The History of the Scottish Parliament: Parliament in Context, 1235-1707 9780748628469

Citation preview

THE HISTORY OF THE SCOTTISH PARLIAMENT Volume 3

M2287 - BROWN & MAC TEXT.indd i

10/08/2010 16:47

THE HISTORY OF THE SCOTTISH PARLIAMENT General editor: Keith M. Brown Volume 1 Parliament and Politics in Scotland, 1235–1560 Edited by Keith M. Brown and Roland J. Tanner Volume 2 Parliament and Politics in Scotland, 1567–1707 Edited by Keith M. Brown and Alastair J. Mann Volume 3 Parliament in Context, 1235–1707 Edited by Keith M. Brown and Alan R. MacDonald

M2287 - BROWN & MAC TEXT.indd ii

10/08/2010 16:47

Parliament in Context, 1235–1707 Edited by

Keith M. Brown and Alan R. MacDonald

Edinburgh University Press

M2287 - BROWN & MAC TEXT.indd iii

10/08/2010 16:47

© in this collection the editors and in their several chapters the authors, 2010 Edinburgh University Press Ltd 22 George Square, Edinburgh www.euppublishing.com Typeset in Ehrhardt by Servis Filmsetting Ltd, Stockport, Cheshire, and printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne A CIP record for this book is available from the British Library ISBN 978 0 7486 1486 8 (hardback) The right of the contributors to be identified as authors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988.

M2287 - BROWN & MAC TEXT.indd iv

10/08/2010 16:47

Contents

Acknowledgements Contributors Abbreviations and Conventions Preface 1 2 3 4 5 6 7 8 9

Balancing Acts: The Crown and Parliament Gillian H. MacIntosh and Roland J. Tanner The First Estate: Parliament and the Church Kirsty F. McAlister and Roland J. Tanner The Second Estate: Parliament and the Nobility Keith M. Brown The Third Estate: Parliament and the Burghs Alan R. MacDonald House Rules: Parliamentary Procedure Alastair J. Mann Parliament and the Law A. Mark Godfrey The Law of the Person: Parliament and Social Control Alastair J. Mann Political Ideas and Parliament James H. Burns Parliament and Politics Julian Goodare

Index

M2287 - BROWN & MAC TEXT.indd v

vi vii ix xii 1 31 67 95 122 157 186 216 244 275

10/08/2010 16:47

Acknowledgements

The editors would like to thank the contributors and invited guests who participated in a successful symposium held at the University of St Andrews in August 2001. The preliminary papers delivered on that occasion inspired lively discussion and form the inspiration for the essays in this volume. The symposium was made possible through the financial support towards the costs provided by the British Academy. We are grateful to Edinburgh University Press for the patience shown to us in awaiting the delayed delivery of this third volume. Our thanks go to the contributors for staying the course and in delivering their chapters in good order. The publication of this volume would not have been possible without the financial support provided since 1997 by the Scottish Office, and subsequently the Scottish Executive, to the Scottish Parliament Project at the University of St Andrews. Keith M. Brown Alan R. MacDonald St Andrews, December 2009

vi

M2287 - BROWN & MAC TEXT.indd vi

10/08/2010 16:47

Contributors

KEITH M. BROWN is Professor of Scottish History at the University of St Andrews. He is author of Bloodfeud in Scotland, 1573–1625: Violence, Justice and Politics in Early Modern Society (Edinburgh, 1986); Kingdom or Province? Scotland and the Regal Union, 1603–1715 (Basingstoke, 1993); Noble Society in Scotland: Wealth, Family and Culture from Reformation to Revolution (Edinburgh, 2000); co-editor of the first two volumes of The History of the Scottish Parliament (Edinburgh, 2004 and 2005); and general editor of the The Records of the Parliaments of Scotland to 1707 (www.rps.ac.uk). JAMES H. BURNS, is Professor Emeritus of the History of Political Thought, University College London, editor of the medieval and early modern volumes of The Cambridge History of Political Thought and author of The True Law of Kingship (Oxford, 1996). A. MARK GODFREY is senior lecturer in Scots law at the University of Glasgow, and author of Civil Justice in Renaissance Scotland: The Origins of a Central Court (Leiden, 2009). JULIAN GOODARE is reader in History at the University of Edinburgh, and author of State and Society in Early Modern Scotland (Oxford, 1999) and The Government of Scotland, 1560–1625 (Oxford, 2004). KIRSTY F. MCALISTER is a former research assistant on the Scottish Parliament Project, and teaches for the universities of Stirling and Dundee. Her doctoral thesis was on James VII’s political influence in Scotland. She is currently working on the involvement of the Scottish Covenanting army in Ireland during the 1640s. ALAN R. MACDONALD is senior lecturer in History at the University of Dundee. He is author of The Jacobean Kirk, 1567–1625: Sovereignty, Polity and Liturgy (Aldershot, 1998), The Burghs and Parliament in Scotland, c.1550– 1651 (Aldershot, 2007), co-author of The Native Woodlands of Scotland, vii

M2287 - BROWN & MAC TEXT.indd vii

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 1500–1920 (Edinburgh, 2004) and co-editor of the five-volume Scotland: The Making and Unmaking of the Nation, c.1100–1707 (Dundee, 2006–7). GILLIAN H. MACINTOSH is project manager of the Scottish Parliament Project at the University of St Andrews. She is author of The Scottish Parliament under Charles II, 1660–1685 (Edinburgh, 2007) and editor of The Records of the Parliaments of Scotland to 1707 (www.rps.ac.uk). ALASTAIR J. MANN is lecturer in Scottish History at the University of Stirling. He is author of the Saltire Prize-winning The Scottish Book Trade 1500–1720: Print Commerce and Print Control in Early Modern Scotland (East Linton, 2000); editor of the online Records of the Parliaments of Scotland to 1707 (www.rps.ac.uk) and of the forthcoming The History of the Book in Scotland, volume 1, Medieval to 1707. ROLAND J. TANNER is author of The Late Medieval Scottish Parliament: Politics and the Three Estates 1524–1488 (East Linton, 2001) and editor of The Records of the Parliaments of Scotland to 1707 (www.rps.ac.uk). In 2003, he co-founded TannerRitchie Publishing which specialises in the publication online of historical sources and manuscripts from the medieval and early modern periods.

viii

M2287 - BROWN & MAC TEXT.indd viii

10/08/2010 16:47

Abbreviations and Conventions

For this volume personal names and place names have been modernised where identified. Personal names conform in general to G. S. Black, The Surnames of Scotland (New York, 1946). Place names have been modernised according to the Ordnance Survey Gazetteer of Great Britain (London, 1987). Sums of money are in pounds Scots unless otherwise stated (the pound Scots being worth roughly half a pound sterling before c.1450, and roughly a third thereafter, falling to a quarter by the late 1560s and then to a fixed rate of twelve pounds Scots to the pound sterling from 1601 onwards). The letters thorn and yogh are represented by th and y (except where z is the normal form) respectively. Dates have been modernised with the year change on 1 January rather than on 25 March. With the exception of those abbreviations given below, sources are cited in full when first mentioned in individual chapters and then given in abbreviated form thereafter in each chapter. APS

Acts of the Parliaments of Scotland, T. Thomson and C. Innes (eds) (12 vols, Edinburgh, 1814–75).

Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560

K. M. Brown and R. Tanner (eds), The History of the Scottish Parliament Volume 1: Parliament and Politics in Scotland 1235–1560 (Edinburgh, 2004).

Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707

K. M. Brown and A. J. Mann (eds), The History of the Scottish Parliament Volume 2: Parliament and Politics in Scotland 1567–1707 (Edinburgh, 2005).

Calderwood, History

History of the Kirk of Scotland by Mr David Calderwood, T. Thomson (ed.) (8 vols, Wodrow Society, 1842–9). ix

M2287 - BROWN & MAC TEXT.indd ix

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 CDS

Calendar of Documents Relating to Scotland Preserved, J. Bain (ed.) (5 vols, Edinburgh, 1881–8).

CSP Scot

Calendar of State Papers Relating to Scotland and Mary, Queen of Scots, 1547–1603, J. Bain, W. K. Boyd and A. I. Cameron (eds) (Edinburgh, 1888–1969).

EHR

English Historical Review.

ER

The Exchequer Rolls of Scotland, J. Stuart et al. (eds) (23 vols, Edinburgh, 1878–1906).

HMC

Historical Manuscripts Commission.

NAS

National Archives of Scotland (formerly the Scottish Record Office), Edinburgh.

NLS

National Library of Scotland, Edinburgh.

NRA(S)

National Register of Archives (Scotland).

PER

Parliaments, Estates and Representation.

Rait, Parliaments

R. S. Rait, The Parliaments of Scotland (Glasgow, 1924).

RCRBS

Extracts from the Records of the Convention of Royal Burghs of Scotland, 1295–1738, J. D. Marwick (ed.) (5 vols, Edinburgh, 1867–85).

RMS

Registrum Magni Sigilli Regum Scotorum, J. M. Thomson et al. (eds) (Edinburgh, 1882–1914).

RPC

Register of the Privy Council of Scotland (37 vols over three series, 1545–1691).

RPS

The Records of the Parliaments of Scotland to 1707, K. M. Brown et al. (eds) (St Andrews, 2007– ). Accessed between November 2007 and November 2009.

RRS

Regesta Regum Scottorum, G. W. S. Barrow et al. (eds) (Edinburgh, 1960– ).

RSCHS

Records of the Scottish Church History Society.

Scots Peerage

The Scots Peerage, J. B. Paul (ed.) (9 vols, Edinburgh, 1904–14). x

M2287 - BROWN & MAC TEXT.indd x

10/08/2010 16:47

a b b r e v iat io ns and c o n v e n t i o n s SHR

Scottish Historical Review.

SHS

Scottish History Society.

Tanner, Parliament

R. Tanner, The Late Medieval Scottish Parliament: Politics and the Three Estates, 1424–1488 (East Linton, 2001).

Terry, Scottish Parliament

C. S. Terry, The Scottish Parliament: Its Constitution and Procedure 1603–1707 (Glasgow, 1905).

TRHS

Transactions of the Royal Historical Society.

Young, Commissioners

M. Young (ed.), The Parliaments of Scotland. Burgh and Shire Commissioners (2 vols, Edinburgh, 1992–3).

Young, Scottish Parliament

J. R. Young, The Scottish Parliament 1639–1661: A Political and Constitutional Analysis (Edinburgh, 1996).

xi

M2287 - BROWN & MAC TEXT.indd xi

10/08/2010 16:47

Preface

This, the third and final volume of The History of the Scottish Parliament, marks the culmination of a project which began in the summer of 2001 with a British Academy sponsored symposium at St Andrews. As an adjunct to its primary purpose of publishing a revised, digital edition of the parliamentary record from the thirteenth century until 1707, the Scottish Parliament Project undertook to carry out and promote research into the broader contextual history of the institution. These three volumes, as well as three monographs, one resulting from a PhD thesis funded by the project, two further PhD theses, and numerous journal articles by the project’s staff, all of which have altered significantly our understanding of the history of parliament, represent the fruits of that research to date. Furthermore, in 2007 The Records of the Parliament of Scotland to 1707 became available online at www.rps.ac.uk, making research into the history of Scotland’s parliament more accessible than ever before. It was never our intention to produce a comprehensive or definitive history of the Scottish parliament in these three volumes. In volumes 1 and 2 the contributions are organised chronologically, with individual essays drilling down into particular periods and even individual parliaments in order to demonstrate how new sources and new uses of previously known sources might be deployed to rewrite late medieval and early modern Scotland’s political and constitutional history. The point was not to tell the whole story but to suggest how the story might be told. In the introductions to those volumes, the editors also set out the European context for developments in Scotland, and placed the case studies within a broader political narrative. The result of that output may not be an entirely coherent view of parliament, because the many authors offer different interpretations, but there is a common understanding that parliament was important and that its history has not been adequately appreciated. We hope that others will continue to use the online Records of the Parliament of Scotland, and the methodologies pioneered in these two volumes, to fill in the many gaps that remain in that political history and also to challenge the ideas expressed therein. This third volume is intended to fulfil a quite different role. In deliberate xii

M2287 - BROWN & MAC TEXT.indd xii

10/08/2010 16:47

preface contrast to the highly empirical, ground-level approach of volumes 1 and 2, the contributors of this volume were charged with adopting a loftier approach that seeks to address broad themes running through the centuries. In a sense, these essays represent progress reports on what we have learned since the 1980s when historians began to show a revived interest in parliament. These themes are broadly organised around the people who participated in parliament who, in contemporary jargon might be described as stakeholders; the values and processes of parliament, or what we might think of as the organisational culture; and the business that parliament conducted, or what could be considered to be its outcomes. To be properly constituted, parliament required the presence of the king and the three estates, and individual chapters address the role of each of these parts of the body politic. Roland Tanner and Gillian MacIntosh discuss the extent to which parliament was an instrument of crown power, suggesting that, while some kings came close to domineering over parliament, and a few sought to rule without it for short periods, kings could not ignore parliament and some were forced to submit to its authority. It is unnecessary to think in terms of a crown–parliament struggle raging through the centuries but kings did push their luck and it was parliament that more often than not pulled them back down to earth or which legitimised extra-parliamentary action against overbearing kings. In large part that was because the other groups present in parliament were too important to be ignored. Roland Tanner and Kirsty McAlister examine the contribution of the first estate which had disappeared entirely by the time parliament’s history came to an end. It is clear that the church’s role in parliament evolved. While prelates were present by the end of the thirteenth century, it was not until around the turn of the sixteenth century that significant ecclesiastical legislation began to emerge. After the Reformation, the Protestant church found itself represented by Erastian bishops, or with no representation at all, its influence on parliament remained strong and parliament’s tendency to legislate on ecclesiastical matters grew. Keith Brown sees the noble estate as the most powerful parliamentarians and, over the centuries of parliament’s existence, that noble power not only endured but it increased at the expense of the other estates. Even if one accepts that after 1587 the shire commissioners emerged as a new fourth estate, their presence represented a further enhancement of noble power and influence rather than social and political division within noble society. Furthermore, it would be unhelpful and unsophisticated to see parliament simply as a forum for crown–noble power struggles or to imagine that nobles saw parliaments only as occasions for engaging in high politics when they were more likely to be interested in getting parliamentary ratification for some piece of private business. Similarly, Alan MacDonald presents xiii

M2287 - BROWN & MAC TEXT.indd xiii

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 a view of the third estate of burgh commissioners as men primarily concerned to look after the affairs of the merchant community and the interests of their own towns. The burghs had their high points of political influence, notably when governments needed liquid capital, in the fourteenth century and in the later sixteenth and early seventeenth centuries, but their activities demonstrate that high politics was only a minor aspect of parliamentary business. It is worth remembering, however, that while there were three estates – arguably four from the formalisation of shire representation in 1587 – there was only one chamber. Most of the time, the men who gathered with the king in parliament worked together in that chamber and in its committees for the good of the kingdom, and Alastair Mann explores the increasingly complex deliberative process by which the business of parliament was done. Alongside this, he discusses parliament’s rituals, revealing the colourful pageantry and symbolism of the ceremonial aspects of parliament’s proceedings. When we turn to what parliament did, we are faced by a range of documentary evidence from the most dramatic and far-reaching to the huge volume of more prosaic ratifications of the privileges and properties of individuals and corporations. Mark Godfrey considers parliament’s role as a lawmaker and shows how it evolved, from a body in the fifteenth century which was as much concerned with judicial business as it was with legislation, into primarily a legislature by the middle of the sixteenth century. Thereafter, it maintained a close relationship with the central courts and even retained some aspects of its former judicial functions. Parliament also played an important role in the regulation of people’s lives, which Alastair Mann discusses in a chapter that demonstrates the extent to which the crown and estates sought to provide numerous frameworks within which a remarkably broad range of everyday activities was covered, including education, marriage and even leisure. Those who sat in the parliamentary chamber brought with them a great deal of ideological baggage that influenced how they went about their business. It is also true to say that what they experienced at parliament may have altered their political ideas. More often than not, those ideas are likely to have been mundane but even the least theoretically inclined burgh commissioner or minor nobleman was imbued with ideas about sovereignty, obedience or resistance. James Burns offers an insight into the main strands of thought that influenced parliament and people’s ideas of parliament. He argues that, while parliament did not hold a prominent position in the expression of political thought during the medieval period, it was none the less a key forum in which political theories were practically articulated, both overtly and implicitly. From the middle of the sixteenth century onwards, however, it gained considerable prominence in political writings through its role in revolutions. These ideas contributed considerably towards the political culture xiv

M2287 - BROWN & MAC TEXT.indd xiv

10/08/2010 16:47

preface which Julian Goodare analyses, indicating that parliament retained its central constitutional role in spite, or perhaps because, of royal minorities, factional tussles and revolutions. He demonstrates how much of what parliament did, even its ordinary business, can be understood politically, and how the institution adapted to social and political change throughout its existence. Just as volumes 1 and 2 have left many opportunities for additional research on discrete political topics, so this current volume does not close the door on further thematic research. The most obvious gap is parliament’s role in relation to the raising of taxation. Another theme that might be developed is the analysis of the language of government as expressed in the parliamentary record. The role played by parliament in influencing foreign policy requires exploration, while much more can be understood from investigating the physical locations in which parliament conducted its business. It is the hope of the editors of all three volumes that they form the basis upon which scholars will continue to develop and refine our understanding of Scotland’s parliament in the future. Keith M. Brown and Alan R. MacDonald

xv

M2287 - BROWN & MAC TEXT.indd xv

10/08/2010 16:47

Frontispiece from Sir Thomas Murray of Glendook, The Laws and Acts of Parliament Made by King James the First, Second, Third, Fourth, Fifth, Queen Mary, King James the Sixth, King Charles the First, King Charles the Second who now presently reigns, Kings and Queens of Scotland (Edinburgh, 1681).

M2287 - BROWN & MAC TEXT.indd xvi

10/08/2010 16:47

chap t e r 1

Balancing Acts: The Crown and Parliament Gillian H. MacIntosh and Roland J. Tanner

Introduction

W

hatever powers they might acquire over the centuries, and however much monarchs might often regret the need to call them, parliaments were royal institutions through and through. Parliaments across Europe had their origins in the Norman curia regis, and in Scotland they were summoned at the will of crown, with attendance commanded and required by the king. This royal nature was underlined by the fact that parliament was, and remained, a court of law that heard and settled disputes and legal appeals, and acted as the ultimate arbiter of royal justice. While there was, from the earliest time, a clear difference, noted by clerks, between the king’s council and parliament, the latter was, in Robert Rait’s words, ‘a special function of the king’s council’,1 and derived a considerable amount of its authority from this fact. The earliest royal summons to parliament to survive, from 1293, illustrates all three of these points, beginning: We command that, giving up all other business, you attend by every means you can at our colloquium . . . [and] all complainants within the bailiary [are] to be forewarned that they should be in the same place in presence of us and our council.2 This view of parliament is one that was shared by James VI in 1598 who described parliament as a feudal court subject entirely to the king, arguing that the king existed ‘before any parliaments were holden, or laws 1. Rait, Parliaments, p. 128. 2. RPS, 1293/8/1.

1

M2287 - BROWN & MAC TEXT.indd 1

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 made’.3 Judging by their actions, his successors agreed with him, and it is likely that his predecessors would also have liked to think that this was true. Yet the royal nature of the event was tempered by a simple fact: parliaments existed because the medieval and early modern crown was far from absolute. It required genuine support, or at least tolerance, from the estates if its policies, acts and taxations were to be implemented. Legislation passed in parliament was passed publicly, with the consent of the men who would subsequently be employed in its implementation once the meeting dissolved. In theory, any act passed had the publicly witnessed support of the leading men of the realm, and so parliamentary assemblies created a direct link between decision-making and implementation. As a result, throughout parliament’s history there existed a tension between the way in which parliament was viewed, both as the ultimate embodiment of the power of the crown (especially when considered separately from the person of the monarch which was increasingly the case in the early modern period), and the chief means by which the behaviour of the crown could and should be shaped by the advice of the kingdom at large (as embodied in the three estates). The degree of emphasis placed on crown authority or the authority embodied by the three estates could, unsurprisingly, differ sharply between the monarch and parliament’s members. The king’s opinion, where it can be discerned with any clarity, typically was that his agenda should be acted upon with as little interference as possible and, under kings like Charles II, something close to this was practised by his ministers. Yet the behaviour of the membership of parliament indicates at numerous points that the estates viewed their role as far more significant, at least in restraining royal policy but also at times in initiating policy against the wishes of the crown. The picture of the medieval parliament that has emerged over the last fifteen years has often been of an institution that could be almost relentlessly obstructive and hostile to the crown’s agenda. This portrayal has not sufficiently emphasised the royal nature of the institution or the benefits it brought to the crown.4 There is also running through the history of the early modern parliament a narrative of political tension between the absolutist pretensions of the crown and those among the estates who believed that sovereign authority lay within a parliament in which the 3. J. P. Sommerville (ed.), King James VI and I; Political Writings (Cambridge, 1994), pp. 73–4. 4. E.g. Tanner, Parliament. By contrast, Michael Brown has emphasised the degree to which the frequent sessions of parliament were a reflection of the increased power of the fifteenth-century crown in ‘Public authority and factional conflict: crown, parliament and polity, 1424–1455’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560.

2

M2287 - BROWN & MAC TEXT.indd 2

10/08/2010 16:47

the c r o wn and pa r l i a m e n t crown had a pre-eminent place.5 Yet it is not particularly helpful to view events in terms of a ‘crown versus parliament’ struggle, given that, for much of the time, the two were inextricably linked. The crown was forced to work with the estates to achieve its aims, be it in raising money, the ratification of significant political and religious reforms, or the shaping of law. Therefore, a parliament was an occasion when consensus was sought between the crown and the estates. By the late fifteenth century, it was generally accepted that binding decisions should be reached in parliament because the agreement of the estates gave legitimacy to government policy. It is also true that issues of national importance generally needed parliamentary endorsement and that, without it, royal policies were likely to fail.6 Arguably in the early modern era, Scotland might best be described as a mixed monarchy in which sovereign authority was exercised by the king with the participation of the political community sitting in parliament. Although parliament was the highest court of the king, the monarch could neither raise taxes nor pass laws without the agreement of a majority of the estates: it was the concept of the crown, and not solely the person possessing the crown, that bound the whole structure together.7 Thus the estates’ approval was sought for the weightiest of national concerns, from the adoption of the Protestant faith in 1560 to the transfer of the crown to William and Mary in 1689. Although the frequency of its meetings and its influence could wax and wane depending on the political ability and financial resources of the monarch, parliament was never fully eclipsed in favour of a more absolutist royal government. Of course, the person of the monarch was not entirely insignificant, and much of the political history involving crown and parliament turned on the character and circumstances of individual kings. Thus: Robert I’s struggle to establish his kingship dominated his dealings with parliament; James I’s grasping and authoritarian instincts created mistrust among the estates; James IV’s wealth allowed him to ignore parliament; James VI’s penchant for a form of patriarchal absolutism increasingly shaped his dealings with it; and James VII’s religious convictions and arbitrary instincts turned parliament against him. One of the issues confronting historians of parliament, therefore, is whether the crown called parliament because, in effect, it was forced to, or whether 5. See the contributions in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1707; Young, Scottish Parliament; G. H. MacIntosh, The Scottish Parliament under Charles II 1660–1685 (Edinburgh, 2007). 6. J. H. Burns, The True Law of Kingship. Concepts of Monarchy in Early Modern Scotland (Oxford, 1996); J. Goodare, The Government of Scotland 1560–1625 (Oxford, 2004), ch. 1. 7. J. Goodare, State and Society in Early Modern Scotland (Oxford, 1999), ch. 1, esp. pp. 15–16, and Goodare, Government of Scotland, pp. 85–6.

3

M2287 - BROWN & MAC TEXT.indd 3

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 there were enough benefits to make the risk of gathering the political elites together worthwhile. The King’s ‘Plain Parliament’ The very earliest years when evidence survives for the existence of parliament (called a colloquium between 1235 and 1293) do not provide enough evidence to make any confident assumptions about the assembly’s primary role. Political, judicial and diplomatic functions can be inferred, yet the temptation has been to assume that parliament began as a mirror image of its English counterpart, with a strongly judicial role.8 In fact, the two earliest pieces of business that survive are a royal letter recording a private, non-judicial, agreement between Melrose Abbey and Roger Avenel in 1235, and a similar, private, non-judicial, agreement between Maldouen, earl of Lennox, and his son Malcolm on one side, and Sir David Graham on the other.9 The acts, therefore, are not judicial or diplomatic, nor are they overtly political. The crown seems almost absent from these proceedings although there is no guarantee that the surviving records are typical of the business that was transacted at these colloquiums. In the reign of Alexander III, we see the first reliable evidence of parliament as a court, when a judicial inquest was held ‘in pleno colloquio domini regis’ at the Holyrood colloquium of 13 January 1256.10 Here we see the first instance of a key concept upon which parliamentary power was based. It was a phrase which would be echoed repeatedly down the centuries, still used in 1650, and also common in England, of the king’s ‘plain parliament’. Plain, in this context, meant not only ‘fully attended’, but also ‘having full authority’.11 Parliament had acquired the special authority that made it different from any other royal institution. It had become the place where the authority vested in the crown and the inherent authority of the landowners were merged to give an unparalleled level of legitimacy to whatever parliament did. After this glimpse of parliament’s future, however, there remain only brief and uninformative mentions of colloquiums or ‘parliaments’ for the remainder of Alexander III’s reign, and one further piece of private, non-royal, business, done in a colloquium in 1285.12 8. H. G. Richardson, ‘The origins of parliament’, in H. G. Richardson and G. O Sayles, The English Parliament in the Middle Ages (London, 1981), pp. 146–57; A. A. M. Duncan, ‘The early parliaments of Scotland’, SHR, xlv (1966), 36–7. 9. RPS, 1235/1 and source popup (*), A1248/1. 10. RPS, 1256/1. 11. RPS, A1650/3/2. See OED, ‘plain, adj2’ ‘Plain’ is the translation of ‘plenum’ used in the acts themselves from at least 1425 (RPS 1425/3/13), and is therefore used here in preference to the more conventional English translation of plenum as ‘full’. 12. RPS, A1258/1–A1285/1.

4

M2287 - BROWN & MAC TEXT.indd 4

10/08/2010 16:47

the c r o wn and pa r l i a m e n t While the ‘parliaments’ at Birgham in the brief reign of Margaret were so extraordinary that they are best left aside, the reign of John Balliol provides unambiguous evidence that he saw parliament as an important element in the exercise of the authority of the crown.13 The meeting of February 1293 is also the first assembly to be referred to as a parliament by the crown itself: all previous uses of the word are either in English sources or in the AngloScottish Treaty of Birgham.14 The two surviving rolls of parliament are concerned primarily with recording pleas whereby suits were brought before the king in parliament for settlement. Yet, acts made specifically recording the involvement of ‘bishops, earls and barons’, giving evidence concerning events in the reign of Alexander III, and legislation establishing several new sheriffdoms create the impression of parliament acting in a way familiar in later years. Major governmental innovations benefited from enactment before a large audience, while the presence of a substantial number of leading men in one place could be a useful expedient for any number of extraordinary matters.15 When the acts recorded the names of the men (including Bruce the Competitor) who ignored their personal summonses to be present at parliament to do homage to the new king, it sent a clear message about the importance that the institution had acquired, and the way that John intended to use it to stamp his authority on the land. Ranald Nicholson succinctly noted that there is ‘remarkable evidence that King John and his council were determined to secure the possessions and authority of the crown’ after 1293.16 The major tool by which this was done was parliament. Yet the Lanercost Chronicle claims that, just two years later, at a parliament at Stirling in July 1295, Balliol was removed from active control of government, to be replaced by a council of twelve advisers.17 The reliability of this claim has rightly been questioned, and there seems no way to be sure either that Balliol was removed from direct power or that it was done by a parliament. Yet it is known that ambassadors were appointed to go to France at exactly the time and place as the parliament claimed by Lanercost.18 Given the precedent set in 1293 that Balliol’s parliaments were to be the forum for settling matters of key importance, and the manifestly controversial nature of the embassy, which flew in the face of the wishes of Edward I and led to Scotland’s 13. RPS, 1290/3/1–1290/7/1. 14. J. Stevenson, Documents Illustrative of the History of Scotland from the Death of Alexander III to the Accession of Robert Bruce, 1285–1306 (2 vols, Edinburgh, 1870), vol. I, p. 170. 15. RPS, 1293/2/1–1293/2/20. 16. R. Nicholson, Scotland: The Later Middle Ages (Edinburgh, 1974), p. 44. 17. J. Stephenson (ed.), Chronicon de Lanercost (Maitland Club, 1839), p. 162. 18. F. Watson, Under the Hammer: Edward I and Scotland, 1286–1307 (East Linton, 1998), p. 20; RPS, 1295/1, A1296/2/1.

5

M2287 - BROWN & MAC TEXT.indd 5

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 conquest, it remains possible that such an assembly was held. If so, Balliol’s short reign acts almost as a microcosm of Scottish parliamentary history. He came to the throne using parliament as a powerful tool in the establishment of strong and innovative kingship, only to have the same tool used to undermine him, pre-empting his eventual deposition at the hands of Edward I. Ironically, as Robert I established his kingship after 1307, he did it in part by emulating the early parliaments of John Balliol. Robert used parliament throughout his reign as a tool to emphasise and augment the power of the crown, and was perhaps unsurpassed in the medieval period at harnessing the power of collective authority to achieve his objectives. For Bruce in 1309, for instance, a key message was the very fact that parliament sat, and the implication of a ‘return to normal’ that this carried. It followed a period of approaching fifteen years during which there is no conclusive evidence that a formally constituted parliament sat.19 From 1309, parliament was rejuvenated and became a frequent and central event in political affairs. That first parliament of Robert I set the tone for the rest of the reign: it was the setting for the issuing of the Declaration of the Clergy, addressed to ‘all Christ’s faithful’; a letter in the names of the magnates of Scotland, addressed to Philip IV of France; and probably a declaration of the nobles, in similar form to that of the clergy, also addressed to the French king. All three were written to give the impression that they were made at the instance of the ecclesiastical and secular magnates, and yet there is good evidence that documents of this sort were drafted and sealed under the strict control of the crown, culminating in the Declaration of Arbroath in 1320. Robert I used parliament as a powerful tool in a campaign to bolster royal authority and to shore up the shaky foundations on which his nascent dynasty was being built. A typical example can be found in 1315, when the seals appended to the first Bruce tailzie, making the king’s brother Edward heir to the throne at the expense of his daughters, gave the impression of deliberately being arranged to include men of low status and others who had recently been rebels. It is possible that the king saw the inclusion of their names on an important document dealing with the succession as a way further to obligate them to his kingship.20 While Robert I’s reign remained far from secure well into its second decade, the threats to the crown were not manifested in parliament. Instead, the rhetoric of collective authority and decision-making embodied 19. There is no entirely reliable evidence of a parliament between 1294 and 1308. After the deposition of Balliol in 1296 all evidence is extremely shaky (RPS, A1296/2/1–1308/1, and notes). 20. R. J. Tanner, ‘Cowing the community? Coercion and falsification in Robert Bruce’s parliaments, 1309–1318’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560.

6

M2287 - BROWN & MAC TEXT.indd 6

10/08/2010 16:47

the c r o wn and pa r l i a m e n t by the community of the realm was adopted by the crown to create a picture of unity that did not exist in reality. That absence of unity and the fragility of the Bruce dynasty continued beyond Robert I’s death in 1329. Nevertheless, the beginning of what can be considered the classic late medieval relationship between the crown and estates, which typified much of the period up until, and even after, 1488, began in the reign of David II. Michael Penman has described that king’s ‘love-hate relationship with parliament and general council, engaging in a . . . complex, improvisational game with increasingly politicised subjects and estates’ for David’s reign, and the phrase could equally be applied in the fifteenth century.21 In March 1364, parliament stated that it would ‘in no way’ (nullo modo) accept the king’s plan to allow an English succession for the Scottish throne, and then in June 1368, in answer to points raised by Edward III, parliament stated: having had mature deliberation and assiduous counsel for four days and more upon the foregoing . . . it is still not proper or expedient to enter nor attempt negotiation concerning the granting of any of the said points, which formerly in full parliament, at which more numerous and more important people were present than now are here present, were unanimously rejected by the three communities.22 The wording is remarkably emphatic, especially once it is established that the king himself was firmly on the side of accepting the terms that parliament rejected. Yet, against the clear overriding of royal wishes must be placed the sheer quantity of material produced by David II’s parliaments and councils of the estates by the standards of medieval Scotland; the detailed legislation – augmenting royal authority in the kingdom – and the generous nature of the financial provision that the estates were willing to grant David to pay his ransom, with repeated generous taxations and adjustments to royal customs.23 Parliament undoubtedly caused David II headaches but the benefits usually outweighed the disadvantages. Parliament’s Loyal Opposition This relationship between the crown and parliament, by which it both aided the development of royal power and acted as a restraint on royal excess, 21. M. Penman, ‘Parliament lost – parliament regained? The three estates in the reign of David II’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560, p. 76. 22. Penman, ‘Parliament lost – parliament regained?’, pp. 89, 91; RPS, 1364/1, 1368/6/9. 23. Penman, ‘Parliament lost – parliament regained?’, pp. 93–4. Examples of the breadth of legislation of obvious value to the crown can be seen in RPS, 1366/1–18.

7

M2287 - BROWN & MAC TEXT.indd 7

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 remained the case through most of the late fourteenth and fifteenth centuries. Parliaments were called frequently because there were pressing reasons for calling them, and the undoubted nuisance value and occasional risk of gathering people who represented almost the entire landed and urban wealth and power of the country in one place for a number of days were outweighed by the benefits. At this juncture it is worth re-emphasising a point about the difference between medieval parliaments and their modern-day counterparts. While both are considered representative assemblies, in that the members are considered to represent by proxy the interests of the entire country, a medieval parliament differed in a fundamental regard. In many respects a well-attended parliament did not represent the country, it was the country. Anybody with significant power was there – no modern institution comes close to that concentration of wealth and power in one room. This was why it had such an ability to ‘get things done’ and sometimes speak in remarkably frank terms in response to crown requests. Yet it must be remembered, as Stephen Boardman and Roger Mason have emphasised, that even when parliament was problematic for the king, it still perceived itself as acting in the interests of the crown: ‘the interests of the crown and community were seen as inseparable’.24 When parliament stood in the way of the king’s wishes, it did so using language that made it clear that it acted on behalf of the crown. A fine example is the removal of Robert II from direct government of the kingdom in a council of the estates at Holyrood in November 1384. First, an act was passed that implied considerable displeasure with the king’s administration of justice: [The] king . . . has obliged and submitted himself and with a willing spirit has undertaken that he will promptly and duly reform and repair all and singular things which have been committed by him, if he should [have] commit[ed] any acts negligently, which God forbid, knowingly or otherwise, against law, for any party complaining concerning him in his council, according to the way it seems to his council it ought to be repaired and reformed.25 Then, since Robert II had proved himself incapable of carrying out the proper execution of justice and law, his son John, earl of Carrick, was asked to 24. S. Boardman, ‘Coronations, kings and guardians: politics, parliaments and general councils, 1371–1406’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560, p. 121; R. Mason, Kingship and the Commonweal: Political Thought in Renaissance and Reformation Scotland (East Linton, 1998), pp. 8–35. 25. RPS, 1384/11/3. The Latin grammar of the act employs a cumbersome mix of subjunctive and future perfect tenses which have been simplified in this quotation. The exact tenses are used in the RPS translation.

8

M2287 - BROWN & MAC TEXT.indd 8

10/08/2010 16:47

the c r o wn and pa r l i a m e n t take on that role instead. This action was portrayed as something done at the king’s behest but the very next act stated that if the said earl [of Carrick] should happen to incur the king’s displeasure in making the aforementioned execution, or in the case that any resistance or rebellion shall be made against him [Carrick] by anyone within the realm, with their [the three estates’] counsel and help they will strengthen, support and assist him in settling the king’s displeasure and in the repressing of this resistance or rebellion.26 Clearly there was strong suspicion that the king was not happy with handing over power to Carrick, and the three estates committed their support to ‘settling the king’s displeasure’. While the text stops short of describing the king’s displeasure as an act of rebellion, the handling of royal hostility and rebellion against Carrick side by side suggests that they were seen as two sides of the same coin. The point to understand here is that, despite the radical actions being taken in the name of the three estates, the acts portrayed this as the restoration of good government and the defence of the crown on behalf of the common weal. Perhaps the only exception to the rule that parliament, even at its most interventionist, spoke in the language of the crown, came at the general council of October 1436. Two separate and near-contemporary accounts by Piero del Monte and John Shirley agree to a great extent about the events at the council. Both portray the selection of a person to speak on behalf of the estates who then stood up in the assembly and gave a detailed speech attacking the king’s actions in previous years – particularly in his demands for taxation. Both accounts agree that the speaker, Sir Robert Graham, an agent of the earl of Atholl, did not receive the backing he expected from the estates, who remained silent, and the parliament was stormed by the king’s personal guard to restore order. Graham’s speech, according to Shirley, went beyond the traditional call to reassert the power of the crown and instead accused the king of tyranny, before he attempted to arrest him in the name of the three estates on the basis that he had broken the contract between the king and his people.27 This departure from the conservative language in which parliament operated may help to explain why Graham’s attempted parliamentary usurpation did not receive the support he expected, forcing Atholl to take matters into his own hands and sponsor the king’s murder in February 1437. With the exception of 1436, parliaments throughout the fifteenth century 26. RPS, 1384/11/4–5. 27. Tanner, Parliament, pp. 69–70.

9

M2287 - BROWN & MAC TEXT.indd 9

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 continued to play the role of defender of the crown, even when it was not acting as defender of the king. A few examples must suffice. In 1424, 1450 and 1469, parliaments were the scene of highly symbolic meetings where the authority and status of the crown was reasserted after periods of minority or absence. Such meetings amounted to ‘a statement of the rights and role of the crown’ where parliament provided the setting in which the crown could proclaim its sovereignty.28 Other well-known acts, such as the statutes of the August 1455 parliament, including the act of annexation, aimed to put the crown on a footing that made it safe from ever again facing the sort of challenge it had just overcome from the Black Douglas family. While such acts gave the three estates a great deal of influence over the crown, which it wielded frequently throughout the century, they do not dispute Boardman’s point that the interests of the crown and those of the estates were seen as inseparable.29 Even the parliamentary oaths of 1445, by which the king promised ‘the law, custume and statutis of the realm neyther to eik nor to myniss without the consent of the thre estatis’, were part of a process that sought to bind king, crown and magnates together by mutual obligations. The repeated criticism of James III, especially with regard to the administration of justice, was again voiced in terms of returning the king to the proper path from which he had strayed. Again parliament’s rhetoric was that it acted in defence of the interests of the crown, which were indivisible from their own.30 Parliament’s role as a safeguard of crown interests against the excesses of any other party was also seen in royal minorities and guardianships. While parliament and general council played a low-key role between 1406 and 1424, during the captivity of James I in England, it had been prominent in the decisions relating to the establishment of governorships in the reigns of Robert II and Robert III. It is easy to suggest that meetings of the estates may simply have validated faits accomplis that had occurred before the assembly met, as it most obviously did following the Boyd usurpation of 1466. Equally, it is difficult to see anything other than a genuine attempt to oversee the governorship of Robert, earl of Fife, later duke of Albany, made in December 1388 as a result of the infirmity of the earl of Carrick. The earl of Fife’s governorship was carefully delimited: to last until [Robert II’s] said firstborn son [Carrick] recovers from his infirmity by God’s grace or until his firstborn son and heir [David, later duke of Rothesay] arrives at the ability of governing his office according 28. Brown, ‘Public authority and factional conflict’, p. 135. 29. RPS, 1455/8/2–15. 30. RPS, 1445/3–6, 1478/6/80.

10

M2287 - BROWN & MAC TEXT.indd 10

10/08/2010 16:47

the c r o wn and pa r l i a m e n t to and by the determination of the council of the kingdom, and as long as this lord Earl of Fife shall manage himself well and usefully in the aforesaid office, according to the determination and declaration of the general council or parliament.31 A similar arrangement was established for the fifth earl of Douglas who was made lieutenant general of the realm after the death of James I whereby a relatively complex system of government was put in place between the lieutenant and the three estates. The small number of government documents that survive from this time suggest that the lieutenant acted in tandem with the king’s council and frequent meetings of general council, and that indications of the authority of the three estates in the minority government were viewed as important.32 When the factional divisions over who should control the government reached their peak in the minorities of James II and James III, parliament tended, at least initially, to rubber-stamp the decisions of whichever party had most recently seized power, but that did not stop it shaping and sometimes undermining the actions of unstable regimes that came to power through coups – most notably those of the Boyd family between 1466 and 1469. The Boyds probably deliberately avoided calling parliament in the latter part of the minority of James III, fearing what would happen when the hostile estates were gathered in one place.33 It sometimes seems remarkable that the expedient settled upon by the Boyds was not chosen more often before the reign of James IV. Parliaments were difficult, sometimes dangerous occasions, and kings had it within their power to avoid the entire problem by not calling them. The reason was that parliaments also offered a range of important benefits to the crown. At their best they acted as the most effective means of demonstrating the authority of the crown, and they gave the crown additional power that it could use to innovate and extend its power through the kingdom. While instances of anything between gentle grumbling and outright hostility to the king are not hard to find in the acts of parliament, against this must be placed the vast body of legislation that was uncontroversial and which dealt primarily with the implementation of royal authority. Parliaments held out the promise, albeit often not realised, of raising large sums of extraordinary taxation that the crown found it difficult to raise in other ways. Parliament also provided a forum for granting royal patronage in lands and parliamentary peerages, for settlements of disputes, and the transaction of very large quantities of legal appeals to 31. RPS, A1466/1, 1388/12/1. 32. Tanner, Parliament, pp. 76–90. 33. Ibid., pp. 186–90.

11

M2287 - BROWN & MAC TEXT.indd 11

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 parliament’s judicial committee, the lords auditors. Finally, in a century that saw the fall of the large magnatial houses that posed a threat to the crown, only parliament had the authority to put the legal seal on the destruction of the Albany Stewarts and Black Douglases, and then permanently annex much of the forfeited land to the crown. James IV, it seems, was sufficiently skilled to find ways by which he could assign the functions of parliament to other institutions, and thereby avoid having to summon the estates so often. Perhaps it was also in part because parliament had succeeded in its objectives of defending and enhancing the interests of the crown to such an extent that the crown no longer needed it. This was to change again in the aftermath of Flodden as parliament became the tool of rival factions on numerous occasions during the sixteenth century while recovering its former role at the centre of governance. Royal Minorities, Constitutional Crisis and Divine-right Monarchy For just over half of the sixteenth century, the crown was possessed not by an adult but a minor, and thus regnal power was exercised by a series of regents who governed on the monarch’s behalf. James V, Mary and James VI all had minorities which correspondingly spanned 1513–24, 1542–54 and 1567–78 and each was followed by an unstable period in which the monarch was too young to rule. James V and James VI were unable to govern independently until about 1528 and 1585 respectively and, even after she was declared of age in 1554, Mary continued to have a regent until the death of Mary of Guise in June 1560. The absence of strong personal kingship and the resultant factionalism, recurrent features of government during minorities, saw parliaments summoned frequently to provide political direction. Parliamentary authority, therefore, was enhanced, strengthening the estates’ role in legitimising action taken for or against the crown. James IV’s death in 1513 ushered in a prolonged minority for his heir, and was significant in parliamentary terms because it offered an opportunity for the estates to resume a regular role in government. James IV had reduced parliament from an almost annual occurrence to a rarity, with only three sessions after 1496.34 Although the accession of the eighteen-month-old James V did see a return to semi-regular parliaments, meetings were often dominated by factional disputes between rival regents or governors, as in November 1513 when a general council considered an abortive French proposal for John Stewart, duke of Albany, to replace Queen Margaret as guardian of the realm, or in February 1525 when parliament oversaw the transfer of the regency 34. N. Macdougall, James IV (Edinburgh, 1989), pp. 150–5, 158–66, 170–95.

12

M2287 - BROWN & MAC TEXT.indd 12

10/08/2010 16:47

the c r o wn and pa r l i a m e n t from the queen to Archibald Douglas, sixth earl of Angus.35 James V’s minority was particularly turbulent, and parliament’s business reflected this. Issues in relation to the control of the king’s person were a recurrent topic, this being a major concern of the sessions of July 1516, May 1517, February 1522, August 1524, November 1524, February 1525 and July 1525.36 In 1526, when Angus refused to relinquish custody of the young king, he summoned parliament to declare James of age, and manipulated the estates to control royal patronage and advance his kinsfolk to various positions of power. In 1528, on his eventual escape from Angus’s grasp, James made similar use of the institution, the first act of parliament under his personal rule being the forfeiture of the Douglases for treason.37 James V largely inherited his father’s aversion to frequent sessions of parliament, preferring instead to procure essential revenue from sources other than taxation.38 The establishment and endowment of the college of justice as a permanent civil court in 1532 provided another means of augmenting the royal coffers from ecclesiastical revenues, while depriving the estates of their important judicial function.39 Those parliaments which took place during the early part of James V’s personal reign lacked much in the way of political controversy, and attendance dwindled to a low of twenty-seven in May 1527 as a result of the relative unimportance attached to its meetings.40 The 1530s witnessed a minor revival, however, as parliament was called upon to provide a legislative definition of the country’s religious orientation in response to the challenge of the Reformation.41 Yet it was not until James V’s death in 1542 that the pattern familiar over the previous two centuries – frequent sessions and a more prominent role for the estates in influencing crown policy – was fully restored. The minority of Queen Mary saw the estates assembled almost annually as the institution was exploited by whatever faction happened to be in the ascendancy. Under the regency of James Hamilton, second earl of Arran, from 1542 to 1554, dynastic and religious issues dominated, as policy vacillated between pro-English and pro-French solutions to the problem of the 35. RPS, A1513/1, 1525/2/8; K. Emond, ‘The parliament of 1525’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560, pp. 171–6; Rait, Parliaments, pp. 39–41. 36. RPS, passim. 37. RPS, 1526/6/8, 1528/9/6. 38. J. Cameron, James V (East Linton, 1998), pp. 1–4, 9–10, 255–62, 272; G. Donaldson, Scotland. James V–James VII (Edinburgh, 1971), p. 46. 39. RPS, 1532/6, 1540/1/64; A. M. Godfrey, Civil Justice in Renaissance Scotland: The Origins of a Central Court (Leiden, 2009), esp. pp. 94–160. 40. RPS, 1527/6. 41. See, for example, RPS, 1532/5, 1535/10 and 1540/12/55–63.

13

M2287 - BROWN & MAC TEXT.indd 13

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 marriage of the infant queen.42 In 1544 rival meetings of the estates were summoned, one by Arran at Edinburgh on 6 November, and another by Marie de Guise at Stirling six days later. Recurrent hostilities with England meant a steady demand for the estates’ input, as they oversaw the raising of money and men for military action. Marie de Guise’s regency (1554–60) continued in a similar vein, with five parliaments held within the space of four years (1555–8). The traditional aversion to taxation prompted discontent within Guise’s parliaments, especially her abortive tax reassessment scheme of 155643 but, in general, the three estates were supportive of her policies, including those which paved the way for an absentee French monarch to rule Scotland. In 1557 Guise was successful in persuading the estates to finance a delegation of commissioners to treat for marriage between Queen Mary and the dauphin of France. The subsequent grant of the crown matrimonial to the dauphin, who assumed all of Mary’s rights as sovereign, was ratified by parliament in November 1558.44 Over the issue of taxation, the estates already had shown an independent streak, being unwilling simply to concur with royal policies which were perceived as detrimental to their interests. Therefore their acceptance of the Franco-Scottish dynastic union and its potential threat to national liberties would suggest that the proposal had broad support within parliament, even if later observers, such as John Knox, asserted that its passage had been assured only on the secret promise that religious reforms would follow.45 For much of the first half of the sixteenth century, parliament was either a tool in the hands of whatever regent or faction happened to have control of government, or it was sidelined when the monarch assumed personal authority. In 1560, however, the political importance of parliament was underlined when the estates were the vehicle for carrying through a religious reformation against the monarchs’ wishes. The Reformation parliament passed momentous legislation in favour of Protestantism and approved an alliance with England, but was also marked by the appearance of around a hundred lairds or lesser barons. Recent research has tended to see the large turnout of lairds as a product of an organised political campaign, one which exploited historical precedent to bolster a specific agenda, rather than representing a radical shift in the balance of power. Whichever it was, the fact that parliament was 42. D. Franklin, The Scottish Regency of the Earl of Arran: A Study in the Failure of AngloScottish Relations (Lewiston, 1995); J. Wormald, Mary, Queen of Scots: A Study in Failure (London, 1988), pp. 43–75; Donaldson, James V–James VII, pp. 63–70. 43. RPS, A1556/5/1. 44. RPS, A1557/12/2, 1558/11/8. 45. P. E. Ritchie, Mary of Guise in Scotland 1548–1560: A Political Career (East Linton, 2002), pp. 136–9, 188–98, 203–4.

14

M2287 - BROWN & MAC TEXT.indd 14

10/08/2010 16:47

the c r o wn and pa r l i a m e n t used as the mechanism to effect religious revolution says much about the continued significance of the institution, despite any perceived decline in importance earlier in the century.46 And, although some momentum was lost after parliament had risen, with the royal assent to its acts being withheld and Mary’s return to Scotland leaving the revolution in religion precariously balanced, there was no attempt in later parliamentary sessions of Mary’s short personal rule to undo or repudiate what had been approved by the estates in 1560. Indeed, the Reformers were able in part to consolidate their position when parliament met once more in 1563, securing the passage of an indemnity act (which gave legal protection to actions done during the recent revolution), a number of measures aimed at improving the provision of the new ministry and stringent legislation on immoral behaviour.47 Though parliamentary ratification of the legislation of the Reformation parliament had to wait until December 1567 following Mary’s enforced abdication, in 1563 parliament was underwriting the Protestant Reformation, albeit in a piecemeal fashion.48 Mary’s abdication in favour of her son, and the political instability occasioned by the civil war of 1568–73, saw parliament once more at the mercy of factional politics. Following the familiar pattern of earlier minorities, the estates met more frequently, with parliaments and conventions sitting on average twice a year between 1567 and 1584. In the absence, however, of the guiding hand of an adult monarch and strong personal kingship, sessions of parliament were often commandeered to advance a particular agenda. At the height of the civil war, in May–June 1571, rival parliaments were held by the king’s and queen’s parties, the first in the Canongate and the other a few hundred yards away in Edinburgh’s tolbooth. Parliament was reduced to a crude political weapon, both sessions passing tit-for-tat sentences of forfeiture directed against each other’s adherents.49 Similarly, between 1578 and 1585, parliament was a tool in the hands of whichever faction held power. For instance, in October 1582 a convention of estates approved the seizure of the king’s person in the Ruthven Raid; in December 1583 another condemned it 46. See K. M. Brown, ‘The reformation parliament’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560, which stresses continuity of representation rather than innovation. For an opposing view, see J. Goodare, ‘The admission of lairds to the Scottish parliament’, in EHR, cxvi (2001), pp. 1106–10, and J. Goodare, ‘The estates in the Scottish parliament’, in Parliamentary History, xv (1996), pp. 17–20. 47. RPS, A1563/6/1, 8–10; Wormald, Mary, Queen of Scots, pp. 120–1. 48. For a contrary view, which sees the 1563 parliament as a ‘triumph for Mary’ rather than as an advancement of the Protestant cause, see J. Goodare, ‘The first parliament of Mary queen of Scots’, Sixteenth Century Journal, xxxvi (2005). 49. Calderwood, History, iii, pp. 78, 91–6.

15

M2287 - BROWN & MAC TEXT.indd 15

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 as a ‘crime of lese-majesty’; and finally, after another palace coup, a parliament of December 1585 restored to favour the forfeited Ruthven raiders.50 The dramatic show of independent authority in 1560, reiterated in 1567, demonstrated that any perceived decline in the importance of parliament in the early sixteenth century was merely temporary and that the institution had regained the self-confidence that had been a prominent feature of the assembly between the reigns of David II and James IV. Parliament benefited from the long minorities that were common from the fourteenth to the sixteenth centuries, often serving as a unifying force in the absence of strong kingship. James VI was to be the last monarch to succeed while under age, however, ending the intermittent power struggles for control of the throne that had been a feature at the beginning of each new reign, but the absence of minorities also removed an important safety valve for deflating royal power. As the coming century was to prove, the alternative was revolution. Whereas the personal reigns of both James V and Mary had largely been uneventful in parliamentary terms, the rise of a more powerful personal monarchy in the late sixteenth century increased the likelihood of serious and sustained conflict between crown and parliament. The early adult rule of James VI did not immediately see an end to political instability, and the continuing high frequency of parliaments and conventions after 1585 can partly be explained by the persistence of religious controversy and factional politics. Government in the adult reign of James VI did change more rapidly and fundamentally, however. From the 1580s, there was an explosion in the legislative activity of parliament, some sessions passing in excess of a hundred acts, whereas previously this had been a relatively minor part of a parliament’s business.51 This growth can partly be attributed to the new interest taken in statute law, exemplified in the printing of the first collected edition of the acts of parliament in 1566. It also marks, however, a continuing upward trend in the significance of parliament generally. Paradoxically, displays of parliamentary self-confidence, such as in December 1567, demonstrated to the king how effective a biddable parliament could be in extending royal authority. Thus, the legislative programme of 1584 and 1587 has been described as an ‘absolutist manifesto’.52 A bargain would have to be struck, however, between the aspirations of the crown and the estates, and James and his successors would have to endure many more meetings in which royal policies were blocked or amended by parliament. 50. RPS, A1582/10/2, A1583/12/2, 1585/12/49. 51. Before 1579 the number of acts passed by each session frequently amounted to little more than a dozen or so and never reached above fifty: Goodare, Government of Scotland, pp. 72–3. 52. Goodare, State and Society, p. 73.

16

M2287 - BROWN & MAC TEXT.indd 16

10/08/2010 16:47

the c r o wn and pa r l i a m e n t After 1587 the estates received a numerical boost with the introduction of shire commissioners elected by those who met the property qualification of forty shillings freehold land held of the king. The act of 1587 re-enacted an earlier statute of 1428 which had endeavoured, unsuccessfully, to enforce the personal presence of the lesser barons at parliament.53 The impetus behind this act was probably the crown’s need to broaden the basis of consent for taxation. James VI was chronically short of money, making it impossible for the crown to avoid taxation to supplement its ordinary income. As a result, parliament could not be sidelined when the king’s minority formally ended, as had been the case in the reigns of James IV and James V.54 Unsurprisingly, taxation was unpopular and there was determined resistance in parliament when it was thought that the king’s demands for money were unreasonable. Recognising the potential for difficulty, the crown preferred to summon conventions of estates in preference to full meetings of parliament but, despite such manoeuvrings, the estates proved obdurate on numerous occasions, such as at the conventions held in 1578, 1583 and 1586.55 Resentment against the crown’s fiscal demands rose during the difficult economic times of the 1590s, culminating in a series of conventions in 1599–1600 that scuppered a scheme aimed at increasing tax receipts by revising the assessment system and refused outright a particularly heavy grant. And, while the king was less reliant on his Scottish income after 1603, securing parliamentary approval for subsequent grants of money continued to be problematic. In 1612 agreement could be reached for only half of what the king had sought; a convention in March 1617 approved less than the requested sum; and a novel proposal in the 1621 parliament for a levy on annualrents (interest payments) was bitterly opposed by a substantial dissenting minority even within the lords of the articles, the controversy almost eclipsing that which accompanied the ratification of the Five Articles of Perth.56 Despite such episodes, parliament was willing to negotiate taxes that were acceptable to the estates and the crown, thus ensuring its continued usefulness to the latter, at least in fiscal matters. James VI’s adult rule, however, witnessed a widening in scope of the royal prerogative and, while parliament 53. RPS, 1428/3/3, 1587/7/143; Goodare, ‘Admission of lairds’, pp. 1118–20. 54. J. Goodare, ‘Parliamentary taxation in Scotland, 1560–1603’, in SHR, lxviii (1989), pp. 40–52. 55. RPC, first series, iii, pp. 45–6, 56–7; RPS, A1583/4/2, A1586/9/2. 56. RPS, 1612/10/19, A1617/3/3, 1621/6/14; V.T. Wells, ‘Constitutional conflict after the Union of the Crowns: Contention and Continuity in the parliaments of 1612 and 1621’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1707, pp. 93–4; J. Goodare, ‘The Scottish Parliament of 1621’, in The Historical Journal, xxxviii (1995), p. 33.

17

M2287 - BROWN & MAC TEXT.indd 17

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 remained a necessary evil when taxation was needed, in other areas the estates experienced a marked diminution of their powers. Foreign affairs and matters of war and peace were commonly discussed by parliament in medieval times and, as late as 1585, it was a convention of estates, rather than the king, that nominated commissioners to treat for an alliance with England. But matters of diplomacy ceased to be ratified by parliament after 1592 and the union of the crowns deprived Scotland of a foreign policy independent from its larger neighbour. Other privileges once the preserve of the estates were increasingly assumed by the crown. The appointment of privy councillors and the authorisation of new coinage were last approved by the estates in 1598 and 1601 respectively and, in contrast to the parliamentary debates over Mary’s marriage, parliamentary approval of James’s marriage in 1589 was not thought to be necessary.57 The thorny matter of religion continued to be debated in parliament although efforts to impose tighter crown management of religious matters were recurrent features of parliaments after 1596 as the king strove to recover the type of royal supremacy over the church envisaged in the ‘Black Acts’ of 1584.58 James VI’s accession to the English throne in 1603 could not fail but to enhance royal power, and the regal union had a major impact on the crown’s relations with parliament. Under an absentee monarch the estates met less frequently, the timing of sessions largely being determined by the king’s need for money, and the meetings were more heavily managed. Although the sessions of 1587 and of 1592 had been notable for the increased bargaining between the king and his estates, with the crown forced into granting concessions to achieve its relatively limited objectives, parliament before the union of the crowns was relatively free from the overt royal interference that marked later meetings.59 The physical absence of the king, however, paradoxically led to a growth in royal power over the estates and, after 1603, parliament witnessed increasingly successful attempts by the crown to drive through its agenda. This can partly be attributed to an expansion of royal patronage – among the nobility in particular – and shifts in the composition of parliament, with the creation of lords of erection, the return of the bishops as a meaningful presence and a more prominent role for the officers of state and privy councillors all providing a useful fillip to the promotion of the king’s 57. Goodare, Government of Scotland, pp. 92–9. 58. A. R. MacDonald, The Jacobean Kirk 1567–1625: Sovereignty, Polity and Liturgy (Aldershot, 1998), pp. 26–8; RPS, 1584/5/7–12. 59. For a discussion, albeit dated, of the 1587 parliament, see M. Lee, John Maitland of Thirlestane and the Foundation of the Stewart Despotism in Scotland (Princeton, 1959), pp. 120–54. For 1592 see A. R. MacDonald, ‘The Parliament of 1592: A Crisis Averted’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1707.

18

M2287 - BROWN & MAC TEXT.indd 18

10/08/2010 16:47

the c r o wn and pa r l i a m e n t interests. Nevertheless, parliament could still prove adept at derailing royal policies, as was demonstrated in 1605–6 when the estates’ apathy for union with England helped to scupper the king’s project for closer ties between his two kingdoms. Royal manipulation of the lords of the articles was significant in thwarting traditional opportunities for deliberation and constructive debate by the full chamber. The existence of the lords of the articles has often been cited as giving the crown an unfair advantage within parliament because all legislative proposals had to pass through that committee before reaching the full estates. The articles have been viewed as a hand-picked tool of the king, its monopoly control over the parliamentary agenda ensuring ‘that the legislation passed was amenable to the crown’.60 There has been a tendency, however, for the later reputation of the seventeenth-century committee to attach itself to its entire history, and recent research has shown that, before 1540, the committee reflected the balance of political power in the nation at large and, up until at least the late sixteenth century, its meetings were customarily accessible to, and its business open for scrutiny by, those members of parliament who were not on the committee.61 Even when the crown exerted influence over its composition or over the openness of its meetings, as was the case in the early seventeenth century, the articles rarely operated simply as a bulldozer for pushing through royal policies. In 1606, for instance, despite personally nominating the committee’s members, the king’s commissioner failed to secure passage without amendment of an act restoring the bishops’ former rights. The levy of a grant of taxation in the same session necessitated a considerable amount of time and careful political management before it was passed by the articles.62 In 1612 the election procedure of the articles was purposefully tweaked in order to skew the balance of power in favour of the clergy and nobility, allowing for the possibility that the committee could be entirely populated by royal nominees. In 1621 and 1633, the crown did succeed in forcing its candidates on to an unwilling parliament but still faced difficulties in securing full parliamentary approval of its legislative programme, a situation repeated frequently during the Restoration era.63 Effective royal control of the articles could ensure that the crown’s proposals were brought 60. J. R. Young, ‘The Scottish parliament in the seventeenth century: European perspectives’, in A. I. Macinnes, T. Riis and F. G. Pederson (eds), Ships, Guns and Bibles in the North Sea and the Baltic States, c.1350–c.1700 (East Linton, 2000), p. 143. 61. R. J. Tanner, ‘The lords of the articles before 1540: a reassessment’, in SHR, lxxix (2000); A. R. MacDonald, ‘Deliberative processes in parliament, c.1567–1639: Multicameralism and the lords of the articles’, in SHR, lxxxi (2002), pp. 44–50. 62. MacDonald, ‘Deliberative processes’, pp. 44–50. 63. Rait, Parliaments, pp. 369–71, 408–9.

19

M2287 - BROWN & MAC TEXT.indd 19

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 before the estates in an agreeable form but the king could not make the estates pass his chosen legislative agenda. For this, a majority of votes was required, which was much more difficult for the crown to secure. The aspiration of the crown to manage parliament more firmly escalated throughout the early part of the seventeenth century, to be met with an equal determination from the estates to resist such unwanted interference. The last decade of James VI’s reign witnessed a marked decline in the responsiveness of royal government to the aspirations of the political nation, and James’s last parliament in 1621 was notable for a substantial dissenting minority who vigorously objected to unpopular liturgical reforms and a large grant of taxation. While such opposition was neither concerted nor sustained in the wake of parliament, the political divide created by the crown’s pursuance of its unpopular agenda in 1621 foreshadowed aspects of the covenanting struggle in both personnel and ideology.64 Charles I’s first convention was summoned in October 1625 to provide a tax of £400,000 for the king’s coronation and proposed visit to Scotland. While this was agreed, the estates proved more uncooperative on other issues. A request from the king to commute the supply for an agreement to fund an army was rejected; an imposition on coal exported in foreign vessels was refused as being detrimental to the economy; and an article concerning usurers was carried over as being a subject more suitable for consideration at parliament. On its own initiative the convention asked the king for remedy of grievances concerning the precedency of baronets of Novia Scotia and publicly censured a crown appointee for extortion in his role as director of the chancellery.65 The widespread distrust and unease generated by Charles’s revocation scheme, announced a few months before the meeting, may provide some explanation for the convention’s intransigence, and perhaps there was lingering resentment over the events of 1621. It is likely, too, that the estates were capitalising on the inexperience of Charles and his advisers, making the point that it was they who knew best what the country could afford. A repeat performance occurred at the convention of estates held in July 1630: the estates unanimously voted the requested sum but not without tabling a lengthy list of grievances that required redress, including an improvement in the conduct of local and central governments.66 64. A. I. Macinnes, Charles I and the Making of the Covenanting Movement 1625–41 (Edinburgh, 1991), pp. 39–40; Goodare, ‘Scottish Parliament of 1621’, pp. 44–7. As both note, with hindsight it is possible to trace a nascent national opposition in the pattern of voting at the 1621 session, suggesting the battle lines of the Scottish revolution were perhaps drawn at this parliament. 65. RPS, A1625/10/3, A1625/10/8, A1625/10/55–6. 66. RPS, A1630/7/20.

20

M2287 - BROWN & MAC TEXT.indd 20

10/08/2010 16:47

the c r o wn and pa r l i a m e n t The parliament of 1633, the first to be held for twelve years and with a monarch present for the first time since 1617, took place against a background of simmering resentment over the revocation scheme, the mounting tax burden and the growing influence of the clerical estate. To avoid an embarrassing display of dissent in the king’s presence, crown officials interfered in almost every area in which they could hope to have influence. Elections were managed, meetings of individual estates outwith the main chamber were broken up, and a number of supplications complaining of constitutional abuses was suppressed. The controversial legislative programme, containing an extension to the tax of 1630, the ratification of the revocation scheme and confirmation of the royal prerogative in religious matters, was presented to the estates all on the one day, limiting the time available for discussion. Charles was an intimidating presence in the chamber, noting down from the throne the names of those who dared vote against the crown. Against this menacing background, parliament reluctantly approved all that was asked of it.67 Parliament in an Age of Revolution From Charles I’s perspective, his first Scottish parliament was a success but it proved to be crucial in the formulation of an active dissenting party, with the king’s autocratic actions unwittingly uniting a disparate opposition. With the avenues of legitimate debate cut off by the crown, and constitutional opposition now impossible, the king’s critics turned to public protest. The violent rioting which accompanied the king’s attempts to impose an Anglicised liturgy on the church in July 1637 gave the embryonic opposition a vital populist dimension which incited a revolution. While religious issues acted as the precipitant for rebellion, the momentous events which culminated in the adoption of the National Covenant were the outcome of a lengthy constitutional conflict centred on the respective powers of crown and parliament. Not only did the Covenant seek to eradicate the unconstitutional ‘innovations and evills’ associated with the coronation parliament of 1633 but, in calling for free general assemblies and parliaments, a greater aim was to effect a permanent check on absentee monarchy and to shift power to the estates.68 The institutional reforms introduced by the Covenanters bore witness 67. J. R. Young, ‘Charles I and the 1633 parliament’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1707. 68. RPS, 1640/6/36; A. I. Macinnes, ‘The Scottish constitution 1638–1651. The rise and fall of oligarchic centralism’, in J. Morrill (ed.), The Scottish National Covenant in its British Context (Edinburgh, 1990), pp. 106–14.

21

M2287 - BROWN & MAC TEXT.indd 21

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 to the constitutional radicalism of the movement. At the parliament of June 1640, in the space of only ten days, the estates passed some sixty acts which completely realigned the traditional balance of power, implementing a constitutional revolution in which the crown was the main loser. Royal influence was curtailed by the abolition of the lords of the articles and of the clerical estate (confirming the general assembly’s earlier actions of 1639), while the king’s prerogative right to summon and dissolve sessions was diminished by a Triennial Act. The voting power of the commissioners of the shires was doubled, proxy voting outlawed, officers of state prevented from sitting ex officio and the king’s commissioner replaced by an elected president. In place of the traditional parliamentary structure, the Covenanters formalised the separate meetings of the individual estates and created a sophisticated system of session and interval committees, freely elected and to which almost all manner of business was remitted. This provided the opportunity for wider participation across the estates, although whether this amounts to the emergence of a Scottish ‘commons’ continues to be disputed.69 Present at the following session of parliament in 1641 to confirm these remarkable constitutional innovations, Charles was forced to submit to limited monarchy under a strong parliamentary government. Though many of the Covenanters’ parliamentary reforms were in direct reaction to the crown’s recent subversion of constitutional liberties, it can be argued that the measures enacted in 1640–1 (and, indeed, subsequent constitutional developments in the decade to follow) were attempting to return to parliament that independence it had enjoyed, not only before Charles I’s accession but even prior to his father’s unwanted interference in the deliberative processes of the estates. In this context, the domination of crown over parliament, an increasing feature from 1603 onwards, must be seen as the exception rather than the rule.70 While the turbulent events of the 1640s allowed the estates to operate relatively free from the monarch’s interference, this introduced procedural 69. Macinnes, Covenanting Movement, pp. 155–213; Macinnes, ‘The Scottish constitution’, pp. 106–33; Young, Scottish Parliament, pp. 19–53; J. R. Young, ‘The Scottish parliament and the covenanting revolution: the emergence of a Scottish commons’, in J. R. Young (ed.), Celtic Dimensions of the British Civil Wars (Edinburgh, 1997). For a contrary view, see K. M. Brown, ‘Parliament, crown and nobility in late medieval and early modern Scotland, c.1250–1707’, in L. Casella (ed.), Rappresentanze e Territori. Parlamento Friulano e Istituzioni Rappresentative Territoriali nell’Europa Moderna (Udine, 2003), esp. p. 132. 70. For a discussion of the covenanting use of such theories, see E. J. Cowan, ‘The political ideas of a covenanting leader: Archibald Campbell, marquis of Argyll 1607–1661’, in R. A. Mason (ed.), Scots and Britons: Scottish Political Thought and the Union of 1603 (Cambridge, 1994). For the similar theoretical defence of the 1688–89 revolution, see C. Jackson, Restoration Scotland 1660–1690. Royalist Politics, Religion and Ideas (Woodbridge, 2003), pp. 198–203.

22

M2287 - BROWN & MAC TEXT.indd 22

10/08/2010 16:47

the c r o wn and pa r l i a m e n t dilemmas, the most significant being the need to ensure the legitimacy of those sessions held without explicit royal authorisation. In The True Lawe of Free Monarchies (1598), James VI had argued that parliament was ‘nothing else but the head courte of the king, and his vassals’, an institution that possessed no independent legislative authority because it could pass no statute without the king denoting his assent by touching the act with his sceptre.71 Although more of an aspiration than a fact, considering that laws could be passed only after agreement had been reached with the estates, James was technically correct in highlighting that certain procedures had to be followed in order for parliament’s proceedings to be deemed lawful. In possessing the ultimate authority for summoning parliament, for instance, it might be expected that the crown held an inbuilt advantage over the estates. In theory, the crown could refuse to call an assembly, thereby denying an opportunity for consultation and a platform for dissent. Charles I did not hold his first parliament until 1633, twelve years after the last full session, preferring instead to use conventions of estates. Yet the crown’s refusal to summon parliament could be dangerous. At times of revolution, for instance in 1643 and in 1689, the estates assembled in the absence of a royal warrant. Both assemblies were conventions of the estates rather than parliaments but each claimed the authority to ‘treate, consult and determine in all matters that shall be proposed unto thame’, powers which were more strictly applicable to parliaments than to conventions.72 In periods of upheaval those assembling the estates were careful not to overlook the procedural subtleties that legitimised parliament’s status as the crown’s highest court. The necessity of a royal summons was universally admitted even by those who sought to resist the crown. For instance, despite asserting that royal assent to some acts of the Reformation parliament of 1560 was immaterial, John Knox was concerned to counter ‘suche as since hes whispered that it was but a pretended . . . and no lauchfull parliament’.73 The Covenanters, too, recognised the necessity of a royal summons and legislated specifically for instances when this would not be forthcoming. The Triennial Act of June 1640 allowed parliament to meet at least once every three years and, in case the monarch should neglect to obey the statute, it contained a nimble work-around whereby the next meeting of parliament was summoned before the current session ended.74 Thus, the parliaments of June 1644 and March 1648 required no special summons, having been appointed by acts of the 71. 72. 73. 74.

J. Craigie (ed.), Minor Prose Works of King James VI and I (Edinburgh, 1982), p. 71. RPS, 1643/6/9. D. Laing (ed.) The Works of John Knox (6 vols, Edinburgh, 1895), ii, pp. 126–7. RPS, 1640/6/27.

23

M2287 - BROWN & MAC TEXT.indd 23

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 previous assemblies. All parliaments held between 1641 and 1651 attempted to keep within the strict letter of the law because doing so gave vital legitimacy to their proceedings. The 1689 convention of estates that forfeited James VII followed those precedents as far as possible and was careful not to overstep the mark prior to the meeting being elevated into a parliament by King William. Its constitutional status was affirmed by a posterior order of parliament under Queen Anne which neatly tidied up any lingering questions of legality.75 The absence of a royal summons, therefore, was no barrier to parliament assembling independently of the crown although such occasions were extraordinary and limited to times of revolution. In general, however, parliament met when, and for as, long as the king willed. The monarch possessed the right to continue, prorogue, adjourn and dissolve parliament, the last being a tool occasionally used to stifle debate, as in 1673–74 when a parliament which had become unmanageable was dissolved by proclamation. In doing so, however, the crown was forced to abandon part of its legislative programme.76 Thus, the balance of political power was more evenly spread than procedure suggests: the estates may be called into being at the crown’s insistence but, to do so, recognised the fact that the crown needed parliamentary agreement for royal policy to be put into practice and for the king to exercise effective authority. Although Oliver Cromwell’s military victory over the Scots by 1651 brought an end to the Covenanters’ experiment in government, leading to a short and fruitless union of English and Scottish parliaments, when the monarchy was restored in 1660, a profound reassertion of the royal prerogative was soon to be accompanied with familiar demands for greater parliamentary involvement in government. The constitutional settlement of 1661–63 attempted to imagine away the innovations of 1639–41, with an Act Rescissory annulling all public legislation passed after 1633, and both the bishops and the lords of the articles revived for their usefulness in bolstering royal control over the estates. For the first time the king’s prerogative powers relating to parliament received statutory definition and the privileges of the crown outlined therein were extensive, covering the appointment of all significant personnel, the summons and dissolution of parliament and ratification of its acts, foreign policy, supremacy in ecclesiastical matters, and oversight of government in general. The executive role of parliament as imagined in such legislation was diminished compared to the political influence that the estates had enjoyed in recent decades.77 75. RPS, 1661/1/17, 1703/5/190; Rait, Parliaments, p. 159. 76. MacIntosh, Scottish Parliament, pp. 131–4. 77. Ibid., pp. 20–6; R. Lee, ‘Retreat from revolution: the Scottish parliament and the restored monarchy 1661–1663’, in Young (ed.), Celtic Dimensions of the British Civil Wars.

24

M2287 - BROWN & MAC TEXT.indd 24

10/08/2010 16:47

the c r o wn and pa r l i a m e n t The ground gained by parliament during the Covenanting era was not altogether lost. Parliamentary sessions were now significantly longer, with the estates routinely meeting several times a week over an average period of two months. The rules of debate formulated in 1641 survived into the Restoration, and it was normal for the chamber to examine, debate and amend acts individually that the lords of the articles had approved, as well as to consider any overture which the committee might fail to present.78 The doubling of the shire vote, first introduced in 1640 to coincide with the removal of the clerical estate, continued after the Restoration, and further refinements to property qualifications in 1661 and 1681 extended the franchise to a larger electorate. A growing interest in parliamentary politics is reflected in the rising incidence of controverted elections, necessitating in 1669 the establishment of a dedicated session committee to examine and rule on each case. The increase in the number of voters, potential candidates and parliamentary attendees, in combination with the extra powers of deliberation retained by the estates after 1660, made it necessary for the crown to employ more intensive parliamentary management to safeguard the passage of its preferred legislative agenda. The estates’ response harked back to some of the criticism made earlier in the century, suggesting that it would prove impossible to suppress the ideology behind the constitutional advancements made in the revolutionary period.79 A prominent feature of the Restoration parliaments was the significance of the king’s commissioner, a post which became less ceremonial (as had been the case prior to 1638) and took on increased importance as the leader of a ministerial team responsible for steering government measures through parliament. Although no substitute for the personal presence of the monarch, the commissioner could provide a useful scapegoat, being instantly dispensable when criticism became dangerous, as both the earls of Middleton and Rothes found to their cost. Much of the opposition directed towards the overbearing parliamentary management of John Maitland, second earl of Lauderdale, was led by rival nobles anxious for a share in the spoils of high office. Yet there were also notable echoes of 1633 in those concerns expressed over the abuse of power and other signs that members of parliament were struggling to express constitutional objections to the crown’s stranglehold over parliamentary business.80 Despite the erosion of parliamentary powers and the submissiveness of 78. See RPS, 1641/7/27. Amended ‘orders of the house’ were issued in 1662 (1662/5/6) and 1685 (1685/4/13). 79. RPS, 1661/1/316, 1681/7/45, 1669/10/7. 80. J. Patrick, ‘The origins of the opposition to Lauderdale in the Scottish parliament of 1673’, in SHR, liii (1974).

25

M2287 - BROWN & MAC TEXT.indd 25

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 the estates in the first Restoration parliament, the long-established belief that parliament had a right to be consulted on major issues of state was apparent in its subsequent deliberations, for instance, in the abortive union negotiations of 1669–70. Discontent at perceived abuses of prerogative powers, especially over the granting of monopolies and the limited distribution of lucrative offices, ignited protest across a broad spectrum of the estates, escalating to such a level that an unmanageable parliament was dissolved by proclamation in 1673–4. Growing political dissent, combined with the stark failure of the crown’s religious policies, which vacillated from lenient indulgences to brutal suppression, made Lauderdale’s position increasingly untenable. Leading the opposition was William Douglas, third duke of Hamilton who, in the 1670s, formalised the dissidents into a nascent political ‘party’, mirroring the rise of the Whigs in England. The origins of a country party agenda, which would mature in the revolution of 1688–9, can be traced back to these later parliaments of the Restoration. In the 1670s radical presbyterians justified their armed struggle against the king on the grounds that subjects had a right to resist a tyrannical monarch, harking back to the philosophy expounded by George Buchanan and Samuel Rutherford. Yet, even among political moderates, a contractual monarchy with a significant role for national institutions, such as parliament, privy council and the court of session, was celebrated as the best means of royal government. The beginnings of an alternative political agenda, which envisaged limitations on royal power and a greater role for an independent parliament, first surfaced in the Restoration era in response to the crown’s heavy-handed attempts at controlling the estates.81 James VII’s tenure as royal commissioner to parliament in 1681 and his short reign were dominated by the issue of his Roman Catholicism. Much of the overt opposition voiced in his brother’s later parliaments was initially quietened by the heir to the throne’s presence, especially in the 1681 session which passed with only a murmur of protest over legislation securing the succession, a new supply to support a standing army and an incoherent Test Act imposing an oath which promised adherence to the Protestant Confession of Faith but also acceptance of the royal supremacy in religious matters. Initially, it seems, the estates were willing to consent to the crown’s attempts to extend its authority. Parliament’s willingness, however, was a temporary phenomenon, attributable largely to residual gratitude for the removal from office of those of the king’s favourites who had become bywords for corruption and severity. In excluding influential nobles from office and ignoring his privy 81. MacIntosh, Scottish Parliament, p. 237. See also Jackson, Restoration Scotland, pp. 65, 70–2, 198–9.

26

M2287 - BROWN & MAC TEXT.indd 26

10/08/2010 16:47

the c r o wn and pa r l i a m e n t councillors and bishops, James VII narrowed his power base. Meanwhile the danger of serious constitutional unrest was increased by the potent catalyst of religion. James’s attempt in the parliament of 1686 to push through a toleration act removing the penal laws against Roman Catholics failed at the first hurdle, being unpalatable even to the members who sat on the articles. Even the tempting carrot of free trade with England proved to be no inducement, nor did extensive parliamentary management and crown interference in the deliberative process, including the dismissal of some members of the house, have the desired effect. Following Louis XIV’s revocation of the Edict of Nantes in November 1685 and the recent conversion of a number of key crown ministers, anti-Catholic riots broke out in Edinburgh. In the light of such tensions, parliament would commit only to take under consideration the issue of toleration and go to ‘as great lengths therin as our conscience will allow’, hence stalemate ensued.82 James’s subsequent dissolution of parliament and the introduction of toleration by the unconstitutional device of a royal proclamation only served as confirmation of the absolutist tendencies of a Catholic monarch. This fatally damaged James’s chances of broad political support in the wake of William of Orange’s invasion of England in 1688.83 The respective powers of crown and parliament, as imagined in the Restoration settlement of 1661–3, were fundamentally altered by the revolution of 1688–9. The estates which assembled in the convention of April 1689 not only exerted their ancient and independent right to bestow the crown on whomsoever they pleased, declaring James VII forfeit, but they also negotiated a constitutional arrangement in which the monarch accepted office on those conditions explicitly contained within the Claim of Right and the Articles of Grievance.84 The lords of the articles were an early casualty of reforming zeal, being abolished by William II in return for the estates’ approval of a grant of supply. The bishops, another perceived mechanism of royal control, no longer took up their seats after 1689, the separation of church and state being achieved by the establishment of a presbyterian church and the restoration of the general assembly. The constitutional settlement had notable similarities to that which was forced upon Charles I in 1641. Yet the crown retained a number of important prerogative powers, the most significant being the right to summon, prorogue and dissolve the estates, there being no revival of the 1640 Triennial Act. General elections, therefore, 82. RPS, 1686/4/11. 83. A. J. Mann, ‘“James VII, king of the articles”: political management and parliamentary failure’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1707; Jackson, Restoration Scotland, pp. 157–62. 84. RPS, 1689/3/108; 1689/3/121.

27

M2287 - BROWN & MAC TEXT.indd 27

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 were infrequent after the revolution, with only two more, in 1689 and 1702. Each was hotly contested, a reflection not only of the development of a robust and popular political culture aligned to organised parties but an indication of the continued importance given to the right of representation in parliament, both also significant in the lobbying which accompanied the union debates of 1706–7.85 The revolution was accompanied by a general increase in parliamentary business, reflected in the frequency of its meetings and in the evolution of its procedures. From 1689 sessions were held on average every two years, increasing to an annual meeting by 1700, with the estates sitting for around eight to ten weeks. Procedural innovations (albeit with parallels in the Covenanting era) included the establishment of a number of standing committees to deal with trade, elections and security, which provided a bureaucratic structure in the absence of the lords of the articles.86 Those constitutional reforms instituted at the revolution did not bring an end to friction between crown and parliament, however. Both the 1692 Glencoe massacre and the collapse of the Company of Scotland in 1699–1700 severely challenged the ruling administration and were hugely unpopular. Yet without a statutory requirement to hold regular elections, broader popular unease was not necessarily reflected within the parliamentary chamber. Throughout the 1690s a degree of stability was achieved, enabling the crown’s parliamentary managers to create working majorities, although the underlying divisions within the country began to emerge in 1698–9 and at the sessions of 1700 and 1701. King William’s death in 1702 finally forced a general election, the first for thirteen years and one which was bitterly contested between the presbyterian revolution party and their country and cavalier opponents. A minority government was elected but the subsequent sessions of 1703 and 1704 proved to be disastrous for the crown which found it impossible to control an unpredictable parliament riven by party rivalry and crippled by factional disputes along religious and ideological fault lines.87 Although the reasons behind parliament’s endorsement of incorporating 85. D. J. Patrick, ‘People and Parliament in Scotland 1689–1702’ (unpublished PhD thesis, University of St Andrews, 2002), chs 5 and 6; D. J. Patrick, ‘Unconventional procedure: Scottish electoral politics after the revolution’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1707. 86. E. E. B. Thomson, The Parliament of Scotland 1690–1702 (Oxford, 1926), pp. 69–72; A. J. Mann, ‘Inglorious revolution: administrative muddle and constitutional change in the Scottish parliament of William and Mary’, in Parliamentary History, xxii (2003), pp. 123–5. 87. C. A. Whatley and D. J. Patrick, The Scots and the Union (Edinburgh, 2006), pp. 202–11; K. M. Brown, ‘Party politics and parliament: Scotland’s last election and its aftermath, 1702–3’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1707.

28

M2287 - BROWN & MAC TEXT.indd 28

10/08/2010 16:47

the c r o wn and pa r l i a m e n t union with England were varied and complex, the crown’s increasing difficulties in controlling an assembly no longer susceptible to traditional management techniques provide a partial explanation for the impetus behind the union scheme of 1706–7. In 1703, effectively freed from ministerial control and in a determined show of independence, the crown’s parliamentary opponents forced through the Wine Act, permitting trade with France despite the embargoes in place in England, and the Act anent Peace and War, which declared Scotland’s right to pursue an autonomous foreign policy.88 The Act of Security passed in the same session proved to be a threat to the succession of the monarchy itself. By declaring Scotland’s sovereign right to choose Queen Anne’s successor, whoever England’s preferred nominee might be, the statute was reluctantly given royal assent in 1704 in return for the estates’ approval of an urgent grant of taxation. In response, English parliamentarians passed the 1705 Aliens Act which threatened severe economic sanctions and the confiscation of Scottish estates in England unless the Scots accepted the Hanoverian succession or entered into negotiations for union between the two countries.89 For the crown, incorporating union provided a solution to a problem that had first arisen in 1603. Negotiating with one British parliament, rather than with two separate institutions, was preferable, especially given the recent and dangerous show of divergence between Scotland and England on matters as crucial as the succession and foreign policy. In return for surrendering its independent parliament, Scotland was guaranteed free trade with England and her colonies, and the resultant prosperity that was anticipated. On 16 January 1707, the treaty of union was ratified by a majority of forty-three. Parliament finally adjourned on 28 April, bringing to an end almost five hundred years of parliamentary history.90 Conclusion Until recently, the incorporating union with England has defined the historical reputation of Scotland’s pre-1707 parliament. Similar to other European institutions that were either done away with or constitutionally downgraded by their rulers, the fact that these assemblies ceased to exist in an independent form has been taken as ample evidence of their weakness or unimportance. From its recorded beginnings in the thirteenth century to its last meeting in 1707, however, Scotland’s parliament played an integral role in government, 88. RPS, 1703/5/200; 1703/5/193. 89. RPS, 1704/7/68; Whatley with Patrick, The Scots and the Union, pp. 213–15. 90. RPS, 1706/10/257.

