It is the transition period between the great council of the reign of David II and the rise of individual nobles which alternated with intervals of regal government from the reign of Robert III to that of James VI.

The change of Carrick's name from "John," hateful by reason of its association with Balliol, to that of the hero of Bannockburn, could not avail to alter the weak disposition and character of the new monarch. The first years of the reign were free from conflict with the troublesome neighbour in the south; but they were years of internal feud, almost of anarchy. The career of the Wolf of Badenoch is typical of the time. Possibly the mysterious combat at Perth, where Hal o' the Wynd carved for himself a path to fame, is connected with some attempt to introduce order. Parliament met during these years only to sanction charters and other formal documents. But the meeting of the Estates in 1398 is a distinct epoch in the story. Burton[92] tells us that "At length the cry of the nation reached and was re-echoed by the Estates in Parliament"; that, although "in this assembly were those who had been the most flagrant and powerful transgressors, yet the Parliament collectively emphatically denounced the evils of the day and sought to find a remedy for them"; and that "no one who could have checked the mischief was spared." If we could accept this view of the situation, it would be an interesting exception to the common belief that an individual may have a conscience, but a body of councillors has none. But Burton's characterization of this parliament is, _pace tanti viri_, a psychological impossibility. He founds his interpretation upon the often quoted Act which attributed to the king all responsibility for the misgovernment of the realm, and called upon him, if he desired to exculpate himself, to show that the blame lay with his officers. The Duke of Rothesay was appointed regent, and he was instructed to consult a council of "wise and leal men." We are not informed under what auspices the parliament met. But it is certain that the king was not responsible for his actions, and that the anarchy was largely due to the rivalry of the Duke of Rothesay, the king's eldest son, and the Duke of Albany, a brother of King Robert, who, as Earl of Fife, had held the title of "Governor" in the end of the "preceding" reign. They and they alone could have "checked the mischief." The probability is that the meeting of Parliament was really an incident in their struggle for power; that Rothesay was powerful enough to secure the regency; and that Albany succeeded in circumscribing his power by a council and by a decision that Parliament was to be summoned once a year. But it is not necessary to allow even this importance to the appointment of a yearly parliament. The Act says that the king shall hold a parliament "swa that his subjects be servit of the law." It was to meet merely to overtake its judicial work--the decisions in feudal quarrels and on complaints of robbery and oppression. Our explanation of the _motif_ of the meeting of the Estates of 1398 receives some confirmation from subsequent events--the misgovernment of Rothesay, his imprisonment by the Duke of Albany, his mysterious death, and the peaceful succession of Albany to the governorship without, so far as the records go, any appointment by the Estates whatsoever.[93] The view we have taken seems the most probable when we consider the circumstances, the composition of Parliament, and the whole tone of the reign. It is, however, not incompatible with an acknowledgment that there possibly existed in 1398 a neutral party which was able to wield a certain influence in the fierce division of parties. It is noteworthy that a resolution was passed that the names of Rothesay's councillors who agreed to an act of government should be recorded, so that he and they alike might be responsible to the Estates. It would be rash to speak dogmatically in the present condition of our knowledge. There is a strong temptation to accept this as a constitutional movement; but it must be remembered that it is at least equally probable that we have here a device by which Albany aimed at ridding himself on the first opportunity of his reckless and dissipated nephew and of that nephew's favourite counsellors.[94] The great pitfall of Scottish historians has been to read later or foreign ideas into the scanty records of the national history.

If they are right who argue that under David II and the two Roberts we have a discernible impulse towards parliamentary government, we certainly lose all trace of it after the death of the Duke of Rothesay. The Duke of Albany kept complete control of the country till his death in 1419, when he was succeeded by his son, without any trace of parliamentary sanction. The government of the first Albany was firm, but he ruled as absolute master. A parliament had met in 1402, before Rothesay's death, and had passed some useful acts for the maintenance of internal order, probably under Albany's guidance. The most important of these refer to justice, and illustrate the difficulty of dealing with hereditary sheriffs. While the country was divided between Rothesay and Albany, Parliament still had a place. After Rothesay's death it practically disappears till a great council was summoned in 1423 to discuss the propositions for the king's return, which involved the question of a ransom.

