History to CHAP. I. instructions to ambassadors, and were very careful of Its Early Parliamentary usages in treaties and the like. Their A.D. 1560. power was such that down to the time of the Union with England the question whether the consent of the sovereign was necessary to an act of Parliament was left undecided. Few conflicts occurred between the Crown of Scotland and the Estates, and those which did arise had their origin in the resolve of the Estates to permit no temporising or treating with England on the part of the sovereign. Procedure. From the fourteenth to the beginning of the seventeenth century, there is no evidence that any article or bill was brought in and discussed, opposed, supported, voted upon, in Parliament-that is, in plain and open Parliament. The accident of the Three Estates meeting in one chamber, as the Three Estates had met in England of old, was only a small part of the cause which destroyed freedom of discussion, and prevented the growth of what may be called Parliamentary feeling in Scotland for centuries. "The time was not Parliamentary. No one thought of making a party in Parliament. No one looked there for redress of grievances. During all that time-for three centuries—when a party were displeased with the conduct of the existing Government, they did not attack its favourite measure or Minister in Parliament, nor try to pass a vote of want of confidence in the Government. The leaders of the Opposition in Scotland took another way of righting themselves-they laid a trap for the young King, and carried him off to Stirling or St. Andrews, as the case might be, surrounded him with their armed followers, Douglases or Ruthvens, Homes or Hamiltons, and then summoned a Parliament of their own friends, which they took care to declare a free Parliament. In that Parliament they proceeded to carry on the government, and always in the first place to pass a long series of forfeitures of the estates of the opposite party." 1 Lectures on Scotch Legal Antiquities, by Cosmo Innes,-a very valuable work; but in this one instance of forfeitures the author is too sweeping. There were some notable exceptions. The formation of the body known as the Lords of the Articles has already been explained; but there was also a committee called the Lords Auditors of Complaints, which gave remedy of law to those who might apply for it. The proceedings of this committee from 1466 to 1494 have been printed by the Record Commission. Then there was the body styled the Lords of Council, whose proceedings likewise from 1478 to 1495 have been recovered and published. The Council was recast in 1503, when an act of the Estates declared that the lords were to be appointed by the Crown, and were to sit continually in Edinburgh, "or where the King makes residence, or where he pleases." As the Lords Auditors had authority only during the sitting of Parliament, it was necessary for some court or council to have the power of sitting during the recess, and this was given to the Lords of Council, who had the same jurisdiction as the Auditors, and completed their unfinished causes. CHAP. I. Its Early A.D. 1560. History to Lords Auditors. Lords of Council. Secret Council. The Secret Council was yet another committee for The advising the sovereign; and we have here perhaps "the cradle of an organisation which afterwards passed into the hands of the Crown itself to exercise an authority inimical to the constitutional action of the Estates." When the sheriffs, as representing the Crown, sometimes resisted the orders of the Auditors, questions of "privilege would arise analogous to those which frequently formed the subject of animated debate in the English Parliament. The Auditors, holding delegated power from the Estates as the supreme court of Parliament, counted themselves. a court of review on appeals from the King's courts, and promulgated their decisions with singular distinctness and emphasis. Occasionally they, adjudicated in international questions, as when they endorsed a decree against one William Lennox, of Kail, obtained from a French court of law by William Richardson, a burgess of Dieppe. As the Lords Auditors and the Lords of the Council The failed eventually to work well together, in 1532 the two bodies were practically amalgamated, and the Court of Session was founded, upon the model of the Court of Its Early A.D. 1560. History to CHAP. I. Parliament of Paris. Its general remedial powers seemed at times to overlap those of the Legislature; and it was deemed illogical to appeal from the Court of Session to Parliament, since the Court of Session was but the remodelling of that committee of Estates which was itself the high court of appeal, as exercising the full powers of Parliament. The court also made no provision for trial by jury, again thereby asserting that it represented Parliament, the grand jury of the nation.1 Personal privileges. Laxities ment. With regard to the privileges of the subject, there was no precedent in Scotland for privilege of peerage, for forest law, or for game law; and it was only at a very late