29

M2287 - BROWN & MAC TEXT.indd 29

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 being consulted on a broad range of subjects and often exercising its right to resist and defeat those propositions by the crown with which it disagreed. At times of religious, constitutional or national revolution, parliament was likely to be found centre stage and indeed it was frequently the very vehicle by which national reform was implemented. Yet, paradoxically, parliament could also augment and emphasise the power of the crown, because its assent to royal policies, legislation and requests for money gave unparalleled legitimacy to the monarch’s actions. Although its power and influence could wax and wane, depending on the individual who occupied the throne, it was for these reasons that parliament remained a significant political force from the medieval to the early modern period. Parliament was a royal institution, called into existence at the will of the king to implement the law and ratify royal policies. Yet Scotland’s parliamentary history indicates that the institution was rarely, if ever, under the complete control of the crown. All Scottish monarchs had to endure sessions of parliament where their demands were moderated or refused by the estates. Some, such as Robert II and James VII, were even removed from power by the institution which they had called into being. Parliament’s radical actions in such instances were portrayed as being in defence of the crown, if not the person of the king. The estates’ constitutional role, therefore, was as guardian of the nation’s constitutional rights and protector of the national interests. Although monarchs, such as James VI and Charles I, had a contrasting view of the function of the three estates, for the majority of its history, Scotland’s parliament worked either in co-operation with the crown or acted as a constraint on monarchical power. Indeed, it says much about the constitutional power of the estates that, when parliament was absorbed into a British institution in 1707, it was by their choice and with their consent, not by royal diktat.

30

M2287 - BROWN & MAC TEXT.indd 30

10/08/2010 16:47

chap t e r 2

The First Estate: Parliament and the Church Kirsty F. McAlister and Roland J. Tanner

Introduction he history of church and parliament between 1235 and 1707 is one that rests on mutual concerns, secular and ecclesiastical, some of which were characterised by a spirit of co-operation, others by various degrees of tension. Such a long period naturally witnessed evolution, not only within each body but also in terms of how they interacted with one another. Unsurprisingly, it was the Reformation that heralded the most radical changes in how church and parliament interacted. The late medieval period saw the slow evolution of a clerical estate and little interest by parliament in ecclesiastical affairs at least until the early fifteenth century. Under a more assertive monarchy over succeeding decades, the church used parliament as a forum to defend its interests, but it was only during the reign of James V that parliament exerted a more overt claim to a say on religious matters when it enacted legislation designed to suppress heresy and protect the established religion. After the seismic decisions taken at the 1560 Reformation parliament, there was a radical change as parliament began to intervene with greater frequency in ecclesiastical issues, including those relating to church polity and doctrine. The precedent established by the Reformation parliament essentially set the tone that lasted until 1707: whether initiated by the crown or in defiance of the crown, parliamentary legislation concerning specific matters of religion became commonplace. The Reformation also had a dramatic impact on the clergy as the first parliamentary estate. Having secured an uninterrupted parliamentary presence from the origins of parliament in the thirteenth century, between 1560 and 1707 there were several periods when there was no truly clerical estate. By deferring to the crown after the Reformation, the clerical estate became the focus of discontent, not only for secular groups but

T

31

M2287 - BROWN & MAC TEXT.indd 31

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 for ministers, too, who felt that their views were not adequately represented by the episcopate. In addition, the Reformation produced a new religious body for parliament to deal with, the general assembly, established to oversee ecclesiastical affairs at least partially as a result of the lack of crown support for the Reformation, which threw up some hitherto unknown challenges in the liaison between church and parliament. The Silent Estate, 1235‒1424 The separate history of the first estate in parliament in medieval Scotland is elusive. While the adoption of the phrase ‘three estates’ from the middle of the fourteenth century indicates that, in theory, there were three corporate entities that together made up parliament, only rarely are clearly distinguished actions, intentions and desires of particular estates apparent in the acts. Moreover, while the third estate of burgh commissioners had, by its urban, mercantile nature, a distinctive perspective and was characterised by its members’ generally non-noble origins, the extent to which the clergy was sharply delineated from the second estate of nobles is a matter of debate. The first estate normally consisted exclusively of prelates – bishops, abbots and priors – who were overwhelmingly of noble birth, and shared many of the interests and objectives of the second estate.1 For instance, James Kennedy, bishop of St Andrews between 1437 and 1465, has been identified as a successful parliamentary operator, but that was because of his royal Stewart lineage and ability to wield noble support in parliament, and his parliamentary agenda was more often secular rather than ecclesiastical.2 The prelates’ place in parliament was, to a large extent, reflective of their role as some of the leading landowners and magnatial power brokers in the country. This fact was even more the case because, until 1560, parliament did not concern itself with matters of religion to any significant extent, other than by repeatedly passing varieties of an act, first seen in 1318, stating ‘that the fredome of haly kirk be observit and kepit in all ymunit, privelege and fredome’, as the first piece of legislation in most sessions.3 This might be interpreted, in so far as it was anything other than an habitual opening formula, as a declaration 1. The first estate is generally described interchangeably as ‘the prelatis’ and ‘the clergy’, yet it was represented overwhelmingly by prelates (e.g. RPS, 1344/3, 1464/1/3, 1468/11, 1486/3/1 (‘the prelatis’), 1366/7/5, 1450/1/39, 1467/10/4, 1471/5/14, 1489/1/31 (‘the clergy’)). Date accessed for this and all subsequent RPS citations, August 2009. Archbishoprics were created at St Andrews (1472) and Glasgow (1492). 2. Tanner, Parliament, pp. 170–80. 3. RPS, 1469/15.

32

M2287 - BROWN & MAC TEXT.indd 32

10/08/2010 16:47

p a r l iame nt and th e c h u r c h that parliament’s main job was to leave the church to administer itself, and to protect its liberty to do so. Notwithstanding these difficulties, what can be told about the estate of the clergy, and about parliament’s role in passing acts that affected the church and religion in Scotland? Is it possible to identify anything amounting to a separate identity and parliamentary agenda for the first estate? Did a different corporate identity develop in parliament even before the Reformation, and was parliament the scene for criticism of the church, or early attempts at reform, that might hint that Scotland was to become a crucible for religious upheaval in the early modern period? While the medieval parliament rarely concerned itself with wholly religious issues, the clergy understood from an early date the importance of using parliament to promote and defend church interests. The first extant act of parliament, from the Kirkliston colloquium of 1235–6, relates to ecclesiastical business. A dispute had arisen between the abbots and monks of Melrose Abbey and Roger Avenel as a consequence of Avenel placing his animals on abbey lands in Eskdale and destroying buildings belonging to the abbey. The dispute was settled ‘in our [Alexander II’s] presence and the presence of our barons at the colloquium at Kirkliston in A.D. 1235’.4 Significantly, the text excludes the prelates. Thus, although the colloquium had the ability to be a forum for the settlement of disputes that affected the church, the membership of the colloquium, in so far as we can rely on the text of the act, was secular. The dispute itself was not settled judicially but by agreement between Avenel and Melrose Abbey and, although it must be assumed that members of the abbey were present at the colloquium, that does not mean that they were considered part of its membership. The agreement is the first instance of the chief way in which parliament and the church interacted with each other in the medieval period – in the transaction of business relating to the church’s secular interests and particularly its landed possessions and property. It is also possible that the church played another role in this first parliament that would be repeated through the centuries: as the setting for the parliament itself. The parish church at Kirkliston would have been the largest local building, and had probably only recently received its Romanesque south archway which survives today. The lands around Kirkliston also belonged to the church, specifically the Knights Templar, with the village generally referred to as ‘Temple Liston’, until the Templars were abolished in the reign of Robert I.5 The choice of location on this and subsequent occasions was not without 4. RPS, 1235/1. The witness list records the king’s council, and was made at a later date. 5. For example, J. Stevenson, Documents Illustrative of the History of Scotland from the Death of King Alexander III to the Accession of Robert Bruce (2 vols, Edinburgh, 1870), ii, p. 288;

33

M2287 - BROWN & MAC TEXT.indd 33

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 significance: a church provided a neutral, unfortified location for parliament’s members to gather that was not under the direct control of the king. The suspicion that the early colloquiums did not include the church is found in the second act of a colloquium to survive, one which also relates to the church. A colloquium held at Holyrood Abbey on 13 January 1256 carried out an investigation into a case that had seen the abbot and convent of Dunfermline fined four merks for being absent from a common suit at the sheriff court of Perth. Dunfermline appealed the fine, and the king caused an inquest ‘of many barons’ to investigate. Their verdict was that, because no suitors had appeared to bring a case against Dunfermline, it did not owe the four merks, and the king ‘by the common counsel of his magnates present [in the colloquium]’ quitclaimed Dunfermline of the suit in perpetuity.6 The term ‘his magnates’ (magnatum suorum) could technically encompass the prelates, and the implication is that the inquest ‘of many barons’ had sat separately from and before the colloquium but the suspicion remains that the prelates may not have had a leading role in colloquiums, even when the subject matter directly concerned them. Over subsequent years, prelates took a prominent part in the ‘parliament’ at Birgham of 14 March 1290 which confirmed the Treaty of Salisbury and, with two of the guardians being the Bishops of St Andrews and Glasgow, it is difficult to imagine how the prelates could have continued to be excluded from assemblies.7 Nevertheless, while acts relating to church property played a leading role in John Balliol’s parliaments, it is not until the reign of Robert I that we have the first acts that show the clergy explicitly attending parliament, and acting therein as a distinct entity alongside the nobility.8 When the clergy finally arrived on the parliamentary scene in a significant way, they appeared to do so dramatically. The Declaration of the Clergy, issued multiple times, but initially in Robert I’s first parliament at St Andrews on 16 March 1309, is one of the most important documents to survive from the reign, foreshadowing themes developed to a greater extent eleven years Calendar of Various Chancery Rolls: Supplementary Close Rolls, Welsh Rolls, Scutage Rolls (1277–1326) (London, 1912), p. 68. It is not known when the lands were granted to the Templars: see I. B. Cowan, P. H. R. MacKay and A. MacQuarrie (eds), The Knights of St John of Jerusalem (SHS, 1983), p. xix. By 1319, the bishop of St Andrews had a manor house, with a chapel, at Kirkliston, but it is unlikely that this existed in 1235. Such a house, in any case, may not have been large enough to accommodate an assembly. C. Innes (ed.), Liber Cartarum Sancte Crucis. Munimenta Ecclesie Sancte Crucis de Edwinesburg (Bannatyne Club, 1840), no. 91. The author would like to thank Dr Iain MacDonald for the last two citations. 6. RPS, 1256/1. 7. RPS, 1290/3/1–1290/7/1. 8. RPS, 1293/2/5.

34

M2287 - BROWN & MAC TEXT.indd 34

10/08/2010 16:47

p a r l iame nt and th e c h u r c h later in the Declaration of Arbroath. The 1309 declaration was made in the names of ‘the bishops, abbots, priors and others of the clergy located in the kingdom of Scotland’ and proceeded to establish a great deal of the mythology that would subsequently be developed about the reign of John Balliol. Balliol, it claimed, had been foisted on the Scots by their enemies, and the ‘Scottish people’ had always held that Robert Bruce, lord of Annandale, grandfather of Robert I, was the legitimate heir to Alexander III and Margaret. Not only was Robert I king by right of blood but also because ‘the common folk and people [plebs et populus]’ of Scotland ‘agreed [convenerunt] on the said Lord Robert, the present king [. . .]. And by their authority the aforesaid king of Scots was solemnly endowed with the kingdom.’ The clergy wanted the world to know that, being in full agreement with the process that had brought Robert I to the throne, they had given their due fealties to the king, as their successors would do, and to underline this further they had freely appended their seals to the document.9 Yet, while the text is unambiguous, it has been established that the creation of the four different versions of the Declaration of the Clergy during 1309 and 1310 was closely controlled by the crown, not by the clergy. Most obviously, the evidence from the seals that were appended to the different versions of the declaration does not tally with the known positions of the bishops at the times that the documents were made, many of whom were openly hostile to the king or who were in captivity. The bishops’ seals, therefore, were neither reflective of a genuine consensus in the church nor, in several cases, were they used with the incumbent’s permission. Just as tellingly, the 1310 copy of the declaration, nominally made at a general council of the church at Dundee, includes the phrase ‘et anno regni eiusdem quarto’ – a phrase that has no place in an ecclesiastical document but one that was included in error by a royal scribe who was used to writing the king’s letters.10 For the remainder of the reign, it is not easy to discover any clear evidence of the clergy acting on their own behalf in parliament. Certainly the prelates were prominent on the most important documents, for instance with perhaps as many as twenty-eight prelates sealing the Statute of Disinheritance in November 1314, and the two Bruce tailzies of 1315 and 1318.11 Yet the 9. RPS, 1309/2. 10. R. J. Tanner, ‘Cowing the community? Coercion and falsification in Robert Bruce’s parliaments, 1309–1318’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560. 11. RPS, 1314/1, 1315/1, 1318/30. The seals of the prelates on the 1314 Statute of Disinheritance are, with two exceptions, preserved only through Sir James Balfour of Kinnaird’s imperfect seventeenth-century transcript, Tanner, ‘Cowing the community’, p. 62.

35

M2287 - BROWN & MAC TEXT.indd 35

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 problematic sealing of Bruce’s Ragman documents makes it impossible to be certain as to the real number of prelates present in parliament or whether they had any influence on the creation of these documents. Likewise, with the single exception of the act concerning the rights and liberties of the church already referred to, there is little to suggest that the church had negotiated extensive concessions from the king in the legislation of 1318. The act included clauses missing from the restatements made in later years, however. It recognised the harm that had come to the church because of the war of the previous decades, and furthermore ordered that ‘nobody henceforth shall be lodged in the houses or granges of religious or ecclesiastical men to the destruction of them or the goods of the same’.12 This, at least, was an act that concerned the substantive rights and liberties of the church in Scotland, rather than a property issue of local relevance, the first to survive that does so. Freeing the church from the obligation to play host to armies stationed on its lands was, no doubt, a concession of genuine importance to the prelates. The remaining acts of relevance to the church during the reign almost exclusively concern transactions relating to land ownership. These were not necessarily acts of overt patronage to religious houses but rather royal confirmations made in parliament of deals which had taken place elsewhere. For instance, a contract between Dunfermline Abbey and David de Hastings was confirmed by the king in the Scone parliament of 25 July 1323.13 The confirmation cost the king nothing in terms of patronage – indeed fees may have been involved for Dunfermline to receive the royal confirmation. A genuine act of patronage by the king was seen in March 1325 when he granted £2,000 from the profits of the sheriffdom of Roxburgh for the rebuilding of the abbey church of Melrose. Yet the grant was the king’s gift, and it was not done with any parliamentary oversight. Only the appointment of James, lord of Douglas, as the executor for collecting the money was made with parliamentary authority.14 Finally, while the taxation for life that was granted to Robert I at the Cambuskenneth parliament of July 1326 saw the burgesses mentioned in parliament for the first time, welcomed in because of their ability to contribute to the tax, there is no mention whatsoever of the church in the taxation. This was not a careless omission, as the act carefully listed the ‘earls, barons, burgesses and freeholders’ who were to seal the agreement.15 The church has generally enjoyed a reputation as a key to Robert I’s successful defence of his kingship.16 Some bishops were among his early 12. 13. 14. 15. 16.

RPS, 1318/3. RPS, 1323/7/1. RPS, 1325/1. RPS, 1328/1. For example, A. Grant, Independence and Nationhood: Scotland 1306–1469 (London, 1984), p. 91, which states that ‘most Scottish bishops supported Robert I’ after 1306;

36

M2287 - BROWN & MAC TEXT.indd 36

10/08/2010 16:47

p a r l iame nt and th e c h u r c h partisans, it is true. Yet, with Robert Wishart, bishop of Glasgow, in prison in England until after Bannockburn, and William Lamberton, bishop of St Andrews, apparently able to play a bizarre game that shuttled him between Edward II and Robert I, with both men apparently trusting him, until 1312, ecclesiastical influence has been exaggerated.17 Bernard, abbot of Arbroath, may have drafted both the Declaration of the Clergy and the Declaration of Arbroath. As the chief servant of the crown bureaucracy, his influence was enormous, but his career tells us nothing about the church as a corporate body within parliament. Once the Declaration of the Clergy has been removed as something which the church played a significant role in creating, the character of the church in Robert I’s parliaments is almost imperceptible. When ecclesiastical institutions are mentioned, it is almost exclusively in relation to the church as a landowner, and the motivations were personal, local, and indistinguishable from those of secular lords. While parliament was physically located in churches for most of the reign – St Andrews Cathedral, the abbeys of Holyrood, Scone and Cambuskenneth, and Ayr parish church – the church as a parliamentary player had not yet come into being. It is possible that the failure to legislate on church affairs reflected a stronger perception of the separation of secular and ecclesiastic power than would exist by the late fifteenth century. This situation did not change immediately or dramatically in the reigns of David II, Robert II or Robert III. Acts concerning the church were few and far between, usually involving confirmations of private, local matters.18 Yet, there were at last hints of the clerical ‘community’ being able to act within parliament, and limited evidence as to which prelates were at parliament and involved in its decisions. In 1344, it was the prelates alone who held a parliamentary enquiry into whether the bishop of Aberdeen should receive the ‘second’ teinds of all the king’s rents and escheats in the diocese of Aberdeen which the bishop had been receiving ‘beyond the memory of man’. The background to this act was the interference of William, earl of Ross, in the second teinds, and repeated attempts by David II to protect them on the bishop of Aberdeen’s behalf. In this context, the detailed examination by the prelates of Aberdeen’s well-documented right to the teinds was entirely for show – the enquiry was at the king’s behest and produced a result that will have surprised nobody. It was a royal bluff – and one that Ross recognised, as G. W. S. Barrow, Robert Bruce and the Community of the Realm of Scotland, 3rd edn (Edinburgh, 1988), pp. 263–9. 17. Barrow, Robert Bruce, pp. 263–5. 18. For example, RPS, 1341/1–2, 1358/1/2–4, 1358/8/1, 1359/10/1, A1382/6/1–2, 1391/1, 1391/4, 1401/2/19.

37

M2287 - BROWN & MAC TEXT.indd 37

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 he continued to interfere in the second teinds thereafter, just as Alexander, earl of Buchan, the ‘Wolf of Badenoch’, would in the following reign.19 In 1382–5 the bishop was again recorded trying to secure the second teinds and the full implementation of the first act, as part of further attempts to thwart the wholesale attack on his temporalities, returning repeatedly to parliament in attempts to gain royal backing.20 For the bishop of Aberdeen, parliament was a useful tool in a specific political campaign against the incursions of highlanders on his lands, although the backing of the crown was the factor that made this campaign possible, and not any influence wielded collectively by the clerical estate. The usefulness to his cause of the parliamentary acts is debatable, and they suggest primarily that the local breakdown of authority, where the crown’s representative was also the person at the root of the lawlessness, had forced the bishop to take the matter directly to the highest authority available.21 Individual prelates played a key role in government and, one must expect, in parliament, just as they had a leading part in negotiations with England for the release of David II from captivity. The problem comes in trying to distinguish the church’s position from that of the other estates. One can guess that the opposition in parliament to accepting a ransom of £40,000 came from all estates, that there were as good reasons for the clergy to oppose it as anyone else, and that the threat to ecclesiastical liberty implied by an English succession may have meant that they felt more threatened than most.22 But there is no surviving evidence to suggest that they acted differently from the others.23 The one piece of substantive parliamentary business for the period 1328–1406 to touch upon the general rights of the church was one of the last acts of David II’s reign, made in October 1370. In this act, David overturned the previous long-standing practice that bishops did not have the right to distribute their personal property – amounting to whatever movable goods they accumulated during their lives – through testaments after their deaths. Instead this property had been deemed to belong to the king. Therefore the right was granted at the instance of the prelates petitioning urgently concerning this, and from the consent and assent of Robert Stewart, steward of Scotland, 19. RPS, 1344/6, 1342/2/2; M. Penman, ‘Parliament lost – parliament regained? The three estates in the reign of David II’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560, pp. 83–4. 20. RPS, A1382/6/1–5. 21. S. Boardman, The Early Stewart Kings: Robert II and Robert III, 1371–1406 (East Linton, 1997), p. 85. 22. Penman, ‘Parliament lost – parliament regained?’, pp. 85–6. 23. ER, i, p. 501.

38

M2287 - BROWN & MAC TEXT.indd 38

10/08/2010 16:47

p a r l iame nt and th e c h u r c h our nephew, and his children, also the other barons and nobles, and of the three communities of our realm in our full parliament. Yet even this concession, which affected the private incomes of only twelve men at any one time, may have been more of a reflection of a fait accompli than anything else, as the act explicitly stated that the ‘[old] custom has ceased hitherto [consuetudo huiusmodi cessit hactenus]’.24 Defending the Church, 1424‒1560 The church’s role in parliament before 1424 was, in so far as the paucity of surviving evidence allows any firm conclusions to be made, unspectacular. This changed in the reign of James I with a king willing to stretch the boundaries of royal power over matters ecclesiastical. He ran headlong into confrontation with the church just as he did with the nobility. Legislation passed after 1424 sought to end the practices of barratry (purchasing ecclesiastical posts directly from Rome), purchasing pensions from benefices, and travelling overseas without the king’s permission. Yet barratry, or more accurately the many associated processes of supplications, appeals, protests, suits and countersuits by clergymen against clergymen, were the lifeblood of the late medieval church, and make up an astonishing proportion of the surviving records.25 Money was involved at each stage, and hard currency was leaving the country and making its way to the Curia. The king’s motivation was clear but an attack on barratry affected a wide range of ecclesiastical interests. Opposition to the legislation came from both the papacy and, within Scotland, particularly from the diocese of St Andrews in the persons of Henry Wardlaw, the bishop, and James Haldenstone, prior of the cathedral’s regular chapter, who both incurred royal displeasure as a result.26 On one level, parliament was aiding the king in passing the anti-clerical legislation, so the first estate clearly could not wield a veto in such matters, but a more complex story emerged subsequently. When anger at the misappropriation of James I’s taxation became overt in 1431, parliament ordered that the newest contribution be kept in ‘a kist of foure keyis’, each to be held by the auditors of the tax. The chest was to be kept at St Andrews, under the keepership of Wardlaw and Haldenstone – two vocal opponents of the anti-barratry 24. RPS, 1370/10/2. 25. E. R. Lindsay et al. (eds), Calendar of Scottish Supplications to Rome (5 vols, SHS, Edinburgh/Glasgow, 1934–97); C. Burns et al. (eds), Calendar of Papal Letters to Scotland (2 vols, SHS, 1976). 26. Tanner, Parliament, pp. 54–5.

39

M2287 - BROWN & MAC TEXT.indd 39

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 legislation. This, it has been argued, was a case of parliament turning to trusted independent men from the clergy as a way to control the actions of the king.27 Yet James continued to use parliament as a tool in his campaign to implement secular power over the church. Following John Cameron’s royal appointment to the bishopric of Glasgow in 1426, the papacy disputed the king’s provision, and subsequently William Crosier, archdeacon of Teviotdale, became involved in the dispute, telling the pope that Cameron was responsible for the anti-barratry legislation. In 1430, Crosier was summoned before parliament, and eventually denounced there as a traitor in 1435. With Wardlaw and Haldenstone apparently taking Crosier’s side in the dispute, royal anger was such that a concerted campaign to obstruct or remove the privileges of the diocese was implemented, including an abortive attempt to move the University of St Andrews to Perth.28 The entire dispute dragged on until the end of the reign, when Antonio Altani, papal nuncio, attended the king’s general council at Perth on 4 February 1437.29 The king’s death on 21 February, according to Walter Bower, meant that nothing happened at the general council, but it was probably intended to be a forum for some form of resolution in the debate over the anti-barratry legislation, which so vexed the papacy that its chancery was able to quote the acts in detail in its own documents.30 The other issue motivating the nuncio’s visit was James I’s adherence to the Council of Basel made on 31 July 1433. The council, which advocated limitations on the power of the papacy, offered benefits to James I in its anti-papal tone, which blossomed into outright schism in 1435. The king’s adherence to Basel may not have been strong, and was made before the council split entirely with the papacy. Moreover, he would not have approved of the implications of conciliarism for royal government, as it maintained that general councils of the church had superior authority to the pope. Yet there was no warming in tone towards the papacy, with the king overturning the wishes of the pope and cathedral chapter of Dunkeld by appointing his nephew James Kennedy to the diocese before February 1437.31 Evidence from an account written for the pope very shortly after James I’s death suggests an astonishingly high level of hostility, with the act of regicide at Perth described as God’s retribution on James ‘to punish his demerits by this ignominious death’.32 27. RPS, 1431/10/2. 28. Tanner, Parliament, p. 55. 29. Walter Bower, Scotichronicon, D. E. R. Watt et al. (eds) (9 vols, Aberdeen/Edinburgh, 1987–98), viii, p. 297. 30. J. H. Baxter (ed.), Copiale Prioratus Sanctiandree: The Letter-Book of James Haldenstone, Prior of St Andrews 1418–1448 (Oxford, 1930), pp. 369–72 (cf. RPS, 1428/3/10). 31. Tanner, Parliament, pp. 73–4. 32. Ibid., p. 74.

40

M2287 - BROWN & MAC TEXT.indd 40

10/08/2010 16:47

p a r l iame nt and th e c h u r c h James I’s death did not end the story, and the next chapter was played out in the general councils held in the minority of James II. Shortly before October 1442, Scots were forbidden from travelling to Basel or from adhering to the council, and there is reason to suppose that this may have been done by the estates, in particular because Basel responded to the ‘prelates, barons and other counsellors of James II’, rather than directly to the king.33 The reason appears to relate to the arrival at court and general council of some key anti-conciliarists, chief among them James Kennedy, bishop of St Andrews, the other bishops appointed by Eugenius IV – of Dunkeld, Ross and Aberdeen – John Cameron, bishop of Glasgow, and Michael Ochiltree, bishop of Dunblane. They appear to have been using their influence over the government, then led by William, first Lord Crichton, and their role at meetings of the three estates to attack what amounted to a secular takeover of ecclesiastical lands by a group of laymen, led by James the Gross, seventh earl of Douglas, and Alexander MacDonald, earl of Ross, who appointed kinsmen and allies as conciliarist candidates to Scottish benefices.34 In July 1442, Douglas had intimidated a provincial council of the church that attempted to suppress the conciliarist bishops to such an extent that ‘certain prelates fled by night’, and it was following this that the pro-papal bishops seem to have successfully used general council to outlaw support for Basel.35 At last it seems that key prelates were acting in a distinctive and unified way in business that had relevance to them as clergymen, rather than simply as landowners, and managing to use it as part of a campaign to overcome a secular land grab by leading magnates. Kennedy is perhaps the first churchman who can be identified as having a distinct parliamentary career. As well as his part during the minority of James II in opposition to James the Gross, Kennedy was frequently at parliament and general council, with good evidence that he attended at least twelve meetings of the estates between 1443 and 1464 – a high number in a period before detailed parliamentary sederunt lists survive.36 Kennedy was the recipient of a major piece of royal largesse in the parliament of June 1452, as part of James 33. R. K. Hannay ‘A letter to Scotland from the council of Basel’, SHR, xx (1923), p. 54. 34. Tanner, Parliament, pp. 101–7. The attempt to control church lands by nobles may have been related to the apparent attacks, ‘reif and spoliation’ of church lands that were mentioned during James II’s minority (RPS, A1438/12/1). 35. Copiale, pp. 322–3 (‘prelati quidam fugerint de nocte’). 36. Collated from parliamentary acts, witness lists from the time of assemblies and secondary sources: see R. J. Tanner, ‘The political role of the three estates in parliament and general council in Scotland, 1424–1488’ (unpublished PhD thesis, University of St Andrews, 1999), app. C, pp. 397–417; J. de Waurin, Anchiennes Croniques d’Engleterre (3 vols, Societe de l’Histoire de France, 1858–63), iii, pp. 166–7; A. Dunlop, The Life and Times of James Kennedy, Bishop of St Andrews (Edinburgh, 1950), p. 170.

41

M2287 - BROWN & MAC TEXT.indd 41

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 II’s policy of rewarding allies who were to support him in his campaigns against the Black Douglases. The ‘Golden Charter’ was made nominally to commemorate the birth of the king’s son, the future James III, in the episcopal castle at St Andrews in May 1452, ‘and on account of the welcome offices rendered to us many times’ by James Kennedy. It confirmed all previous crown gifts of land to the church of St Andrews, uniting them into a full regality, giving enormous additional freedoms of jurisdiction within the affected lands.37 Above all, in the minority of James III, Kennedy came to the fore again as a rival to the king’s mother, Mary of Guelders, for the leadership of government. Initially excluded, Kennedy pushed himself to the fore, and it has been suggested that this was at least partly achieved though support that he was able to muster in meetings of the estates while the queen still had possession of the king. It appears that Kennedy managed to portray himself as the rightful head of government, and contemporary gossip claimed that the queen had ‘made war upon the bishop of St Andrews and the three estates’.38 The other area where clergymen undoubtedly played an important part in parliaments was as royal servants involved in formulating policy before and during the sessions. As such, their role was as agents of the crown, not the church, yet their ecclesiastical background coloured the policies they brought forward. In the years after James III took personal charge of government in 1469, a group of clergymen and crown servants who left a lasting impact on royal and parliamentary perceptions of power has been identified. They shared Albertist and Aristotelian principles, and promoted the adoption in Scotland of the imperial doctrine of Bartolus de Sassoferrato that was to become the central feature of a royal doctrine of authority over the subsequent reigns of James III, IV and V.39 Men such as John Athilmer, provost of St Salvator’s College at the University of St Andrews, Archibald Whitelaw, royal secretary throughout the reign of James III, and William Scheves, archbishop of St Andrews, who became ‘the man who had to be consulted in order to reach the king’ in the 1470s, even before he was promoted to the primacy of Scotland, seem to have been behind the passing of parliamentary acts that declared, and then sought to implement, the principle or ‘fre empire’ within Scotland.40 As such, they acted as the successors to James Kennedy 37. RPS, 1479/10/12. 38. Waurin, Anchiennes Croniques, iii, pp. 162–4; Tanner, Parliament, p. 175; N. Macdougall, James III (2nd ed., Edinburgh, 2009), p. 53. 39. R. Lyall, ‘The court as a cultural centre’, in J. Wormald (ed.), Scotland Revisited (London, 1991), pp. 42–3; R. Tanner, ‘James III’, in M. Brown and R. Tanner (eds), Scottish Kingship, 1306–1542: Essays in Honour of Norman Macdougall (Edinburgh, 2008), pp. 215–18. 40. Macdougall, James III, p. 361; Tanner, ‘James III’, pp. 216–18.

42

M2287 - BROWN & MAC TEXT.indd 42

10/08/2010 16:47

p a r l iame nt and th e c h u r c h and the bishops who had fought against conciliarism in the 1440s, as they now began to establish political theories which implied limits to the authority of the three estates in parliament. These ideas were adopted and developed in the following generation by William Elphinstone, bishop of Aberdeen, chancellor, keeper of the privy seal and chief minister of James IV for much of the reign, whose views on the correct implementation of royal power were perhaps reflected in part by the successful kingship of James IV.41 Although these men may have influenced parliament as a tool for the furtherance of the interests of the crown, other clergymen acted differently, and more in line with the often troublesome nature of parliament for fifteenthcentury kings. In particular, it was the clergy that voiced reservations about James III’s plans for continental adventures in 1472 and 1473, in some of the most strongly worded acts of the century, inducing him to stay in Scotland and increase his fame abroad by the administration of justice.42 A final way in which it has been suggested that the church acted to increase parliamentary independence was through the habit of choosing only the highest-status bishops and archbishops, of St Andrews, Glasgow, Aberdeen and Dunkeld, to sit on the committee of the lords of the articles.43 This habit meant that there was little opportunity for the crown to pack the clerical representation on the committee with men it could trust to promote its interests. At the turn of the sixteenth century, the prelates had established an influential position in parliament that could allow them to speak frankly about royal policies, and exert influence in a number of different ways. But, in the sixty years before the Reformation, did the opposite apply? Did parliament become a forum where resentment towards the church or a desire for reform were expressed before the Reformation Parliament of 1560? During the reign of James V, religion suddenly became an issue that demanded parliamentary legislation. Over the previous three hundred years, there had been very little legislation that could be construed as directly relating to religion, rather than the property, liberties and offices of the church. A single act in 1425 dealt with ‘Lollardis and heretykis’, which instructed only that bishops should do their job by finding and punishing heretics, if need be with the assistance of ‘seculare poware’.44 Likewise, when David, duke of Rothesay, was made governor of the realm in 1399 the act included a stipulation that he especially restrain ‘cursit men, heretikis and [persons] put fra the kyrke’.45 41. 42. 43. 44. 45.

Tanner, ‘James III’, pp. 220–1. RPS, 1472/33, 1473/7/9–10. R. Tanner, ‘The lords of the articles: a reassessment’, SHR, lxxix (2000), p. 196. RPS, 1425/3/4. RPS, 1399/1/3.

43

M2287 - BROWN & MAC TEXT.indd 43

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 With Lollardy a significant movement in England, and a handful of Englishinfluenced men espousing its principles in Scotland, parliament acted in defence of the status quo.46 Yet the silence on the subject after 1425 suggests that this was not a matter of major concern, or at least not one that parliament was qualified to address. This silence ended in the reign of James V, when a substantial amount of legislation began to be passed which dealt with the defence of established religion and the suppression of heretics. In 1525 the opinions, ‘filthe and vice’ of Martin Luther were condemned, and the importation of his publications forbidden, an act that was repeated and expanded in 1535.47 Then, in March 1541, a major set of legislation was made that addressed both the suppression of heresy and the need for the church to reform itself from within. For the first time, the acts touched directly on religious ritual and tradition: commanding that the sacraments be held and honoured; and that the Virgin Mary be worshipped, and her intercession sought for the health of the queen, Mary of Guise; forbidding anyone to question the pope’s authority, or to discuss scripture at meetings unless qualified as a theologian; and banning the destruction of images and statues of the saints.48 While making laws to prevent the spread of Protestant sympathies, the legislation also recognised the need for reform of churches and churchmen. In short the church was blamed in large part for the spread of Protestantism: Becaus the negligence of divyne service, the grett unhoneste in the kirk throw nocht making of reparatioune to the honour of God almychty and to the blissit sacrament of the altare, the Virgyne Mary and all haly sanctis, and als the unhonestie and misreule of kirkmen, baith in witt, knawlege and maneris, is the mater and cause that the kirk and kirkmen are lychtlyit and contempnit, for remeid hereof, the kingis grace exhortis and prayis oppinly all archibischopis, ordineris and uthir prelatis, and every kirk man in his awne degre, to reforme thair selfis, thair obedienciaris and kirkmen under thame.49 After the death of James V, the parliament of March 1543 went still further, both through explicit acts and the implications of its measures.50 With James Hamilton, second earl of Arran, appointed governor during the minority of 46. 47. 48. 49. 50.

Nicholson, Later Middle Ages, pp. 239–41. RPS, 1525/7/32, 1535/10. RPS, 1540/12/55–63. RPS, 1540/12/48. RPS, 1543/3/23–5.

44

M2287 - BROWN & MAC TEXT.indd 44

10/08/2010 16:47

p a r l iame nt and th e c h u r c h Queen Mary at the same meeting, parliament proceeded to pass acts that moved in the direction of limited reform. The punishments decreed for heretics were moderated, and, most importantly, the use of vernacular Bibles was legalised, following an unusual process by which a question was put to Arran and the lords of the articles by Robert, fifth Lord Maxwell, as to the reasonableness thereof. The lords of the articles found that such publication was reasonable on the rather weak basis that ‘thare was na law schewin nor producit in the contrare’. Perhaps this piece of parliamentary theatre was a way to allow the eight bishops and two abbots on the committee to find a way to allow the act to pass.51 The political background to this legislation was Arran’s pursuit of an English marriage for the queen in early 1543. A move towards Protestantism, although never mentioned within the terms of the marriage negotiations that ended with the treaties of Greenwich, went hand in hand with the warming relations with Henry VIII. Yet, by the end of the year, Arran had completely abandoned his pro-English policy. He gave up on his plans for Mary’s marriage to Prince Edward of England and a perpetual peace under domestic and dynastic pressure from Mary of Guise and Cardinal Beaton that forced him to switch to a pro-French and pro-Catholic policy.52 Parliament confirmed the details in December 1543, along with the renewal of the Franco-Scottish alliance, and an act recording the ‘gret murmure that heretikis mair and mair risis and spredis within this realme, sawand dampnable opinionis incontrar the faythe and lawis of halykirk, actis and constitutionis of this realm’, but can have had no significant part in the decision.53 The future direction of religion in Scotland now depended on the vagaries of domestic politics and international diplomacy. That the opinion of the prelates as an estate in parliament counted for little is made clear by the fact that, with the exception of Cardinal Beaton and the abbot of Paisley, all the prelates who sat on the lords of the articles at the pro-French, pro-Catholic December 1543 parliament had sat on the same committee at the pro-English, pro-reforming March 1543 parliament.54 After 1543, religion and heresy returned again to the background in parliament, if not outside the parliament chamber, being entirely absent from the legislation enacted throughout Mary of Guise’s regency from 1554. Discussion of reform was instead handled by provincial councils of the church in 1549, 1552 and 1559.55 Religious issues appeared next in parliament 51. RPS, 1543/3/25. 52. P. E. Ritchie, Mary of Guise in Scotland, 1548–1560: A Political Career (East Linton, 2002), pp. 16–18; RPS, 1543/3/12, 51. 53. RPS, 1543/12/31–2, 63. 54. RPS, 1543/3/6, 1543/12/5. 55. Ritchie, Mary of Guise, pp. 203, 205, 271.

45

M2287 - BROWN & MAC TEXT.indd 45

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 only when they exploded on to the stage at the Reformation Parliament of 1560. Since 1525, parliament had become involved in legislating directly concerning matters of religion in a way that it never had before. When it did so, however, it is difficult to see anything but the policies of the crown reflected in the legislation, and not a reflection of any shift within the estates that motivated reforming legislation or criticism of the church. The 1543 legislation only underlines this point, as both the enactment of ‘reforming’ acts and the return to normal business nine months later were entirely the policies of the crown. A protest made by Gavin Dunbar, archbishop of Glasgow, in the name of the first estate, at the March 1543 parliament, further emphasises that even when the first estate did express an opinion, it was not guaranteed to be heeded. It stated in mild terms that the first estate dissented from the wording of the act that declared vernacular scriptures to be legal, because it claimed to have been concluded by the three estates. In fact Dunbar stated that he and the other prelates wished to wait until a provincial council of the clergy had been able to assemble to discuss the matter.56 The prelates as an estate, then, were able to make their opinion clear, and make a limited stand in defence of the church’s right to legislate on its own affairs at provincial councils. Yet the eight bishops and two abbots chosen as lords of the articles, including Dunbar himself, were not able to prevent the act being passed in their names. Separating the motivations and actions of the prelates from the rest of parliament in order to understand better the distinctiveness of the first estate is extremely difficult. The conclusions that can be drawn are more limited than might be expected for an estate that contained some of the richest and most powerful men in Scotland. Yet some may be made. While the first estate was a key constituent of the assembly, parliament for almost the entire period before 1560 did not legislate on ecclesiastical matters. Churchmen attended parliament as great landowners, and ‘church’ statutes over the first two centuries of parliamentary history nearly all relate to the church’s role as a corporate landowner. With the reign of James I, royal intervention in church affairs, and attempts to limit the influence of the papacy through parliament, became a more common feature. This did not prevent parliament from turning to men whom James I viewed as his ecclesiastical enemies when it wanted trusted figures to handle the king’s tax. Particular churchmen, most clearly James Kennedy, used parliament to increase their power and influence, while the first estate in the reign of James III issued pointed criticism 56. RPS, 1543/3/26. The act as recorded in the parliamentary register does not claim to have the support of all three estates but does claim to have been agreed by the lords of the articles, of which Dunbar was one.

46

M2287 - BROWN & MAC TEXT.indd 46

10/08/2010 16:47

p a r l iame nt and th e c h u r c h of the king. Overall, however, as is suggested by the careers of the Albertist councillors of James III and the career of William Elphinstone, churchmen had a far greater impact as officers of the crown than as representatives of the church. As religious matters finally made their entrance into parliament in the 1520s, the first estate largely remained silent. The crown was the driving force behind acts that sought to protect the church by the suppression of Protestant beliefs, and, it was the crown that, on one occasion at least, brought pressure for reform from within. The issue of religion may have been of growing concern among the three estates outside the parliament chamber but, as yet, it was not something they were willing to discuss when assembled together formally. Reformed by Statute, 1560‒1707 The relationship between church and parliament in the post-Reformation era can be explored through an analysis of parliamentary legislation of interest to the church, ecclesiastical representation in parliament and the relationship between parliament and the general assembly. Unlike its predecessor, the post-Reformation church was continuously and strongly influenced by parliament: between 1560 and 1707 Protestantism was established, and then repeatedly altered and confirmed by statute. This occurred in crowndominated parliaments, such as those which sat in 1584, 1621 or 1661, when parliament was used to sanction religious change according to the wishes of the monarch. Yet it also occurred when parliament acted more autonomously, as in 1560, 1639–40 and 1689–90. In a number of different political contexts, parliament defined the status of the church in the post-Reformation period.57 Thus, in 1560, formal parliamentary recognition of Protestantism, albeit not ratified by the crown, created a firm bond between the post-Reformation church and parliament without clearly defining that relationship. The two institutions continued to work together, with Protestant polity being settled by statute in 1567, 1584, 1592, 1612, 1640, 1661 and 1689–90.58 The church 57. Useful texts on early modern Scottish ecclesiastical history include: G. Donaldson, Scottish Church History (Edinburgh, 1985); J. Kirk, Patterns of Reform: Continuity and Change in the Reformation Kirk (Edinburgh, 1989); A. R. MacDonald, The Jacobean Kirk, 1567–1625. Sovereignty, Polity and Liturgy (Aldershot, 1998); W. Makey, The Church of the Covenant, 1637–1651. Revolution and Social Change in Scotland (Edinburgh, 1979); D. G. Mullan, Episcopacy in Scotland. The History of an Idea, 1560–1638 (Edinburgh, 1986); R. S. Spurlock, Cromwell and Scotland. Conquest and Religion 1650–1660 (Edinburgh, 2007). 58. RPS, A1567/12/1–6, A1567/12/11, 1584/5/7, 1584/5/10–12, 1584/5/26, 1584/5/37, 1592/4/6, 1612/10/8, 1640/6/5, 1640/6/37–8, 1661/1/158, 1662/5/4, 1662/5/9, 1689/6/36, 1690/4/12–13, 1690/4/43.

47

M2287 - BROWN & MAC TEXT.indd 47

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 often established religious guidelines, such as the First Book of Discipline (1560) and the Second Book of Discipline (1578), and made declarations on ecclesiastical polity, including the condemnation of episcopacy in 1580, but because none of these was immediately translated into statute their status remained ambiguous. If parliament identified weaknesses in ecclesiastical proposals, or if those proposals conflicted with secular or crown interests, they were less likely to make it on to the statute books. That is not to say that the reformers gave up on their designs but the financial aspects of the First Book, some sections of the Second Book and the pronouncement on bishops were unenforceable without government backing.59 The post-Reformation church’s continued inability to decide on all church matters unilaterally left it reliant on, if not wholly subservient to, parliament, much as it had been in the late medieval period. The Reformation parliament of August 1560 enacted four vital pieces of legislation in favour of Protestantism: one adopted a Calvinist confession of faith, the others abolished papal jurisdiction, all acts which were deemed ‘contrair to the confessioun of oure fayth’, and the mass.60 Despite the undeniable radicalism of this parliament, the practical transformation of religion was incomplete for decades. Even if the First Book of Discipline, a manifesto for ecclesiastical organisation, had been considered by parliament, the holes in the reform programme would have remained cavernous. The position of the bishops was uncertain, and would remain contentious for the next 130 years, while the financial status of the new church was even less settled. Further, that the enactments of the Reformation parliament were made in defiance of the crown and never formally ratified by Queen Mary rendered the religious revolution ‘precarious’ until the ratification in December 1567 of the 1560 legislation, following Mary’s enforced abdication.61 The Reformation was a process rather than an event, however, and parliament remained vital to its progression and development. With almost no doctrinal divisions until the second quarter of the 59. J. K. Cameron (ed.), The First Book of Discipline (Edinburgh, 1972), pp. 70–5, 131–2; J. Kirk (ed.), The Second Book of Discipline (Edinburgh, 1980), pp. 124–37; G. Donaldson, Scotland: James V to James VII (Edinburgh, 1965), pp. 104–5, 143–4; J. Goodare, ‘The Scottish parliament and its early modern “rivals”’, PER, xxiv (2004), pp. 152–3; G. Donaldson, ‘The Scottish Church 1567–1625’ in A. G. R. Smith, The Reign of James VI and I (London, 1973), p. 47; MacDonald, Jacobean Kirk, p. 18; A. R. MacDonald, ‘Ecclesiastical representation in parliament in post-Reformation Scotland: the two kingdoms theory in practice’, Journal of Ecclesiastical History, l (1999), p. 43. 60. RPS, A1560/8/3–6; K. M. Brown, ‘The Reformation parliament’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560. 61. G. Donaldson, Scotland: Church and Nation Through Sixteen Centuries (Edinburgh, 1972), p. 54.

48

M2287 - BROWN & MAC TEXT.indd 48

10/08/2010 16:47

p a r l iame nt and th e c h u r c h seventeenth century, the dominant religious issue centred on polity: episcopalians argued that the church should be governed by bishops, while presbyterians favoured a tiered system of church courts. This controversy was focused on the ideological divide between those who believed that there was one kingdom, in which the king dominated both the political and religious spheres, or two, in which church and state were under separate jurisdictions. This quarrel reached maturity during the 1570s, in the debate surrounding the Second Book of Discipline, and dominated the disputes between James VI, who came to champion an Erastian episcopalian settlement, and his presbyterian subjects. The ‘two kingdoms’ theory was never as rigid in practice, for the presbyterians wanted the civil magistrate to lend practical support to the church, thereby enforcing some overlap between the spiritual and temporal kingdoms, though notably guided by church rather than king. Moreover, crown involvement in religious matters was welcomed and often actively sought when it reinforced presbyterianism.62 The crown responded to the growing political influence of presbyterianism with the so-called ‘Black Acts’ of May 1584, which affirmed the king’s supremacy over an episcopal church. Parliament’s backing of the crown at this time can in part be explained as the conservative reaction of the Arran regime to the Ruthven Raid of August 1582, which had received support from the general assembly.63 When the Ruthven faction renewed its bid for power in April 1584, decisive action was taken to reinforce royal authority.64 The general assembly and the presbyteries came under fiercest attack: those which met without the king’s express permission were banned and the act which overturned the sentence of excommunication on Robert Montgomery, appointed archbishop of Glasgow by the king amid much controversy, referred to the actions of the ‘pretended presbyteries of Edinburgh, Linlithgow and Dalkeith’.65 Parliament was linked to the royal supremacy by condemnation of any attempts to ‘impugn [its] dignity and authority’.66 Wider political circumstances, most closely associated with the collapse of the Arran regime in November 1585, limited the practical impact of the ‘Black Acts’. Throughout the remainder of the 1580s, the general assembly 62. The Second Book of Discipline, pp. 57–65; Donaldson, James V to James VII, p. 197; MacDonald, Jacobean Kirk, p. 178; K. M. Brown and A. J. Mann, ‘Parliament and politics in Scotland, 1567–1707’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1702, pp. 15–16; MacDonald, ‘Ecclesiastical representation in parliament’, pp. 39, 44–5. 63. Donaldson, James V to James VII, pp. 178–82. 64. MacDonald, Jacobean Kirk, pp. 23–6. 65. RPS, 1584/5/10, 1584/5/37. 66. RPS, 1584/5/9.

49

M2287 - BROWN & MAC TEXT.indd 49

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 and presbyteries were reinvigorated to the detriment of the bishops, apparently with the crown’s tacit acceptance.67 Formal accommodation of presbyterianism by king and parliament came in 1592 with the ‘Golden Act’ which gave statutory assent to a presbyterian polity.68 Like the episcopalian settlement before it, however, this presbyterian victory was incomplete. Most ominously, the episcopal office was not abolished and the date and place of general assemblies were placed under crown control, a clear statement of the king’s wish to assert his authority over the church. Under James VI, the church was neither fully presbyterian nor fully episcopalian. In the later 1590s, James VI used parliament and general assembly to restore the bishops to their former political and ecclesiastical functions: parliamentary bishops were in place by 1600; the estate of bishops was fully restored by parliament in 1606; and in 1610 and 1612 respectively, general assembly and parliament agreed to the bishops being reinvested with their former ecclesiastical judicial powers.69 The erection of several temporal lordships out of ecclesiastical property was instrumental in persuading the nobility to support the crown’s policy in 1606, whereas in 1612, though some opposition was evident, parliament’s approval was influenced by the strength of the recently reinstated parliamentary bishops, most notably as lords of the articles.70 As king of a multiple monarchy after 1603, James VI and I desired ‘ecclesiastical convergence’ within his kingdoms.71 His preference was for greater homogeneity based on the Anglican model; although there would still be changes in England, these were dwarfed by the scope of the alterations he required in Scotland. The king’s unpopular liturgical reforms came to fruition with the Five Articles of Perth, approved by a rigged general assembly in 1618 before receiving parliamentary ratification in 1621. Owing to the controversial nature of the legislation, the parliament of 1621 was subjected 67. MacDonald, Jacobean Kirk, pp. 37–9. 68. RPS, 1592/4/26; A. R. MacDonald, ‘The parliament of 1592: a crisis averted?’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1702. 69. RPS, 1605/6/31; Donaldson, James V to James VII, pp. 202–6; MacDonald, ‘Ecclesiastical representation in parliament’, pp. 56–9. Parliament’s ‘ratification’ in 1612 differed from the act of general assembly in 1612: see A. R. MacDonald, ‘James VI and I, the Church of Scotland, and British ecclesiastical convergence’, in The Historical Journal, xlviii (2005), p. 890; MacDonald, Jacobean Kirk, p. 149; and V. T. Wells, ‘Constitutional conflict after the union of the crowns: contention and continuity in the parliaments of 1612 and 1621’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1702, p. 91. 70. MacDonald, Jacobean Kirk, p. 121; Wells, ‘Constitutional conflict after the union of the crowns’. 71. MacDonald, ‘James VI and I, the Church of Scotland, and British ecclesiastical convergence’.

50

M2287 - BROWN & MAC TEXT.indd 50

10/08/2010 16:47

p a r l iame nt and th e c h u r c h to particularly stringent management. The king’s commissioner was assisted in this by a select core of advisers; though hostility to the reforms was evident, the previous parliamentary experience of the king’s counsellors was used to good effect in minimising opportunities for resistance. Combined with the loyalty of the bishops, officers of state and recently created peers, this afforded the crown a majority in parliament despite significant discontent, particularly evident among nobles and burgh and shire representatives from the ‘radical central belt’.72 The king’s determination to use parliament to shape liturgical practice along with ecclesiastical polity was continued by Charles I, together with increasingly tight parliamentary management that reached its apogee in the 1633 session. The link between royal ecclesiastical policy and the king’s increasingly autocratic rule, including contempt for parliament, was firmly established and led directly to the revolution that broke out in 1637.73 Unsurprisingly the Covenanters set about dismantling the episcopalian church and royal control over parliament. The episcopate was abolished by general assemblies held at Glasgow and Edinburgh in 1638 and 1639 and, while the parliamentary session of 1639 was prorogued before it was able to legislate, in early September the lords of the articles agreed in principle to ratification of the abolition of episcopacy and to an act to rescind all statutes passed in favour of bishops individually or episcopacy in general.74 When parliament next met, in June 1640, the foundations laid in 1639 were built upon and the clerical estate was abolished by an act which settled the constitution of parliament.75 This legislation was supplemented by the ratification of the acts of the general assemblies of 1638 and 1639, complete with the statement that the bishops had been allowed to establish ‘a tyrannical power over the kirk’, and the overturning of former acts in favour of episcopacy.76 While parliament was recognised as sovereign, the general assembly’s vital role in ecclesiastical matters was emphasised, not least through parliament’s decision to ratify acts of the general assembly rather than to create stand-alone parliamentary legislation. Although royal supremacy was not formally overturned, the input of the king was conspicuously absent as parliament and assembly cemented their authority over civil and ecclesiastical matters, justified by 72. Wells, ‘Constitutional conflict after the union of the crowns’, pp. 96–100; MacDonald, Jacobean Kirk, pp. 145, 165–6; J. Goodare, ‘The Scottish parliament of 1621’, in The Historical Journal, xxxviii (1995). 73. Young, Scottish Parliament, p. 1; A. I. Macinnes, Charles I and the Making of the Covenanting Movement (Edinburgh 1991), pp. 86–9; J. R. Young, ‘Charles I and the 1633 parliament’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1702. 74. RPS, C1639/8/3, C1639/8/4; Young, Scottish Parliament, p. 12. 75. RPS, 1640/6/5; Young, Scottish Parliament, p. 15. 76. RPS, 1640/6/37–8.

51

M2287 - BROWN & MAC TEXT.indd 51

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 the statement that the king had agreed ‘that all matters ecclesiastical should be determined by the assemblies of the kirk and matters civil by the parliament and other inferior judicatories established by law’.77 The Covenanting regime of the 1640s facilitated the establishment of a presbyterian church which, despite the absence of the clerical estate, formed a close working relationship with parliament.78 The monopoly of presbyterianism, however, masked underlying tensions within the Covenanters between moderates, who dominated in parliament, and radicals, who had a louder voice in the courts of the church, tensions which became increasingly apparent after 1645.79 To some extent those tensions focused on the political influence that the general assembly exerted on parliament. Some historians have exaggerated this, suggesting that parliament was even subordinate to the general assembly but this was never the case and, even during the high point of radical presbyterian power, in 1649–50, parliament remained separate from, and politically superior to, the church.80 The Cromwellian conquest dealt a fatal blow to both bodies, however, and none of the experimental English governments that ruled Scotland throughout the 1650s saw any need for a Scottish parliament or a general assembly. Moreover, the English Commonwealth government was committed to the toleration of all except episcopalians and Roman Catholics and, although it did not intend to obliterate presbyterianism, actively encouraged alternatives to it.81 Presbyterianism was dealt a more comprehensive blow following the Restoration of Charles II which saw the work of the Covenanters being completely reversed by parliament in the Act Rescissory of 1661.82 The full re-establishment of diocesan episcopacy, which included the return of the clerical estate to parliament, in conjunction with the king’s refusal to call a general assembly, saw presbyterianism thoroughly eclipsed. Parliament’s enthusiasm for this was brought about by a combination of able parliamentary management and a significant shift in political attitudes. Chiefly this reflected a reaction against the excesses of the presbyterian clergy’s interference in politics, along with a palpable desire among members, former Covenanters 77. RPS, 1640/6/6, 1640/6/81; D. Stevenson, The Scottish Revolution (Edinburgh, 2003), pp. 196, 299. 78. Young, ‘Scottish covenanting radicalism’, pp. 342–75. 79. D. Stevenson, Revolution and Counter Revolution (Edinburgh, 2003), p. 189. 80. Young, Scottish Parliament, pp. 215–61; J. R. Young, ‘Scottish covenanting radicalism, the commission of the kirk and the establishment of the parliamentary regime of 1648– 1649’ in Records of the Scottish Church History Society, xxv (1995); Stevenson, Revolution and Counter Revolution, pp. 123–79. 81. Donaldson, James V to James VII, pp. 345, 353–5; Spurlock, Cromwell and Scotland. 82. RPS, 1661/1/158, G. H. MacIntosh, The Scottish Parliament under Charles II 1660–1685 (Edinburgh, 2007), pp. 23–5.

52

M2287 - BROWN & MAC TEXT.indd 52

10/08/2010 16:47

p a r l iame nt and th e c h u r c h and royalists alike, to secure favour under the new regime by recognising the king’s authority over the church and by providing the king with a compliant clerical estate of bishops in parliament.83 Church–state relations during the Restoration period, however, were by no means without difficulties: the bishops were viewed with suspicion in various quarters and did not offer the unfailing parliamentary support previously associated with them, most apparently in 1669 when some balked over the proposed religious indulgence and the reaffirmation of royal supremacy.84 Presbyterian dissent persisted and occasionally bubbled over into open rebellion, as in 1666 and 1679, but the dissenters found little support within parliament, chiefly because Charles II’s government avoided the kind of meddling with church law and liturgy that had undone Charles I.85 James VII fared less well, although not because of his preference for episcopacy over presbyterianism: he made a calamitous mistake in failing to heed parliament’s hostility to his proposals for statutory toleration for Catholics. His implementation of the declarations of indulgence using prerogative power in 1687, in direct defiance of parliament, ratcheted up resentment against him. For more complex reasons than religion alone, the revolution of 1689–90 produced the last of the great shifts in ecclesiastical polity before 1707. Presbyterian predominance at the Williamite parliament, secured through electioneering prior to the meeting of the 1689 convention, and the bishops’ continued support for James, sealed the fate of the episcopate.86 Both William II and Anne advocated the toleration of episcopalianism but it was tainted with Jacobitism and parliament forced a presbyterian settlement on the crown in 1690. William was preoccupied with other matters which diverted his attentions from Scotland and, as a result, the postRevolution church remained largely free from interference from court.87 Internal struggles aside, parliament cast itself in a central role in protecting 83. MacIntosh, Scottish Parliament, pp. 36, 38; K. M. Brown, Kingdom or Province? Scotland and the Regal Union, 1603–1715 (London, 1993), pp. 142, 146. 84. MacIntosh, Scottish Parliament, pp. 90–2, 111–12. 85. Donaldson, James V to James VII, pp. 359–71; MacIntosh, Scottish Parliament, pp. 90–2, 111–12; Brown, Kingdom or Province?, p. 151; J. Stephen, Scottish Presbyterians and the Act of Union 1707 (Edinburgh, 2007), p. 211. 86. RPS, 1689/6/36; D. J. Patrick, ‘Unconventional procedure: Scottish electoral politics after the revolution’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567– 1702; D. J. Patrick, ‘Restoration to revolution: 1660–1690’, in B. Harris and A. R. MacDonald (eds), Scotland: The Making and Unmaking of the Kingdom c.1100–1707 (5 vols, Dundee, 2007), ii, pp. 69–72; Donaldson, Scotland: Church and Nation Through Sixteen Centuries, p. 89. 87. Stephen, Scottish Presbyterians, pp. 11–13, 15; Brown, Kingdom or Province?, pp. 174–5; C. A. Whatley with D. J. Patrick, The Scots and the Union (Edinburgh, 2007), p. 36.

53

M2287 - BROWN & MAC TEXT.indd 53

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 the church. When James VI proposed closer union between England and Scotland in the wake of his accession to the English throne, as uneasy as the combination of bishops and general assembly was, parliament took steps to protect the church as it stood. On 10 April 1604 an act was passed in favour of the church; it specifically forbade the commissioners elected to treat for union from doing ‘anything that in any manner of way may be hurtful or prejudicial to the religion presently professed in Scotland, acts of parliament made in favour of the same religion and discipline established and observed for maintenance and preservation thereof’.88 By the early 1640s the dynamics of the Anglo-Scottish relationship had shifted to benefit the Scots. Thus, it was the preservation and export of the religious system adopted by the Covenanters which featured prominently in their aim to establish an Anglo-Scottish confederation in the 1640s. The Treaty of London and the Solemn League and Covenant provided for separate national churches within a wider framework of religious co-operation. Although this was never realised, the model was intended to be the Scottish system.89 When, in 1681, parliament acknowledged the line of succession in favour of the future James VII, in direct contrast to the English parliament’s response to the prospect of a Catholic monarch, it was careful to do so only after the ratification of all laws protecting Protestantism.90 The theme of parliamentary protection of the church from Anglicisation was revisited when the parliament of 1706–7 ensured that an act for the security of the church was appended to the treaty of union.91 Parliament’s capacity to legislate for the church after 1560 was routinely used by the crown and its opponents to alter polity and worship. Some of the most controversial religious legislation was enacted by ‘illegal’ parliaments: the acts confirming the Protestant Reformation in 1560; the unambiguous abolition of episcopacy in 1640; and the definitive installation of presbyterianism as the state religion in 1689–90, all three of which parliaments were legally questionable as they were convened as a result of revolution. Not only was parliament used as a vehicle to effect religious change, it was also used to protect the established religion and inhibit the unpopular 88. RPS, 1604/4/21. 89. RPS, 1641/8/19, 1643/6/75; A. I. Macinnes, Union and Empire. The Making of the United Kingdom in 1707 (Cambridge, 2007), pp. 69, 72; Young, Scottish Parliament, pp. 27–8, 37 67–8; C. L. Hamilton, ‘The basis for Scottish efforts to create a Reformed church in England, 1640–41’, in Church History, xxx (1961), pp. 173–7; Brown, Kingdom or Province?, pp. 121, 125. 90. RPS, 1681/7/17, 1681/7/18. 91. RPS, M1706/10/20; D. J. Patrick, ‘The kirk, parliament and the union, 1706–7’, SHR, lxxxvii (2008).

54

M2287 - BROWN & MAC TEXT.indd 54

10/08/2010 16:47

p a r l iame nt and th e c h u r c h religious designs of the crown, perhaps most apparent in the defiant parliament of 1686. The shifting Protestant polity after 1560 did little to alter the function of parliament with regard to religious matters: whether the church was nominally or actually presbyterian or episcopalian, statute was consistently used to define and protect it and its function. Between 1560 and 1707, parliamentary validation may have oscillated between opposing interpretations of the Reformation at the convenience of those in power but it was a perennial goal for both sides. Ecclesiastical Representation in Parliament, 1560‒1707 Albeit inconsistently, at most parliaments after 1560, clerics comprised the first estate in parliament. While the church was independently critical of the crown in the fifteenth century, post-Reformation prelates were considerably more deferential. This willingness to obey was one among a number of reasons for criticism of an episcopal presence by the laity and clergy alike. Only rarely did the bishops directly oppose the king: when a number did so in 1686 over statutory toleration for Catholics, one was dismissed immediately and another followed within a matter of months.92 The clerical estate was not overthrown at the Reformation. Though somewhat anomalous, the archbishop of St Andrews and the bishops of Dunblane and Dunkeld provided a Catholic clerical presence at parliament until April 1567, alongside the bishops of Galloway, Orkney and Moray who had converted to the new religion.93 Thereafter, acceptance of the Reformed church was a prerequisite but archbishops and bishops continued to sit in parliament, alongside those representing abbeys and priories, who were a combination of genuine clerics and commendators appointed to administer the revenues of the religious houses. One striking difference was that, whereas before the Reformation the clergy was consistently referred to as the first estate, after 1560 the clergy was on occasion regarded as the third estate, indicative of the relative deterioration in its status.94 92. RPC, third series, xii, pp. 237–8; xiii; xv; Historical Notices of Scottish Affairs, Selected from the manuscripts of Sir John Lauder of Fountainhall, D. Laing (ed.) (2 vols, Edinburgh, 1848), ii, pp. 775–6; K. F. McAlister, ‘James VII and the conduct of Scottish politics, c.1679–c.1686’ (unpublished PhD thesis, University of Strathclyde, 2003), pp. 297, 300–1; A. J. Mann, ‘“James VII, king of the articles”; political management and parliamentary failure’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1702, pp. 201–2. 93. RPS, 1567/4/5; Rait, Parliaments, p. 167. 94. J. Goodare, ‘The estates in the Scottish parliament, 1286–1707’ in Parliamentary History, xv (1996), p. 20; The Second Book of Discipline, p. 128.

55

M2287 - BROWN & MAC TEXT.indd 55

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 The presence of commendators as part of the clerical estate even before the Reformation demonstrates that the laicisation of the clerical estate was not merely a consequence of the Reformation. Nor did the Reformation stem the flow of commendators into parliament: Ardchattan was first represented in April 1567, Blantyre in October 1579 and Tongland in May 1592.95 Nonetheless, the most significant change was to be effected by James VI who erected a number of hereditary lordships out of ecclesiastical properties annexed to the crown by act of parliament in 1587. This began a process of removing what has been deemed the ‘social anomaly’ of post-Reformation commendators and, following the erection of their properties, they sat as members of the noble estate: temporal lordships were thus coveted tickets to the peerage.96 The bulk of erections took place in the parliament of 1606, when twelve temporal lordships were created.97 Thereafter, the likes of John Bothwell of Aldhammer, who had previously sat with the clerical estate as commendator of Holyroodhouse, took up a new position among the nobles as lord Holyroodhouse.98 It remained possible for the crown to appoint ‘abbots’ of religious houses which had not been erected into temporal lordships although Peter Hewitt, representing Crossraguel Abbey, was the only minister ever to sit in parliament in that capacity and he did so only once, in 1617.99 By the end of James VI’s reign, over two-thirds of Scotland’s religious houses had been erected into temporal lordships.100 More radical than the gradual streamlining of the ecclesiastical estate was the disrupted clerical attendance at parliament after the Reformation. Throughout the 1570s, hostility developed within the church to ecclesiastical representation by individuals not expressly chosen by the church, a mood which saw the abolition of the office of bishop by the general assembly in 1580. The bishops, however, were appointees of the crown and thus continued to sit in parliament regardless.101 The debate on ecclesiastical representation continued without resolve, and not even James VI’s statutory acknowledgment of presbyterianism in 1592 removed the bishops from parliament: those in possession of episcopal benefices continued to attend, albeit 95. Ardchattan was technically represented in August 1560 by John Campbell, bishop elect of the Isles, who was also commendator of Iona and Ardchattan. RPS, A1560/8/1, 1567/4/5, 1579/10/46, 1592/4/12; Rait, Parliaments, p. 171. 96. J. Wormald, Court, Kirk and Community: Scotland 1470–1625 (London, 1981) p. 127. 97. These were created out of former abbacies and priories: RPS, 1605/6/98–9, 1605/6/101, 1605/6/105, 1605/6/110, 1605/6/118–20, 1605/6/124–5, 1605/6/ 130–1; Donaldson, James V to James VII, p. 219. 98. RPS, A1605/6/1, A1608/5/1. 99. RPS, 1617/5/7, 1617/5/14, 1617/5/44. 100. Donaldson, James V to James VII, p. 219; Macinnes, Covenanting Movement, p. 4. 101. MacDonald, ‘Ecclesiastical representation in parliament’, p. 43.

56

M2287 - BROWN & MAC TEXT.indd 56

10/08/2010 16:47

p a r l iame nt and th e c h u r c h their numbers were few.102 A petition presented by the general assembly in 1597 specifically requested that the church be represented in parliament, despite the objections of a minority of ministers, including Andrew and James Melville, who had come to oppose clerical attendance after realising that it would enhance the authority of the crown.103 While a significant group of ministers advocated the right of presbyteries to send commissioners, the king preferred to retain control over who would attend parliament, and this was enshrined in legislation in December 1597.104 In March 1600, representatives of the church agreed with the king that ecclesiastical commissioners in parliament should hold their positions for life but should be annually accountable to the general assembly.105 Later that year, James secured unchallenged control over the clerical estate by manipulating a meeting of ecclesiastical delegates into introducing ‘parliamentary bishops’ with a place in parliament but no ex officio ecclesiastical authority.106 James’s conferring of ecclesiastical authority on the bishops between 1606 and 1612 underscored not only their right to attend parliament but also his right to appoint them while ignoring all the restrictive conditions agreed between church and crown between 1597 and 1600. The Covenanting revolution had a profound impact on the clerical estate. In September 1639, the lords of the articles agreed that episcopacy should be abolished in accordance with the acts of the general assemblies of 1638 and 1639, thus removing the ecclesiastical estate from parliament. This elicited a motion by John Stewart, first earl of Traquair, Charles I’s commissioner to parliament, which suggested that abbots and priors should form a new clerical estate. This did little to divert the Covenanters whose domination of the articles secured an agreement on 18 September to extend the proposed act for the abolition of episcopacy so that it removed any rights of abbots and priors to ride and vote in parliament.107 The formalisation of the abolition of episcopacy in 1640 meant that parliament proceeded without a clerical estate for the first time since the thirteenth century. The remodelled parliament continued without ecclesiastical representation 102. For example, see RPS, 1592/4/1, 1592/4/12, 1593/4/3, 1593/4/8, 1593/4/15, 1594/4/8; Rait, Parliaments, p. 167; MacDonald, ‘The parliament of 1592’, pp. 64, 78; MacDonald, ‘Ecclesiastical representation in parliament’, p. 49. 103. MacDonald, Jacobean Kirk, p. 83; MacDonald, ‘Ecclesiastical representation in parliament’, pp. 51–2; Donaldson, James V to James VII, p. 201. 104. RPS, 1597/11/9; Donaldson, James V to James VII, pp. 201–2; MacDonald, Jacobean Kirk, pp. 82–3. 105. MacDonald, Jacobean Kirk, pp. 83–5, 89–92; MacDonald, ‘Ecclesiastical representation in parliament’, pp. 51–7. 106. MacDonald, Jacobean Kirk, pp. 94–5; Donaldson, James V to James VII, p. 202. 107. RPS, C1639/8/20; Young, Scottish Parliament, p. 13.

57

M2287 - BROWN & MAC TEXT.indd 57

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 until 1662 when the bishops formally resumed their parliamentary role as a result of the Act Rescissory of 1661.108 The determination of the royalists to reinstate bishops signifies a desire to restore the robust court–clerical bloc of the pre-Covenanting period. Thirteen of the fourteen sees filled in 1661 had been vacant since 1638, thus reinforcing the conviction that, as members wholly dependent on the crown, they were a mechanism to extend royal control over both church and parliament.109 The bishops did not support the crown without question, however, offering resistance to the proposed religious indulgence of 1669 and the act that reaffirmed the royal supremacy.110 Nonetheless, they sat in parliament until episcopacy was abolished again in June 1689. Anti-clericalism endured throughout the Restoration period although it was poor relations between the bishops and the political elite, rather than popular antipathy towards prelacy, that precipitated the downfall of the bishops at the Revolution.111 At no point between 1560 and 1689 were nobles, burgesses or barons appended to the clerical estate to preserve the notion of the three estates. This changed in 1689, when ‘the lords of the clergy and nobility’ were treated as a single estate.112 Given the predominance in parliament of those opposed to episcopacy and the imminent abolition of the clerical estate, it can be concluded that this move was designed to facilitate the ejection of the clerics by circumventing any potential objection that the removal of an estate would violate Scotland’s ancient and fundamental laws.113 In short, the notion of the three estates could continue without ecclesiastical representation in parliament. The clerical estate saw its numbers dwindle after 1560, while the creation of temporal lordships transferred nominal clerics into the noble estate, thereby swelling its ranks, at the same time as the number of burgh and shire commissioners grew steadily. The fact that the clerics were shrinking in numerical terms, yet their rights as a separate estate were retained, meant that, when in attendance, their influence on parliamentary proceedings was increasingly disproportionate to their number, principally due to the composition of the committee of the articles on which the estates were equally represented from 1587.114 Whereas in April 1567 the composition of parliament 108. 109. 110. 111.

RPS, 1661/1/158. MacIntosh, Scottish Parliament, p. 37. Ibid., pp. 90–2, 111–12. J. Buckroyd, ‘Anti-clericalism in Scotland during the Restoration’, in N. Macdougall (ed.), Church, Politics and Society: Scotland 1408–1929 (Edinburgh, 1983), p. 167. 112. RPS, 1689/3/1–2, 1689/3/6. 113. Goodare, ‘The estates in the Scottish parliament’, pp. 29–30. 114. Rait, Parliaments, p. 368.

58

M2287 - BROWN & MAC TEXT.indd 58

10/08/2010 16:47

p a r l iame nt and th e c h u r c h resulted in every burgess sitting on the articles, compared to just under half of the clerics, as ecclesiastical representation dwindled and the other estates increased in size, any replication of this situation became increasingly unlikely.115 Increasingly, of the three or four estates in existence at any one time, the clergy typically sent the largest proportion of their number to sit as lords of the articles.116 For example, in December 1585 eight of eleven clerics sat as lords of the articles compared with eight of fourteen barons and eight of nineteen burgh commissioners.117 The figures for May 1617 reveal an even more marked disparity in favour of the clergy: the clerical, noble, shire and burgh estates totalled thirteen, forty-four, forty-six and sixty-two members respectively, yet each still had eight representatives on the articles.118 Similarly in 1681, when the clerics numbered just twelve, there were sixty-one nobles, sixty-one burgesses and fifty-seven barons in attendance, yet each estate was again given equal footing on the committee of the articles.119 This incongruity, coupled with the evolution of the method of electing the articles during the reign of James VI, which afforded the clerics a vital role in nominating members of other estates, caused considerable opposition not only to the undue influence of the clerical estate but also to the committee of articles per se, both of which were removed twice in the seventeenth century.120 Although considerably less common after the Reformation, and despite it being an objective of the presbyterian wing of the church, there was no formal barrier to clerics becoming officers of state although they were excluded from the judicial bench. Unlike before the Reformation, when lesser clerics could become minor officials and attend parliament in that capacity, after 1560 only the greater officers of state sat in parliament.121 In the post-Reformation period, the laity, peers and others, held a virtual monopoly over the greater 115. Nineteen clerics (bishops and commendators), and eight burgesses are recorded in the sederunt; eight from each estate sat as lords of the articles. RPS, 1567/4/2, 1567/4/3. 116. On the fluid nature of the estates see Goodare, ‘The estates in the Scottish parliament’, pp. 11–32. 117. RPS, 1585/12/4–5. ‘Barons’ at this stage refers to the noble estate. After shire commissioners began to attend, ‘barons’ referred to them. 118. RPS, 1617/5/7, 1617/5/10. All eight officers of state also sat as lords of the articles in 1617. The number of burgh representatives may have been sixty-three: there is a blank space in the record where the name of a second commissioner from Stirling should have been inserted. 119. RPS, 1681/7/2. David Spence, representing Rutherglen but not named in the sederunt, has been included in this number, NAS PA7/11/5; McAlister, ‘James VII and the conduct of Scottish politics’, p. 59. 120. J. R. Young, ‘Seventeenth-century Scottish parliamentary rolls and political factionalism: the experience of the covenanting movement’ in Parliamentary History, xvi (1997), p. 152. 121. Rait, Parliaments, p. 279.

59

M2287 - BROWN & MAC TEXT.indd 59

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 offices.122 One high-profile exception was John Spottiswoode, archbishop of St Andrews, whom Charles appointed president of the exchequer in 1626 before promoting him to chancellor in 1635. This caused considerable outrage, not least because the chancellorship had been the preserve of the laity since the Reformation; the nobles in particular viewed his appointment as deliberately marginalising their position. Coupled with the revocation scheme and the king’s increased reliance on bishops in the privy council and as justices of the peace, Charles’s appointment of a cleric as chancellor fuelled the resentment of prominent members of the laity and anti-clericalism was central to the manifesto of the Covenanters later in the decade.123 The clerical estate overwhelmingly supported the crown in the postReformation period, unquestionably linked to the fact that they could be hired and fired by the monarch. When James VI faced his biggest parliamentary challenge in securing ratification of the Five Articles of Perth in 1621, only the clerical estate offered its unanimous backing.124 Likewise, the clerical estate in 1633 has been described as ‘a reliable phalanx of support for the court’, instrumental in helping Charles to manage proceedings.125 Even in 1669, after providing stiff opposition to the proposed act of supremacy, Archbishop Sharp and the rest of the clerical estate eventually complied.126 One notable exception to this compliance can be seen at the 1686 parliament when, in a defiant atmosphere unmatched since Covenanting times, parliament not only thwarted James VII’s attempt to introduce statutory toleration for Catholics but also witnessed the unprecedented defiance of much of the clerical estate. During the course of the parliament, John Drummond, first earl of Melfort, one of two secretaries of state, wrote to a colleague, ‘I hope the bishops uill in time concider uher things may go and not throug off the k[ing’]s protectione for a litle popular applaus’.127 Clearly the episcopate was expected to conform to crown demands and could expect penalties for failing to do so. The bishop of Dunkeld was sacked during the session because of his vociferous opposition to James’s toleration scheme but four other episcopal members of the lords of the articles also voted against 122. Brown, Kingdom or Province?, p. 42. 123. Macinnes, Covenanting Movement, p. 90; Brown, Kingdom or Province?, pp. 48, 99–100; Donaldson, James V to James VII, p. 299; Stevenson, The Scottish Revolution, pp. 26–7. 124. Wormald, Court, Kirk and Community, p. 129; Goodare, ‘The estates in the Scottish parliament’, pp. 45, 48. 125. Macinnes, Covenanting Movement, p. 86; Young, ‘Seventeenth-century Scottish parliamentary rolls’, p. 150. 126. MacIntosh, Scottish Parliament, pp. 91–2. 127. McAlister, ‘James VII and the conduct of Scottish politics’ p. 291; Moray Muniments, Vol. III, Box 7, 613, Melfort to Moray, 18 May 1686.

60

M2287 - BROWN & MAC TEXT.indd 60

10/08/2010 16:47

p a r l iame nt and th e c h u r c h the draft act for toleration when it was presented to the committee.128 No immediate action was taken against them but the archbishop of Glasgow was sacked the following January. These events serve only to underline the extent to which Restoration bishops depended upon the crown. Unlike the bishops of the 1630s, who were advocates of unpopular religious and secular policies, James VII’s proposals in 1686 were regarded as so destructive to the Reformation that a number of bishops risked their offices by defying the king. Parliament and the General Assembly, 1560‒1707 After 1560, parliament and the newly formed general assembly of the church often worked in tandem, with the latter lobbying for statutory approval of various ecclesiastical enactments. The general assembly represented to parliament matters with which it was concerned, including social and moral issues such as profanity, poor relief and witchcraft, even when there was no clerical estate in place: politics and religion were never wholly separate, even under a presbyterian system of church government.129 This legislative cooperation was first demonstrated by parliamentary acts in 1563 concerning issues, such as church property, but also reflecting mutual social and moral concerns, embodied in acts relating to witchcraft and adultery.130 The composition of the general assembly developed to mimic parliament in that it comprised members of the peerage, representatives from burghs, and lairds, as well as clerics, the main difference being that the assembly was open to prelates and ordinary ministers. The lay element in the assembly remained unaltered despite the Second Book of Discipline which argued for a separation of the spiritual and the temporal by classing elders as ecclesiastical persons. Notwithstanding the close working relationship which was formed between the assembly and the civil authorities during James VI’s minority, its precise legal position and the extent of its powers remained uncertain.131 The assembly proved reasonably resilient, however, at least for the remainder of the 128. McAlister, ‘James VII and the conduct of Scottish politics’ p. 292; NAS GD 124/10/419, List of Articles who voted for and against the Act; Mann, ‘“James VII, king of the articles”’, p. 201. 129. J. R. Young, ‘Scottish covenanting radicalism, the commission of the kirk and the establishment of the parliamentary regime of 1648–1649’, in Records of the Scottish Church History Society, xxv (1995). See also Chapter 7. 130. RPS, A1563/6/8–10, A1563/6/12–13, A1564/12/3; Donaldson, James V to James VII, pp. 112, 143–5. 131. Donaldson, James V to James VII, p. 113; D. Shaw, The General Assemblies of the Church of Scotland 1560–1600 (Edinburgh, 1964), pp. 13–16.

61

M2287 - BROWN & MAC TEXT.indd 61

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 sixteenth century: only in the seventeenth century did it suffer two extended hiatuses, between 1618 and 1638 and again between 1653 and 1690. The assembly could present a challenge to the crown on occasion. Parliament’s authorisation of presbyterianism in 1592 was carefully designed to allow the king to retain control over when, where and, indeed, if meetings of the general assembly took place, which would have been unnecessary had the crown believed the body to be entirely toothless. The assembly’s advisory commission, appointed in 1597 at the king’s instigation, quickly fell victim to James VI’s manipulative skills as it developed into a tool through which he sought increasingly to influence the assembly and the wider church.132 His grip on the general assembly allowed him to turn to it before parliament when he wanted to extend the ecclesiastical function of the bishops in 1610, perhaps indicating that the central issue was the king’s prerogative rather than any potential rivalry between parliament and assembly.133 It was evident that the king, rather than the general assembly or parliament, was initiating ecclesiastical policy. James continued this trend with the Five Articles of Perth, passed by a tightly managed assembly in 1618, having been rejected the previous year, before receiving parliamentary sanction in 1621. In June 1617, prior to the general assembly which rejected the Five Articles, James had attempted to obtain statutory recognition of his absolute right to dictate church polity; although the proposal suggested that the king might consult ministers and bishops of his choosing, it would have effectively circumvented the need for the general assembly.134 This proposed act met such hostility that it had to be withdrawn but it is perhaps with this unpopular suggestion in mind that a group of ministers advised the king that the liturgical alterations contained within the Five Articles of Perth could be approved only by the general assembly.135 This might indicate that the ministers viewed the assembly, rather than the bishops or parliament, or even the crown itself, as the ultimate religious authority although it may simply denote their belief that the assembly would offer the best chance of thwarting the proposed changes. In the event, that the enactments of the 1610 and 1618 general assemblies were ratified by the 1612 and 1621 parliaments respectively gave them more legal weight than either of the books of discipline.136 After the meeting in 1618,

132. Donaldson, James V to James VII, pp. 204–5. 133. Ibid., p. 206. 134. A. R. MacDonald, ‘James VI and the general assembly, 1567–1625’, in J. Goodare and M. Lynch (eds), The Reign of James VI (East Linton, 2000), p. 183. 135. Donaldson, James V to James VII, p. 209. 136. RPS, 1612/10/8, 1621/6/13; Wells ‘Constitutional conflict after the union of the crowns’ pp. 82–100.

62

M2287 - BROWN & MAC TEXT.indd 62

10/08/2010 16:47

p a r l iame nt and th e c h u r c h the assembly was silenced by enforced hibernation for almost twenty years, having served its purpose for the crown. It has been argued that the general assembly was a rival of parliament, initially on the grounds that its composition, which included parish ministers, linked it more closely to the Protestant pulse of the nation than parliament could ever hope to be. During the Covenanting era, it has even been suggested that the authority of the general assembly superseded that of parliament.137 While the general assembly had a prominent role in the post-Reformation period, however, this was not to the detriment of parliament and, while the general assembly may have seen it as parliament’s duty to vindicate its decisions and provide practical support for their implementation, parliament’s role was recognised as vital.138 The general assembly promoted its independent right to oversee specific issues, such as rules concerning marriage, but sweeping alterations to polity or doctrine were routinely passed to parliament for ratification. That the work of the 1638 assembly had to be ratified by parliament in 1640 demonstrates evidence that parliament was sovereign.139 Indeed, following the resurrection of the general assembly in 1638, there was a period of unprecedented co-operation with parliament. Rather than dictating the parliamentary agenda, however, the assembly was a powerful and often successful lobbying force. The commission of the general assembly was composed of ministers and elders, some of whom were members of parliament, though it would seem that attendance at parliament, certainly in the period 1648–9, was given priority over attendance at the commission.140 When the Engagement of 1647–8 led to a rift between opposing factions in the Covenanting movement, the assembly did not succeed in derailing the Engagers’ objectives, secured through parliamentary legislation.141 The failure of the Engagement and the subsequent dominance of parliament by 137. Rait, Parliaments, pp. 15–19, 50–1, 63, 72. 138. Cameron’s commentary in The First Book of Discipline details the expectation by the reformers that their agenda would be supported by the civil authorities, pp. 62–7. For a critique of Rait’s view, see J. Goodare, ‘The Scottish parliament and its early modern “rivals”’, PER, xxiv (2004); Young, ‘Scottish covenanting radicalism’, pp. 342–75; Young, ‘Seventeenth-century Scottish parliamentary rolls’, p. 150; Brown and Mann, ‘Introduction’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1702, pp. 16, 36. 139. Goodare, ‘The Scottish parliament and its early modern “rivals”’, pp. 152–8; Young, ‘Seventeenth-century Scottish parliamentary rolls’, p. 150. 140. Young, ‘Scottish covenanting radicalism’, pp. 353–5. From 1642to 1651, the commission of the assembly saw the participation of 296 ministers, with a dominant core of eighteen: Brown, Kingdom or Province?, pp. 50–1. 141. This is acknowledged by Rait, Parliaments, p. 71; Goodare, ‘The Scottish parliament and its early modern “rivals”’, p. 169.