Under the personal rule of James I we have the best instance in Scottish history of government in accordance with what would now be called the theory of the Scottish constitution. But it was not "constitutional government" in our modern derived sense of the word. The Parliament was not intended to be the ruling body. King James was a masterful man, and he aimed at using the Parliament as the best means of creating a powerful monarchy, not at giving it a power to rival his own. His experience immediately on his return does not strengthen our belief in the "Parliamentarianism" of the preceding century. He found it impossible to persuade the smaller barons to attend, even by deputy, and he had to threaten with the penalties of treason his great lords who declined to be present. The burgesses alone seem to have regarded with sympathy his meditated reorganization of the kingdom. The acts of his reign provided for the defence of the country on the analogy of the English Assize of Arms. They dealt with labour disputes; they instituted the system of licensed beggars to which we are indebted for Edie Ochiltree, and forbade anyone to beg between the ages of fourteen and seventy. The numerous Parliaments that met between 1424 and 1437 are full of police regulations, some of them petty enough, but all bearing the impress of the master-mind of the king. He vindicated his orthodoxy by enactments against Lollardry, while he emulated the English kings in their prohibitions of papal interference.[95] But, above all, the reign is memorable for the king's attempt to enforce justice.[96] His great difficulty lay in the independence of the sheriffs, who continued to impede all improvements for three centuries after his death. The history of Scotland is full of complaints on this subject. "The greatest hindrance to the execution of our lawes in this countrie," wrote a later king, "are these heritable Shiredomes and Regalities, which being in the hands of the great men, do wracke the whole countrie."[97] It was more easy to ordain frequent sessions of "the Chancellor and discreet persons," to forbid riding to the court "with multitudes of folkis na with armys," and to threaten the punishment of negligent sheriffs, than to carry out these schemes. The only guarantee for their receiving any obedience lay in the personal strength of the king. With the tragedy at Perth, which rendered the Christmas of 1437 for ever memorable, the great plans of the first James lost all chance of fruition. Parliament had done good work during his reign. It had conferred a legality on his ordinances which rendered them less the creatures of the royal will and weakened the protests of the nobles against the king's tyranny.[98] But we cannot reasonably credit the Estates with any initiative. The acts are the king's acts. Even the judges--the lords of session--were no longer elected by Parliament; they were chosen by the king.

From the murder of King James I to the commencement of the personal rule of his son, Parliament rarely met, and there is no evidence of any activity. The minority was occupied with the miserable rivalry of Crichton and Livingston, and with schemes for preventing the undue growth of the power of the house of Douglas. It is an illustration of how far Scotland was from possessing a parliamentary theory, that Douglas was credited with an intention of setting up a Parliament of his own. His aim seems to have been to create for himself a sort of kingdom with some vague feudal dependence on the King of Scotland. Beyond some administrative acts of 1449, there is no parliamentary progress to record till after the second and final defeat of the great House in 1454. The Douglas influence was so strong in 1449 that they passed an act which rendered it lawful to seize by force, with the consent of the three Estates, the person of the young king, who was growing restive under the Douglas domination.[99] When James of the Fiery Face at last succeeded in throwing off the yoke, he set himself to carry out the work that his father had left unfinished. His legislation covers some pages on the statute book. But it is mainly a repetition of the work of James I, and many of the acts are really decisions in private cases. Pitscottie[100] describes to us the suitors that thronged when Parliament met--"widows, bairns, and infants, seeking redress for their husbands, kindred, and friends that were cruelly slain by wicked bloody murderers." The reign is not devoid of some progress in justice and police regulations. But it exemplifies the tendency of the Scots Parliament to exercise the functions merely of a court of justice. Under good influence, like that of James II and Bishop Kennedy, it decided causes in favour of the poor and the oppressed, and made general regulations to meet all such cases in the future. Under the influence of some ambitious nobleman, it passed partisan measures which rendered legal his treatment of his opponents. King James VI[101] did not speak purely out of prejudice against the power of parliaments when, years before the fateful journey that brought him into contact with the English Commons, he wrote:

As a Parliament is honourablest and highest judgement in the land--if it be well used--so is it the injustest judgement seat that may be being abused to men's particulars; irrevocable decreets against particular parties being given therein, under colour of generall lawes, and oft-times the Estates not knowing themselves whom they hurt.

The credit of the wise legislation which marked the last six years of the life of James II belongs to the king and the Bishop Kennedy of St. Andrews. Parliament was merely a good tool in wise hands. There is no proof that it ever really decided--or even had a voice in deciding--anything of importance. In March, 1457-58, all the leading acts of the reign were confirmed, and the Estates petitioned the sovereign "with all humilitie ... to be inclynit with silk diligence to the execucione of these statutis, acts and decretis above writtyn that God may be emplesit of him," and congratulated him on the peace of the realm. Two years later, in prosecuting a war[102] with "our enemy of England," James, "more curious than became him or the majesty of a king," was watching the firing of a cannon, before Roxburgh Castle, when it exploded, and Scotland was again plunged into the troubles of a minority.