period that the Scots Legislature, imitating the practice of England, enacted that the ownership of land was a necessary qualification for the privilege of slaying wild animals. While the feudal aristocracy of Scotland had undoubtedly great power, which was in certain cases abused, the Estates passed acts for fixity of tenure to the peasant, and imposed other checks on the arbitrary exercise of feudal power. Peers could not claim to be tried by a separate tribunal of their own, and important cases of treason were generally tried by the Estates, whether the accused were lords or commoners. "The Estates were ever jealous of leaving political offences to be dealt with by the King's courts; but for other offences a lord, however high, had to thole an assize,' or stand by the verdict of a jury, like any other subject." The Scots had a wonderful tenacity for "auld laws and lovable customs"; they held well together; and they knew no such risings of class against class as that of Wat Tyler in the sister kingdom. Yet the early Scots were not sufficiently careful of their of Parlia Parliamentary privileges. For example, the Committee of Articles appointed in 1535 were authorised to make acts with the whole force of Parliament, and they used that power by even imposing a tax. During later and perhaps worse times, the election of the Lords of the 'Burton, vol. iii. Articles "became the great job and juggle of the session." Matters went on thus till the reign of Charles I., when it was decided in 1633 that the bishops should choose eight lay peers, these lay peers elect eight bishops, and these sixteen elect eight commissioners of shires and eight of burghs. Parliament then came to its last degradation, meeting only on two days of the session, the first and the last, the first to choose the Lords of the Articles and the last to give their sanction to what they proposed. The Lords of the Articles were abolished. at the beginning of the Civil War; and although the committee was revived in the same form after the Restoration, its power and that of Parliament itself was soon suppressed, when an act was passed "that whatever the King and Council should order respecting all ecclesiastical matters, meetings, and persons should have the force of law." Up to the end of the reign of James II. of England this arbitrary government obtained. In the early Scots Parliaments the King was often present, overawing in part all the Estates; and there was no Speaker to guard and assert the liberties of the Commons.1 66 CHAP. I. Its Early History to A.D. 1560. of the Among the grave constitutional defects from which Abuses Scotland suffered was the King's prerogative of revoking King's all grants made during his minority, which proved "a prerogative. tremendous engine for unsettling the tenure and right of property in Scotland." With this prerogative was associated the statute of annexation, which declared all grants of Crown lands of a certain class to be incurably null and void. The excessive number of regalities and private jurisdictions was another serious evil. "These heritable jurisdictions, perhaps more fatal to political liberty than to justice between man and man, destroyed the independence of the Commons." The jurisdictions existed in all directions; they were not dealt with by the Act of Union; and they were only abolished by an act passed after the suppression of the rising in 1745. Innes's Scotch Legal Antiquities. CHAP. I. Its Early History to A.D. 1560. Lans affecting the sub ject. General progress. The freedom of the subject, moreover, was much less protected in Scotland than in England. There was no habeas corpus, or anything equivalent to it. The practice of judicial torture survived for a short time after it had ceased in England; and the power of putting the dead to trial for treason, borrowed from the law of Rome, was not abolished till after the Union. The law affecting treason also was vague and wide, but the Scotch had not before the Union that terrible concomitant of treason law, the power of punishing the posterity of traitors through the "corruption of blood." The better aspect of the constitutional picture, however, shows what noble work had already been accomplished. The last claim of serfdom proved in a Scotch court was in 1364, though the institution of slavery still remained to be grappled with and overthrown. In Parliament, the earliest laws we read of were passed in favour of the poor people who tilled the soil, and likewise in favour of the education of all classes of the community-first the barons' sons, and later the class that required an endowment of parish schools. In other directions, individual freedom was secured, justice was well administered, the general wellbeing of the community was fostered, the privileges of the burghs were extended, and the power of the sovereign for evil was curtailed. These were no mean advantages for the Scottish nation to have gained in this early stage of its constitutional history, and before the influences of the Reformation had permeated the length and breadth of the land. |