63

M2287 - BROWN & MAC TEXT.indd 63

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 radicals in 1648–9 saw the commissioners of the assembly working intensively with parliament, at the specific request of the latter, on issues ranging from profanity, excommunicated persons and the purging of the army, to poor relief, education, hospitals and witchcraft.142 In many ways this continued the long-standing tradition of co-operation between church and parliament on such policies since the Reformation. Regardless of the anomaly of the Engagement, it is undeniable that the church heavily influenced the formulation of policy under the Covenanters, indicating that parliament was more often than not sympathetic to its aims. When wider political circumstances dictated that the Act of Classes (for purging judicatories and other places of public trust) should be repealed in 1651, which was unpopular with many of the ministers, the endorsement of the commission of the assembly was sought, and granted, before parliament went ahead.143 Yet, even during the ‘radical regime’ of 1648–9, the roles were not reversed to allow ecclesiastical supremacy; indeed, the dating of enactments against Engagers by the committee of estates (22 September 1648) and by the commission of the assembly (6–11 October 1648) proves that it was the former which was initiating policy.144 Clearly parliament could work in defiance of the assembly, thus proving its primacy, but the regime in power in 1651 felt that even the grudging support of the church was desirable.145 Though the principle of separation of church and state had been endorsed formally in February 1649, with an act stating that ‘all matters civil be determined by the parliaments of this kingdom and all matters ecclesiastic by the general assemblies of this kirk’, this was never applied rigidly in practice.146 Following its failure to reach an accommodation with the occupying English forces, largely due to its insistence on recognising royal authority, the general assembly was suppressed, meeting for the last time in 1653 until its revival by the Revolution parliament in 1690. During the 1690s, the revived general assembly and parliament demonstrated a consensus of religious opinion. Although parliament allowed conforming episcopal clergy to retain their livings in defiance of objections from the general assembly, on most occasions they were united in their 142. Young, ‘Scottish covenanting radicalism’, pp. 357–68. 143. RPS, 1649/1/43, Young, Scottish Parliament, pp. 283, 285. The Act of Classes disqualified four ‘classes’ of people from holding local or national offices; see Donaldson, James V to James VII, p. 339 and J. J. Scally, ‘The rise and fall of the Covenanter parliaments, 1639–51’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1702, pp. 157–8. 144. Young, ‘Scottish covenanting radicalism’, pp. 349–50. 145. Goodare, ‘The Scottish parliament and its early modern “rivals”’, p. 169. 146. RPS, 1649/1/78; Young, ‘Scottish covenanting radicalism’, pp. 374–5.

64

M2287 - BROWN & MAC TEXT.indd 64

10/08/2010 16:47

p a r l iame nt and th e c h u r c h determination to protect and advance the presbyterian church.147 That said, when in 1703 the assembly announced the date for a national fast before consulting parliament, a debate ensued as to whether the assembly had overstepped the mark. This resulted in a parliamentary ordinance to preserve its pre-eminence and to avoid the perception that it was acquiescing to the demands of the assembly.148 While the general assembly did not have the muscle to force routine parliamentary acceptance of its programme, and parliament was keen to preserve its dominant position as a legislative vehicle, the estates were acutely aware of the power wielded by the assembly and accepted that parliament could not impose its will on the church. In particular, parliament recognised that persistent ecclesiastical opposition to the treaty of union in 1706–7 would have derailed the scheme, and that it was necessary to produce a mutually agreeable act to secure the position of the church.149 While parliament and general assembly were capable of functioning autonomously, each recognised its limitations and the inescapable interdependence of their positions: the need for a co-operative approach was accepted by both institutions. Conclusion Prior to the sixteenth century clerical participation in parliament was overwhelmingly influenced by secular interests. Only rarely was legislation passed which dealt with religious issues, something that altered only after it became necessary to protect the church from Lutheran influences. The Reformation heralded the beginning of a very different role for parliament, one that saw increased involvement in matters of religion. In a way that had not been seen with Catholicism, after 1560 parliament came to be bound to Protestantism and, through statutory intervention, changes to polity and doctrine. The acceptance of parliament’s central role was apparently widespread: not only did monarchs use parliamentary legislation to effect change but so too did their opponents when they wanted to subvert or overturn crown ecclesiastical policies. While the ecclesiastical estate could operate in concert before 1560, the influence of individual clerics was perhaps more significant, particularly given that it was typical in the pre-Reformation period for leading clerics to 147. Stephen, Scottish Presbyterians and the Act of Union 1707, pp. 11–13; Rait, Parliaments, p. 106. 148. RPS, 1703/5/126, M1703/5/37; Rait, Parliaments, p. 448. 149. Stephen, Scottish Presbyterians and the Act of Union 1707, pp. 63–75; Brown, Kingdom or Province?, pp. 186–7; Patrick, ‘The kirk, parliament and the union, 1706–7’, pp. 94–115.

65

M2287 - BROWN & MAC TEXT.indd 65

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 be royal servants. Though for the most part active in parliament as agents of the crown, rather than primarily as clerics, their ecclesiastical roles inevitably had a significant bearing on their political positions. After the Reformation it became the enduring aim in some quarters to effect the removal of the clerical estate from parliament, suggestive that, at least to contemporaries, it had become easier to identify the episcopate as a homogeneous entity in parliament. As highlighted by the delicate balance of power between parliament and general assembly, however, continued co-operation between church and parliament was required even when there was no clerical estate. Neither church nor parliament was capable of existing entirely independently of the other. Secular and ecclesiastical concerns tied them to one another regardless of whether Scotland’s official religion was Catholicism or Protestantism.

66

M2287 - BROWN & MAC TEXT.indd 66

10/08/2010 16:47

chap t e r 3

The Second Estate: Parliament and the Nobility1 Keith M. Brown

Nobility and a Noble Estate?

B

etween the thirteenth and eighteenth centuries, parliament was transformed in the face of political, socio-economic and religious developments, but what impact did those developments have on the nobility, its most powerful members? The widespread use of firearms, the development of a cash economy, and the combined impact of Renaissance and Reformation ideas all altered the nobility and its place in society. Meanwhile, the rise and fall of individual lineages are the stuff of baronial history but, while it is necessary that we have such history, it rarely tells us anything of real importance beyond explaining a particular narrative. In the absence of adequate research that permits comparisons over long periods of landed wealth, family structures and ideology, alongside studies of clientage networks, local administration and involvement in national government and politics, any observations regarding the durability of noble power must be tenuous.2 Nevertheless, as a working hypothesis, it is reasonable to accept, in the absence of convincing evidence to the contrary, that noble society and power were not very 1. I am grateful to Gillian MacIntosh, Steve Murdoch, Katie Stevenson and Roland Tanner for their advice and comments on this chapter. 2. There is a large literature on individual nobles and noble houses; for a sample see S. Boardman, The Campbells 1250–1513 (Edinburgh, 2006); M. Brown, The Black Douglases (East Linton, 1998); K. Stevenson, Chivalry and Knighthood in Scotland, 1424– 1513 (Woodbridge, 2006); J. Wormald, Lords and Men in Scotland: Bonds of Manrent 1442–1603 (Edinburgh, 1985); K. M. Brown, Bloodfeud in Scotland 1573–1625: Violence, Justice and Politics in an Early Modern Society (Edinburgh, 1986); K. M. Brown, Noble Society in Scotland: Wealth, Family and Culture from Reformation to Revolution (Edinburgh, 2000). Unfortunately there is no satisfactory study post 1637.

67

M2287 - BROWN & MAC TEXT.indd 67

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 different in the time of Walter Comyn, earl of Menteith, in the thirteenth century, William Douglas, eighth earl of Douglas, in the fifteenth century, or Archibald Campbell, second duke of Argyll, at the beginning of the eighteenth century. All these men were prominent because of their relationship to the crown, their lineage, titles, landed wealth and leadership of other men. To illustrate this point, military technology altered significantly between the thirteenth and eighteenth centuries but the commitment of the nobility to a martial and chivalric ethos remained hugely important to noble society.3 Therefore the extent to which historians wish to categorise these nobles as ‘old’ or ‘new’ nobility, ‘traditional’ or ‘service’, ‘military’ or ‘commercial’, is irrelevant, and the consensus among historians of European nobilities is moving in the direction of stability and continuity, suggesting that, between the high Middle Ages and the early modern era, there were merely cosmetic shifts in power and social values. In one study that examines the Scottish nobility throughout the later sixteenth and early seventeenth centuries, it has been demonstrated that their political skill, economic entrepreneurship and social adaptability proved sufficiently robust to absorb both superficial and fundamental changes in order to preserve the core values and fixed structures of noble society.4 Arguably it was only from the middle decades of the eighteenth century that this world began to break up under the forces unleashed by world exploration, early industrialisation, urbanisation and the Enlightenment.5 One of the key underlying problems in discussing the nobility is that of definition. Who constituted the nobility of Scotland during this period that encompasses all or part of six centuries? Some historians have been misled into following the English model of nobility, placing undue importance on the distinction between the titled peerage and those lesser nobility who, at various times, went under the name of barons, lairds or even gentry. It is true that a titled nobility of dukes, earls and lords of parliament emerged over the course of the fifteenth century with particular rights in relation to parliament but, outside parliament, this differentiation had no meaning beyond 3. A. J. MacDonald, ‘Profit, politics and personality: war and the later medieval Scottish nobility’, in T. Brotherstone and D. Ditchburn (eds), Freedom and Authority. Scotland c.1050–c.1650 (East Linton, 2000), pp. 118–30; Stevenson, Chivalry and Knighthood; K. M. Brown, ‘From Scottish lords to British officers: state building, elite integration, and the army in the seventeenth century’, in N. Macdougall (ed.), Scotland and War AD 79–1918 (Edinburgh, 1991), pp. 133–69. 4. Brown, Noble Society. 5. This is the consensus among historians of the early modern European nobility, J. Dewald, The European Nobility (Cambridge, 1996); H. M. Scott (ed.), The European Nobilities in the Seventeenth and Eighteenth Centuries (2 vols, London, 1995); R. G. Asch (ed.), Der Europaische Adel im Ancien Regime (Bohlau Verlag Koln Weimar Wien, 2001).

68

M2287 - BROWN & MAC TEXT.indd 68

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y signifying rank within the nobility. Over-emphasis on this distinction has led to identification of the barons or lairds with the ‘middling sort’, a putative middle class likely to make common cause with townsmen of similar wealth and status. Even those who approach the social and political background of the barons or lairds with greater sensitivity point towards a divergence between them and the peers in the later Middle Ages until, by the end of the sixteenth century, only the titled peers could be described as nobles.6 The problem is compounded by the confusion within medieval and early modern society over what constituted nobility. Hard and fast definitions are difficult to tease out of debates and practices, and it is best to employ an elastic approach that encompasses function, lineage, juridical authority, wealth and lifestyle. What can be asserted with some confidence is that nobility was not principally derived from royal patronage, an idea that temporarily gained ground in the late sixteenth and early seventeenth centuries as a product of royal propaganda. Instead of extrapolating from the English model, the Scottish nobility is better understood as approximating more closely to Continental ideas and structures that are inclusive of titled peers and the apparently undifferentiated lesser nobles. On this basis, the numbers of heads of houses in late medieval and early modern Scotland remained consistent at around a thousand, a number close to the signatories of the Ragman Roll in the late thirteenth century, or the eighteenth-century shire electorate.7 In the context of parliamentary history, the question of the differentiation of the nobility is particularly difficult. Earlier understanding of parliament as primarily an assembly of estates is now less convincing for, while the idea of estates was evolutionary during the late medieval period, arguably it never had any meaning in the real world. Furthermore, the exact number of estates at any one time was problematic.8 Noble society did not map neatly on to the imagined construct of a noble second estate, and it is perhaps unsurprising that historians are divided over the constitutional and political significance of the emergence of a fourth estate of lesser nobility. That appearance of a fourth estate, representing distinct ranks of men from those who sat as the 6. An emphasis on differentiation is evident in A. Grant, Independence and Nationhood. Scotland 1306–1469 (London, 1984), pp. 120–43; A. Grant, ‘The development of the Scottish peerage’, SHR, lvii (1997); J. Wormald, ‘Lords and lairds in fifteenth-century Scotland: nobles and gentry’, in M. Jones (ed.), Gentry and Lesser Nobility in Late Medieval Europe (Gloucester, 1986); M. Meikle, ‘The invisible divide: the greater lairds and nobility of Jacobean Scotland’, SHR, lxxi (1992). 7. There is some discussion of this in Brown, Noble Society, pp. 1–21. 8. Rait, Parliaments, pp. 165–282 for an analysis of those estates; J. Goodare, ‘The estates in the Scottish Parliament’, in C. Jones (ed.), The Scots and Parliament (Edinburgh, 1996).

69

M2287 - BROWN & MAC TEXT.indd 69

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 second estate, represents for some historians a constitutional reaction to societal change. Others see it as merely a reconfiguration of noble representation that regularised the role of the untitled lairds while strengthening the overall power of the landed nobility. It is also worth observing that, at various times in the history of parliament, individual nobles sat as members of the first estate of clergy and the third estate of burgh commissioners. Parliament and Noble Power, 1235‒1424 Historians trace Scotland’s parliamentary origins to 1235, when ‘in . . . the presence of our barons at the colloquium at Kirkliston’, Alexander II adjudicated on an important dispute. Essentially this was a small, ad hoc meeting of bishops, great lords (there was no distinction between types of secular landlords, and the territorial earls had no privileges over other barons) and royal servants that grew over the following decades to include knights and other freeholders. At the close of the thirteenth century, clerics as well as laymen were summoned when required and, on the basis of their status, to provide the king with counsel and to speak on behalf of what had come to be recognised as the community of the realm, a usefully vague term.9 At the core of this body was the king’s council and, in ordinary circumstances, witness lists indicate an attendance of around eight leading nobles and clerics but more important issues aroused greater interest. At the parliament of March 1290, there were forty-six clergy and fifty-eight barons of various ranks. During the minority of Alexander II (1249–58) parliament proved useful in facilitating government by rival magnate factions. In the period of crisis that followed the death of Alexander III in 1286 and the subsequent death of his granddaughter, Margaret, four years later, it was again the greater nobles and clergy in parliament or similar assemblies who provided government in the name of the community of the realm. The exceptionally large assembly at Birgham in the spring of 1290 was attended by 107 men, forty-six of whom were clergy and sixty-one of whom were nobles. Edward I’s growing demands on King John provoked criticism of the king at a parliament in February 1293, and at another assembly in July 1295, ‘the magnates, prelates and other nobles’ reduced the king’s political freedom. Parliament transferred much of John’s authority to a council of eight nobles and four bishops who undertook the waging of an unsuccessful war against England. While thirteenth-century parliaments and other assemblies had been advisory bodies, the years after 1286 saw these parliaments meeting more often 9. RPS, 1235/1; A. A. M. Duncan, ‘The early parliaments of Scotland’, SHR, xlv (1966), p. 47.

70

M2287 - BROWN & MAC TEXT.indd 70

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y and increasingly acting as a means by which the great men of Scotland became actively involved at the heart of the government of the kingdom.10 During the subsequent Wars of Independence (1297–1328), parliament’s constitutional position was strengthened by its role in resistance against Edward I, in which the nobility provided military leadership. Robert I proved to be a master of parliamentary management, however, asserting his position as king over his assembled subjects. In 1309 he summoned a parliament of his own supporters to legitimise the Bruce dynasty’s right to the throne and in 1314 to disinherit all the king’s enemies, a profound judgment against those noble families still backing the Balliol claim. This measure, the most crushing blow ever inflicted on such a large number of noble houses by parliament, decreed that all opponents of the king would be ‘perpetually deprived of any further claim of right whatsoever hereafter for themselves or their heirs’. In 1320 parliament again delivered a heavy judgment against the king’s enemies, in this case the de Soulis conspirators. This last assembly condemned three knights to a humiliating death, a fate never before meted out on noblemen by parliament. The factional nature of parliament was further underlined at the outbreak of civil war between Bruce and Balliol supporters after Robert I’s death in 1329. Yet, without diminishing the willingness of rival noble houses to use parliament as a political tool, the identification of it with the community of the realm and the emphasis on partnership with the king was more than empty rhetoric. From 1326 the king began the process of formalising the attendance at parliament of the royal burghs and, two years later in an effort to widen support, Robert I sought to open up parliament’s membership, issuing a general summons to earls, barons and all freeholders rather than summoning selected prominent magnates and clerics. Something like the three estates was evolving but with the nobility, especially the major military 10. RPS, 1290/3/1; A. A. M. Duncan, Scotland: The Making of the Kingdom (Edinburgh, 1975), pp. 609–11; G. W. S. Barrow, Kingship and Unity: Scotland 1000–1306 (London, 1981), pp. 124–9; R. Nicholson, Scotland: The Later Middle Ages (Edinburgh, 1974), pp. 20–1; A. A. B. McQueen, ‘The origins and development of the Scottish parliament, 1249–1329’ (unpublished PhD thesis, University of St Andrews, 2002); A. A. B. McQueen, ‘Parliament, the Guardians and John Balliol, 1284–1296’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560, p. 46; Duncan, ‘Early parliaments’, pp. 37–47; A. Young, ‘Noble families and political factions in the reign of Alexander III’, in N. H. Reid (ed.), Scotland in the Reign of Alexander III 1249–1286 (Edinburgh, 1990), p. 16; G. W. S. Barrow, Robert Bruce (Edinburgh, 1982); N. H. Reid, ‘The kingless kingdom: the Scottish guardianships of 1286–1306’, SHR, lxi (1982); Rait, Parliaments, pp. 176–7; RPS, A1295/1. It is possible that ‘community of the realm’ meant something more inclusive than the great lords and prelates, Barrow, Kingship and Unity, p. 126. In terms of practical politics, it was these men who spoke for the political nation.

71

M2287 - BROWN & MAC TEXT.indd 71

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 magnates, acting as the dominant force in counselling, and constraining, the king.11 This influential role of the nobility in parliament became more evident after the death of Robert I as, between 1329 and 1424, the kingdom underwent a long period of royal minority, absenteeism and incompetence punctuated by a few years of strong kingship. The presence in fourteenth-century parliaments of clerics and burgesses was important but it was the nobility, as the leaders of the ongoing war with England and governors of the kingdom, who shaped parliament’s evolving structures and ideology. Even those nobles who fought alongside Edward III in seeking to overthrow the Bruce dynasty attempted to use parliament, as Robert I had done, to legitimise Edward Balliol’s seizure of the crown, holding their own rival parliament in 1334. Within the Bruce faction, parliament became a focal point of tension between David II and Robert the Steward and his allies in the early 1340s and from 1346 to 1357 throughout the unlucky king’s imprisonment. Both sides continued to test one another’s strength in parliament, most evidently when the nature of the treaty that brought peace and David II’s release from captivity in 1357 was determined. The final conditions did not suit the king who was unable to persuade parliament in 1364 to alter the succession against the rights of the Steward. David II did subsequently get the upper hand, flooding the general council of January 1365 with his own men and excluding the most prominent noble troublemakers. The price paid, however, was the disengagement of many great lords from royal business. Besides, parliament remained an arena in which the king continued to be accountable. Thus, in February 1370, it established two committees to consider the king’s finances and to investigate issues of common justice, both of which were numerically dominated by the nobility.12 The passage of the crown to the Stewarts in 1371 brought to the throne 11. R. J. Tanner, ‘Cowing the community? Coercion and falsification in Robert Bruce’s parliaments, 1309–1318’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560; N. H. Reid, ‘Crown and community under Robert I’, in A. Grant and K. J. Stringer (eds), Medieval Scotland: Crown, Lordship and Community (Edinburgh, 1993); M. A. Penman, ‘“A fell coniuracioun again Robert the douchty king”: the Soules conspiracy of 1318–1320’, Innes Review, l (1999); Duncan, ‘Early parliaments’, pp. 49–57; Nicholson, Later Middle Ages, pp. 81–120; Grant, Independence and Nationhood, pp. 8–9, 11, 15; RPS, 1309/1–3, 1314/1, A1328/1a. 12. M. Penman, ‘Parliament lost – parliament regained? The three estates in the reign of David II, 1329–1371’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560; M. Penman, David II 1329–71 (Edinburgh, 2005), pp. 308–25 for 1364 and pp. 393–8 for 1370; Nicholson, Later Middle Ages, pp. 129–30, 139–41, 158, 171–2; Grant, Independence and Nationhood, pp. 38–9; Rait, Parliaments, pp. 19–25; RPS, 1334/1, 1357/9/1–3; 1365/1/19, 1370/2/3–5.

72

M2287 - BROWN & MAC TEXT.indd 72

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y Robert II and, in 1390, his son, Robert III, each of whom was restrained by the actions of powerful nobles. At the heart of these dramatic episodes was a toxic mixture of dynastic rivalries, personal failings and concerns over what attributes were necessary to govern during a period of intermittent war and political instability. Meetings of parliament and general council were exploited by court factions to remove from power Robert II in November 1384, the duke of Carrick (the future Robert III) in December 1388, Robert III in January 1399, and the duke of Rothesay (eldest son and heir of Robert III) in May 1402. Thus, in 1384, the decision to empower the earl of Fife as guardian of the kingdom was made ‘after many talks, consultations and a discussion had been held, the three communities at length agreeing’, but the political muscle behind that consensus was provided by Fife’s fellow nobles.13 The fourteenth-century struggle to resist the power of English kings set the context for this period during which parliaments and general councils played a significant role in royal government and were able to put pressure on kings and on factions exercising royal authority. The background of prolonged warfare, royal minorities and ineffective kings made it likely that noble power would increase and, while these assemblies were far more than meetings of the nobility, there is no doubt that parliament had become a useful vehicle for exercising that power legitimately and peacefully. Ideas about conciliar government were certainly present in late medieval Scotland, chiefly within the church, but there was little coherent ideology of resistance, and any focus on the role of parliament in encouraging such ideas emerged largely out of pragmatic politics rather than being ideologically driven.14 Parliament and Noble Power, 1424‒1603 It was not until James I’s release from English captivity in 1424 that the nobility faced a ruler with the will and necessary skills to seize the political initiative. In March 1425, James I manipulated parliament to deliver a sudden strike against his rivals and arrest Murdoch, duke of Albany. Two months 13. S. Boardman, The Early Stewart Kings: Robert II and Robert III 1371–1406 (East Linton, 1996), pp. 124, 152, 215, 245; S. Boardman, ‘Coronations, kings and guardians: politics, parliaments and general councils, 1371–1406’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560; Nicholson, Later Middle Ages, pp. 189–90, 214–15; Rait, Parliaments, pp. 25–30; RPS, 1388/12/1, 1399/1/3, 1402/5/1. 14. J. H. Burns, ‘The conciliarist tradition in Scotland’, SHR, xlii (1963); R. Mason, ‘Kingship, tyranny and the right to resist in fifteenth-century Scotland’, SHR, xlvi (1987); K. M. Brown and R. J. Tanner, ‘Introduction. Parliament and politics in Scotland, 1235–1560’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560.

73

M2287 - BROWN & MAC TEXT.indd 73

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 later, parliament reassembled in its judicial capacity to condemn to immediate execution the former governor and his closest kinsmen. The legacy of the 1425 parliament was a lesson to the nobility that, in a reversal of the politics of the first two Stewart kings, parliament could be a dangerous instrument of power in the hands of a king willing to use it. In the course of the following year, the king employed parliament to force the fifth earl of Douglas to accept the just complaint of an aggrieved tenant; in 1428 James appears to have used the cover of a parliament at Inverness to enable the arrest of the lord of the Isles; and, in 1435, he manipulated parliament to disinherit unjustly the eleventh earl of March. James I was never able to dictate to the estates, however, which became increasingly unsettled in the 1430s as a consequence of his arbitrary and untrustworthy behaviour. Led by malcontent nobles, parliament tore up the king’s taxation policy and placed restrictions on his use of revenue, determined the direction of foreign policy, and attacked the king’s record on law and order. At the October 1436 general council a faction of discontented nobles conspired to strip James I of his authority but lost its nerve, leaving Sir Robert Graham alone and exposed when he attempted to arrest James. This failed effort to revive constitutional precedents established under John Balliol, Robert II and Robert III nevertheless indicates some adherence to the view that parliament offered a legitimate means by which the political community might address royal incompetence or tyranny. In February 1437 the king’s enemies took advantage of another meeting of general council at Perth to murder him. Yet, instead of welcoming the assassination, a parliament in March 1437, free from the presence of an adult king and motivated by a combination of factional rivalry and the outrage of a politically conservative community, condemned the killers as traitors and hunted them down. Parliament would not approve of tyrannicide carried out by private subjects, however high their rank.15 In spite of the political tensions of James I’s reign, it would be unhelpful to create the impression that parliament was dominated by conflict between crown and nobility rather than episodic clashes between James I and particular nobles. The king sought to enhance parliament’s status by compelling greater participation among the nobility following a dismal turnout in 15. M. Brown, James I (Edinburgh, 1994), passim, esp. pp. 48–9, 60–6, 77, 82, 97–8, 103–4, 122–4, 139–40, 148, 155–6, 175–7, 197–8; M. Brown, ‘“I have thus slain a tyrant”: The Dethe of the Kynge of Scotis and the right to resist in early fifteenth-century Scotland’, Innes Review, xlvii (1996); Tanner, Parliament, pp. 7–65; R. Tanner, ‘“I arrest you, sir, in the name of the three astattes in perlement”: the Scottish Parliament and resistance to the Crown in the fifteenth century’, in T. Thornton (ed.), Social Attitudes and Political Structures in the Fifteenth Century (Sutton, 2000); Nicholson, Later Middle Ages, pp. 282– 7, 302–12, 321; Rait, Parliaments, pp. 30–1, 178–83; RPS, 1426/31, 1435/3.

74

M2287 - BROWN & MAC TEXT.indd 74

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y 1426. Two years later parliament enacted a new law that required the lesser barons of each shire to elect and pay for two representative commissioners who would in turn elect a speaker to convey their views to the king. Arguably, James I was drawing on his experience in England to create a version of the English Commons in the hope that the controlled presence of a limited number of lesser barons would lead to more regular taxation and a less powerful baronial estate. The publicly stated reason for the 1428 legislation, however, was to put in place a means by which ‘the small barons and freeholders need not come to parliaments or general councils’. Unsurprisingly, the barons were unenthusiastic (not least because the act initiated a public recognition of rank differentiation) and the legislation was ignored.16 The minority of James II (1437–49) saw a reassertion of the power of the estates in parliament and general council, and the further evolution of the idea that parliament had the right to exercise authority over the king. The high frequency of meetings that began under James I continued through to the last decade of the fifteenth century, ensuring that parliament was engaged in the government of the kingdom during long minorities and periods of adult rule. Kings, nobles and the political community expected parliament to have a role in government. Meanwhile, the committee of the lords of the articles had emerged as a body elected by the estates to review parliamentary business but answerable to the whole parliament. While each of the three estates had equal membership, the noble estate was the least likely to elect royal nominees and its representatives were the most outspoken. The existence of a powerful nobility, combined with the opportunities to govern in the absence of adult kings, allowed a working theory of parliamentary authority to develop and to be sustained during periods of kingly government. The constitutional ideology should not be overstated, however. Parliament and the lords of the articles remained subject to the rise and fall of faction and to the willingness of kings and their most powerful subjects to impose their will by any means possible. Justificatory reasons were largely an afterthought.17 Nevertheless, parliament was consistent in its disapproval of nobles abusing their power. James I’s murderers in 1437, along with the Livingstones, Douglases and Boyds in succeeding reigns, all discovered that parliament had no sympathy for actions that threatened legitimate royal authority. During 16. Tanner, Parliament, pp. 30–4; Nicholson, Later Middle Ages, pp. 302–4; Brown, James I, p. 122; Rait, Parliaments, p. 195; RPS, 1428/3/3. 17. Tanner, Parliament; R. Tanner, ‘The lords of the articles before 1540: a reassessment’, SHR, lxxix (2000); Nicholson, Later Middle Ages; Rait, Parliaments, pp. 21, 30–47. For a flavour of the idea that the crown used parliament to attack the nobility, see the comments on James II in 1455 in Nicholson, Later Middle Ages, pp. 375–8.

75

M2287 - BROWN & MAC TEXT.indd 75

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 the latter part of James II’s minority, from 1445 to 1449, the eighth earl of Douglas avoided summoning parliament, suggesting that, like the dukes of Albany in the two decades after 1404, noble strong men may have been nervous about summoning their rivals and critics to meet. James II revived parliament by using it to attract support for his attacks on the Douglases, to reward his allies and to detach Douglas dependants. After 1451 the eighth earl of Douglas abandoned parliament to the king because he feared it would be subverted by James II to attack him as it had the Livingstones a year earlier. Following the king’s murder of the earl, James II manipulated parliament to declare on 12 June 1452 that Douglas ‘procured and produced the occasion of his own death’. The estates supported the king in his successful war on the Douglas kindred and in carrying out extensive forfeitures in 1455. As with the destruction of the house of Albany in 1425, too much can be made of the fall of the Black Douglases, but their fate demonstrated that no noble family could resist the combined power of king and parliament which was now seen as the only legitimate means by which nobles might oppose the crown.18 While James II had the political skill to use parliament to destroy the kingdom’s greatest noble house, James III repeatedly clashed with his parliaments over taxation, foreign policy and justice, providing a public agenda for disgruntled nobles to initiate extra-parliamentary action. In 1482 the king temporarily lost power to a faction of nobles and prelates and, while the royalist recovery of the following year saw parliament used as an instrument to browbeat the king’s critics, those opponents increasingly absented themselves. The failure of parliament to provide the opportunity to resolve the ongoing problems between a dangerously untrustworthy king and his nobles forced a resolution of the conflict elsewhere. In 1488 James III ‘happened to be killed’ in the Battle of Sauchieburn by rebels who subsequently justified their actions in a bitterly partisan parliament dominated by the victorious faction.19 The legacy of the fifteenth century, therefore, was an understanding that the estates had a constitutional right to insist that the king should make laws and demand taxation only through parliament, and that parliament could restrain tyrannical kings, failing which successful rebellion required parliamentary sanction. This idea, that parliament served a useful function in 18. Tanner, Parliament, pp. 66–168; M. Brown, ‘Public authority and factional conflict: crown, parliament and polity, 1414–1455’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560; M. Brown, ‘Scotland tamed? Kings and magnates in late medieval Scotland’, Innes Review, xlv (1994); Nicholson, Later Middle Ages, pp. 325–96; C. McGladdery, James II (Edinburgh, 1990), passim; Brown, Black Douglases, pp. 283– 334; RPS, 1452/6/1, 1455/6/2–4, 1455/6/6. 19. Tanner, Parliament, pp. 169–263; Nicholson, Later Middle Ages, pp. 397–530, 532–3; N. Macdougall, James III: A Political Study (Edinburgh, 1982); RPS, 1488/10/51.

76

M2287 - BROWN & MAC TEXT.indd 76

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y withstanding arbitrary power, was both nurtured and contradicted by political writers but that ideology was shaped by a practical politics in which the nobility played the decisive role.20 A personal summons to peers to attend parliament had become established by the end of James II’s minority, first occurring in May 1437, following James I’s murder. Does this imply, however, the beginnings of a process of differentiation of the nobility into a non-territorial parliamentary peerage and a mass of untitled barons?21 An expanding peerage, drawn from the greatest barons, came to form the largest number of nobles in attendance at parliament, leading to an identification of the noble estate with the peerage but the role of lesser barons in late medieval parliaments is often overlooked.22 Untitled barons continued to attend parliament as tenants-in-chief of the king, often in significant numbers, and there are no grounds for excluding them from the second estate. Sederunts for this period are rare but the few that survive offer some insight into political behaviours. That of 21 November 1469 indicates the presence at parliament of twenty-seven clergy, fifty-three nobles (thirty-three peers and twenty barons), and the commissioners of twenty-two burghs. On 6 May 1470, there were thirty clergy, thirty-eight nobles (thirty peers and eight barons) and the commissioners of twenty-three burghs. On 18 February 1472, there were fourteen clergy, fifty-six nobles (twenty-two peers and thirty-four barons) and the commissioners for eight burghs. The noble estate in parliament continued to represent the whole of noble society, being constituted by peers who received personal summons and those barons who bothered to attend. There is no significant evidence of differentiation inside or outside of parliament. It is also worth recalling that not all men were desperate to attend parliament. On 24 February 1484, parliament expressed concern ‘regarding the estates and lords who have not come to this parliament to give their counsel for the welfare and good public of the realm’. In fact, attendance that day stood at fourteen clergy, thirty-three nobles (twenty-one peers and twelve barons) and two burghs, a particularly poor turnout by the burghs.23 Parliament exempted certain categories of small landowners from personal 20. J. H. Burns, The True Law of Kingship: Concepts of Monarchy in Early Modern Scotland (Oxford, 1996), pp. 1–17, 68–9, 85–6, 88–91. 21. Tanner, Parliament, pp. 82–6; Grant, ‘Development of the Scottish peerage’; Grant, Independence and Nationhood, pp. 120–7. 22. Goodare, ‘Estates’, p. 16; J. Goodare, ‘The admission of lairds to the Scottish parliament’, EHR, cxvi (2001), p. 1103. This was also the view of Donaldson, see G. Donaldson, Scotland: James V to James VII (Edinburgh, 1971), p. 8. 23. L. J. Macfarlane, William Elphinstone and the Kingdom of Scotland 1431–1514. The Struggle for Order (Aberdeen, 1995), pp. 98–100; Nicholson, Later Middle Ages, p. 423; RPS, 1469/2, 1471/5/15, 1484/2/36.

77

M2287 - BROWN & MAC TEXT.indd 77

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 attendance but, in theory, the lesser barons retained a right and duty to attend the king in parliament, being subject to fines for non-attendance (although these were never collected). What was lacking was a recognised procedure to regulate their attendance. Consequently, some barons attended parliament on the strength of their personal wealth and power, local or national officeholding, or their relationship to the king, and only issues of great importance, such as taxation, brought them out in numbers. Typically, some 10 to 20 per cent of parliament’s membership was constituted by barons but this rose to over 40 per cent at the February 1472 parliament because of fears about James III’s ambitious tax plans. Together, these peers and barons invariably comprised the largest estate in fifteenth-century parliaments, at times outnumbering the combined strength of the less important clergy and burgesses. At the end of the fifteenth century parliament continued primarily to reflect the interests of the landed nobility.24 Throughout much of Europe, representative assemblies fell into disuse over the course of the sixteenth and seventeenth centuries but, in Scotland, the ongoing involvement of the nobility in parliament contributed to the sustained political potency of the estates.25 Under James IV (1488–1513) the possibility of parliament’s eclipse was raised as, in the later years of his reign, the estates met less frequently in full parliament. On the basis of limited sederunts, it appears that numbers attending were lower than in the previous reign, and parliament did not meet after 1509. Unlike his predecessors, James IV had the wealth and power not to need parliament, and judicial business was pushed towards other bodies. Meanwhile, the king cultivated good relations with the higher nobility and avoided his father’s controversial policies that had drawn the lesser nobility into parliament.26 This brief episode was an anomaly, however, and, following James IV’s early death in 1513, yet another royal minority created the conditions in which the centrality of parliament to the governance of the kingdom could not be ignored. James V’s minority saw the usual struggle between noble factions for control of the king’s person but also for dominance in parliament which had retained its authority to legitimise political action and to deflect 24. Tanner, Parliament, pp. 199, 267; Rait, Parliaments, pp. 196–7 also recognised the persistent presence of the barons; RPS, 1472/3. 25. For a comparative insight see K. M. Brown and A. J. Mann, ‘Introduction. Parliament and politics in Scotland, 1567–1707’ in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707. 26. N. Macdougall, ‘The estates in eclipse? Politics and parliaments in the reign of James IV’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560; N. Macdougall, James IV (Edinburgh, 1994), pp. 170–95; Nicholson, Later Middle Ages, p. 572; Rait, Parliaments, pp. 38–47, 196–7.

78

M2287 - BROWN & MAC TEXT.indd 78

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y nobles from engaging in violence to resolve their differences.27 Under the adult James V, royal control over parliament grew more marked: for example, more royal councillors were elected to the articles. Nevertheless, the king enjoyed good relations with his nobles and there was little need for them to voice complaints at parliament. Attendance averaged forty-three members for the fourteen meetings for which a sederunt survives, with all three estates being well represented and noble numbers averaging around twenty. The number of untitled barons fell away, however, with none being present at six of these meetings and with an average of only four barons attending the other eight. Membership of the lords of the articles varied, with nobles usually having around a third of the places although this rose to as high as half of the ten places in the unusually small September 1528 committee and seventeen of the thirty-eight members in the large June 1535 committee. Until 1532 the untitled barons never had more than one place within the noble estate but, in that year, three of the eight nobles were not peers and, in 1538, seven of the seventeen nobles were untitled barons. This does not appear to have signalled a pattern, however, and, in 1540, the twenty-strong committee of the lords of the articles had seven noble members, all peers. This level of engagement appears to signify a reasonably high level of involvement of parliament in governance, with the higher nobles playing their usual role as the principal political actors alongside the crown. That partnership survived James V’s death in 1542 and had sufficient momentum to carry on into the regency of his wife, Mary of Guise, culminating in the well-attended parliament of 1558 (twentytwo clergy, thirty nobles and ten burghs) at which Queen Mary’s marriage contract was ratified and the crown matrimonial was granted to Francis.28 Yet, within two years, the nobles recovered their appetite for using parliament to express political discontent. In 1560 a well-organised Protestant party seized control of the estates to carry through a Reformation against the crown’s wishes and, in 1567, a parliament dominated by Protestants approved the enforced abdication of Queen Mary. In the absence of an explicitly argued theory of parliamentary authority, these actions were justified by John Knox’s evangelical summons to wage religious war against tyrants. Meanwhile, George Buchanan’s thesis on the historic role of contractual monarchy drew on Scottish history’s examples of the nobles using parliament to restrain unpopular royal policies. The willingness of Protestant nobles to 27. K. Emond, ‘The parliament of 1525’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560. 28. J. Cameron, James V: The Personal Rule 1528–1542 (Edinburgh, 1998), esp. pp. 38–42, 356–9; Tanner, ‘Lords of the articles’, pp. 202–11; Rait, Parliaments, pp. 363–7; P. E. Ritchie, ‘Marie de Guise and the three estates, 1554–1558’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560; RPS, 158/11/2.

79

M2287 - BROWN & MAC TEXT.indd 79

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 use parliament so aggressively in 1560 and 1567, however, does not indicate a significant shift in how the political community understood the role of the estates. Between these dates Mary presided over meetings of the estates that were no less royalist than previous assemblies. Furthermore, this generation of nobles all defied and wielded royal and parliamentary authority as required but even the most radical Protestant lords, who helped shape this crucial decade, remain as silent on the role of parliament, or on the significance of the second estate within it, as their late medieval predecessors.29 Nevertheless, meetings of parliament were not occasions when these tensions were resolved. As on previous occasions, parliaments were meetings of already victorious factions in which leading nobles legitimised their actions. This partisan behaviour was most evident during the intermittent civil war of 1567–73 when rival parliaments representing different views on the powers of the crown sat and forfeited their enemies.30 The revival of what might be described as a blend of late medieval constitutionalism and Protestant resistance theory was underlined following the Ruthven Raid when, in October 1582, parliament approved the overthrow of the king’s favourites in a palace coup. Following the collapse of the Ruthven government in 1583, royal councillors demonstrated to the young James VI how effective parliament could be against those nobles and clergy who threatened the crown’s freedom, and the 1582 session was excised from parliament’s record. Subsequently, the parliament of 1584 showed a remarkable appetite for enhancing royal authority, and the behaviour of the twenty-one members of the clerical estate, twenty-two members of the burgh estate and twenty-six nobles has not been satisfactorily explained.31 The overthrow of the Arran faction in 1585, however, ensured that the king had to endure many more parliaments and conventions of the estates in which royal policies, especially in the areas of taxation and religion, were blocked by the estates. The parliaments of the early 1580s offer rival models of how the estates might operate 29. See Brown, ‘Reformation parliament’; RPS, 1567/7/25/1; Burns, True Law; R. A. Mason, Kingship and the Commonweal: Political Thought in Renaissance and Reformation Scotland (East Linton, 1998), pp. 139–64; J. Goodare, ‘The Scottish political community and the parliament of 1563’, Albion, xxxv (2003), pp. 373–7; J. Goodare, ‘The first parliament of Mary Queen of Scots’, Sixteenth-Century Journal, xxxvi (2005). The first earl of Moray, fifth earl of Argyll and fourth earl of Morton all used parliament in various ways without leaving any record of their thoughts on its role, M. Lee, James Stewart, Earl of Moray (New York, 1953); Dawson, Politics of Religion; G. Hewitt, Scotland Under Morton 1572–80 (Edinburgh, 1982). 30. In June 1571, rival parliaments were held by the warring factions within a few hundred yards of one another, G. Donaldson, All the Queen’s Men. Power and Politics in Mary Stewart’s Scotland (London, 1983), pp. 121–2; also see Dawson, Politics of Religion, ch. 6. 31. RPS, A1582/10/2, A1583/12/2.

80

M2287 - BROWN & MAC TEXT.indd 80

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y either as assemblies for approving noble intervention in the government of the kingdom or as the pliant arm of an aggressive royal government.32 Even in the 1590s, the king struggled to exercise control over parliaments and conventions dominated by powerful noble factions, and there is little doubt that the combination of royal political and financial weakness alongside profound religious change accounted for the high frequency of parliaments and conventions of the estates throughout the four decades that followed the Reformation.33 If political leadership continued to reside in the higher nobility, the later sixteenth century saw a growing recognition of the need to engage the lesser nobility regularly in the business of parliament. Attendance by barons remained uneven in the middle decades of the sixteenth century, there being no barons among the sixty-two members of the important 1558 parliament.34 The 187 named individuals, along with ‘many others’, who attended the Reformation parliament in 1560 represented an unusually high turnout, due in large part to an influx of Protestant lesser nobility who petitioned for representation to ensure a parliamentary majority against French rule and papal dominance. The role of the lesser barons in 1560 has aroused much excitement among historians but that parliament did not represent a new departure in noble representation, having much in common with the late medieval practice of lesser nobles attending when it suited them or their political masters.35 A handful of barons sat in the convention of 1561 although all but one did so as royal officers; at the October 1566 convention, the barons in attendance were again royal officers; and no barons were present at the April 1567 parliament. There are no sederunts for the parliaments of 1563 and 1564, but ‘diverse barons’ were in attendance at the August 1567 convention. As in 1560, the petition for representation by the barons in December 1567 was associated with the need to bolster a revolutionary programme, and it was agreed by the estates that ‘of law and reason, the barons of this realm ought to have vote in parliament as a part of the nobility’. A small number of barons participated, although none was elected to the committee of the lords of 32. Goodare describes the legislation of 1584 and 1587 as ‘an absolutist manifesto’, J. Goodare, State and Society in Early Modern Scotland (Oxford, 1999), pp. 73–5. 33. Brown and Mann, ‘Introduction’, pp. 13–19; A. R. MacDonald, ‘The parliament of 1592: a crisis averted?’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707. 34. Rait, Parliaments, pp. 197–9; RPS, 1558/11/12. 35. Brown, ‘Reformation parliament’; RPS, A1560/8/1. For Rait, the significance lay in the lack of confidence among a section of the nobility who had every right to attend parliament, yet who appealed to the 1428 act that limited those rights in order to justify their appearance, Rait, Parliaments, pp. 199–202.

81

M2287 - BROWN & MAC TEXT.indd 81

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 the articles.36 At a well-attended convention at Perth in July 1569, ‘a great number of ancient barons’ were present, and the November 1572 convention lists under ‘those who assisted’ the names of twenty-eight barons ‘with many others’ but, apart from a few individuals, usually crown officers, the barons disappear from surviving sederunts (although, confusingly, those sederunts list earls and/or lords as ‘barons’). It was only when the king attained his majority in 1587 that a third baronial petition of December 1585 resulted in legislation modelled on the 1428 act. Those freeholders who met the property qualification of 40 shillings of old extent valuation were required annually to elect two commissioners per shire who would attend parliament if summoned, each shire having one vote. Importantly, the principle of personal attendance by all tenants-in-chief of the crown was abandoned since ‘the compearance of the said commissioners of the shires in parliaments or general councils shall relieve the whole remaining small barons and freeholders of the shires of their suits and presence owing in the said parliaments’.37 A variety of interpretations has been put forward to explain the political and social importance of this piece of legislation, many of which contain an element of anachronistic class analysis.38 There is equally little evidence to indicate a connection between the emergence of a secular legal profession and a more politically assertive class of lairds.39 While the 1585 petition does not survive, the parliamentary record refers to its desire to promote the idea that baronial representation would assist the king and parliament ‘to be truly informed of the needs and causes pertaining to his loving subjects in all estates, especially the commons of the realm’. But no one considered these powerful landlords themselves to be part of the commons, and James VI himself wrote a decade later that ‘the small Barrones are but an inferiour part of the Nobilitie and of their estate’.40 The 1587 act carried none of the 1428 legislation’s association with limiting the power of the 36. RPS, 1561/12/1, 1566/10/1, 1567/4/5, 1567/8/1, 1567/12/2, 1567/12/4, 1567/12/12, 1567/12/28–9, 1567/12/43, 1567/12/45. 37. RPS, A1569/7/1, A1572/11/1, 1587/7/143; Rait, Parliaments, pp. 203–8. 38. For some examples see M. Lee, John Maitland of Thirlestane and the Foundation of the Stewart Despotism (Princeton, 1959), pp. 120–54; Goodare, ‘Admission of lairds’, pp. 1104–5, 1113–17, 1127; J. Goodare, ‘The nobility and the absolutist state in Scotland, 1584–1638’, History, lxxviii (1993); Donaldson, James V to James VII, pp. 278–80, 283– 4; Meikle, ‘The invisible divide’. 39. The idea of a noblesse de robe has been a recurrent theme, for example, J. Wormald, Court, Kirk and Community. Scotland 1470–1625 (London, 1981), p. 192; Wormald, Lords and Men, pp. 162–3. For a more measured examination of the origins of the legal profession see J. Finlay, Men of Law in Pre-Reformation Scotland (Edinburgh, 2000). 40. RPS, 1585/12/93–4, J. P. Somerville (ed.), King James VI and I Political Writings (Cambridge, 1994), p. 29.

82

M2287 - BROWN & MAC TEXT.indd 82

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y nobility by manipulating numbers, and appears to have been negotiated with the crown to address the king’s immediate financial crisis since he was promised £40,000 immediately from the barons with the prospect of engaging these men in discussions about more regular taxation in future. For their part, the barons wanted representation because of growing concerns over taxation. Arguably, it was the crown that miscalculated because it was the barons who antagonised James VI in the 1590s by providing the largest numerical opposition to tax demands while the higher nobility tended to benefit from royal largesse and were more co-operative over taxation.41 Unlike James I’s legislation, the 1587 act was adopted successfully, with barons first appearing in their new role as shire commissioners in 1592 when as many as thirty-five barons may have attended parliament. The first recorded election took place in Aberdeenshire on 31 January 1596 when John Leslie of Balquhan and Sir Alexander Fraser of Fraserburgh were elected as shire commissioners. It was 1681, however, before every shire was represented in parliament.42 The reconfiguration of parliament between 1560 and James VI’s death in 1625 brought about a significant shift in favour of the nobility which can be seen in the sederunts of the many conventions held throughout the 1590s and into the 1600s. Similarly, membership of the lords of the articles reflects this shift. In 1592 it was composed of eight clerical members, six of whom were lesser nobles in possession of former religious houses, eight peers, eight barons, eight burgh commissioners and five officers of state, all lesser nobles. Therefore twenty-seven of the thirty-seven members were drawn from noble society regardless of the parliamentary estate within which they sat.43 After the Reformation the clerical estate collapsed in numbers and importance with the disappearance of the monastic orders, and the bishops almost suffered the same fate only to re-emerge in the early seventeenth century as clients of the crown. The estate of burghs experienced a modest increase in number from thirty-five in 1560 to fifty-six in 1633, but the rate of increase was much slower than that of the nobility and, from the complaints made by the convention of royal burghs 41. Brown and Mann, ‘Introduction’, pp. 19–22; Goodare, ‘Admission of lairds’, pp. 1124–7; Goodare, ‘Estates’, pp. 17–20; J. Goodare, ‘Parliamentary taxation in Scotland, 1560– 1603’, SHR, lxviii (1989); Rait, Parliaments, pp. 208–10. The barons were taxed along with the peers, Goodare, ‘Estates’, p. 21. Wormald sees the act as a response to baronial demands, although the motivation is unclear: Wormald, Court, Kirk and Community, p. 157. 42. MacDonald, ‘Parliament of 1592’, p. 65; D. Littlejohn (ed.), Records of the Sheriff Court of Aberdeenshire (3 vols, New Spalding Club, 1904–7), i, pp. 372–3. 43. RPS, 1592/4/12.

83

M2287 - BROWN & MAC TEXT.indd 83

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 and the legislation of 1587 against the practice, it is clear that a number of barons sat in parliament as burgh commissioners.44 Meanwhile, the formal recognition of the shire commissioners, in effect creating a fourth estate, significantly increased the routine attendance of these lesser nobles, while the higher nobility benefited from James VI’s doubling of the size of the peerage, including converting monastic lands into hereditary lordships in 1606. In practice, however, not all nobles turned up at parliament because of age, infirmity or inclination: for example, in 1612 there were eleven bishops, nineteen peers, twenty-eight baronial commissioners and fifty-one burgh commissioners.45 Parliament and Noble Power, 1603‒1707 This growth in noble representation resulted in difficult and often uncooperative parliaments and conventions throughout the 1590s, and the crown lacked the means to impose the necessary level of parliamentary management until after the regal union with England in 1603. James VI’s views on divineright monarchy led him increasingly towards more authoritarian views and, with vastly greater patronage at his disposal, he secured the loyalty of his nobles, especially those with access to the London court. Whether this amounted to a form of royal absolutism, with the king-in-parliament as the supreme power in a new form of state, is debatable but parliaments and conventions of the estates did become less frequent, their timing increasingly tuned to the cycle of taxation.46 After 1609 parliament sat only in 1612, 1617 and 1621, and the crown exercised increasing levels of control, largely through effective management by royal officers and councillors drawn predominantly from the higher nobility and bishops who operated through the 44. Rait, Parliaments, p. 294–6; A. R. MacDonald, ‘Ecclesiastical representation in parliament in post-Reformation Scotland: the two kingdoms theory in practice’, Journal of Ecclesiastical History, l (1999); A. R. MacDonald, The Burghs and Parliament in Scotland c.1550–1651 (Aldershot, 2007), pp. 31–56, 203–4; RPS, 1587/7/26. 45. Goodare, ‘Admission of lairds’, pp. 1120–3; Goodare, ‘Estates’, pp. 19–24; A. R. MacDonald, ‘Deliberative processes in parliament c.1567–1639: multicameralism and the lords of the articles’, SHR, lxxxi (2002), pp. 29, 37–8; RPS, 1605/6/98–9, 1605/6/105, 1605/6/110, 1605/6/118–20, 1605/6/124–5, 1605/6/130–1, 1612/10/5. One additional group in parliament was officers of state, who also sat on the lords of the articles. These were invariably peers or men of baronial status. 46. Sommerville (ed.), Political Writings pp. 21–2, 74; Mason, Kingship and the Commonweal, pp. 215–41; Burns, True Law, pp. 222–54; M. Lee, Government by Pen. Scotland under James VI and I (Urbana, 1980); Goodare, State and Society; J. Goodare, The Government of Scotland 1560–1625 (Edinburgh, 2004).

84

M2287 - BROWN & MAC TEXT.indd 84

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y increasingly nominated committee of the lords of the articles. While the dissent that had been so openly expressed in the parliaments of the 1590s was more circumspect, however, criticism of royal policies was expressed by a fluid opposition drawn from among those lesser nobles and burghs outside the circle of royal patronage and led by a handful of prominent peers. The extent of that opposition at the 1612 parliament sufficiently concerned royal councillors to provoke more robust preparations for managing the estates in future.47 Most significantly, the king’s steady tightening of the management of the election of the lords of the articles represented a threat to parliament’s independence. Yet even the election of all the king’s nominees in 1621, and the passage of an unpopular liturgical policy, could not be achieved without recognition that the successful implementation of royal policies rested on negotiating the co-operation of the nobility who dominated the lords of the articles whether they sat as members of the noble or baronial estate or as officers of state.48 James VI’s success in detaching his nobles from radical Protestantism or any strong attachment to a more conciliar view of government was quickly overturned by his son, Charles I, who mistook reluctant co-operation at the conventions of 1625 and 1630 for powerlessness. Religious and economic grievances were already significant when, in 1633, he attended his first parliament, a gathering subverted by royal patronage and rigorously managed from shire elections through to the final proceedings. The absence of political freedom was added to the catalogue of complaints against the king, and a number of nobles attempted to present their grievances in what became known as the Haig Supplication, only to be denied the opportunity. Following the parliament, the second lord Balmerino, a long-standing critic of royal policy, was charged with treason for having the document in his possession. He was tried, found guilty and condemned to death, a sentence never carried out but one that appalled the nobility and rallied the dissenters, persuading them that extra-parliamentary action was necessary to make the king reverse his policies and govern with greater regard to the interests of his subjects, especially a nobility that had lost none of its power to confront the crown. Those nobles most closely identified with the king proved to have little support outside the

47. MacDonald, ‘Deliberative processes’; Rait, Parliaments, pp. 48–61; V. T. Wells, ‘Constitutional conflict after the union of the crowns: contention and continuity in the parliaments of 1612 and 1621’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707. 48. RPS, 1621/6/9; J. Goodare, ‘The Scottish parliament of 1621’, Historical Journal, xxxviii (1995); MacDonald, ‘Deliberative processes’, pp. 45–50; Rait, Parliaments, pp. 367–74.

85

M2287 - BROWN & MAC TEXT.indd 85

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 royal court and found themselves isolated and bewildered when parliament met again in 1639 amid revolution.49 Undoubtedly the experience of the parliaments of 1612, 1621 and 1633 shaped much of the agenda that emerged under the subsequent Covenanting government which, initially at least, looked backwards to an idealised political settlement before it was subverted by the aggrandisement of an absentee monarchy. Some nobles, such as the marquis of Argyll, drew on a quasi-republican political ideology that combined Buchananite resistance theory and the more recent thoughts of the German Calvinist, Johannes Althusius.50 Therefore, the Covenanting revolution that unfolded after July 1637 embraced an agenda in which the nobles led the way towards a form of parliamentary government that was established by the parliaments of 1639–41. What emerged was a confident parliament which increasingly stripped the king of power and imposed itself ruthlessly on the localities while attempting to disperse authority throughout its own complex committee structure. In the Bishops’ Wars of 1639–40, and in the more intense warfare that followed intervention in England in 1644 until defeat in 1651, parliament provided national leadership, organising the war effort and governing through a committee of the estates in the intervals between sessions.51 Naturally, the Covenanters used parliament to enforce its agenda but the estates were relatively free to engage in political debate in which the usual bitter struggle between rival noble houses and their followers was overlaid with genuine ideological differences. Set-piece struggles between the rival factions headed by the marquis of Argyll and the third marquis of Hamilton 49. M. Lee, The Road to Revolution: Scotland under Charles I 1625–37 (Urbana, 1985), especially pp. 131–5, 157–8; J. R. Young, ‘Charles I and the 1633 parliament’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707; Rait, Parliaments, pp. 61–2; A. I. Macinnes, Charles I and the Making of the Covenanting Movement 1625–1641 (Edinburgh, 1991), chs 1–6; K. M. Brown, ‘Courtiers and cavaliers: service, Anglicization and loyalty among the royalist nobility’, in J. Morrill (ed.), The Scottish National Covenant in its British Context (Edinburgh, 1990). 50. R. A. Mason, ‘The aristocracy, episcopacy and the revolution of 1638’, in T. Brotherstone (ed.), Covenant, Charter and Party Traditions of Revolt in Modern Scottish History (Aberdeen, 1989); E. J. Cowan, ‘The political ideas of a covenanting leader. Archibald Campbell, marquis of Argyll’, in R. A. Mason (ed.), Scots and Britons. Scottish Political Thought and the Union of 1603 (Cambridge, 1994). 51. D. Stevenson, The Scottish Revolution 1637–44: The Triumph of the Covenanters (Newton Abbot, 1973); D. Stevenson, Revolution and Counter Revolution in Scotland 1644–1651 (London, 1977); A. I. Macinnes, ‘The Scottish constitution, 1638–1651: The rise and fall of oligarchic centralism’, in Morrill (ed.), The Scottish National Covenant in its British Context; Young, Scottish Parliament. The reform of the lords of the articles was a reaction to recent crown behaviour and was intended to return it to its previous role, MacDonald, ‘Deliberative processes’, pp. 48–9.

86

M2287 - BROWN & MAC TEXT.indd 86

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y over the Solemn League and Covenant in 1643, or fierce debate by the same two parties over the Engagement in 1648, were real, high-stakes battles for power fought within parliament, spilling over into bloody conflict when the talking stopped.52 But was the nobility threatened by a revolution it found increasingly difficult to control? One suggestion is that parliament found itself in a subservient relationship to the general assembly but the idea that a theocratic hegemony was established by the presbyterian clergy is unsustainable. By 1640 the clergy had been removed from parliament which reverted to three estates, the nobility (peerage), the barons (or lairds) and the burghs, with the position of the barons being bolstered by allowing each shire commissioner a separate vote, doubling the shire vote.53 But it has been argued that a radical agenda was embedded in the Covenanting movement from the beginning, rooted in deep societal changes over the previous century and unleashing a socio-political revolution in which control of local government and, in due course, of parliament passed into the hands of lesser nobles. These lairds, it is suggested, were not merely of a different rank and wealth from the peerage, or even the wealthy barons who usually sat in parliament, but were from a distinct social background with different political views. Swelled in numbers by the doubling of shire representation, the lairds gradually acquired a numerical dominance in key committees. After the collapse of the Engagement in 1649, the purging of parliament removed most of the peerage, leaving these lesser men to pursue a more radical agenda. Although a degree of noble authority was restored in 1650 after the regime’s defeat at the Battle of Dunbar, the legitimacy of noble power never fully recovered as parliament lost its grip over a country sliding into anarchy and foreign conquest. It is within the context of this narrative that a robust case has been made for the development of a Scottish commons.54 52. J. J. Scally, ‘Constitutional revolution, party and faction in the Scottish parliaments of Charles I’, in Jones (ed.), The Scots and Parliament; J. J. Scally, ‘The rise and fall of the Covenanter parliaments, 1639–51’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707. 53. Rait, Parliaments, pp. 63–75; W. Makey, The Church of the Covenant 1637–1651: Social Change in Scotland (Edinburgh, 1979); J. R. Young, ‘Scottish covenanting radicalism, the commission of the kirk and the establishment of the parliamentary regime of 1648–1649’, in The Records of the Scottish Church History Society, xxv (1995); RPS, 1640/6/5; Goodare, ‘Estates’, pp. 24–7. 54. This thesis can be traced through M. H. B. Sanderson, Scottish Rural Society in the Sixteenth Century (Edinburgh, 1982); Meikle, ‘Invisible divide’; Goodare, State and Society, pp. 74–86; Goodare, ‘Admission of lairds’; Goodare, ‘Estates’, pp. 19–24; Makey, Church of the Covenant; Macinnes, Covenanting Movement, pp. 155–213; Macinnes, ‘Scottish constitution’; Young, Scottish Parliament; J. R. Young, ‘The Scottish parliament and the covenanting revolution: the emergence of a Scottish commons’ in J. R. Young (ed.), Celtic Dimensions of the British Civil Wars (Edinburgh, 1997).

87

M2287 - BROWN & MAC TEXT.indd 87

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 By contrast, it can be argued that, until 1649, the primacy of the higher nobility was unchallenged regardless of their numerical strength in either the full parliament or its committees. Even the doubling of the barons’ votes occurred with the support of the Covenanter magnates (and opposition from the burghs) who saw no threat from men sharing their own social background and world view, however far removed they were in status or wealth. Throughout the 1640s, the rank-and-file shire commissioners acted as the foot soldiers in the factions, or parties, led by Argyll and Hamilton. The numbers of barons (the term parliament continued to employ) on any single committee was unimportant because their behaviour was not governed by loyalty to their estate but to hierarchical political groupings. Hence, the radical turn taken by parliament was a response by Argyll and his supporters to the exceptional circumstances following the defeat of the Engagement in 1648–9 that led to the execution of Charles I and the duke of Hamilton in England and to the purging from parliament of most of the higher nobility.55 Following the Restoration of the monarchy in 1660, a nobility that had undergone the most traumatic reversal of its collective fortunes since the threat it faced from English conquest in the early fourteenth century set about rebuilding its authority and power. While parliament had a crucial role in reaching a new political settlement and remained a vehicle for legitimising authority and ensuring good governance, the nobility placed its faith in a restored monarchy served by an Erastian church. It was the nobles who pushed through the 1661 parliament an ultra-conservative agenda that exceeded the ambitions of a cautious crown, returning to the constitutional position of the 1630s. Even the hated committee of the lords of the articles was restored along with the 1633 electoral system that was designed to give the king full control over its membership. The revived committee functioned on the whole as an effective tool of crown management with the two branches of the noble estate again accounting for over half the membership. Yet, while crown ministers had control over the committee’s membership, it proved impossible to exclude leading noble critics who continued to provide an element of dissent within the articles.56 Parliament met regularly until 1674 55. Stevenson, Scottish Revolution, pp. 306–8; Stevenson, Revolution and Counter Revolution, pp. 129–40; Stevenson, Government under the Covenanters, pp. xxii–xxiv; Scally, ‘Constitutional revolution, party and faction’; Scally, ‘Rise and fall of the Covenanter parliaments’. 56. Young, Scottish Parliament, pp. 304–23; R. Lee, ‘Retreat from revolution: the Scottish parliament and the restored monarchy, 1661–1663’, in Young (ed.), Celtic Dimensions; G. MacIntosh, The Scottish Parliament under Charles II, 1660–1685 (Edinburgh, 2007), pp. 1–35; J. Patrick, ‘A union broken? Restoration politics in Scotland’, in J. Wormald

88

M2287 - BROWN & MAC TEXT.indd 88

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y but on only four occasions between 1675 and 1688 and, while crown ministers tried to stifle any opposition, the concept of channelling dissent into criticism directed at those ministers was well understood. From as early as 1669, a loyal opposition emerged within parliament in the form of a faction around the third duke of Hamilton that focused on attacking Charles II’s chief minister, the duke of Lauderdale. Patronage, compromises and the occasional sacrifice of a minister kept this discontent at bay, and Scotland avoided the instability experienced in England between 1679 and 1681 as a consequence of the Exclusion Crisis.57 Changes in composition during this era again favoured the landed nobility. Average parliamentary attendance for the Restoration era was 171, distributed as 9 per cent clergy, 64 per cent landed nobility, and 31 per cent burgh commissioners. The peerage grew from about fifty, a number that was relatively stable throughout the sixteenth century, to around 140 by 1707, although actual attendance was much lower. Meanwhile, the number of royal burghs increased from a similar number in the mid-sixteenth century to sixty-seven in 1700 although a minority of burghs continued to be represented by lairds which caused parliament again to register ineffectual disapproval in 1681. The small first estate of fourteen bishops was restored in 1662 but never represented a threat to the nobility which remained numerically and politically dominant.58 In 1661, parliament extended the franchise to those landowners who had been brought into the tax system in the later sixteenth century but who continued to be denied representation, a reform that chiefly affected feuars, wadsetters (mortgagees) and tenants of former ecclesiastical estates whose annual income amounted to 10 chalders of victual, or £1,000 after the deduction of feus. Further refinement took place in 1681 with a reduction in the property qualification to £400 valued rent, extending the size of the electorate while also enshrining in law the principle that freeholding was defined by the relationship between a landlord and the crown, not by the possession of the land which could be sublet while the superiority was retained. (ed.), Scotland Revisited (London, 1991); Rait, Parliaments, pp. 75–95. For the royalist tone of the era see C. Jackson, Restoration Scotland, 1660–1690: Royalist Politics, Religion and Ideas (Woodbridge, New York, 2003); Rait, Parliaments, pp. 380–6; A. J. Mann, ‘“James VII, king of the articles”: political management and parliamentary failure’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707. 57. MacIntosh, Scottish Parliament, pp. 36–211; G. H. MacIntosh, ‘Arise King John: Commissioner Lauderdale and parliament in the Restoration era’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707; J. R. Jones, ‘The Scottish constitutional opposition in 1679’, SHR, xxxvii (1958); J. Patrick, ‘The origins of opposition to Lauderdale in the Scottish parliament of 1673’, SHR, liii (1974). 58. Brown and Mann, ‘Introduction’, pp. 49–50; Donaldson, James V to James VII, p. 277; Rait, Parliaments, pp. 296–300; RPS, 1661/1/316, 1681/7/13.

89

M2287 - BROWN & MAC TEXT.indd 89

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 The elected shire commissioners, however, continued to be drawn from the wealthier members of the local landed community. Meanwhile, the 1662 parliament conceded a long-desired objective of the peerage to permit their eldest sons to sit in attendance, and this was confirmed in 1685, 1689 and 1693 although efforts to place eldest sons of peers in parliament as shire commissioners continued to be rejected by parliament.59 In spite of the efforts of crown ministers under the restored monarchy, parliament’s support for the crown could not be taken for granted, especially when there was an extraparliamentary constituency in the form of presbyterian dissenters looking for noble leadership. Although James VII had been popular during his time in Scotland when he served as commissioner at the 1681 parliament, his policies as king brought together popular and noble unrest in parliament in 1686. Faced with intractable opposition to religious toleration, which was perceived to be a guise to favour Roman Catholics, the king prorogued parliament.60 The 1688–9 revolution has traditionally been seen as a coup carried out by self-interested nobles on the back of events in England, where William and Mary ousted James II with the assistance of a powerful Dutch army.61 The revolution, however, brought to the political surface deep-rooted and conflicting ideas about the royal succession, the nature of the church and the extent to which the crown’s power should be limited. These public debates introduced a greater degree of ideology into parliamentary affairs and broadened parliamentary politics into an enlarged public sphere. Nevertheless, it was the landed nobility that determined the success and the nature of the revolution, both in the localities and in the Convention Parliament which met in the spring of 1689. Many of the crown’s prerogative powers were swept away, authority was placed firmly in the hands of a parliament freed from the lords of the articles, and bishops were abolished, replaced by a presbyterian church. In a reversal of the Restoration settlement, the nobility determined to exercise control over the kingdom through parliament, securing their own liberties and property 59. RPS, 1662/5/4, 1662/5/6, 1681/7/45, 1685/4/13, 1685/4/10, M1689/3/16, 1693/4/15; Rait, Parliaments, pp. 210–14, 286–9. 60. Mann, ‘“James VII, king of the articles”‘; RPS 1686/4/6 for the king’s letter at the outset of the parliament which highlights his desire to protect Roman Catholics. 61. W. Ferguson, Scotland: 1689 to the Present (Edinburgh, 1975), pp. 1–35; P. W. J. Riley, King William and the Scottish Politicians (Edinburgh, 1979); B. P. Lenman, ‘The Scottish nobility and the revolution of 1688–1690’, in R. Beddard (ed.), The Revolution of 1688 (Oxford, 1991), pp. 137–62; B. P. Lenman, ‘The poverty of political theory in the Scottish revolution of 1688–1690’, in L. G. Schwoerer (ed.), The Revolution of 1688– 1690: Changing Perspectives (Cambridge, 1992); I. B. Cowan, ‘The reluctant revolutionaries: Scotland in 1688’, in E. Cruickshanks (ed.), By Force or Default? The Revolution 1688–1689 (Edinburgh, 1989).

90

M2287 - BROWN & MAC TEXT.indd 90

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y from arbitrary kings. What emerged were nascent political parties formed by adherence to political and religious ideas but in which geography, kinship and clientage provided the ties holding men together. Popular opinion became far more important in electoral and extra-electoral politics, and the role of the burghs cannot be overlooked. Nevertheless, traditional hierarchy endured, with leadership being supplied by the heads of the greatest noble families, chiefly the ducal houses of Argyll, Atholl, Hamilton and Queensberry.62 An unforeseen consequence of weaker executive government faced by two strong and competing parliaments in London and Edinburgh was the enormous strain placed on Anglo-Scottish relations. In the context of declining international security, concerns about the durability of the Revolution settlement and the erosion of Scotland’s economic performance, the majority of the nobility was persuaded that a parliamentary union and Hanoverian succession offered the best guarantees for political stability, religious security and economic prosperity. Adequate crown patronage and effective management overcame opposition in parliament, and those nobles who did not want either union or a Hanoverian succession were not prepared to repeat the experience of 1637 by taking their grievances outside parliament and on to the streets where there was angry but unorganised popular support searching for leadership.63 62. D. Patrick, ‘People and parliament in Scotland, 1689–1702’ (unpublished PhD thesis, University of St Andrews, 2002); D. Patrick, ‘Unconventional procedure: Scottish electoral politics after the revolution’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707; C. Whatley with D. Patrick, The Scots and the Union (Edinburgh, 2006), pp. 104–38; J. Halliday, ‘The Club and the revolution in Scotland, 1689–90’, SHR, xlv (1966); A. J. Mann, ‘Inglorious revolution: administrative muddle and constitutional change in the Scottish parliament of William and Mary’, Parliamentary History, xxii (2003); A. J. Mann, ‘Parliament, princes and presses: voices of tradition and protest in early modern Scotland’, in W. U. Boker and J. A. Hibbard (eds), Sites of Discourse: Public and Private Spheres – Legal Culture (Amsterdam, 2002); K. Bowie, Scottish Public Opinion and the Anglo-Scottish Union, 1699–1707 (Woodbridge, 2007), pp. 13–66; K. M. Brown, ‘Party politics and parliament: Scotland’s last election and its aftermath, 1702–3’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707. 63. Whatley with Patrick, Scots and the Union, pp. 139–321; A. Macinnes, Union and Empire: The Making of the United Kingdom in 1707 (Cambridge, 2007), pp. 243–312; Bowie, Scottish Public Opinion, pp. 65–170; K. Bowie, ‘Public opinion, popular politics and the union of 1707’, SHR, lxxxii (2003); J. R. Young, ‘The parliamentary incorporating union of 1707: political management, anti-unionism and foreign policy’, in T. M. Devine and J. R. Young (eds), Eighteenth-Century Scotland: New Perspectives (East Linton, 1999); Rait, Parliaments, pp. 95–122. For an older interpretation that blames a corrupt nobility for the union see W. Ferguson, Scotland’s Relations with England: A Survey to 1707 (Edinburgh, 1977), pp. 166–277; P. W. J. Riley, The Union of England and Scotland (Manchester, 1978); P. H. Scott, Andrew Fletcher and the Treaty of Union (Edinburgh, 1992).

91

M2287 - BROWN & MAC TEXT.indd 91

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 In this final phase of parliament’s history the landed nobility further tightened its grip over the composition of the estates. The abolition of the clerical estate reduced crown patronage, while parliament increased the representation of the larger shires, adding another twenty-six baronial commissioners, allowing these lesser nobles up to ninety-two commissioners.64 The postRevolution parliaments continued to grow, largely due to further peerage creations, rising to 187 members in 1693, 192 in 1698 and 227 in 1704. In the 1704 session, parliament allowed a first reading of an article that would have further raised the numbers of baronial commissioners while accepting the principle that each peerage creation would be matched by an additional baron. Rather than indicating rivalry between estates, this appears to have arisen from suspicion of the crown creating peers to bolster the court party. By the end of the seventeenth century, the conceptualisation of parliament as a meeting of estates was no longer meaningful. It represented the wealth of the kingdom, both landed and commercial, although ideas about nobility and rank remained important. At the final session of parliament in 1706–7, the landed nobility in its various degrees made up 71 per cent of the membership (seventy-four peers and ninety-one barons), the remaining 29 per cent (sixty-six) being burgh commissioners, a significant proportion of whom had landed interests.65 Conclusion One of the major weaknesses of the orthodox analysis of Scottish parliamentary history is the view of parliament set within a framework of reference in which its rivals were other competing institutions such as the privy council, the convention of royal burghs or the general assembly. An institutional approach is fundamentally flawed and, instead, parliament should be perceived as a blend of institution and political event in the life of the kingdom’s elites.66 Of these elites, the nobility enjoyed political pre-eminence, and most of the time it was the dominant force in parliament. From the middle of the 64. RPS, 1690/4/43, 1690/4/60; Rait, Parliaments, pp. 235–6. Eleven shires received two extra commissioners and four shires received one. This has been seen as the culmination of the long evolution of the fourth estate into a ‘Scottish Commons’ of ninety-two commissioners, J. R. Young, ‘The Scottish parliament in the seventeenth century: European perspectives’, in A. I. Macinnes, T. Riis and F. G. Pederson (eds), Ships, Guns and Bibles in the North Sea and the Baltic States c.1350–c.1700 (East Linton, 2000). 65. Brown and Mann, ‘Introduction’, pp. 49–51; RPS, 1693/4/2, 1698/7/2, 1704/7/2; A1704/7/44; 1706/10/2; Rait, Parliaments, p. 236; Goodare, ‘Estates’, p. 30. 66. As Roland Tanner has argued, the fifteenth-century parliament was not ‘an empty room in which the Estates made only brief appearances’: Tanner, Parliament, p. 4. Equally helpful is Julian Goodare’s point that parliament was ‘a meeting place – a crossroads even

92

M2287 - BROWN & MAC TEXT.indd 92

10/08/2010 16:47

pa r l iame nt and th e n o b i l i t y sixteenth century, its numerical and political dominance grew as the first estate shrank in size and stature while the peerage was increased and shire commissioners were introduced. That evaluation is not merely a product of head-counting but many parliaments recorded an attendance in which the nobility was the single biggest group. Only briefly in the late 1640s might it be argued that the nobility was in danger of being politically eclipsed when the membership of the parliaments of 1648–9 might be construed as approximating to a commons composed of petty nobles and burgh commissioners. There is no other episode in parliament’s history where anything like this occurred. The burghs never had the numerical strength, or the political influence, to threaten noble power although they were capable of organised activity in support of particularist issues. The medieval church was so imbued with the values of noble society, and so interpenetrated by noble families, that it had no reason, or will, to undermine the nobility while the post-Reformation church had little independent political influence within parliament. Most arguments about crown versus nobility boil down to being about individual kings quarrelling with individual nobles. In the context of these disputes, parliament acted as one among a number of different arenas, along with the court, the council, and the locality, in which the drama was acted out. Undoubtedly strong kings used parliament against noble rivals and critics: Robert I persuaded parliament to condemn the de Soulis conspiracy in 1320; James II persuaded parliament to approve his destruction of the Douglases in 1455; Charles II benefited from parliament’s collective guilt and fear in 1661 to condemn the marquis of Argyll. None of these examples made any lasting difference to the nobility of the early fourteenth, mid-fifteenth or later seventeenth centuries. In each case, other nobles in and out of parliament backed the king’s actions and gained from them. Strong kings could dominate the parliamentary process because they were popular like Robert I after 1314, ruthless like James II in the 1450s, or cunning and lucky like Charles II after 1660. The strongest even ignored it altogether as James IV increasingly did from 1496. Sometimes the boot was on the other foot. Dissatisfied nobles led parliament in curbing the political freedom of John Balliol in 1295; placing Robert II in enforced retirement in 1384; approving the rebellion against James III in 1488; deposing (in effect) Mary in 1567; and in imposing a new constitution on Charles I in 1641. In each case parliament, led by a noble faction, took action against individual monarchs whose behaviours and policies were regarded by the wider political community as incompetent or tyrannous. It – where the matrix of governmental authority was reconfigured and broadened’, Goodare, Government of Scotland, p. 39.

93

M2287 - BROWN & MAC TEXT.indd 93

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 did not permanently weaken the role of the crown although the 1641 settlement was intended to renegotiate the king’s authority on a permanent basis and, in each case, successor kings recovered whatever power had been lost. It was only with the forfeiture of James VII’s crown in 1689 that a parliament more dominated by the nobility than at any time in its history moved into wholly new territory, and not so much because it made explicit what had been implicit in 1295, 1488, 1567 and 1641, but because it so happened that subsequent Jacobite rebellions failed. The constitutional gains of 1689 were reinforced by the union of 1707 and the Hanoverian succession in 1714. With the powers of the crown curbed for good, eighteenth-century Britain was dominated by the nobility, and in Scotland that dominance was more extreme than anywhere else. Until 1832, Scottish electoral politics remained the playground of the great landlords, titled and untitled alike. The fall of individual noble houses, the granting of a taxation that was a little higher than the political community might have preferred, or even the enactment of a law like the ‘act regarding removing and extinguishing of deadly feuds’ in 1598 had no real impact on noble power. That power had deep roots in noble society, in its socio-economic structures and in its ideological values. Throughout its long history, parliament never sought to threaten those interests, and its legislative history is one of support for noble society from inheritance laws to economic privileges. Only in 1747, following the defeat of the Jacobite rebellion, did the parliament of Great Britain dare to attack the hereditary jurisdiction of Scotland’s landed nobility. The Scottish parliament’s record reflected the values of the people who dominated it over these four-and-a-half centuries, strengthening the hold of noble lineages over their landed assets, protecting hereditary juridical authority, and asserting at every opportunity the privileges of rank, privileges that were not only honorific but that preserved real financial and political benefits.

94

M2287 - BROWN & MAC TEXT.indd 94

10/08/2010 16:47

chap t e r 4

The Third Estate: Parliament and the Burghs Alan R. MacDonald

Introduction

A

lthough lacking the political muscle of the nobility (the peerage and the lairds) or the status of the higher clergy (the bishops, abbots and priors), from the fourteenth century until the spring of 1707 the royal burghs were a significant and essential component of parliament. Indeed, for the purposes of parliamentary elections, both to Westminster and to Holyrood, Scotland remains divided into ‘county’ and ‘burgh’ constituencies. In legal theory at least, the burghs are therefore the most enduring element of Scotland’s parliamentary constitution. They have outlasted the hereditary peers and the higher clergy while the county representatives did not become part of the representational system until after 1587, long after burgh commissioners were a fixture in the legislature. Although they rarely concerned themselves closely with the great affairs of state, being more exercised over urban privileges and the regulation of trade, the story of parliament cannot be told without them, for an account of parliament which does not fully appreciate their role would be a partial and misleading one. The Origins of Urban Representation The burghs were latecomers to parliament, the origins of their participation being traceable to the late thirteenth and early fourteenth centuries, by which time English and Iberian assemblies already included urban elements. At this time, all over Europe, there was a growth of ‘community consciousness’, expressed in Scotland in this period in the use of the phrase ‘the community 95

M2287 - BROWN & MAC TEXT.indd 95

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 of the realm’ to underpin political action.1 This extended the understanding of the political community beyond the relationship between monarchs and individual vassals to include corporate bodies, especially towns. In 1296, six burgh seals were attached to the ratification of the Franco-Scottish treaty of 1295 which required ‘the communities of the towns’ to wage war along with the clergy, earls and barons. There must have been urban participation at the assembly which ratified the treaty but there is no evidence that it was a parliament.2 Although burgesses appear to have petitioned parliaments in the 1310s, the first date at which commissioners from burghs are believed to have sat in parliament is 1326.3 The grant of a tax of an annual tenth to Robert I lists the ‘communities of the burghs’ as present while a parliament met at Cambuskenneth although the grant was not actually made in parliament.4 One of the earliest surviving parliamentary summonses dates from 1328. It sought ‘six suitable people from each of the communities of the burghs’,5 a long-winded phrase suggesting that there was no customary urban component in parliament at this time. The request for six from each of the thirtytwo royal burghs implies a potential attendance of up to 192 burgesses.6 Six, however, represents the maximum any burgh could send: some would send only one or two, others none at all. All prelates, barons and freeholders were summoned but not all were expected to attend. As late as the reign of James III, burghs were still being asked to send three or four commissioners.7 Bruce’s parliament of 1328 was another false start for the burghs for they 1. M. A. R. Graves, The Parliaments of Early Modern Europe (London, 2001), pp. 10, 14–16; G. W. S. Barrow, Robert Bruce and the Community of the Realm of Scotland, 3rd edn (Edinburgh, 1988). 2. A. A. M. Duncan, ‘The early parliaments of Scotland’, in SHR, xlv (1966), p. 51; N. A. T. Macdougall, An Antidote to the English: The Auld Alliance, 1295–1560 (East Linton, 2001), pp. 19–20; E. Ewan, Townlife in Fourteenth-Century Scotland (Edinburgh, 1990) p. 147: the burghs were Aberdeen, Perth, Stirling, Edinburgh, Roxburgh and Berwick. 3. Ewan, Townlife, p. 148. 4. Ibid., pp. 148–9; Rait, Parliaments, pp. 240–1; RRS, v, nos 300 and 335. The phrase is ‘tenente plenum parliamentum suum apud Cambuskenneth’. Rait notes that it suggests that burgh commissioners did not sit in parliament. Unawareness of the 1328 summons led him to date the first attendance of burgesses to 1357. See Duncan, ‘Early Parliaments’, pp. 51–3 for another view. 5. RRS, v, no. 563. The Latin is ‘sex personas sufficientes de singulis communitatibus burgorum’. Barrow translated it as ‘six sufficient persons of the various burgh communities’ allowing the interpretation that six representative burghs were enough, as in 1296: Barrow, Robert Bruce, p. 300. 6. P. McNeill and R. Nicholson, An Historical Atlas of Scotland c.400–c.1600 (St Andrews, 1975), map 30. 7. Rait, Parliaments, pp. 269–70, 272.

96

M2287 - BROWN & MAC TEXT.indd 96

10/08/2010 16:47

pa r l iame nt and th e b u r g h s were not summoned in 1331.8 Key to their participation in the 1320s were the taxes of 1326 and 1328, and it was the need for consent for further taxation which secured their place in national assemblies under David II. Burgh representatives probably attended parliaments in 1340 and 1341 where they consented to another tax.9 Although possessing nothing like the wealth of the nobility or the church, and relatively poor in comparison with their European counterparts, the Scottish merchant community was the main source of coin. This was especially useful for the ransom of David II from English captivity and, in the early fifteenth century, the burghs agreed to raise the first instalment of a tax to pay the ransom of James I.10 The survival of more than two summonses from the fourteenth century would make the task of establishing when the burghs became regarded as a normal component of parliament much easier. The starting point for regular burgess attendance is usually given as 1357 yet no parliament actually met in that year. General councils in January and September might have been attended by burgesses and they were ‘almost certainly’ present at another in November.11 Rait tentatively posited 1367 as ‘the first Parliament of Three Estates’ but a true starting point is probably illusory. Burgesses attended a number of parliaments before 1367 and possibly continued to attend only irregularly thereafter.12 Unlike the prelates and magnates, they were summoned ‘for a specific reason’. All were described as having been ‘summoned and called in due and accustomed manner’, however, and Archie Duncan observed that the record ‘makes no distinction in this respect between the other groups and the burgesses’ as early 1366. So, although the ‘specific reason’ clause was retained until 1401, in every instance for which there is evidence of who was there from 1366 onwards, the burgesses were mentioned.13 During the fourteenth century, burgesses became an increasingly normal feature of parliaments, and the uniformity of designation from 1401 was a tardy recognition of that. Regular sederunts do not survive until after the middle of the fifteenth century by which time it would have been unthinkable to have a parliament without burgh commissioners. 8. RRS, vi, no. 480. 9. Duncan, ‘Early parliaments’, p. 52; Ewan, Townlife, p. 149; ER, i, pp. clxii, clxv–vi, 501– 3, 513. 10. RPS, 1424/35. They used connections with Flemish moneylenders to borrow the cash: see Tanner, Parliament, p. 11. 11. Rait, Parliaments, pp. 242–3 12. Rait, Parliaments, p. 246; Duncan, ‘Early parliaments’, p. 52. 13. Duncan, ‘Early parliaments’, p. 53; Rait, Parliaments, p. 247; RPS, 1366/7/1, 1368/6/8, 1370/2/1, 1372/3/1. The Latin phrase was ‘ad hoc ex causa’.

97

M2287 - BROWN & MAC TEXT.indd 97

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 The Nature of Burgh Representation Virtually every medieval and early modern European representative assembly included urban representation but the form which it took varied widely. The towns of each country differed in size, status and economic significance; thus, the nature of their participation in representative assemblies was far from uniform. The medieval Cortes of Castile had three chambers but, by the sixteenth century, the nobles and clergy had ceased to attend, the former having achieved tax exemption, the latter having a separate ecclesiastical assembly. This left only thirty-six procuradores from the eighteen royal towns. In neighbouring Aragon and in Sweden, Denmark and Norway, the urban element constituted one of four houses although Norwegian towns were small and few by European standards. In Hungary, England and Ireland, urban representatives shared a house with non-noble landowners.14 In Scotland, the burghs sat in a single-chamber parliament – of three estates until 1587 when a fourth (shire commissioners) was introduced, although the abolition of bishops in 1639, their restoration in 1662 and their abolition again in 1689 meant that, in the seventeenth century, there were sometimes three and sometimes four estates. To send a commissioner to parliament, a burgh had to be ‘royal’: it required a crown charter erecting it into a ‘free’ burgh with no overlord except the king. This was similar to the situation in Castile and in the Czech and Moravian diets.15 Yet Scotland’s royal burghs were unusual, if not unique, in having exclusive economic as well as political privileges. They had a monopoly on foreign trade and everyone within a defined area, the burgh’s ‘liberties’, could buy imported goods and sell things for export only in that burgh. In return, as a tenant-in-chief of the crown, each burgh had to contribute to national taxation. In spite of most parliamentary burghs being ‘royal’, Scottish kings did not have exclusive power to grant parliamentary status, unlike the process of ‘enfranchisement’ by which English boroughs entered parliament.16 Before the sixteenth century, evidence for how parliamentary status was gained 14. Graves, Parliaments of Early Modern Europe, pp. 31, 162–4. 15. K. J. Dillon, King and Estates in the Bohemian Lands 1526–1564 (Brussels, 1976), pp. 10–11; I. A. A. Thompson, Crown and Cortes: Government, Institutions and Representation in Early Modern Castile (Aldershot, 1993), ch. viii, pp. 1–2; M. F. Metcalf, The Riksdag: A History of the Swedish Parliament (New York, 1987), pp. 50, 93–4; E. Prestage, The Royal Power and the Cortes in Portugal (Watford, 1927); J. Mallek, ‘Estates assemblies in Norway in the sixteenth and seventeenth centuries’, in Parliaments, Estates and Representation, xxi (2001). 16. A. D. K. Hawkyard, ‘The enfranchisement of constituencies, 1504–1558’, in Parliamentary History, x (1991); Graves, Parliaments of Early Modern Europe, p. 164 misleadingly describes the burghs as ‘directly under royal control’.

