Chapter III: Part 3

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.

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.

The death of the king made at first but little difference to the conduct of affairs. Bishop Kennedy continued to rule till his death, in 1465. No sooner did the statesman and patriot disappear from the scene than a coalition headed by Lord Boyd seized the young monarch, and carried him in triumph from Linlithgow to Edinburgh. A parliament was at once summoned to sanction their proceedings. The king was made to declare that he had gone willingly, and the Estates created Boyd James's governor, and somewhat illogically granted him a full pardon. Under the sway of the Boyds, Parliament met every year; but it was merely a tool in the hands of Lord Boyd, who combined in his own person the offices of governor of the royal family, justiciar, and lord chamberlain. In 1469 the Boyds fell. A strong rival party had formed an opposition of which we find traces all through the brief term of power enjoyed by Boyd. It is significant that this opposition is found everywhere except in Parliament, which unanimously agreed to measures against the malcontents. The parliamentary tactics of the Boyds were used against themselves. A meeting of the Estates was at once called by the king, now under the influence of Lord Hamilton, and the whole of the late ruling faction were condemned to the penalties of treason, on the ground of the king's seizure, for which the same body had, three years before, solemnly pardoned them. Their vast possessions were confiscated. The Hamiltons, who had gained the confidence of the young queen, continued to rule. So far the political history of the reign is clear, and the position of Parliament falls at once into line with it. But we dare not attempt to unravel the tale of intrigue which convulsed the country during the next twenty years. The reign of James III is an unsolved problem. But the constitutional feeling may be illustrated by a representative incident. The Parliament of 1482 was completely under the control of the Duke of Albany. The Estates passed acts which gave to him control of the property of the Crown, and power over the life and liberty of the lieges. One year later it rescinded all these acts and proscribed the duke. They may be right who have found great constitutional activity in the mysterious records of the reign. It may be that amid all the disorder and confusion the burgesses and some neutral prelates were able to exercise some influence. It is certain that there was as usual no lack of attention to judicial and police requirements. But until some intelligible and consistent account of the reign has been offered, the sceptic may be pardoned for refusing to believe that out of these unruly struggles of selfish and grasping lords came calm constitutional progress.[103]

The rebellion in which James III lost his life was, as usual, discussed in Parliament: that is to say, the first Parliament of the new reign declared that it was not a rebellion at all, and that, whatever it was, the new monarch and his advisers were not responsible for it. At first, James IV was in the hands of the nobles who had persuaded him to enter the field against his father. His second Parliament is memorable for a claim raised by the Lords of the Articles "that Compts and Rekyning be takin of all the king's officiaris, his thesaurars and comptrollers, auld and new of our soverane lord's tyme that now is and that auditors be chosen and named by the avise and autorite of this Parliament." This is not the tone in which we have been accustomed to hear the Parliament speak. It is coincident with the appointment in Parliament of "our Sovereign Lord's Secret Council," and with a resolution that the king has "humilit his highness," so far as to promise to act by its advice. The council was composed solely of prelates and great lords representing mainly the party in power, although including the patriotic bishop of Aberdeen,[104] who had been a faithful servant of James III. We have here a distinct constitutional advance. The king owed his power, not to a small clique such as had been frequently formed in the late reign, but to a large confederation of the greater nobles, who took the opportunity of legally defining the position of the sovereign. But within a few years we find James ruling alone. He was an able man and he ruled well. The Parliament met frequently and did what the king wished. We find in its records references to embassies to Spain, France, and England, and to the king's marriage. But we know, from the foreign correspondence of England and Spain, that the policy of Scotland depended upon the king, and on him alone. Parliament regulated in certain cases the incidence of taxation: at all events it passed acts for this purpose. Contemporaries did not imagine that the Estates alone had powers of taxation. John Major,[105] writing a few years after the strong hand of James IV had been removed, made this remark:

As to the levying of taxes, I will limit my opinion to this expression: that in no wise should the power be granted to kings save in cases of clear necessity. Further it belongs not to the king nor to his privy council to declare the emergence of any sudden necessity but only to the three estates.... I am aware that Aristotle in his second book of the _Politics_ says wisely that laws are not to be changed; yet, in the judgment of the wise, they may be modified in accordance with the demands of equity.