98

M2287 - BROWN & MAC TEXT.indd 98

10/08/2010 16:47

pa r l iame nt and th e b u r g h s is lacking and only in the fifteenth century did a clear distinction emerge between royal and other burghs but paying a share of parliamentary taxation was probably the key.17 It is not possible to produce an exhaustive list of which burghs attended parliament because many sederunts do not survive. During the fourteenth and fifteenth centuries, all burghs holding directly of the crown were probably summoned, as was the episcopal burgh of St Andrews.18 Before the Reformation, the ecclesiastical burghs of Arbroath, Brechin and Glasgow also sent commissioners to parliaments and conventions of burghs, and paid a share of national taxation.19 Forty-one were listed on a tax roll of 1535 and the twenty-six which were later added to their number applied for admission and produced a royal charter of ‘erection’ before being allowed to join the convention of burghs and, by extension, parliament.20 Thus, by the middle of the sixteenth century, the final say regarding which burghs sent commissioners to parliament lay not with the crown or parliament but with the convention of burghs.21 This persisted throughout the seventeenth century, with Wick and Stranraer being excluded for seventy years after obtaining crown charters.22 By contrast, others moved swiftly from charter to parliament: in June 1700, Campbeltown became a royal burgh and in October its commissioner sat in parliament.23 The four ecclesiastical burghs were not the only exceptions. Although not tenants-in-chief of the crown, Kirkcaldy, Dunfermline, Dysart and Kilrenny (all in Fife) entered parliament in the later sixteenth century. The first three lay within the regality of Dunfermline of which Anne, James VI’s queen, was feudal superior. This might have justified ‘royal’ status yet all three had been taxed in 1535 and Dunfermline sent a commissioner to parliament before Anne obtained the superiority. It had also sent commissioners to the convention of burghs since 1555, as had Kirkcaldy since 1574.24 The crucial factor was taxation: they had begun to contribute a share so they had the right to enter parliament. Kilrenny was a genuine anomaly. 17. Ewan, Townlife, pp. 144–5, 147. 18. Another ecclesiastical burgh, Brechin, first attended in 1479: G. S. Pryde, The Burghs of Scotland: A Critical List (Oxford, 1965), no. 77. 19. T. Pagan, The Convention of the Royal Burghs of Scotland (Glasgow, 1926), p. 27. 20. Pagan, Convention, p. 28. 21. A. R. MacDonald, The Burghs and Parliament in Scotland c.1550–1651 (Aldershot, 2007), ch. 1; J. D. Mackie and G. S. Pryde, The Estate of the Burgesses in the Scots Parliament (St Andrews, 1923), p. 54. 22. Pryde, Critical List, nos 63, 71. Wick became a royal burgh in 1589 but did not attend parliament or convention of burghs until 1661; Stranraer was elevated in 1617 but was excluded until the 1680s. 23. Pryde, Critical List, no. 80. 24. Ibid., nos 3, 67, 78.

99

M2287 - BROWN & MAC TEXT.indd 99

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 Its feudal superior persuaded the convention of burghs in 1592 that it had obtained a royal charter which had received parliamentary confirmation. So, although Kilrenny was not a royal burgh, it was enrolled by the convention in error and obtained parliamentary representation.25 In contrast to non-royal burghs obtaining entry to parliament, some royal burghs were denied access. Earlsferry in Fife became a royal burgh in 1589 but never sent commissioners to parliament or the convention of burghs. In 1590, it was refused entry because of ‘the inhabilitye of the said toun’: the convention of burghs had excluded it from parliament.26 Evidence for early elections of commissioners is lacking. No burgh council records survive before the end of the fourteenth century, and the earliest reference to election comes from Aberdeen in 1437 when the burgh council resolved that, ‘Commissioners to parliament and general councils . . . should be elected by the whole common council of the burgh and their reasonable expenses should be paid by the said council.’27 Although a form of popular election of councils prevailed until it was outlawed in 1469, Aberdeen’s intention in 1437 was that commissioners would be chosen by the council alone. Yet, as late as 1557, Aberdeen’s commissioners were still being elected by ‘the haill counsell, with ane gryt part of the communitie’.28 The statute of 1469 sought to replace popular election with a system whereby outgoing magistrates and councillors elected their successors. When the evidence becomes fuller during the sixteenth century, election by the council alone was the norm, as was the case in Spain and Italy but in contrast to England.29 So it was not the burgh that was represented and, after 1469, not even the whole merchant community but a narrower group of merchants which dominated most burgh councils.30 However they were elected, until the early seventeenth century some burghs chose two or more commissioners, both of whom sat in parliament. Sending one was cheaper and more common but, as late as 1617, seventeen or eighteen sent two. In 1621, a new pattern of two commissioners from Edinburgh and one from every other burgh was established. As the capital 25. A. R. MacDonald, ‘“Tedious to rehers”? Parliament and locality in Scotland c.1500– 1651: the burghs of north-east Fife’, in PER, xx (2000), p. 38; Pryde, Critical List, no. 66; Pagan, Convention, pp. 31–2. 26. RCRBS, i, p. 326. 27. J. Stuart (ed.), Extracts from the Council Register of the Burgh of Aberdeen (4 vols, Aberdeen, 1844) [Aberdeen Extracts], i, p. 394. 28. RPS, 1469/19; Aberdeen Extracts, i, p. 306. Some persisted with poll elections for magistrates into the seventeenth century: see, Angus Archives, Montrose Burgh Records, Council Minutes M1/1/1 (unfoliated), 2 October 1617. 29. Graves, Parliaments of Early Modern Europe, pp. 72, 171–2. 30. MacDonald, Burghs and Parliament, ch. 2.

100

M2287 - BROWN & MAC TEXT.indd 100

10/08/2010 16:47

pa r l iame nt and th e b u r g h s and by far the wealthiest burgh, this was analogous to London’s four MPs at Westminster.31 The reasons for the change are obscure: no act of parliament, privy council or convention of burghs ordered it in advance although an act of the convention of burghs in 1625 confirmed the new arrangements.32 This reform of burgh representation may have reduced the strength of the third estate and it was further eroded in 1640. The abolition of bishops in 1639 meant that burgh commissioners could almost outvote the other estates. Since 1587, each shire had had one vote although most could send two commissioners. In 1640, probably to prevent the politically and financially weakest estate from dominating the assembly, it was enacted that each shire commissioner would have one vote, almost doubling their strength at a stroke. The effects were harmful to the burghs. In 1649, they unsuccessfully resisted a reduction in interest rates: with fifty-two commissioners, compared to sixteen nobles and twenty-six shires, they would have outvoted the other two estates before 1640.33 The doubling of shire votes marked the end of the heyday of the burghs in parliament. Their estate, frequently the biggest since the later sixteenth century, grew only marginally as those of nobles and lairds increased significantly in the later seventeenth century. There were few new creations of royal burghs and, in 1690, the number of shire commissioners was increased.34 Before 1650, many baronial burghs sought elevation to royal status and admission to the convention of burghs and parliament. After 1660, it became easier to circumvent the royal burghs’ monopoly on overseas trade, so there was little to be gained from gaining entry to parliament. That the royal burghs pressed only for the others to pay a share of taxation, rather than seeking the expansion of their parliamentary estate, is puzzling.35 Had the wealthier baronial burghs been granted parliamentary status, it would have reversed the erosion of their trading privileges and restored their parliamentary strength. Collectively, the burghs might have feared the consequences of a rapid expansion of those legally conducting international trade. Excessive noble influence on a large number of recently elevated baronial burghs might 31. RPS, 1617/5/7 (Stirling commissioned two in 1617 but was recorded as represented by ‘Jhonne Williamesoun and’ so it is uncertain if both attended: see Stirling Council Archive, B66/20/1, 26 May 1617); Rait, Parliaments, pp. 272–3; Graves, Parliaments of Early Modern Europe, p. 172. 32. RCRBS, iii, p. 193; but cf. Mackie and Pryde, The Estate of the Burgesses, pp. 7–8 where a case is made for this arrangement dating from 1578. 33. D. Stevenson, ‘The burghs and the Scottish revolution’, in M. Lynch (ed.), The Early Modern Town in Scotland (London, 1987), pp. 169–70; RPS, 1649/5/2. 34. Rait, Parliaments, pp. 235–6. 35. RCRBS, iv, pp. 139–41, 302–3, 345–6, 351–2, 356–7.

101

M2287 - BROWN & MAC TEXT.indd 101

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 also have been a worrying prospect. Individual royal burghs close to rising baronial burghs might have faced further erosion of trade if the latter were admitted to convention and parliament. All these considerations were enough to dissuade convention from what would surely have benefited the estate as a whole in the long term. In spite of the restriction imposed from 1621, many continued to send more than one commissioner. In 1633, the convention of burghs forbade the practice: on 14 June, Andrew Watson returned to Burntisland to inform his council that, although he and William Meiklejohn had been elected, ‘thair will not be ane commissione acceptit and receavit at the parliament quhilk containis any ma commissionaris namis bot one thairintill’. Accordingly, Watson became sole commissioner.36 After the Covenanting revolution, however, multiple commissions were resurrected to tackle lengthening sessions. As merchants first and foremost, commissioners could not allow parliamentary business to interfere unduly with their business activities. Thus, a system developed whereby two or three were chosen with the explicit intention that they would sit by turn.37 Electing several also allowed replacement in case of illness. After the Restoration, with greater central control over the membership of parliament being sought, this practice ceased. In 1662, special permission was required to allow Edinburgh to change its commissioner during a session.38 The convention of burghs repeatedly sought to ensure the enforcement of regulations relating to who could represent burghs to ensure that commissioners remained true urban delegates, unlike in many other countries.39 In 1579, it was enacted that all commissioners to parliaments and conventions of estates should be free merchants and guild brothers. Anyone else would be expelled and the burgh which sent him punished.40 Further acts in subsequent years modified and strengthened the regulations. That the burghs took this seriously is demonstrated at the convention of 1600 at Kinghorn, where Dunbar was ordered to explain its failure to comply with the act of 1579 in sending to a convention of estates an unqualified person who voted against agreed burgh policy.41 In the later seventeenth century, the burghs continued to enforce the rules of residency and status, in spite of an attempt by some to disregard them. 36. NAS, Burntisland Council Minutes 1631–1637, B9/12/6, ff. 53v, 54v–55r. 37. See, e.g., NAS, Burntisland Council Minutes August 1646–January 1653, B9/12/9, p.110; NAS, Linlithgow Town Council Minute Book 1640–1659, B48/9/2, pp. 278, 357; Dundee City Archives [DCA], Council Minutes, vol. iv, 1613–1653, f.190r. 38. RPS, 1662/5/58. 39. Graves, Parliaments of Early Modern Europe, pp. 172–4. 40. RCRBS, i, p. 75. 41. Ibid., ii, pp. 74–5.

102

M2287 - BROWN & MAC TEXT.indd 102

10/08/2010 16:47

pa r l iame nt and th e b u r g h s In August 1674, the convention of burghs received a letter from Charles II noting the recent ‘innovation’ of electing commissioners ‘who are not actuall residenters’. He ordered them to ‘tak speciall care that your antient acts concerning this matter may be . . . manteined’. The response of the convention was partly motivated by pique at the erosion of royal burghs’ privileges in the parliament of 1672 and partly related to a general upsurge in opposition after the controversial adjournment of parliament in 1674. The crown’s desire to prevent non-residents from representing burghs was born out of a fear that the opposition, led by William, third duke of Hamilton, might be seeking to strengthen itself in parliament through the burgh commissioners.42 The convention agreed to a reply to the king which claimed that ‘there is no grund from the said acts for declareing the elections of persones who wer not residenters . . . to be invalide’, assuring him that ‘they have been evir allowed . . . as lawfull members in all . . . parliaments’. The commissioners from Edinburgh, Banff, Haddington and Perth protested, the preses refused to subscribe it and another had to be elected in his place.43 The privy council was ordered to deal with those responsible for the reply and, in 1675, it was ‘delett by ane act of burrows’. This convention contained only two of the twenty-three commissioners who had signed the defiant reply of 1674, yet there was opposition again, from five burghs including Edinburgh. The convention asserted that the reply had been written by only a ‘pairt of the burrowes’, and had it ‘expunged . . . out of the records’. Former acts relating to representation were reiterated and the necessity of having ‘ane . . . unanimous bodie amongst themselves making a third distinct estate . . . without being imped [impeded] with persons of any . . . qualitie then [than] of the merchand estate’ was asserted. Anyone participating in the election of an unqualified commissioner would lose the freedom of their burgh, be liable to a fine of 1,000 merks (£666. 13s. 4d.) and every new burgess would have to swear to uphold this act. In 1678, the commissioner to a convention of estates from New Galloway was declared ineligible and, in 1681, the convention sought parliamentary ratification of their act of 1675 relating to the eligibility of commissioners.44 They had been successfully leant on by the crown and had fallen into line, yet the desire of some burghs to send non-resident commissioners remained, probably because of the economic difficulties they faced. Those who objected to toeing the royal line in 1675 argued that being 42. G. MacIntosh, The Scottish Parliament under Charles II, 1660–1685 (Edinburgh, 2007), pp. 145–8. 43. RCRBS, iii, pp. 639–42. After 1660, the ‘moderator’ of the convention was called the preses (president). 44. Ibid., iv, pp. 9–10, 26; NAS, Beil Muniments, Minutes of the Convention of Estates 1678, GD6/1108, f. 24. I am grateful to Gillian MacIntosh for this reference.

103

M2287 - BROWN & MAC TEXT.indd 103

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 debarred from electing non-residents would ‘render this state insignificant in parliament in regard most of the burghs . . . either are not able to maintain a commissioner of have not a man capable of that trust’.45 After 1690, laxity re-emerged but the response of the convention of burghs changed. In 1699 and 1700, acts stated that commissioners to conventions of burghs must be resident in the burgh or be ‘ane member representing the said burgh in the current parliament’,46 implying that it was unnecessary for commissioners to parliament to be resident merchant burgesses. In 1702, the distinction between the qualification for commissioners to parliament and conventions of burghs became firmer. It was enacted that only resident merchant burgesses or those with property in the burgh worth at least 3,000 merks (£2,000) could go to the convention of burghs but no such stipulation was made for parliamentary commissioners.47 There is no doubt that lairds often represented burghs – Menzies of Pitfodels from Aberdeen, Scrimgeour of Dudhope from Dundee and Learmonth of Dairsie from St Andrews. Yet this was not the carpetbagging which went on in English boroughs where, during the fifteenth century, an ‘invasion’ by outsiders occurred and ‘the residential qualifications . . . were ignored as boroughs bartered away their freedom for a reduced wage bill’.48 As a result of the convention of burghs’ control over membership of parliament, there were no ‘rotten’ burghs into which nobles’ clients could be placed. Roxburgh, one of the foremost medieval burghs, ceased to exist as a result of Anglo-Scottish warfare. It did not become Scotland’s Old Sarum because, there being no burgh, it could elect no commissioner to parliament.49 The lairds who represented burghs were usually merchant burgesses and, with few exceptions, active members of burgh councils who sat in conventions of burghs as well as in parliaments. There is no reason to suppose that they did anything other than represent the interests of their burghs and of the burgess estate as a whole. Before the 1690s, few were elected to parliament without a significant connection to the burghs they represented. Although non-residents were occasionally elected provosts, they rarely became commissioners to parliament. They possibly influenced the election of commissioners and even the way they voted in parliament but there is no clear evidence for that. Recent research has demonstrated that, between the revolution of 1689 and the union of 1707 this changed, however. The court versus country party struggles meant 45. 46. 47. 48. 49.

MacIntosh, ‘The Scottish parliament in the Restoration era’, p. 216, n. 26. RCRBS, iv, pp. 281–2, 305. Ibid., p. 341. M. A. R. Graves, The Tudor Parliaments: Crown, Lords and Commons (London, 1985), p. 73. Pryde, Critical List, no. 2.

104

M2287 - BROWN & MAC TEXT.indd 104

10/08/2010 16:47

pa r l iame nt and th e b u r g h s that nobles sought to maximise their party’s influence by offering candidates to represent smaller, poorer burghs which would have sent no commissioners to parliament otherwise. Still, the period after 1689 did not witness a significant influx of freelance parliamentarians, and many of those commissioners were given instructions to act on behalf of the burghs they represented.50 The Convention of Burghs and the Securing of Legislation The influence of the burghs on legislation largely concerned taxation, trade and urban privilege. This, however, comprised what has been described as an ‘astonishing’ amount of statute.51 Yet, to draw the inference that the burgesses took no interest in other matters would be unwarranted. The bulk of public statute bears no hallmark of a particular estate, and it is too much of an assumption to rule out the full participation of burgh commissioners in the range of parliament’s activities. Legislation was drafted by representative committees of all estates and, before the reign of James IV, when parliament dealt with a heavy burden of legal business, the burghs were represented on parliament’s judicial committees, too. In the medieval court of the four burghs and its successor, the convention of burghs, Scotland had an institution unique in Europe. In no other kingdom was the merchant community organised on a national basis. Indeed, the various powers of the convention of burghs demonstrate one of the most important truths about the nature of royal authority in medieval and early modern Scotland. The monarchy was neither powerful nor wealthy so devolution of administrative, judicial and even political power was unavoidable as well as essential for the health of the body politic. Landowners administered royal justice through baron courts, and burghs did the same within their bounds. The church was, in terms of internal administration, usually left to its own devices, and all three had an ambiguous relationship with the crown. They would acknowledge the monarch as supreme in theory but he did not have the wherewithal to prevent them from exercising their jurisdictions relatively undisturbed. Similarly unusual in European terms was the fact that a set of uniform laws applied to the parliamentary burghs, originating in the twelfth century and borrowed probably from Newcastle in north-east England.52 These laws 50. See D. Patrick, ‘People and parliament in Scotland, 1689–1702’ (unpublished PhD thesis, University of St Andrews, 2002), ch. 3 for details of the election of non-residents and chs 5 and 6. 51. Mackie and Pryde, The Estate of the Burgesses, p. 1n. 52. Pagan, Convention, p. 2.

105

M2287 - BROWN & MAC TEXT.indd 105

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 were overseen by the court of the four burghs which emerged in the later twelfth or thirteenth century and consisted originally of Edinburgh, Berwick, Stirling and Roxburgh (Berwick and Roxburgh, in English hands for most of the fourteenth century, were replaced by Lanark and Linlithgow).53 It was a royal court convened by the king’s chamberlain who was responsible for collecting annual feudal dues from burghs. It heard appeals from burgh courts and arbitrated in disputes between burghs. In 1364, David II granted exclusive trading privileges to ‘our burghs’, a charter that would later be used to set the royal burghs apart from the others.54 In the early fifteenth century, the court ordered that two or three commissioners from each royal burgh ‘south’ of the River Spey should attend. By this time, a clear distinction between royal and non-royal burghs was established.55 It was not until 1487 that something recognisable as the convention of burghs was established by parliament. The act stipulated that commissioners from all burghs should meet annually at Inverkeithing to ‘comoune and trete apoune the welefare of merchandis . . . for the commoun proffit of borowis and to provide for remede apoun scaith. . .sustenit within burrowis’.56 References to the court, or ‘parliament’, of four burghs continue into the sixteenth century so this act may not have taken effect. It was, however, early in that century that the direct relationship between the annual meeting of burgh commissioners and the crown ended as the chamberlain ceased to convene their conventions.57 Some time between 1507, the last recorded ‘court’ or ‘parliament’ of burghs, and 1552, when the first volume of the convention’s surviving records begins, the convention of burghs assumed the form it was to take for the rest of the period. Meetings of burgh commissioners occurred in 1529, 1530, 1532 and, in 1533, commissioners from five burghs amended the statute of 1487 to the effect that the annual convention would be at Edinburgh. Another meeting occurred in 1539 and the next recorded convention is that with which the official records commence.58 That the burgh commissioners at parliament and conventions of estates acted collectively to promote their interests is undoubted, whether formally constituting a court or convention of burghs or not. As early as 1347, a royal 53. APS, i, p. 149 (David I section). What follows is based largely on Ewan, Townlife, pp. 146–7 and Pagan, Convention, ch. 1. 54. RRS, v, no. 316, ‘nostrorum burgorum’. Many royal burghs possessed a copy. 55. C. Innes and R. Renwick (eds), Ancient Laws and Customs of the Burghs of Scotland (2 vols, Edinburgh, 1868–1910), i, p. 156. Five ecclesiastical burghs (St Andrews, Glasgow, Brechin, Dunfermline and Arbroath) shared the royal burghs’ trading privileges. 56. RPS, 1487/10/21. 57. Pagan, Convention, p. 13. 58. Ibid., pp. 13–14, 19–21, 24; MacDonald, The Burghs and Parliament, pp. 5–8.

106

M2287 - BROWN & MAC TEXT.indd 106

10/08/2010 16:47

pa r l iame nt and th e b u r g h s council at Dundee ratified an agreement between the burgesses of Scotland and those of Middelburg in the Low Countries. Ten years later, sixteen seals were appended to an obligation by the burghs to pay their share of David II’s ransom.59 Throughout the rest of the fourteenth century and into the fifteenth century, the parliamentary record contains a smattering of acts relating to trade and commerce, many of which probably had their origins in formal meetings of the court of four burghs, or preparatory meetings of burgh commissioners before parliaments. In January 1467, eight acts relating to the burghs were grouped together in the record, and a spokesman appointed by the burgesses in parliament spoke regarding debasement of the coinage.60 Although the sequence of acts might reflect the tidy mind of a parliamentary business manager, it is tempting to see in it an agreed urban agenda. A similar series of acts in 1487 certainly had such an origin, appearing under the heading ‘The Actis and Statutis that the commissionaris of burrowis desyris to be ratifyit in this parliament’.61 As well as demonstrating collective action, they reveal that the initiative for the act establishing an annual convention came from the burghs, not from the crown, and might indicate a desire for greater independence from the crown. Before the date at which the existing records of conventions of burghs survive, collective action in parliament is evident. After 1552, the task becomes somewhat easier. In 1564, the council of Edinburgh resolved to ask the burghs to send commissioners ‘for ressonying upon the effaris of merchantis before the nixt parliament’.62 In 1570, the first recorded convention immediately preceding parliament met and, eight years later, the convention agreed that the provost of the burgh in which parliament was to meet should inform the others so that matters of common concern could be discussed in advance.63 Between the later sixteenth century and 1707, there is copious evidence for concerted action in parliament on the part of the burghs. In 1571, they resolved to try to secure acts relating to customs, counterfeit coin, taxation, wool exports, the procedures in commissary courts and the size of fish barrels. In 1647, they agreed to persist with a failed attempt to secure an act of parliament against the neglect of burghs’ common lands. In 1681, their legal agent was asked to draw up draft acts on reducing the custom on wine and preventing collectors of customs from trading as merchants.64 Sometimes they were successful, sometimes not. Various strategies were 59. 60. 61. 62. 63. 64.

RPS, 1347/1, A1357/9/3. RPS, 1467/1/1–8; Pagan, Convention, p. 15. RPS, 1487/10/15–22. Edinburgh City Archives [ECA], Council Minutes 1561–1571, SL1/1/4, f. 115r. RCRBS, i, pp. 16, 70. Ibid., pp. 22–3, iv, p. 28; NAS, Burntisland Council Minutes, B9/12/9, p. 66.

107

M2287 - BROWN & MAC TEXT.indd 107

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 employed to maximise their chances. In 1586, the convention voted to meet two days in advance of future parliaments to draw up common policies on which they should vote uniformly, not ‘disaggreand as heirtofoir’. Four years later, it was decided that uniformity should be adopted in relation to taxation as well as trade and commerce.65 In 1612, the council of Tain undertook to abide by ‘quhatsumever thingis our said commissioner dois, conform to uther burrowes’ in parliament.66 The drive to maintain unanimity on matters of collective concern retained prominence over the succeeding century, although it was sometimes interpreted rather too strictly. In 1647, it was noted that the previous year’s convention had enacted ‘that they sould be unanimous . . . in thair voycing in parliament and conventionis of estatis’ but that this had ‘bein by some mistaken and interpret to ane sinistrous sense’ of uniformity on all matters. The convention clarified things by declaring ‘that the said unanimitie . . . is onlie meanit in matteris concerning the priviledge and liberties of burrowis not limiting anie . . . in the friedome of thair voice conforme to thair conscience and knowledge in any uther publict or private busines’.67 In 1662, a convention of burghs reinstituted the practice of meeting two days before every session of parliament ‘to consult upon thair owin particular effairis that ane uniformitie may be keipit amongst themselves’.68 In the following decade, a controversy over who could represent burghs in parliament was resolved by the exclusion of all but resident merchants. This was justified because of the necessity of being ‘ane intire and unanimous bodie’ without which ‘they become divyded and losses their cheiff strenth, which consists in their unanimity’.69 The nobles and lairds usually outnumbered the burgesses who needed all the strength they could muster to promote their common interests. As well as preparing business in advance, the burghs commonly met during sessions of parliament, from at least the reign of James VI, participating actively in the process of drafting legislation. Although such freedom was suppressed in 1621 and 1633, it re-emerged during the 1640s when deliberations by the separate estates became an integral part of the parliamentary constitution.70 After 1660, in spite of the other estates being prevented from doing this, and perhaps because the burghs’ agenda was rarely politically controversial, they continued to meet separately during parliament, drawing 65. 66. 67. 68. 69. 70.

RCRBS, i, pp. 209, 339. Mackie and Pryde, The Estate of the Burgesses, p. 42. NAS, Burntisland Council Minutes, B9/12/9, pp. 78–9. RCRBS, iii, p. 554. Ibid., pp. 649–50. A. R. MacDonald, ‘Deliberative processes in parliament c.1567–1639: multicameralism and the lords of the articles’, in SHR, lxxxi (2002).

108

M2287 - BROWN & MAC TEXT.indd 108

10/08/2010 16:47

pa r l iame nt and th e b u r g h s up draft acts and responding to proceedings in Parliament House.71 In 1685, in an obsequious address to James VII, they reminded him that their loyalty to his predecessors had uniquely secured to them the ‘great priviledge . . . to meett apairt and by themselves as a third state of parliament’.72 Although this was less utilised after the Revolution of 1690, it was to have a final flourish in 1706.73 Individual Burghs and Parliament Commissioners from individual burghs, as well as being subsumed within their estate for the furtherance of common policies, also promoted local interests. Before the sixteenth century, evidence for such activities is thin. This can be attributed to the dearth of medieval burgh records and the fragmentary nature of the parliamentary record for the period before 1466. The first record of individual burghs taking a specific matter to parliament comes from 1370 when a parliament at Perth dealt with a dispute between St Andrews and the merchant guild of Cupar.74 This may have been an appeal from a lower court, however, rather than a case of an individual burgh taking a matter to parliament. In 1490, a statute relating to interest on loans explicitly arose from a supplication from the provost, bailies and council of Perth.75 From the later sixteenth century onwards, there is a significant increase in the weight of legislation which parliament handled. Much of this consisted of private acts by which rights, privileges and property were ratified to individuals and corporations. Among the burghs, Edinburgh took the lead and remained the foremost user of parliament to promote its interests. In 1540, it obtained acts relating to bread, meal and meat markets and the repair of wynds and ruined buildings. Similar acts were obtained by almost every burgh for the remainder of the parliament’s life; one of its last acts of all approved the clearing of a wynd in Stirling.76 The most common act was a general confirmation of a burgh’s privileges by ratification of its royal charter. There was, for example, a spate of ratifications immediately after the Restoration of Charles II when burghs sought to confirm their rights and privileges after over twenty years of political, social 71. E.g. RCRBS, iii, pp. 532–44 (1661). The convention often met during parliamentary sessions. This was repeated in 1663, 1681 and 1706; Mackie and Pryde, The Estate of the Burgesses, pp. 43–8. 72. RCRBS, iv, pp. 50–1. 73. See below, p. 19–20. 74. RPS, 1370/2/41. 75. RPS, 1490/2/26. 76. RPS, 1540/12/74–5, 97, 98, 1706/10/322.

109

M2287 - BROWN & MAC TEXT.indd 109

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 and economic turmoil.77 An attempt to obtain a ratification could lead to some controversy, especially when the process of creating a new royal burgh was involved. By the later sixteenth century, it was normal for a recently elevated royal burgh to take its charter to parliament. Neighbouring burghs would attempt to enlist the support of the rest of the estate and entered formal objections if the act was passed. In 1585, Crail requested the aid of the convention of burghs against the erection of Anstruther Easter. It was unsuccessful and when, in 1587, Anstruther Easter obtained parliamentary ratification of its charter, Crail sought to preserve its eroded privileges by obtaining a ratification of its own fourteenth-century charter and entering a formal protest.78 Ratifications gave stronger legal force to a charter, indicating that parliamentary endorsement was perhaps taken more seriously by the courts than a mere royal grant. The efforts of Pittenweem in 1633 demonstrate the lengths to which a burgh might go to secure an act. It was usual to provide a parliamentary commissioner with expenses to cover the cost of travel and accommodation: in 1621, Ayr’s commissioner spent £74, a relatively high sum but, considering the distance involved, not excessive. In June 1633, Pittenweem borrowed £466. 13s. 4d. ‘to defray the expenses of thair commissionaris this nixt enschewing parliament and perfytting of the Ratification of the said burgh and erection of thair kirk in ane frie paroch kirk in the same’. Discounting his expenses, the additional money was well in excess of any clerks’ fees he might have required and can only have been intended to smooth the paths of the acts in other ways. He was successful in obtaining the ratifications but the loan was not paid off until November 1634.79 Burghs usually sent commissioners with a full and free commission authorising them to ‘treatt, voitt, reasone and concluid in all thingis tending to the glorie of god and weilfare of the kingdome’.80 The principle of delegacy remained significant, however. Commissions commonly mentioned the need to act in the interests of the burghs as a whole and, occasionally, commissioners were charged with specific tasks. Frustratingly, council minute books often merely state that the commissioner should receive a commission and (unrecorded) instructions. A returning commissioner frequently ‘maid repoirt of the dischairge of his commissioun’ and even produced ‘ane minute of the actis concludit at parliament’ with no details recorded.81 Occasionally, 77. RPS, 1661/1. Burghs obtained twenty-three ratifications at this parliament. 78. RCRBS, i, pp. 203–4; RPS, 1587/7/141. 79. Ayrshire Archives Centre, Ayr Court and Council Records 1607–1632, B6/11/4, f. 659r; St Andrews University Library [StAUL], Liber Sessione et Concilii de Pettinwem 1629–1727, B60/6/1, ff. 4v–5r. 80. StAUL, Liber Sessione et Concilii de Pettinwem 1629–1727, B60/6/1, f. 17r. 81. NAS, Burntisland Council Minutes, B9/12/1, f. 80.

110

M2287 - BROWN & MAC TEXT.indd 110

10/08/2010 16:47

pa r l iame nt and th e b u r g h s there are explicit instructions. In 1621, William Meiklejohn from Burntisland was told to ‘disassent to the article proponit at parliament concerning decimas decimarum’ (a tax on interest). Letters were sometimes sent to commissioners at parliament to intimate further instructions and, in 1693, the commissioner from St Andrews was recorded as having ‘sent the minuts weikly which comprehendit all the material things past’.82 Edinburgh was by far the wealthiest burgh so it could prepare more thoroughly and grease more palms. It regularly appointed a committee for ‘the forming of articles to the parliament’ to draft supplications and acts.83 It also had the advantage of being the normal venue for parliament. After the Restoration, its council even established ad hoc committees to discuss matters arising during sessions of parliament.84 Proximity to the seat of government meant that Edinburgh had an unrivalled familiarity with the machinery of power and the people who operated it. Officers of state lived in or near the burgh and were easily accessible if a favour were needed. In 1587, a few days before parliament met, the council noted ‘quhow necessar and proffitabill it may be to the guid toun to haif the guid will and help of my lord secretare to beyth the generall effaires of the estaitt of burrowes and particulare effaires of this burght’. Sir John Maitland of Thirlestane was thus presented with ‘ane half tun of Burdealx wyne and ane pype of sek’. In 1664, Edinburgh obtained a number of acts of parliament, and the burgh council noted that the clerk register had been ‘instrumental in procureing these and uther actis’ as well as drawing up petitions for them, so the provost and bailies were empowered by the council to decide how large a ‘gratification’ he should receive.85 None would have disputed Edinburgh’s pre-eminence but, in an age when status was immensely important, the ranking of the others often led to intense controversy. Parliament was the foremost occasion for public display of status: members rode to parliament, took their seats and voted in order of rank. In the Portuguese Cortes, rank in seating was similarly important but, in the English house of commons, the boroughs (with the exception of London and York) neither sat nor voted in any particular order.86 Explanations for the differences are hard to pinpoint. In England, although the boroughs might have considered rank according to their antiquity and wealth to be important, 82. NAS, Burntisland Council Minutes, B9/12/1, ff. 89v–90r; Patrick, ‘People and Parliament’, p. 107. 83. ECA, Council Minutes, 1573–1579, SL1/1/5, f. 169r; M. Wood (ed.), Extracts from the Records of the Burgh of Edinburgh [Edinburgh Extracts] (13 vols, Edinburgh, 1869–1967), vii, p. 121, ix, p. 34. 84. Edinburgh Extracts, vi, pp. 297, 326. 85. ECA, Council Minutes, 1586–1589, SL1/1/8, ff. 94v–95r; Edinburgh Extracts, vi, p. 346. 86. Graves, Tudor Parliaments, p. 22.

111

M2287 - BROWN & MAC TEXT.indd 111

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 the often tenuous connections which many borough MPs had with their constituencies may have meant that the members were not inclined to press for its recognition. In Scotland, commissioners were councillors, members of the urban community they represented. Also, in the unicameral parliament, the insistence, even the violence, with which nobles sought to maintain their precedence would have easily rubbed off on burgh commissioners.87 Disputes arose at the beginnings of parliaments when the ceremony of the riding of parliament and the downsitting of the house made rank a public matter. Well after the Restoration, burghs continued to protest that they were not given their proper place.88 The greatest status dispute of all was that between Perth and Dundee for second place after Edinburgh.89 The earliest record of the conflict is of a brawl in Edinburgh at the parliament of December 1567, and it dragged on until 1602. In 1580, the convention of burghs noted that the last parliament had remitted the case to the convention but it postponed a decision until its next meeting. Meanwhile, Stirling waded in claiming that, whatever was the outcome of that dispute, its right to third place should not be prejudiced. Perth and Dundee were each asked to appoint three delegates to negotiate a resolution.90 This failed and, in the following year, Aberdeen and Linlithgow joined in, challenging Stirling’s claim to third place. In despair, the convention of burghs returned the matter to parliament, convention of estates or the king and privy council – anyone but them. They just could not face the consequences of deciding in favour of one particular burgh. An interim decision was made in favour of Perth but, in 1587, the dispute resurfaced. The convention of burghs attempted to remit it to the council of Edinburgh which refused the task.91 Eventually, it was settled in favour of Perth, with Dundee being placed third, Stirling fourth and Aberdeen fifth. The Burghs and Parliamentary Politics The participation of burghs in parliaments should not be equated with an avid interest in the high affairs of state. The least politically active of the estates, the burghs ‘seldom exerted direct political power’.92 That is not to say that they were wholly uninterested in high politics. As early as the four87. 88. 89. 90.

MacDonald, Burghs and Parliament, ch. 7. RPS, 1669/10/4. MacDonald, Burghs and Parliament, pp. 168–75. RCRBS, i, p. 84–5; DCA, Charters and Writs, CC1/65 (an extracted act of parliament, November 1581, remitting the case to the burghs). 91. RCRBS, i, pp. 230–2. 92. M. Lynch, ‘The crown and the burghs’, in Lynch (ed.), The Early Modern Town, p. 61.

112

M2287 - BROWN & MAC TEXT.indd 112

10/08/2010 16:47

pa r l iame nt and th e b u r g h s teenth century, the French author of the Chronique des quatre premiers Valois recorded that, in 1369, ‘the good towns’ of Scotland were the most firmly opposed to alliance with England rather than France.93 Since the English alliance would have dispensed with David II’s hefty ransom, thus relieving the burghs of a considerable tax burden, this might seem perverse. That it also involved the potential of an English succession to the throne and an inevitable severance of trading links with Scotland’s ally of over seventy years’ standing, however, were motivation enough. It is never easy to distinguish between high politics and some form of self-interest. For economic reasons, individually and collectively, the burghs tended to oppose major political change, sitting on the sidelines, unwilling to commit themselves to one faction or another lest it failed with potentially damaging consequences. As a result, examples of dynamic political action on the part of the burghs are rare. Another problematic factor is the relative lack of burgh records before the middle of the sixteenth century. Were there a large corpus of records on which to base a study, much more would be known about the level of urban interest in national politics. A recent work on fifteenth-century parliaments noted that, in 1482, ‘For once . . . the political nature of the Lords of the Articles does not end with the first two Estates’ for the burghs chose people hostile to James III.94 At least two of them, Walter Bertram from Edinburgh and Robert Inglis from Dunbar, had strong connections with the foremost opponent of the king, Alexander Stewart, duke of Albany, during the political crisis which culminated with the hanging of some of the king’s closest advisers at Lauder Brig. This incident, however, may be an example of the burghs’ political weakness in the face of noble power rather than genuine urban involvement in national politics. Yet Aberdeen, in 1544, faced with a real political choice, took the defiant option. James Hamilton, second earl of Arran and governor of Scotland for the infant Queen Mary, was vying with a faction opposed to his pro-English policy and headed by Mary of Guise and Cardinal Beaton. In August 1543, Aberdeen was asked by Arran to ‘fortifye and menteyne his authorite’ against his opponents. The ‘maist part’ of the town agreed to do so ‘all in ane voce, nane . . . sayand in the contrar’. In October 1544, Aberdeen received two precepts of parliament, one from Arran for a parliament at Edinburgh, the other from the privy council, supported by the fourth earl of Huntly, for a parliament at Stirling. Aberdeen chose the former. Thomas Menzies, provost of Aberdeen, was head of a family which had, for generations, been keen to keep the earls of Huntly at arm’s length. Alignment with 93. Quoted in Macdougall, Antidote, pp. 6–7. 94. Tanner, Parliament, pp. 231–2.

113

M2287 - BROWN & MAC TEXT.indd 113

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 Arran, an opponent of Huntly, was part of this policy, and it earned Menzies the office of comptroller and a seat on the privy council. It also aligned Aberdeen with an Anglophile foreign policy involving a degree of dalliance with Reformation, both of which were anathema to Huntly. Menzies backed the wrong horse. By January 1545, Arran had abandoned him and the burgh was forced to grant Huntly the freedom of Aberdeen ‘to the effect that he may be abill to accept the office of provestry’ recently renounced by Menzies. In January, Huntly became ‘thair superiour, protectour and provest’. Since he could not be resident in Aberdeen, Menzies was made his depute. Normality was restored but Huntly had made his point.95 A similar attempt by Arran in Perth was equally unsuccessful.96 Noble influence over burghs may have been brought to bear in parliament but clear evidence is lacking before the very end of the period under examination. Close associations existed between the earls of Rothes and Cupar, the earls of Crawford and Dundee and the earls of Gowrie and Perth.97 The relationships were, in most cases, of mutual benefit rather than the exploitation of a subservient town by a mighty magnate.98 For a burgh to have a noble provost was a prize worth pursuing. In 1584, Francis Stewart, earl of Bothwell, was imposed on Haddington by the crown but, even when free elections were restored in 1585, they re-elected him for six years, rarely seeing or hearing from him.99 In 1602, Sir Robert Melville of Murdocairnie declined an invitation to be Burntisland’s provost because the town refused to be thirled to his mills. The burgh council promptly elected Sir George Hume of Spott, crown treasurer and later earl of Dunbar, instead. In 1604, Melville agreed to be provost on the burgh’s terms but, after further disputes, the earl of Dunbar was re-elected in 1606, remaining provost until his death in 1611. Burntisland used its connection at court to the full and Dunbar never came near the burgh.100 In 1609, parliament forbade any ‘bot mercheandis and actuall traffikeris inhabiting within the saidis burghis’ from becoming magistrates.101 Some burghs continued to elect a noble as provost because of the advantages it 95. Aberdeen Extracts, i, pp. 191, 210–14; A. White, ‘The impact of the Reformation on a burgh community: the case of Aberdeen’, in Lynch (ed.), The Early Modern Town, pp. 84–6. 96. Lynch, ‘The crown and the burghs’, p. 59. 97. Ibid., pp. 56–8. 98. See K. M. Brown, ‘Burghs, lords and feuds in Jacobean Scotland’, in Lynch (ed.), The Early Modern Town. 99. NAS, Haddington Burgh Registers, Council Book 1581–1602, B30/13/2, ff. 18v, 26v, 36v, 43r, 50v, 66r. 100. NAS, Burntisland Council Minutes, B9/12/1, ff. 16v–19r, 55, 82v. 101. RPS, 1609/4/27.

114

M2287 - BROWN & MAC TEXT.indd 114

10/08/2010 16:47

pa r l iame nt and th e b u r g h s could bring. Perth persisted until 1628 in electing David Murray, lord Scone, and later viscount Stormont, in spite of attempts by the crown to stop it.102 In matters of trade and urban privilege, it was the policy of the convention of burghs that commissioners to parliament should vote in the interests of the burghs. In other spheres, voting was left to the individual’s conscience. It is possible that nobles directed the voting of commissioners from burghs over which they had influence and, to maintain amicable relations, commissioners were probably glad to oblige. There was no shortage of controversial parliaments during the later sixteenth century and the burghs had a part to play in many of them. The Reformation parliament of 1560 was attended by commissioners from twenty-two burghs. Although less than half of those entitled to send commissioners, it was the highest recorded attendance since 1479.103 The parliament of December 1567, which reissued the religious legislation of 1560, saw twenty-eight burghs represented, equalling the 1479 figure. Virtually nothing is known about what these burghs’ representatives did but it is clear that the third estate turned out in large numbers when a politically important parliament took place. What is also striking about those two parliaments is that burghs were represented which had sent no commissioners for many years. Three (Lauder, Nairn and Tain) were recorded for the first time in December 1567.104 These parliaments, with their unusually high attendances, marked a revitalisation of the estates from the middle of the sixteenth century. The highest recorded attendance of burghs between 1490 and 1558 had been thirteen, with an average of eight. Between 1560 and 1600, the average rose to twenty-two, with peaks of thirty-five and thirty-six in 1579 and 1593 respectively.105 There is no evidence that the crown was seeking to increase burgess attendance; rather, as the crown sought to make parliament increasingly omnicompetent, the burghs felt the need to be represented. Little record of parliamentary debate before the middle of the seventeenth century survives but it is safe to assume that it was rare for burgh commissioners to take a stand on an issue not relating to trade. In 1592, however, William Little, provost of Edinburgh, did just that. Sitting on the committee of the articles, he objected to a royal proposal to restrict ministers’ ‘libertie of speeche’. Addressing the king directly, he opposed the article, saying ‘yee may discharge me of my office if you please, but that I cannot doe’. James 102. Lynch, ‘The crown and the burghs’, pp. 64–5; Perth and Kinross Council Archive, Perth Council Minutes B59/16/2 (unfoliated), 3 March 1628; RPC, first series, xii, pp. 120–1, 142–3, second series, ii, pp. 81, 213–14, 217, 233–6, 254. 103. For these sederunts, see RPS; Lynch, ‘The crown and the burghs’, p. 55. 104. Young, Commissioners, ii, pp. 781–4. 105. Figures based on full surviving sederunts.

115

M2287 - BROWN & MAC TEXT.indd 115

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 asked Little ‘Will yee preferre them [the ministers] to me?’ and he replied, ‘I will preferre God before man.’106 He was not alone, for the proposal got no further; evidence that the articles were not a tool of the crown and that a burgh commissioner could make a difference. The Anglo-Scottish union proposals which James VI set out in 1604 illustrate how self-interest and high politics overlapped. The burghs’ reaction echoes, in some ways, the demands of the junta to Carlos I of Castile in 1520.107 Faced with the prospect of the erosion of their liberties in union with England, the burghs demanded the retention of Scots law, all burgh privileges and separate parliaments.108 The burgh commissioners knew that, in a united parliament, their already feeble voice would barely be a whisper. Aware of their limited strength, they added the vain request that, henceforth, nothing should be concluded in parliament without the majority approval of each estate. This would have brought the Scottish parliament into line with many of its European counterparts. Like the Castilian junta they were to be disappointed. In 1621, the highly controversial ‘five articles of Perth’ relating to changes in worship were put before parliament. Although they were narrowly approved, the crown had to work hard to secure their passage. The burghs were the only estate to register a majority of votes against them, with twenty commissioners voting in favour, seven abstaining and twenty-four opposing. Economic self-interest was not always paramount: a number of the twentyfour dissenters failed to secure private acts as a result of their opposition.109 In the Covenanting era, it has been argued, the politico-religious radicalism which the burgesses demonstrated in 1621 came to the fore again. With the added motivation of having been probably the most heavily taxed sector of Scottish society under Charles I, they were vigorous in opposing the king and in the Covenanting parliaments of the period 1639–51.110 As David Stevenson has noted, most royal burghs did not leap at the chance to rebel in 1637–8. All but a few stood by their boats waiting to see 106. Calderwood, History, v, pp. 161–2. 107. Graves, Parliaments of Early Modern Europe, p. 62. The junta, reacting to the succession of a foreigner to the throne, sought to restore urban privileges in the Cortes which had been undermined over the preceding century. 108. RCRBS, ii, pp. 20–2. 109. J. Goodare, ‘The Scottish parliament of 1621’, in The Historical Journal, xxxviii (1995), p. 41 and Appendix. 110. Lynch, ‘The crown and the burghs’, p. 73; Young, Scottish Parliament; J. R. Young, ‘The Scottish parliament and the covenanting revolution: the emergence of a Scottish commons’, in J. R. Young (ed.), Celtic Dimensions of the British Civil Wars (Edinburgh, 1997); A. Muir, ‘The Covenanters in Fife, c.1610–1689: religious dissent in the local community’ (unpublished PhD thesis, University of St Andrews, 2001), pp. 127–44.

116

M2287 - BROWN & MAC TEXT.indd 116

10/08/2010 16:47

pa r l iame nt and th e b u r g h s which way the wind would blow before setting sail.111 The eagerness with which most subsequently took up the cause would suggest, however, that their reluctance resulted from fear of economic dislocation which revolution would inevitably bring, rather than of royalism. Surviving council minutes do not demonstrate revulsion to the Book of Common Prayer and Canons before the autumn of 1637 but do show a widespread willingness to participate in the ‘commoun caus’ of seeking their withdrawal from November onwards.112 Throughout the Covenanting period, the burghs were prominent in parliament and its revolutionary executive, the committee of estates. On many occasions, they constituted the most numerous of the three estates. In individuals such as James Sword from St Andrews and George Jamieson from Cupar, the burgesses provided some of the most consistently committed Covenanters and were singled out as more enthusiastic than the others on a number of issues. In 1639, they decisively swung a vote in the articles in favour of excluding the king from discussions on parliamentary reform and, when in the later 1640s the Covenanters split between moderate royalists and hardliners, three-quarters of burghs supported the latter. Although that support wavered under the first duke of Hamilton’s Engagement regime in 1648, the radical government which replaced it received strong urban backing. It is hard to be sure of genuine local allegiances in the later 1640s as many councils suffered purge and counter-purge when one faction then another controlled the government.113 This may simply have meant that the burgh community was split between moderates and radicals throughout the Covenanting period, and that the national voice of the burghs depended on who was in power at the centre. The opposition of the burghs to parliamentary union in 1604 resurfaced in 1660 when the political community was discussing the terms on which post-Cromwellian administration should be conducted. In January, General Monck took his army south and secured the recall of the Long Parliament. As enthusiasm for a restored monarchy grew, the Scots did not sit idly by and ‘watch . . . events unfold in England’.114 On 2 February, the day before 111. Stevenson, ‘The burghs and the Scottish revolution’, pp. 167, 178. 112. NAS, Burntisland Council Minutes 1637–1642, B9/12/7, ff. 10–23; NAS, Linlithgow Town Council Minute Book 1620–1640, B48/9/1, p. 395; StAUL, Cupar Court and Council Records, B13/10/2 1626–39 (unfoliated), 13 November 1637–13 February 1638. 113. NAS, Linlithgow Town Council Minute Book 1640–1659, B48/9/2, pp. 274–8; Glasgow City Archives, Council Minutes June 1648–October 1654, C1/1/12 (unfoliated), 13–14 June, 3 October 1648; Stevenson, ‘The burghs and the Scottish revolution’, pp. 181, 185–6. 114. K. M. Brown, Kingdom or Province? Scotland and the Regal Union, 1603–1715 (London, 1992), p. 142.

117

M2287 - BROWN & MAC TEXT.indd 117

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 Monck reached London, a ‘meiting of the noblemen and gentlemen of the schyres’ sought ‘a richt correspondence’ with the burghs. Commissioners from six burghs met with five of the nobles and lairds and agreed nine articles ‘to be considered of by both the respective bodies’.115 Current historiography suggests that the burghs favoured maintaining incorporating union in opposition to the nobles and lairds but this appears to be a misinterpretation of the records of the convention of burghs.116 The fourth of the joint committee’s articles requested ‘That ane way may be thocht upon for uniting the natiouns’ (plural). When the convention of burghs discussed them, this article was removed, while others were amended. The revised articles were then referred back to the joint committee which reinstated the original fourth article. Presumably because of continued opposition from the burghs, however, it was transformed completely by the removal of one letter so that it read: ‘That a way be thought upon for uniting the natione’ (singular).117 What had begun as an attempt to perpetuate incorporating union had become a call for Scottish national unity. When this revision was returned to the burghs, they left the fourth article as it stood, while the nobles and lairds accepted the redrafted articles ‘except the fourth’, compelling evidence that the original version had been theirs, not the burghs’. Had the burghs just ensured the restoration of parliament? It has been argued that the Scots were uninterested in continued incorporating union but, if these nobles, lairds and burgesses had sent a clear message in its favour, Charles II might have been happy to proceed along those lines.118 In contrast, the Revolution of 1688–90 provides an example of the burghs following the lead of others. On 25 December 1688, the day after the privy council voted to address William of Orange, the council of Edinburgh unanimously agreed to draft an address to him calling for ‘ane free parliament for a firme establishing of the protestant religion, the lawes and libertie and propertie of the subjects’; other burghs followed suit.119 Their eagerness was on a par with the enthusiasm with which they had welcomed James VII’s accession in 1685 although that did not set them apart from the fickle and opportunistic 115. RCRBS, iii, pp. 492–503; ‘The sederunt with ane abbreviat of the procedines of the noblemen and Gentlemen etc february and app[ril] 1660’, British Library, Additional MS 23113, ff. 80r–83v; D. L. Smith, A History of the Modern British Isles, 1603–1707: The Double Crown (Oxford, 1998), p. 195. 116. F. D. Dow, Cromwellian Scotland, 1651–1660 (Edinburgh, 1979), p. 259; J. Buckroyd, ‘Bridging the gap: Scotland 1659–1660’, in SHR, lxvi (1987), pp. 12–13; G. Donaldson, Scotland: James V–James VII (Edinburgh, 1971), p. 357. 117. RCRBS, iii, pp. 492–7. 118. W. Ferguson, Scotland’s Relations with England: A Survey to 1707 (Edinburgh, 1977), p. 142. 119. Edinburgh Extracts, viii, pp. 254–6; Patrick, ‘People and parliament’, pp. 99–100, 110.

118

M2287 - BROWN & MAC TEXT.indd 118

10/08/2010 16:47

pa r l iame nt and th e b u r g h s behaviour of the rest of the political nation. Their obsequiousness in 1685 did not save them from high-handed intervention in the election of councils and magistrates after parliament had resisted James’s proposed religious toleration.120 The party of Revolution in 1689 resolved to adopt the innovation of poll elections by all burgesses for commissioners to the convention of estates, perceiving a greater zeal for revolution among the wider community than was present in the recently gerrymandered councils.121 The result was a strongly Williamite tendency among burgh commissioners. Seventeen years later, on 4 November 1706, the first and most significant article of the Treaty of Union was carried in parliament. On the same day, the convention of burghs, comprising representatives of forty-five burghs, appointed a committee to consider an anti-union address presented by John Erskine from Stirling. The committee ‘unanimously agreed’ that an address should be put to parliament, and the convention decided to consider Erskine’s address. They approved it, although apparently only by twenty-four votes to twenty. It was then ‘unanimously caryed’ that the preses of the convention, rather than individual commissioners, should sign it.122 There are various possible explanations for this. Those who opposed the address must have known that subscription by the preses alone would be less impressive than a long list of subscribers. On the other hand, those who supported the address may have had split motives for being reluctant to subscribe it individually. Not only would it reveal that they were barely in the majority in the convention but also individual commissioners who planned to vote in parliament in favour of incorporating union, in spite of having voted to support the address, would have been content not to have their signatures on an address opposing it. Whatever the persuasiveness of the economic arguments in favour of incorporating union, the royal burghs were not convinced.123 Just under onethird of burghs petitioned against the union individually but over two-thirds (forty-five) approved this address, adding further complication to how the number of anti-union petitions should be interpreted.124 In parliament on 4 November, thirty-three burgh commissioners voted for the first article and twenty-nine opposed it.125 Only thirty of the commissioners at the convention 120. RCRBS, iv, pp. 50–1; Patrick, ‘People and parliament’, pp. 86–94. 121. Patrick, ‘People and parliament’, pp. 103–4. 122. RCRBS, iv, pp. 399–402; C. A. Whatley with D. J. Patrick, The Scots and the Union (Edinburgh, 2006), pp. 285–6. 123. Whatley with Patrick, The Scots and the Union, pp. 283–6, discusses the burghs’ ‘fearfulness’ of the dire economic consequences of union. 124. Lynch, Scotland: A New History (London, 1991), p. 313; C. A. Whatley, Bought and Sold for English Gold? Explaining the Union of 1707, 2nd edn (East Linton, 2001), 78. 125. RPS, 1706/10/42.

119

M2287 - BROWN & MAC TEXT.indd 119

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 of burghs also attended parliament. Why had fifteen burghs sent different commissioners? Although not providing a sufficient explanation, the fact that the commissioners from those fifteen burghs voted marginally in favour of the first article of union might indicate that a different sentiment was expressed by their commissioners at the convention of burghs. The convention of burghs mustered twenty fewer burghs than parliament and reached a profoundly different conclusion. Of the nineteen burghs represented at parliament but not at the convention of burghs, twelve voted in favour of the first article and only seven opposed it. Why were the unionists less prominent at the convention than at parliament? Detailed studies of local records might provide an explanation but the increased incidence of carpetbagging after 1690 may have been a factor. If this is borne out, the convention of burghs, perhaps more representative of the merchant community, opposed incorporating union for the same reasons as in 1604 and 1660 while, in parliament, client votes of nobles or the court did not express the merchants’ fears. Intriguingly, John Erskine, Stirling’s commissioner, who submitted the anti-union address to the convention of burghs, voted in favour of the first article of the treaty. Another eight burghs, whose commissioners approved the first article, sent addresses to parliament opposing it. Anstruther Easter sent a petition against the union but its commissioner, Sir John Anstruther, who abstained on the first article, ‘absolutely refused’ to submit it.126 A significant number of commissioners failed to vote according to the views of their councils, some of them contravening specific instructions.127 The burgess estate in parliament voted contrary to the wishes of the burgess estate at large. Conclusion If the Scottish parliament had not ceased to exist, how would the role of the royal burghs have evolved? Would parliamentary reform have occurred and, if so, when and what form might it have taken? Considering the erosion of the royal burghs’ international trading monopoly and the rise of many non-royal burghs in the later seventeenth century, a further increase in the size of the estate of burghs would have been likely. The changing basis for levying taxation (according to valued rent rather than old extent) might have resulted in more pressure for reform of representation, especially considering 126. StAUL, Anstruther Easter Council Minutes, 1691–1749, B3/5/8, pp 15–16. I am grateful to Derek Patrick for this reference. 127. RPS, 1706/10/42 (Ayr, Burntisland, Culross, Cupar, Dunfermline, Inverkeithing, Kirkcudbright and Lanark); Whatley, Bought and Sold for English Gold?, p. 49.

120

M2287 - BROWN & MAC TEXT.indd 120

10/08/2010 16:47

pa r l iame nt and th e b u r g h s the discussions and negotiations over tax between the royal and non-royal burghs on either side of 1700. Such changes could have led to a spate of new royal burghs being created. Had the convention of burghs embraced most of these nouveau riche, the size of the burgess estate in parliament would have grown. On the other hand, the power of the convention of burghs could have been destroyed by the direct entry to parliament of some of these baronial burghs, a development hinted at in the entry of Campbeltown to parliament in 1700, before it was enrolled by the convention.128 Perhaps, however, the royal burghs’ day had passed. Their economic significance in the fourteenth century had gained them entry to parliament in the first place and, until the later seventeenth century, their economic significance ensured that they remained prominent in spite of their lack of political strength. That Campbeltown was the first new post-Restoration royal burgh might indicate that baronial burghs were no longer interested in pursuing elevation. They had prospered without either the obligation to send commissioners to parliament or the burden of parliamentary taxation. Scottish urban representation at Westminster was frozen in 1707 and no new royal burgh was created thereafter.129 Before union, the link between commercial power and political representation had been weakened, and parliament’s demise arrested the evolution of Scotland’s representative system. Piecemeal assimilation of new burghs became impossible, and the gradual eclipse of the convention of burghs as a significant body followed, accelerated by the social and economic changes of the later eighteenth century. Not until the second quarter of the nineteenth century, after 125 years of profound social and economic change, was major reform forthcoming, with the old representative system being swept away and new ‘parliamentary’ burghs created.130

128. Pryde, Critical List, no. 80. 129. Dunkeld was the last new royal burgh (1704) but never took up its privileges. The last effective creation was Campbeltown (1700). See Pryde, Critical List, nos 80 and 81. 130. W. Ferguson, ‘The reform act (Scotland) of 1832: intention and effect’, in SHR, xlv (1966).

121

M2287 - BROWN & MAC TEXT.indd 121

10/08/2010 16:47

chap t e r 5

House Rules: Parliamentary Procedure Alastair J. Mann

T

he link between the political effectiveness of a parliament and the sophistication of its procedures has been made by critics of ‘institutionally underdeveloped’ assemblies, including the pre-1707 Scottish parliament.1 Constitutional commentators, as much as general historians, have developed this strong sense of negativism, from the patriotic unionism of Thomas Craig of Riccarton in the reign of James VI to the detailed parliamentary studies of Robert Rait in the 1920s. The argument, especially in light of the 1689 Revolution, the union of 1707 and eighteenth-century Whiggishness, is often made by contrasting Scotland with England. We are told more advanced parliamentary procedures in Scotland would have more robustly called its government to account. Meanwhile, nationalists like George Ridpath, in the years before 1707, had no trouble expressing their approval of recent parliamentary reforms while declaring the ancient constitutionalism of the estates with procedures that underscored sovereignty and legitimacy.2 Recent source-based studies have, nevertheless, begun to overcome the prejudiced views of many centuries.3 Parliament evolved out of the king’s court where justice was dispensed, 1. K. M. Brown and A. J. Mann, ‘Introduction: Parliament and politics in Scotland 1567– 1707’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707, pp. 5–6. For criticisms of other parliaments according to the criteria of ‘success and failure’ see ibid., pp. 1–5. 2. Thomas Craig, Jus Feudale (London, 1934), trans. J. A. Clyde, i, pp. 88–90; Rait, Parliaments, p. 122; G. Ridpath, An Historical Account of the Antient Rights and Power of the Parliament of Scotland (np, 1703), pp. 38–160; Terry, Scottish Parliament, pp. 103–20. 3. For a summary of the whig historiographical critique since 1707 see C. Kidd, Subverting Scotland’s Past. Scottish Whig Historians and the Creation of an Anglo-British Identity, 1689–c.1830 (Cambridge, 1993), pp. 130–44.

122

M2287 - BROWN & MAC TEXT.indd 122

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e like the Polish Sejm or English House of Lords, and many of its procedures reflected this. For example, parliament was ‘fenced’ at the beginning of each session by the two most important ceremonial officials, the lord lyon king-ofarms and the clerk register, the senior clerk of parliament. Although the court of parliament was ‘affirmed’ in 1431, and no doubt was asserted in similar fashion long before, ‘fencing’ is first recorded in 1475 in what was a declaration to exclude the unauthorised, and to warn against interference in the business of the high court of parliament. It was a call to order and a reminder to respect the court. There was also a bar before the throne at which accused persons would stand, and between this and an outer bar beyond the members’ seats, security and prisoners were the responsibility of the earl Marischal and his guards.4 Parliament remained essentially a court in spite of the early sixteenth-century advent of lords of session and justiciary, and the judicial powers of the privy council. In the course of the fifteenth century, parliament legislated more frequently and handled a growing volume of judicial business. While the latter was mostly devolved elsewhere, the legislative output continued to expand in the sixteenth century. Some of this activity was initiated by monarchs seeking to centralise and standardise administration, revenue-raising and sanctions for breaches of conduct but also by parliamentarians who joined the crown in a slowly accelerating drive to influence the social and economic fabric of the nation. Inevitably procedures were adapted to manage effectively what was a greater range and frequency of business in comparison to thirteenth- and fourteenth-century norms. Procedure Outside: Preparation at Court and in the Country The Scottish parliament was unicameral and its membership was divided into estates, as was the case in Naples or in the French estates general before 1560. Meetings required royal summons and, although monarchs did not attend every day of every session, they were normally personally present. The earliest known example of an individual summons is a royal letter to a sheriff in 1293, summoning him to a colloquium. In 1328, when the major topics were a peace treaty and taxation, the earliest surviving general summons was issued to ‘bishops, abbots, earls, barons, freeholders and six sufficient persons from each of the communities of the burghs’. Such a summons appears to be the norm until individual summonses were restored 4. RPS, 1431/1/1; 1475/1. The security arrangements caused some dispute in 1584 when the king’s own bodyguard trespassed on the marischal’s domain. See RPS, 1584/5/4.

123

M2287 - BROWN & MAC TEXT.indd 123

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 by statute in 1428.5 Thereafter, royal summons proceeded as that initiated in August 1591 for a planned parliament in the following November: James VI, with advice of his privy council, ordained the director of chancery (under the chancellor) to direct precepts of summons, under the great or quarter seal, for proclaiming a parliament to be held at Edinburgh on 20 November, and to require ‘the attendance of all personis quhilkis ar subject to gif vote and presens thairin’.6 Personal summonses were issued to those who attended by hereditary right or office-holding, while sheriffs of counties and councils of royal burghs received the summonses for those who were chosen by election. Such royal summonses gave at least forty days’ notice, a requirement unnecessary for conventions of estates, attendees at which were invited by close letters under the king’s signet or privy seal issued by the king’s secretary.7 To aid the publicity, a proclamation was read at the market cross of Edinburgh and at all head burghs, a procedure dating back to at least the early fourteenth century. The crown had a variety of reasons for summoning parliament, primarily in relation to finance or security, and even when parliament was summoned less frequently, such as in the reign of James IV, the estates were called to approve diplomatic embassies, treaty ratifications, royal marriage negotiations, the forfeiting of rebels and financing and planning of military expeditions.8 In the seventeenth century, religious reforms or Anglo-Scottish union were among the reasons for royal summonses. Nevertheless, more mundane business also required the crown to consult the wider political community. Not much is known about how the agenda was prepared before parliament convened. The membership represented a cross-section of the landed and commercial elements of society who were sensitive to issues affecting property, estate finance and trade. Furthermore, members were magistrates, masters of servants, landlords of tenants, fathers and husbands, and so had a view about the regulation of social policy and family law. The main mechanism for the preparation of the agenda, however, was consultation between the king and his principal officers. Under David II in the late 1360s (over crown revenue and ransom payments), James III in 1473 (over diplomacy and finance) and James VII in 1686 (over toleration for Roman Catholics) there are 5. A. A. M. Duncan, ‘The early parliaments of Scotland’, in SHR, xlv (1966), pp. 43–53; RPS, 1293/8/1; A1328/1a; 1428/3/3. 6. This parliament was continued until January and finally convened in April 1592, see RPC, first series, iv, 668 and 685; RPS, 1592/4/1–210. 7. Rait, Parliaments, pp. 146–7. 8. For a negative view of parliament under James IV (in spite of this activity) see N. Macdougall, ‘The estates in eclipse? Politics and parliaments in the reign of James IV’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560.

124

M2287 - BROWN & MAC TEXT.indd 124

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e signs of a specific royal agenda.9 In addition to the monarch’s main priorities, such as taxation to pay for defence, by the sixteenth century the crown’s agenda came to be summarised in royal speeches and, after 1603, in letters with generalised objectives read out at the beginning of each session. Typical of the latter is the letter by King William in 1698, in which he encouraged ‘effectuall methods for discourageing vice, immorality and irreligion . . . to maintain . . . religion, laws and liberties and presbiterian government . . . and the flourishing of trade’.10 Before 1603, the monarch was normally present to direct and comment on business. For example, the lengthy list of articles (draft acts) proposed by James I at his coronation parliament of 1424, required the king’s personal stewardship and the use of the procedure, first adopted in 1367, of selecting a committee with parliamentary power.11 But throughout the history of the parliament, given the increasing variety of matters under discussion, and frequent minorities and rule by governors and regents, the officers of state developed flexible mechanisms for preparing the agenda. The king’s council, from the mid-sixteenth century the ‘secret’ or privy council, in which sat the officers of state, was normally the place where much of the legislative programme was agreed. It often met during sessions of parliament, both for routine business or, as in the parliament of 1689, to manage military matters during a civil war.12 A century before, James VI was especially fond of calling conventions of estates at short notice to prepare for a full parliament, as he did before the parliament of 1592, though such preparatory gatherings concerned themselves mostly with major legislation. The continuations or prorogations of parliament, such as from 1628 until it finally met in 1633, gave the assembled parliamentary commissioners who carried out the formal continuation (usually a group of privy councillors and officers of state) an opportunity to reflect on the business of the impending parliament.13 9. RPS, 1473/7/4–18; HMC, xv, 8, pp. 90–3; Mann, ‘James VII, King of the Articles’, p. 190. For David II see M. Penman, ‘Parliament lost – parliament regained?’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560. 10. RPS, 1698/7/13. 11. R. J. Tanner, ‘The lords of the articles before 1540: a reassessment’, in SHR, lxxix (October 2000), pp. 190–1. 12. For discussion of the privy council in relation to parliament and government see J. Goodare, The Government of Scotland, 1560–1625 (Oxford, 2004), pp. 128–48; Goodare, ‘The Scottish parliament and its early modern “rivals”’, in PER, xxiv (2004) and Rait, Parliaments, pp. 9–11. 13. No official record survives for the May 1592 convention. A. R. MacDonald, ‘The parliament of 1592’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567– 1707, p. 6; CSP, Scot, x, p. 676; RPS, 1628/9/2. Shorter continuations, such as from July to August 1568, were quite different, RPS, 1568/7/2. At times such commissions

125

M2287 - BROWN & MAC TEXT.indd 125

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 Individuals or corporations could appeal for acts to be considered, or for ratifications of existing privileges. The most common means of achieving this was by written petition or supplication, or even by the submission of a draft act. Corporate petitions on local government and trade emanated from individual burghs and from the convention of royal burghs which, from the early sixteenth century, met immediately prior to sessions and while parliament sat. The church could make recommendations and protests before 1560 but not always successfully – in 1543 the clerical estate protested in vain at parliament’s agreement to allow the Bible in the vernacular, and requested that a provincial council of the Scottish church be called to review the decision. After the Reformation, the general assembly was the main promoter of religious measures outside the crown. In 1581, for example, a commission of the general assembly submitted a shopping list of heads and articles to be considered by parliament. In 1617, even the bishops advised consultation with a wider cross-section of the clergy and with the general assembly before controversial measures were forced through.14 The fact that no general assembly met in the years 1618–38 and 1653–89 left crown-appointed bishops, the consciences of lay members of parliament and the voice of the pulpit as the means to influence the religious agenda. After 1603 policy had to be agreed without the king’s presence, and between the court in London and the privy council in Edinburgh. The officers of state in the two locations carried out the bulk of the preparation, usually the president of the privy council (normally the chancellor), and the king’s secretary in London, aided and sometimes directed by the royal commissioner, specially appointed to represent the monarch in parliament.15 Communication was simplified when Alexander Seton, first earl of Dunfermline, was both chancellor and commissioner in 1612, and John Maitland, duke of Lauderdale, commissioner and secretary from 1669 to 1678. Nevertheless, the failure of the crown to consult adequately over controversial measures is the story of comprised almost equal numbers from each estate, as in 1597 and 1607, but those in 1538, 1568, 1629 and 1639 were mostly nobles and crown officers. A subcommittee of the commission often carried out continuations. RPS, 1538/1–2; 1597/11/1; 1607/3/1–2; 1629/4/1; 1639/8/31/9. 14. RPS, 1543/3/26; T. Thomson (ed.), Acts and Proceedings of the General Assemblies of the Kirk of Scotland [BUK] (3 vols, Bannatyne Club, 1839–45), ii, pp. 544–5. The 1581 parliament enacted various measures in response – see RPS, 1581/10/20–7. Unlike the convention of royal burghs, the general assembly was not an estate assembled. It had lay members as well as clergy. 15. Not until after 1660 were royal commissioners present at conventions of estates when distinctions between conventions and parliaments declined. The separate post of ‘president of the council’, as distinct from the chancellor, existed 1628–33, 1661–7 and 1689–92. At times, due to absence, others presided, especially the lord treasurer.

126

M2287 - BROWN & MAC TEXT.indd 126

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e Scotland’s seventeenth-century parliamentary history, as royal absenteeism put pressure on political networking and effective consensus-building. Even James VI suffered from this to a degree after 1603. The typically short sessions before the Covenanting revolution made it impossible for commissioners and king to communicate during a session. This left officers of state to report to the king on proceedings which, for example, the earl of Melrose did in 1621 when he was the king’s secretary.16 The continuation after 1603 of the procedure whereby royal assent was conveyed by the monarch touching acts with the sceptre (and by the royal commissioner in the monarch’s absence) necessarily limited the ability of the crown to respond flexibly to changing circumstances, and occasionally parliament took matters into its own hands, as when in 1604 an act was passed to exclude the church from Anglo-Scottish union negotiations.17 After 1638 communications were transformed as the parliament wrote letters to the king to express its mixed messages of loyalty and grievance, and, indeed, as Alan MacDonald has observed, one of the continuities of the Restoration was that parliament continued to communicate directly with the king. The constitutional relationship had altered in a subtle yet significant way.18 After the Restoration normal service was resumed in terms of officers of state agreeing an agenda with the king but procedures for planning sessions were tightened. The parliament of 1661 was not, however, the watershed. In the ‘billeting affair’ of 1662 the commissioner, the first earl of Middleton, as part of the process of agreeing a general indemnity for those with mixed records of loyalty in the Covenanting period, engineered a secret ballot in parliament as a means to remove from power Secretary Lauderdale and his allies. Consequently, Charles II and Lauderdale realised that much tighter control of the agenda was necessary. The longer meetings of the estates also facilitated some communication during sessions. Once Lauderdale combined the positions of commissioner and secretary in 1669, a new system of private and public instructions was established whereby the monarch set clear policy objectives and allowed some freedom of manoeuvre for his commissioner. The highpoints of royal direction, however, were the sessions of 1685 and 1686 when James VII’s commissioners, William Douglas, first duke of Queensberry and Alexander Stewart, fifth (Stewart) earl of Moray, were inundated with lists of measures. 16. State Papers and Miscellaneous Correspondence of Thomas, Earl of Melrose (2 vols, Abbotsford Club, 1837), ii, pp. 411–16, 421–7; RPS, 1621/6/1–133. 17. RPS, 1604/4/21. 18. A. R. MacDonald, ‘Chancellors, presidents and speakers: presiding officers in the Scottish parliament’, in P. Seward (ed.), The Speakers and the Management of Business (London, 2010).

127

M2287 - BROWN & MAC TEXT.indd 127

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 Following the Revolution of 1689 a further gear-change was made in this consultative procedure. The abolition of the lords of the articles (the drafting committee), and heated debate over the nature of the religious settlement (when the monarch wished moderation and presbyterians wanted revenge), made parliament difficult to control. Added to this were the disadvantages of managing business through two secretaries of state. A system of joint secretaries had been introduced in 1680 after the forced retirement of Lauderdale but it was in the period of 1692–95 when John Dalrymple, master of Stair, and James Johnston were co-secretaries, two incumbents who despised each other, that political management stumbled. Nevertheless, Johnston took a firm grip of preparation for the session of 1693, both to embarrass his rival and to handle better the session that followed the Glencoe massacre of February 1692, in which Dalrymple was heavily implicated. While informal soundings were taken among the political elite much earlier, as they were in 1669, in 1693 Johnston created a three-part formal system for drafting the commissioner’s instructions – seeking officer-of-state opinion, party opinion and elite opinion. This new consensual approach was essential as party politics increased in a parliament now without the controlling features of the lords of the articles.19 Therefore, until 1706, when instructions were given to the last commissioner, James Douglas, second duke of Queensberry, this new system of agreed draft instructions, followed by public and private instructions, was the main managerial device that confirmed crown objectives, even though the court did not always get its way. Preparations for parliament demanded the compilation and registration of petitions as well as the working out of the agenda. Subjects had the right to an audience with the king or, that not being practical, to appeal by petition, and it was necessary for parliament to put in place procedures to handle petitions, both private and corporate, before and during sessions. The norm was for the clerk register to collate them before the session, and for him to present them to the lords of the articles once the committee had been selected. There were also times when petitions were made during the session. By 1594, these had become so numerous that a pre-session vetting committee, with its own register, was proposed although the register has not survived and there is no evidence that such a body ever sat. Indeed, for the 1600 parliament the king’s lieges were invited to pass on any supplications directly to the articles for consideration. Subsequently, no specific effort was made to invite supplications once parliament had commenced although that did not stop them appearing, 19. A. J. Mann, ‘Inglorious revolution: administrative muddle and constitutional change in the Scottish parliament of William and Mary’, in Parliamentary History, xxii (2003), pp. 134–40.

128

M2287 - BROWN & MAC TEXT.indd 128

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e with the clerk register acting as the appropriate conduit.20 Such petitions often came in the form of ‘articles’ or draft acts and, after the Revolution of 1689, it became ever more common to print these as ‘overtures’, though ‘overture’ was a term that ranged in meaning from a mere suggestion to a full draft act. Following the restoration of the monarchy, various committees considered petitions. In 1661 the committee for bills and trade performed this role before the lords of the articles were restored. At least from 1670 a subcommittee of the articles reviewed petitions, and it was made clear in 1681 that they were not to be submitted to the whole house without this vetting procedure. After the Revolution of 1689 matters did not immediately change, with parliamentary committees taking over from the articles, yet without consideration of petitions by the whole house. From 1693, however, they were considered by the whole house before being remitted to committee for closer examination and, from 1703, petitions or draft acts were reviewed by the whole house, as they had been from 1639 to 1651, with pressure being exerted to set aside more days for private matters.21 In this respect, at least, the procedural reforms for petitions followed other procedural developments such as commissioners’ instructions. As the weight and complexity of business grew, reforms were required, though in changing political circumstances where committees were increasingly distrusted. Once royal summonses had been issued and royal proclamations made, burghs and shires could set about electing their representatives. Representatives of the burghs are known to have been present since at least the general council of 1296 and the parliament of 1328 but the early methods of selection are obscure. The earliest known recorded burgh election concerns Aberdeen in 1437 where the formula that commissioners ‘be elected from the whole common council’ is made clear. From the fifteenth century, at least, burgh members were chosen before each parliament was summoned. For the post-union parliament of 1604–6, James VI temporarily applied the English system whereby the current members continued when a parliament was adjourned but it was only after the Restoration, bringing more frequent multiple sessions, that this became a common feature.22 The mechanism for electing burgh members was apparently straightforward – the councils of royal burghs selected one of their number although, 20. RPS, 1594/4/39; 1600/11/6; A. R. MacDonald, ‘Uncovering the legislative process in the parliament of James VI’, in Historical Research (forthcoming). 21. RPS, 1661/1/53; c1670/7/10; A1681/7/5; 1690/4/37; 1693/4/83; 1695/5/39; 1696/9/26; 1703/5/55 and 1705/6/76. 22. Duncan, ‘Early parliaments’, pp. 51–2; MacDonald, Burghs and Parliament, p. 32; Rait, Parliaments, pp. 219–20.

129

M2287 - BROWN & MAC TEXT.indd 129

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 occasionally, there were additional electors, such as the previous year’s council, or a wider endorsement of the burgess and merchant community. By the 1590s this last process had ceased. The system introduced in 1469, whereby the outgoing council chose its successors, ensured a level of continuity in representation, regardless of elections.23 We have little knowledge of heated electoral contests before the Restoration, and it was not until 1669 that parliament introduced a new standing committee for controverted elections as disruptive numbers of disputed elections emanated from the shires. This was a key procedural innovation that enabled relatively public consideration of electoral disputes, although the crown continued to support preferred candidates where it could. In the longer term this fed into a pre-existing distrust of, or anxiety to control, the committee system.24 Only in the mid-1670s did electoral disputes emerge in the burghs. This arose in the changed political atmosphere which saw party politics develop as those opposed to Lauderdale clashed with the court. Lauderdale and Charles II had grown impatient with the opposition at the parliament of 1673–4. In August 1674, a convention of royal burghs objected to Charles’s insistence that only residents with economic interests could represent burghs in parliament, and not a band of politically motivated lairds and lawyers. Therefore, Charles and Lauderdale began a campaign to remove opposition burgh commissioners and to make the convention of royal burghs enforce eligibility rules. The grievances of the royal burghs which, in 1672, saw their monopoly infringed by an act in favour of non-royal burghs, as well as a strike by advocates, came together to increase tensions. A major effort was made by the crown to control burgh elections for the 1678 convention of estates and, after the estates gathered, when disputed or ‘double’ elections were reviewed, to ensure loyalist commissioners were confirmed. Even greater control of the electoral process occurred in 1689 when burgh elections for the convention of estates, which met in March, were managed in an unconstitutional manner. Not only was application of the 1681 Test Act set aside but also, in the wording of the blank commissions circulated by the new regime, ‘the whole burgesses [were] to meet’ to elect a representative, ‘the burgesses and commissioners being Protestants, with no other limitation’. Thus, the entire burgess community became the electorate although, in subsequent elections, normal procedure returned.25 23. Rait, Parliaments, pp. 265–8; MacDonald, Burghs and Parliament, pp. 32–4. The vintage and geographical extent of a more popular electoral process are uncertain. 24. RPS, 1669/10/7. 25. G. H. MacIntosh, The Scottish Parliament Under Charles II (Edinburgh, 2007), pp. 143– 78; D. J. Patrick, ‘Unconventional procedure: Scottish electoral politics after the Revolution’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707; NAS, PA7/25/58/10, 2.

130

M2287 - BROWN & MAC TEXT.indd 130

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e Rait makes a general comment that electoral politics and tight control emerged in the early decades after the union of the crowns. That is indisputable when it comes to shire elections in the years before the 1633 parliament. ‘Freeholders’ had been present in parliament as early as 1318 and ‘lesser barons’ or lairds, who had a technical right to attend as tenants-in-chief, were to be accommodated by James I’s act of 1428 which provided for an elective process to create representative barons. Although this would not commence for 150 years, by the late fifteenth century, the lairds started to appear frequently and in large numbers at the 1556 and 1560 parliaments.26 Finally, under the 1587 county franchise act, commissioners were to be elected. This occurred annually at the first head court after Michaelmas, 29 September, although after 1603 not during a session. When Charles I declared that parliament would meet on 15 September 1628, however, even though it was subsequently prorogued on eight occasions, the early September date was specifically chosen so that a new batch of loyalist shire commissioners could be chosen immediately before the session. Both the privy council and sheriffs, who were responsible for organising the shire elections, ensured that crown nominees were returned in what was a remarkable early example of crown interference, and an under-appreciated factor in the alienation felt by the wider political community before and after 1633.27 From the 1660s, electoral disputes brought before parliament and its committees were mostly over shire elections. Before 1640, shire representatives in the house shared a single vote for each shire. With the retention of individual voting by shire members begun in the 1640s, and franchise changes in 1661 and 1681, increased competitiveness set in. 28 Interestingly, in 1688–9 it was not practicable for the Revolutionary regime to interfere in shire elections as it did with the burghs. The expansion of the shire membership in 1690, however, which first appeared in the session of September that year, created even more possibilities for the ambitious, as well as more by-elections owing to natural causes. The development of contested elections appears to owe its origins to the advent of the shire estate at the turn of the seventeenth century 26. Duncan, ‘Early parliaments’, p. 54; RPS, 1428/3/3; K. M. Brown and R. J. Tanner ‘Introduction: Parliament and politics in Scotland 1235–1560’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560, pp. 25–6; CSP, Scot. i, p. 467, letter Randolph to Cecil, 19 August 1560; J. Goodare, ‘The admission of lairds to the Scottish Parliament’, in EHR, cxvi (2001). 27. RPS, 1587/7/143; J. R. Young, ‘Charles I and the 1633 Parliament’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1700. 28. For a contested case from 1678 see, RPS, A1678/6/3; NAS, GD 6/1108, Biel Muniments, Minutes of the Convention of Estates 1678, f. 3; RPS, A1678/6/11; Young, Commissioners, i, pp. 127–8, 167–8.

131

M2287 - BROWN & MAC TEXT.indd 131

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 and to attempts by James VI to start manipulating elections for the parliaments of 1612, 1617 and 1621.29 Therefore, although James VII and II has a reputation for electoral interference, and looking to do so more aggressively in burghs before he was removed from power, the reality is that Charles I, Charles II and William were just as committed to such expediencies. Procedure Inside: The Chamber and Deliberation With the crown’s agenda agreed, the estates met on the given day in a highly ritualised ceremony known as the ‘riding of parliament’, a largely equestrian procession.30 The ‘riding’ was an ancient opening ceremony that dated back to the fifteenth century, and was carried out wherever parliament met, mostly in Edinburgh from the 1460s.31 The origins of the format are obscure, with most European parliaments having processions but few involving all estates. While grandeur and hierarchy were qualities of the state opening in England, the commons did not participate in the procession. Perhaps the French and English coronation ceremonies had some influence. The time that various monarchs, such as James I and James V, spent outside Scotland may have transplanted ideas of public ritual.32 Essentially, wherever parliament met, a short journey was required from the royal palace or castle to the place of assembly, often within a tolbooth, in effect the home and meeting place of the local burgh council and, of course, from 1639 in Edinburgh’s purpose-built Parliament House. The first mention of a ‘riding’ in the parliamentary record arose in 1587 when an act was passed such that those who failed to attend would be fined. By 1600 the sanctions for non-attendance included larger fines and even loss of voting rights though, later, this was tempered to permit absence for good reason. 29. Royal ‘recommendations’ for shire candidates in 1612 were followed in 1621 by attempts to coerce burghs to elect representatives supportive of James’s church policy. See MacDonald, Burghs and Parliament, pp. 39–43. 30. For summaries and contrasts with the post-1999 parliament see A. J. Mann, ‘The Scottish parliaments: the role of ritual and procession in the pre-1707 parliament and echoes in the new parliament of 1999’, in Rituals in Parliament: Political, Anthropological and Historical Perspectives on Europe and the United States (Frankfurt, 2006) and Mann, ‘Continuity and change: the culture of ritual and procession in the parliaments of Scotland’, in PER, xxix (2009). 31. A ‘riding’ occurred at the beginning (downsitting) and end (rising) of each parliament, but not for every session. Dissolution was required, usually by royal proclamation, before a concluding ‘riding’, and before a subsequent state opening at the next session. The accession of a new monarch automatically led to a general election and a ‘riding’ at the next session. 32. M. A. R. Graves, The Parliaments of Early Modern Europe (Harlow, 2001), pp. 206–9.

132

M2287 - BROWN & MAC TEXT.indd 132

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e Meanwhile, conventions of estates had a more casual ceremonial element, and no formal ‘riding’ took place at their opening and closing, though a procession of carriages could be dramatic enough.33 After security was assured by troops lining the streets, when a full parliament met in Edinburgh, the members gathered at the Abbey Close or square before the palace of Holyrood, and the transport of the honours of Scotland (the regalia) took place from Edinburgh Castle to the palace. Parliament then processed in an agreed order by estate – burghs, shires, lesser nobles and bishops; great nobles and archbishops and officers of state, with limited numbers of retainers on foot; and finally the monarch. Precedence followed that in the parliamentary roll used in confirming attendance, in taking seats in the house and in voting, and there were frequent disputes which had to be resolved by the clerk register. Once the order was confirmed, the members rode up the High Street two by two with trumpeters and pursuivants to usher the way; and bringing up the rear were the honours of Scotland (the sword of state, the sceptre and the crown), each borne by one of the most senior nobles. They were the essential symbolic elements in expressing shared sovereignty and a meeting of king and estates. The constable and marischal went ahead of the procession to open and inspect the Parliament House and to place a guard around it. These officers positioned themselves to welcome the estates as they arrived, the constable seated at the ‘Lady Steps’ of St Giles and the marischal at the door to parliament from where he ushered each to his seat in the given order. It appears that all were in their seats when the honours, along with the monarch or royal commissioner, entered the chamber. All gathered in a traditional ceremonial metaphor that conflated the crown’s desires for preeminence and unity of purpose and the estates’ wish to represent the nation at large, while emphasising the hierarchies within and between estates.34 Our understanding of the internal layout of the chamber is sketchy and it is surprising that, in spite of a reasonable quantity of reportage, the Auchinleck Chronicle describing the 1460s, David Calderwood’s close account of 1621, 33. RPS, 1587/7/26; Rait, Parliaments, p. 397; Maitland Club Miscellany, iii, J. Denistoun and A. MacDonald (eds) (Maitland Club, 1842), pt 1, pp. 104–5; RPC, first series, vi, pp. 168–9. Details of official instructions for the riding survive for parliaments in 1604, 1612, 1633, 1669, 1681 and 1703, see Maitland Club Miscellany, iii, pp. 102–36 for 1600, 1612, 1681 and 1703. For 1633 see NAS, Earl of Airlie Papers, GD 15/15/87 and for 1669 see NAS, Duke of Buccleuch, GD 224/605/1. 34. Maitland Club Miscellany, iii, pp. 131–5 and NAS, Clerk of Penicuik Papers, GD 18/6071. For a discussion of ceremonial and its symbolic resonance see P. Cardim, ‘Ceremonial and ritual in the cortes of Portugal (1581–1698)’, PER, xii (1992). Spalding’s account of 1633 is the only one to suggest that the king sat before the members took their seats, see John Spalding, Memorials of the Troubles in Scotland and England 1624–1645, J. Stuart (ed.) (2 vols, Spalding Club, 1850–1), i, pp. 37–8

133

M2287 - BROWN & MAC TEXT.indd 133

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 and Sir David Hume of Crossrig’s diary of 1700 to 1707, provide almost no helpful detail. Hume’s oft-repeated ‘Prayers said, Rolls called, Minutes read’ is typically anodyne and reflects the blandness of the official record.35 Nevertheless, it is possible to construct a rough impression, knowing as we do that the members sat in estates (see appendix to this chapter for the chamber layout as it changed over time).36 In the 1580s, they sat before the enthroned monarch with the most senior members closest to the king: archbishops and bishops on the right to the front; earls to the left front, with remaining bishops or earls placed further back on each side; lords and greater barons to the left behind the senior earls; burgh members to the right behind the senior clergy and, most interestingly, those small barons attending, who were not yet constituted as the estate of shire commissioners, stood at the back facing the throne. In 1612, with the estate of shires well established, clergy and burghs sat to the right and noble and shire members to the left. After the Restoration, however, the permanent Parliament Hall and the growing number of members altered the layout and closed the horseshoe before the throne: now benches were provided left and right with banks of forms facing an elevated throne below which, on chairs, sat the officers of state. To the right the clergy and more junior earls and lords sat; to the left dukes, senior earls, viscounts and senior lords; and facing the throne were the estates of the shires and burghs, sitting on flat forms, shires on the left side and burghs to the right. Also, by now, three tables were provided in the centre – one for the honours of Scotland nearest the throne, at which sat the marischal and constable; a second table where the lord advocate, secretary of state and clerk register sat with the clerks of the house; and a third table where the lords of session could sit and from which they gave legal advice but could not vote.37 The regulation of a normal day is hardly indicated by the official record or contemporary accounts, and we are not sure how members dressed, though we have hints. We know that members sat wearing their hats and, according to an act of 1641, those who could not vote but attended were expected to sit uncovered. There were to be two sessions every day, one from nine o’clock 35. ‘Auchinleck Chronicle’ in C. McGladdery, James II (Edinburgh, 1990), app. 2; Calderwood, History, vii, pp. 488–98; Sir David Hume of Crossrig, A Diary of the Proceedings in the Parliament and Privy Council of Scotland, 1700 to 1707 (Edinburgh, 1828). 36. What follows is based on the view from the throne, see, J. D. Mackie (ed.), ‘The order of the holding of the court of parliament in Scotland’, SHR, xxvii (1948), 191–3; Thomas Hamilton, ‘Memoriall anent the progress and conclusions of the Parliament haldin at Edinburgh in October 1612’, in Maitland Club Miscellany, iii. Some slight variations were agreed: see, RPS, 1693/4/15 and Spalding, Memorials of the Troubles, i, p. 38. 37. Other accounts vary, see RPS, A1641/7/6; John Spottiswood, The History of the Church and State of Scotland (1677, London), appendix; Mackenzie, Memoirs, p. 143.

134

M2287 - BROWN & MAC TEXT.indd 134

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e until midday (like the English Lords and Commons) and another from three o’clock until six o’clock, except on Mondays (a free day) and on Saturdays, where there was a morning session only, and Sundays. As in England, committees met at eight o’clock in the morning, or even earlier, and also at two o’clock in the afternoon. A ‘great bell’ was rung to call members to meet at the start of each day and a ‘little bell’ rung to mark the hour of dissolving.38 It seems likely that this tintinnabulation continued after the Restoration but, of course, before and after the Covenanting period the existence of the lords of the articles altered the working schedule. With the arrangements put in place during the late fifteenth and sixteenth centuries – where rather than the lords of the articles being a commission with parliamentary power, they increasingly prepared the legislation to be considered by a plenary session at which voting took place – the committee met for full and frequent days while those not on the committee attended meetings of their own estates as they could. This dislocation between meetings of the committee and the full house also occurred to a degree after 1660 when opportunities for voting increased markedly. For example, in the 1685 session of parliament the lords of the articles met on thirty-seven days (at eight or nine o’clock in the morning but not at weekends) and the full house on sixteen days.39 This greater complexity of meetings resulted from both the volume of business and a parliament that scrutinised actively. By the 1690s the house gathered at ten o’clock and the committees at eight o’clock each day although, at times, the house was adjourned for a few days to allow committees time to meet.40 After the Restoration the estates met regularly on Mondays but still persisted with not doing so on Saturday afternoons. Once members were in their seats, the immediate procedures that greeted the beginning of a new session were always a prayer, frequently a short sermon, as in 1617 and 1663, or occasionally a Bible reading, as delivered by Archbishop John Spottiswoode in 1621. After the removal of the clerical estate, one of the ministers of Edinburgh, usually David Blair from 1700 to 1707, delivered a short prayer at the opening and at each day of the session.41 Until 1603, following the brief religious formalities and before the formal fencing of parliament, the commission to those instructed to call a parliament was read. From 1603 the formal commission to the royal commissioner himself was read out. Following this the roll was called and absentees noted, 38. RPS, 1641/7/27; D. L. Smith, The Stuart Parliaments, 1603–1689 (Oxford, 1999), p. 75. 39. RPS, C1685/4/1–40; 1685/4/1–146; A1685/4/1–37. Mann, ‘James VII, king of the articles’, pp. 189–93. 40. RPS, 1690/4/1–5, and see the arrangements made on 14 June 1695: M1695/5/17. 41. Calderwood, History, vii, pp. 249–50, 488–9; O. Airy (ed.), The Lauderdale Papers (3 vols, Camden Society, 1884–85), i, p. 134; Hume, Diary of the Proceedings.

135

M2287 - BROWN & MAC TEXT.indd 135

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 as they were in 1515 for example, and then speeches were given by the commissioner and the chancellor and, if the monarch was not present, his letter was read out.42 Time was then taken up with the taking of oaths, and those who either arrived late or were subjected to a contested election were expected to take such oaths as soon as possible, and before participation in debate and voting. The oath, de fideli administratione, was commonly administered to crown officers and, at an uncertain time, must have been imposed on members. The remarkable coronation oath of 1445 however, whereby, in exchange for the loyalty of the estates, James II declared that he would be ‘loyal and true to God, the church and the three estates’, suggests that, at times, the estates exercised a high level of control over the oath-taking process. Nevertheless, the first known parliamentary oath was introduced in 1641 but, with its referencing of the three kingdoms and the National Covenant, it was replaced in 1661 by an oath of allegiance. Members promised to ‘fathfullie give my advice and vote in every thing shall be propoundit in parliament as I shall answeir to God’, and this appears to have been the form down to 1707. The most basic type of oath remained the oath of allegiance, however, itself taken and subscribed by subjects at all levels though, in the main, only those in positions of authority, including members of parliament.43 From the reign of James VI, oaths represented a means to control elections and parliamentary membership, indirectly limiting those able to take a seat in parliament, such as when oaths of allegiance and supremacy were imposed on burgh officials and benefice holders in the 1570s. The National Covenant of 1638 was the first of a number of prominent political oaths, as was the 1681 ‘Test’ act and oath, enacted when James, duke of Albany, acted as royal commissioner for the last parliament in the reign of his brother, Charles II. The illogicality of an oath which secured the succession for the Catholic James, while providing reassurances to Protestants by including the Confession of Faith of 1567, was commonly recognised but the act delivered wide application of the oath to all in public office (including members of parliament and electors) and a rigid timetable. From 1689, parliament introduced an even more developed regime of oath-taking. Civil war, the threat of invasion and the existence of two kings focused the minds of the estates and King William’s ministers.44 42. RPS, A1515/7/1. Conventions, not being courts, were not fenced. 43. R. J. Lyall, ‘The medieval Scottish coronation service: some seventeenth-century evidence’, Innes Review, xxviii (1977), pp. 9–10; RPS, 1641/8/4; 1661/1/7. 44. RPS, 1681/7/29;1685/4/44; 1689/3/35; 1689/3/108; 1690/4/63; 1690/4/161; 1693/4/50; 1696/9/55; RPS, 1702/6/28; K. M. Brown, ‘Party politics and parliament: Scotland’s last election and its aftermath, 1702–3’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707, pp. 251–2; P. W. J. Riley, ‘The abjuration oath of 27

136

M2287 - BROWN & MAC TEXT.indd 136

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e Appropriate oaths taken, the most pressing matter for parliament was the selection of the lords of the articles. The recent historiographical consensus, that this committee was not completely subservient to the crown, has emphasised the committee’s independent behaviour and its frequent amendment and occasional rejection of legislation. Even the medieval lords of the articles was a committee that neither dominated nor fell under overwhelming crown control. Rait believes that, while the first recorded evidence of a committee of the articles dates from 1424, the idea of such a committee must have stemmed from the weakness of the crown in the reign of Robert II in the 1370s. Indeed, in the first place, such a committee was formed better to control the behaviour of the crown, not to provide a vehicle to dominate proceedings.45 Although this committee emerged out of earlier delegated committees, by the 1450s and 1460s, it was formed to prepare proposals on the coinage and general drafting for final approval by the whole house. This shows that, in the early years, the lords of the articles was a group assigned specific duties under the authority of the house. Subsequently, as the members appeared increasingly to represent the elite of the clerical and noble estates, the crown was unable to exercise significant control and was forced to accept a balanced membership that reflected political realities. In 1473, for example, the house rejected tax and diplomatic proposals made by James III, with the committee acting as a servant of parliament not of the crown. At times, the membership of the committee took on a partisan make-up, as in the sessions of 1488 and 1490 in the context of the coup that brought to power James IV; or subject to factions that limited crown control over membership, as in 1492 or the 1520s. Equally, the committee did not begin to represent a duplication of the privy council until the 1530s, by which time the membership of ‘neutrals’ declined and increased numbers reflected the presence of more royal officers. When James V’s parliament of 1535 took the bold step to give parliamentary power to the committee, however, it conceded committee membership to some two-thirds of those gathered.46 The size of the committee of the articles varied over its history: nine members in 1467 (three of each estate); thirty-eight in 1535, including all six burghs represented in the house; and thirty in 1567.47 From 1603 it was a large committee of forty representative members, which debated and June 1702 in the Scottish parliament’, Parliamentary History, ii (1983); RPC, first series, ii, p. 398. 45. See Tanner, ‘Lords of the articles’; A. R. MacDonald, ‘Deliberative processes in parliament, c.1567–1639: multicameralism and the lords of the articles’ in SHR, lxxxi (2002) and Mann, ‘Inglorious revolution’; Rait, Parliaments, pp. 351–4; RPS, 1424/1. 46. Tanner, ‘Lords of the articles’, pp. 191–204, 208–11; RPS, 1535/2–3. 47. RPS, 1467/10/5; 1535/3; A1567/12/43.

137

M2287 - BROWN & MAC TEXT.indd 137

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 disputed before submitting measures to the full house, and which, in turn, would not automatically accept draft legislation. Latterly, the lords of the articles formed numerous subcommittees to give detailed and conscientious consideration to the increasingly varied parliamentary agenda – for example, in the parliament of 1681 it had no less than twelve subcommittees. In spite of recent more positive views of the committee, James VI and Charles I did apply increasingly tight control on its selection process though with varying degrees of success. In 1606, James VI opportunistically nominated the same members chosen in 1604 in order to select those who had already considered his plans for Anglo-Scottish union, and the estates concurred. Subsequently, in 1612 James reintroduced the sixteenth-century procedure (first recorded in 1525) whereby the estates selected their representatives on the committee but did so by means of instructing bishops to choose from a list of nobles, and nobles from a list of bishops, with these two groups coming together to choose shire and burgh members.48 This procedure was objected to from time to time, especially by the nobility who protested in 1617, 1621 and 1633, and ensured that not every crown nominee made it on to the committee, even in 1612. This helps to explain the suspension of the committee by the Covenanters in 1640. The crown’s belief in the value of this management committee is, however, seen in its revival in 1661 and the affirmation in 1663 of the 1612 method of selection. Furthermore, even though the committee of the articles was abolished following the 1689 Revolution, King William’s vain efforts to engineer its survival show that kings and their officers thought the committee vital while opposition members and those out of power resented its influence over parliamentary business. From the crown’s perspective, managing heated party politics from 1690 to 1707 would have been easier with an equivalent committee. The ex officio right of officers of state to attend and vote in parliament (in addition to those officers who were peers or prelates) emerged during the fourteenth and fifteenth centuries. This small group of ‘lesser’ individuals, often lower clergy and lairds, became more common by the reign of James V and, in the sederunt of 1540, six crown officers are listed including the clerk register and justice clerk. In the last parliament of Queen Mary in 1567, six ‘great’ officers were added to the lords of the articles – treasurer, secretary, keeper of the privy seal, clerk register, justice clerk and lord advocate – and, indeed, from the Reformation a clearly defined and slowly expanding list of ‘great offices’ with ex officio parliamentary membership emerged. An end had 48. Tanner, ‘Lords of the articles’, pp. 208–9; RPS, 1525/7/4. For the minority of James V see K. Emond, ‘The parliament of 1525’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560.

138

M2287 - BROWN & MAC TEXT.indd 138

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e come, in a voting sense, to lesser officers participating although, from the 1690s, some of these were given special right to attend as observers and advisers, as with the judge of the admiralty (1693), the directory of chancellery (1698) and the royal solicitor (1705).49 The administrative machinery of government may have expanded since the sixteenth century but there were limits to the numbers of crown officials the estates would accept as full voting members. From 1617, king and parliament compromised over the number of officers of state permitted to sit as lords of the articles – now only eight could be voting members, attending ex officio. The major officers of state were members of the committee yet their roles differed with regard to parliament. The president, or presiding officer of the parliament, was the chancellor, as was the case in the English House of Lords, and debate was conducted through him. The chancellor carried out this role before and after 1603 though, from 1640 to 1651, the Covenanting parliament asserted its right to elect its own president to which the House of Lords followed suit in 1641 and, although the chancellor sometimes presided, he did not do so ex officio. The Covenanting president also took on some roles in the absence of a royal commissioner, such as the initial declaration of the fencing of parliament, as he did in 1644.50 With the Restoration, however, the status quo returned and in clearly defined ways. As MacDonald has shown, Rait’s suggestion that the roles of commissioner and chancellor were in a constant state of flux after 1603 is far from the truth and, put simply, the commissioner represented the crown, taking the role of the absent monarch, while the chancellor presided.51 Therefore, it was the commissioner who brought with him the crown agenda and, when acts were given royal assent, carried out the procedure of touching with the royal sceptre the version of each act as it had been passed. Equally, it was the commissioner who was empowered to carry out the process of adjournment. Other less senior officers were important to the workings of the estates. The dempster, a position first recorded in 1430, was an official whose job was to read out the judicial ‘dooms’ or verdicts of the parliament.52 The constable, held heritably by the Hay family since 1314, was responsible for the outer security of the parliament, including the doors and keys to the chamber; and the marischal, held heritably by the Keith family since the late twelfth century, maintained order within the house, and took possession of 49. Rait, Parliaments, pp. 173–4, 278–9; RPS, 1540/12/6; 1567/4/3; 1693/4/15; 1698/7/14; 1705/6/20. 50. RPS, 1617/5/11; 1640/6/4; 1644/6/3. 51. Rait, Parliaments, pp. 508–13; MacDonald, ‘Chancellors, presidents and speakers’. 52. Terry suggests that this post first existed in 1445, Terry, Scottish Parliament, p. 76, but see RPS, 1430/54.

139

M2287 - BROWN & MAC TEXT.indd 139

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 the keys to the inner rooms. These two officers were frequently in dispute as to their duties, however, and this was not helped by occasional rulings by the privy council which included in 1606 the decision that the constable’s remit extended to the outer bar of the house, before the actual floor of the house, and the marischal’s from there to the inner bar, at the foot of the throne. Both posts had additional duties from time to time – in the 1570s the constable fenced the parliament, even though that duty was normally associated with the clerk register, and, in 1600, the marischal had the duty of making a security sweep of the rooms above and below the chamber before the members gathered. Underneath these men were junior officials, the constable having a small band of guards and the marischal a team of four macers who kept order on the floor of the house and guarded the honours.53 The clerk register was the crown’s chief clerk and therefore the clerk of parliament. He and his undersecretaries, the six clerks of the court of session who acted as ordinary clerks of parliament, had the duty of recording the business and decisions of the house and, with the chancellor, controlled the order of business. We have seen that the lyon king-of-arms and the clerk register shared responsibility for the fencing of parliament, which appears to have been a procedure where both, in turn, read out the formula. Both officers had responsibility for managing the ‘riding’ at the beginning and end of each parliament, proceedings beginning with the reading of precedency by the clerk register before the lord lyon called out the names to launch the procession in correct order. Importantly, requests for extracts of acts, copies of drafts and finally printed acts were processed through the office of the clerk register. His was a political appointment as well as an official one and, at times, his competence became the subject of controversy when he was a political heavyweight, as was the case with George Mackenzie, viscount Tarbat, in 1692–95, when he incorrectly recorded decisions.54 Other than the lords of the articles, a number of committees was established with specific competence. The history of parliamentary commissions and committees goes back to the fourteenth century when, for example, a commission of 1367 was empowered to act for the whole estates while, in 1370, a ‘committee’ of the house had to report on its decisions to a ‘general

53. Terry, Scottish Parliament, pp. 72–6; RPC, vii, p. 221; Maitland Club Miscellany, III, i, p. 121; ‘Order of the holding of the court of parliament in Scotland’, p. 193. The macers also guarded the honours during the ‘riding’ procession. 54. Mann, ‘Inglorious revolution’, pp. 140–2. Tarbat had been clerk register before the Revolution. The placing of the clerk registership in commission with five people in 1689 had not helped the smooth working of record keeping since and before Tarbat regained sole responsibility.

140

M2287 - BROWN & MAC TEXT.indd 140

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e council’ on the last day it met.55 Subsequently, various commissions and committees were formed with special competencies. For example, in 1450, a committee looked into the codification of the law.56 Various commissions with parliamentary power appeared from time to time until 1707 and, with powers to deliberate between sessions, were a feature of the post-1690 period. These included commissions for the visitation of schools and universities (1690–1702), for the communication of trade (1698–1701), and more significantly for Anglo-Scottish Union in 1702–3 and 1706. Nonetheless, standing committees were rare and, before the 1640s, other than the lords of the articles, none was regular.57 Between 1639 and 1651 the Covenanters introduced a more sophisticated series of committees to cope with the huge demands of warfare and revolution. Both interval and session committees were created anew. These included a session committee of four of each estate set up in 1641 for revising draft acts presented to the house which, along with a committee for bills (petitions) and for ratifications, replaced the lords of the articles but without power to limit what was discussed. The Covenanters’ enthusiasm for committees is seen in the plethora that developed and, for example, for the 1644 session no less than eighteen session committees were created, five judicial, four financial, four executive, three diplomatic and two military. Commissions were given or renewed to eleven interval committees to convene after adjournment. The most significant interval committee was the committee of estates, perhaps not unlike the interval committees of the Cortes of Aragon and Valencia but remarkable for its splitting into two groups, one based in Edinburgh and the other in the field with the army, and for the fact that men who were not members of parliament, such as army officers and additional individuals from burghs, might be co-opted.58 After the Restoration, the return of peace, re-emergence of the lords of the articles and regular privy council meetings combined to end many of these committees. Yet, as we have seen, from 1669, parliamentary committees for controverted elections were regularly established while conventions of estates 55. Rait, Parliaments, pp. 351–4. 56. RPS, 1450/1/21; 1435/2. 57. Rait, Parliaments, pp. 385–92; Terry, Scottish Parliament, pp. 121–4; Brown and Mann, ‘Introduction’, pp. 51–3. 58. RPS, 1641/8/11; 1640/6/42; D. Stevenson, Government under the Covenanters (SHS, 1982), passim; Young, Scottish Parliament, esp. pp. 36, 99–102; A. R. Myers, Parliaments and Estates in Europe to 1789 (London, 1975), pp. 59–65. See also J. R. Young, ‘The Scottish parliament and the Covenanting heritage of constitutional reform’, in A. J. Macinnes and J. Ohlmeyer (eds), The Three Kingdoms in the Seventeenth Century (Dublin, 2002) and Young, ‘The Scottish parliament and the covenanting revolution: the emergence of a Scottish commons’, in J. R. Young (ed.), Celtic Dimensions of the British Civil Wars (Edinburgh, 1997).

141

M2287 - BROWN & MAC TEXT.indd 141

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 created committees for supply that reported to the estates as a whole. Small parliamentary committees considered such questions as the processing of rebels or vetting of ratifications. Following the 1689 Revolution, the final disappearance of the lords of the articles required some counterbalancing of committee structures, just as in the 1640s, and the key standing committees for trade, controverted elections and for security were formed while small committees were established to agree the address to the king and to revise the minutes of parliament. A number of irregular committees appeared from the 1690s, such as that to consider draft acts in 1690, or to consider private affairs in 1695. From 1703, however, matters tended to be considered before the whole house as members were suspicious of the crown’s opportunities to pack committees. Notwithstanding the various committees that existed, we need to ask how matters were debated and deliberated. The tabling of legislation was done though the lords of the articles, either through the clerk register or by royal warrant, the latter after 1603 being delivered by the royal commissioner having been drafted by the secretary of state. We have seen how supplications were considered, either private or corporate, and recent research has shown that the deliberative powers of the articles, a body after all representative of the different estates, were extensive.59 The methods of deliberation were, however, more thorough than the committee of the articles or the final plenary voting procedure. Rait rightly points to the tradition of the different estates meeting separately to consider legislation but research into multicameralism places much greater emphasis on the sophistication of deliberation. In the course of the fifteenth century, separate meetings of the estates became common, especially in discussion over taxation which was levied differentially by estate. Less frequent meetings of parliament in the early sixteenth century, due in part to judicial matters being devolved to the lords of session, saw some loss of momentum in multicameralism. After the Reformation the trend reasserted itself, as the temporary clerical void, the rise of the shire estate with some noble resentment, and the independent-minded convention of royal burghs, reactivated estate identity. The shire commissioners even requested in 1599 the right to hold an annual convention like that of the burghs, though without success.60 Crown attitudes confirm this trend. In 1600, James VI tinkered with the voting system to gain a majority for an unpopular taxation measure in a convention of estates. He declared that six members of each estate should vote and not the entire 59. Tanner, ‘Lords of the articles’, pp. 206–7; MacDonald, ‘Deliberative processes’, pp. 40–4. 60. Rait, Parliaments, pp. 402–3; MacDonald, ‘Deliberative processes’, pp. 27–30; NAS, PA7/1/48; Goodare, ‘Admission of lairds’, pp. 1124–5.

142

M2287 - BROWN & MAC TEXT.indd 142

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e convention, and so secured the desired majority. Also, in 1621, in what was a messy session of parliament at which even the nobility demanded the right to approve all legislation separately, the commissioner declared that separate meetings by estate were forbidden in future. In both the parliaments of both 1606 and 1612 the estates met separately to review legislation, and James’s ministers were finding this irksome and, in a managerial sense, difficult to control.61 Therefore, as a reaction to having no separate meetings in 1633, they were reintroduced with gusto by the Covenanters, and became part of the formal deliberative structure. From 1661 the estates no longer met separately and formally to consider legislation but informal consultation continued, principally through the efforts of the convention of royal burghs which, though much weakened, attempted to establish some consensus across its membership. Even when the lords of the articles controlled affairs, there was extensive consultation among estates and from the committee to the individual estates. A flexible procedural regime should not be mistaken for one that was inherently closed. Other than the combined votes of multiple commissioners from individual burghs before 1621, similar to the combined votes by the shire commissioners before 1640, voting was by individual member not by estate. The evidence of medieval voting procedure is very slim but we do know that members voted individually in 1430, and agreed measures by majority in 1546, and have no reason to believe that matters passed any differently before increasing reportage from c.1560 provides more detailed evidence. There is strong evidence for the medieval estates voting to correct or amend, as in the parliament of 1504.62 The estates sometimes disputed the voting process. In 1586 the convention of royal burghs complained that decisions were made and acts labelled with the preamble ‘by the three estates’ when, as an estate, they had voted against a measure. This rumbled on into 1604 when they proposed that no act pass without the majority of each estate, a novelty rejected by the crown and the house as a whole, and which would have left voting in parliament resembling the ‘logjam’ procedures of the Cortes of Aragon.63 Even though the precise 61. Goodare, ‘Parliamentary taxation’, p. 44; Calderwood, History, vi, p. 491; Hamilton, ‘Memoriall’, pp. 116–17; MacDonald, ‘Deliberative processes’, pp. 32, 37. 62. Rait, Parliaments, pp. 406–7; Tanner, ‘Lords of the articles’, p. 206; RPS, 1430/54; 1546/7/60. 63. RCRBS, i, p. 210; ii, pp. 189–90; MacDonald, ‘Deliberative processes’, pp. 31–4; Myers, Parliaments and Estates, pp. 63–4; Graves, Parliaments of Early Modern Europe, p. 31, see also pp. 162–5, 212.; X. Gil, ‘Crown and cortes in early modern Aragon: reassessing revisionism’, PER, xiii (1993). For a brief consideration of voting see Goodare, Government of Scotland, pp. 29–31.

143

M2287 - BROWN & MAC TEXT.indd 143

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 meanings of voting in the pre-Reformation parliament can only be conjectured, thereafter, when voting did occur, it was oral, not by secret ballot or by lobby. The roll was read in order of precedence and members voted ‘aye’ or ‘no’, resembling the practice of the House of Lords.64 The fact that few voting records survive, there being none in the official record until 1701, has seen commentators doubt that voting was a meaningful activity for most of the life of the parliament. Strong opposition at key moments, however – for example when in 1621 the Five Articles of Perth were voted against by fifty or so members – shows that official record-keeping does not necessarily reflect voting activity.65 Equally, like many other assemblies then or since, not every matter required a division and, if no opposition existed, for example, over ratifications, or if opposition concerns could be accommodated beforehand, acts could pass without voting. The two main reasons forwarded by Rait, Terry and Thomson for the inadequate nature of parliament before 1689 were the ‘thraldom’ to the lords of the articles and the ‘haphazard’ nature of procedure.66 Legislative procedure was not especially haphazard, however, although it was reformed over time. Even the medieval parliament had reasonably effective vetting procedures, as seen in a rare survival from 1504 of some draft acts that were corrected in the lords of the articles and before the whole house. Had more committee minutes or amended draft material survived from the fifteenth century we would expect similar procedures.67 A quantity of surviving draft acts from the 1570s to 1633, in the form of ‘warrants’ not in the main parliamentary record, confirms that acts, private and public, were voted on in the committee of the articles and then in the full house.68 The dates of endorsement at each stage in the process, with amendments confirmed and sometimes written over the draft, show the extent of deliberation. Amendments could even be made on the final day when, in the pre-1640 system, a plenary session met to vote through the legislative 64. The secret and controversial billeting arrangements of 1662 were unique and not replicated before or after. MacIntosh, Scottish Parliament, pp. 43–8. 65. In the case of 1621 the main source is Calderwood, History, vii, pp. 499–510; J. Goodare, ‘The Scottish parliament of 1621’, Historical Journal, xxxviii (1995). The exact voting numbers in 1621 are unknown, see Brown and Mann, ‘Introduction’, p. 31. It was common in early modern record keeping to record a decision but not the debate, as seen in church, privy council or burgh records. 66. Rait, Parliaments, p. 419; Terry, Scottish Parliament, p. 142; E. E. B.Thomson, The Parliament of Scotland, 1690–1702 (Oxford, 1929), pp. 88–9. 67. Tanner, ‘Lords of the articles’, pp. 206–8; RPS, 1504/3/15–70; A1504/3/101–46. 68. NAS, PA6 and PA7. See MacDonald, ‘Uncovering the legislative process’ for a close analysis of some 150 draft acts. The decline in such amendments for 1633 may reflect the authoritarian nature of that session.

144

M2287 - BROWN & MAC TEXT.indd 144

10/08/2010 16:47

M2287 - BROWN & MAC TEXT.indd 145

10/08/2010 16:47

Figure 5.1 A draft of the ‘Act anent salvo iure cuiuslibet’ of 1606 showing amendments and dated notes of its passage by the articles and by the full parliament. (Source: NAS, PA6/2)

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 programme on a single day, or even when an act was instigated by royal warrant. On the concluding day of the session in July 1606, a ratification for the kirk of Borthwick was amended in the house from the version agreed by the lords of the articles. A small number of uncontroversial acts under royal warrant was amended in 1606, including the closing ‘Act anent salvo iure cuiuslibet’ (see Figure 5.1), a standard catch-all used since 1592, such that the rights of unrepresented parties were protected.69 What this shows is that, while the multiple readings associated with Westminster were not an obvious feature in Scotland before the Revolution of 1689, this element in the transition to ‘procedural development’ was not so dramatic.70 Problems in getting controversial legislation through the pre-Revolution parliament are self-evident from the highlights in the political history of the period, such as in 1686 with the failure by James VII and II to get through the lords of the articles and the full house an act to give toleration to Roman Catholics. Change came at the Revolution but it was not immediate or founded on an institution with no deliberative sophistication. It was not merely natural conservatism or the exigencies of a civil war that saw ministers recommend few procedural changes immediately after 1689, other than the enforced abandonment of the lords of the articles. Much traditional procedure worked well enough. Reform, when it came in 1693–6, consisted of initiatives by Secretary James Johnston supporting a wide range of measures to improve accountability and involvement by the house. He encouraged the proliferation of regular session committees that arose after 1689, whereby all matters came back to the full house; then, in 1695, a new procedure, where acts were regularly to ‘lie on the table’, enabled a pause in the legislative process for draft acts and overtures to be scrutinised.71 Then, in 1696, the procedure for processing legislation was further improved by introducing the printing of draft acts and the ‘Act that no Law pass at first reading’. This last piece of reform meant that the word ‘reading’ was formalised in Scotland for the first time, and an act was now subject to a four-stage process: first reading, second or further reading, voting and then, in a procedure of ancient vintage, royal assent conveyed by touching the final copy of an act with the sceptre to make it law.72 All that remained was the process of public proclamation which took place 69. NAS, PA6/2 and RPS, 1605/6/103; 1605/6/37; 1605/6/41–3; 1605/6/52 and 1605/6/97. 70. Rait, Parliaments, p. 429 and Thomson, Parliament of Scotland, p. 88. 71. Some acts were treated in a similar way as early as 1681. See NAS, PA7/11, 96, Minutes of the committee of the articles, 1681; RPS, 1681/7/1–38. 72. RPS, 1695/5/16; 1696/9/44; 1696/9/62; Rait, Parliaments, pp. 429–34; Terry, Scottish Parliament, pp. 149–52; Thompson, Parliament of Scotland, pp. 88–91.

146

M2287 - BROWN & MAC TEXT.indd 146

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e immediately after the session rose or, in the case of forfeitures, at the end of the day’s business.73 Proclamation in the burgh where the parliament was held dates back to 1487 and, no doubt, long before but the process of publication also took in the preparation of the official registers and the printing of statute. Before registers came parliamentary rolls which appear to date back to the 1290s even though much of thirteenth- and fourteenth-century record survives only in fragments and short ‘capitulars’ or extracted writs. Since at least the reign of James I the clerk register was responsible for recording acts in manuscript registers, a complex process which, from the reign of James VI, often took months to accomplish as draft acts, and amended drafts had to be placed in the correct order and the agreed final version noted. Maintaining the registers was not always carried out efficiently and promptly, however, and those of the two sessions of 1690, for example, were not completed, and then with much difficulty, until 1693.74 The estates took action to facilitate the printing of the acts from the 1540s and, though printing such material was included in the general patent given to Scotland’s first printers Chepman and Mylar in 1507, as far as we know, the patent was a dead letter until the first printing of 1542. Nonetheless, the desire to distribute agreed laws had a much earlier provenance. In 1318 parliament agreed that justices and sheriffs be instructed to make sure all acts were publicly read and copies made available to all those with courts and, in 1426, that copies of acts be made available to all prelates, barons and burgh councils.75 In the sixteenth century, the clerk register was made responsible not only for recording acts but also for ensuring that they were printed and proclaimed at market crosses and, for a fee, provided in extracted form for those who desired them.76 The printing of the acts of parliament was generally connected with the various law commissions that looked to agree a full canon of laws for the use of lawyers, courts and those with private jurisdictions. The most important of these commissions was that established in the 1590s which, under the guidance of the clerk register, Sir John Skene of Curriehill, led in 1597 to a new edition of the post-1424 acts and prescribed purchasing regulations, and an updated edition in 1609. This replaced the 1566 edition of post-1424 acts, out of an earlier law commission of 1566, which had to be withdrawn briefly as it contained Roman Catholic material which should have been expunged. From 1609, folio editions of acts of particular sessions began to be produced, as 73. Rait, Parliaments, pp. 442–7. 74. RPS, 1487/10/4; 1426/30; Duncan, ‘Early parliaments’, pp. 36–41; MacDonald, ‘Uncovering the legislative process’; Mann, ‘Inglorious Revolution’, pp. 130–4. 75. RPS, 1318/1; 1426/30. 76. RPS, 1540/12/102; APS, ii, p. 425.

147

M2287 - BROWN & MAC TEXT.indd 147

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 well as occasional single acts of parliament or convention, before this became more common from 1640. The clerk register, Thomas Murray of Glendoick, edited a new folio edition of post-1424 acts in 1681 before preparing, in the following year, a smaller duodecimo volume, setting the trend thereafter that acts of session, or post-1424 acts, were published in both formats, as after the session of 1685. Developments in the printing of statutes were coupled with an expanding legal profession and the increased levels of book distribution. Printed minutes became common from the Restoration due to the ever more complex business of the house but also because of the self-consciousness of parliamentarians.77 Conclusion: A Parliamentary Culture? Parliaments evolved out of the king’s council, and it is understandable that James VI claimed that parliament was ‘nothing else but the head Court of the King and his vassals’. Nevertheless, the estates became a self-aware institution that defined itself as a parliament and not merely in relation to the sovereign.78 This political consciousness, which might be described as a culture of parliamentarianism, is seen in a range of measures taken to shape conduct and procedure. The preamble for acts – ‘our sovereign lord, with advice and consent of the estates of parliament’ – represented shared authority and shared aspirations. For example, concern over attendance levels and fines for absence in the 1420s, early 1500s and 1580s, which were repeated in 1641, 1662, 1663, 1689 and 1693, surely indicate the collective desire from those attending that all should do their duty, as much as any royal agenda.79 The regulations for ceremonial dress confirmed by the privy council in the first decade of the seventeenth century, who were themselves members of parliament, may have been supported by a king looking to enhance the spectacle of state openings but were also indicative of parliamentarians willing to develop the ritualistic elements of their own assembly. Such questions were raised long before, 77. A. J. Mann, The Scottish Book Trade 1500–1720: Print Commerce and Print Control in Early Modern Scotland (East Linton, 2000), pp. 154–6; J. W Cairns, T. D. Fergus and H. L. MacQueen, ‘Legal humanism and the history of Scots Law: John Skene and Thomas Craig’, in MacQueen (ed.), Humanism in Renaissance Scotland (Edinburgh, 1990), pp. 51–6. H. G. Aldis (ed.), A List of Books Printed in Scotland before 1700 (Edinburgh, 1970). 78. James VI, The Trew Law of Free Monarchies (1598) ex The Works [of King James] (London, 1616), reproduced in facsimile in The Political Works of James I , C. H. McIlwain (ed.) (Cambridge, MA, 1918), p. 62. 79. RPS, 1426/11; A1515/7/1; 1587/7/26; 1641/7/27; 1662/5/6–7; 1663/6/52; 1689/6/18; 1693/4/15.

148

M2287 - BROWN & MAC TEXT.indd 148

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e especially in the 1450s and 1570s, and the agreed ceremonials for the riding of parliament were revised from time to time, as in 1600, 1612, 1681 and 1703. Unlike his controversial views on clerical attire, when Charles I in 1633 rode to the parliament in the purple, velvet state robes of James IV, this was not seen as inappropriate to a grand spectacle in which all members were willing participants.80 As was the case elsewhere in Europe, however, intermittent tension was a feature of relations between executive and legislature.81 In Scotland, in a procedural sense, this is perhaps most evident in the issue of freedom of speech. This privilege was asserted most forcibly by the Covenanters who, in 1641 not only gave members immunity from arrest during sessions but agreed that the rules of debate, through the president, gave them the right to speak without interruption. At the Restoration, freedom from arrest was rescinded with the 1661 Act Rescissory although freedom of speech in the house was confirmed in 1662 and reaffirmed in 1693.82 But freedom of speech was a relative concept in the life of the parliament, even in its last decades. In 1672, William More, representing the burgh of Kintore, was imprisoned for uttering words ‘subverting the constitution’, and in 1681 John Hamilton, second lord Belhaven, was incarcerated for commenting on the religious persuasion of James, duke of Albany – both apologised at the bar of the house and were reinstated. Even though freedom of speech was asserted in the Claim of Right of 1689, there are incidents of members being removed, as in 1702 when Sir Alexander Ogilvie, commissioner for Sanquhar, was expelled for claiming that presbyterianism was inconsistent with monarchy. Restraints could be behavioural rather than political, and Sir Alexander Ogilvie of Forglen and lord Belhaven were expelled for ‘unbecoming expressions’ and coming to blows in 1703 although, again, 80. RPS, 1458/3/12; Maitland Club Miscellany, ii, part 1 (Edinburgh, 1842), pp. 101–37; RPS, A1703/5/1. 81. All early modern European monarchies and their parliaments reveal this to a degree, see, for example, the French and Dutch examples, R. Bonney, The European Dynastic States, 1494–1660 (Oxford, 1991), pp. 327–8; P. T. Hoffman, ‘Early modern France, 1450– 1700’, in P. T. Hoffman and K. Norberg (eds), Fiscal Crises, Liberty, and Representative Government, 1450–1789 (Stanford, 1994), pp. 236–43; G. Parker, Europe in Crisis, 1598– 1648 (Brighton, 1980), pp. 141–5. 82. Groenveld’s study of censorship states, ‘there was no general expectation [in the early modern period] that the press should be completely free’, and this follows for general freedoms in Scotland, S. Groenveld, ‘The Mecca of authors? States assemblies and censorship in the seventeenth-century Dutch republic’, in A. C. Duke and C. A. Tamse (eds), Too Mighty to be Free: Censorship and the Press in Britain and the Netherlands (Amsterdam, 1987), p. 81; RPS, C1639/8/68; 1641/8/7; 1662/5/6; 16 41/7/27; 1693/4/15.

149

M2287 - BROWN & MAC TEXT.indd 149

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 they were readmitted after humble apologies.83 Rivalries as well as political views bubbled over, and the authorities of the house and the crown did what they could to subdue a lively chamber but with mixed success. The estates could not easily be cowed. In the session of 1704 one of the more curious draft acts, concerned with parliamentary freedom, was introduced. In July that year, James Douglas, fourth duke of Hamilton, leader of the opposition country party, proposed a measure entitled the ‘Act for securing free voting in parliament’. This act looked to prevent the practice of army commissions being awarded to shire and burgh commissioners, and, more generally, to forbid the bribery of members for either votes or advice, with fines of up to £10,000 for offering bribes, and dismissal from parliament for accepting them.84 This was part of the heated session managed by Commissioner John Hay, second marquis of Tweeddale, where the succession dominated. The new administration under Tweeddale was forced, in exchange for much needed taxation, to concede the Act of Security concerning parliament’s rights to select Scotland’s own successor to Queen Anne. In the end, as Tweeddale adjourned parliament in late August 1704, the ‘free voting’ measure never got beyond a first reading although, when last mentioned, it was to be an urgent priority. Such proposals were not, however, merely reflections of the charged party political atmosphere in the last years of the parliament. They were staging posts in an ongoing agenda of reform and aspects of a vibrant parliamentary culture. While Whig historiography is fond of describing a hapless and weak Scottish parliament, we might imagine a different future without the union. Without the stifling Anglo-Scottish management of politics in the eighteenth century, left to itself this small parliament might, even sooner than 1832, have embraced a more fundamental reform agenda.

83. RPS, 1672/6/12,22; 1681/7/25, 31; 1702/6/24; 1703/5/100 and P. Hume Brown (ed.), Letters Relating to Scotland in the Reign of Queen Anne by James Ogilvy, First Earl of Seafield and Others (SHS, Edinburgh, 1915), pp. 2–8. 84. RPS, 1704/7/35; M1704/7/19; A1704/7/45; 1704/7/136.

150

M2287 - BROWN & MAC TEXT.indd 150

10/08/2010 16:47

Appendix

Chamber Layouts: explanatory note It is difficult to be precise about the layout of parliament. The only visual guide, that provided by de Gueudeville’s illustration (the basis of plan 4 [Figure 5.5]) we know to have inaccuracies as, for example, it does not include a table for the lords of session provided at least since 1662. Also, descriptions of the orientation in relation to the throne have led to confusion: the plans presented here assume the view from the throne. Surviving sources use vague terms, such as ‘lesser’, ‘greater’, ‘senior’ ‘first and second degree’, when it comes to barons or nobles and, although we know for certain that the seating was organised with senior individuals located separately from junior, as is clearly the case from 1689 when nobles sat both left and right (plan 5 [Figure 5.6]), precise definitions cannot be made. Put simply, as suggested by the 1580s (plan 1 [Figure 5.2]), available seats were probably allocated according to the seniority used for voting until each relevant row was full. Accounts other than those used for these plans provide further variation, however. A draft act of 1641 (apparently not implemented, hence plan 3 [Figure 5.4] is similar to plan 5 [Figure 5.6]) states that earls were to be to the east of the throne (which was located at the south end of the chamber) and lords to the west, with shire members on benches on the earls’ side and burgh members on benches on the lords’ side [see RPS, A1641/7/6] but tradition placed the clergy on the right hand (east) and nobles on the left (west). The arrangement may have altered in the 1660s. MacKenzie of Rosehaugh’s Memoirs of the Affairs of Scotland suggests that in 1663 archbishops sat to the right, with dukes and earls, while bishops sat on the left, but this changed in 1669 when archbishops and bishops sat on the right ‘above’ lords, with dukes, earls and viscounts to the left, a layout conforming to plan 4. An account from the 1670s, published with an edition of John Spottiswood’s The History of the Church and State of Scotland (London, 1677), claims that archbishops sat ‘higher’ than bishops, and senior earls ‘higher’ than lords but this may relate to nearness to the throne (as in the 1580s) not elevation in the tiered benches provided for the clergy and nobles. This source also puts shire commissioners on the bishops’ side, which conflicts with the 1580s and 1612 descriptions (plans 1 and 2 [Figure 5.2 and Figure 5.3]). Confusion over orientation in relation to the throne accounts for some of this, as does the fact that, even after 1639, some benches were refashioned for different sessions rather than being permanently in place.

151

M2287 - BROWN & MAC TEXT.indd 151

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 1 2

2

2

2

16 7 3

14 2

2

4

9

2 5

11

4

5

10

15 8

5 10

5

12

6

13 Standing Area

17 KEY 1. Throne (king) 2. Officers of state 3. Archbishops 4. Bishops, abbots and commendators 5. Burgh commissioners 6. Non-voting lords of session and guests 7. Dukes (1) 8. ‘Senior’ earls 9. ‘Junior’ earls

10. Lords 11. ‘Senior’ barons 12. Non-voting nobles’ sons and guests 13. ‘Lesser’ barons and lairds 14. Honours of Scotland 15. Clerk register and clerks 16. Inner bar 17. Outer bar

Figure 5.2 Chamber layout: 1580s. (Main source: J. D. Mackie [ed.], ‘The order of the Holding of the Court of Parliament in Scotland’, SHR, xxvii [1948], pp. 191–3)

152

M2287 - BROWN & MAC TEXT.indd 152

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e 1 2

2

2

2

14 7 3

12 2

2

4

9

2 5

10

4

5

10

13 8

5 10

5

11

6

15 KEY (1612) 9. Lords (11) 10. Shire commissioners (28) 11. Non-voting nobles’ sons and guests 12. Honours of Scotland 13. Clerk register and clerks 14. Inner bar 15. Outer bar

1. Throne (commissioner) 2. Officers of state 3. Archbishops (2) 4. Bishops and abbot (9) 5. Burgh commissioners (51) 6. Non-voting lords of session and guests 7. Marquis (1) 8. Earls (7)

Figure 5.3 Chamber layout: 1620s. (Main source: Thomas Hamilton, ‘Memoriall anent the progress and conclusions of the Parliament haldin at Edinburgh in October 1612’, in Maitland Club Miscellany, iii, I, pp. 112–18)

153

M2287 - BROWN & MAC TEXT.indd 153

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 1 2

2

2

2

14 3 12 2

4

2

4

5

2 6

4 4

13

4

4

6 6

10

9

11

8

7

15 KEY (1643) 1. Throne 2. Officers of state 3. Marquises (2) 4. Earls (36) 5. Viscounts (4) 6. Lords (16) 7. Shire commissioners (47) 8. Burgh commissioners (54)

9. Non-voting nobles’ sons and guests 10. Non-voting lords of session and army officers 11. Non-voting merchants and clergy 12. Honours of Scotland 13. Clerk register and clerks 14. Inner bar 15. Outer bar

Figure 5.4 Chamber layout: 1640s. (Main sources: RPS, 1640/6/39; 1641/7/27 and A1641/7/6)

154

M2287 - BROWN & MAC TEXT.indd 154

10/08/2010 16:47

pa r l iame nt a r y p r o c e du r e 1 2

2

2

2

19 8

3 2

2 2

4

6

11

9

16

4

6

17 5

10

12

10 12

5 18 7

15

13

14

15

20 KEY (1669) 1. Throne 2. Officers of state 3. Archbishops (2) 4. Bishops (9) 5. ‘Lesser’ earls (from 36) 6. ‘Lesser’ lords (from 20) 7. Non-voting nobles’ sons 8. Dukes (1) 9. Marquis (1) 10. ‘Senior’ earls (from 36)

11. Viscounts (3) 12. ‘Senior’ lords (from 20) 13. Burgh commissioners (58) 14. Shire commissioners (56) 15. Non-voting participants/observers 16. Honours of Scotland 17. Clerk register and clerks 18. Non-voting lords of session 19. Inner bar 20. Outer bar

Figure 5.5 Chamber layout: 1662–86 (Main sources: RPS, 1662/5/6; Nicolas de Gueudeville, Atlas Historique [1720], ii, plate 56. The definition of ‘lesser’ or ‘senior’ is unknown)

155

M2287 - BROWN & MAC TEXT.indd 155

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 1 2

2

2

2

16 6 13 2

2 8 2

4 4

14

3 3

7

7

9

9 15 5

12

10

11

12

17 KEY (1693) 1. Throne 2. Officers of state 3. ‘Lesser’ earls (from 18) 4. ‘Lesser’ lords (from 14) 5. Non-voting nobles’ sons 6. Dukes (1) 7. ‘Senior’ earls (from 18) 8. Viscounts (4) 9. ‘Senior’ lords (from 14)

10. Burgh commissioners (58) 11. Shire commissioners (83) 12. Non-voting participants/observers 13. Honours of Scotland 14. Clerk register and clerks 15. Non-voting lords of session 16. Inner bar 17. Outer bar

Figure 5.6 Chamber layout: 1690s (Main source: RPS, 1693/4/15)

156

M2287 - BROWN & MAC TEXT.indd 156

10/08/2010 16:47

chap t e r 6

Parliament and the Law1 A. Mark Godfrey

Introduction

M

ore than three centuries after it became a regular feature of national life, James VI regarded parliament with regal loftiness as ‘nothing else but the head Court of the King and his vassals’.2 Writing in 1684, Sir George Mackenzie echoed such views in emphasising that parliament was, in his eyes, a court of law presided over by the monarch, since ‘the parliament of old was only the king’s baron-court in which all freeholders were obliged to give suit and presence’. He saw its authority, and therefore its legal competence, as dependent upon the king, arguing that ‘since we had kings before we had parliaments it is evident that the king’s power flowed not from them . . . The legislative power is only in the king and the estates of parliament only consent’.3 Mackenzie’s observations naturally reflect seventeenth-century concerns more than they illuminate the history or origins of parliament itself. They 1. I am grateful to John Cairns, Julian Goodare, Hector MacQueen, Athol Murray and David Sellar for reading, commenting upon and discussing earlier drafts of this chapter. I must accept responsibility for any errors that remain. This chapter complements and draws upon the more extensive treatment of the judicial role of parliament in A. M. Godfrey, Civil Justice in Renaissance Scotland: The Origins of a Central Court (Leiden, 2009), ch. 1. 2. The Trew Law of Free Monarchies, quoted from J. P. Sommerville (ed.), King James VI and I, Political Writings (Cambridge, 1994), p. 74. See also Basilicon Doron, ibid., p. 21; K. M. Brown and A. J. Mann, ‘Introduction. Parliament and politics in Scotland 1567– 1707’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1707, p. 18. 3. Sir George Mackenzie, The Institutions of the Law of Scotland (1684), quoted in H. L. MacQueen, ‘Mackenzie’s Institutions in Scottish legal history’, Journal of the Law Society of Scotland, xxix (1984), p. 500. See The Works of that Eminent and Learned Lawyer, Sir George Mackenzie of Rosehaugh (Edinburgh, 1722), ii, 281.

157

M2287 - BROWN & MAC TEXT.indd 157

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 convey, however, an essential point which it is easy to overlook, namely the original character of parliament as a court of law and not just as a political or legislative assembly. What little is documented of parliament as it emerged in the thirteenth century suggests that, from the beginning, its business and constitution were rooted in the maintenance of the law and the administration of justice presided over by the king. This is evident in a description from c.1292 emphasising that the purpose of the ‘common assembly’ which the king should have with the prelates, earls and barons of the realm (that is, a parliament) was to demonstrate the king’s willingness to govern ‘according to the ancient laws and usages of the land in all points’.4 In giving guidance on where certain disputes should be entertained, a distinction was drawn in this account between a ‘full parliament’ and a ‘lesser council’. The holding of a parliament was thus seen to possess a special significance which came to be understood as grounded in the law, both in relation to declaring law through legislation and determining disputes through giving legal judgments. The exercise of law-making functions in the earliest parliaments is demonstrated very notably by 1318 when a particularly large series of statutes was issued. Typically they were enacted with words such as ‘the kyng statut’ or ‘willis and commandis’, or ‘it is ordanyt and statut be the kyng’.5 Though parliament assented to statutes, these formulas seem to stress that, in making legislation, it was the role of the king that was central.6 Alongside making legislation, the exercise of judicial functions is apparent from the letter of summons to the 1293 parliament in which there was an invitation to ‘everyone with a complaint . . . to show the injuries and trespasses done to them by whatsoever ill-doers . . . and to receive from them what justice demands’.7 Of course, the issuing of statutes and the judicial determination of disputes were activities with a long history predating the formal emergence of 4. M. Bateson (ed.), ‘The Scottish king’s household and other fragments’, in Miscellany of the Scottish History Society II (SHS, 1904), pp. 31, 37–8. Although reliance on this source was cautioned against in A. A. M. Duncan, ‘The early parliaments of Scotland’, SHR, xlv (1966), p. 36, owing to doubt over dating, it was subsequently discussed as dating from ‘probably about 1292’ in A. A. M. Duncan, Scotland: The Making of the Kingdom (Edinburgh, 1975), p. 595. 5. APS, i, 107. 6. This may have changed over the fourteenth century: see R. J. Tanner, ‘Cowing the community? coercion and falsification in Robert Bruce’s parliaments, 1309–1318’, and M. Penman, ‘Parliament lost – parliament regained? The three estates in the reign of David II, 1329–1371’, both in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560, pp. 69, 89–90. 7. Duncan, ‘Early parliaments’, p. 46.

158

M2287 - BROWN & MAC TEXT.indd 158

10/08/2010 16:47

pa r l iame nt and t h e l a w ‘parliament’.8 Moreover, the parliaments of the 1290s onwards are evidently successors to less closely defined colloquiums, first described as such in the 1230s,9 and less formal assemblies of notables around the king which can be traced back at least as far as David I. It is plausible to regard some of the acta of David I and Malcolm IV as legislative in character, demonstrating what seems like an intention to declare law.10 There is evidence of some of these early assizes being observed many decades after the death of the king responsible for their enactment, suggesting that they were regarded as providing an authoritative rule for future conduct. In a case from 1227, for example, reference is made to a perambulation being carried out ‘in line with the lawful assize of King David, used and observed in the Kingdom of Scotland to this day’.11 In relation to early judicial functions, we have evidence that David I adjudicated upon complaints made to him in a way that foreshadowed the later judicial function of parliament. The personal role of the king in dispensing justice is captured in Ailred of Rievaulx’s claim that David I ‘was accustomed to sit at the entrance of the royal hall and diligently to hear the cases of poor men and old women who on certain days were called to him singly in whatever district he came to and often with much labour to satisfy each’.12 Even in the twelfth century, therefore, before a common law or parliament had developed, Scottish kings can be portrayed as participating in the exercise of what would later be described as legislative and judicial functions. This highlights the role of the king as providing the common thread in the development of the law and of formal assemblies with legal functions, reflecting a European pattern evident more generally in the twelfth and thirteenth centuries.13 It is important to grasp that, during the medieval period, parliament’s judicial role also placed it at the apex of a structure of courts administering the common 8. A. A. B. McQueen, ‘The origins and development of the Scottish parliament, 1249– 1329’ (unpublished PhD thesis, University of St Andrews, 2002), p. 30. 9. Duncan, Making of the Kingdom, p. 610. There is some evidence that ‘parliament’ was used intermittently after 1249: McQueen, ‘The origins and development of the Scottish parliament’, p. 35. 10. E.g. in relation to commands concerning perambulations of boundaries, poinding, and payment of teinds: RRS, i, pp. 35, 272 (no.258). 11. ‘Secundum legalem assisam Regis David usitatam et probatam in Regno Scotiae usque ad illum diem’; T. M. Cooper, Select Scottish Cases of the Thirteenth Century (Edinburgh, 1944), p. 21 (no. 13). 12. A. A. M. Duncan, ‘The central courts before 1532’, in An Introduction to Scottish Legal History (Edinburgh, 1958), p. 321; A. O. Anderson (ed.), Scottish Annals from English Chroniclers AD 500 to 1286 (London, 1908), p. 233. 13. Godfrey, Civil Justice in Renaissance Scotland, pp. 8–9; S. Reynolds, Kingdoms and Communities in Western Europe 900–1300 (Oxford, 1984), p. 39; A. Harding, Medieval Law and the Foundations of the State (Oxford, 2002), p. 9.

159

M2287 - BROWN & MAC TEXT.indd 159

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 law and providing litigants with remedies.14 Its most commonly recorded business was not legislation, ratification of treaties or charters but rather the determination of legal disputes.15 Parliament’s original predominant legal concern with judging disputes gradually gave way during the fourteenth and fifteenth centuries, however, to its legislative role. Its judicial role became channelled into the king’s council instead. The fifteenth century is notable for almost annual meetings of parliament, and these focused on legislative programmes that were ambitious by medieval standards.16 Indeed, by the sixteenth century, parliament’s relationship with the law had come to be defined largely through its legislative function. This was increasingly regarded as a competence confined to full parliaments and denied to lesser forms of council.17 Previously, the power to legislate had not distinguished parliament from such lesser meetings.18 In the fourteenth and fifteenth centuries, general councils had issued legislation alongside parliaments, for example. Even in the sixteenth century, the privy council sometimes appears to legislate.19 By this time, however, conventions of the estates did not issue permanent legislation, and it is clear that this function was becoming restricted to parliament.20 Certainly, some jurists were arguing by 1600 that only parliamentary legislation was authoritative and binding as lex.21 By the seventeenth century, therefore, the more familiar separation had been fully established whereby legislation was made only in parliament while the central judicial determination of disputes occurred separately in the court of session as constituted within the college of justice. The court of session had become by 1532 – the year in which the college of justice was founded – the successor body both to the judicial sessions of the medieval king’s council and to the parliamentary auditors of causes and complaints. 14. Godfrey, Civil Justice in Renaissance Scotland, p. 10; the seminal discussion of the history of parliament as a central court remains Duncan, ‘The central courts before 1532’, though it should now be read subject to Godfrey, Civil Justice in Renaissance Scotland, chs 1–3 and H. L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh, 1993), ch. 8. 15. G. W. S. Barrow, Kingship and Unity: Scotland 1000–1306 (Edinburgh, 1981), p. 127. 16. Tanner, Parliament, p. 7. 17. I. E. O’Brien, ‘The Scottish parliament in the fifteenth and sixteenth centuries’ (unpublished PhD thesis, University of Glasgow, 1981), p. 149. 18. See R. K. Hannay: ‘On “parliament” and “general council”’, SHR, xviii (1921); ‘General council and convention of estates’, SHR, xx (1923); ‘General council of estates’, SHR, xx (1923). All are reprinted in H. L. MacQueen (ed.), The College of Justice: Essays by R. K. Hannay (Stair Society, 1990). 19. Godfrey, Civil Justice in Renaissance Scotland, p. 32. 20. See generally J. Goodare, ‘The Scottish parliament and its early modern “rivals”’, PER, xxiv (2004); J. Goodare, The Government of Scotland 1560–1625 (Oxford, 2004), p. 86. 21. J. W. Cairns, ‘Ius Civile in Scotland, ca.1600’, in Roman Legal Tradition, ii (2004), pp. 153–4, referring to Thomas Craig.

160

M2287 - BROWN & MAC TEXT.indd 160

10/08/2010 16:47

pa r l iame nt and t h e l a w Judicial Functions: 1124‒1532 The judicial functions of parliament were its distinguishing feature far more than any others in terms of its formal constitution. Though a vehicle for a range of political and administrative business, in terms of its formal ordering, the medieval parliament emerged as a court of law that required to be summoned upon a full forty days’ notice.22 In considering the origins of parliament’s judicial role, we have already noted the personal involvement of David I in hearing cases.23 Even as late as the sixteenth century, James IV and James V still occasionally participated in judicial business at sessions of their councils.24 The development of the judicial role of the medieval parliament, however, emphasised at an early stage the collective nature of judgment within a conciliar framework (rather than as the personal decision of the king), promoting the development of a more regular institution within which royal authority was exercised. Some regularisation of royal justice in the twelfth-century curia regis lies behind the thirteenth-century judicial activity of the king and council meeting in colloquia although we should not overlook ‘the continuing personal involvement of the king himself in matters of law and the dispensation of justice’ which Hector MacQueen has noted for the reign of Alexander II.25 By the 1290s we find colloquiums described by the term parliamentum, and parliaments seem to have become regular types of assembly.26 The evidence of this decade suggests that ‘the dispensing of justice was a usual function of parliament’, perhaps even the primary one.27 Those who wished to air a grievance before the king were afforded the best opportunities of doing so when he gathered formally with his council, especially at its most extended form in parliament. No doubt that state of affairs underlay the development of the jurisdictional ideas defining and limiting the scope of those matters that parliament could entertain.28 On the other hand, it was still ‘less of an institution 22. Hannay, ‘General council and convention of estates’, p. 112; ‘On “parliament” and “general council”’, pp. 157–66. 23. Duncan, ‘The central courts before 1532’, p. 321; Anderson, Scottish Annals from English Chroniclers, p. 233. 24. Godfrey, Civil Justice in Renaissance Scotland, p. 79. 25. H. L. MacQueen, ‘Canon law, custom and legislation: law in the reign of Alexander II’, in R. D. Oram (ed.), The Reign of Alexander II, 1214–49 (Leiden, 2005), p. 232. 26. A. A. B. McQueen, ‘Parliament, the Guardians and John Balliol, 1284–1296’, in Brown and Tanner, Parliament and Politics in Scotland, 1235–1560, p. 30. 27. Duncan, ‘Early parliaments’, p. 47; Duncan, Making of the Kingdom, p. 610; McQueen, ‘Parliament, the Guardians and John Balliol’, pp. 38, 40; McQueen, ‘The origins and development of the Scottish parliament’, p. 177. 28. See Godfrey, Civil Justice in Renaissance Scotland, p. 17.

161

M2287 - BROWN & MAC TEXT.indd 161

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 than an irregular and short-lived event’.29 It does seem by 1293, however, to have been ‘a court with settled procedure and periodical sessions’.30 The development of parliament as a court reflects the development of procedures that had the effect of enabling that fundamental office of kingship – the dispensation of justice – to be exercised in a regularised institutional form. This did not occur in a vacuum but as part of the emergence, by the thirteenth century, of a common law administered by a variety of royal agents, principally sheriffs (operating locally) and justiciars (operating across wider geographical zones). In the words of David Sellar, ‘thirteenth-century Scotland . . . was a land of the common law’.31 These royal officers held courts in the name of the king and granted remedies which typically followed the issuing of a written royal command in a letter known as a brieve out of chancery, authenticated by clerks in the king’s chapel.32 By the end of the thirteenth century, a complex network of secular jurisdiction, relating largely to rights in land and protection against disruption of the king’s peace, had emerged alongside that possessed by the church over issues of personal status, marriage and legitimacy.33 Procedure in the secular courts followed the English model of writ and inquest for the most formal 29. K. M. Brown, Kingdom or Province? Scotland and the Regal Union, 1603–1715 (London, 1992), p. 13; Brown applies this characterisation to parliament until 1689, with the possible exception of 1638–51. Helen Cam describes the English medieval parliament similarly as ‘not an institution but an event’ in Selected Historical Essays of F. W. Maitland (Cambridge, 1957), p. xviii. 30. H. G. Richardson and G. O. Sayles, ‘The Scottish parliaments of Edward I’, SHR, xxv (1928), p. 303; Duncan, ‘The central courts before 1532’, p. 323; McQueen, ‘The origins and development of the Scottish parliament’, pp. 148–9, 152, 158, 160; McQueen, ‘Parliament, the Guardians and John Balliol’, p. 41. 31. W. D. H. Sellar, ‘The resilience of the Scottish common law’, in D. L. Carey Miller and R. Zimmermann (eds), The Civilian Tradition and Scots Law (Berlin, 1997), p. 151; W. D. H. Sellar, ‘The common law of Scotland and the common law of England’, in R. R. Davies (ed.), The British Isles 1100–1500 (Edinburgh, 1988), pp. 86–7. 32. On the courts of justiciar, sheriff, baron and burgh see J. W. Cairns, ‘Historical introduction’, in K. Reid and R. Zimmermann (eds), A History of Private Law in Scotland (2 vols, Oxford, 2000), i, pp. 21–4; A. Grant, Independence and Nationhood: Scotland 1306– 1469 (London, 1984) p. 125. Standard accounts include G. W. S. Barrow, The Kingdom of the Scots: Government, Church and Society from the Eleventh to the Fourteenth Century (London, 1973), p. 83 (on the justiciar); ‘Introduction’ in W. C. Dickinson (ed.), The Sheriff Court Book of Fife 1515–1522 (SHS, 1928), pp. xi–cv; W. C. Dickinson (ed.), The Court Book of the Barony of Carnwath 1523–1542 (SHS, 1937), pp. xi–cxii; H. L. MacQueen and W. J. Windram, ‘Law and courts in the burghs’, in M. Lynch, M. Spearman and G. Stell (eds), The Scottish Medieval Town (Edinburgh, 1988); W. C. Dickinson (ed.), Early Records of the Burgh of Aberdeen 1317, 1398–1407 (SHS, 1957), pp. xvii–cli. 33. MacQueen, ‘Canon Law, Custom and Legislation’, p. 237.

162

M2287 - BROWN & MAC TEXT.indd 162

10/08/2010 16:47

pa r l iame nt and t h e l a w remedies. The most significant patrimonial interests arising out of land tenure and succession received protection through royal brieves purchased out of chancery and addressed in the form of commands to sheriff, justiciar or burgh court to instigate lawful process and summon a jury to determine the facts necessary to resolve the dispute.34 Parliament, however, was not the forum in which to raise actions by brieve. Being in the king’s name and requiring local process, no coursable brieve could be addressed to king and council directly, in parliament or otherwise. Parliament’s jurisdiction to review verdicts could be invoked, however, by the procedure of ‘falsing the doom’.35 Its role was as a final court of review, in which verdicts given by an assize could be challenged successively through the hierarchy of courts – from sheriff court to justiciar to parliament, for example. In procedure by brieve and inquest, the outcome was simply a finding of fact in the form of a verdict. Verdicts could nevertheless be reexamined and overturned if obviously erroneous. Establishing procedural irregularity or patent error in relation to the evidence no doubt constituted most of what was involved.36 Parliament not only unified the structure of royal courts administering the common law and considered the falsing of dooms, it also heard petitions and pleas at first instance in those categories of case where procedure by brieve and inquest was not prescribed. This form of business seems to have increased during the fourteenth century. As a result, a system developed of delegation of parliamentary business on judicial matters to committees of auditors, evidence of which survives from 1341. Duncan has shown that there were precursors to these fourteenth-century committees in the hearing of appeals by auditors of pleas appointed by Edward I in the parliament of June 1291, and that this appears to have been an extension of a set of arrangements derived from the English parliament.37 In 1341, following the adult David II’s return from his seven-year absence in France, we have the first extant record of 34. See generally, MacQueen, Common Law and Feudal Society; G. W. S. Barrow, ‘The Capella Regis of the Kings of Scotland, 1107–1222’, in H. L. MacQueen (ed.), Miscellany V (Stair Society, 2006); A. L. Murray, ‘The Scottish chancery in the fourteenth and fifteenth centuries’ in K. Fianu and D. J. Guth (eds), Écrit et Pouvoir dans les Chancelleries Médiévales: Espace Français, Espace Anglais (Fédération internationale des Instituts d’Études Médiévales, Textes et Études du Moyen Âge, 6, Louvain-La-Neuve, 1997). 35. See Godfrey, Civil Justice in Renaissance Scotland, pp. 21–2, 33–7. 36. P. J. Hamilton-Grierson, ‘The appellate jurisdiction of the Scottish parliament’, SHR, xv (1918); P. J. Hamilton-Grierson, ‘Falsing the doom’, SHR, xxiv (1926). 37. Duncan, ‘Early parliaments’, p. 39; see also A. Harding, ‘Rights, wrongs and remedies in late Medieval English and Scots Law’, in H. L. MacQueen (ed.), Miscellany IV (Stair Society, 2002), p. 3.

163

M2287 - BROWN & MAC TEXT.indd 163

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 the delegation of judicial work by parliament to a smaller group of auditors, and the beginnings of a more elaborate system of transacting parliament’s judicial business. Few records of this system survive before 1466, when the parliamentary register including decisions of the lords auditors of causes and complaints and of falsed dooms becomes extant.38 It was one aspect of a more general delegation of business by parliament to committees, seen also in relation to legislation.39 The importance of parliament’s judicial role by the end of the fourteenth century is signified by the 1399 statute in which it ‘is ordanyt that ilke yhere the kyng sal halde a parlement swa that his subjectis be servit of the law’.40 Parliament continued to transact a great deal of judicial business in the fifteenth century although other expedients began to be employed as alternatives, initially based on specially devised ad hoc sessions empowered by statute from 1426 and modelled on the auditorial committees of parliament but increasingly (after 1460) based around the king’s council holding its own judicial sessions. Nevertheless, auditors of falsed dooms continued to be appointed until the 1540s, the last instances being in two of the early parliaments of Mary in 1543 and 1544.41 Thereafter, even parliament’s formal role in falsing dooms lapsed entirely. November 1544 also saw the final appointment of parliamentary auditors to consider causes and complaints. At this point, however, the auditors were being constituted by the lords of session and the college of justice. Parliament was therefore by this stage merely preserving the institutional form of the auditorial committees.42 In fact, apart from an exception arising in 1661 from the unusual circumstances of the

38. Harding suggested that a greater volume of business caused by legislation of 1458 concerning spuilzie may lie behind such a record being kept: Harding, ‘Rights, wrongs and remedies’, p. 8. 39. See R. Tanner, ‘The lords of the articles before 1540: a reassessment’, SHR, lxxix (2000), p. 190; M. A. Penman, David II, 1329–71 (East Linton, 2004), pp. 80, 162, 170, 359, 380, 394, 431; A. A. M. Duncan, ‘Honi soit qui mal y pens: David II and Edward III, 1346–52’, SHR, lxvii (1988), pp. 124, 132; see also the calendar in G. Neilson and H. Paton (eds), Acts of the Lords of Council in Civil Causes, 1496–1501 (Edinburgh, 1918), pp. xi–xii. 40. RPS, 1399/1/13. 41. Duncan, ‘The central courts before 1532’, pp. 328–9; RPS, 1543/12/6, 1544/11/4. 42. Civil judicial proceedings in March 1504 are recorded, for example, at RPS, 1504/3/95, 1504/3/99. A grasp of how the manuscript was reordered in the nineteenth century so that judicial proceedings were artificially divided from the main parliamentary record is essential to understanding these developments. See A. L. Murray, ‘Introduction’, in A. B. Calderwood and A. L. Murray (eds), Acts of the Lords of Council Volume III, 1501–1503 (Edinburgh 1993). See also J. Goodare, ‘The Scottish parliamentary records 1560–1603’, Historical Research, lxxii (1999).

164

M2287 - BROWN & MAC TEXT.indd 164

10/08/2010 16:47

pa r l iame nt and t h e l a w Restoration, there is no record of any regular judicial proceedings (other than for treason) in the parliamentary record after 1504.43 Even by the later fifteenth century, remarkably few dooms were being falsed in parliament. This points to the popularity by this time of the newer forms of process associated with proceeding by first instance complaint before the 1426-style sessions, the king’s council or the parliamentary auditors of causes and complaints. Initiation of legal action by summons was an advantage of resort to council in particular because the procedure was more flexible and parties could be summoned more quickly.44 Because the procedure of falsing depended on the summoning of a parliament, it could become infrequent or simply unavailable during royal absences, such as occurred during 1346–57 and 1406–24. The main problem was that it was a cumbersome way of negating a judgment originally delivered in the locality but which could require falsing through several tiers of jurisdiction all the way to parliament before it could be regarded as final. Meanwhile, the growing fourteenth- and fifteenth-century demand for a remedy at first instance in parliament, dealt with by auditors of causes and complaints, continued to increase. The demand for central determination of complaints by king and council was one that even annual parliaments in the fifteenth century could not satisfy. The fifteenth-century parliament sat only for short periods and did not possess the administrative structure to allow it to function effectively as a regular court. Attempts to satisfy the demand for central justice must have been behind the introduction of specially devised sessions outwith parliament following the statute of James I in 1426 requiring the chamberlain (subsequently amended to the chancellor): and vyth him certane dyscreyt persouns of the thre estatis sall syt xiiij days in ilk quartir of the yhere quhar the kyng lykis to command thaim, the quhilkis sall heyr, knaw and exsamyn and determe all and sindry complanttis that may be decrettyt and determynit befor the kyngis consall.45 43. On 1661, see Godfrey, Civil Justice in Renaissance Scotland, p. 25, citing J. D. Ford, Law and Opinion in Scotland during the Seventeenth Century (Oxford, 2007), pp. 320, 415. 44. Godfrey, Civil Justice in Renaissance Scotland, p. 176. 45. RPS, 1426/25–28; the text quoted is the earliest extant version, but RPS also gives the text of the revised (and better-known) version, as well as editorial explanation of the divergent manuscript traditions. The legislation appears to have been revised in about 1430–1, when the chancellor was substituted for the chamberlain. See A. A. M. Duncan, James I, 1424–1437 (2nd edn, Glasgow, 1984), p. 4; O’Brien, ‘The Scottish parliament’, p. 26; see also A. R. Borthwick, ‘The king, council and councillors in Scotland, c.1430–1460’ (unpublished PhD thesis, University of Edinburgh, 1989), pp. 244–6.

165

M2287 - BROWN & MAC TEXT.indd 165

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 Harding has suggested that there may have been a model for the initiative in ordinances of 1423 in England, made while James was still captive, and ‘which provided that bills ordinarily terminable at common law should be heard by the council’ in some situations.46 Wherever the idea came from, the new body was under the direction of the king and had a jurisdiction associated with the council but was constituted by members of the estates. This makes it hard to determine whether it was intended primarily to liberate the smaller king’s council from receipt of petitions for redress or more broadly to supplement the provision of justice in parliament. The expedient was continued in one form or another until the 1460s and, in the parliament of 1439, these sittings began to be referred to as ‘sessiounis’, though by then apparently constituted from members of the king’s council.47 After the 1460s, the regular king’s council became more static under James III and was typically based in Edinburgh, thus becoming a more accessible forum for parties in dispute.48 It gradually took over the business of, and ultimately superseded, the statutory ‘sessions’ derived from the 1426 model, an institutional innovation that blurred the previously sharp distinction between the jurisdiction of parliament and council. By the 1490s, the council was exercising most of parliament’s judicial functions, in particular through assuming competence to transact the business of the parliamentary judicial committee of lords auditors of causes and complaints. Thereafter, various further experiments and reforms were implemented during the reign of James IV and the minority and early personal rule of James V, culminating in the foundation of the college of justice in 1532. The central judicial role that parliament developed in the thirteenth, fourteenth and fifteenth centuries had disappeared by 1500 although competence in criminal matters remained in its jurisdiction over treason.49 Instead the smaller, more flexible king’s council and its judicial ‘sessions’ had absorbed this role during the 1490s. This anticipated the great and fundamental development of the sixteenth century, the metamorphosis of the session from being a sitting of the king’s council into being a supreme central civil court. The decisive moment in this regard came in 1532 with the creation of the college of justice, a new institution that finally superseded the judicial func46. Harding, ‘Rights, wrongs and remedies’, p. 7. 47. RPS, A1439/3/2. See generally Godfrey, Civil Justice in Renaissance Scotland, ch. 2. 48. N. A. T. Macdougall, James III: A Political Study (Edinburgh, 1982), p. 120; T. M. Chalmers, ‘The king’s council, patronage, and the governance of Scotland 1460–1513’ (unpublished PhD thesis, University of Aberdeen, 1982), pp. 212–16, 231. 49. Parliament’s jurisdiction in treason is described in P. G. B. McNeill (ed.), ‘Discours particulier d’Escosse, 1559/60’, in W. D. H. Sellar (ed.), Miscellany II (Stair Society, 1984), pp. 117–19.

166

M2287 - BROWN & MAC TEXT.indd 166

10/08/2010 16:47

pa r l iame nt and t h e l a w tions of parliament in civil matters.50 It was both an adaptation of the existing workings of council and session in judicial business and a new departure in terms of institutional structure, with consequences for related matters such as jurisdiction.51 The new college was established by act of parliament. Even though parliament’s involvement in judicial business had in practical terms been given up three or four decades earlier, the creation of the college marked the discarding by parliament of executive responsibility to determine pleas, although that did not stop litigants occasionally attempting to appeal from the college of justice to parliament.52 With the foundation of the college, Scotland gained a permanent central body which unified the administration of civil justice within an institutional structure separate from the king’s council.53 From 1532, the college of justice acted to create a differentiation of function between session and council, as well as a new and decisive degree of institutional separation. It contained a defined number of lords of council and session, and was thereby distinguished from the general body of lords of council which constituted the privy council, with its own separate register from the 1540s.54 A lord of council ceased to be entitled ex officio to sit as a lord of session after 1532.55 The institutional separation was clear even though some people were active in both bodies. In fact it was not until Charles I’s reorganisation of the privy council in 1626 that judges were formally excluded from council membership.56 After 1532, parliament’s role in relation to the law was largely connected with legislation (other than its criminal jurisdiction over treason) although 50. For a full treatment see Godfrey, Civil Justice in Renaissance Scotland, ch. 3; the earlier and classic account is R. K. Hannay, The College of Justice (Edinburgh, 1933). 51. On the crucial developments in jurisdiction see Godfrey, Civil Justice in Renaissance Scotland, chs 5–7; A. Borthwick, ‘Montrose v Dundee and the jurisdiction of parliament and council over fee and heritage in the mid-fifteenth century’, in C. Jones (ed.), The Scots and Parliament (Edinburgh, 1996); MacQueen, Common Law and Feudal Society, ch. 8; H. L. MacQueen, ‘Jurisdiction in heritage and the lords of council and session after 1532’, in W. D. H. Sellar (ed.), Miscellany II (Stair Society, 1984). 52. Godfrey, Civil Justice in Renaissance Scotland, pp. 29–39, 196–200. For a reassessment of the foundation of the college of justice see Godfrey, Civil Justice in Renaissance Scotland, ch. 3; J. W. Cairns, ‘Revisiting the foundation of the college of justice’, in MacQueen (ed.), Miscellany V. 53. Goodare, Government of Scotland, pp. 160–1, 172; for the development of a legal profession, see J. Finlay, Men of Law in Pre-Reformation Scotland (East Linton, 2000). 54. See Goodare, Government of Scotland, pp. 128–48. 55. Godfrey, Civil Justice in Renaissance Scotland, pp. 149–50. 56. G. Donaldson, Scotland: James V to James VII (Edinburgh, 1965), pp. 290–1; see also Maurice Lee, Jnr, The ‘Inevitable’ Union and Other Essays on Early Modern Scotland (East Linton, 2003), ch. 12; Ford, Law and Opinion in Scotland, pp. 183–4.

167

M2287 - BROWN & MAC TEXT.indd 167

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 there is no doubt that its supremacy in this regard gave it a broader primacy over even the college of justice. In 1535, the senators of the college of justice felt obliged to refer ‘to the lordis thre estates of parliament for interpretatioun of certane lawis of the realme schewin and producit befor the saidis lordis of sessioun’.57 The lords of the articles responded by making a finding as to what ‘the use in tymes bigane hes bene’, instructing that ‘the saidis lawis suld be sa interprete and usit in tymes cuming’. Arguments that parliament retained an ordinary role in civil litigation are unconvincing, however.58 Just as the development of a medieval common law had transformed the judicial role of parliament into a formally structured jurisdiction, so the sixteenth-century attraction towards new forms of central justice helped displace parliament from the humdrum world of mass adjudication to a more oracular plane as giver and interpreter of law. Legislative Functions: 1124‒1532 By the time he wrote his Practicks, a digest of Scots law compiled between 1573 and 1584, Sir James Balfour of Pittendreich was able to explicate its first title, ‘Of the Law’, with the statement that ‘na jugeis within this realme hes powar to mak any lawis or statutis, except the parliament allanerlie’.59 In promoting a single printed volume of parliamentary statutes in 1597, James VI emphasised the link between parliament, legislation and governance when he referred to all and haill the lawes, constitutiones, ordinances and actes profitable for the governement of our Realme, maid and ordained by the three Estaites in Parliament, be us, and umquhile our maist Noble Progenitors and predecessours Kinges of this Realme.60 Law-making and judgment are not always easily distinguishable in the medieval period. Furthermore, in searching for a model that explains early 57. RPS, 1535/50. 58. W. B. Gray, ‘The judicial proceedings of the parliaments of Scotland, 1660–1688’, Juridical Review, xxxvi (1924). Gray discussed treason proceedings alongside an overstated claim that parliament remained involved in civil judicial business until 1688. The three examples given, easily distinguishable from ordinary civil proceedings, relate to the constitutional upheaval since the 1640s: RPS 1662/5/71, 1681/7/56, 1681/7/78. 59. P. G. B. McNeill (ed.), The Practicks of Sir James Balfour of Pittendreich (2 vols, Stair Society, 1962), i, pp. 1–2. 60. The Lawes and Actes of Parliament, Maid be King James the First and his Successours Kinges of Scotland: Visied, collected and extracted furth of the Register (Edinburgh, 1597), reverse of title page.

168

M2287 - BROWN & MAC TEXT.indd 168

10/08/2010 16:47

pa r l iame nt and t h e l a w thirteenth-century legislative activity, for example, Duncan has argued that ‘it is rarely possible to say why on any particular occasion a king and his court sat down to agree “new” laws’.61 But in principle, it is clear that twelfthand thirteenth-century kings were involved in legislative activity as well as in judging individual disputes, even if this distinction was not yet fully conceptualised.62 An official register of parliamentary legislation is extant only from 1466. Analysis of the extensive body of extant earlier legislation is therefore complicated by basic difficulties of authenticating, dating and interpreting the sources. Direct evidence for the existence of medieval legislation comes into being only as a legislative tradition developed that required it to be in writing, and this became the case only with William I, if not later still with Alexander II.63 Nevertheless, there was distinctively legislative activity by kings as early as David I. It is known, for instance, that, apart from legislation on perambulation, mentioned already, he also legislated for the burghs with several assizes.64 This legislative function became vastly more pronounced over time. To legislate was a function exercised by the king in council rather than by him personally. Hector MacQueen has commented on how, even in relation to the twelfth century, ‘assize’ seems ‘to imply not a simple royal edict but a pronouncement on the law made with the assent of or at an assembly of the king’s barons’.65 There is a parallel here with the collective responsibility of king and council in parliament, already discussed, in the making of judicial determinations. Legislative activity was a feature of thirteenth-century colloquiums, and was at least part of parliament’s business from the late thirteenth century.66 Unlike parliament’s judicial role, however, its legislative functions never became exclusive to it in the medieval period, and were matched by those of the less formal meetings of general council, especially in the fourteenth and fifteenth centuries. As we have seen, there is evidence from as late as the sixteenth century that even the privy council sometimes enacted statutes.67 G. W. S. Barrow has commented that lawmaking was ‘an important but not very frequent activity of the crown and royal government during the thirteenth century’.68 The first substantial set of statutes of whose authenticity we 61. 62. 63. 64. 65. 66. 67.

Duncan, Making of the Kingdom, pp. 538–9. See further Reynolds, Kingdoms and Communities, p. 51. MacQueen, Common Law and Feudal Society, p. 88; Duncan, Making of the Kingdom, p. 541. MacQueen, Common Law and Feudal Society, p. 86. Ibid., p. 87. McQueen, ‘The origins and development of the Scottish parliament’, p. 177. Godfrey, Civil Justice in Renaissance Scotland, pp. 32–3; but see also Goodare, ‘The Scottish parliament and its early modern “rivals”’. 68. Barrow, Kingship and Unity, p. 127.