Major remarks on the difficulty of collecting taxes in Scotland and on the folly of the kings in alienating confiscated estates, "since there is no regular taxation of the people." His remedy is, as we have seen, the regulation of taxation by Parliament. He was a scholar and a traveller, and it matters not how he came to think as he did; but it is clear that he advocated a change.

Nor did James regard the Estates as possessing "powers of peace and war." Pedro de Ayala[106] tells us of a conversation which he held with the king which gives us the royal views: "He said to me that his subjects serve him with their persons and goods, in just and unjust quarrels, exactly as he likes, and that therefore he does not think it right to begin any warlike undertaking without being himself the first in danger." Boece, in his biography of Elphinstone,[107] tells us of councils which preceded Flodden: but they are meetings of the king's private advisers. It is instructive to note that one parliament was held with reference to the English war. About a fortnight before the battle, what is termed "Parliament" was held at Twiselhaugh. It was composed of "all his lords being there for the time in his host," and it secured that the heirs of all who were slain should be exempted by the king from certain feudal dues. The exemption can only have been the king's own act. It is an additional testimony to the purpose for which the Scots Parliament normally existed--to ratify what somebody else had done. If there are vestiges of constitutional claims at the opening of the reign, there are none at the end of it. But though the Parliament had not been free, neither had it been idle. It was a time of unusual prosperity and of great expansion of trade. The pages of the statute-books are full of useful acts, especially for the encouragement of shipping, in which the king was greatly interested.

While the "lilt of dule and woe" which followed the disaster at Flodden was still filling the land, the country was again plunged into the misery of feudal quarrels. The ambition of the lords, and the caprices of the queen-mother--a true sister of Henry VIII--fill up the minority of the king. Parliament met only to ratify appointments which it had no power to question, and to deal with official business. It is possible that the Estates chose the Duke of Albany as regent. But it is almost certain that the impulse must have come from some of the leading nobles or prelates; and when we recollect that the "Estates" meant the Lords of the Articles, it is scarcely necessary to discuss the matter as presenting even the remotest possibility of a parliamentary choice. James V was nominally declared of full age in 1524. But he was then only thirteen years of age, and the "erection of the king" was merely a pretext for the transference of the power from Albany to Queen Margaret, the Parliament of course approving, when it was told to do so. Until the king became personally responsible for the government, there was little done in Parliament. If we except a slight activity in 1526 (mainly relating to such incidental matters as the capture of ships and the furnishing of the royal residences), there is scarcely anything to record till we reach the year 1535. Parliament met; but its business was purely of an official nature. All that we know of the Parliament of May, 1527, for example, is that it issued two continuations of summons, one "reduction" of a process of forfeiture, eleven ratifications of charters, and received four protestations. A single official, appointed for the purpose, could have done all the work.

James V is known in history as the "Commons' King." We are therefore prepared to find during the five years of his personal government a considerable amount of social legislation of the ordinary type, dealing often with trivial details, which show that the burgesses were in co-operation with the king. But of parliamentary interference there is not a trace. The hostilities with the "auld enemy," a mischance in which broke the king's heart, seem not to have been referred to the Estates in any way. The reign of James V was contemporaneous with the English Reformation, and before the king died the new doctrines had gained considerable strength in Scotland. But James himself, after his alliance with the House of Guise, had become more rigidly orthodox, and his last Parliament passed acts enjoining obedience to the Pope, the worship of the Virgin Mary, and prohibiting any convention to discuss Scripture. The royal influence was supreme.