169

M2287 - BROWN & MAC TEXT.indd 169

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 can be reasonably sure was enacted by Alexander II in 1230.69 This is in line with a European pattern of rulers attempting large-scale legislation for the first time. In 1231, for example, Frederick II promulgated the Liber Augustalis for Sicily; in 1234, Pope Gregory IX issued the massive collection of decretals known as the Liber Extra; by the 1260s the codification known as the Siete Partidas had been completed under Alfonso X in Castile; between 1275 and 1290, Edward I oversaw a substantial series of statutes to implement legal reforms in England.70 Apart from representing an important act of legislation, the Scottish statutes of 1230 have huge significance because they ‘embody and reflect extremely important steps in the creation of the Scottish common law’.71 In particular, the brieve of novel dissasine seems to have been introduced by one of the statutes. It became one of three principal royal brieves directed towards recovery of land, alongside the brieves of mortancestor and of right.72 These were all modelled on earlier English writs but, apart from being the first for which we have clear evidence, novel dissasine was the only one formally promulgated by statute. The brieve of novel dissasine illustrates well the kind of significant legislative intervention made by parliament which resulted in the development of a common law. The brieve permitted legal proceedings to recover land from which the complainer had been unjustly dispossessed. It might have been intended to provide a specific remedy for tenants dispossessed by their own lord.73 More generally, Alexander II’s legislation has led him to be viewed by Duncan as fulfilling an ‘innovatory and codifying role’ in legal development. This is exemplified by the use of statute – written law, ius scriptum or lex – to reform existing customary law – ius non scriptum or consuetudo.74 The 1230 statutes exhibit a ‘general pattern . . . in making available a standard procedure under which the issue in dispute would be resolved by a jury rather than by other means’, that is, the ordeal. They therefore represent ‘a crucial step towards the conversion of royal justice into a common law of the kingdom’.75 In spite of the absence of contemporary records to authenticate them, a 69. For the attribution to Alexander II and the date of 1230 see MacQueen, ‘Canon law, custom and legislation’, pp. 239–40. 70. Michael Prestwich, Edward I (new edn, Yale, 1997), ch. 10; T. F. T. Plucknett, A Concise History of the Common Law (3rd edn, London, 1940), p. 27; T. F. T. Plucknett, Legislation of Edward I (Oxford, 1949); R. C. van Caenegem, An Historical Introduction to Private Law (Cambridge, 1992), p. 88; J. A. Brundage, Medieval Canon Law (London, 1995), p. 55. 71. H. L. MacQueen, ‘Expectations of the law in 12th and 13th century Scotland’, Tijdschrift voor Rechtsgeschiedenis, lxx (2002), pp. 286–7. 72. MacQueen, Common Law and Feudal Society, p. 137. 73. Ibid., p. 140. 74. Duncan, Making of the Kingdom, p. 541. 75. MacQueen, ‘Canon law, custom and legislation’, p. 244.

170

M2287 - BROWN & MAC TEXT.indd 170

10/08/2010 16:47

pa r l iame nt and t h e l a w reasonable quantity of statutes attributed to David I and William I survive although the ascriptions are given at a much later date and are unreliable and often wrong. The reason for this relates to the history of the legislative tradition itself. Duncan has argued that ‘the process of separating the laws and assigning them to various kings began in the fourteenth century’.76 Though typically presented as a body of law, this material encompasses the whole range of individual decisions, more formal legislative declarations, and miscellaneous formulations of a legal rule unrelated to any specific legislative act.77 Interpreting how that law was understood and applied and what its origins might have been is a difficult exercise. Confusingly, and without regard to these considerations, ninety-two ‘statutes’ were published in Thomson and Innes’s Acts of the Parliaments of Scotland with attributions to David I, William I and Alexander II.78 After the reign of Alexander II, that of Alexander III has left no record of newly enacted legislation although we know that there was ‘a good deal of written law in existence’ at the end of the thirteenth century.79 This leaves a limited overall picture of the legislative activity of Scottish kings and their councils in the twelfth and thirteenth centuries, if only because of the fact that ‘there was no written tradition of groups of laws issued by David I, or William, or Alexander II’.80 The statutes of 1230 are the main exception although some further instances exist, such as from 1245 and 1249.81 With the reign of Robert I, the legislative tradition becomes more certain, and we find statutes being enacted, of which some would retain legal importance well into the following century.82 Legislation was first issued under Robert in the Cambuskenneth parliament of 1314.83 Apart from being of undoubted authenticity, the statutes of 1318 amounted to no less than ‘a great code of law’, in the words of one modern assessment.84 Eighteen of 76. A. A. M. Duncan, ‘Regiam Majestatem: a reconsideration’, Juridical Review, vi (1961), p. 208. 77. T. M. Cooper, ‘Early Scottish statutes revisited’, in T. M. Cooper, Selected Papers 1922–1954 (Edinburgh, 1957), p. 239; Duncan, ‘Regiam Majestatem: a reconsideration’, pp. 206–7. 78. Cooper, ‘Early Scottish statutes revisited’, p. 238. 79. H. L. MacQueen, ‘Scots law under Alexander III’, in N. H. Reid (ed.), Scotland in the Reign of Alexander III (Edinburgh, 1990), pp. 75–6, 84; Cooper, ‘Early Scottish statutes revisited’, p. 238. 80. Duncan, ‘Regiam Majestatem: a reconsideration’, p. 207. 81. MacQueen, ‘Canon law, custom and legislation’, pp. 239–40. 82. MacQueen, Common Law and Feudal Society, p. 89. 83. McQueen, ‘The origins and development of the Scottish parliament’, pp. 239, 243, 310. 84. Cairns, ‘Historical introduction’, p. 40; discussed in Tanner, ‘Cowing the community?’, p. 69.

171

M2287 - BROWN & MAC TEXT.indd 171

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 the twenty-seven statutes related to the provision of justice.85 Among many other matters, the brieve of novel dissasine, first regulated almost a century earlier, was reformed, and an existing rule was given statutory authority that no one holding land in free tenement (that is, having right to it, heritable or otherwise) could be ejected without procedure by royal brieve in the king’s courts.86 Hector MacQueen has identified the wider significance of this activity, commenting that ‘from this time on, kings legislated regularly through parliaments and general councils, and it is possible to see the legislative tradition being built upon and reworked, particularly in the fifteenth century’.87 Apart from the making of legislation being in evidence generally from this time onwards, it is possible to identify further major legislative programmes along the lines of 1318: the Scone parliament of 1401, for example, intervened heavily in matters of land tenure with another major enactment.88 Above all in the later medieval period, the reign of James I stands out as marking a new beginning and ‘predominance’ for parliament in general and the start of a long period of involvement in substantial legislative programmes.89 It is an interesting question, deserving further consideration, why the role of parliament and legislation changed so dramatically at this point.90 Owing to James’s captivity in England, no parliament had been held since 1406, throwing into even sharper relief its frequent summoning through the rest of the fifteenth century. James’s first parliament of 1424 passed twenty-nine statutes, making it ‘one of the largest legislative parliaments of the century’,91 and, in 1425 his second passed a further twenty-five statutes. One essential qualification to this interpretation is that the scope of parliamentary legislation in the fifteenth century was broader than it later became. It encompassed the sort of administrative measures which, by the later sixteenth century, tended to be dealt with by the privy council rather than by parliament. Thus, the scale of activity is in part to be accounted for by the reliance in the fifteenth century on legislative measures for such a wide range of matters.92 Nevertheless, for whatever reason, there was an increase in legislation in parliament. An emphasis upon legislation as an instrument of policy and governance 85. 86. 87. 88. 89. 90. 91. 92.

McQueen, ‘The origins and development of the Scottish parliament’, p. 257. Cairns, ‘Historical introduction’, p. 41. MacQueen, Common Law and Feudal Society, p. 89. Cairns, ‘Historical introduction’, p. 42 usefully summarises the provisions. Tanner, Parliament, p. 7. Duncan, James I, p. 3. Tanner, Parliament, p. 9. I am grateful to Julian Goodare for this point. See also Goodare, Government of Scotland, pp. 72–3, 105.

172

M2287 - BROWN & MAC TEXT.indd 172

10/08/2010 16:47

pa r l iame nt and t h e l a w was articulated expressly by parliament. Through legislative pronouncement, James I and his parliament declared an intolerance of failure to respect the authority of the statutes which poured forth, although it is hard to know whether this reflected the king’s will alone or was supported by a wider constituency of interests. In the 1425 parliament, for example, it was ordained that it ‘be inquyrit be the kingis ministeris gif the statutis maid in his first parliament be kepit’. If any had been ‘brokyn’, punishment was to be meted out, though only ‘efter the forme and ordinance of the said parliament’.93 James’s legislation was intended to constitute repeated direct interventions in national life, and all royal officials or agents of government were exhorted to implement it.94 It is not surprising that it was in parliament the following year that an apparently impatient James took matters further into his own hands by legislating for the holding of the first ‘sessions’. We have seen that this was a new statutory judicial tribunal which was to sit separately from parliament to transact judicial business under the authority of parliament. Notions of jurisdiction, legal authority and process were as instrumental as ever in governance under James, and his aims in this regard were constantly promoted through legislation in parliament. Again, why these features should have been so prominent in James’s reign, and who helped promote this conception of governance are questions worthy of further study. Connected with this legislative activity there was a new degree of concern with statute law as a legal source, not simply an instrument of parliamentary and royal will. If governance was to depend upon the role of legislation, then the texts of that legislation would have to be accessible, authoritative and consistent with the law as a whole. In the fifteenth century, therefore, aspirations developed for certainty through gathering the texts of the law into a single volume, and even attempting a systematic codification, ratified by parliament. More generally, there was a concern with enhancing access to, distribution of and publicity for statutes, and also reviewing the need for reform of the law. These concerns are demonstrated through the appointment in the fifteenth century of various commissions to assemble collections of statute law, or to codify or restate the law as a whole, discarding that which had ceased to be applicable. Sometimes, their remit included suggesting reforms or amendments and issuing a definitive version which would be given the imprimatur of parliament. For reasons which remain unknown, these attempts failed, and it was only in the latter half of the sixteenth century that similar projects 93. RPS, 1425/3/5. See also RPS, 1426/10, commented upon in W. D. H. Sellar, ‘Forethocht felony, malice aforethought and the classification of homicide’ in W. M. Gordon and T. D. Fergus (eds), Legal History in the Making (London, 1991), pp. 49–50. 94. RPS, 1425/3/25.

173

M2287 - BROWN & MAC TEXT.indd 173

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 began to yield results, aided by the scope for publication allowed by printing. The fifteenth-century concern with the state of statute law nevertheless either contributed to, or was stimulated by, what can only be described as a dramatic emphasis upon the role of parliamentary legislation in governance itself. In the later sixteenth century, the second wave of projects was premised on similar considerations, rooted by then in the humanist ideas which had since become more prevalent in Scotland.95 Parliament and the Law: 1532‒1707 Parliament’s judicial role, originally its most distinctive characteristic, had diminished to almost nothing by 1500. Judicial sessions of the king’s council – the session – exercised what had been parliament’s ordinary civil jurisdiction and continued to do so until the foundation of the college of justice in 1532. In broader terms, in the sixteenth century, the medieval institutional model of central governance – unified government by king and council, meeting either in full parliament or less formally – becomes inadequate to describe the practice of government and the roles of parliament and council in particular. Whether such changes signal a more fundamental shift in how governance operated before 1600 is a matter of debate, although the most detailed recent research tends to support such a view.96 Despite these developments, an early seventeenth-century account of the courts still began with the statement that ‘in the Kingdome of Scotland the supreame court of all others ys the court of Parliament’.97 Even if this reflects little more than a residual perception, it indicates that the structural understanding of parliament as a court was powerful enough to outlive by more than a century routine involvement in adjudicating ordinary disputes. A late sixteenth-century account of ‘the order of the Haldinge of the Court of Parliament in Scotland’ noted that, before proceedings could begin, ‘the Counstable fensesse the Court in like manner as any other Court is fensitt’. The jurisdiction over treason may help to account for the continuing perception of parliament as a court – the ‘order of the 95. J. W. Cairns, T. D. Fergus and H. L. MacQueen, ‘Legal humanism in Renaissance Scotland’, Journal of Legal History, xi (1990), p. 43; Cairns, ‘Historical Introduction’, pp. 64–7, 95–9. 96. For an assessment of whether there was a ‘Stewart revolution in government’ see Goodare, Government of Scotland, pp. 276–97. 97. J. D. Mackie and W. C. Dickinson (eds), ‘Relation of the manner of judicatores of Scotland’, SHR, xix (1922), p. 262; cf. the recognition in 1498 by the Spanish ambassador, Don Pedro de Ayala, of the role of ‘general council’, rather than parliament, in administering justice. It is unclear whether he meant to refer to parliament, general council or council. See N. A. T. Macdougall, James IV (Edinburgh, 1989), p. 283.

174

M2287 - BROWN & MAC TEXT.indd 174

10/08/2010 16:47

pa r l iame nt and t h e l a w Haldinge’ describes its procedure ‘gyft there be any man somoned to compeare in Parliament for treason or othere such like crime’.98 Characterising parliament in this period as ‘the supreame court of all others’, however, should not obscure the fact that it had ceased to exercise a general jurisdiction at the end of the fifteenth century. R. K. Hannay identified a process of differentiation of function in explaining the institutional changes to parliament and king’s council in the later fifteenth and sixteenth centuries.99 This has remained influential in modern studies, the most notable being by Julian Goodare.100 As Athol Murray has commented in relation to council, its ‘original province was the general administration of the realm, with no real differentiation between its sittings for justice, for finance or for state affairs, except that a special commission was necessary for auditing accounts in exchequer’.101 By the end of the fifteenth century, the council was not only regularly burdened with its own judicial and financial business but also exercised what had previously been the ordinary judicial powers of parliament. By the mid-sixteenth century, the council itself had yielded to more specialised bodies constituted from lords of council, each with relatively distinct functions, and parliament now existed alongside exchequer (from 1584 carrying out its own judicial business separately), college of justice and privy council.102 Nevertheless, there remained an essential overall unity.103 Because judges of the new college of justice were both lords of council and session, they continued to give their decrees as ‘lords of council’ after 1532. They had sole authority to exercise this part of the council’s jurisdiction but it was nevertheless still technically the jurisdiction of the king’s council. The principle of exercising council’s jurisdiction across a range of discrete institutional contexts was not new, of course: the lords of the articles, for example, can be 98. J. D. Mackie, ‘The order of the holding of the court of parliament in Scotland’, SHR, xxvii (1948) pp. 193. ‘Fencing’ = the procedure required to constitute the court: W. C. Dickinson (ed.), The Sheriff Court Book of Fife 1515–1522 (SHS, 1928), p. 309. 99. Hannay, ‘On the antecedents of the college of justice’, p. 123; Hannay used a range of expressions referring to differentiation of function in the ‘departmental activities of the royal council’ (College of Justice, p. xi). See Godfrey, Civil Justice in Renaissance Scotland, pp. 98–105. 100. Goodare, Government of Scotland, pp. 106, 130, 149–72. 101. A. L. Murray, ‘Exchequer, council and session 1513–1542’, in J. Hadley Williams (ed.), Stewart Style 1513–1542: Essays on the Court of James V (East Linton, 1996), p. 108. 102. A. L. Murray, ‘Sir John Skene and the exchequer, 1594–1612’, Miscellany I (Stair Society, 1971), p. 126. 103. J. Goodare, State and Society in Early Modern Scotland (Oxford, 1999), p. 17. In the sixteenth century, despite the elaboration of mechanisms of governance, the king was often still referred to in parliamentary and conciliar records in a literal and personal way as ‘our sovereign lord’.

175

M2287 - BROWN & MAC TEXT.indd 175

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 found giving decree in relation to a dispute in 1525 in their residual capacity as lords of council.104 The privy council after 1532 itself retained a residual jurisdiction in matters not within the purview of the college of justice. Even at the end of the sixteenth century, the lords of session themselves seem to have exercised a legislative role independently from the privy council or parliament on at least one occasion in 1595.105 This issue has to be set in the context of a wider debate over the changing conception of legislation and the extent to which parliament possessed an exclusive right to legislate.106 Whether such non-parliamentary statutes as those of 1595 would have been perceived as possessing the same authority as those made in parliament is debatable. There is a sense of distinct, though not exclusive, spheres of action in the institutions of government. The power to legislate was clearly becoming associated with parliament alone in the sixteenth century, as we have already noted, but this reflected a gradual shift in practice and perception rather than a sudden recasting of legal authority. This institutional analysis is further complicated by the fact of the considerable overlap in personnel between the various institutions in the sixteenth century.107 The more important broader point may be the simple functional one that, through the development of the role of the privy council and other governmental institutions, parliament was enabled to concentrate on legislation.108 Situating the role of parliament within a framework which defined its legislative competence in an exclusive way should be regarded as a juridical development to be traced in its own right, and one which may have lagged behind the institutional changes. Until 1707 it remained technically possible for parliament to be drawn back into its role as a civil law court in certain ways, however infrequent and exceptional this was in practice. Particular debate was to arise in the later seventeenth century in the context of protests for remeid of law, raising the question of whether an appeal could be made to parliament from a decree of the session. Parliament’s judicial role had never been explicitly abolished as such, and its potential relationship with litigation in the college of justice became remote, undefined and uncertain after 1532. By 1663, it could be 104. Murray, ‘Exchequer, council and session 1513–1542’, p. 105. 105. Godfrey, Civil Justice in Renaissance Scotland, pp. 32–3; see also Murray, ‘Sir John Skene and the exchequer, 1594–1612’, pp. 127, 130. 106. Goodare, ‘The Scottish parliament and its early modern “rivals”’, p. 171, which omits the example from 1595; Goodare, State and Society, p. 17; Brown, Kingdom or Province?, p. 16. For a remark on ‘the essential medievalism of government before 1637’ see K. M. Brown, review of Goodare, State and Society in Early Modern Scotland, in SHR, lxxx (2001), p. 125. 107. Murray, ‘Sir John Skene and the exchequer, 1594–1612’, p. 126. 108. I am grateful to Julian Goodare for this observation.

176

M2287 - BROWN & MAC TEXT.indd 176

10/08/2010 16:47

pa r l iame nt and t h e l a w articulated that an appeal from a decree of the lords of session to parliament was not competent, the lords of the articles commenting upon a case remitted to them that ‘the reversing of any such decree must needs be upon the iniquitie of the Judges of the supream Judicator of this Kingdom in maters civill from whom ther is no appeall be the lawes of this Nation’.109 This preserves something of the medieval notion of falsing the doom, in which the lower judges or members of an assize are found to have erred, but is distinguishable from an appeal on the substantive legal merits of a case as such. The impossibility of appeal from the college of justice to parliament had been acknowledged in at least one unofficial but authoritative commentary from the early seventeenth century.110 It also noted, however, that in some matters of greate ymportance and difficultie (for which there was noe president for a warrant for them to proceede into), they [i.e. the judges of the session] have bene accustomed (but verie seldome) to remitt these matters to be iudged upon by parliament, that by statute of parliament they may have a warrant for their decision in such like cases thereafter.111 Such a practice would represent an interesting parallel with the procedure, already discussed, from 1535 when the college of justice referred to parliament a question of interpretation of laws which had been ‘producit’ in court, following which the lords of the articles determined past usage and how the laws in question should be construed in future.112 This seventeenth-century procedure resulted in the formality of a statute, rather than mere informal communing between parliament and council, such as occurred in 1535, suggestive of the greater primacy being given to resort to statute by this time. Such developments were also reflected in the prominence within juristic discussion of how to conceptualise statutes as sources of Scots law.113 A separate procedure of lodging a protest for ‘remeid of law’ against decisions of the session did continue up until 1707 (and beyond), however.114 109. RPS, 1663/6/99. For discussion see J. D. Ford, ‘Protestations to parliament for remeid of law’, SHR, lxxxviii (2009), pp. 67–8. 110. Mackie and Dickinson (eds), ‘Relation of the manner of judicatores of Scotland’, pp. 265–6. 111. Ibid., p. 266. 112. RPS, 1535/50. 113. J. W. Cairns, ‘The civil law tradition in Scottish legal thought’, in D. L. Carey Miller and R. Zimmermann (eds), The Civilian Tradition and Scots Law (Berlin, 1997), pp. 200–3. 114. For an account of protests for remeid in parliament, see Godfrey, Civil Justice in Renaissance Scotland, pp. 33–9; a complemetary perspective with much new detail is offered in Ford, ‘Protestations to parliament for remeid of law’.

177

M2287 - BROWN & MAC TEXT.indd 177

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 This was an exceptional and rarely sought measure, specifically mentioned in the Claim of Right of 1689, but does not seem to have constituted a judicial appeal. Until recently, little has been added to the account given by Rait, who pointed out that, unlike an appeal, such a protest did not put a stop on any continuing court process or implementation of the decree protested against. If it permitted any review of decisions by the session, it must have operated on the narrowest of grounds concerned with the conduct of the judges rather than their decision on purely legal grounds.115 In the later seventeenth century, the ordinary procedure of protesting for remeid of law seems, in a parliamentary context, to have become caught up in a misconceived attempt to assert a full right of appeal against decisions of the session. The safeguarding of protesting for remeid in the Claim of Right reflects the terms of a heated dispute between 1674 and 1676 over the right to challenge a decree of the college of justice by protest to parliament.116 Even by 1707, however, conflicting views of the nature of such protests had failed to be clearly resolved. The resulting ambiguity may have helped pave the way for appeals from the court of session to the post-1707 house of lords.117 In terms of the sources of the law, a renewed emphasis upon the importance of legislation is again evident towards the end of the sixteenth century, with a new series of law commissions.118 In addition, there was an intensification of the role of legislation unparalleled since the parliaments of James I. Goodare has given this point great emphasis, arguing that ‘the Scottish state . . . became a legislative body of a new kind from the 1580s onwards’.119 In part this assessment relates to the volume of legislation. Just as James I’s parliaments marked a step increase in the amount of legislation passed by parliament, so too did those of James VI. As Goodare notes, ‘The law was transformed by an explosion of legislative activity.’120 The trend was not uniform, however. In the early seventeenth century, legislation ‘declined in quantity and was confined to a narrower sphere. More things were done 115. Rait, Parliaments, p. 475; Cairns, ‘Historical introduction’, pp. 113, 123, 125. 116. Ford, ‘Protestations to parliament for remeid of law’, pp. 68–73; J. M. Simpson, ‘The advocates as Scottish trade union pioneers’, in G. W. S. Barrow (ed.), The Scottish Tradition (Edinburgh, 1974), p. 173. Further political context is given in C. Jackson, Restoration Scotland, 1660–1690: Royalist Politics, Religion and Ideas (Woodbridge, 2003), pp. 84–6. 117. Ford, ‘Protestations to Parliament for Remeid of Law’, pp. 106–7. 118. Cairns, ‘Historical introduction’, pp. 96–8. See also J. W. Cairns, ‘Ius Civile in Scotland’. For legislation directed towards law reform in the 1550s, see P. E. Ritchie, ‘Marie de Guise and the three estates, 1554–1558’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560, pp. 190–2. 119. Goodare, State and Society, p. 97. 120. Goodare, Government of Scotland, p. 73.

178

M2287 - BROWN & MAC TEXT.indd 178

10/08/2010 16:47

pa r l iame nt and t h e l a w by the royal prerogative instead.’121 But the change seen from the 1580s was never reversed. The increased importance given to parliamentary legislation relates to a perception that it possessed a particular authority in relation to other sources of law.122 In a description written by an unknown author, apparently in the early seventeenth century, this is evident in an exclusive identification of municipal (that is, domestic) law with statute.123 The document may have had a connection with the deliberations of the union commissioners not long after 1603. Custom-based law or ‘practick’ is radically downgraded, apparently because of its want of authenticity as written law. The author is concerned with how legal authority is vouched for in court, and explains that ‘the Judge eyther proceedeth accordinge to warrant of the municypall law, which is the statutes of parliament’ or which failing, the civil (Roman) law.124 The concern is with what ‘warrant’ the judge has for a decision. The common law of Scotland is relegated to the category of custom without clear legal ‘warrant’, and whose authority is therefore problematic. The author argues, however, that there be many conclusions as verie Axioms never contraverted uppon, as particulerly in matters of discent and succession of Landes and such other thinges, whereuppon the Judges doe proceede havinge noe particuler warrant for the same but in all former ages havinge bene acknowledged as infallible and allowed customes and consuetudines. This is a somewhat extreme account which must be balanced against the views of jurists such as Craig who identified custom more directly as constituting law, albeit granting it less authority than statutes.125 The anonymous account may be skewed by an evident need to address a readership of English lawyers, 121. Goodare, State and Society, p. 326. See Goodare, Government of Scotland, ch. 4, esp. p. 111 for discussion of legislation and government by prerogative. 122. The fundamental study of how law was conceived in seventeenth-century Scotland is now Ford, Law and Opinion in Scotland. It is impossible to do justice here to its profound and complex treatment of the topic. For an initial attempt to appraise some of its central claims see A. M. Godfrey, ‘Ratio Decidendi and foreign law in the history of Scots Law’, in W. Hamilton Bryson, Serge Dauchy, and M. C. Mirow (eds), Ratio Decidendi: Guiding Principles of Judicial Decisions, Volume 2: Foreign Law (Berlin, 2010). 123. The author might have been Sir Thomas Hamilton, advocate, lord president of the session, earl of Melrose (1619), earl of Haddington (1627), discussed in K. M. Brown, Bloodfeud in Scotland 1573–1625 (Edinburgh, 1986), p. 232, or else Sir John Skene. 124. Mackie and Dickinson, ‘Relation of the manner of judicatores of Scotland’, pp. 262, 268. 125. Cairns, ‘Ius Civile in Scotland, ca.1600’, pp. 154–5.

179

M2287 - BROWN & MAC TEXT.indd 179

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 seeking to distinguish Scots law from the English ‘common lawe’ in a manner which distorts the Scottish position. It points, however, to an intellectual climate in which statute had gained remarkably in authority and prestige at a time when, politically, the role of statute had been enhanced further than ever before, and the business of a parliament must have been seen increasingly as the enacting of legislation.126 By a commission initiated by Queen Mary under the great seal in 1566, fifteenth-century attempts to assemble collections of written law were revived. More were launched through parliamentary legislation in 1567, 1575, 1578 and 1592. The results were two printed compilations of legislation from 1424 onwards, the ‘Black Acts’ of 1566 and a further version based upon this in 1597, as well as in 1609 Skene’s editions of Scottish medieval legal texts and legislation encompassing Regiam Majestatem and the ‘auld lawes’.127 Equally important were the by-products of the commissions, in the form of the first substantial works of juristic commentary upon the laws of Scotland since the fourteenth century, David Chalmers’s ‘Dictionary of Scots Law’ (1566), Balfour’s Practicks (compiled 1574–83) and Skene’s De Verborum Significatione (1597).128 It is hard to dissociate these developments from the writing of the first great treatise on Scots law, Thomas Craig’s Jus Feudale (c.1600), Craig having been an advocate who served on the 1578 commission. While the sources of Scots law continued to be ordered and reconceptualised as the seventeenth century progressed, and the jurisdictional relations of parliament to the college of justice tested, the personal union of the crowns in 1603 engendered other constitutional challenges to the existing legal order. These questioned at times the autonomous existence of a parliament in Scotland and the continuing separation of Scots and English law. The most explosive challenge to the constitutional order was the Cromwellian conquest of 1651 and the incorporation of Scotland into a commonwealth with England and Ireland. But prior to this, the Covenanting revolution also affected the constitutional order significantly, and parliament’s structure was reformed to dramatic effect. The lords of the articles and the clerical estate were abolished; the voting strength of the shire commissioners was doubled; a Triennial Act, was passed; officers of state, privy councillors and senators of the college of justice were to be chosen only with the ‘advyse and approbatione’ of parliament; and a system of parliamentary committees was established which 126. See also the discussion in Ford, Law and Opinion in Scotland, pp. 129, 133, 179. 127. Cairns, ‘Historical introduction’, pp. 96–7. 128. I am grateful to Julian Goodare for the reference to and information about Chalmers’s Dictionary: British Library, Add. MS 27472. Chalmers was one of the 1566 commissioners, and presented the dictionary to Mary soon after the commission. See Goodare, The Government of Scotland, pp. 77–8.

180

M2287 - BROWN & MAC TEXT.indd 180

10/08/2010 16:47

pa r l iame nt and t h e l a w allowed the legislature to assume an executive role. In particular, a committee of estates was created by legislation in 1640, with sweeping powers in relation to ‘ordering the cuntrie and whole body and inhabitants thereof’.129 The use of a committee of estates between sessions of parliament was continued until 1651, and then revived briefly at the Restoration in 1660 prior to the reconvening of parliament in 1661.130 The question of a union of laws and parliaments had become a live issue soon after 1603. King James declared in 1604 that ‘his wish above all things was, at his death, to leave one worship to God; one kingdom entirely governed; one uniformity in laws’.131 This was addressed on a number of occasions during the seventeenth century but remained unresolved until the settlement of 1707.132 The English and the Scottish parliaments appointed commissioners in 1604 and, while their deliberations resulted in limited proposals which were considered in 1607, the negotiations ultimately failed. Some of the proposals would have resulted in radical change. In advance of the talks in October 1604, for example, King James wanted the commissioners to discuss the creation of a single monarchy and a united parliament. In the English parliamentary debates of 1606–7, the extension of English law to Scotland and the abolition of the Scottish parliament were mooted.133 Moves towards a limited civil union were brought up again by the Scottish commissioners to London in 1640–1. These included suggestions of ‘regular meetings every three years of the parliaments of the two countries to try disputes between the kingdoms and appoint commissioners to negotiate about them’ but the English parliament did not respond favourably.134 It was only under the Cromwellian occupation that a union of parliaments was first achieved, though without any significant steps towards a union of laws being taken in consequence.135 English rule and the Cromwellian union project developed incrementally during the 1650s, and were largely concerned with governance and the exercise of jurisdiction rather than with the content of the laws. Without a parliament in Scotland, though, and with the presence of English judges and a reconstituted set of law courts, the possibility of 129. RPS, 1640/6/42. 130. F. D. Dow, Cromwellian Scotland 1651–1660 (Edinburgh 1979), pp. 21, 268–9. 131. D. H. Willson, ‘King James I and Anglo-Scottish unity’, in W. A. Aiken and B. D. Henning (eds), Conflict in Stuart England (London, 1960), p. 45. 132. B. P. Levack, ‘English law, Scots law and the union, 1603–1707’, in A. Harding (ed.), Law Making and Law Makers in British History (London, 1977), p. 105; Goodare, Government of Scotland, pp. 280–1. 133. Willson, ‘King James I and Anglo-Scottish unity’, pp. 50–2; RPS, 1604/4/20. 134. Stevenson, The Scottish Revolution, p. 221. 135. Ford, Law and Opinion in Scotland, ch. 2 is now the most detailed and authoritative treatment of the changes in the legal system during the interregnum.

181

M2287 - BROWN & MAC TEXT.indd 181

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 Scots law being assimilated to English law must have been heightened. That the incorporation of Scotland into the Commonwealth made it natural that the issue should be addressed is evident in instructions to the newly created council which was to sit in Edinburgh from September 1655. Its members were enjoined to ‘promote the union by having the proceedings in courts of judicature conducted agreeably to the laws of England, as far as the rules of the courts will permit’. This has sometimes been interpreted as indicating that assimilation of laws was a goal of the Commonwealth although, in itself, the instruction does not seem to envisage the substitution of English law for Scots law.136 When the Westminster parliament debated a bill of union in November, 1656, the suggestion that an incorporating union was possible was rejected, ‘except [that is, unless] all there lawes were first altered and be as the lawes of England are’.137 The claim that a union of laws was promoted under Cromwell therefore seems exaggerated. Even proposals in 1655 to replace the Scottish exchequer court were considered acceptable only after being found ‘not contrary to the law of Scotland’.138 Between June 1651 and January 1661 no Scottish parliament met and the court of session ceased to operate between February 1650 and June 1661.139 The abeyance of parliament had profound consequences for the administration of justice. It could also have opened up the possibility of a one-sided legal assimilation between England and Scotland. In December 1651, the Westminster parliament had sent eight commissioners to provide for the civil administration of Scotland.140 Their instructions threatened an imposition of English law but only in relation to governmental matters.141 They were to see ‘that the Lawes of England as to matter of government be put to Execution in Scotland’.142 This was qualified as being ‘as neere as the constitution and use 136. Dow, Cromwellian Scotland, p. 166; B. P. Levack, ‘The proposed union of English law and Scots law in the seventeenth century’, Juridical Review, New Series, xx (1975), p. 112. 137. C. S. Terry (ed.), The Cromwellian Union (SHS, 1902), p. lxix, n. 1. 138. A. R. G. Macmillan, ‘The judicial system of the commonwealth in Scotland’, Juridical Review, xlix (1937), p. 247. 139. Dow, Cromwellian Scotland, pp. 270–1; Stevenson, ‘The covenanters and the court of session’, p. 244; Young, Scottish Parliament, pp. 283–8; D. Stevenson, Revolution and Counter Revolution in Scotland 1644–51 (London, 1977), p. 176. 140. For a much more detailed account see Ford, Law and Opinion in Scotland, pp. 92–101, 108–16. 141. Macmillan, ‘The judicial system of the commonwealth in Scotland’, pp. 241–2. 142. Dow, Cromwellian Scotland, p. 33; D. Stevenson, ‘Cromwell, Scotland and Ireland’, in J. Morrill (ed.), Oliver Cromwell and the English Revolution (London, 1990), p. 176, correcting the misinterpretation of this as a general imposition of English law in H. R. Trevor-Roper, ‘Scotland and the puritan revolution’, in Religion, the Reformation and Social Change (2nd edn, London, 1972), p. 420.

182

M2287 - BROWN & MAC TEXT.indd 182

10/08/2010 16:47

pa r l iame nt and t h e l a w of the people there and the present affairs will permit’.143 On 31 January 1652, the jurisdiction of existing Scottish courts was removed, with seven commissioners for the administration of justice being appointed in the following May.144 Union discussions took place in London from October 1652 until April 1653 between twenty-one Scottish deputies, elected by the burghs and shires, and a committee of the Westminster parliament although the Scots had only a consultative role in the proceedings.145 Following Cromwell’s appointment as Lord Protector of England, Scotland and Ireland in 1653, under the Instrument of Government, an ordinance was promulgated by the council of state in England on 12 April 1654 creating an incorporating union which brought Scotland and England into one commonwealth under one parliament. Thirty Scottish, members were to be elected to sit at Westminster although, in the first elections in 1654, only twenty-two were returned of whom nine were Englishmen. There was, in fact, a ‘predominance of English influence’ in all three elections (1654, 1656 and 1659).146 It might be expected that these developments would have begun to subvert the historic integrity of Scots law. In March 1655 fresh instructions to the Scottish council seemed to go further, referring to justice being carried on ‘according to the laws of England’.147 Brian Levack has concluded, however, that ‘no substantial changes occurred in Scottish private law, as the published decisions of the English judges clearly reveal’.148 A recent reappraisal by John Cairns emphasises that ‘despite innovations and the aim of assimilation, continuity in the law is what is most obvious’.149 Not only was the Scottish parliament reconvened on 1 January 1661 but an ‘act rescissory’ of 1661, blaming those who ‘did assume unto themselffs the Royall power, keept and held Parliaments at thair pleasure’, was passed to ‘annull the pretendit Parliaments’ between 1640 and 1648 and all ‘acts and deids past and done in them’.150 Legal judgments between 1650 and 1661 were to remain valid, however.151 Despite the reconstitution of parliament and legal order following the Restoration, the later seventeenth century saw the possibility of legal union explored again before the ultimately successful 143. 144. 145. 146. 147. 148. 149. 150. 151.

C. H. Firth (ed.), Scotland and the Protectorate (SHS, 1899), p. 395. Dow, Cromwellian Scotland, p. 36. Ibid., p. 48. Young, Scottish Parliament, pp. 299, 302. Ford, Law and Opinion in Scotland, p. 109. Levack, ‘English law, Scots law and the union’, p. 111. Cairns, ‘Historical introduction’, p. 104. RPS, 1661/1/158. R. Lee, ‘Retreat from revolution: the Scottish parliament and the restored monarchy, 1661–1663’, in J. R. Young (ed.), Celtic Dimensions of the British Civil Wars (Edinburgh, 1997), p. 195.

183

M2287 - BROWN & MAC TEXT.indd 183

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 negotiations of 1706. In 1670 Charles II sanctioned the appointment of commissioners to discuss parliamentary union. Disagreement resulted, with Scottish objections focusing on the need to retain parliament in order to safeguard the fundamental laws and government of Scotland.152 Thereafter, there was a consensus that, in any Anglo-Scottish union, Scotland’s private law and much of its public law would have to remain in place although the general content of the articles of 1707 still resembled closely the 1670 proposals.153 The creation of Great Britain in 1707, and the provision that it be represented by ‘one and the same parliament’, brought the Scottish parliament and its relationship with the law of Scotland to an end. The Treaty of Union provided that, apart from laws concerning regulation of trade, customs and excise, ‘all other laws in use within the Kingdom of Scotland, do after the Union, and notwithstanding thereof, remain in the same force as before . . . but alterable by the Parliament of Great Britain’. In relation to changes to the law, and especially whether the laws of England and Scotland should be brought into conformity, the proviso was added ‘that no alteration be made in laws which concern private right, except for evident utility of the Subjects within Scotland’.154 Such provisions seem an important expression of the connection between Scots law and national identity. Although Colin Kidd has argued that ‘the distinctiveness and semi-autonomy enjoyed by Scots law did not constitute bulwarks of Scottish nationhood within the new British state’, it is significant that he offers no alternative interpretation of the articles of union themselves.155 More persuasively, John Cairns has noted that ‘the special provisions protecting Scottish courts and Scottish private law indicate . . . that the Union was seen as a possible threat’.156 Union essentially terminated the legislative tradition in Scotland, and led in the eighteenth century to ‘relative legislative neglect of Scottish affairs’.157 In 1708, the Scottish privy council was also dissolved.158 The disappearance 152. Levack, ‘The proposed union of English law and Scots law’, pp. 113–14. 153. B. P. Levack, The Formation of the British State: England, Scotland and the Union 1603– 1707 (Oxford, 1987), p. 68; C. A. Whatley, Bought and Sold for English Gold? Explaining the Union of 1707 (2nd edn, East Linton, 2001), p. 20. 154. RPS, 1706/10/257. See the extensive discussion in J. D. Ford, ‘The legal provisions in the Acts of Union’, Cambridge Law Journal, lxvi (2007). 155. C. Kidd, ‘Eighteenth-century Scotland and the three unions’, in Proceedings of the British Academy, cxxvii (2005), p. 177. 156. J. W. Cairns, ‘Scottish law, Scottish lawyers and the status of the union’, in J. Robertson (ed.), A Union for Empire: Political Thought and the British Union of 1707 (Cambridge, 1995), pp. 248, 250–3. 157. Cairns, ‘Historical introduction’, p. 147. 158. P. G. B. McNeill, ‘The passing of the Scottish privy council’, Juridical Review, x (1965), pp. 263–8.

184

M2287 - BROWN & MAC TEXT.indd 184

10/08/2010 16:47

pa r l iame nt and t h e l a w of parliament had little effect on the administration of justice, however, owing to the previous abandonment of its judicial functions in the late fifteenth century and, through the foundation of the college of justice in 1532, the development of a permanent central court and legal system based upon it. Famously, as one of the foundations of the union settlement, it was provided that the court of session ‘do after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the laws of that Kingdom, and with the same Authority and Privileges as before the Union’.159 Curiously, the union promoted a greater role for the parliament of Great Britain in judicial matters than the Scottish parliament had recently enjoyed because civil appeals to the house of lords were permitted under the articles of union and became quickly established.160 This superseded the limited notion of merely lodging a protest for ‘remeid of law’ and was to be one of the most influential legacies of the union on the development of Scots law.

159. The full provisions are more complex: see Cairns, ‘Historical introduction’, pp. 114–16. 160. Cairns, ‘Historical introduction’, p. 123; A. J. MacLean, ‘The 1707 union: Scots law and the house of lords’, Journal of Legal History, iv (1983); Ford, ‘Protestations to parliament for remeid of law’, pp. 99–107.

185

M2287 - BROWN & MAC TEXT.indd 185

10/08/2010 16:47

chap t e r 7

The Law of the Person: Parliament and Social Control Alastair J. Mann

M

odern, democratic institutions are expected to place the concerns of the people at the heart of policy, reflecting their economic, social and ethical priorities. Pre-modern, pre-democratic parliaments were representative in their own way: the elite, headed by the monarch, embodied the kingdom but protected their privileges and property and, in their different estates, promoted the interests of church, aristocracy and commerce, while some pressure groups, such as pre-Reformation church councils and the legal profession, were also influential. The activities of the ‘rivals to parliament’ – the privy council, convention of royal burghs and the post-Reformation general assembly of the Church of Scotland – make it difficult to be certain about where the initiative lay with public policy as legislated by parliament. Whatever their origins, at numerous junctures parliament gave time to consider the making of laws that impinged directly on the lives of the people.1 The influence of the medieval ‘old laws’ on parliamentary legislation is difficult to ascertain. Regiam Majestatem, the medieval law book of Scotland, is of obscure origin although it appears to be based largely on the twelfthcentury English justiciar, Ranulf de Glanville. It was a manual of procedure but also an amalgam of canon and common law which pointed to justice and fairness, for example, in contractual arrangements. Other early handbooks of procedure, such as Quoniam Attachiamenta (or Leges Baronum), also influenced general policy even though they are rarely referenced in statute. Their 1. For a starting-point on governing the population see ‘Government and people’ in J. Goodare, The Government of Scotland, 1560–1625 (Oxford, 2004), pp. 246–75, and also on the nature of legislation and its enforcement see pp. 36–41 and 113–27. For rivals see J. Goodare, ‘The Scottish parliament and its early modern “rivals”’, PER, 24 (2004), which improves on Rait, Parliaments, pp. 9–16.

186

M2287 - BROWN & MAC TEXT.indd 186

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l significance is seen in the priority given to them in the instructions to the parliamentary commissions of 1426 and 1469 which sought to create a definitive manual of law.2 Furthermore, social legislation must have drawn directly on canon and common law and on awareness of the customs of other nations. Relationships between the volume of legislation, the success or failure of policy and, above all, the motives for it are, however, hard to establish.3 James I and James VII have been seen as monarchs who particularly favoured making laws to regulate public activity. Equally, certain periods, such as immediately after the Reformation, the Covenanting decade of the 1640s or the Restoration, saw increased legislative activity where social control was a tool of political consolidation. A detailed analysis of parliament and social control may reveal less expected trends, however. The Family The law of the person has at its core the law of the family, and the natural starting point is marriage. Canon law codified the principles of marriage with regard to its sacramental nature, the exclusive jurisdiction of the church, and the importance of consummation. It confirmed a range of impediments, such as age, forbidden degrees and crimes such as the killing of a priest, along with various freedoms, including the remarkable medieval concession of equality of men and women under the law of marriage.4 Parliament maintained these principles (often tacitly) on either side of the Reformation. For example, marriage was forbidden before the age of puberty (fourteen years for men and twelve for women) though, in reality, marriages occurred much later: nearly two-thirds of nobles in the period 1560 to 1637 married between the ages of eighteen and twenty-five.5 It was at the 1552 parliament, under the governorship of James Hamilton, second earl of Arran, that we see the first 2. For the common law, Regiam Majestatem and the ‘old laws’ see H. L. MacQueen, Common Law and Feudal Society in Medieval Scotland (Edinburgh, 1993), pp. 89–98; A. M. Godfrey, Civil Justice in Renaissance Scotland: The Origins of a Central Court (Leiden, 2009), pp. 9–10, 18–23, 370–3; T. M. Cooper, ‘The Sources of Scoto-Norman law’ in G. Campbell and H. Paton (eds), An Introduction to Scottish Legal History (Edinburgh, 1958), pp. 5–8. For the law commissions of 1426 and 1469 see Goodare, Government of Scotland, pp. 75–6; RPS, 1426/13 and 1469/34. 3. A. J. Mann, ‘“James VII, king of the articles”: political management and parliamentary failure’, in Brown, and Mann (eds), Parliament and Politics in Scotland, 1567–1707, pp. 194–5; Goodare, Government of Scotland, p. 73. 4. J. D. Scanlan, ‘Husband and wife’, in Introduction to Scottish Legal History. 5. K. M. Brown, Noble Society in Scotland. Wealth, Family and Culture from Reformation to Revolution (Edinburgh, 2000), p. 115; R. D. Ireland, ‘Husband and wife’, in Introduction to Scottish Legal History, pp. 82–9

187

M2287 - BROWN & MAC TEXT.indd 187

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 show of interest in updating the law of marriage, although a widow’s right to enjoy the terce on a husband’s death had been confirmed in 1504.6 The 1550s were years when reforming mentalities in Roman Catholic and in Protestant quarters shared concerns for correct relationships. Thus, in 1552, bigamists and adulterers were targeted for their violation of marriage, the former to be punished as perjurers and the latter to be put to the horn (outlawed). Here evangelical enthusiasm combined with legislators’ desire to stabilise the heritable transfer of property. The major change after the Reformation was not so much to the principles of marital law but in the manner of its policing. With the breach from Rome came a new commissary court based in Edinburgh, given authority by charter and statute in 1564 and 1567, soon followed by a system of regional courts. Advocates appointed as commissary judges presided, and their decisions over matters such as divorce, and appeals to the court of session (the ‘king’s great consistory court’ from 1609), along with new parliamentary statutes, gradually distanced marital law from the old canon law. 7 Restrictions on marriage caused by consanguinity (blood relationship) and affinity (relationships acquired by marriage) were a particular problem for countries that established relationships at local level and had relatively small populations. The fourth Lateran Council of 1215 standardised the forbidden degrees to those within four degrees of consanguinity and affinity but, with the addition of ‘spiritual degrees’, to bar those closely related to witnesses and godparents at baptisms and the possibility of papal dispensation. High-profile cases, such as the politically convenient annulment for consanguinity of the first marriage of Alexander Stewart, duke of Albany in 1478, confirmed by parliament in 1516 to secure the rights of John Stewart, the succeeding duke, will have done nothing to reassure those anxious about abuse of the law. In 1567, parliament responded to lobbying from the church, expressed explicitly in the First Book of Discipline (1560), with a more rigorous yet more practical code under which persons in the second degree (or more distant) of consanguinity or affinity could marry provided this did not conflict with God’s law as contained in the book of Leviticus, chapter 18. Two interrelated acts were passed, one declaring lawful such marriages and the other introducing the capital crime of incest as defined by 6. RPS, A1504/3/122; A1552/2/11. Terce: a widow’s right to the liferent of one third of her husband’s heritable estate. 7. G. Donaldson, ‘The Church courts’, and Ireland, ‘Husband and wife’, in Introduction to Scottish Legal History, pp. 82–3 and 368–9; RPC, first series, i, p. 252; T. Thomson (ed.), Acts and Proceedings of the General Assemblies of the Kirk of Scotland [BUK] (3 vols, Bannatyne Club, 1839–45), i, pp. 19, 34; RPS, 1567/4/6, 1609/4/20.

188

M2287 - BROWN & MAC TEXT.indd 188

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l Leviticus.8 Therefore, while the marriage of first cousins was now possible, the ultimate sanctions for incest were clarified and these provisions were ratified in 1581. The Covenanters sought to retain clarity in the law and, following appeals from the general assembly to revisit the topic because of a perceived increase in incest, ratified existing law in 1644 and 1646. In 1649, however, the estates included a restatement and tabulation of the forbidden degrees, which was tacitly repeated in 1690 when the Confession of Faith restated the general principles and was inserted in the parliamentary record, as it had been in 1560 and 1567.9 Parliament’s final word on forbidden degrees and incest, supporting previous measures, came in the 1695 act against irregular marriages, pointing to a concern that existed before and after the Reformation. Clandestine marriages, without due ceremonial, before a clergyman and witnesses, were discouraged. The medieval tradition was that the marriage ceremony was carried out in public even though it was only following the Council of Trent (1563) that in Catholic Europe preference transformed into insistence that a priest officiated.10 Throughout Western Christendom, including Scotland, the publication of banns before marriage became the norm after the fourth Lateran Council, and this continued after the Reformation, helping to publicise the marriage process. In seventeenth-century Scotland, regimes of a different hue became concerned about Scots marrying in England and Ireland, and legislation under the Covenanters in 1641 and at the Restoration in 1661 insisted that banns be posted in such circumstances, with punishments imposed according to rank.11 The church, supported by the state, was attempting to control an increasingly mobile population in a period of intensive military and commercial interaction within the British Isles. The prevention of clandestine marriages was a common objective of 8. Scanlan, ‘Husband and wife’, pp. 77–8 and Ireland, ‘Husband and wife’, p. 93; RPS, A1516/11/1, A1567/12/14–15; J. K. Cameron (ed.), The First Book of Discipline (Edinburgh, 1972). 9. RPS, 1581/10/20, 1644/6/22, 1645/11/181 (1646), 1646/11/405 (1647), 1649/5/219. The 1690 Confession of Faith is the only one recorded in the manuscript registers of parliament, though those of 1560 and 1567 appear in printed editions of the acts: RPS, 1690/4/33, A1560/8/3, A1567/12/3. 10. RPS, 1695/5/118; Scanlan, ‘Husband and wife’, p. 73 and Ireland, ‘Husband and wife’, pp. 84–5; M. Ingram, Church Courts, Sex and Marriage in England, 1570–1640 (Cambridge, 1987), p. 132. Public betrothal was seen as more important in the medieval period as it was generally followed by sexual intercourse, thus completing the marriage. T. C. Smout, ‘Scottish marriage, regular and irregular, 1500–1940’, in R. B. Outhwaite (ed.), Marriage and Society: Studies in the Social History of Marriage (London, 1981), pp. 211–12. For a medieval study see C. Brooke, The Medieval Idea of Marriage (Oxford, 1991). 11. RPS, 1641/8/35, 1661/1/302; Ireland, ‘Husband and wife’, pp. 84–5.

189

M2287 - BROWN & MAC TEXT.indd 189

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 presbyterians and episcopalians from the mid-seventeenth century onwards – both demanded officiation by an authorised minister. Penal laws were introduced in 1649 with the ‘act against clandestine marriages’, which inflicted three months’ imprisonment and heavy fines according to the status of the betrothed, and banishment under pain of death for the unauthorised minister or priest. The bleakness of the 1649 act was repeated in 1661, though with the fines much reduced – £1,000 not £5,000 for nobles, and 100 merks not 500 merks for ordinary individuals, and a further restatement under episcopacy took place in the 1672 session, and under presbyterianism in 1695. An act of 1698 was parliament’s last detailed statement on the issue and it included the removal of the death penalty. It would not be until the Westminster Toleration Act of 1712, however, that some restrictions would be relaxed in favour of dissenters.12 Marital breakdown was a matter of concern for parliament, not least because of the implications for inheritance. The first statute regarding adultery arose in 1552, with open adulterers who would not ‘desist and ceis thairfra for feir of ony spirituall jurisdictioun or censuris of halie kirk’ to be put to the horn and lose their property. ‘Notour’ (notorious) adulterers were distinguished from those who, when censured, mended their ways. Thus, in an act of 1563, notorious and manifest adulterers were to be punished by death. Although the church sought clarification of the law in 1567, it was not until after a commission was formed that a new and key explanatory act came in 1581. This identified three classes of notorious adultery subject to the penalty of execution – where adultery produced a child, where it was open and well known, and where there was contempt for the censures of the church.13 The legislative position remained unchanged until 1707. After the Revolution of 1689, although draft acts were considered in 1696 and 1698, existing legislation was simply ratified in 1701 as part of a wide-ranging ‘act against profaneness’ – on this issue presbyterians and episcopalians were agreed.14 While the law of adultery was tightened at the Reformation and thereafter reviewed from time to time, the law of divorce received less attention, and divorce rates remained low. There was no strong ecclesiastical pressure to 12. Suppression of ‘disorderly marriages’ was a priority for the state as well as the church, RPS, 1649/1/127, 1661/1/302, 1672/6/30, 1695/5/118, 1698/7/113; 10 Anne, c.7; RPS, 1681/7/26. For control by justices of the peace see RPS, 1685/4/37, 1617/5/22, 1661/1/423. 13. RPS, A1552/2/12, A1563/6/10, A1567/12/24, 1581/10/26. Acts in 1592 and 1600 modified the legal status of adulterers with regard to future marriages, RPS, 1592/4/29, 1600/11/42. For England and the introduction of death penalty in 1650 see Ingram, Sex and Marriage in England, pp.153, 248–9. 14. RPS, 1696/9/156, M1696/9/18, 1698/7/99, M1698/7/16, 1700/10/240 (1701).

190

M2287 - BROWN & MAC TEXT.indd 190

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l alter the basics indicated by canon law, although the break with Rome saw the passing of jurisdiction to the commissary courts and court of session for appeals on divorce cases, as well as the refocusing of ideas on divorce emanating from Calvin and Geneva. Divorce could be justified by adultery or desertion by the party at fault, a focus on the sexual and cohabitive behaviour of spouses, though not on more problematic circumstances, such as violence, abuse or simple incompatibility. Nevertheless, in individual cases the estates could and did act to protect wives.15 The 1563 act introducing the death sentence for adultery also stipulated that it should not prejudice the right of the injured party to seek divorce. The position of the church and state is summarised in chapter 24 of the Confession of Faith approved by parliament in 1690: Adulterie or fornication committed after a contract, being detected before marriage, giveth just occasion to the innocent party to dissolve that contract. In the case of adultery after marriage, it is lawfull for the innocent party to sue out a divorce, and after the divorce to marry another, as if the offending party were dead.16 Nonetheless, parliament did make periodic legal changes. In 1573 an act declared that, after a four-year separation agreed by a judge, an action of adherence could be brought and the couple obliged to appear in court. If they failed to obey or to respond to the admonitions of the clergy, excommunication would follow providing a justification for divorce. The precise timing of this legislation is linked to the need for the fifth earl of Argyll to divorce a wife who was estranged but had not committed adultery, although it also shows evolving attitudes to desertion as a justification for divorce. The only comment made by the Covenanters with regard to desertion was to entreat presbyters to admonish parishioners for marital non-adherence. Fifty years on, the estates considered draft acts concerning divorce for non-adherence, yet they passed only first readings in 1696 and 1698, and essentially the law of desertion remained unchanged from 1573 to 1861. Meanwhile, the link between adultery and divorce was subjected to occasional statutory change after 1563.17 In 1592 and 1600 acts outlawed the transfer of property to the issue of adulterous relationships. The most interesting legislation that 15. Brown, Noble Society, p. 151. One such case from 1661 concerned the forced separation of one Jean Lockhart after ill-treatment by her husband. See RPS, 1661/1/112. 16. RPS, A1563/6/10, 1690/4/33. 17. RPS, A1573/4/2, 1640/6/38, 1696/9/156, 1698/7/99, A1700/10/3; Brown, Noble Society, pp. 151–2; Ireland, ‘Husband and Wife’, pp. 96–7.

191

M2287 - BROWN & MAC TEXT.indd 191

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 increased freedom of divorce, however, was the 1644 ‘act annent divorce for adulterie’ that considered as proof an inference of adultery from the testimony of witnesses, without the need for direct evidence.18 This was designed to protect the interests of the aggrieved party and trigger divorce. The Reformation, therefore, delivered greater opportunities for divorce but that did not mean that there were many takers: between 1560 and 1637, a mere 3 per cent of the higher nobility became divorced or legally separated.19 Even though the less costly option of informal separation was available, the church’s belief in the sanctity of marriage confirms the significance of marital devotion in medieval and early modern society. Not all social legislation was rigorously enforced, and sentiment and the legal position could diverge. This was the case for the requirement for parental consent for marriage. The act of 1661 on clandestine marriages condemned those who ‘decline the concurrence and consent of their parents’, although this does not mean that parents could exert anything more than moral pressure.20 The point of this clause was to facilitate public knowledge and approval of the act of marriage, not to limit freedom of action. In other respects, parliament interceded over the relationship between parent and child. Medieval canon law supported the philosophy from natural law and scripture that it was the duty of children to obey their parents, although it was also the duty of parents to sustain their children.21 In 1504, the estates made it clear that fathers were responsible for children when they misbehaved, in this case fining the parents of children guilty of stealing bees, killing deer and destroying orchards, or alternatively delivering them to the judge for public beating. This approach was occasionally followed thereafter. In 1685, as part of an act for sowing peas and beans in Aberdeenshire, parents were made liable for fines imposed upon children for trespassing in fields, and if the child was over fourteen years of age they could be turned over for ‘correction’. In this case master and servant were given a similar relationship to parent and child. In the 1698 ‘act for preserving of planting’ a tenant was made ‘lyable for his wife, children and servants, or any others within his familie that shall 18. RPS, 1592/4/29, 1600/11/42, 1644/6/206. Irvine Smith argues that ‘divorce on the grounds of adultery was not introduced by statute’ though this is a technical point when we consider the 1644 legislation: J. Irvine Smith, ‘Transition to the modern law, 1532– 1660’, in Introduction to Scottish Legal History, p. 6. 19. Irvine Smith, ‘Transition to the modern law’, pp. 35–6; Brown, Noble Society, pp. 152–3. 20. Goodare, Government of Scotland, pp. 120–7; RPS, 1661/1/302. Brown, Noble Society, pp. 135–6. The 1695 marriage act used a similar tone: RPS, 1695/5/118. 21. For example Leges Burgorum, c.118, ex APS, i, unpaginated; A. E. Anton, ‘Parent and child’ in Introduction to Scottish Legal History, p. 119. See also D. G. Mullan, ‘Parents and children in early modern Scotland’, in E. Ewan and J. Nugent (eds), Finding the Family in Medieval and Early Modern Scotland (Aldershot, 2008).

192

M2287 - BROWN & MAC TEXT.indd 192

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l contraveen this . . . act’. Conversely, the respect owed by children to parents was supported by statute. In 1639 the committee of the articles approved a measure ‘against strykers or cursers of parentis’. It was not, however, until 1649 that parliament approved legislation – if children were not distracted at the time of the attack then, if they were over sixteen, the penalty was death and, if younger, punishment was at the discretion of the judge ordinary. In 1661 the same act was passed, confirming the strong parental views of a chamber full of fathers, although also some continuity with decisions of the court of justiciary in the 1590s.22 Parliament supported the rights of parents as legal guardians of their children but occasionally interfered with rights to custody where appropriate educational and religious upbringing was at risk. Although in 1579 the estates declared that persons going abroad for education must get the king’s licence, and give security for the constancy of their religion, it took until 1609 for parents to be encompassed. Now, before they sent their sons abroad, they required a testimonial from their bishop that the proposed teachers were ‘of good religion’. From this date, however, the legislation came thick and fast. In 1625 the focus was on the prevention of children going abroad to be educated at Roman Catholic seminaries while, in the 1640s, there were particular concerns over the education of nobles’ sons. The Restoration did not end this interest in the control of education, with further ratifications in 1661 and 1662, and then under the Claim of Right of 1689 the sending of sons for education abroad as Catholics was deemed illegal. Therefore, while it is difficult to be certain how effective these measures were – George Gordon, first duke of Gordon, and his son Alexander, the second duke had no trouble being educated abroad as Catholics – the intentions of the post-Reformation parliament were clear.23 Sustaining the political culture of the Protestant state required monitoring the education of tomorrow’s political elite. Minorities were a danger to the success of the rules of inheritance for 22. RPS, 1504/3/30, 1685/5/84, 1698/7/160, C1639/8/73, 1649/1/211, 1661/1/263. Two cases of execution for patricide are reported by Pitcairn in 1591 and 1688, but the former conviction may have been based on a simple charge of murder. R. Pitcairn (ed.), Ancient and Criminal Trials in Scotland (1488–1624) (3 vols, Bannatyne Club, 1826–34), i, part 2, p. 241; iii, pp. 196–8; Sir John Lauder of Fountainhall, The Decisions of the Lords of Council and Session from June 6th 1678 to July 30th 1712 (2 vols, Edinburgh, 1759), i, p. 484. 23. RPS, 1579/10/24, A1609/1/3, A1625/10/27, 1646/11/482 (1647), 1661/1/56, 1689/3/108, 1700/10/73; ODNB, George Gordon (b.in or before 1649, d.1716): doi:10.1093/ref:odnb/11038; Alexander Gordon (c.1678–1728): doi:10.1093/ ref:odnb/11020. In 1647 the committee of estates or lords of council were empowered to order the removal of children of Roman Catholic parents so that they could be educated as Protestants: RPS, 1646/11/482 (1647).

193

M2287 - BROWN & MAC TEXT.indd 193

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 the propertied and titled elite. For this reason parliament addressed the legal and welfare needs of pupils (under fourteen years of age for males and twelve years of age for females) and minors (under twenty-one years of age for males and fourteen years of age for females) by setting down regulations for appointing tutors and curators.24 If the father was alive, or had in his will appointed tutors testamentary, there were no difficulties. From the later fifteenth century, however, parliament took an increasing interest in the protection of minors in cases where due arrangements had not been made. Since the fourteenth century, brieves of tutory had been issued, and an act of 1474 declared that the nearest agnate (kinsman on the father’s side), provided he was at least twenty-five years of age, should be tutor-at-law. Where neither testamentary tutor nor tutor-at-law existed, the crown could appoint a tutor dative to represent minors, and this provision was confirmed in an act of 1543 which stated that under common law minors called to judgment must be given curators, if they did not have them, or the charge against them would be ‘retreated’.25 Before the Reformation, other measures were introduced to help minors, many of which related to the appointment of curators. In 1493, minors harmed by imprudent alienations from their lands were given the right to revoke these when they reached their majority, a position ratified in 1543. The financial assets of minors were given further protection. The general rule was that when a minor become fourteen years old, his life was controlled not only by a tutor who guided his personal affairs (such as education) but by a small group of curators who advised over property and financial matters.26 In 1555, a general act ‘anent the ordour for geving of curatouris to minouris’ allowed the minor to request before a judge the summoning of potential curators of his choice, which had to include two close kinsmen, and that all curators would find caution for their faithful service and could be removed. Other than an act of 1621 that allowed minors the right until the age of twenty-five to purchase back land comprised for debts, this remained the basic legal position for over a century.27 Parliament revisited the subject in 1672 and 1681, 24. G. A. Montgomery, ‘Guardian and ward’ in Introduction to Scottish Legal History, pp. 125–8; Brown, Noble Society, pp. 125–6, 172–3. 25. This supports the approach taken since the thirteenth century where, to avoid oppressive behaviour, if the nearest agnate was also the heir then another individual would be appointed tutor, most likely the nearest cognate (kinsman on the mother’s side). Montgomery, ‘Guardian and ward’, p. 126; RPS, A1474/5/6 and 1543/12/48. 26. The seven curators appointed for the second earl of Mar (c.1562–1634) in the 1570s was a typical example. RPS, A1493/5/22; NAS, Mar and Kellie Muniments, GD112/3/36; Brown, Noble Society, p. 175. 27. RPS, A1555/6/9, 1621/6/18. Under the 1555 act, on the minor’s presentation of evidence to the court, curators could be replaced if they failed in their duties.

194

M2287 - BROWN & MAC TEXT.indd 194

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l however, in the first place providing for the guardianship of ‘idiots or furious persones’ and ensuring that, for them and minors, inventories were provided to help secure assets; and secondly, oaths and bonds applied to minors which sought to remove the right to revoke the transfer of any property were now illegal.28 Nonetheless, in 1696 three acts improved the working of the curator system. The nomination of curators was simplified and their duties and responsibilities reduced because many potential curators were refusing to take on the onerous responsibilities. The 1696 acts may be seen as a rebalancing of the rights of minors but they also show that the conceptions of responsibility shared by the members of parliament may have been slightly ahead of the practicalities, even in an area of family law where most members had some personal experience.29 Personal Conduct ‘Godly discipline’ conflated efforts by church and state to control individual behaviour. One essential mechanism was the use of prescribed oaths before God, oaths of loyalty, honesty and good conduct. These were not merely post-Reformation phenomena. Indeed, discipline in a Christian context, and parliament’s efforts to control unacceptable behaviour, originated in the two centuries before.30 This can be seen with drunkenness which was a concern from the early fifteenth century although, before the Reformation, the main object was the regulation of inns. In the 1420s three acts were passed to ensure that inns were provided on thoroughfares and in burghs. From 1436, however, it was enacted that inns had to close by nine o’clock at night and that drinkers who continued after the burgh’s nine o’clock bell would suffer a short spell in ‘the king’s prison’, and the magistrates would be fined if they failed to enforce this law. Thereafter, financial aspects of inns and hostelries were at the forefront. For example, in 1493, masters of ships and merchants were ordered to lodge at the principal inns of ports, and the innkeeper, on 28. RPS, 1672/2/9, 1681/7/43. See also RPS, 1685/4/85, an ‘act in favour of the children of Sir William Primrose’. 29. RPS, 1696/9/60–61, 1696/9/174. Montgomery, ‘Guardian and ward’, p. 127. The time after majority during which one might interrogate accounts of tutors and curators was reduced from forty to ten years. 30. For discussions about ‘Godly discipline’ see M. F. Graham, The Uses of Reform: ‘Godly Discipline’ and Popular Behaviour in Scotland and Beyond, 1560–1610 (Leiden, 1996) and M. Todd, The Culture of Protestantism in Early Modern Scotland (New Haven, 2002). For some questioning of the Reformation threshold see B. Lenman, ‘The limits of Godly discipline in the early modern period with particular reference to England and Scotland’, in K. von Greyer (ed.), Religion and Society in Early Modern Europe, 1500–1800 (London, 1984), pp.135–42.

195

M2287 - BROWN & MAC TEXT.indd 195

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 entering their imported goods, was to answer for the king’s custom; and in 1552, the estates expressed frustration that prices of alcohol had trebled since attempts to control them in 1535.31 After the Reformation, parliament was surprisingly slow to take specific action on alcohol and drunkenness, simply confirming in 1567 the old laws concerning prices, opening hours and drinking.32 Nevertheless, from 1579, legislation accumulated as, first, it was made illegal to drink on the Sabbath and, in 1584, clergy were to be deprived if found drunk. In 1617, the first major change in the law coincided with the first parliamentary commission for justices of the peace who were given shared responsibility for enforcement. Those convicted of drunkenness or haunting taverns, after the later closing time of ten o’clock at night, or during the day ‘except in tyme of travell or for ordinarie refreschment’, were to be fined increasing sums or put in the jougs [= pillory] or jail for longer periods of time for repeat offences. Sheriffs, bailies, justices of the peace and kirk sessions were empowered to fine and punish and to put the fines to pious uses. The 1617 act was to prove the foundation for future measures on drunkenness, including the new commission to justices of the peace in 1661, and further legislation in 1672 and the 1690s. The influence of the church was significant and is seen in the 1640s when a petition from the 1639 general assembly led to enactments in 1644, 1645 and 1649 extending the regulations to tavernkeepers and vendors of alcohol, and stating that the holders of all public offices, including army officers, could be deprived if addicted to drink.33 Heightened anxiety over drunkenness in the 1640s and 1690s coincided with periods of presbyterian ascendancy but that does not mean that episcopalians were unconcerned. In June 1661, Charles II issued a proclamation that was read in parliament, emphasising the need to ‘suppresse all prophanesse’ and his expectation that the estates would do their duty. The general target of profaneness had been established before the Reformation when fornication, adultery, swearing, drunkenness, vice and disreputable behaviour on the Sabbath were frequently lumped together. In 1552, the ‘act anentis thame that sweiris abominabill aithis’ sought to tackle the problem of profane swearing and blasphemous language which, with notions of group responsibility for sin, brought the ‘wraith of God upone the pepill’.34 A hierarchy 31. RPS, 1424/23, 1426/14, 1427/7/4, 1436/10/9, A1493/5/13, A1496/6/6, 1535/32, A1552/2/1. 32. RPS, 1567/12/57. For an introduction to post-Reformation legislation see Graham, Uses of Reform, pp. 46–8. 33. RPS, 1579/10/23, 1584/5/11, 1617/5/34, 1661/1/346, 1672/6/69, 1690/4/116, 1696/9/150, C1639/8/4 and 9, 1644/6/209, 1645/7/24/25, 1649/1/119 and 154. 34. RPS, 1661/1/361–2, A1552/2/7.

196

M2287 - BROWN & MAC TEXT.indd 196

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l of fines and incarceration was set according to rank (for women as well as men) but, after the Reformation, the general assembly pressed the estates to introduce the death penalty for fornicators and blasphemers as well as for adulterers, these being ‘horibill vices’. While agreeing to the adultery act of 1563, however, the estates were slow to make profanity a capital offence. The 1567 parliament, which ratified the Reformation settlement of 1560, approved the church’s articles that profanity and Sabbath-breaking should be tackled, yet without enacting new laws until a 1568 act concerning the Sabbath.35 Only in 1581 did an act appear concerning blasphemy and horrible oaths although it essentially copied the clauses of the 1552 act, adding only the power to sheriffs and bailies to appoint censors to tour market places, and encouraging householders to inform on others. When in 1579 an act was passed to prevent markets from taking place on the Sabbath, the act of 1504 was lauded as providing the first statutory prevention of commercial activity on Sundays. The ratification of the 1579 act in 1593 and 1594, and even acts in 1661, emphasise the continuities with pre-Reformation ideas about the sanctity of the Sabbath.36 After the Reformation, fornication received increased attention from parliament, with acts in 1567 and 1581: a first offence could lead to a fine, prison and humiliation bareheaded in the market place; a second with a further fine, imprisonment and the heads of both parties shaved in the market place; and a third to ducking in the deepest and foulest pool, followed by banishment from the town or parish forever. A new anxiety over the dangers of sexual promiscuity is reflected in legislation, yet it was not until the 1640s that a fresh view was taken over deterring fornication. Appeals from the general assembly and its commissioners in 1639 and 1645 led to various enactments, including measures to preserve the Sabbath and halt commerce on Sundays and increased fines for swearing and fornication. Husbands were to be answerable for the fines of their wives for swearing.37 It was an act of 1672, and not the new 1661 commission for justices of the peace, that finally brought together the pantheon of profanity – ‘curseing, swearing, drunkenness, fornication and uncleanness, profanation of the Lord’s day, mockeing or reproaching of religion’. This was a conflation of various acts since 1560. The regime of punishment by fine, in addition to 35. BUK, i, p. 21; RPS, 1567/12/25. The text of this act has yet to be located but, as it is not given prominence in later legislation, it must not have altered the statutory position. 36. RPS, 1581/10/24, 1579/10/23, A1504/3/128, 1593/4/25, 1593/4/19, 1661/1/345. J. Cameron, Prisons and Punishment in Scotland from the Middle Ages to the Present (Edinburgh, 1983), p. 21. 37. RPS, A1567/12/13, 1581/10/20, C1639/8/4, 1640/6/30, 1645/11/181 and 183, 1645/7/24/54, 1649/1/119.

197

M2287 - BROWN & MAC TEXT.indd 197

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 church discipline, was confirmed with a new statement of the mechanisms for collection. Collectors were to be nominated, with half of the fines going to the able poor in correction houses, to help prepare them for useful toil, and the other half to the destitute and infirm. Finally, the 1701 act consisted of nothing more than a ratification of all acts since 1672, including several from the 1690s.38 In 1649 blasphemy was singled out for the first time. In February, under the government of the dominant Kirk Party, the fact that ‘thair hes beene no law in this kingdome aganst the horble cryme of blasphemy’ led the estates to introduce the death penalty for those who denied God or the Trinity, unless they were ‘distracted in wits’. This act was restated in 1661 with capital punishment retained but, in a fresh act in 1695, execution was to result only for a third offence by an ‘obstinate blasphemer’. The removal of the clause concerned with the wits of the accused did not help Thomas Aikenhead who became in 1697, while probably distracted, the only capital victim of the new blasphemy code and, as far as we know, the only such accused to lose his life since 1649.39 The most serious breach of ‘Godly discipline’ was heresy although, curiously, the estates took action in a way not dissimilar to the blasphemy code. Scotland’s first heresy law arrived in 1425 when bishops were instructed to use inquisitors to discover Lollards and punish them according to canon law. The important link was made between church discipline and the supporting role of the secular authorities. When the target moved from Lollards to Lutherans in the 1520s and 1530s, fresh statutes saw the banning of the works of Luther, and confiscation of goods and ships and imprisonment for merchants responsible for their distribution. All holding heretical views were forbidden in 1542 from holding office, spiritual or temporal, and, after the Reformation, clergy were specifically targeted in 1584. Parliament referred to heresy as a constant danger, as the oaths taken by the Regents Mar and Morton in 1571 and 1572 and the Solemn League and Covenant in 1643 testify, yet it deemed deviant religious views to be covered by specific statutes focusing on blasphemy, Catholicism and Protestant nonconformity. Essentially, the last two were treason. In short, no capital law of heresy was ever passed, and heretics burned at the stake before the Reformation were punished under canon law while those executed afterwards were punished as enemies of the crown.40 38. RPS, 1672/6/69, 1690/4/116, 1693/4/126, 1695/5/119, 1696/9/150, 1700/10/240. 39. RPS, 1649/1/157; 1661/1/264; 1695/5/117. M. F. Graham, The Blasphemies of Thomas Aikenhead: Boundaries of Belief on the Eve of the Enlightenment (Edinburgh, 2008). 40. RPS, 1425/3/4, 1525/7/32, 1535/10, 1540/12/60, A1571/9/17, A1572/11/14, 1644/6/147. A. J. Mann, ‘Parliaments, princes and presses: voices of tradition and protest in early modern Scotland’, in U. Boker and J. A. Hibbard (eds), Sites of Discourse

198

M2287 - BROWN & MAC TEXT.indd 198

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l Excommunication was ‘the ultimate sanction the Kirk could deploy’ but, as we have seen with heresy, the civil law was not necessarily closely involved.41 As early as 1233, letters of papal diligence arrived at the councils of Alexander II requesting assistance from the secular authorities with cases of excommunication. By the reign of Robert III, the estates, with the clergy’s approval during the uncertainties of the ‘great schism’, allowed appeals to the conservators of the clergy and then to a council of clergy. In the 1440s, under the influence of Henry Wardlaw, bishop of St Andrews, ‘process of cursing’ was introduced whereby those excommunicated were declared such and excluded from office and the king’s councils.42 Parliaments in 1525 and 1535 introduced the requirement of arrest after forty days unless fines were paid and reconciliation with the church achieved and, in 1551, those excommunicated and unreconciled after twelve months faced the forfeiture of their property to the church. After 1560, even though excommunication was the standard sanction for not taking the Confession of Faith, in 1573 the act of 1535 was simply repeated. Thereafter, whether confirmation of excommunication was by bishop (1612) or kirk session (1641), a system of fines was established with appeals going to the lords of session in 1661 but reverting to bishops in 1663. Finally, in the second session of the Revolution parliament in 1690, the entire excommunication legislation was swept away and the civil authorities were no longer involved.43 Leisure and Play Parliament legislated to control leisure activities.44 The first act prohibiting playing football, that of 1424, is well known but the context is rarely appreciated. The act immediately following relates the need to practise archery on holy days in order to improve proficiency. Similar acts in 1457, 1471 and 1491 specifically mention archery practice on Sundays, with golf as well as football being banned – ‘in na place of the realme be usit fut bawis, gouff or

41. 42.

43. 44.

– Public and Private Spheres – Legal Culture (Amsterdam, 2002), p. 85. For the law of treason see Irvine Smith, ‘Criminal Law’, pp. 283–4. Graham, Uses of Reform, p. 48. For medieval attitudes to excommunication informed by new Calvinist ideas see ibid., pp. 21–7. APS, i, p. 97; RPS, 1401/2/10, 1443/11/2 (process of cursing). The estates accepted a papal bull whereby those who confiscated the property of bishops would be excommunicated and face death unless they returned the goods to the church: RPS, 1445/9. RPS, 1525/7/48, 1535/11, A1551/5/1, A1573/1/2, 1612/10/8, 1641/8/47, 1646/11/398, 1661/1/294, 1663/6/111, 1690/4/119. In 1661 the regime of assessment by bishop was restored. For noble interests in leisure activities see Brown, Noble Society, pp. 210–19.

199

M2287 - BROWN & MAC TEXT.indd 199

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 uthir sic unproffitable sportis, bot for commoune gude and defence of the realme be hantit bowis schuting’. This clause from the 1491 act for holding wappenschaws (musters of fighting men with their weapons) confirms the link between defence and martial training in the mindset of the crown and legislature. The move from bows to gunpowder, rather than the popularity of football, may account for 1491 being the last instance when the estates attempted to control the disruptive impact of the game.45 Other pastimes were subject to parliamentary control although their popularity made the estates attempt in 1598 to establish Monday as a ‘pastimes day’ to help preserve the Sabbath. Gambling was not attacked until the 1621 parliament. In what proved a somewhat authoritarian session, and in an act passed just after the ratification of the Five Articles of Perth, gambling with dice or cards was made legal only in private houses where the master of the house played himself, and betting on horse racing was banned from inns. If winnings were over 100 merks in one day, the surplus was to go to the poor ‘becaus honest men ought not expect that anye wynning hade at anye of the[se] games . . . can do thame guid or prosper’.46 The enthusiasm for horse racing exhibited by Charles II and his brother James no doubt ended any chance of these measures being repeated in the Restoration period. Although public festivals had long been controlled by local and church authorities, statutory regulation of public festivals and holidays emerged only in 1555 under Mary of Guise. It was enacted that none be chosen nor take on the roles of Robin Hood, Little John, the Abbot of Unreason or Queen of the May subject to punishment for the choosers and takers including, for the latter, banishment from the realm. These activities generally involved playful mockery of those in authority which the administration of the time wished to avoid. Also, in a regulation reflecting fears for immoral behaviour, in the same act no women were to sing, and presumably dance, around summer trees. Catholic pageants were implicitly, rather than explicitly, banned at the Reformation parliament, and it was only in 1581, under the Regent Morton, that the celebration of religious patrons’ and saints’ days was expressly forbidden.47 Attitudes to public holidays could be more implicitly dictated by religious and political considerations. In 1532, Christmas was to be observed by the college of justice and even, in 1567, Shrove Tuesday, Easter and Whit joined 45. RPS, 1424/19, 1458/3/7, 1471/5/6, 1491/4/17. The fifth earl of Huntly died of a stroke while playing in 1576: see Richard Bannatyne, Memorials of Transactions in Scotland, A.D. MDLXIX–A.D. MDLXXIII, R. Pitcairn (ed.) (Bannatyne Club, 1836), pp. 333–8; Brown, Noble Society, p. 216. 46. RPS, 1598/6/3, 1621/6/26. 47. RPS, A1555/6/41, 1581/10/25.

200

M2287 - BROWN & MAC TEXT.indd 200

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l the periods of vacation for the court of session. Subsequently, like a litmus test for the ascendant Church Party, in 1639 the court of session was instructed by the Covenanters to meet on Christmas Day, in 1661 not to meet and in 1690 to meet as per 1639.48 Meanwhile, the cult of the king’s birthday appeared after the Restoration when parliament and privy council imposed, on the English model, the king’s birthday as a public holiday.49 In 1661, 29 May was declared a holiday by act of parliament, as it marked both Charles II’s birthday and the Restoration. This was followed in 1662 by a fresh royal proclamation passed by the estates, threatening the removal of ministers who did not observe the 1661 act, which was ratified in 1672. The Revolution parliament repealed the legislation in 1690 and, instead, the privy council proclaimed the celebration of King William’s birthday on 4 November. Legislative enforcement of royal birthdays had lost its lustre. The other side of holiday regulation was seen in 1661 when the estates, declaring that Easter, Christmas and Whit were used by colliers for debauchery, decided that miners should work six days a week and have only a Christmas holiday.50 Notwithstanding parliament’s attack on sporting activity in the fifteenth century, policy with regard to leisure suggests that, from the 1550s, greater concern for public and personal conduct was expressed by legislators responding to the shared agendas of the Protestant and Catholic reformations. Rights, Freedoms and Punishments Parliament not only limited but also liberated conduct. Social freedom existed in a number of areas, and not just after political revolutions, although we have seen above that freedom from civil action for excommunication existed from 1690. The Claim of Right of 1689 asserted the right to freedom of speech for members of parliament although that did not stop Sir Alexander Bruce of Broomhall from being expelled in 1702 for claiming that presbyterianism was inconsistent with monarchy.51 Such freedoms that existed were never absolute. 48. RPS, 1532/6, A1567/12/28, C1639/8/8, 1640/6/22, 1661/1/235, 1690/4/113. 49. C. A. Whatley, ‘Royal day, people’s day: the monarch’s birthday in Scotland, c.1660– 1860’, in R. Mason and N. Macdougall (eds), People and Power in Scotland: Essays in Honour of T. C. Smout (Edinburgh, 1992); Graham, Uses of Reform, pp. 92–4. 50. RPS, 1661/1/255 and 418, 1662/5/16, 1672/6/33, 1690/4/119, M1693/4/6, 1693/4/27; RPC, third series, iii, p. 347, iv, pp. 57, 71, xv, p. 511. In 1693 parliament moved the celebration of Queen Mary’s birthday to a Monday when the anniversary fell on Sunday. The privy council prescribed public celebration then abandoned this as if it realised that enforcement was unnecessary for the popular queen. 51. RPS, 1689/3/108, 1702/6/24 and Young, Commissioners, p. 76

201

M2287 - BROWN & MAC TEXT.indd 201

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 One of the most commonly understood medieval rights was the right to sanctuary and the protection of the church. This was frequently the recourse of debtors although an act of 1429 attempted to halt the trend and, even earlier, there was anxiety to balance criminal justice and individual freedoms when homicide was involved. The 1372 parliament insisted that those charged with premeditated murder (‘forethought felony’) should be tried immediately whereas those killing with immediate provocation (‘chaudemelle’) could be restored to the church’s protection until due legal process was carried out.52 This act was repeated with modifications in 1469, 1471, 1475, 1535 and 1555 but was not enforced after the Reformation even though two parliamentary committees considered new legislation in 1567 and 1581. The fact, however, that several cases of protections in the 1690s acknowledge sanctuary or ‘entering the girth’ at the abbey of Holyrood confirms the persistence of the tradition of sanctuary in case of debts.53 While the modern concept of the right to a ‘fair’ trial was not one which medieval and early modern minds might have understood, various reforms were introduced in the period. Free legal counsel for the poor was introduced (in theory) in 1425, and the regulation that no accused could sit on the assize (or jury) in his own case in 1426.54 The estates said little about torture and left the monitoring of its use to the privy council which occasionally employed the device, as in the interrogation of the presbyterian William Carstares in 1684. Parliament did, in January 1597, commission the magistrates of Edinburgh to use torture if necessary to investigate the riots that had taken place there in the previous month, as it did in 1689 when it declared that the privy council might use torture when interrogating Jacobite prisoners. Nonetheless, from 1617, acts regulating the poor and correction houses stated that force could be used to control the idle poor but torture could not, and this was repeated in various acts concerning the poor, such as in 1663 and 1672. It was always understood that those accused of the most serious crimes, such as treason, witchcraft or murder, could be tortured. Therefore, while the Revolution parliament condemned the arbitrary use of torture by James VII, this was 52. This came after an act in 1370 (RPS, 1370/2/36) which made remissions (pardons on payment) unlikely for cold-blooded murder. RPS, 1372/3/6–9, 1429/10/5. The ‘chaud melle’ distinction was not repeated in 1649 and 1661, yet the courts appear to have accepted cases as ‘culpable homicide’ regardless. Irvine Smith, ‘Transition to the modern law’ and Irvine Smith and MacDonald, ‘Criminal law’, in Introduction to Scottish Legal History, pp. 43, 291–2. 53. RPS, 1469/25, 1475/32, 1535/39, A1555/6/5, A1567/12/24, 1581/10/28. For protections granted for debts see, for example, the case of Duncan Buchanan in 1696, RPS, 1696/9/185. Irvine Smith and MacDonald, ‘Criminal law’, p. 293. 54. RPS, 1425/5/25l, 1426/9; R. Nicholson, Scotland: The Later Middle Ages (Edinburgh, 1974), pp. 310–12.

202

M2287 - BROWN & MAC TEXT.indd 202

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l not inconsistent with the approval of its deployment against John Chiesley of Dalry, accused of the murder of Sir George Lockhart of Carnwath in 1689.55 The right to bail pending trial, or, as it was known, the ‘bond of caution’, was recognised in Regiam Majestatem although, in treason trials, the privilege could come only from the king. Bail for murder was unusual although, throughout the medieval and early modern periods, much discretion was available to the courts. In 1701, however, an act was passed providing clarity and forming the basis for regulating bail for the next 200 years. All crimes except capital crimes were to be subject to bail, and a sliding scale of fees was set depending on status. But this ‘act for preventing wrongous imprisonments and against undue delayes in tryals’ was of much wider significance. As an act preventing indiscriminate arrest without cause, with written warrants required, the accused having a copy of the charges and with the right to trial without undue delay, it was in effect Scotland’s act of habeas corpus, following the first English statute of 1679. In spite of the Claim of Right listing arbitrary arrest as one of James VII’s abuses, the Revolution did not immediately reforge the statutory position over freedom from arrest. A process had been evolving since the Restoration which bolstered the rights of the accused. In 1672, in criminal prosecutions other than treason and rebellion, the defence was to have the last word and, in 1693, all criminal trials, excluding sensitive cases of adultery and rape, were to be carried out in public.56 The rights of the accused developed over a long period, notwithstanding the setting aside of some personal liberties during times of revolution or national emergency.57 Parliament made it clear that criticising the monarch would be punished. The standard type of law in such cases was that against leasing-making, comparable to the English crime of scandalum magnatum. In Scotland, the first such statute was the 1318 act ‘contra conspiratores et inventores rumorum’ (against conspirators and authors of rumours). This arose as Robert I sought to shore up his regime by preventing malicious rumours leading to discord 55. ODNB, William Carstares (1649–1715): doi:10.1093/ref:odnb/4777; RPS, A1597/1/6/7, 1689/6/27, 1617/5/24, 1663/6/75, 1672/6/52, 1689/3/84, 1689/3/108. 56. I. Smith, ‘Criminal procedure’ in Introduction to Scottish Legal History, p. 431; RPS, 1672/6/50, 1693/4/94,1700/10/82, M1700/10/16, 1700/10/234. 57. The pressing of individuals into military or naval service was also legislated upon along with mustering at wappenschaws and militia: see, for example, RPS, 1425/3/24, 1456/4, 1491/4/17, 1645/7/8/30, 1646/11/430 (1647), 1648/3/62, 1669/10/14, 1693/4/53, 1696/9/141. For ‘wappenschaws’ see J. Goodare, State and Society in Early Modern Scotland (Oxford, 1999), pp. 136–40, 150–4; and for the 1669 and 1672 militia acts see G. H. MacIntosh, The Scottish Parliament under Charles II, 1660–1685 (Edinburgh, 2007), pp. 89–90, 117–18. Desertion led to death for every tenth man in 1644 but a fine in 1672: RPS, 1644/6/44, 1672/6/7a.