The stories of the minorities of James II, James III, and James V read almost like repetitions of each other. The names and dates vary; the essential facts are the same. The minority of Queen Mary is widely different. The difficulties no longer arise from petty squabbles and contemptible personal intrigues. There is a deeper significance in every movement. It is a conflict, not of men, but of principles. On the one hand was the ancient French alliance, associated with the ancient faith. On the other hand stood the possibility of new relations with England and the acceptance of the Reformed doctrines. At first the revolutionary party held the power. The Scottish nobles had observed the English king's dealings with the lands of the Church. In Scotland there was no masterful Tudor to enrich himself. We find accordingly the acceptance of the marriage proposals of Henry VIII, and, significantly enough, among the domestic legislation of the time is an act making it lawful "to haif the haly write, baith the new testament and the auld in the vulgar toung in Englis or Scottis of ane gude and trew translation."[108] The "English wooing," which passed into a proverb in Scotland, did not merely put an end to the suggestion of a marriage between Queen Mary and Edward VI; it altered the situation in Scotland, and deprived the reforming section of their hopes of success, by forcing the nation into a French alliance. In 1545, Parliament, always obedient, inveighed against "heretiks and thair dampnable opinionis incontrar the fayth and lawis of halykirk." But it was not till the regency was transferred from the Earl of Arran (now Duke of Chatelhérault) to the queen-dowager (in 1554) that the success of the conservative section in the realm was complete. "Thus," wrote Knox, in reference to the event, "did light and darkness stryve within the realm of Scotland; the darkness ever befoir the world suppressing the light." The reservation, "befoir the world," is significant. Knox knew that every year since the death of James V had added converts, ever increasing in number, to the new faith. But all the time Parliament became more and more rigidly orthodox.

The struggle between the two parties found an issue in open warfare. The Protestants formed themselves into "the Congregation of the Lord." But they did not look upon Parliament[109] as the proper field for their contest with "the Synagogue of Satan." The insurgents and their English allies gained no success on the field; but the death of Mary of Guise and the absence of her daughter in France procured for them the results of victory. Scotland was definitely in the hands of the Protestant nobles.

Parliament met in 1560, and abolished the Roman Catholic faith within the realm. But, as we know from Knox's _History_, Parliament merely ratified what was otherwise settled. Behind it were the nobles and the Protestant clergy. The ministers petitioned the Estates to establish the Protestant faith. They were told[110] "to draw in playne and severall heidis, the summe of that Doctrine, quhilk they wald menteyne, and wald desyre that present Parliament to establische, as hailsome, trew, and onlie necessarie to be beleivit and resaivit." Within four days Knox and his colleagues presented the very comprehensive Confession of Faith which continued for nearly a century to be one of the Standards of the Church. It

was redd, everie article by itself ... and the vottis of everie man war requyred accordinglie. Of the Temporall Estate onlie voted in the contrair, the Earl of Atholl, the Lordis Somervaill and Borthwik; and yit for thair disassenting thei produced ne better reassone, but "We will beleve as oure fatheris beleved."

Acts were passed against the mass, and against papal supremacy.[111] But the whole of the desire of the ministers was not accorded. The First Book of Discipline did not receive parliamentary sanction, because it contradicted the views of the nobles as to the disposal of Church property.

While, then, the Parliament of 1560 was in some sense the creature of the Assembly, and though its resolutions were conditioned by the wishes of the nobility, it occupies a very important position in Scottish constitutional history. We do not lay much stress on its opposition to the sovereigns. That, in itself, was neither novel nor remarkable in any way. It was obedient to the powers of the day. But it is the first Parliament where the burgesses and the smaller barons attended and voted in accordance with their own feeling. They were Protestants and they were in complete agreement with those who were guiding the meeting of Estates. It is also the first Parliament which had the consciousness of power. They and their leaders were making a great national change. The people were beginning to learn what possibilities they possessed. The Parliament of 1560 was the first step towards a constitutional theory for Scotland.