203

M2287 - BROWN & MAC TEXT.indd 203

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 between king and people. In 1425, leasing-making became a capital offence, in effect treason, with confiscation of goods and property. As treason by slander was conflated with the charge of lese-majesty (a crime never strictly defined by statute but related to offending the dignity of the king), so lesemajesty and leasing-making became conjoined even though the crime of ‘treason and lese-majesty’ was regularly cited in cases considered by parliament, including those against the Jacobite earls of Melfort and Middleton in 1695.58 In fact, there is strong continuity in the passing of legislation on this theme, with twelve acts of parliament from 1318 to 1640, as regime after regime used the law to protect the reputation of the crown. Modifications appear as political circumstances altered: in 1555 slanders against the French were discouraged; then in 1609 slanders against the English that put the regal union under unnecessary strain; and in 1640 slanders that interfered with smooth communication between the Covenanter parliament and Charles I.59 After the Restoration, no leasing-making act was passed, and the May 1662 ‘act for preservation of his majesties person, authoritie and government’, and subsequent cases, such as the indictment against Sir Andrew Ramsay of Abbotshall in 1673, make it clear that existing law was seen as sufficient – the latter even tracing precedent to 1318. Following the Revolution of 1689, the estates again grappled uncertainly with the issue, considering a new act in June and July 1690 and then dropping the idea. Another draft act was given a first reading in the session of 1701 and was passed almost unaltered in 1703. It was agreed, because of the ‘dangerous consequence’ of existing law which was ‘lyable to streatches’, only to punish leasing-making according to its merits, with fines, imprisonment and banishment, and with life and limb preserved.60 Nearly 300 years of the capital code was ended and, like the law in relation to arbitrary imprisonment, it took more than a decade after the Revolution to deliver a less draconian statute. The 1584 ‘act for punisment of the authoris of the slanderous and untrew calumneis spokin aganis the kingis majestie’ conjoined the issues of leasingmaking and censorship. This act banned George Buchanan’s revolutionary De Jure Regni Apud Scotos (1579) and his Rerum Scoticarum Historia (1582) as slanderous to the king’s reputation and government. In fact, censorship 58. For leasing-making see A. J. Mann, The Scottish Book Trade, 1500–1720: Print Commerce and Print Control in Early Modern Scotland (East Linton, 2000), pp. 164–5 and Irvine Smith and MacDonald, ‘Criminal law’, pp. 284–5. It is strange that this legal summary ignores the 1318 act: RPS, 1318/23, 1425/3/23, A1695/5/10. 59. RPS, 1318/23, 1425/3/23, 1458/3/38, 1540/12/25, A1555/6/40, 1584/5/14, 1585/129, 1594/4/26, A1596/12/13/1, 1609/4/28, 1640/6/51. 60. RPS, 1662/5/20, A1673/11/1, M1690/4/21, 1690/4/68, M1690/4/37, A1700/10/57, 1703/5/191.

204

M2287 - BROWN & MAC TEXT.indd 204

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l already had its own legislative history.61 The estates established a framework while the privy council handled specific titles and authors, and this makes the 1584 act relatively unusual. Nevertheless, parliament acted to deter undesirable publications, even before the arrival of printed books or the press in Scotland. Medieval censorship was linked to heresy, from the case of the Lollard, James Resby, burned with his books at Perth in 1408, to the banning of Protestant texts before the Reformation. The increased danger from the printing press ensured that parliament became more involved from the turn of the sixteenth century, with statutes banning Lutheran works in 1525 and 1535. As Protestantism continued to gain hold, parliament introduced the first censorship and book-licensing act in 1552. This stated that no ‘bukis, ballattis, sangis, blasphematiounis, rymes or tragedeis, outher in Latine or Inglis toung’ could be printed without episcopal licence subject to confiscation and banishment.62 The Regent Morton persuaded the privy council to add the penalty of death in 1574 and, although this was reversed in 1583, a new statute in 1599 listed a range of types of book and provided for the death penalty, adding the requirement to have imports as well as home-produced books vetted before publication. The publication overseas of Scottish Protestant dissent was to be a particular concern from the 1590s to the 1620s, and explains this harsher regime even though it was essentially a deterrent and no printer or book merchant paid the ultimate price before the 1790s.63 The estates did engage in preventive measures targeting specific works or genres, however. From the Reformation, the typical target was, unsurprisingly, Roman Catholic works and, in 1587, a significant example is the act ‘aganis sellaris and dispersaris of papisticall and erroneous buikis’ which empowered the clergy and burghs to search for such books to prevent their sale and distribution. In 1700, in the wake of alarm at the discovery of Catholic cells in Aberdeen and Edinburgh, the estates produced an act ‘for preventing the growth of popery’, in which mass books were forbidden. The broad legislative framework for censorship was in place before the Restoration and the rest was up to the discretion of the privy council. In its last years, parliament tended to censor works embarrassing to itself, such as ‘Informatione for the Mr of Stair’ by Hugh Dalrymple (1695) concerning the Glencoe massacre, or the anti-Scottish work The Superiority and Direct Dominion of the Imperial Crown of England over the 61. The main source of book regulation and censorship was the privy council so we need to be cautious in reading trends from statute. 62. RPS, 1525/7/32, 1535/10, A1552/2/26, 1584/5/14; Nicholson, Later Middle Ages, pp. 239–40. For censorship in Scotland see Mann, Scottish Book Trade, pp. 163–91. 63. RPC, first series, ii, p. 387 (1574), iii, p. 587 (1583); RPS, 1599/7/11.

205

M2287 - BROWN & MAC TEXT.indd 205

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 Crown and Kingdom of Scotland (1705) by William Atwood, a rather problematic work for the government when union negotiations were about to begin.64 The range of punishments afforded to deviant printers and slanderers reflects a complex culture of crime and punishment. Being a court as well as a legislature, parliament took a robust view of the most serious misdemeanours. It could be the court of first instance for treason, and so delivered the verdict on the most infamous cases of treason for which death was the penalty. In addition, the crown had closer dealings with the four pleas of the crown, that is murder, rape, robbery (in reality serious cases) and arson, where the court of justiciary, rather than lesser jurisdictions, generally presided.65 Arson was considered an example of ‘statutory treason’ for which the death penalty could apply. Adulterers could be a little less fortunate than rapists when it came to punishment, especially after adultery became (like witchcraft) a capital offence in 1563.66 There could be considerable variations in the eventual outcome of such cases, however. For example, an elderly adulterer, William Marshall, was banished from Perth in 1619 while, in 1627, in a notorious case, both the man and woman were hanged for adultery at Edinburgh’s Castlehill.67 Over a range of crimes, the courts took into account the particular circumstances of cases, parliament having set a framework which responded to the church’s desire for moral rectitude and the political elite’s objective of maintaining law and order. Furthermore, the instances where old acts were ratified and new proposals abandoned shows how conservative the estates could be when it came to reviewing the criminal code. Penalties meted out for such offences as arson, rape, adultery, witchcraft and handling guns confirm that parliament’s view of punishment was erratic.68 It might appear that a balance was achieved between deterrents and 64. RPS, 1587/7/14, M1695/5/24, 1700/10/73, 1705/6/52; APS, vii, p. 12. 65. Irvine Smith and MacDonald, ‘Criminal law’, pp. 296–7; Cameron, Prison and Punishment, pp. 2–42. 66. For acts on arson see, for example, RPS, 1427/3/11, 1525/7/52, 1621/6/38, 1681/7/58 and 1695/5/231. For rape RPS, A1609/1/13, 1612/4/29, 1646/11/405 (1647), C1681/7/23, 1693/4/94. The 1612 act protecting women from ‘subsequent consent’ is of particular interest. For witchcraft and fortune-telling see RPS, A1563/6/1, 1567/12/97, 1641/6/1, A1575/3/5, 1579/10/27; Graham, Uses of Reform, pp. 46–7; C. Larner, Enemies of God: The Witch-Hunt in Scotland (London, 1981); J. Goodare (ed.), The Scottish Witch-Hunt in Context (Manchester, 2002). 67. Extracts from the Records of the Session of Perth, The Chronicle of Perth 1210–1668. A Register of Remarkable Occurrences Chiefly Connected with that City (Edinburgh, 1832), pp. 54–5, 79–80; H. Arnot (ed.), A Collection & Abridgement of Celebrated Criminal Trials in Scotland, 1536–1784 (Edinburgh, 1785), pp. 312–13; Cameron, Prisons and Punishment, pp. 19–20. 68. For gun laws, many of which were tied to game laws and regulations stretching back to medieval common law and the rights of feudal superiors, see, for example, RPS, A1551/53, A1555/6/26, A1567/12/16, A1575/3/2, 1598/8/6, 1685/4/47. For game laws and land

206

M2287 - BROWN & MAC TEXT.indd 206

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l just deserts but that would be to claim too much consistency of thought. For most of the period under examination, prison was not the punishment of first choice. It was intended either to keep dangerous individuals out of the way for indeterminate periods or it was a short-term way of securing someone before trial and punishment. Occasionally in the medieval period, prison was allocated for certain offences – forty days specified for a first offence of contravening the salmon-fishing laws in 1318; a couple of days in prison for drinking after hours in 1436; and, more unusually, a year in prison for repeated profanity and swearing in 1552. The 1617 act concerning drunkenness, however, sums up a new attitude to the penal function of imprisonment. A more complex set of penalties now existed for first to third offences, and the last of these was a long spell in prison.69 A greater concern with law and order since the 1580s, the increased competence by civil courts for minor crimes previously handled by canon law, and a realisation that for all but the most serious offences corporal or capital punishment was sometimes excessive, led to an increased use of imprisonment, fines and banishment.70 This occurred even though the estates grew impatient with thieves and robbers, and declared such crimes tantamount to treason and subject to the death penalty in the 1580s and 1590s. In a period when rebels were executed in large numbers, common criminals were handled more leniently. Thus, demembration in the game laws, a common medieval sanction, was withdrawn.71 By the Restoration period this trend increased as some crimes, such as desertion from the army (unless in the field), ceased to be capital offences and others, such as blasphemy, were reduced in severity from the 1660s to the 1690s. New punishments were employed to discipline the recalcitrant, such as in 1696 transportation to the colonies or drafting into the army those who broke the salmon laws. And yet, in response to the anxieties of the time, the crown chose its moments to impose the death penalty – for example, in 1455 to deter Scots warning Englishmen of military activity, or in 1690 to secure the postal service from robbery.72

69. 70.

71. 72.

management promoted by the estates see I. D. Whyte, Scotland before the Industrial Revolution: An Economic and Social History c.1050–c.1750 (Harlow, 1995), pp. 132–49. RPS, 1318/13, 1401/2/11, 1436/10/9, A1552/2/7, 1617/5/34. Seven acts from the 1570s to 1590s refer to the need to provide more tolbooths or jails, indicating that secure accommodation was in short supply. The royal burghs were reminded of their responsibility to provide prisons in 1690: RPS, A1575/3/4, 1597/11/51 1690/4/61. RPS, 1587/7/44, 1599/7/2. The 1491 and 1579 acts concerning dismemberment by assault punished by death suggest that it was considered a severe crime: RPS, 1491/4/13. RPS, 1696/9/166, 1455/10/3, 1690/9/9. The context of the 1450s was James II’s efforts to regain Roxburgh and Berwick and destroy Douglas power in the Borders: Tanner, Parliament, pp. 122–47.

207

M2287 - BROWN & MAC TEXT.indd 207

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 Historians of women, on the other hand, might conclude that the regime of punishment in the seventeenth century was especially harsh.73 Prosecutions for witchcraft occurred into the 1690s, in spite of growing scepticism in the legal profession by the 1670s and, although the code was not designed to single out women, they were eight times more likely to be executed. Also, although it was designed to protect the unborn child, the infanticide act of 1690 increased the pressure on some vulnerable women: ‘if any woman shall conceale her being with child . . . and shall not call for and make use of help and assistance in the birth, the child being found dead or amissing, the mother shall be holden and repute the murderer of her own childe’.74 There is, however, no evidence that women were treated more harshly than men, if we discount the bare statistics of witchcraft prosecutions. For serious crimes, such as murder, women were just as likely to be executed but, for minor offences, sentences were more lenient. Women were the particular target of legislation, supported by the church courts, intended to reduce the social impact of extramarital sex.75 There are suggestions of this in the late medieval period, such as the brief act in 1427 stipulating that prostitutes should live on the outskirts of towns to reduce the risk of fire resulting from drunkenness as much as to ‘protect’ the population. Attitudes appeared to harden towards women at the Reformation but not, apparently, until 1567 when, in response to articles from the general assembly and concern not to repeat the regimes of Mary of Guise and Mary, Queen of Scots, it was agreed that no woman should be admitted to public authority or the government of the realm. At the same session, harlots were forbidden to sell wine and, in an ironic if brief 73. The definitive study of crime and punishment of women in medieval and early modern Scotland remains unwritten: see Y. G. Brown and R. Ferguson (eds), Twisted Sisters: Women, Crime and Deviance in Scotland since 1400 (East Lothian, 2002); A. Kilday, Women and Violent Crime in Enlightenment Scotland (Chippenham, 2007). For English comparisons see S. Mendelson and P. Crawford, Women in Early Modern England (Oxford, 1998), pp. 34–7 for statutes and women; J. Eales, Women in Early Modern England (London, 1998). 74. RPS, 1690/4/111; R. Mitchison and L. Leneman, Girls in Trouble. Sexuality and Social Control in Rural Scotland 1660–1780 (Edinburgh, 1998); L. Leneman and R. Mitchison, Sin in the City. Sexuality and Social Control in Urban Scotland 1660–1780 (Edinburgh, 1998). For justiciary court cases see The Justiciary Records of Argyll & the Isles 1664– 1705, vol. 1 (Stair Society, 1949), pp. 67–8, 111–12, 198–7. For a summary of women and authority see Goodare, Government of Scotland, pp. 256–61. 75. G. Debrisay, ‘Twisted by definition: women under Godly discipline in seventeenthcentury Scottish towns’, in Brown and Ferguson (eds), Twisted Sisters; M. F. Graham, ‘Women and the church courts in Reformation-Scotland’, in E. Ewan and M. Meikle (eds), Women in Scotland, c.1100–c.1750 (East Linton, 1999); H. V. McLachlan and J. K. Swales, ‘Sexual bias and the law: the case of pre-industrial Scotland’, International Journal of Sociology and Social Policy, xiv (1994).

208

M2287 - BROWN & MAC TEXT.indd 208

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l act, only they were permitted to dress above their station. In time, under Protestantism, educational, commercial and social benefits would accrue for some women although change was slow. Parliamentary attitudes to women ranged from asserting their property rights, as in acceptance of the right of Agnes Campbell to succeed her husband Andrew Anderson as king’s printer in 1676, to irritation in 1672 that the commissioner, John Maitland, duke of Lauderdale, arranged for his wife and daughter to sit in the chamber.76 Essentially and unsurprisingly, the estates did not make the rights of women a priority compared with their own world of fathers and sons. Social Welfare Society’s intellectual and physical welfare was also a matter for parliament to ponder. The well-known 1496 act of James IV, providing for the education in Latin and law of the eldest sons of barons, was the first major piece of education legislation but thereafter government initiatives were not necessarily found in the parliamentary record. For example, a new national curriculum was agreed in 1559, with the schoolmaster and grammarian William Niddrie awarded, under the privy seal, the copyrights for an astonishing eleven-book publishing programme.77 After the Reformation, state involvement increased and was given statutory support: from the 1560s, commissioners were appointed to visit universities; song schools were encouraged for burghs in the 1570s; educational endowments were exempted from taxation; university charters were ratified, and new national grammars were created after parliament set up commissions, as in 1607, to prescribe an approved text which it did in 1612. The school-in-every-parish mantra was contained in the First Book of Discipline of 1560, and the estates reiterated this after a general assembly petition in 1646, and finally in 1696 a major education act was passed which established the financial role of heritors in supporting parochial schools.78 76. RPS, 1427/3/10, 1567/12/31, 1567/12/52, 1567/12/80; A. J. Mann, ‘Book commerce, litigation and the art of monopoly: the case of Agnes Campbell, royal printer, 1676– 1712’, Economic and Social History, xviii (1998); Sir George Mackenzie of Rosehaugh, Memoirs of the Affairs of Scotland from the Restoration of King Charles II (Edinburgh, 1821), pp. 219–20. 77. RPS, A1496/6/4; Register of the Privy Seal of Scotland, M. Livingstone et al. (eds) (8 vols, Edinburgh, 1908– ), v, pt 1, pp. 143–4; J. Durkan, ‘Education: the laying of fresh foundations’, in J. MacQueen (ed.), Humanism in Renaissance Scotland (Edinburgh, 1990), p. 133; Mann, Scottish Book Trade, pp. 106, 108, 153, 236. 78. RPS, A1563/6/26, 1579/10/76. For the national grammar see RPS, 1607/3/20, RPC, first series, ix, p. 414, xiii, pp. 264–5, 318–19; Mann, Scottish Book Trade, p. 154; RPS, 1645/11/185 (1646), 1696/9/144.

209

M2287 - BROWN & MAC TEXT.indd 209

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 Concerns for and about the poor had an even longer history, whether it is the 1318 act proclaiming justice for rich and poor alike or, from the early sixteenth century, provision of licences to beg. The fifteenth-century agenda appears to be protective of beggars, emphasising, for example in the 1450s, the importance of fair treatment by the king’s officers and penalties for oppression, and yet also in punishing ‘sorners’, or vagrants who refused to work, by branding their cheeks and banishing them or, in 1450, cutting off the ears before banishment of ‘bardis or sic lik utheris rynnaris aboute’. But in 1504 we see the first legislation that limited those who could legally beg, that is, the ‘crukit, impotent and waik’, and rules where none could beg outside their own parish without an appropriate token, were repeated in 1535, 1552, 1555 and 1567.79 The Scottish Poor Law, as it was known until 1845, was established through a statute of 1574, as population pressure and food shortages focused minds. The act entitled ‘anent the Punishment of Strong and Idle Beggars and Provision for Sustentation of the Poor and Impotent’ declared that none between fourteen and seventy years of age would be allowed to beg and those licensed to beg could, as before, do so only within their own parishes. The deserving poor included the disabled, the chronically ill and those under fourteen and over seventy years of age unable to sustain themselves. Justices and magistrates were to make lists of the poor in each parish, establish their need, and then the parish was to be taxed to raise funds for the poor.80 In 1649, however, there was a suggestion of an alternative, voluntarist agenda to poor-fund collecting. ‘A voluntarie and charitable contributioun’ was to be sought and assessments or stents imposed only if funds were insufficient.81 The Kirk Party regime of 1649 was wrestling with both a financial and, as it saw it, a moral crisis. At the Restoration the measure was swept away and poor financing returned to the ad hoc and imperfect system based on the act of 1574, offering much scope for neglect. 79. RPS, 1318/4 (see also the 1524 act concerning judicial impartiality: RPS, 1524/11/13), 1455/10/14, 1456/10, 1425/3/22, 1428/3/5, 1429/10/6, 1450/1/20, A1504/3/114, 1535/38, A1552/2/16, A1555/6/39, 1567/12/26. 80. RPS, 1574/3/5. This was the basis of many later acts: see, for example, RPS, A1593/9/14, 1617/5/24, 1663/6/75, 1695/5/209, 1696/9/147, 1698/7/165. Whyte, Scotland before the Industrial Revolution, pp. 167–8; R. Mitchison, The Old Poor Law of Scotland: The Experience of Poverty, 1574–1845 (Edinburgh, 2000); R. Mitchison, ‘Who were the poor in Scotland, 1690–1830?’, in R. Mitchison and P. Roebuck (eds), Economy and Society in Scotland and Ireland, 1500–1939 (Edinburgh, 1988), pp. 140–8. 81. In 1649 the covenanters were the first to specify poor law lists be made twice rather than once per year: RPS, 1649/1/192. For other measures (the creation of correction houses, the maintenance of endowed hospitals and enforced labour), see RPS, 1425/3/3; 1581/10/36, A1625/10/25, 1625/10/44, 1663/6/75, 1672/6/52, 1696/9/132.

210

M2287 - BROWN & MAC TEXT.indd 210

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l Consumption and Hierarchy Consumption was moderated by sumptuary laws which, like the poor law, had a dual purpose – to protect local producers and consumers and to confirm the social hierarchy. Food and dress were the main targets, linked to concerns over the loss of bullion as gold and silver coin was exchanged for imported luxuries. Fear of bullion leaving Scotland was first expressed in 1370, quickly followed by a tightening of controls in 1398, 1426 and 1436. Thereafter, specific bullion controls were employed by parliament on almost thirty occasions before 1669. A balance-of-payments deficit became a permanent feature of the economy, and both the privy council and parliament struggled with the implications.82 From the 1440s, attempts were made to counteract dearth by preventing hoarding which raised prices. But the sumptuary laws of 1552 were much more socially selective. In the act ‘anent the ordouring of everie mannis hous’ regulations concerning the number of courses or dishes for clergy and nobles and those of various social stations were set in the hope of ‘stanching of sic derth and exhorbitant prices’ and (somewhat gloomily) ‘superfluous cheir’. Patron saints’ days were exempted as were marriages and banquets for strangers from foreign lands. After the Reformation, parliament returned to such selective restrictions with the act ‘aganis superfluus banquetting’ of 1581 where those ‘under the degree of prelatis, erlis, lordis, baronis, landit gentilmen’ or others under a stated level of rent, were forbidden to serve imported sweetmeats or confections at weddings, baptisms or other banquets. Such measures were intended to restrict unnecessary consumption while retaining privilege, and were used in tandem with acts like that of 1587 which attempted to halt the export of food in time of shortages.83 Dress was a mark of status and wealth. The crown and parliament felt it necessary to legislate for, and maintain, national standards of dress for different social strata. This process began in 1430 with a series of acts to control the manner of dress where the wearing of silk, embroidery, fur and coloured clothes was specified depending on social status. The parliaments of James II passed the first act regulating dress for members of parliament in 1455, with fines for abuses, then agreed to a revised guide in 1458 but also 82. RPS, 1370/2/10, 1398/1-2, 1426/8, 1436/10/8, 1669/10/26; F. J. Shaw, ‘Sumptuary legalisation in Scotland’, Juridical Review, xxiv (1979); Whyte, Scotland before the Industrial Revolution, pp. 77–8, 275. Numerous bullion acts were passed between 1450 and 1669. 83. RPS, A1552/2/22, 1581/10/38, 1587/7/49. See also A. Gibson and T. C. Smout, ‘Food and hierarchy in Scotland, 1550–1650’, in L. Leneman (ed.), Perspectives in Scottish Social History: Essays in Honour of Rosalind Mitchison (Aberdeen, 1988).

211

M2287 - BROWN & MAC TEXT.indd 211

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 specified clothes to be worn by merchants and burgesses and their wives and daughters, including the interesting statement that no woman could remain in church with her head covered, so her identity could be known. James VI was even more concerned with rules of attire for public spectacle and, after a false start when the privy council went too far in sartorial elaboration, in 1609 parliament invited the king to specify ‘the apparels of judges, magistrattis and kirkmen’, the last aspect of which would be a long fuse to political crisis for Charles I. The estates emphasised their concern for reputation rather than consumption, declaring that all civilised nations in Europe dressed appropriately. Nevertheless, the subsequent act of 1621 shows concern that dress should reflect social station and the act ‘anent banqueting and apparell’ spells out in eighteen clauses how everyone should dress, with a maximum fine of £1,000 for breaches of the code, and made it lawful for servants to wear the old clothes of their masters and mistresses.84 After the Restoration the economic, if not the social, purpose was modified as an act of 1672 delivered yet another complex dress code, and fines up to £2,000, but the focus had moved to preventing import of fine cloth, which damaged the economy. Curiously, as food fell out of sumptuary laws, dress remained, a development surely linked to the desire of the estates to continue social differentiation according to dress. The most significant indicator of prestige was, however, land and title, and the majority of the most wealthy men sat in parliament. More parliamentary record was devoted to issues connected with heritable property and the confirmation of landed rights than any other subject. Because of this, numerous ratifications are recorded, generally at the end of a session, and these are testament to the significance of land both socially and economically.85 Conclusion The impact of the Reformation, Calvinist ideas about sin, and the partnership of church and state in enforcing ‘Godly discipline’, produced new levels of control in Scottish society after 1560. Roman Catholic countries, however, also experienced profound changes in social control mechanisms and, in Scotland, much statutory control predated the Reformation. While the volume of legislation grew markedly from the 1590s, the social component 84. RPS, 1430/12–14, 1455/8/12–13, 1458/3/12 and 14, 1609/4/27, 1621/6/31. For 1633 see J. R. Young, ‘Charles I and the 1633 Parliament’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707. 85. RPS, 1672/6/31.There were over sixty ratifications in 1669 and nearly a hundred in 1681: Mann “‘James VII, king of the articles’”, pp. 194–5.

212

M2287 - BROWN & MAC TEXT.indd 212

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l featured remarkably strongly in the previous two centuries. Furthermore, much of what historiography has regarded as key phases of change in social policy are now revealed to be repackaged and not characteristically new. Parliament legislated on a vast range of economic, cultural, social and religious matters. That legislation is, of course, only part of the story – the engagement of other agencies, especially the privy council and the courts, took legislative instruments of social control out to the people but enforcement is hard to assess. Much law was viewed by contemporaries as ‘the king’s law’ not ‘the law of parliament’ yet, after the regal union and the arrival of more intensive ‘government by ministers’, it became easier to see the estates as definers as well as legitimisers of laws. In addition, before 1603 the many royal minorities left the estates with an intermittently more intensive role in setting the legislative agenda. Nevertheless, this need not detract from reviewing the motives of legislators over 500 years as ‘the crown in parliament’ sought ways to control society.86 Laws relating to the family, moral conduct, liberty and punishment, and welfare show that social control did not begin and end neatly at major political events. Nevertheless, the reign of Robert I delivered the first recorded effort at social engineering by parliament, as prelates, magnates and monarch cooperated to emphasise an inclusive national effort and the exclusion of those who would not conform. Oaths of loyalty and justice to rich and poor speak to a legislative programme that helped to connect propagandist notions of crown and nation. Following an apparent legislative lull for the remainder of the fourteenth century, the explosive entry of James I as a ‘maker of law’ is an obvious marker, as he returned to Scotland with English ideas and a desire to assert himself. Although his parliaments sought to legislate in detail on a range of economic and social matters, however, the concern for more moral discipline was developed further under his son and grandson, as the control of dress, freedom of speech and the support of the church’s agenda of discipline were enhanced. Under James IV and James V, welfare measures increased as education and the care of the poor were tentatively explored but within a context of increased church discipline over Sabbath-breaking, drunkenness and the threat of heresy. A Renaissance outlook, by princes and estates, hints at the significance placed on opportunity and learning. The Reformation brought an expanded emphasis on ‘Godly discipline’ although not immediately and not without Roman Catholic antecedents. Indeed, the first major effort to control public behaviour came in the parliaments of 1551, 1552 and 1555 under the regencies of James Hamilton, second earl of Arran, and Mary of Guise, and under the influence of pre-Reformation 86. For a debate on these labels see Goodare, Government of Scotland, pp. 87–90.

213

M2287 - BROWN & MAC TEXT.indd 213

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 church councils.87 Socially divisive sumptuary laws, censorship, price regulation, the first gun laws, care of minors, proscription of leagues and bands, the examination of notaries and regulation of public holidays all arrived in the 1550s, along with various other aspects of social control. It was not merely the Reformation that brought change: all over Europe, the fracturing of Christendom led to such doubts in the governments of nations, or opportunities for assertiveness, that control measures were adopted with increased regularity. At the Reformation parliament, there was no attempt at wholesale change in social policy. The sessions of 1563, with measures on witchcraft, divorce and adultery, and 1567, where fornication and incest were specifically targeted, show that the Reformation in social policy was a longer process and also, more than the 1550s, much concerned with sexual offences. The many meetings of the estates in the long reign of James VI and I showed, in contrast to those of Charles I, a further intensity in social legislation. Laws on adultery, divorce, rape, correction houses for the poor, complex sumptuary laws for dress, parental responsibility and drunkenness, and importantly the new 1617 commissions for justices of the peace, confirm this. With the Covenanter regime there was not so much a huge increase in social legislation but a return to the more intensive regulation of James VI. The public legislative programme of Charles I, during which from 1625 to 1638 there were, of course, only two conventions of estates and one parliament, was preoccupied with taxation but was both qualitatively and quantitatively weak over social control, and many such matters were given in commission to the privy council. Certainly, the longer and more regular sessions of parliament in the 1640s delivered more law in all areas, including social policy. Acts relating to clandestine marriages, the education of noble sons and a new capital offence of blasphemy were just some of the significant measures, and also a particular concern with drunkenness and fornication but legislation in some other areas such as adultery and witchcraft, was seen as unnecessary. Both the Restoration period and Revolution of 1689 represent legislative continuities with that which came before. Acts, such as those relating to clandestine marriages and education of noble sons overseas, repeated those of the 1640s. The Restoration brought a new mood, a cult of royalism, reflected in the celebration of the king’s birthday, but also new ideas of mercantilism where sumptuary laws were gradually aimed at the protection of home producers rather than at social demarcation. The law of profanity introduced in 87. T. Winning, ‘Church councils in sixteenth-century Scotland’ in D. McRoberts (ed.), Essays on the Scottish Reformation (Glasgow, 1962); P. E. Ritchie, ‘Marie de Guise and the three estates, 1554–1558’ in Brown and Tanner (eds), Parliament and Politics in Scotland, 1535–1560.

214

M2287 - BROWN & MAC TEXT.indd 214

10/08/2010 16:47

pa r l iame nt and s oc i a l c o n t r o l 1672 brought together all the immoral vices, gathering up a range of statutes since 1560, while the 1701 act against profaneness still retained the 1563 death penalty for adultery. Moreover, the Restoration did not generally produce a great softening in social policy as the regime of the Covenanters was thrown off. Instead, it saw the management of existing laws and sanctions placed with the privy council and bishops, rather than the presbyteries and the committee of estates of the Covenanters. Furthermore, the Revolution of 1689 did not create overnight a society free from the ‘fetters of bondage’ itemised in the Claim of Right. A Scottish equivalent of habeas corpus took a decade to appear, and other important acts, such as trials in public and an education act pressing heritors to raise funds for schools, took time to evolve. The infanticide act of 1690 and blasphemy law of 1695, however, confirm that post-Revolution Scotland was, in the eyes of the legislature, not a society that could be left without a moral compass set by parliament. In the realm of social control this was the point of parliaments. During adult reign or minority, in time of peace or revolution, under the moral guidance of priest, bishop or presbytery, the Scottish parliament, like all pre-modern legislatures, sought to engineer society into a loyal, god-fearing and self-sufficient dependency. Its role was to legislate and to deliver a context for other agencies to follow. Provided the context was not too severe or unjustified, and the state made some efforts to ameliorate the worst moments of poverty and despair, social policy was a relative positive in the lives of medieval and early modern Scots.

215

M2287 - BROWN & MAC TEXT.indd 215

10/08/2010 16:47

chap t e r 8

Political Ideas and Parliament James H. Burns

n 29 June 1567 in the parish church of Stirling, James VI, aged just over thirteen months, was crowned king of Scots. After the ceremony, it was proclaimed that ‘his highness is crowned, inaugurate and established in this kingdom in the presence of the nobility and Estates convened for execution and accomplishment of the queen’s will and commission’. Mary Stewart’s somewhat less than voluntary ‘commission’ had been expressed in documents sealed at Lochleven five days before. Those who assembled at Stirling were not in any sense a parliament but their proceedings and those at Lochleven were in due course accorded parliamentary ratification.1 The estates of the realm, and parliament as the assembly of those estates, were thus centrally involved in events that were to give Scotland a moment of notoriety in the history of early modern Europe. In the history of European political ideas, the moment was to be prolonged for the rest of the sixteenth century and beyond. That prolongation owed a good deal to the fact that the ideological justification of the proceedings against Mary was undertaken, in the European context, by the celebrated humanist George Buchanan. His dialogue De iure regni apud Scotos, written soon after the dramatic events of 1567 and first printed in 1579, followed by his Rerum Scoticarum Historia (1582), gave wide currency to an interpretation of ‘the ancient Scottish constitution’ in which the estates had a crucial and radical part to play.2 All this, together with its seventeenth-century sequel, must be considered in its place.

O

1. RPS, 1567/12/104–5, A1567/12/1–2. 2. See J. H. Burns, The True Law of Kingship: Concepts of Monarchy in Early-Modern Scotland (Oxford, 1996), ch. 6 and literature cited there; J. Goodare, ‘The estates in the Scottish parliament, 1286–1707’, in C. Jones (ed.), The Scots and Parliament (Edinburgh, 1996), pp. 17–20 and n. 39.

216

M2287 - BROWN & MAC TEXT.indd 216

10/08/2010 16:47

p o l itica l ide as and p a r l i a m e n t First, however, it is necessary to consider whether, to what extent, and in what respects, political arguments deployed in the crisis of the 1560s could claim an authentic basis in the history and institutional character of parliament since the thirteenth century. The Community of the Realm The temptation to look for an earlier starting point should no doubt be austerely resisted. To be sure, the Anglo-Norman chronicler Jordan Fantosme is not a negligible witness to the events of the early 1170s, and his statement that the accident-prone William (‘the Lion’) ‘tint son plenier parlement’ in 1173 to seek advice as to the oath he had sworn to ‘le jeune roi’ – the rebellious son of Henry II of England – is noteworthy. Still more so is the further statement that William’s disastrous campaign in Northumberland was launched despite baronial opposition.3 What was at best institutionally inchoate, however, cannot properly carry much ideological weight. Rather more emphasis may perhaps be legitimate in regard to some thirteenth-century developments before the defining moment of 1286. If too much should not be made of the appearance in 1235 of the term ‘colloquium’ for what was evidently a parliamentary assembly, it does seem to be the case that recognisably parliamentary institutions were taking shape during the ensuing half-century.4 Of greater importance for present purposes is the argument that this institutional development ‘long antedates the emergence of the community of the realm as an articulate idea’.5 When that articulation takes place, there is at least the possibility of finding ideology embedded in the fabric of institutions. The term ‘community of the realm’ is first found in a Scottish document in 1286, the year of Alexander III’s death.6 The reality to which it referred had doubtless, like the institutions that were to embody it, come into existence over a substantial period. Political life, however, is (and has been recognised at least since the days of the Greek city-state as being) necessarily expressed in words or in other signs or symbols fulfilling the same or a cognate function. Political activity is conducted by means of language, and the emergence, coining or adoption of new terms or usages, crystallising hitherto implicit or imperfectly recognised concepts is therefore a crucial factor in the history of politics. That is not, of course, to say that the appearance of a term such 3. R. Hewlett (ed.), Chronique de la Guerre entre les Anglois et les Ecossois, in Chronicles of the Reigns of Stephen, Henry II and Richard (3 vols, London, 1867), iii, pp. 126–9. 4. See A. A. M. Duncan, ‘The early parliaments of Scotland’, SHR, xlv (1966), p. 36; A. A. M. Duncan, Scotland: The Making of the Kingdom (Edinburgh, 1971), pp. 410–11. 5. G. W. S. Barrow, Kingship and Unity: Scotland 1000–1306 (London, 1981), p. 126. 6. Ibid., p. 126.

217

M2287 - BROWN & MAC TEXT.indd 217

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 as ‘community of the realm’ reflected a complete, permanent or irreversible understanding (let alone acceptance) of what it implied. No medieval or early modern realm achieved that: certainly the kingdom of the Scots fell far short of such an achievement. It remains true that, from the latter part of the thirteenth century onwards, parliament could be envisaged as something more than what James VI three hundred years later still insisted on regarding as ‘the head Court of the King and his vassals’.7 Amid the uncertainties of the twenty years following Alexander III’s death, there was a recurrent need for that ‘something more’ and for the ideas it might generate. The parliament that met at Scone on 2 April 1286 had to consider the problem of the succession to the crown and the establishment of an interim administration. Four years later, the parliament of March 1290 met to approve the terms of the Treaty of Birgham for the marriage between Margaret, Queen of Scots, and Edward, Prince of Wales. The underlying ‘idea’ on both occasions was that the realm must be recognised as an entity distinct from its ruler: its integrity must be preserved, and its interests must be represented and upheld by the prelates and nobles who embodied it – that is to say, gave it a corporate capacity to act for common ends. Whatever varying and even divergent political ideas might later be derived from it, this was – in R. G. Collingwood’s terminology – the absolute presupposition on which everything else was to depend. No doubt subsequent parliaments acted for the most part at a lower level of political awareness. Those parliaments might be, and frequently were, no more than instruments of government, managed and directed by those who at any given time held the levers of power. Such considerations do not invalidate the fundamental principle implicit in the proceedings of 1286–90, or diminish its importance. Its specific significance here is that – in the words of one historian – ‘parliament was to be the guardian of the status of the kingdom and its people . . . parliament and no other assembly was seen as the community in political action’.8 Political ideas carry within them the potential for – even the probable development of – ideology in the sense of the manipulation of concepts, terms and usages to favour and sustain a particular cause or party. The war of independence, waged in Scotland after the ignominious end of the reign of John Balliol, had its spurious as well as its genuine triumphs, and one of the former was the triumph of what may be called a Bruce ideology or myth. This was 7. The True Law of Free Monarchies, in J. P. Sommerville (ed.), King James VI and I: Political Writings (Cambridge, 1994), p. 74. 8. Duncan, ‘Early parliaments’, p. 28; cf. Barrow, Kingship and Unity, p. 128: ‘parliament was regarded as the guardian of the integrity of the Scottish realm, the sole body capable of giving political expression to the community of that realm’.

218

M2287 - BROWN & MAC TEXT.indd 218

10/08/2010 16:47

p o l itica l ide as and p a r l i a m e n t to reverberate for centuries. Immediately, it reflected both the rejection of English suzerainty and the eclipse by King Robert of the victa causa of King John. It was in the latter’s name that parliamentary institutions functioned in the 1290s, and it can be said that they were used then ‘to defend the integrity of the Scottish kingdom’, as ‘the political community’ (with parliament as its instrument) deliberately and effectively adopted consensual governing.9 It was only in 1309, after years of desperate struggle, that Robert I, having vindicated his claim to the crown on the battlefield, was in a position to summon a parliament of sorts to St Andrews. This has been described as part of ‘a publicity campaign to advertise his kingship’, and it is quite clear that scepticism is appropriate as to ‘the extent to which the voice of the community was genuine’.10 The fact remains that parliament was now regarded as the necessary means of expressing the will of ‘the community of the realm’. The people of Scotland, it was now proclaimed, had agreed upon the said Lord Robert, the king that now is, in whom the rights of his father and grandfather to the said kingdom . . . still exist and flourish entire, and with the concurrence and consent of the said people he was chosen to be king.11 Clearly the ‘concurrence and consent’ that added elective authority to Robert I’s hereditary claim was supposed to have been expressed in and by parliament. Again, soon after the Battle of Bannockburn in June 1314, parliamentary authority was invoked to safeguard the succession. That crucial issue was determined in parliament in 1315 and again, after the death of the king’s brother, in 1318.12 It is at least tempting to argue that a principle (though it would be anachronistic to call it a constitutional principle) was involved here – that parliament alone had jurisdiction over the title to the crown. Even accepting that ‘the tailzie [of the crown] was essentially part of Robert I’s agenda, and not the product of the community’s advice,’13 we may still be 9. A. A. B. McQueen, ‘Parliament, the guardians and John Balliol, 1284–1296’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560, pp. 45, 49. 10. N. H. Reid, ‘Crown and community under Robert I’, in A. Grant and K. J. Stringer (eds), Medieval Scotland: Crown Lordship and Community (Edinburgh, 1993) p. 208; R. J. Tanner, ‘Cowing the community? Coercion and falsification in Robert Bruce’s parliaments, 1309–1318’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560, p. 55. 11. RPS, 1309/2; cf. R. Nicholson, Scotland: The Later Middle Ages (Edinburgh, 1974), p. 208. 12. RPS, 1315/1, 1318/30. 13. Tanner, ‘Cowing the community?’, p. 65.

219

M2287 - BROWN & MAC TEXT.indd 219

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 entitled to emphasise the point that this item on the ‘agenda’ had to be dealt with in parliament. It may be helpful to pause at this point and consider the provenance of the ideas that were finding their way, however hesitantly, into the political discourse of the now aggressively independent Scottish realm. That the sources were clerical may, in the context of the early fourteenth century, be taken for granted; nor is it surprising that the concepts in question were primarily juristic. It was a graduate of Bologna, Baldred Bisset, who headed the 1301 mission to the papal Curia charged by the three guardians of the realm with the task of vindicating Scotland’s independence against English claims to suzerainty. And it is worth bearing in mind that Edward I, in the Great Cause of the early 1290s, had employed the services of the son of the great Accursius, deploying the notion of dominium directum to support the case for English superiority.14 There was, to be sure, no parliamentary involvement as such in the proceedings in 1301, nor in the diplomatic activity directed to the raising of the papal interdict imposed on Scotland in 1318, which gave rise to the splendid rhetoric of the Declaration of Arbroath two years later.15 We may nevertheless be confident that juristic learning and rhetorical skills were available to those concerned in this formative stage of Scottish parliamentary history. Institutional formation was, of course, gradual, and the factors shaping it were primarily social and economic rather than intellectual or ideological. Thus, what has sometimes been seen as the ‘model parliament’ at Cambuskenneth in 1326 included burgesses – perhaps for the first time – on account of the fiscal importance of the burghs that they represented. If this development ‘makes it plain that the community of the realm had by then widened to comprise social classes that had scarcely before figured in politics . . . there is . . . no sign of any new theory to account for a change’.16 Nor did such change as there may have been yield anything more than what has been called ‘a largely silent and semi-developed “commons”’.17 Yet it may still 14. See Nicholson, Later Middle Ages, pp. 81–2; E. L. G. Stones and G. C. Simpson (eds), Edward I and the Throne of Scotland: An Edition of the Record Sources for the Great Cause (2 vols, Oxford, 1978). 15. A. A. M. Duncan, The Nation of Scots and the Declaration of Arbroath (1320) (London, 1970). Neither salutary scepticism as to any suggestion that the Declaration was ‘protodemocratic’ (Tanner, ‘Cowing the community’, p. 51) nor appropriate doubts as to the authenticity of some of the alleged backing it enjoyed need erode entirely the ideological significance of the Declaration. 16. Nicholson, Later Middle Ages, p. 115, referring esp. to Duncan, ‘Early parliaments’, p. 55. 17. K. M. Brown and R. J. Tanner, ‘Introduction: Parliament and politics in Scotland, 1235– 1560’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560, p. 12.

220

M2287 - BROWN & MAC TEXT.indd 220

10/08/2010 16:47

p o l itica l ide as and p a r l i a m e n t be arguable that what proved to be a permanent structural change, however limited in scope, was catalytic in fostering new ideas. In particular, it was now possible to see parliament as an assembly of the estates of the realm, and that way of envisaging the institution seems to have established itself firmly in fourteenth-century Scotland. This takes the discussion into an area of some complexity. The notion of ‘estates’ or ‘orders’ was developed and applied in various ways in different societies but what became the accepted and eventually traditional pattern of three estates had deep roots in medieval thinking and imagery, and this can be seen as a case in which ‘a concept was somehow or other transformed into an institution’.18 In Scotland, at all events, the term tres communitates – a further variant – appears in a document of 1357, and the notion of three estates was to become a convention of the constitution.19 That date fell within the long reign of David II, at a point when the dominant political issues arose from the king’s ransoming from English captivity following his defeat eleven years previously at the battle of Neville’s Cross. One crucial question was that of the succession to the crown should David die childless and, in 1364, this led to a fresh assertion by ‘the three communities’ of parliamentary authority in that regard. The record is somewhat obscure but it does seem that the assembly saw itself as acting in defence of the freedom and integrity of the kingdom against unacceptable proposals by Edward III.20 It also seems that the middle years of the fourteenth century saw the further permeation of political discourse by the language and concepts of juristic learning. A. A. M. Duncan, editing a quaestio apparently drafted in connection with the 1364 debate on the succession, drew attention to the recurrent use in that text of the term populus, and suggested that the influence of the commentaries of Bartolus may be detectable in this context. Caution is evidently necessary in evaluating the extent of circulation and depth of penetration achieved by such sophisticated ideas. In parliament only the prelates are likely to have appreciated – or been capable of appreciating – the ‘scholastic structure and subtleties’ of such discourse. Even they may have relied on their ‘secretaries and clerks’ to communicate the gist of arguments of that kind. Such indirect processes are precisely and classically the means whereby ‘political ideas’ enter and affect political activity. It may not be overbold to conclude that, in late fourteenth-century Scotland, ‘the three communities’ could be seen as ‘a practical embodiment of the people’s will’.21 18. B, Guenée (transl. J. Vale), States and Realms in Later Medieval Europe (Oxford, 1985), p. 158. 19. Goodare, ‘The estates in the Scottish parliament’, pp. 113–14. 20. Cited by A. A. M. Duncan, ‘A question about the succession, 1364’, in Miscellany of the Scottish History Society, xii (SHS, 1996), p. 13. 21. Duncan, ‘A question about the succession’, p. 5.

221

M2287 - BROWN & MAC TEXT.indd 221

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 The half-century following David II’s death in 1371 provided, at least at certain critical moments between 1384 and 1406, significant opportunities for the exercise of parliamentary authority and the deployment of the relevant political ideas.22 The perceived deficiencies of Robert II’s government of the realm led to a situation in 1384 in which the king professed his willingness to submit to the judgment of the estates, who may be seen – though the point has been contested – as having removed him from power (but not from the throne), his place being taken by his son and heir, the earl of Carrick. More decisively, four years later, it was a council general of the estates that appointed the king’s second son, the earl of Fife (later duke of Albany) as guardian of the realm. His ‘custodial’ authority was to be exercised ‘well and usefully . . . according to the determination and declaration of the general council or parliament’, the estates meeting annually in one form or the other for that purpose. Here, indeed, is an attempt to implement the concept of conditional, rather than absolute, political power. The theme was to continue when Carrick, having succeeded in 1390 as Robert III, proved from the outset to be a rex inutilis or worse. Once again, the estates appointed the heir apparent to act for a king who could no longer act for himself. David, duke of Rothesay, however, was commissioned as ‘lieutenant’ for three years only, and his viceregal powers were to be checked by a council nominated by the estates – the latter meeting annually in ‘plain parliament’ to ensure that the king’s subjects would be ‘servit of the law’.23 The sequel, when the violent death of Rothesay in 1402 was followed by the demise of his father the king in 1406 and the prolonged English captivity of James I, left Albany and his son successively in power as regents for eighteen years. As before, the elder Albany was appointed by the estates but his astute management left little scope for opposition either inside or outside parliament, so that these years offer little or no material for present purposes. Conciliarism, Constitutionalism and the Estates Events between 1384 and 1406 may be said to have indicated some degree of institutional sophistication, if not of political maturity. It can be argued that the predominantly literary sources on which the history of this period depends reflect the tendency of their authors to look to royal – or at least monarchical 22. On the period discussed in this and the next paragraph see generally Nicholson, Later Middle Ages, chs 8 and 9; A. Grant, Independence and Nationhood: Scotland 1306–1489 (London, 1984), pp. 178–87. 23. S. Boardman, ‘Coronations, kings and guardians: politics, parliaments and general councils, 1371–1406’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560, pp. 102–22; RPS, 1384/11/4.

222

M2287 - BROWN & MAC TEXT.indd 222

10/08/2010 16:47

p o l itica l ide as and p a r l i a m e n t – power for strong government and military leadership. Correspondingly, to see the politics of the period as anything like a conflict between ‘crown and parliament’ should no doubt be dismissed as ‘an old historical model’.24 On the other hand, this was a period when the problem of authority was increasingly seen as one that must be met by turning to conciliar and ‘representative’ concepts and arrangements – above all, of course, in the church. Scotland and Scots may not yet have been playing the prominent part in the ecclesiastical politics of Christendom that they were later to take but it is important not to overlook the fact that the reigns of Robert II and Robert III, and the minority and captivity of James I, included the years of the Great Schism and the auspicious beginnings of the Conciliar Movement. It would no doubt be an oversimplification to see the fifteenth century as a time of confrontation between ‘constitutionalism’ and ‘absolutism’, yet that is one of the underlying patterns in the politics of late medieval Europe.25 When James I returned to Scotland as an adult sovereign in 1424, he was at least as determined as his great-grandfather had been to prove himself ‘a tough, energetic ruler’ and to maintain ‘firm control of his kingdom’.26 Rule of that kind was certain to be resented by some of the subjects affected by it. Resentment might breed resistance, and parliament was now a forum in which resentment might be voiced and resistance mounted. There may be exaggeration in substance as well as anachronistic language in describing James’s regime as ‘authoritarian totalitarianism’ 27 but the king’s policies did provoke resentment, criticism and at least the threat of countermeasures. And such measures, momentarily at least, were allegedly advocated in a parliamentary setting. That statement depends largely on one source, the reliability of which has been doubted and defended. If we accept the story told in The Dethe of the Kynge of Scottes, the murder of James I in 1437 was the violent sequel to an attempt at a more orderly, parliamentary way of dealing with alleged royal misrule.28 Perhaps quite early in James I’s personal reign there had been those who – ‘secretely’ at least – called him ‘a tirannous prynce’. In due course (we are told) ‘many of the lordes of the astates . . . droughe hem 24. Boardman, ‘Coronations, kings and guardians’, p. 119. 25. See J. H. Burns, Lordship, Kingship and Empire: The Idea of Monarchy, 1400–1525 (Oxford, 1992), ch. 4. 26. These phrases are used of David II by Grant, Independence and Nationhood, p. 175. 27. Nicholson, Later Middle Ages, p. 320. 28. The text of John Shirley’s translation from a lost Latin original has been edited by M. Connolly, ‘The Dethe of the Kynge of Scottes: a new edition’, SHR, lxxi (1992), pp. 46–69; and by L. M. Matheson, Death and Dissent: The Dethe of the Kynge of Scottes and Warkworth’s Chronicle (Woodbridge, 1999). For discussion see M. H. Brown. ‘“I have thus slain a tyrant”: The Dethe of the Kynge of Scottes and the right to resist in fifteenthcentury Scotland’, Innes Review, xlvii (1996); and Tanner, Parliament, pp. 68–72.

223

M2287 - BROWN & MAC TEXT.indd 223

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 . . . to counseille hou that they myght withestonde & resyste thair kynges tirannye’.29 During the general council of November 1436, an ideological basis for such action and an offer of leadership were supplied by Sir Robert Graham of Kinpunt. Graham (whose nephew Malise had been stripped by the king of the earldom of Strathearn in 1427) is said to have studied in Paris and to have been of ‘grete wit and eloquence . . . and expert in the lawe’. Those qualities he allegedly brought to bear in parliament, claiming to ‘arest’ James ‘in the name of all the three astattes’ on the basis of the mutual obligation of king and community For right as your liege peple ben bounden & sworne to obeye unto your mageste roialle, in the same wyesse bee ye sworne & enseured your peple to kepe and governe your lawe, soo that ye doo hem noo wronge, but in al right mayntiene & defende hem.30 Deserted by those whose support he had presumably expected, Graham turned to conspiracy and ‘direct action’ – for which first the king and then the conspirators paid with their lives. The end of the story is plain and violent fact though there may be room for doubt as to whether the king’s death should be seen as vengeful murder or justifiable tyrannicide. The parliamentary and ideological dimensions of the story may invite some scepticism but this need not be carried so far as to dismiss out of hand the evidence that broadly ‘contractarian’ views of temporal government were current in a country where the conciliarist understanding of the ecclesiastical polity was taking root.31 Parliamentary assemblies (mostly in the form of general councils) met with some frequency during the first eight years of James II’s reign. The most important of these was the parliament of June 1445. As the evidence is now interpreted, that assembly saw the young king – a ‘minor’ rather than a ‘pupil’ since his fourteenth birthday in mid-October 1444 – swear an important oath to the three estates. Besides the usual undertaking to respect the laws and customs of the realm and ‘the lau Cristine’, the oath included a specific reference to ‘the statuts of the realme’, and the king vowed neither to change that statute law nor to take any action ‘tuoching the common profit of the realme’ without parliamentary consent.32 However effective or otherwise that oath 29. Connolly, ‘The Dethe of the Kynge of Scottes’, p. 52; Matheson, Death and Dissent, p. 28. 30. Connolly, ‘The Dethe of the Kynge of Scottes’, pp. 52–3; Matheson, Death and Dissent, pp. 28–9. 31. See J. H. Burns, ‘The conciliarist tradition in Scotland’, SHR, xlii (1963), pp. 89–104. 32. Cited by R. J. Lyall, ‘The medieval Scottish coronation service: some seventeenthcentury evidence’, Innes Review, xxviii (1977), pp. 9–10; cf. p. 16 (where, however, the

224

M2287 - BROWN & MAC TEXT.indd 224

10/08/2010 16:47

p o l itica l ide as and p a r l i a m e n t may have proved to be, its having been imposed at all suggests that a strongly ‘parliamentary’ view of kingship was one strand at least in the fabric of politics in mid-fifteenth-century Scotland. Parliament met regularly during James II’s personal rule but the years from 1449 to 1460 do not provide much material for the present discussion. There may have been, in one view of events, a period in the early 1450s when the ideology of parliamentary resistance to royal ‘tyranny’ played a part. It has been argued that, when in 1452 the Black Douglas faction had recourse to the procedure of diffidatio, they had ‘failed to see that the struggle . . . could not be solved within a feudal context, but only within a national one’. They should instead ‘have declared James deposed as a perjured tyrant . . . and set up an alternative government to legitimate their actions’.33 The argument may be more intriguing than convincing. It may suggest comparisons with contemporary developments in the Spanish kingdoms, with Catalan pactismo in Aragon and an episode like ‘the Farce of Avila’ in Castile.34 Certainly Iberian ideology was considerably more articulate and sophisticated than anything of the kind in Scotland. (Salamanca, after all, was a rather more mature academic institution than either of Scotland’s two universities.) Yet the ‘conservative outlook’ of James II’s adversaries may not have been so very different from that of the caballero opponents of absolutism in Spain. Arguably, in both societies – and, indeed, in western Europe at large – older traditions were on the defensive against advancing absolutism. A different perspective is suggested by a document bearing the same date as the Douglas diffidatio. On 12 June 1452, a parliamentary declaration proclaimed the king’s innocence of wrongdoing in respect of the ‘Black Dinner’ – a ‘whitewash’ no doubt, but arguably a manifestation of ‘just how extensive the powers of parliament were by this stage in the fifteenth century’.35 Parliament’s role between 1455 and 1460 has been characterised as ‘guidance and supervision’.36 Those functions do not seem to have generated anything new or striking in the realm of ideas. The king’s premature death in 1460 brought another royal minority, with the attendant disputes over the regency. Parliament met regularly throughout the 1460s but perhaps only in 1461, when ‘the lordis said that thai war littil gud warth . . . that gaf the keping

33. 34. 35. 36.

implication that this is the text of a coronation oath is mistaken). See Tanner, Parliament, p. 112 to which the discussion above is greatly indebted. Nicholson, Later Middle Ages, p. 380; cf. the discussion of this episode by M. Brown, ‘Public authority and factional conflict: crown, parliament and polity, 1424–1455’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560, pp. 124, 136–7. See Burns, Lordship, Kingship and Empire, ch. 4. Tanner, Parliament, p. 138. Cf. ibid., ch. 6.

225

M2287 - BROWN & MAC TEXT.indd 225

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 of the kinrik till a woman [the queen dowager, Mary of Guelders]’, was anything like an issue of political principle at stake. Even then, it is not quite clear whether the murmurs were heard in parliament or outside.37 On the other hand, the two decades of James III’s personal reign saw parliament meeting almost annually, and the reign ended in a dramatic episode with a parliamentary sequel, providing later propagandists with a useful cause célèbre. This may suggest a significant conjuncture of institutional and ideological developments but such expectations are hardly fulfilled. Whether we accept or reject, with or without qualification, the view that James ‘displayed an alarming belief in the sanctity of his office’ and ‘fostered a dangerously exalted view of Scottish kingship’, it seems clear that king and parliament were at one in their vigorous assertion of the sovereign independence of the crown.38 And it is important to bear in mind that ‘parliamentary’ political ideas were not necessarily those of opposition. Entrapment in a ‘whig interpretation’ is still a hazard to be avoided. Parliament may often have been used to enhance and endorse the power of the crown but that was doubtless what the ‘political nation’ often wanted as much as the king. This is not to deny that parliament was sometimes the focus for criticism of the king’s policy and, indeed, of opposition to it. Resistance to James III’s ambitious foreign policy in the early 1470s, and parliamentary involvement in the crisis of 1482, illustrate the point that the estates could not be taken for granted as merely a convenient instrument of royal policy. It remains true, however, that the two decades of James III’s personal reign do not seem to have generated any accretions to the ideology of parliament. If the reign of James IV can be seen as a period of ‘new monarchy trumphant’, during which parliament was in eclipse, the question to be asked here is whether these developments were reflected in articulate or implicit political ideas.39 Parliamentary expression would, indeed, have been limited. The 37. Cf. The Auchinleck Chronicle, in W. A. Craigie (ed.), The Asloan Manuscript (2 vols, Edinburgh, 1923), i, p. 59; Nicholson, Later Middle Ages, p. 396, quotes the sentence without the first three words, thus ascribing the opinion to the chronicler who seems to have claimed that this view was shared by some at least of ‘the lordis’. Tanner, Parliament, p. 170, interprets the passage as referring to a division of opinion within parliament. 38. The quoted phrases are those of N. A. T. Macdougall, James III: A Political Biography (Edinburgh, 1982), p. 98, referring inter alia to the 1469 act asserting the ‘ful jurisdictioune and fre impyre within the realme’ claimed by the king of Scots. L. J. Macfarlane, William Elphinstone and the Kingdom of Scotland 1434–1513 (Aberdeen, 1995), pp.188–9, argues against concluding ‘that James III had a greatly exaggerated and anachronistic view of his kingship’. 39. ‘New monarchy triumphant’ is a chapter heading in Nicholson, Later Middle Ages. See also N. Macdougall, ‘The estates in eclipse? Politics and parliament in the reign of James IV’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1235–1560.

226

M2287 - BROWN & MAC TEXT.indd 226

10/08/2010 16:47

p o l itica l ide as and p a r l i a m e n t ‘eclipse’ was partial, not total, but for fully two-thirds of the reign, meetings of ‘plain parliament’ were infrequent. To refer to ‘the demise of parliament’ may imply a premature obituary but it is clear that James IV’s government from 1496 onwards operated through conciliar rather than parliamentary machinery.40 On the other hand, during the first seven years of the reign, the pattern of frequent parliamentary assemblies was maintained. John Ireland, completing his Meroure of Wyssdome in 1490 – its final book much concerned with temporal rule – takes it for granted that the estates are fully involved in political life.41 Ireland died in 1495 and, from that point until the end of the reign, on the threshold of a period in which there was an unprecedented surge of political ideas, the estates were to be the subject of such thinking rather than a forum for its expression. Debating the Right to Resist The years of confusion and instability following Scotland’s comprehensive military defeat at the Battle of Flodden in 1513 yielded – perhaps ironically – two substantial contributions to the historical and theoretical interpretation of the Scottish polity. Both were the product of minds that had been formed in the University of Paris – minds later employed in the services of Scotland’s own universities. Of the two, John Mair is for present purposes much the more important. The political theory – and the term may be properly used in this case – that Mair applied to his native country in his 1521 Historia Majoris Britanniæ had been elaborated over a dozen years in his theological works. There it was used primarily in regard to the polity of the church but Mair had consistently argued that the principles of the politia regalis et optima were essentially the same in both temporal and spiritual monarchy, citing Scotland and France – the two realms he knew best – as embodying those principles in practice. Theory and practice alike involved the estates and, when Mair reviewed Scottish history, he identified a substantial number of areas where parliament had an indispensable, and sometimes an exclusive, role. Succession to the crown was perhaps the most important of these but prohibiting alienation of the royal domain and determining when circumstances warranted the grant of taxation were hardly less so. In those respects the authority of the estates went beyond counsel important as that was. A wise king will seek counsel but need not follow it: Mair’s king is ‘every inch 40. ‘The demise of parliament’ is the title of ch. 7 in Norman Macdougall’s James IV (Edinburgh, 1989). 41. Macdougall, ‘Estates in eclipse’, p. 146 and n. 7 refers to Ireland and other writers in this connection.

227

M2287 - BROWN & MAC TEXT.indd 227

10/08/2010 16:47

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 a king’, with wide discretionary power. At the most fundamental levels, however, parliament makes laws that bind the king. Here the authority of the estates is the power to direct and, in some cases, ultimately to control, not just advise, a king whose own authority depends on the consent of the community – a consent expressed normally in parliament. Mair may not refer explicitly to the estates in every instance but his concern throughout to distinguish between the community as an organised body and the mere rabble (promiscua plebs) implies institutional action. The essential institution for such crucial purposes is to be found in the three estates, not in the crown or in the king’s privy council.42 Mair’s lead in this direction was followed – uncertainly enough, no doubt – by his contemporary, Hector Boece, in a very different piece of historical writing. Boece’s 1527 Scotorum Historiæ was to be a far richer source for later writers than Mair’s scholastic exercise of 1521, and it was a mine from which varied ideological ore could be extracted. Not much weight can be given here to Boece’s essentially mythopoetic backward expansion of the Scottish past. Even when he reaches the period of more authentic history, he offers little more than rhetorical elaboration of what he found in earlier writers, including Mair. This does, however, mean that what became a widely influential account of the Scottish past had a place for the parliamentary assembly, even if the ‘constitutional theory’ defining that place is, in comparison with Mair’s exposition, vanishingly thin.43 By the time John Mair returned to spend the long evening of his days in St Andrews in 1531, another royal minority had ended and James V’s personal reign had begun. Parliament may have been an ‘essential ally’ for the king, but its activity in that alliance did not, seemingly, generate noteworthy ‘political ideas’.44 On the other hand, the period saw the conception – though gestation was not complete until the early 1550s – of the outstanding literary 42. Historia Majoris Britanniæ (Paris, 1521), ff. 129v–130r: ‘Et necessitatem . . . interpretari habent tres status, & non rex nec eius particulare concilium’. The reference to the estates as ‘directing’ the king is in Mair, In Matthæum ad literam expositio (Paris, 1518), f. 70v. On Mair’s theory generally see Burns, True Law of Kingship, pp. 39–75. 43. See Burns, True Law of Kingship, pp. 75–86, and cf. R. A. Mason, ‘Chivalry and citizenship: aspects of national identity in Renaissance Scotland’, in his Kingship and Commonweal: Political Thought in Renaissance and Reformation Scotland (East Linton, 1998), esp. pp. 93–8. On the vernacular prose and verse renderings of Boece, see Burns, True Law of Kingship, pp. 88–91. 44. Cf. J. Wormald, Court, Kirk, and Community: Scotland 1469–1625 (London, 1981), pp. 221–2. Much parliamentary attention in this period was directed to ecclesiastical affairs, which may imply a view of ‘the two kingdoms’ destined to be persistent and problematic. Wormald argues that, already in the 1520s, ‘king-in-parliament . . . claimed to determine the religious position of the people’, describing this as ‘a dramatic claim’.

228

M2287 - BROWN & MAC TEXT.indd 228

10/08/2010 16:47

p o l itica l ide as and p a r l i a m e n t representation of the estates of the realm of Scotland. Parliament plays a limited role in Ane Satyre of the Thrie Estaitis. Yet David Lindsay, who had been close to the king throughout the reign, plainly had serious political purposes as well as a growing concern for church reform. Amid the pageantry and pasquinade there is a legislative programme and an insistence on parliament’s responsibility for its implementation. In the end, however, it may be the symbolism of Lindsay’s Satyre that matters most. Here we have a vivid emblematic display of the estates as the embodiment of the realm. In a country deprived yet again, after 1542, of an adult ruler and about to face a crisis in politics and religion, this basic idea was of the first importance.45 In the complex political manoeuvring of the 1540s and early 1550s, the estates in parliament and in conventions, successors of the medieval general councils, played a significant part, even if it can hardly be claimed that such meetings had much to do with ‘political ideas’. One point of some importance is illustrated in 1544 when each of the principal contenders – James Hamilton, second earl of Arran, as governor and his rival for power, Mary of Guise, the queen dowager – summoned rival parliaments.46 It was now an established principle that such crucial decisions as the appointment or removal of a regent, or the marriage of the sovereign, required parliamentary validation. More generally, the two decades before the Reformation crisis demonstrated the centrality of the estates in political life. When, in 1557–8, John Knox finally reached the conclusion that the effective preaching of ‘Christ’s truth’ was impossible without political action against rulers who upheld ‘idolatry’, he took it for granted that the estates would have an essential part to play. His Appellation of 1558 is explicitly his ‘supplication and exhortation to the nobilitie, estates, and commonaltie of Scotland’. The ‘Nobils and Estates’ are ‘Judges and Princes’, with an inherent God-given right and duty to defend the people ‘from all oppression and tirannie’.47 The point of this in the present context is not that Knox had formulated a general theory of ‘resistance’ or ‘limited government’. It is rather that he shaped and developed for his own polemical purposes something that had become part of the 45. Politically and ideologically significant elements in Lindsay’s work are discussed in Burns, True Law of Kingship, pp. 100–12. 46. Aberdeen City Archives, CR1/7, p. 576, recording the receipt of a precept of summons from each of them. 47. See R. A. Mason (ed.), John Knox: On Rebellion (Cambridge, 1994), pp. 72–114, esp. pp. 83, 90, 94. Interestingly, in The First Blast of the Trumpet (pp. 43–4), when he is most urgently concerned with the situation in England, Knox uses the Scottish (or at least not typically English) term ‘estates’ in his appeal for action to repress Mary Tudor’s ‘inordinate pride and tyrannie’.

229

M2287 - BROWN & MAC TEXT.indd 229

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 broader political consciousness of his articulate fellow Scots. This was to manifest itself in contexts more decisive than Knox’s pamphleteering and in forms that owed little to his denunciatory rhetoric. It was not that from December 1557 the leaders of the Congregation differed essentially from Knox as to the grounds or the goals of their challenge to the established order. The temporal element in that order might be distinguished, but could not be separated, from its spiritual or ecclesiastical dimension. And if the Lords of the Congregation were – initially at least – anxious to disclaim temporal political concerns, Knox for his part had shared and stressed that anxiety. His patrons among the nobility and gentry, however, were conscious of their responsibilities as ‘natural born counsellors’ of the realm and aware of the support that might be gathered outside their fledgling Protestant party by drawing attention to ‘defaultes in the Temporall regiment’ and to the risk, posed by the queen regent’s policy, that ‘our commone cuntrie’ might be ‘betrayed in the hands of strangeris’. In arguing their case, the Protestant leaders deployed an ‘ancient constitution’ ideology, appealing at home and abroad to ‘the ancient lawis and liberteis’, the pristina libertas, of the Scots.48 Symptomatic of the threat to that freedom were such actions as had been ‘done without the avise and consent of the Nobilitie and Counsall of this realme’.49 Nor was the parliamentary authority that this implied conceived as merely negative or defensive. When the possibility of deposing the young queen of Scots and her French husband (joint sovereigns since the granting of the crown matrimonial to François II in November 1558) was at least tentatively considered in late August 1559, the intended procedure hinged on the provision that ‘the Estates shall commit the government to the next heir’.50 Less than two months later, what purported to be an actual deposition – with the queen regent rather than her daughter as the intended victim – was the work of a quasi-parliamentary body. The ‘Nobilitie, Baronis and Broughes convenit to advise upon the affairis of the commoun-weall’ revoked the ‘Commissioun’ granted by ‘our Soverane Lord and Lady’ to Mary of Guise and claimed thus to have suspended her authority.51 An irregular ‘council’ of this kind functioned as part of the provisional government 48. J. Knox, History of the Reformation in Scotland, W. C. Dickinson (ed.) (2 vols, Edinburgh, 1949), i, pp. 150, 220; J. Knox, The Works of John Knox, D. Laing (ed.) (6 vols, Bannatyne Club, 1846–64), i, pp. 303, 334, 403. The phrase pristina libertas is used in the Latin manifesto issued by the Congregation in October 1559: A. Teulet (ed.), Papiers d’État Relatifs à l’Histoire d’Écosse (3 vols, Edinburgh, 1852–69), i, pp. 422–3. 49. Knox, History, i, p. 254; Knox, Works, i, p. 404. 50. CSP Scot., i, no. 494. 51. Knox, History, i, p. 254; Knox, Works, i, p. 448.

230

M2287 - BROWN & MAC TEXT.indd 230

10/08/2010 16:48

p o l itica l ide as and p a r l i a m e n t operated by the Congregation until the conclusion of the Treaty of Edinburgh in the summer of 1560.52 Both the parliamentary theme and the irregularity continued in the ensuing revolution. At the end of April 1560, the ‘Great Counsall of Scotland now admitted to the regiment’ commissioned six of the leading Protestant preachers to draw up ‘a Buke . . . tuiching the Reformatioun of Religioun’. Their response (in what became the First Book of Discipline) claimed for that council ‘the common consent of the estates’.53 The claim, however unwarranted, reflects the political assumptions on which revolutionary action was to be based. The ‘Reformation Parliament’ was, indeed, a duly summoned assembly of the estates; nor should we see significant structural innovation in the level of participation by ‘the barones and frehaldaris’. Yet in the present context it remains noteworthy that, before the session began, that group took special care, before parliament met, to assert their right ‘to ressoune and vote in all caussis concerning the commoune wele’.54 From the start, in any case, this parliament, meeting in the absence of Mary and François, proceeded on its own authority and initiative, claiming to enact measures to which full legality was denied until, seven years later, the second stage of the religious revolution followed the events recalled at the opening of the present discussion. That revolution produced, in the general assembly of the Protestant church, a body that was to play an important role alongside parliament in the political and religious events of the long reign of James VI. Parliament, however, was neither static nor negligible during those years and it may not be necessary to distinguish too sharply between ‘medieval constitutionalism’ and a developing ‘new relationship between the crown and the estates’.55 Parliament figured at the very start of the new reign in what was the most widely read piece of ideological writing produced by events in Scotland in this period. At a critical point in his De Iure Regni apud Scotos, where the issue is the prescribing of limits to royal power, George Buchanan invokes a procedure he describes as being ‘more or less according to our [Scottish] custom’; but the intended point of the reference is unclear. On one view Buchanan 52. G. Donaldson, Scotland: James V to James VII (Edinburgh, 1971), p. 97, refers to ‘a great council of the realm under the duke [of Châtelherault]’s presidency’ – echoing Knox to Gregory Railton, 23 October 1559 (Works, vi, pp. 66–7): ‘There shall be appointed to occupy the authority a great Council, the president and chief head of which shall be my Lord Duke.’ 53. Knox, History, ii, p. 280; Knox, Works, ii, pp. 183–4. 54. Cf. K. M. Brown, ‘The Reformation parliament’, in Brown and Tanner (eds), Parliament and Politics in Scotland 1286–1560, pp. 212–14. 55. Cf. Ibid., p. 230.

231

M2287 - BROWN & MAC TEXT.indd 231

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 is arguing that such ‘constitutional’ laws, agreed upon by the estates and the king, should be submitted to the final judgment of ‘the people’. Even if we take populus here to mean – as, in mid-sixteenth-century terms, it surely must – the organised political community rather than the populace at large, the notion seems startlingly radical. Nor is it easy to envisage what such an arrangement could have meant in practice. The alternative interpretation is that Buchanan’s phrase selecti ex omnibus ordinibus refers not to the parliamentary assembly as a whole but to something like the committee of the lords of the articles, charged with drafting proposals for full parliamentary consideration and decision. This second view, though not without its own difficulties, may seem more plausible.56 The idea that the estates embody ‘the people’ – that they are ‘the better part of the people’ – is clearly expressed by Ninian Winzet in his 1582 reply to Buchanan’s dialogue, together with an emphatic distinction between an organised political entity and the mere promiscua plebs.57 In the early 1570s, when the consequences of the drastic action taken in 1567 were by no means fully worked out, ideological factors were affecting the real world of politics. The ‘wryting delivered by the Erle Morton’ to Elizabeth I’s commissioners on 28 February 1571 sought to justify the deposition of Mary Stewart partly by appealing to Scottish precedent. This involved the authority of parliament in two instances: first, ‘John Baliol was by the nobilitie and estates of Scotland deposed . . . and Robert Bruce promoted to the crowne and kingdom’; and again, ‘the doings of king James [the] third were after his death disallowed by parliament’.58 It is clear that there was current by this time a view of the constitution in which parliament had a pivotal function. That function (it had been argued in 1567) required as a matter ‘of law and reason’ that ‘the barons of this realme aucht to haif voit in parliament as ane part of the nobilitie and for saulftie of nowmer’.59 This claim by the lairds was not formally recognised until 1587 but their participation – which had the effect of introducing shire commissioners alongside the traditional representation of burghs – clearly consolidated the position of 56. See Burns, True Law of Kingship, pp. 201–2; R. A. Mason (ed.), A Dialogue on the Law of Kingship among the Scots (Aldershot, 2004), pp. lviii–lx; Goodare, ‘Estates in the Scottish parliament’, pp. 17–19 and n. 39; Wormald, Court, Kirk and Community, p. 148, suggests that ‘all [Buchanan’s] theory came down to was a highly formalised and scholarly account . . . of political reality in a society where . . . the aristocracy had considerable power’. 57. See Burns, True Law of Kingship, pp. 211–12 and nn. 91–2. Winzet’s words in the first passage are worth recalling here: ‘populi autem nomine intelligo, maiorem populi partem, tres nimirum regni ordines, siue qui ex eis ad publica comitia vocantur’. 58. H. R. Trevor-Roper, George Buchanan and the Ancient Scottish Constitution, EHR Supplement, iii (1966), pp. 47–8. 59. RPS, 1567/12/45.

232

M2287 - BROWN & MAC TEXT.indd 232

10/08/2010 16:48

p o l itica l ide as and p a r l i a m e n t parliament as an embodiment of the realm articulated in its several estates. Whether it also increased the number of estates from three to four is unclear but perhaps it was less important than the fact that parliament was developing in ways intended to ensure that the king and his advisers should be ‘trewly informit of the nedis and caussis pertening to . . . all estaittis’.60 From one direction, however, there were other, strident sources of such information. From the start of his personal reign in the mid-1580s James VI would have had little hesitation in identifying the clergy as the most problematic estate of the realm he had to rule. His predecessors on the throne had, to a considerable extent, established a modus vivendi with the church that gave reasonable satisfaction on both sides. Now, however, the withering away of the traditional clerical estate meant that the few surviving bishops had little claim to represent the ecclesiastical life of the nation – certainly not that part of it which endorsed the presbyterian order that was central to the second phase of the Reformation. At the same time, the general assembly had acquired a representative role separate from – and claimed by some to be independent of – both crown and parliament. For James VI, this led to a situation in which ‘some of our fyerie ministers . . . begouth to fantasie to them selues a Democratick forme of gouernement’.61 One step in his protracted campaign to restore effective episcopal government to the church was the appointment of three ‘parliamentary bishops’ in 1600. The date – falling as it does in the period when James was articulating his political ideas in The True Lawe of Free Monarchies and Basilikon Doron – prompts a more general enquiry as to his understanding of the place of parliament in his realm. That understanding is clearly and forcefully stated. The functions of parliament are important but essentially subordinate and instrumental to the exercise of royal power. James insisted that ‘[t]he kings . . . in Scotland were before any estates or rankes of men within the same, before any Parliaments were holden, or lawes made’. So, ‘albeit the king make daily statutes and ordinances . . . without any aduice of Parliament or estates; yet it lies in the power of no Parliament, to make any kinde of Lawe or Statute, without his Scepter be to it, for giuing it the force of a Law’. In fine, ‘the King is aboue the law, as both the author and giuer of strength thereto’.62 At the same time, 60. RPS, 1587/7/143. On the number of estates see Goodare, ‘Estates in the Scottish parliament’, pp. 20–4. 61. J. Craigie (ed.), The Basilicon Doron of King James VI (2 vols, Edinburgh, 1944, 1950), i, pp. 74–5. The 1603 text (cf. Sommerville [ed.], Political Writings, p. 26) has ‘some fierie spirited men in the ministerie’. 62. The True Law of Free Monarchies, in Sommerville (ed.), Political Writings, pp. 73–5. (Here and elsewhere I have preferred the original 1598 True to Trew – gratuitously adopted in 1616 and followed in later editions.)

233

M2287 - BROWN & MAC TEXT.indd 233

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 ‘Parliaments are onlie ordained for making of Laws’ and James’s advice to his son is to ‘hold no Parliamentes, but for necessity of new lawes, which would be but seldome’.63 In his dealings with the English parliament after 1603, particularly in his efforts to bring about a union between his two realms, James – speaking as ‘the eldest Parliament man in Scotland’64 – found it useful to emphasise the scope of royal authority over the Scottish estates. Thus ‘seditious or vncomely speeches’ there would be ‘interrupted and silenced by the Chancellors authoritie’; again, only bills ‘allowed by the King’ were ‘propounded to the Parliament’; and finally, only when the king, sceptre in hand, has declared, ‘I ratifie and approue all things done in this present Parliament’ does legislation take effect.65 If this was the view from the palace – whether at Holyrood or in Whitehall – how did things look ‘on the ground’ during the last two decades or so of James VI and I’s long reign? Historians’ answers have – predictably – varied. It has been argued that parliament was essentially one of ‘the means by which the sovereign exercised his authority’. This is entirely consonant with the assertion that ‘James wanted an authoritative parliament’ and that the elaborate pageantry of the ‘Riding’ of the ‘Red Parliament’ in 1606 was meant to emphasise that authority. Nor should the ideological significance of such a ceremony be overlooked or underrated. The post-Benthamite John Hill Burton could handle it dismissively: ‘King James . . . was still the schoolboy so delighted with his latest novelty that the world must know all about it . . . The king would have the bishops flaunt their new robes in a solemn “Riding”.’66 That was not how contemporaries saw the matter. At the same time, ‘an authoritative parliament could . . . be a dangerous one’. It could be a focus for opposition to the royal policies it was intended (in the king’s view) to enact. To credit it with ‘a new role as one of the ideological battlegrounds of the state’ may be an overbold claim. Certainly there is no evidence in the estates of anything like the great constitutional debates at Westminster in those years. Yet even a historian inclined to be sceptical in such matters acknowledges that ‘there might . . . be [parliamentary] opposition strong enough to demonstrate that the powers of the crown were not unlimited’. The divisions in 1621 over ratifying the Five Articles of Perth 63. Craigie (ed.), Basilicon Doron, i, pp. 58–9, 60–1. In the 1603 text (cf. Sommerville [ed.], Political Writings, p. 21) ‘haue bene’ replaces ‘are onlie’ in the first passage. 64. A not unreasonable claim in view of the fact that he appears to have been present at every parliament and convention of estates between 1578 and 1603: cf. K. M. Brown and A. J. Mann, ‘Introduction: parliament and politics in Scotland 1567–1707’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707, p. 18. 65. Speech to Parliament, 31 March 1607: Sommerville (ed.), Political Writings, p. 174. 66. J. Hill Burton, History of Scotland (8 vols, Edinburgh and London, 1905), v, pp. 422–3.

234

M2287 - BROWN & MAC TEXT.indd 234

10/08/2010 16:48

p o l itica l ide as and p a r l i a m e n t were such as ‘[n]o government could ignore’. James then had his way – but only ‘by a hair’s breadth’. By the end of his reign – less dramatically, no doubt, than at its outset in his infancy, but still significantly – institution and ideology were combining to ensure that the king did not have it all his own way.67 Absolutism or Free Parliaments Charles I came to the throne with less experience of his Scottish realm, its people and its institutions than any of his predecessors. The contrast with his father is obvious and a comparison with James I is at least tempting. English captivity and training inspired some of the first James’s policies. Education in England from a much earlier age had at least as great an effect on Charles. James I, however, had returned to rule Scotland vigorously in person. Charles attempted to have his way there largely by remote control and it was his further misfortune to concentrate his efforts in that most sensitive and controversial of areas – the governance of the church. The effects were of course profound, far-reaching and divisive. The point here is to consider what part was played in the resulting conflict by parliament and the political ideas associated with it. The first ‘plain parliament’ of the new reign did not meet for eight years after Charles’s accession, and that ‘Coronation Parliament’ of 1633 has been seen as one in which the king ‘forced through his own legislative programme, while punishing even the most innocuous opposition’.68 Yet opposition there was, and Charles hardly saw it as innocuous. Procrastination since his accession had bred discontent on various grounds in different sectors of the political community. Indeed, at the very start of his reign, a convention of estates in 1625 had resisted royal policies and exceeded what, in royal eyes, were the proper limits of its competence. In 1633 opposition in parliament was muted but this was partly because a remonstrance and appeal for free 67. The views cited in this paragraph are those of Donaldson, James V to James VII, pp. 276, 286; and Wormald, Court, Kirk and Community, pp. 156, 158. For a discussion of the difficulties the crown faced in managing parliament in 1612 and 1621 see V. T. Wells, ‘Constitutional conflict after the union of the crowns: contention and continuity in the parliaments of 1612 and 1621’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1707, pp. 82–100; J. Goodare, ‘The Scottish parliament of 1621’, Historical Journal, xxxviii (1995). 68. J. Scally, ‘Constitutional revolution: party and faction in the Scottish parliaments of Charles I’, in Jones (ed.), The Scots and Parliament, p. 58. Scally has since acknowledged having ‘presented an over-simplified picture’ in this connection: J. Scally, ‘The rise and fall of the covenanter parliaments’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1707, p. 142, n. 10.

235

M2287 - BROWN & MAC TEXT.indd 235

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 discussion by the assembled estates was procedurally forestalled. Even so, the official voting figures on the most contentious issues were challenged. The sequel to all this was a notable confrontation between conflicting views on the function of parliament. In their ‘Humble Supplication’, a group describing themselves as ‘a great Number of the Nobility and other Commissioners in the late Parliament’ protested at what they described as ‘a snare’, namely, ‘the subtle junction’ of unrelated provisions in one act: the effect of this, they maintained, was to ‘oblige us either to vote undutifully in the sacred point of prerogative, or unconscionably on Church novations’. They also took exception to the king’s having made notes of speeches and votes against the legislation he was promoting, which gave rise to ‘fear of our becoming obnoxious unto your majesty’s dislike’. The attempt to submit the ‘Supplication’ to the king was not only rebuffed: it led to the intimidatory trial, on a charge of leasing-making, of James Elphinstone, second lord Balmerino. The crown case was that ‘the said unhappy and infamous libel’ contained ‘an outrageous upbraiding and taxing of our sovereign lord’s majesty of a point of injustice or indiscretion in our behaviour at Parliament’, and that it was ‘ane fearful thing in ane subject, to pry into the gesture of his sovereign in his supreme court’. Much civil-law jurisprudence was deployed in the trial and, perhaps more interestingly, the voluminous pleadings included references to Boece, to the Basilikon Doron, and to Buchanan.69 The essential point here is that, by 1633–4, an ‘absolutist’ view of parliament as the king’s ‘head court’ was being met – perhaps challenged – by the emergent concept of a ‘free parliament’. The use in the ‘Supplication’ of that last phrase – vague as it may be – is perhaps, in the present context, the most significant point of all. It may be one indication that a major confrontation was in the making. In one view, earlier ‘discontent on constitutional grounds may be inferred from the actions of the revolutionary party after it achieved power’. Others would see such an inference as ‘going too far’. Yet it has also been argued that what were later to be crucial Covenanting demands were already being made in the 1633 supplication.70 What is not in doubt is that parliament was to be an essential forum in which the issue would be tried. 69. See generally, T. B. and T. J. Howell (eds), A Complete Collection of State Trials (33 vols, London, 1809–26) iii, cols 601–712: for the specific references here, cols 606, 613, 624. Balmerino had already been active in opposition to royal policy at the 1630 convention of estates: cf. J. R. Young, ‘Charles I and the 1633 parliament’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1707, pp. 122–3. 70. For the views cited above see Donaldson, James V to James VII, p. 300; D. Stevenson, The Scottish Revolution 1637–1644: The Triumph of the Covenanters (Newton Abbot, 1973), p. 48; A. Macinnes, Charles I and the Making of the Covenanting Movement 1625– 1641 (Edinburgh, 1991), pp. 140–1.