This meeting of the Estates has still another aspect. It was significant that an assembly of ecclesiastics drew up the acts by which the Parliament became famous, for we have here the first appearance in constitutional history of a greater than the Parliament. Into the General Assembly of the Church there soon drifted those principles and aspirations that might have given life to the Estates. We shall have occasion to notice the part taken by the Assembly in the coming struggles; but it may be well here to indicate its claims. These claims were not formulated in 1560. They were of gradual growth. We find them implicit in the writings of Knox; but they were first definitely advanced by a man of no less intellect than the rugged reformer--Andrew Melville, the antagonist of James VI. Melville, in his frequent interviews with the king, "talkit all his mynd in his awin manner, roundly, soundly, fully, freely, and fervently." But he never stated his view in more explicit terms than on the memorable day when, after calling King James "God's sillie vassal," he addressed him thus:

And thairfor, Sir, as divers tymes befor, sa now again, I mon tell yow, thair is twa Kings and twa Kingdomes in Scotland. Thair is Chryst Jesus the King, and his Kingdom the Kirk, whase subject King James the Saxt is: and of whase Kingdom nocht a King, nor a lord, nor a heid, bot a member.[112]

Knox, in his interviews with James's mother, had taken lower ground. But Melville was not using idle words. There was no power in the land that could cope with the Church. From 1567 the Assembly met some days before the opening of Parliament, and prepared Church business, which was generally the principal item on the parliamentary list of _agenda_.[113] As early as 1565 it sent Queen Mary an overture against "the papisticall and blasphemous masse ... not only in the subjects, but also in the Queen's Majestie's awin person," and Mary's reply was couched in sufficiently humble terms.[114] Two years later it issued instructions to the Parliament about the ratification of the Acts of 1560, the question of the Darnley murder, and the treatment of the young prince.[115] It claimed the old ecclesiastical jurisdiction in all questions of morality, religion, education, and marriage.[116] It imprisoned offenders, and it informed magistrates how they were to act and threatened them with the censure of the Kirk. Its sentence of the Greater Excommunication involved the cessation of human intercourse[117] and the forfeiture of legal rights. The presbyterian system of Church government, with its careful distribution of authority, was able to make such a sentence a terrible reality. Not only the General Assembly, but the Synod or the Presbytery or the Kirk Session, was a court of justice. The records which have been published show with what vigour their power was used. Men of position and influence quailed before those stern judges. The old Church had often been powerful, under a strong bishop. But the secular forces gained strength while a see was vacant, and sometimes secured the appointment of a lay figure. A Presbytery never died: its members might change, but it continued its work, calmly and relentlessly, "grinding exceeding small."

Nor was the power of the Church confined to criminal jurisdiction. Two instances will serve to show the extent of its influence. In 1594, King James asked the presbytery of Edinburgh to "procure the leveing of six hundreth footmen, and four hundreth horsemen" to suppress a rebellion; and the presbytery complied with his request.[118] At the meeting of the General Assembly in March, 1596, King James was present. "He urged a contribution of the whole realme, not to be lifted presentlie, but when need sould require," and, to gain the sympathetic consideration of the Assembly, he promised that "his chamber doors sould be made patent to the meanest minister of Scotland, there sould not be anie meane gentleman in Scotland more subject to the good order and discipline of the Kirk than he would be."[119] It would be easy to multiply examples.

It was no case of ecclesiastical tyranny. The leaders of the Church might well apply to themselves the promise, "a willing people in the day of thy power." Modern democrats have denounced the Assembly as the oppressors of a priest-ridden populace. But the Assembly had made possible the existence of a public opinion in Scotland, and the public opinion of Scotland was with the Assembly. It is true that the documents to which assent was required appear to us crowded with metaphysical subtleties, to some of which no man who valued his freedom of thought could subscribe; but it must be remembered that these cast-iron theories registered the results to which that generation had attained. Moreover, it was in the Church courts, first of all, that Scotsmen learned the value and the power of debate. The Church did for Scotland what the Parliament accomplished for England. The Assembly was not a meeting of ecclesiastics alone. The strength of the Church lay in the presence of lay members in her courts,[120] to which there came earls, lords, and barons, and commissioners from provinces and universities. Each member, be he lord or peasant, the minister of St. Giles, or a Glasgow baillie, had equal right to speak, and no man's vote counted for more than that of his neighbour. The history of Scotland from the Reformation to the Revolution is the history of the General Assembly. The motto which it shared with other reformed churches is the story of the seventeenth century. _Nec tamen consumebatur._ Yet the flames burned fiercely enough.