236

M2287 - BROWN & MAC TEXT.indd 236

10/08/2010 16:48

p o l itica l ide as and p a r l i a m e n t Parliament, free or otherwise, did not meet again for another half-dozen years and the circumstances in which it met in 1639 differed widely from those of 1633. The ‘Church novations’ then feared by the supplicants had become the abortive transformation of the church envisaged in the policies that the king pursued at the prompting of William Laud. In the revolutionary response provoked by these ‘novations’, parliament as such had no immediate part. Yet the quasi-parliamentary institutions created by the Covenanting revolution may be seen as reflecting the central position now accorded to parliament in political activity.71 The place of political ideas may be more problematic. Arguably the new or refashioned institutions brought into being by the revolution were ‘not carefully planned in advance’. The changes were, rather, the result of responding to circumstances – even, at times, of ‘opportunism’.72 Yet eyed from outside – especially if the eyes were hostile – the movement might reveal what in later language would be called ideological motivation. To Walter Balcanquhal the Covenanters were arrogating to themselves ‘the supreme Ensignes and Markes of Majestie and Soveraigntie’. James Gordon saw the revolutionary regime as an imperium ædificatum in imperio.73 Nor have historians been unanimously sceptical as to ‘ideological’ motivation in this case. ‘Covenanting ideology’ has been described as ‘the dynamic product of the interaction of political thought and the political process’. In that process, ‘covenanting ideologues’ were, on this view, active participants.74 Evidently there are issues to be explored here. The outstanding political theorist of the Covenanting revolution was undoubtedly Samuel Rutherford.75 His Lex, Rex (1644) was published at the end of the first phase of the movement; but there are good grounds for regarding it as an elaboration of the political doctrine developed in the 1620s and 1630s by those presbyterians who were to find their anchorage in the National Covenant. Rutherford’s exposition of that doctrine is both erudite and prolix, and much of what he says need not claim attention here. Yet his political thinking is pervasively parliamentary. Already in the fourth of the forty-four 71. Cf. Scally, ‘The rise and fall of the covenanter parliaments’. 72. This is the view taken by D. Stevenson, The Government of Scotland Under the Covenanters, 1637–1651 (SHS, 1982), pp. x, xii. 73. [Balcanquhal], A Large Declaration Concerning the Late Tumults in Scotland (London, 1639), p. 54; J. Gordon, History of Scots Affairs from MDCXXXVII to MDCXLI, J. Robertson and G. Grub (eds) (3 vols, Spalding Club, 1845), i, p. 38. 74. A. Macinnes, ‘Covenanting ideology in seventeenth-century Scotland’, in J. H. Ohlmeyer (ed.), Political Thought in Seventeenth-Century Ireland (Cambridge, 2000), p. 191. 75. On Rutherford see J. Coffey, Politics, Religion and the British Revolutions (Cambridge, 1997). The text of Lex, Rex is cited here from the 1644 edition: bracketed numbers refer to the text in the Presbyterian’s Armoury in three volumes (3 vols, Edinburgh, 1846), iii, ‘a’ and ‘b’ denoting the two columns of each page.

237

M2287 - BROWN & MAC TEXT.indd 237

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 questions propounded in Lex, Rex, this is evident in the scriptural exegesis that occupies so much of the text.76 Only a convinced ‘parliamentarian’, surely, could see that kind of institutional procedure in the texts Rutherford cites. When he turns to his own time and to his native country, the parliamentary theme is no less strongly maintained. Power is ‘given to the king by the Parliament or estates of a free Kingdom (such as Scotland is acknowledged to be, by all)’. And ‘the authority of the supreme Court of Parliament’ is ‘so fundamental, as if it should be innovate, such confusion would ensue, as it could no more be a free Monarchy’.77 The specifically Scottish evidence deployed by Rutherford (perhaps with the assistance of Johnston of Wariston) illustrates and supports a more general theory. The foundation of that theory is what Rutherford calls the ‘fountain-power’ of the community – terminology reminiscent of late scholastic thinkers, including John Mair. Thus, ‘the most eminent and fountainepower of Royaltie remaineth in the people, as in an immortal spring’; and again, ‘[t]he People being the fountaine of the King must . . . be the fountaine of the Lawes’.78 This fundamental postulate is linked in Rutherford’s theory with two crucial distinctions. First, the power of governing must be distinguished from the power of government. Here Rutherford again uses scholastic terminology, arguing that the first of these powers, the vis rectiva, although ‘virtually’ in the people, is ‘formally’ in the hands of those who act on the people’s behalf. It is ‘put forth in action in some of them whom they choose to be their governors’. On the other hand, ‘the power of Government, that is . . . the power of making governors and kings’ is ‘a free, voluntary, and active power’ which ‘the community doth put forth in act’.79 The second distinction is between ‘the first, and ultimate, and native subject of all power’, which ‘is the Communitie’, and ‘the ethicall and politicall receptacle of this power’. The latter ‘is various, according to the various constitutions of the policie’. This is where parliament makes its decisive entrance, for ‘[i]n Scotland and England, it is the three Estates of parliament’ that form 76. Lex, Rex, p. 13 (8a): ‘Saul was not only anointed . . . first privately by Samuel . . . but also at two other times before the people . . . by a Parliament and a Convention of the States . . . Samuel doth not acknowledge him as formal King . . . while [= until] the Tribes of Israel and Parliament were gathered together to make him King . . . and because some of the States of Parliament did not choose him, but despised him in their hearts . . . therefore after King Saul had conquered the affections of all the people fully . . . Samuel would have his coronation & unction by the Estates of Parliament renewed.’ Cf. also p. 43 (25a), ‘Israel parliamentarily assembled’; p. 375 (18a), ‘the estates create the king . . . (as is clear from Deut. 17.18 and 2 Chron. 5.1, 2, 3, 4)’. 77. Lex, Rex, pp. 375 (185b), 439 (219a). 78. Ibid., pp. 148 (82b), 208 (114b). 79. Ibid., p. 50 (29a–b).

238

M2287 - BROWN & MAC TEXT.indd 238

10/08/2010 16:48

p o l itica l ide as and p a r l i a m e n t the ‘receptacle’.80 Parliamentary authority, again, is itself a ‘fountain-power’, nor does Rutherford find it necessary to maintain in this connection a rigid separation between the community and the representative assembly. ‘I do not here separate people and Parliament’, he remarks, while arguing that ‘[i]f we consider the fountaine-power, the King is subordinate to the Parliament, and not coordinate; for the constituent is above that which is constituted’. Contrariwise, ‘the soveraigne power of the Parliament, being habitually and underived a prime and fountaine-power . . . is perfect without the King’.81 On this view, then, ‘the Parliament is in no sort [the king’s] Deputy, but he their Deputy royall’; ‘[t]he States of Parliament are above [the king] to censure him’; ‘if the King turn Tyrant, the Estates are to use their fountainepower’ against him.82 All this, moreover, is asserted in firmly Anglo-Scottish terms, reflecting a moment of cross-border harmony that was not to be sustained. So far as Scotland was concerned, Rutherford’s theoretical principles may be said to have been embodied and elaborated upon in the constitutional arrangements made by the parliament of 1639–41 – of which it was said (with some justice) that it ‘ouerturned not onlie the ancient state gouernment, but fettered monarchie with chynes’.83 It has been said that ‘[b]ut for the National Covenant [the Covenanters] would surely have come down to us as parliamentarians’.84 The ‘but for’ may be a substantial qualification, yet the point retains its persuasive force. The new order was soon threatened by divisions within the revolutionary movement, and was eventually overturned by external force. Those years of change and challenge, from the mid-1640s until the Restoration of 1660, generated controversy as well as conflict. The differences between moderate ‘resolutioners’ and radical ‘remonstrants’ or ‘protesters’ had political as well as ecclesiastical dimensions. What has been called ‘the majority presbyterian concept of constitutional monarchy’ was challenged by a minority view in which ‘the natural law of self-preservation and defence’ would be invoked when traditional safeguards against misrule seemed inadequate.85 Throughout, in any case, the central importance of parliament was sustained: 80. 81. 82. 83.

Ibid., pp.58–9 (34a). Ibid., p. 377 (186b). Ibid., pp. 176 (97b), 202 (111b), 210 (115b). This was said of the acts of the 1639 parliament by Sir James Balfour: J. Balfour, The Historical Works of Sir James Balfour of Demylne and Kinnaird (4 vols, London, 1825), ii, p. 379. 84. Scally, ‘Rise and fall of the Covenanter parliaments’, p. 151. 85. I. M. Smart, ‘The political ideas of the Scottish covenanters, 1638–88’, History of Political Thought, i (1980), pp. 181, 183. This article also includes (pp. 176–80) a valuable discussion of Rutherford’s Lex, Rex.

239

M2287 - BROWN & MAC TEXT.indd 239

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 ‘the covenanters were wedded to the concept of parliament as the principal instrument of government’.86 It was a marriage destined to experience a violent divorce during the years of the ‘Cromwellian union’, and what was ‘restored’ in 1660 would bear little resemblance to what had been built up in the years of Covenanting revolution. The Restoration, the re-establishment of episcopacy, and Covenanting rebellion in the Pentland Rising combined in the 1660s to generate fresh ideological debate. In that debate, however, the place of parliamentary institutions is not easy to assess. The doomed rebels of Rullion Green were vindicated in Naphtali (1667) by Sir James Stewart of Goodtrees and James Stirling, minister of Paisley. This ‘True and short deduction of the wrestling of the church of Scotland for the Kingdom of Christ’ was ‘no political treatise’, but rather ‘an eschatological representation of the final struggle with the Antichrist’.87 It did, indeed, give rise to an important piece of political theory when Stewart, in Jus Populi Vindicatum, defended it against the attack by Andrew Honyman.88 Stewart’s work, however, though important for the history of Scottish political thinking, is of limited and essentially negative relevance here. Stewart saw parliament as a discredited assembly, which had ‘basely betrayed its trust’: there was ‘no hope, or humaine probability now left, that ever the people of Scotland shall have a parliament by the course laid down of their inferiour judges to resent the injuries, oppression and tyranny’.89 Parliamentary default left the oppressed no remedy but the right of every individual to self-defence. Matters looked rather different from a less radically committed standpoint. The Restoration of the monarchy was followed by the repeal of the legislation of the late 1630s and early 1640s which had imposed parliamentary limits upon royal power. The years 1669–70 have been described as ‘a period in which the conceptual development of the absolutist state was at its height in Scotland’ – a climactic point perhaps reflected in the 1669 act which claimed for the king ‘Supream Authoritie and Supremacie over all persons & in all causes ecclesiasticall’.90 It was no doubt the case that monarchical Restoration 86. Scally, ‘Rise and fall of the covenanter parliaments’, p. 161. 87. R. von Friedeburg, Widerstandsrecht und Konfessionskonflikt: Notwehr und Gemeiner Mann in deutsch-britischer Vergleich 1539 bis 1669 (Berlin,1999), p. 137. 88. Friedeburg, Widerstandsrecht, pp. 138–43, provides an excellent analysis of these polemical exchanges. See also Smart, ‘Political ideas of the Scottish covenanters’, pp. 183–7. 89. Jus Populi Vindicatum, or The People’s Right to Defend Themselves and their Covenanted Religion, Vindicated (London, 1669), pp. 337, 341. Honyman’s A Survey of the Insolent and Infamous Libel Intituled Naphtali had been published in Edinburgh in 1668. 90. J. Goodare, State and Society in Early Modern Scotland (Oxford, 1999), p. 197, n. 81. For the 1669 act see RPS, 1669/10/13 and cf. the terms of the 1661 oath of allegiance cited by G. H. MacIntosh, ‘Arise King John: Commissioner Lauderdale and parliament in the

240

M2287 - BROWN & MAC TEXT.indd 240

10/08/2010 16:48

p o l itica l ide as and p a r l i a m e n t was accompanied by ‘an aristocratic re-establishment’ but ‘[t]he enervated condition of the Scots nobility . . . diminished the potential for the unicameral Scottish parliament to serve as a focus for intellectual debate and political influence during the Restoration’.91 Parliament nevertheless could and did play an effective if intermittent part in opposing royal policy as well as in proclaiming royal power. A degree of ambivalence in the situation may be reflected, conceptually, in frequent but by no means unambiguous references to ‘fundamental law’. Such law, or laws, could be invoked both by opponents of royal policy in church or state, and by those who sought to sustain the crown’s prerogative. Even in that connection, however, such an appeal implied limits to the use of power. The invocation of ‘the fundamental laws of the kingdom’ by Sir George Mackenzie of Rosehaugh in his Jus Regium is a salutary reminder that ‘absolute’ power was not necessarily to be equated with ‘arbitrary’ rule.92 Writing as lord advocate, at a time when the law of Scotland was reaching its systematic maturity, Mackenzie censured those who had ‘adventured upon a debate in law, not being themselves lawyers’. He himself insists ‘that Government is the Kings, and Property is the Subjects Birth-right’, and political authority embraces ‘no more than what is necessary for Government’. In that authority, however, ‘our Parliaments are not co-ordinate with our Kings . . . but the Legislative or Architectonick Power of making Laws . . . does solely reside in the King, the Estates of Parliament only consenting’.93 This was undoubtedly the conception of ‘fundamental law’ invoked when James VII’s first parliament referred to the ‘sacred authority and power’, and the ‘solid, absolute authority’ of Scottish kings.94 Yet Mackenzie forfeited office when, in 1686, he refused to accept the king’s use of that ‘sacred authority’ to grant religious toleration.95 The attempt to achieve toleration by legislative means had been defeated in parliament, and its implementation

91.

92. 93. 94. 95.

Restoration era’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567– 1707, p. 164. R. Mitchison, Lordship to Patronage: Scotland 1603–1745 (London, 1983), p. 89; C. Jackson, Restoration Scotland, 1660–1690: Royalist Politics, Religion and Ideas (Woodbridge, 2003), p. 20. See chs 3 and 4 for the fullest discussion of the development of ideology in this period. The point is discussed in J. H. Burns, ‘The idea of absolutism’, in J. Miller (ed.), Absolutism in Seventeenth Century Europe (London, 1990). Jus Regium, Or The Just and Solid Foundations of Monarchy (London, 1684), pp. 50, 67. Cf. A. J. Mann, ‘“James VII, king of the articles”: political management and parliamentary failure’, in Brown and Mann (eds), Parliament and Politics in Scotland 1567–1707, p. 198. Donaldson, James V to James VII, p. 383.

241

M2287 - BROWN & MAC TEXT.indd 241

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 by royal proclamation ‘helped create the image of Catholic absolutism’.96 It was the pursuit of such policies by such means that brought the reign to its dramatic end. The revolution of 1688 was ‘made in England and imported to Scotland’.97 Yet its underlying principles were more sharply stated in the northern kingdom, and those principles (though imperfectly implemented) raised parliamentary authority to the highest pitch it had ever enjoyed in Scotland. In their Claim of Right and Articles of Grievances, the estates spelt out the implications of their declaration that James VII had forfeited the crown. The Claim invoked ‘the fundamental constitution of this Kingdom’ as ‘a legal limited monarchy’, and the independence of parliament was essential to that constitution. The Grievances were largely concerned with legislative–executive relations, and the abolition, in 1690, of the lords of the articles ensured that a novel degree of parliamentary independence would survive the inevitable shifts and compromises of post-Revolutionary politics.98 Yet what appeared to be a new dawn proved to be a setting, not a rising. And, on cue in the gathering dusk, Hegel’s owl of Minerva took flight in the person of Andrew Fletcher of Saltoun. Now Fletcher – like such notable predecessors in Scottish political thinking as Mair and Buchanan – spent much of his life outside of Scotland.99 This, however, serves not to diminish but to enhance the importance of the ideas of a ‘discriminating patriot’, who thought and wrote, not in narrowly Scottish or British terms, but in the European perspectives of the early Enlightenment.100 His first political intervention led to exile and, for effective involvement in parliamentary politics, he had to wait until 1703. By then he had developed and published his ideas on political and military matters and, specifically, on Scottish affairs. These he brought to bear as a member of parliament between 1703 and 1707. In those years, of course, the projected Union dominated the political agenda and much of what that entailed lies beyond the scope of this discussion. What is relevant here is the position accorded to parliament in Fletcher’s understanding of those ‘ancient, limited and legal monarchies’ of which he saw Scotland as one.101 In that understanding ‘no monarchy in Europe was more limited, nor any people more jealous of liberty than the Scots’, until the union of the crowns produced ‘a violent inclination in many men to extend the prerogative of the 96. 97. 98. 99.

Mann, ‘“James VII, king of the articles”’, p. 203. Donaldson, James V to James VII, p. 383. RPS, 1689/3/108, 1690/4/22. Fletcher ‘was out of the country for at least 35 of the 48 years he lived after first leaving in 1668’: J. Robertson (ed.), Andrew Fletcher: Political Works (Cambridge, 1997), p. xiii. 100. Fletcher: Political Works, pp. xi–xxx. 101. Ibid., p. 18 (Discourse of Government, 1698).

242

M2287 - BROWN & MAC TEXT.indd 242

10/08/2010 16:48

p o l itica l ide as and p a r l i a m e n t prince to an absolute and unlimited power’. This in turn gave rise to ‘a need of more limitations’ – a need Fletcher sought to meet in his draft ‘Act for the security of the kingdom’.102 Had the act as he envisaged it been adopted, parliament under Anne’s successors would have become an annually elected and effectively sovereign assembly, with no royal veto over its legislative proposals and with power to appoint to ‘all places and offices, both civil and military, and all pensions formerly conferred by our kings’. The Scots, in Fletcher’s eyes, now had an ‘opportunity of making ourselves a free people’. Their parliament would become ‘the most uncorrupted senate of all Europe’.103 Paradoxically, given Fletcher’s anti-clericalism, his projected Machiavellian rifondazione (as it has been termed) looked back no further than the shortlived Covenanting constitution of the 1640s.104 Neither in Covenanted nor in Enlightened guise, however, was the kingdom of the Scots destined to acquire a truly sovereign parliament.

102. Ibid., pp. 134–40 (22 June 1703). 103. Ibid., pp. 137–40, 158, 165. 104. Cf. Robertson, in Fletcher: Political Works, p. xxv.

243

M2287 - BROWN & MAC TEXT.indd 243

10/08/2010 16:48

chap t e r 9

Parliament and Politics Julian Goodare

T

his chapter is about how Scottish parliaments functioned politically. It is about what parliaments did – or, more precisely, about how political actors used parliaments to do things. It is not a narrative of political events in parliament; much of this has been provided by the previous volumes in this series and by other works cited therein. It is a structural analysis of the types of things that people used parliament to do, and how it did them. The question behind much of the discussion is: What difference did it make, politically, for Scotland to have parliaments? Politics is best defined as decision-making by a process of negotiation and compromise among interest groups.1 Parliament was important to this, both because its own members were usually members of interest groups, and because it could be expected to listen to other interest groups when they lobbied it. Politics, in this definition, could be carried on by various different types of ‘group’. There were the followings of individual lords; there were factions (rival groups of political leaders and their followers); there were the three estates (later four estates) as collective entities; there were political movements (groups based on the promotion of a cause); and, towards the end of the period, there were stirrings of what would become political parties. The focus is on decision-making; the questions addressed by old-fashioned constitutional history are no longer at the forefront of historical enquiry. It remains essential to understand constitutional machinery, such as who exactly was entitled (or required) to attend parliaments, or the different powers of the various configurations of the estates – parliaments themselves, general councils and conventions of estates. Ultimately, though, the political 1. For this definition, which stems originally from Aristotle, see B. Crick, In Defence of Politics (5th edn, London, 2000).

244

M2287 - BROWN & MAC TEXT.indd 244

10/08/2010 16:48

pa r l iame nt and p o l i t i c s historian wants to know, not who parliament was, but what it did. People came to parliament for a reason; there would have been no point in attending an ineffective body. Politically, the configuration of the machinery is less interesting than what happened when the machinery was set in motion. Political Themes in European Context Let us begin with an outline of the European context of some political themes that were relevant at different periods of the life of the Scottish parliament. In the later Middle Ages, it was normal for European kingdoms to have parliaments. The fact that Scotland had one, therefore, tells us no more than that it was a normal European kingdom. The major problems with which parliaments dealt included war, diplomacy and justice, and there were many temporary administrative orders. Medieval parliaments typically met annually, which may tell us something about the shelf life of a typical parliamentary decision. Medieval kings always needed to consult the magnates of their kingdom. So long as they consulted successfully, kings could use parliaments to enhance their power. Magnates tried to make sure that kings did not get too much power, but they did find kings useful, principally in settling inter-magnate disputes and in co-ordinating national warfare. Parliaments did not wage war themselves (though they took political decisions that influenced whether wars occurred), but they could help with the disputes – which is why they first emerged, in Scotland, as more formal sessions of the king’s ‘court’. This was relevant to the economic power of the king, and of all lords, because the process of dispute resolution tended to be a process of reallocation of landed resources. Parliaments became relevant to economic power in a new way in the early fourteenth century, when they started to grant taxation. Early taxes were mainly on landed rents, but it was found possible also to tax the burghs. At this point, burgesses came to be included in parliament’s membership, and the celebrated ‘three estates’ could take shape. The burgesses, however, were always the most junior of the estates. Medieval parliaments consisted principally of powerful lords whose power was local. They had their own courts in which they exercised power, and networks of kinsmen and followers with whose aid they ruled. They did not intend to share that power – not with the king, and not with parliament either. Fifteenth-century parliaments passed a good deal of legislation on the procedure of local courts. A parliamentary commission of 1432 was held entirely for this purpose, ‘to ordane and commoun apoun certane statutis profitable for the common gude of our realme . . . for stanching of the fellone, slauchtiris, barganis that is apperande and for the abrething [that is, 245

M2287 - BROWN & MAC TEXT.indd 245

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 shortening] of the law in swilk case’.2 Such legislation actually empowered local courts – which were all, even the nominally royal sheriff courts, controlled heritably by nobles. Parliament tended not to welcome any encroachment of central justice. An act of 1474 ordered people to seek justice at their local courts and not to ‘wex’ the king or his council with their complaints.3 In the early modern period, there was a general European tendency for parliaments to be dispensed with. There was never a massacre of parliaments; rather there was a slow, intermittent cull. Some parliaments died suddenly in political upheavals; others faded away almost imperceptibly. But the early modern trend was all in one direction. No political upheavals were founding new parliaments; no new parliaments were growing up imperceptibly. The existing parliaments were all old ones that had not yet been got rid of.4 The newer way of doing things was, of course, to concentrate governmental powers in the hands of absolute monarchs selected by heredity. This gained support because it was seen to enhance political stability; it reduced the risk of succession disputes, and clarified chains of command and responsibility. Some parliaments were seen to be ineffective in counselling the king, in raising taxation, or both, and they were not missed. Absolute monarchy followed legal rules, rather than exercising arbitrary power. Politically, it was normally consultative and even consensual; magnates remained important, and consultation with them simply took place at the royal court rather than in the parliamentary chamber. To achieve a transition from a medieval, parliamentary monarchy to an early modern, absolute monarchy, the main thing that seems to have been needed was an accepted way of raising revenue without resorting to parliamentary taxation. The trend towards absolute monarchy predated the European Reformation, but the religious conflicts of the Reformation era raised the stakes, sometimes encouraging contrary pro-parliament trends. Some religious movements attempted to use parliaments to challenge their rulers, and new political ideas of ‘resistance’ to rulers by members of the political classes were developed. The present chapter, however, is not about theories, but about political facts. The term ‘resistance’ may at least point to the fact that, while resistance was 2. RPS, 1432/3/1. 3. RPS, A1474/5/11. 4. For a fuller discussion of this topic, with references to comparative literature, see K. M. Brown and A. J. Mann, ‘Introduction: parliament and politics in Scotland, 1567–1707’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707, esp. pp. 1–5. For an influential overview of some of the processes at work, see H. G. Koenigsberger, ‘Monarchies and parliaments in early modern Europe: Dominium regale or dominium politicum et regale’, Theory and Society, 5 (1978).

246

M2287 - BROWN & MAC TEXT.indd 246

10/08/2010 16:48

pa r l iame nt and p o l i t i c s common, revolution was not – because the resisters usually failed. And wherever absolute monarchy triumphed, parliaments were eclipsed. The Scottish parliament participated in all these trends. James IV sent it into decline in the later years of his reign, from 1496 until 1513, using other means of consultation and other sources of revenue. This decline was reversed in the reign of James V, however. There were roughly annual parliaments during his minority, and roughly biennial ones during his majority, though with reduced numbers in attendance. In the later sixteenth century, parliament was sometimes used as a forum by political tendencies sympathetic to the theory of revolution, and this seems to have galvanised it. The Reformation parliament of 1560 was summoned by the Lords of the Congregation, the Protestant and anti-French movement that captured power from the regent, Mary of Guise. The hundred-odd lairds who became members of that parliament were recognised at the time as being qualitatively different from the handfuls of lairds who had sometimes attended early sixteenth-century parliaments, or from the lairds who had petitioned the regent during the 1556 parliament without being members of it. Continuing pressure for lairds’ representation led to the establishment of a fourth estate in 1587. Although parliaments were now less frequent than in the early sixteenth century, each parliament was a much more important occasion. Almost for the first time, parliaments began to pass large quantities of legislation that substantially reshaped the law. Governmental specialisation saw new bodies emerge, notably the court of session and the privy council, which largely took over parliament’s judicial and executive functions respectively. One result was that there was, overall, more government. Most of the ‘acts’ of fourteenth- and fifteenth-century parliaments were things that would later have been done by the privy council – and the privy council did far more of such things. Parliament, meanwhile, concentrating on legislation, produced a great deal more legislation. It had become the sovereign body of a newly integrated state. It might be added that the evidence of parliamentary sovereignty is not found in contemporary political theory; rather, it depends on an analysis of contemporary political practice, to which can be applied a modern theory of sovereignty.5 In the later sixteenth century, absolutist trends reasserted themselves, and one can once again perceive a threat to parliament’s existence. It can be seen with hindsight that the ‘sovereign’ body, able to legislate, was the crown in parliament, but this was not clear at the time; perhaps the crown alone was, 5. J. Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford, 1999); J. Goodare, State and Society in Early Modern Scotland (Oxford, 1999), ch. 1.

247

M2287 - BROWN & MAC TEXT.indd 247

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 or ought to be, sovereign? Once there was a sovereign state, there were disagreements over whether king or parliament was sovereign. Political theorists rarely expressed the question explicitly in this way, although James VI and Samuel Rutherford both did. In practice, in the early seventeenth century, the councillors of James VI and Charles I increasingly regarded summoning a parliament as a problem. More things were done by the royal prerogative, and parliament was avoided if possible.6 The decline of parliament in the early seventeenth century was, however, reversed – almost uniquely in Europe – by a successful revolution. The Covenanters relied on parliament and, although the Restoration regime tried to curtail it, parliament returned with further vigour during a second revolution in 1689. At the Union of 1707, Scotland may have lost its own parliament, but the government of Scotland remained parliamentary. Unlike most Continental countries, Britain was not an absolute monarchy, and the British parliament was a vigorous body in governing Scotland. Union with the English parliament also illustrates a further point about revolutions because, in the way in which it relied on parliament, the Scottish Revolution was not alone – it was paralleled by the English Revolution. Types of Political Decision Parliament was basically a forum for the political classes to debate and decide political questions. What kind of questions, and what kind of decisions? Some of the decisions may not seem important, but one can assume a priori that the fact of parliamentary involvement indicates two things: the members of parliament thought that it should not be left either to local courts or to the monarch. Perhaps what we need here is a study of the smallest parliamentary decisions, or (from another perspective) a study of how far other jurisdictions might extend.7 In the Middle Ages, alternative jurisdictions were mostly those possessed by individuals, notably local lords and their courts. In the early modern period, this question of jurisdiction often meant the jurisdictions of other corporate bodies, such as the privy council, or the general assembly of the church. Local courts ceased to rival parliament once parliamentary sovereignty was established, not because they were abolished 6. J. Goodare, The Government of Scotland, 1560–1625 (Oxford, 2004), pp. 103–5. Parliaments (or conventions of estates) were still needed for taxation, but there was a tendency to ask for this to be granted for longer periods. 7. Cf. A. R. MacDonald, ‘“Tedious to rehers”? Parliament and locality in Scotland, c.1500– 1651: the burghs of north-east Fife’, PER, xx (2000).

248

M2287 - BROWN & MAC TEXT.indd 248

10/08/2010 16:48

pa r l iame nt and p o l i t i c s but because parliament continued to find them useful, passing legislation that the courts then enforced. One basic distinction between types of decision, already alluded to above, is between making new law and implementing existing law – between legislation and executive action. Judicial action was usually a species of executive action (applying existing law to individuals), but it could occasionally make law by setting precedents (subject to tacit approval by subsequent parliaments). Legislation was normally permanent, although parliamentary taxation, which was undoubtedly legislative, was temporary. Much nominally permanent legislation, however, was designed to enable or to encourage executive agencies of government to solve an immediate problem – hence the habit of re-enacting previous statutes, particularly in the fifteenth and sixteenth centuries. This does not necessarily prove that the statute was ineffective, rather, that it was intended to be implemented flexibly. This habit declined in the seventeenth century, and new legislation was more often designed as an improvement on old legislation. These legislative developments mean that a ‘political’ approach to parliamentary history has more than one story to tell. The parliament of Elizabethan England has been discussed from two contrasting points of view, sometimes called ‘political’ and ‘administrative’. The ‘political’ view, associated with J. E. Neale, focuses on controversy and on high politics. The ‘administrative’ view, associated with G. R. Elton, focuses on consensus and on the framing of legislation on a variety of topics. These views were once thought of as mutually exclusive, but both have their place in a rounded understanding of parliament.8 Indeed, both were ‘political’ in this chapter’s sense of the term. Research on the development of specific legislative policies is much needed, particularly for economic policy, a growing area of government concern in the seventeenth century. One of the background factors in the Union of 1707 was people’s expectation that parliament should manage and promote the economy; its difficulties in doing so became obvious after the collapse of the Darien scheme in 1700. As well as legislation, there were other day-to-day governmental decisions to be taken – summoning and deploying military forces, writing to the king of France, paying out money, making grants of land, and so on. These were executive decisions, but instead of implementing ‘law’ they implemented policy. Policy was often a matter of custom and practice. Individual actions of day-to-day government were not directly parliamentary; frequently, they pertained to the royal prerogative, often in practice delegated to officials. 8. Neale’s and Elton’s work is reviewed and contextualised by P. Collinson, ‘Puritans, men of business and Elizabethan parliaments’, in his Elizabethan Essays (London, 1994).

249

M2287 - BROWN & MAC TEXT.indd 249

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 But individual actions were part of a broader picture. Letters to the king of France, or other diplomatic or military initiatives, were components of a general foreign policy – something that can be identified by reconstructing the pattern of many individual initiatives over a period of time. Here, a role for parliament can be identified. Foreign policy was shaped mainly by custom and practice and not by legislation, although, from time to time, the crown entered into treaties carrying specific obligations, and the making of treaties could require parliamentary endorsement. Parliament was important in foreign policy from its earliest beginnings as a distinct institution in the late thirteenth century. Other assemblies could discuss foreign policy, however. There seems to have been nothing particularly parliamentary about the council of the nobility in Newbattle that decided to write collectively to the pope in March 1320.9 Grants of land, too, might follow a general policy to the extent that it was the king’s policy to reward certain individuals or groups. Again, the shaping of such a policy was usually a matter of custom and practice. Typical categories of major political decision, then, were decisions to pursue a particular foreign policy or to favour a particular group. Such decisions were not strictly ‘legislative’, but they were important. When parliaments met, they were usually involved in these decisions. They did not usually grant land directly (that was a royal act), but they often helped to place people in positions of power where they could expect such grants – as the next section of this chapter will illustrate. Parliaments also operated a complementary process to that of royal largesse to favoured groups: the forfeiture of disfavoured groups. Unlike its English counterpart, the Scottish treason law remained broad and open to flexible definition by the government. Forfeitures were thus ‘political’ in the sense that they involved negotiation between interest groups. The ‘law’ that was held to have been broken by those being forfeited was a matter of failing to co-operate politically with groups closer to the crown. Forfeitures began in the early fourteenth century, if not before, and remained a feature of parliamentary proceedings to the end. The parliamentary proceedings themselves were often formalities, with the person being forfeited having already fled. Two proceedings of 1469 against the Boyd family indicate that the whole parliament (apart from the clerical estate which formally withdrew) could make the decision to convict someone of treason in their absence. If an accused traitor was personally present, however, an assize was appointed to pass judgment on them. In both cases, the judgment was then formally delivered by 9. G. G. Simpson, ‘The Declaration of Arbroath revitalised’, SHR, liv (1977), p. 19.

250

M2287 - BROWN & MAC TEXT.indd 250

10/08/2010 16:48

pa r l iame nt and p o l i t i c s the dempster.10 In 1543 came an early example of large-scale rescinding of previous forfeitures, with the restoration of the sixth earl of Angus and his colleagues.11 The Covenanters’ extensive use of forfeitures is illustrated in 1649 by an act rewarding John Sempill, writer, for having been a ‘faithfull servant to the publict’ in writing summonses of forfeiture for the past eight years.12 A late, perhaps final, example of large-scale rescinding of forfeitures occurred in 1690 when many forfeitures since 1665 were reversed.13 Parliament was important in granting taxes to the crown. The idea of taxes, as distinct from rents, originated with the church – first teinds and then papal taxation of benefices. Parliament caught up with this in the fourteenth century, first granting heavy taxes in the 1320s and then, in 1366, creating the second of two great medieval land assessments, ‘new extent’ as it came to be known. Customs duties on exports were not originally parliamentary, but the raising and reorganising of the rates by a general council in 1357 was significant. Overall, there was a political balance to be struck in granting taxation. If parliament was too amenable, the tax was granted but became permanent, removing parliament from any further role in it. If parliament was too reluctant, the tax was not granted – and if that happened too often, then parliament ceased to be useful to monarchs or, indeed, to anyone who wanted to use taxes in government. Fourteenth-century parliaments, then, were fairly amenable over taxation. Taxation, however, was crucial to the two biggest confrontations of the fifteenth century between the crown and parliament, in the 1420s and 1470s.14 The crown’s defeat in the latter was probably related to the decline of parliament under James IV; an assembly that was not useful over taxation was a good deal less useful. Conversely, parliament’s revival in the late sixteenth century was surely connected with the emergence, in the 1580s, of regular parliamentary taxation. Thereafter, direct taxes were essential to government, posing a challenge to the absolutist tendency of the seventeenth century. The absolutist solution was to ask parliament to grant taxes for longer periods, or even in perpetuity; if sustained, this would have gone far to undermine parliament’s place in the constitution. It was not sustained, however, and the periods of parliamentary rule – the 1640s and the 1690s onwards – saw taxes granted only for short periods. The Covenanters, in 1639–40, successfully imposed the first new valuation of land since 1366 – initially through the 10. 11. 12. 13. 14.

RPS, A1469/2. RPS, 1543/3/30–3. RPS, 1649/1/326. RPS, 1690/4/80. Tanner, Parliament, pp. 264–5.

251

M2287 - BROWN & MAC TEXT.indd 251

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 revolutionary committee known as the ‘Tables’, and then through a convention of estates.15 Previous attempts to carry out this vital reform had been wrecked in 1556 and 1600 by recalcitrant meetings of the estates. Parliament gained a new function in the 1490s with the rise of private acts.16 These had earlier been very rare, but thereafter they established themselves as a recognised component of parliamentary business. Early private acts mainly changed place names; one can see why the first earl of Argyll might have been unhappy about the name of Castle Gloom, for instance.17 In the sixteenth and seventeenth centuries, private acts typically involved ratifying someone’s property or privilege, or granting them further property or privilege. Forfeitures resembled private acts, functionally, in the sense that they applied only to particular individuals. Private acts, however, were initiated by the individuals or corporations to which they applied. The rise of private acts was probably connected with the rise of petitions. From at least the sixteenth century, parliament was thought of as being willing to receive petitions from non-members. Less is known about medieval petitions, but they seem typically to have come from members of parliament. The ‘articles’ dealt with by the delegated committees of parliament in the period c.1367–1426 were often entirely from the king.18 Even petitions from members of parliament may have become more common in the later sixteenth century; the rise in private acts is plain from the parliamentary register, while Alan MacDonald’s study of burghs ‘lobbying’ parliament has hardly any material earlier than the 1580s.19 What we do find in the fifteenth century, and no doubt before, is people using parliament to litigate, or at least attempting to do so. This is not quite the same as ‘lobbying’ for private acts, and the litigants may well have been members of parliament.20 To the extent that the receipt of petitions from outside parliament was a new development – and the whole topic demands further research – it may indicate 15. D. Stevenson, ‘The financing of the cause of the covenants, 1638–1651’, SHR, li (1972), pp. 89–91. 16. For these generally see J. Goodare, ‘Parliament and Society in Scotland, 1560–1603’ (unpublished PhD thesis, University of Edinburgh, 1989), pp. 97–108. 17. RPS, 1490/2/28. It became Castle Campbell. 18. R. Tanner, ‘The lords of the articles before 1540: a reassessment’, SHR, lxxix (2000), pp. 190–4. 19. A. R. MacDonald, The Burghs and Parliament in Scotland, c.1550–1651 (Aldershot, 2007), pp. 88–102. 20. Cf. A. R. Borthwick, ‘Montrose v. Dundee and the jurisdiction of the parliament and council over fee and heritage in the mid-fifteenth century’, in C. Jones (ed.), The Scots and Parliament (Edinburgh, 1996). The English parliament heard non-members’ petitions from the 1270s onwards: G. Dodd, Justice and Grace: Private Petitioning and the English Parliament in the Late Middle Ages (Oxford, 2007).

252

M2287 - BROWN & MAC TEXT.indd 252

10/08/2010 16:48

pa r l iame nt and p o l i t i c s a subtle shift in the way that parliament was conceptualised politically: from constituting the body politic to representing the body politic. The question of representation will be further discussed below. Future research may address questions such as why petitioners chose to address parliament rather than king or council, under what circumstances they needed a noble intermediary, and what outcomes they sought. Petitioners typically sought private acts; the texts of many such acts clearly originated as petitions. Parliament was still working its way through petitions on its final day of business, 25 March 1707.21 Parliament and New Regimes Parliament took on one of its most distinctive political roles when it acted as a forum for establishing a new regime. There were, in fact, several different ways in which parliaments could do this. The emergence of a new regime was likely to involve more than one decision-making moment, and might well be preceded by the undermining, overthrow or collapse of the previous regime. The extreme example of a new regime was a revolution, and parliaments were certainly involved in revolutions. Before considering these, however, it is appropriate to look at other types of new regime. New regimes could be created by a coup d’état, or by a compromise settlement after political unrest, or following the dissolution of a regime for some other reason. The numbers of recognisably new regimes created with parliamentary involvement are limited, and the following instances, though not comprehensive, include quite a few of the leading examples. They have been divided into four categories for analytical purposes, but there is a good deal of overlap between some of the categories. Individual instances of the establishment of new regimes often display characteristics of more than one category. The first type of new regime was the coup d’état, with a parliamentary decision playing a key role in establishing or legitimising the new regime. Three examples are given here. In July 1295, it appears to have been a parliament that suspended King John, placing authority in the hands of a council of twelve.22 Secondly, at a general council in December 1388, the earl of Carrick was superseded as guardian by his brother, the earl of Fife.23 Thirdly, the 21. RPS, A1706/10/60–4. 22. A. A. B. McQueen, ‘Parliament, the guardians and John Balliol, 1284–1296’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560, pp. 46–7; G. W. S. Barrow, Robert Bruce and the Community of the Realm of Scotland (4th edn, Edinburgh, 2005), pp. 83–4. 23. S. Boardman, ‘Coronations, kings and guardians: politics, parliaments and general councils, 1371–1406’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560, p. 110.

253

M2287 - BROWN & MAC TEXT.indd 253

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 parliament of February 1525 saw the supporters of the sixth earl of Angus wrest power from the queen mother, Margaret Tudor.24 There were several non-parliamentary seizures of power in the period 1567–83, but after this, coups faded away with the enhancement of the authority of the state. Sudden and coercive changes of regime, when they occurred, were now forced to be even more serious, and correspondingly rare, events – revolutions. The second type of new regime was the compromise settlement, usually after a civil war or other political unrest. Four examples can be given. In 1439, there was a struggle for power after the death of the lieutenant-general, the fifth earl of Douglas. It was ended by an ‘appoyntement’ made at a general council between Queen Joan and her rivals led by Sir Alexander Livingston of Callander. The Livingston faction emerged more successful, but the point is that the general council was helping to reconcile them.25 Secondly, the aftermath of the political and military struggles between James II and the ninth earl of Douglas saw three parliaments, in June, August and October 1455. The first consolidated the royal victory by forfeiting the Douglases; the second made arrangements to secure royal revenue – even against the king himself – by an act of annexation; the third launched the regime on a course of confrontation with England.26 Although this regime had similar personnel to those who had supported James II until 1455, these initiatives mark it as taking new directions agreed in parliament. In the third example, the rebellion of 1489 against the narrowly based early regime of James IV led to a parliament in February 1490 at which a compromise was reached.27 The final example of a parliamentary compromise regime comes in 1573, with the victory of the ‘king’s party’ in the recent civil wars. Two parliaments were held, in January and April, with the latter ratifying the Pacification of Perth, the February agreement with the leaders of the ‘queen’s party’ whereby they submitted to the Regent Morton.28 Closely related to the previous two types of new regime, but nevertheless with its own distinct identity, is the settlement of a new regime after the collapse or termination of a previous regime. Three examples are given of this. The parliament of 1528, held shortly after the young James V’s escape from the custody of the Douglases, was mainly wielded as a weapon against the 24. K. Emond, ‘The parliament of 1525’, in Brown and Tanner (eds), Parliament and Politics in Scotland, 1235–1560. 25. RPS, 1439/9/1; Tanner, Parliament, pp. 91–3. 26. Tanner, Parliament, pp. 145–55. 27. N. A. T. Macdougall, James IV (Edinburgh, 1989), pp. 80–2. 28. J. Goodare, ‘The Scottish parliamentary records, 1560–1603’, Historical Research, lxxii (1999), pp. 261–3.

254

M2287 - BROWN & MAC TEXT.indd 254

10/08/2010 16:48

pa r l iame nt and p o l i t i c s latter but did not actually cause their fall.29 The parliament of December 1543 followed on from the collapse of the coalition that had agreed a treaty with England earlier in the year. The regent, the second earl of Arran, undertook a volte-face in September, renouncing the treaty and the recent moves towards Protestant reform.30 The parliament of 1585 followed the overthrow of the then earl of Arran by a coalition of pro-English nobles, and a formal alliance with England soon followed.31 Not all bids for new regimes were successful. On a number of occasions, a parliamentary decision can be seen to have avoided the creation of a new regime. The four examples that follow are a small selection from a large group. Parliament in 1351 rejected David II’s proposals for a peace treaty with England involving the recognition of a younger son of Edward III as David’s successor.32 Excluding the Stewarts from the succession would have been such a big step as to create a new political regime. From this point of view, what parliament was doing in 1351 was to refuse to create such a regime. It also resembled the way in which opposition challenges to government policy were sometimes mounted unsuccessfully in parliaments; here, the challenge to government policy came from the king. A second example, with the monarch playing a different role, comes from 1563. Queen Mary used the parliament of that year to execute a carefully planned political manoeuvre, escaping from the commitment she appeared to have made in 1561 to ratify the Protestant religion in a parliament of unquestioned legality.33 Finally, there are examples of avoidance of new regimes in the most straightforward way, when challenges to current policy were mounted in parliament but defeated by government supporters. Such challenges seem to have occurred mostly in the seventeenth century, once it became established that it was possible to use a parliamentary majority rather than seeking consensus. Leading examples occurred in 1621 when the opposition tried and failed to defeat the Five Articles of Perth and the introduction of a tax on annual rents; and 1673, when an opposition bid to consider the grievances of the nation was clearly aimed at removing the king’s chief minister, the duke of Lauderdale.34 29. J. Cameron, James V: The Personal Rule, 1528–1542 (East Linton, 1998), pp. 36–42. 30. M. H. B. Sanderson, Cardinal of Scotland: David Beaton, c.1494–1546 (Edinburgh, 1986), ch. 10. 31. R. Grant, ‘The making of the Anglo-Scottish alliance of 1586’, in J. Goodare and A. A. MacDonald (eds), Sixteenth-Century Scotland: Essays in Honour of Michael Lynch (Leiden, 2008), pp. 219–21. 32. M. A. Penman, David II, 1329–1371 (East Linton, 2004), pp. 162–8. 33. J. Goodare, ‘The first parliament of Mary queen of Scots’, Sixteenth Century Journal, xxxvi (2005). 34. J. Goodare, ‘The Scottish parliament of 1621’, Historical Journal, xxxviii (1995); G. H. MacIntosh, The Scottish Parliament under Charles II, 1660–1685 (Edinburgh, 2007), ch. 5.

255

M2287 - BROWN & MAC TEXT.indd 255

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 Finally we have parliamentary involvement in actual revolutions. Less needs to be said about these because they have been extensively discussed. The most prominent revolution was that of the Covenanters in 1638. This was not made in parliament, but the Covenanters soon took control of parliament and governed through it. The Revolution of 1689 was made in a convention of estates that became a parliament. There were no medieval revolutions; new medieval regimes could change a dynasty, or reallocate territory between kingdoms, but it is hard to imagine them changing the country’s religion, or the constitutional relationship between the monarch and parliament, or the direction of social and economic policy.35 There are various similarities and overlaps between these categories of new regime. The coups of 1295, 1388 and 1525 resemble collapses of regime, with John Balliol, the earl of Carrick and Margaret Tudor successively losing their grip. But this is because coups tend to occur, not in the circumstances of normal, stable regimes, but precisely when rulers are losing their grip. All three regimes were deliberately pushed rather than simply falling. The ‘compromise’ of 1455 was similar to the avoidance of a new regime because James II’s ‘new regime’ contained largely the same men as those who had supported him against the Douglases in the early 1450s. To that extent, it could be seen as the avoidance of the type of new regime that would have ensued had the Douglases gained power. There is, however, no evidence that they aimed to seize power. The avoidance of a new royal regime in 1351 could be seen as a victory for opponents of the king, although, because the result was to maintain the status quo, it hardly qualifies as a new regime. The ‘collapsed regime’ category contains numerous elements of the other categories. Replacement of a collapsed regime could be consensual (closer to a compromise settlement) or could represent a wide swing of the pendulum against the regime’s fallen predecessors (closer to a coup). The distinctiveness of the ‘replacement of a collapsed regime’ lies in the fact that the political community (in or out of parliament) had not so directly attacked the previous regime. Rather, that regime had collapsed through its own internal weaknesses (which could, to be sure, have arisen from a lack of legitimacy among the political community), whereupon parliament was left to pick up the pieces. Revolutions themselves tend to arise at least partly from the collapse of their predecessors, although the regime of Charles I was not obviously imploding before the future Covenanters launched their challenge to the prayer book. None of these changes of regime came out of the blue; political historians can always 35. The nature of early modern revolutions is discussed by J. Goodare, ‘The Scottish Revolution’, in L. E. Grinin, D. D. Beliaev and A. V. Korotayev (eds), Hierarchy and Power in the History of Civilizations: Political Aspects of Modernity (Moscow, 2008).

256

M2287 - BROWN & MAC TEXT.indd 256

10/08/2010 16:48

pa r l iame nt and p o l i t i c s identify tensions and grievances that had built up in advance. From this point of view, whether the change of regime was made in parliament or ratified in parliament may not be crucial. Parliament’s Roles in Government In analysing parliament’s political functions, one useful question to ask is whether parliament was being a watchdog on the government, or whether it was itself being the government. A simple preliminary answer to this question would be that the history of parliament saw a transition from one to the other. Medieval government was very much the king’s government, whereas, after the revolutions of 1638 and 1689, parliament was the dominant partner. Simple answers, however, rarely give the whole story. Medieval government was not only the king’s government; magnates, the leading members of parliament, were also governors. And parliaments in the later seventeenth century contained influential members who attempted with occasional success to use parliament as a platform from which to curtail or modify the government’s activities. Elements of both of the two contrasting processes of being a watchdog on the government and being the government can thus be found both at the beginning and at the end of the history of the Scottish parliament. In their watchdog role, parliaments could call the monarch’s officers to account. The English parliament had a distinctive procedure for this: impeachment. Although there was no institutional Scottish equivalent, parliament could achieve the same political result by employing its broader concept of treason, and could bring prosecutions for treason even against ministers of the crown. This did not happen every day, but it is notable that it happened at all. A general council of 1399 blamed the king and his officers directly for ‘mysgouvernance’, and invited the king to accuse his officers, whereupon ‘the consail sal be redy to juge thair defautes’.36 In 1641, five ‘incendiaries’ who had allegedly incited the king against the Covenanters were proceeded against, for treason, by a novel form of committee.37 The gap between these two cases may be comparable to the gap in English impeachments, with no cases between 1449 and 1621. England saw parliamentary attainders between these dates, but these were used in practice against opponents of the crown, not its current ministers.38 Then in the 1690s we have the inquiry into the 36. RPS, 1399/1/2. 37. RPS, 1641/7/55, 1641/7/57. 38. F. W. Maitland, The Constitutional History of England (Cambridge, 1908), p. 246. Attainders were legislative in form, not judicial. Again there was no institutional Scottish equivalent, but forfeitures initiated by the crown fulfilled the same political function.

257

M2287 - BROWN & MAC TEXT.indd 257

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 massacre of Glencoe. The commission of inquiry was technically royal, but parliament animated it in practice.39 The attempt in the 1670s to establish a right of appeal from the court of session to parliament seems to have been related to the tendency to treat parliament as a watchdog on the government.40 It might be compared with the emerging powers of the English House of Lords as an appeal court.41 This was a period in which the court of session was experiencing a good deal of government intervention, some of it politically partisan; an appeal to parliament was envisaged as countering this. The right to such appeals was established, more or less, in 1690. The relationship between government and parliament manifested itself in the latter’s membership. If the crown and its ministers were able to make the members of parliament dependent, politically, on the crown, then parliament might still be important but would be unable to play the role of a watchdog on the government. By contrast, if all those dependent on the crown – even government ministers – were to be excluded from membership of parliament, then parliament would be well placed to act as a watchdog but would find it more difficult to be the government. England saw fierce struggles over the issue of ‘placemen’, particularly in the 1690s. What eventually emerged was an understanding that ‘political’ officers of the crown could sit in parliament whereas ‘non-political’ ones could not.42 Similar tendencies were found, though less prominently, in Scotland. The debate concentrated on the role of officers of state and privy councillors. If these were not members of one of the existing estates, in theory the crown might pack parliament with nominated supporters (as did happen with the early seventeenth-century general assembly). Concerns in 1617 led to a limit of eight on the number of officers of state.43 Debate continued about whether a larger number of officers of state or privy councillors might attend conventions of estates, and the opposition in 1630 tried unsuccessfully to exclude privy councillors altogether.44 The broader issue of ‘placemen’ seems to have been of less concern, perhaps because 39. P. Hopkins, Glencoe and the End of the Highland War (Edinburgh, 1986), pp. 401–9. 40. MacIntosh, Scottish Parliament, pp. 144–9; Rait, Parliaments, pp. 474–9. 41. J. S. Hart, Justice upon Petition: The House of Lords and the Reformation of Justice, 1621– 1675 (London, 1991). 42. H. Horwitz, Parliament, Policy and Politics in the Reign of William III (Manchester, 1977), pp. 313–14; G. E. Aylmer, ‘Place bills and the separation of powers: some seventeenth-century origins of the “non-political” civil service’, Transactions of the Royal Historical Society, 5th ser., xv (1965). 43. RPS, 1617/5/11. 44. ‘Diary of the convention of estates of 1630’, ed. J. Goodare, SHS Miscellany, xiv (forthcoming).

258

M2287 - BROWN & MAC TEXT.indd 258

10/08/2010 16:48

pa r l iame nt and p o l i t i c s of the much smaller size of government compared to that of England, but ‘places’ were certainly used in political management. The second duke of Queensberry threatened in 1698 that ‘the king was resolved that no man that opposed him should enjoy place or pension of him’.45 Resentment of this might well have led in due course to something akin to the English ‘place’ bills. What did happen, in the revolutionary 1640s, was a blanket exclusion from parliament of all officers of state who were not otherwise members of the estates. This was reversed at the Restoration. After the Revolution of 1689, officers of state were not excluded ex officio, but if they were not members of an existing estate they could no longer sit on committees, thus reducing their influence.46 Rigorous exclusion of officers of state might have led to a separation of legislative and executive powers. In Scotland, as later in Britain, the constitution eventually took a different turn, but the political implications of the trend towards separation of powers should be pondered. Parliament could act as a watchdog by blocking unwanted government proposals; important instances of this occurred in every period of parliament’s existence. Could those who objected to the crown’s activities go further, however? Could they take the initiative against the king, passing their own measures to halt or reverse what he had been doing? Examples of legislation prompted by opponents of the crown, though rare, are scattered throughout parliament’s history. An act of 1372, ratifying an earlier one under David II (now lost), ordered that no justiciar, sheriff or royal officer was to execute any royal warrant ‘against statutes or the course of common law’.47 Two statutes of 1579 ordered the court of session to do justice impartially and not to admit any ‘privat writing charge or command’, from king or privy council, to the contrary, and established a procedure for appointment of judges that was less open to royal interference.48 Opponents of the crown passed their own measures in 1604, deliberately undermining government measures on union with England.49 The opposition here was still being reactive, rather than taking matters into its own hands, because it wanted to retain the status quo. The 1604 proceedings thus resemble occasions when government measures were resisted. By contrast, a clear-cut and dramatic instance of opposition legislation was 45. Queensberry to William Carstares, 24 July 1698, State-Papers and Letters, Addressed to William Carstares, ed. J. M’Cormick (Edinburgh, 1774), p. 401. 46. Rait, Parliaments, pp. 280–2. 47. RPS, 1372/3/5. 48. RPS, 1579/10/54–5. 49. B. Galloway, The Union of England and Scotland, 1603–1608 (Edinburgh, 1986), p. 24.

259

M2287 - BROWN & MAC TEXT.indd 259

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 the Act of Security and associated measures in 1703, an initiative of the country party.50 At the point when people started using parliament to pass their own measures in defiance of the crown, they had crossed a line. These parliamentarians were no longer simply watchdogs on the government: they were, although perhaps only temporarily, actually governing. At the least, they would have caused a deviation from the previous governmental line: at the most, they would have carried out a revolution. The reason, then, why so few ‘opposition’ initiatives were passed is the one that Sir John Harington gave when explaining why treason never prospers: ‘if it prosper, none dare call it treason’. Genuinely successful opposition initiatives led, not to ‘opposition’ legislation, but to changes of regime. Changes of regime, which have been discussed above, are not the same thing as a transition from being a watchdog on the government to being the government. This latter transition is nevertheless detectable in the long-term history of parliament. In the 1640s, and again from 1689 onwards, the regime was a fully parliamentary one, and the crown and its ministers could not govern without the consent of parliament. Laws and taxes were required regularly, and were obtainable only from parliament. Parliamentary government also called for effective parliamentary supervision of the executive. This tended to be achieved in medieval times because government was smaller and simpler than it later became, with fewer specialised roles. One can certainly identify the political functions of legislative and executive action in the Middle Ages, however. Parliament itself was largely executive, with most acts of parliament being executive measures. Then, with the growth of governmental specialisation in the sixteenth and seventeenth centuries, parliament tended to specialise in legislative action, leaving executive actions to others. On the whole, it was the monarch, or rather, the privy council acting in the monarch’s name, that took the executive actions. The relevant question for our purposes, disputed throughout the seventeenth century and resolved only in 1689, was whether parliament would also supervise the monarch. The early modern parliament acquired some executive roles of its own. The last three decades of the sixteenth century saw forty-six commissions, mostly with executive powers, appointed by parliaments and conventions of estates.51 There were fewer such commissions in the early seventeenth century, as monarchs preferred to create executive bodies using the royal 50. P. W. J. Riley, The Union of England and Scotland (Manchester, 1978), pp. 57–63; C. A. Whatley with D. J. Patrick, The Scots and the Union (Edinburgh, 2006), pp. 209–11. 51. Goodare, ‘Parliament and Society’, appendix C.

260

M2287 - BROWN & MAC TEXT.indd 260

10/08/2010 16:48

pa r l iame nt and p o l i t i c s prerogative (such as the commission for grievances or the court of high commission). But, with the nullification of royal authority under the Covenanters, executive commissions proliferated.52 They did so again after the Revolution of 1689. A committee of estates, delegated from the convention of estates, ran the government during the convention’s adjournment in May 1689.53 Two major executive committees were introduced in 1693: for trade, and for the security of the kingdom.54 Parliament was governing. Parliament and Political Behaviour Parliament gradually came to encourage some characteristic types of political behaviour. They can be summed up as: ‘electing’ and being ‘elected’; ‘representing’ and being ‘represented’; formal deliberating in a corporate body with the aim of taking definite action; and reaching decisions by majority voting. These things were not done only in parliament, but parliament was a prominent place where they were done. None of them needed to happen in the Middle Ages, although some did happen sometimes. More importantly, none of them needed to happen in an early modern absolute monarchy. Absolute monarchies did need other types of institutions, particularly courts, often constituted by royal charters. The right to hold a court was often a right of property, similar to (and often attached to) a right to hold lands. Absolute monarchies did not even need corporate political bodies – it was more important for them to have advisory ones. Power was supposed to descend from the monarch to all other bodies; what ascended was advice. Absolute monarchies could have corporate bodies, but mostly these were like courts, constituted by royal charters that could be withdrawn or bypassed. The four phenomena to be investigated, then, are electing, representing, deliberating corporately, and majority voting. They tend to shade into one another, and what follows will not attempt to separate them rigorously. As well as focusing our attention on the difference between ascending and descending modes of power, a discussion of these aspects of ‘parliamentary behaviour’ raises issues of whether people had rights, either individually or via parliament itself. There is also the question of what other venues there were for ‘parliamentary’ behaviour; parliament may have influenced other 52. For the innovatory committee of estates in 1640, see Young, Scottish Parliament, pp. 23–9. 53. RPS, 1689/3/200; E. W. M. Balfour-Melville (ed.), An Account of the Proceedings of the Estates in Scotland, 1689–1690 (2 vols, SHS, 1954–5), i, p. 59. 54. RPS, 1693/4/19, C1693/4/19, A1693/4/4.

261

M2287 - BROWN & MAC TEXT.indd 261

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 bodies or been influenced by them. These questions cannot be pursued far in the present outline survey, but they are worth raising. ‘If a poor man exceed the rich man in votes, he precedes him in place.’55 The Protestant ‘privy kirk’ of Edinburgh, just before the Reformation, elected its elders and deacons by a one-man-one-vote method that surprised and delighted John Knox. This was highly unusual in its disregard of social hierarchy, and in practice the Protestant church soon accommodated itself to the existing social order. What was significant in Knox’s privy kirk was perhaps not the fact of elections as such, but the fact of multiple candidates. Many medieval parish clerks were elected by a householder franchise that could even include women voters, but there was only one candidate, presented by the patron.56 In elections to burgh offices, however, there could be multiple candidates; regulations of 1552 for elections of provosts required ‘he that gettis monyest wottis to be chosin’.57 Elections of burgh commissioners to parliament seem rarely to have been contested, at least before the late seventeenth century, but the electoral machinery was in place to be used when required.58 In the shires, indications are that the electorate was well aware of the procedures soon after the grant of the franchise in 1587. In January 1596 the ‘haill barrownis’ of Aberdeenshire elected two commissioners to serve in ‘parliamentis and conventionis’ until the following Michaelmas. On the same day they elected ‘taxtaris’ to impose a local tax for repairing the Bridge of Don. The latter decision was reached only ‘eftir lang ressoning’, and the election was made by ‘the maist pairt’ – that is, by majority vote. The parliamentary commissioners had been chosen ‘all in ane voce’.59 Most elections, like this one, were probably ‘selections’ in the terms of Mark Kishlansky: consensusseeking exercises in which the aim was to find the best and most prestigious candidate.60 Eventually, as in England, pressure to get into parliament led to more and more contested elections in the later seventeenth century. Elections were thus familiar procedures by the early seventeenth century. We even find absolute monarchy using them – but in a distinctive way. The 55. John Knox, History of the Reformation in Scotland, W. C. Dickinson (ed.) (2 vols, London, 1949), ii, p. 278. 56. D. McKay, ‘The election of parish clerks in medieval Scotland’, Innes Review, xviii (1967). 57. RCRBS, i, p. 3. 58. MacDonald, Burghs and Parliament, pp. 31–43. 59. D. Littlejohn (ed.), Records of the Sheriff Court of Aberdeenshire (3 vols, New Spalding Club, 1904–7), i, 372–3. 60. M. A. Kishlansky, Parliamentary Selection: Social and Political Choice in Early Modern England (Cambridge, 1986).

262

M2287 - BROWN & MAC TEXT.indd 262

10/08/2010 16:48

pa r l iame nt and p o l i t i c s ‘small barons and freehalders’ were invited in 1627 to hold elections, looking very like parliamentary elections, to choose commissioners to attend a meeting to advise on the implementation of the king’s revocation.61 In 1627, too, there was a meeting of ministers that looked very like a general assembly – except that it was firmly told that it was not one, and was merely an advisory body.62 This was a time when the government was particularly keen on chartered, corporate bodies with authority delegated from the crown. What an absolute monarchy could not stomach was the idea that the electors conferred power on their representatives. Power had to be seen to descend, not to ascend. Power might be seen to ascend if people had a right to attend parliament. The medieval idea was more of a duty to attend. In 1490, parliament enacted that the tenants of the principality of Scotland (the lands annexed to the king’s eldest son) should ‘compere and ansuer in parliament and justice airis with thare soytis and presens’ only until the king had a son, a prince to hold the principality, who would then be ‘immediate betuix the king and thaim’.63 In this period, the kingdom of England still contained provinces exempt from parliamentary attendance, such as the palatinates of Cheshire and Durham; both these, and Wales, would later be incorporated into parliamentary representation. Their exemption until then had also been an exemption from parliamentary taxation – something that was presumably intended to apply to the principality of Scotland too. Things had changed by 1619, the first time since 1490 when a king of Scots had an adult son; the act was ignored in the creation of Prince Charles as prince of Scotland.64 Attendance at parliament was now a right more than a duty. The idea of attendance as burdensome survived mainly in poor and remote shires and burghs, and even there it declined during the seventeenth century. One issue in the relationship between a shire commissioner and those whom he represented was whether the latter could mandate him to vote in a particular way in parliament. This issue would not be finally settled, even in the British parliament, until the time of Edmund Burke, but the tendency in the Scottish parliament seems to have been against mandates for shire commissioners. It was alleged in 1681 to be treason to attempt to ‘praelimit 61. RPC, second series, i, pp. 594–5, 598–9. For the context see A. I. Macinnes, Charles I and the Making of the Covenanting Movement, 1625–1641 (Edinburgh, 1991), p. 61, though the statement here that the privy council ‘sabotaged’ the meeting does not appear to be borne out by the cited sources. 62. ‘Proceedings of the commissioners of the kirk, July 1627’, in D. Laing (ed.), The Bannatyne Miscellany, iii (1855), p. 221. 63. RPS, 1490/2/22. ‘Soytis’ = suits, the procedure for attendance by vassals in a feudal court. 64. Goodare, State and Society, pp. 239–40.

263

M2287 - BROWN & MAC TEXT.indd 263

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 members’, at least in ‘such a hy point’ as the succession.65 Matters were otherwise, however, in the burghs. Burgh members, like all elected members of parliament, possessed plenary powers to commit their constituencies, but they were often supervised in the exercise of these powers by the burgh council that sent them, while the convention of royal burghs could itself influence the way in which individual burghs sought to vote.66 One distinction to be drawn is between a group of councillors who simply gave ‘counsel’, and a group of councillors who, as a group, made corporate decisions. The idea of ‘counsel’ as advice was gradually supplemented in England by the idea of a ‘council’ as an institution;67 something similar seems to have happened in Scotland. Politically, even in its early days, parliament was a corporate body that did things itself; it did not just provide ‘counsel’, although monarchs, and even some members of parliament, may have liked to think that it did. Comparisons with the medieval church may be helpful here. Popes themselves might be elected, but the papacy was very much a monarchy in which authority flowed downwards from the pope to archbishop, then to bishop and finally to parish priest. Cathedral chapters were more advisory than corporate, although an ascending model of authority was visible in some monastic and mendicant orders. The Scottish church had a distinct example of corporate political practice in its ‘provincial council’ (that is, national council); this, like parliament, did things itself.68 Burgh councils were clearly corporate bodies, as were the convention of royal burghs and the courts of the postReformation church. Turning now to debating, it may seem odd to suggest that this was a distinct parliamentary phenomenon. Surely political debates occurred whenever people of different political persuasions came together and tried to overcome their differences? The answer is that they did, but parliament was a significant forum encouraging formal debate, with procedural rules. A full study of this would make comparisons between procedure in individual burghs (and, indeed, in individual guilds), in provincial and diocesan councils of the medieval church, in the general assembly, and in the convention of royal burghs, to name a few venues for formal debate. Relatively little is known of deliberations in the medieval parliament. Alan MacDonald’s exploration of ‘multicameralism’ in the late sixteenth and early 65. Sir John Lauder of Fountainhall, Historical Notices of Scotish Affairs, D. Laing (ed.) (2 vols, Bannatyne Club, 1848), i, p. 311. 66. MacDonald, Burghs and Parliament, pp. 48–56. 67. J. Guy, ‘The rhetoric of counsel in early modern England’, in D. Hoak (ed.), Tudor Political Culture (Cambridge, 1995). 68. D. E. R. Watt, Medieval Church Councils in Scotland (Edinburgh, 2000).

264

M2287 - BROWN & MAC TEXT.indd 264

10/08/2010 16:48

pa r l iame nt and p o l i t i c s seventeenth centuries, however, indicates that the practice of separate deliberation by individual estates probably went back much earlier.69 Meetings of individual estates were not minuted and seem to have been relatively informal. This may have inhibited the growth of formal procedures, although further research would be desirable, especially on conventions of estates which seem to have deliberated more often in plenary session. At any rate, by the 1640s it is clear that parliamentarians had a developed sense of debating procedure. From then onwards, the formalities of debate became more sophisticated, or at least more complex.70 Debates, in a corporate body like parliament, were intended to lead to decisions. Decisions could be reached by consensus – which is what seems to have happened in the Middle Ages – or by majority voting – which seems to have grown up in the early seventeenth century. Majority voting was probably never the most common way of reaching a parliamentary decision, even in the late seventeenth century, but it became a likely option for controversial measures. Susan Reynolds sums up what is known about medieval European parliamentary decision-making: ‘The general impression is that regnal assemblies worked through some kind of consensus or rough majority, influenced more or less by respect or fear of the king.’71 The Scottish evidence may never be able to take this tentative conclusion much further, but some suggestions may be made. Debates traditionally sought consensus. This did not mean that people entered the parliament chamber with different views, and then created a single unanimous view through debate. It meant that people gave way gracefully when they saw that the debate was not going their way. An account of the parliament of 1543 seems to show this. An act allowing scriptures in the vernacular was proposed by the burghs and ‘a part’ of the nobility. ‘The Clergy hereto long repugned; but in the end, convicted by reasons and by multitude of votes in their contrary, they also condescended.’72 Clearly the clergy had supporters among the other estates, since only ‘a part’ of the nobility is said to have favoured the proposal, but somehow the debate convinced them that they could not carry a decision in their favour or at least should not try to do so. This involved some idea of a numerical majority – a ‘multitude of votes’ – but evidently the proposal was not put formally to a vote. The word ‘vote’ was related to ‘voice’, and was used to mean an expression 69. A. R. MacDonald, ‘Deliberative processes in parliament, c.1567–1639: multicameralism and the lords of the articles’, SHR, lxxxi (2002). 70. Rait, Parliaments, pp. 427–49. 71. S. Reynolds, Kingdoms and Communities in Western Europe, 900–1300 (2nd edn, Oxford, 1997), p. 319. 72. Knox, History, i, pp. 44–5. For the act see RPS, 1543/3/25.

265

M2287 - BROWN & MAC TEXT.indd 265

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 of opinion in a debate, or an expression of support for a cause, before it acquired its more modern meaning of registering a formal choice between alternatives.73 The modern meaning seems to have been under development in the late sixteenth century. In Alexander Montgomerie’s ‘The Cherrie and the Slae’, Will claims that They say that voyage nevir luckis, Quhair ilke ane hes ane vote; But Will’s authoritarian impulses are rebuked by Wisdom and Experience.74 We obtain an idealised retrospective picture of the search for consensus from the presbyterian James Melville, looking back regretfully on the early 1590s when presbyterians had dominated the general assembly of the church. He recalled that maters war gravlie and cleirlie proponit; overtures maid be the wysest; douttes reasonit and discussit be the lernedest and maist quik; and finalie, all withe a voice concluding upon maters resolved and cleirit, and refferring things intricat and uncleired to farder advysment. Namlie, it is to be noted, that in all these assemblies anent the polecie, ther wes nocht sic a thing as a careing away of anie poinct with a number of vottes, ane or ma.75 Majority voting was thus regarded as a failure of the consensus-seeking process, or even as an affront to good practice. Reasoned debate, it was felt, would naturally produce agreement. It is axiomatic among students of politics that such agreement is unlikely to arise if the parties to the debate have different interests. Melville, of course, wrote in the past tense; by about 1610, when he produced his narrative, majority voting had become conventional for controversial decisions both in parliament and in general assembly. The actual emergence of majority voting is difficult to trace in detail. The Reformation, by producing novel disagreements on fundamental issues, may have encouraged the idea of voting as a means of resolving them. Mary of Guise in 1559 proposed a religious referendum in Edinburgh.76 As for 73. Dictionary of the Older Scottish Tongue, s.vv. voce, vot. 74. Alexander Montgomerie, Poems, ed. J. Cranstoun (STS, 1887), pp. 26–9 (quotation at ll. 702–3). 75. James Melville, Autobiography and Diary, R. Pitcairn (ed.) (Wodrow Society, 1842), pp. 77–8. 76. M. Lynch, Edinburgh and the Reformation (Edinburgh, 1981), p. 76.

266

M2287 - BROWN & MAC TEXT.indd 266

10/08/2010 16:48

pa r l iame nt and p o l i t i c s parliament itself, there was a contested vote in a convention of estates in 1578, but this was then very rare.77 The regular use of majority voting can probably be dated to the first two decades of the seventeenth century. When a convention of estates defeated a tax reassessment proposal in 1600, the government withdrew the act without a vote. The king blamed the burgh and shire commissioners, and he may have believed that they would outvote the supportive nobles. The mere absence of consensus, however, may have been enough to persuade the king and his councillors that the proposal lacked legitimacy.78 The 1612 parliament saw unpopular taxation passed, but the final decision was a compromise between the government’s proposal and the opposition’s counterproposal.79 By 1621 the absence of consensus was no longer, in itself, regarded as a reason for the government to abandon a measure – the crown knew from the start that the Five Articles of Perth would be controversial; it was simply a matter of winning the vote. This involved rallying supporters and intimidating or cajoling likely opponents. The letters of the earl of Melrose, the leading government manager, reveal how hard he and his friends had to work at this task, and how uncertain he was, even at the last minute, of whether he would succeed.80 Votes in parliament were always taken orally and openly. Billeting – secret, written voting – was proposed by the shire commissioners in 1641 as a means of ratifying appointments to offices of state, but it seems not to have been adopted.81 Billeting was used in 1662, in a scheme to debar certain individuals from public office, but the attempt rebounded on its author, the first earl of Middleton, and probably discredited the whole procedure.82 Perhaps as an alternative to keeping a voting record, the opposition might enter a mass protest beforehand, as it did on one vote in 1705.83 The extreme example of this, perhaps, was the mass walkout by the opposition in 1702.84 The open expression of a vote or an opinion was honourable.

77. CSP Scot, v, p. 296. 78. J. Goodare, ‘Parliamentary taxation in Scotland, 1560–1603’, SHR, lxviii (1989), pp. 43–5. 79. V. T. Wells, ‘Constitutional conflict after the union of the crowns: contention and continuity in the parliaments of 1612 and 1621’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707, pp. 91–4. 80. Goodare, ‘Scottish parliament of 1621’. 81. RPS, 1641/8/63, M1641/8/31. 82. MacIntosh, Scottish Parliament, pp. 43–9. 83. RPS, M1705/6/30. 84. K. M. Brown, ‘Party politics and parliament: Scotland’s last election and its aftermath, 1702–3’, in Brown and Mann (eds), Parliament and Politics in Scotland, 1567–1707, p. 249.

267

M2287 - BROWN & MAC TEXT.indd 267

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 Political Groupings in Parliament We now turn to the question of political groupings in parliament – things that were not supposed to exist. The members of parliament were summoned by the monarch; officially, they were there to serve the monarch. ‘Service’ to the monarch was always considered important, whether in parliament or out of it. A grouping in parliament might imply that the members of the group had a different, and thus probably dubious, allegiance. In practice, however, political actors tended to say (and perhaps even to believe) that they themselves were, indeed, disinterested servants of the crown – it was their opponents who were a ‘faction’ or a ‘party’. The terms ‘faction’ and ‘party’ were thus pejorative, but can be analysed in a neutral way. Altogether there were, perhaps, five types of political groupings in parliament, with ‘factions’ and ‘parties’ being two. The building blocks of most of the political groupings were client groups, and then (in rough chronological order of emergence) we have factions, movements, a country interest, and finally parties in the sense in which early modern historians use that term.85 Client groups, consisting of an individual magnate and his followers, long predated and long outlasted parliament. Each magnate had followers whose duty was to advise and support him, and whose expectation was that he would protect and reward them. In the late Middle Ages, the followers were also expected to fight for their lord and to mobilise warriors for his army. They might also be administrators, owing their role to the magnate’s patronage. Once private warfare was superseded, the followers’ administrative role took on more prominence, but the patron–client relationship lost none of its vigour. This topic extends well beyond parliamentary history, but in parliament the tendency of followers to support their lord was significant. Factions, broadly speaking, consisted of groups of magnates, and thus groups of client groups. Again these have been extensively discussed by historians, and require only brief treatment here. There was a continuum between client groups and factions; identifiable ‘factions’ tended to have a single identifiable leader. Factions are best thought of, however, as voluntary alliances between autonomous leaders of client groups. A group containing one earl was probably a client group, while a group containing two or more earls was probably a faction. Factions can also be distinguished from later types of parliamentary grouping because they did not need to have distinct views about law, religion, ideology or economy. 85. There were also the ‘estates’ as corporate entities; these usually functioned as part of the constitutional framework rather than as political groupings pursuing a common interest, but political action by an individual estate (especially the burghs) is sometimes noticeable.

268

M2287 - BROWN & MAC TEXT.indd 268

10/08/2010 16:48

pa r l iame nt and p o l i t i c s In the fifteenth century, factions were common in parliament. Opposition factions might stay away from parliament, but usually they attended – sometimes causing trouble by doing so.86 Some of the poorly attended parliaments of the early sixteenth century were effectively weapons of a faction. When parliamentary attendances rose again in the later sixteenth century, however, this probably restored a situation in which opponents of the current policy would attend and cause trouble, contributing to the emergence of majority voting, discussed above. By now, however, the opposition was not necessarily ‘factional’; in the sixteenth century, we also see the emergence of ‘movements’. A movement can be defined politically as a group or collection of groups loosely organised around a common aim – an aim that transcends self-advancement. The Protestant movement was an early and prominent example. Protestants tended to identify with each other, to work together when they could, and to vote together in parliament. They were not particularly focused on parliament, however, and their impact was felt in all aspects of political life. Once Protestants started to disagree among themselves, further movements formed, such as the presbyterians who dissented from the establishment in the early seventeenth century, or the Covenanters in the later seventeenth century. What united these movements, and distinguished them from their opponents, was commitment to a particular religious ideology, rather than allegiance to an individual magnate. Ideological differences tended to subvert traditional ties. The idea of a ‘country’ interest in parliament emerged in the early seventeenth century. Conceived as something opposed to the ‘court’, it summed up the idea that government initiatives were generally unwelcome. This type of ‘country’ interest clearly thought that parliament should be a watchdog on the government; indeed, it generally thought that government should do less governing.87 This tendency was never dominant, however, even among opponents of royal policies. Many of the most committed opponents of James VI and I and Charles I were presbyterians. They did not want less government: they wanted different government, and even sometimes more government. They made common cause, tactically, with the country interest on matters such as taxation, but their cause was not identical. When the presbyterians came to power as Covenanters, they used parliament to govern – and their taxes (now spent on godly causes) were much heavier. In the later seventeenth century, there was also a ‘country party’, and 86. Tanner, Parliament, pp. 266–7. 87. J. Goodare, ‘Scottish politics in the reign of James VI’, in J. Goodare and M. Lynch (eds), The Reign of James VI (East Linton, 2000), pp. 52–3.

269

M2287 - BROWN & MAC TEXT.indd 269

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 this raises the complex but inescapable question of political ‘parties’. The question of what was and was not a ‘party’ has been extensively debated by historians of Restoration England, and while the debate has not produced full agreement it has generated some outline definitions. Two useful and related definitions are ‘organized political groupings conducting a coherent campaign to achieve political power in order to implement a publicly stated political program’, and ‘commitment to a core of common principles, an organized effort to acquire and exercise political power, and a sense of shared identity’.88 To attempt to apply such definitions systematically to the Scottish evidence is beyond the scope of this chapter, but it can be pointed out that the third duke of Hamilton’s group in the later 1670s was called a ‘party’ at the time, and that the ‘Club’ of 1689–90 almost certainly fits these definitions.89 From then on until the Union at least, historians have been unanimous in employing the concept of ‘party’, although there was never a straightforward two-party system of the kind that some perceived in England. Parliament and the People No study of parliament and politics would be complete without discussing the attitude taken to parliament by the common people. Political society was firmly hierarchical throughout the existence of parliament, and the common people were not expected to be politically influential, but some political actors expressed occasional concern for their interests, and, more importantly, there is some evidence for the views of the common people themselves. What follows can do no more than bring together a few fragments, but these are nevertheless suggestive. The common people were less affected than the elite by most parliamentary decisions and, when decisions did affect them, their response rarely left clear traces in the historical record. Still, of two known petitions by ordinary people in the sixteenth century, one – against evictions – was to parliament.90 This concerned the common people’s sectional or class interests; later popular interventions would concern their national interests. This was particularly so in the final Union debates, and also on some earlier occasions. There were crowds and popular petitions to parliament in 1700 over Darien, and in 1702 over the questionable legality of the summons to parliament in 88. See the debate between G. S. De Krey, R. L. Greaves, T. Harris and J. Scott in Albion, xxv (1993); quotations from Harris, p. 589, and Greaves, p. 614. 89. MacIntosh, Scottish Parliament, ch. 6; J. Halliday, ‘The Club and the Revolution in Scotland, 1689–90’, SHR, xlv (1966). 90. Goodare, Government of Scotland, pp. 271–3.

270

M2287 - BROWN & MAC TEXT.indd 270

10/08/2010 16:48

pa r l iame nt and p o l i t i c s that year.91 As for the Union debate, one episode was reported dismissively by the first earl of Seafield: ‘My Lord Belhaven had a speach contrived to incense the common peopel; it had no great influence in the House. If it is printed, I shal send it.’92 This was Belhaven’s ‘Mother Caledonia’ speech – which was indeed printed, and which did strike a popular chord that continued to resound for much of the eighteenth century. It has been called part of a ‘folk tradition of Scottish identity’.93 Recorded popular views of parliament are few and far between, at least until the Union scheme stirred politicians’ interest in popular feeling. But the folk tradition provides an alternative source of information. In a variant of the traditional ballad ‘Geordie’, parliament appears as the recognised sovereign body of the state. In the usual version of the ballad, Geordie is condemned to die, but his wife persuades the king to pardon him in return for a large sum of money. In one version, this is transposed to an authentic seventeenth-century setting. No king is involved, and instead the lady has to petition parliament: When she came to the Parliament Close Amang the poor folks many She dealt the crowns with duckatoons And bade them pray for Geordy. When she came to the Parliament House Among the nobles many The rest sat all wi hat on head But hat in hand sat Geordie.94 The lady begs for a reprieve, and after some debate ‘the gude Argyle’ says that she may have it for ‘ten hundred crowns’. She collects the money from the sympathetic lords, ‘and she’s wone the life o Geordie’. Finally, unlike in the royal version, there is paperwork to be completed: the lady goes in search of a ‘writer’s house’ to record the story. There are one or two anachronistic notes in the ballad – an ‘English lord’ presses for Geordie’s execution, and the 91. K. Bowie, Scottish Public Opinion and the Anglo-Scottish Union, 1699–1707 (Woodbridge, 2007), pp. 32–6. 92. Seafield to Godolphin, 3 November 1706, in P. H. Brown (ed.), Letters Relating to Scotland in the Reign of Queen Anne by James Ogilvy, First Earl of Seafield, and Others (SHS, 1915), p. 100. 93. A. Murdoch, British History, 1660–1832: National Identity and Local Culture (London, 1998), p. 54. 94. F. J. Child, English and Scottish Popular Ballads, H. C. Sargent and G. L. Kittredge (eds) (London, 1904), no. 209. For ballads and history see E. J. Cowan (ed.), The Ballad in Scottish History (East Linton, 2000).

271

M2287 - BROWN & MAC TEXT.indd 271

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 lady herself speaks in the debate; but much is authentic. The lady deals out largesse in ducatoons, Dutch coins that circulated extensively in seventeenthcentury Scotland. The members of parliament (who are all regarded as ‘nobles’) sit with ‘hat on head’ – a visual detail that brings us directly into the debating chamber. The author of the ballad probably did not witness actual parliamentary debates, but he or she would have been familiar with the crowds in the Parliament Close, the ‘poor folks many’; deferential yet opinionated, they certainly seem genuine. Ballads personalise things; we should not expect ballads on economic policy. This one at least shows the ‘poor folks many’ viewing parliament as a governing body. Parliament, like the king, can make governmental decisions. But it is remote from ordinary people’s everyday experience, and enters their lives only to right the wrongs committed by the everyday rulers. Popular belief in the ultimate justice of the king was an important stabilising force in feudal society.95 The belief may not always have been well founded, but ballads, at least, could have happy endings. Conclusions Whether parliament itself had a happy ending is debatable, but it certainly had a major impact on Scottish history in its four-and-a-half centuries of existence. This chapter has been about long-term patterns and tendencies; in conclusion, it may be possible to look back on this and to pick out some overall patterns of continuity and change. Parliament was a decision-making body in which people of varying views were expected to meet and resolve their differences. This usually involved some kind of rough consensus, although there were times of political conflict in parliament as well as out of it. Parliament reflected the dominant tendencies of the political nation, whatever those were – revolutionary in the 1640s, reactionary in the 1660s. It was always an assembly of those with property and privilege, with gradually broadening membership reflecting the increasing complexity of social divisions. Its relationship with the political classes outside parliament is hard to trace, but a long-term shift may be detectable from descending to ascending forms of authority. Kings and parliaments in the Middle Ages were involved in all areas of government. Parliament, like other feudal courts, was something of a maid of all work, involved in counselling the king, in judicial decisions (both civil and criminal cases, both first instance and appeals), in other executive 95. Cf. R. H. Hilton, Bond Men Made Free: Medieval Peasant Movements and the English Rising of 1381 (London, 1973), pp. 225–9.

272

M2287 - BROWN & MAC TEXT.indd 272

10/08/2010 16:48

pa r l iame nt and p o l i t i c s matters, and in legislative decisions. Its frequency of assembly meant that kings had to set their broad policies in line with its views. The main limitation on medieval parliaments may have been the magnates’ desire to retain their local autonomy, not allowing any central authority to tax them too heavily or interfere in their jurisdictions. It was, of course, primarily the magnates who constituted parliament. There was something of an oscillation between monarchical and parliamentary forms of government in the early modern period. Monarchical tendencies were particularly marked, first under James IV, and later under most of the seventeenth-century Stewart monarchs. Between James IV and James VI and I, a more integrated sovereign state developed, in which the sovereign was the crown in parliament. Crown and parliament co-operated in encouraging state formation, creating new central institutions and reducing the autonomy of local institutions. This co-operation had many successes, but broke down in the 1630s and was never reconstituted with full success. Following the Revolution of 1638, it was parliament that oversaw a further phase of state formation. Both then and after a second Revolution in 1689, parliament supervised the executive directly, and also supervised the crown in the use of its executive powers. In a European context, the development of the medieval parliament in Scotland was unsurprising, but the early modern parliament took some distinctive directions. To the question posed at the beginning of this chapter, therefore (‘What difference did it make, politically, for Scotland to have parliaments?’), two answers may be offered. The first answer relates to the late medieval period, in which parliaments first arose in Scotland as they did in other European kingdoms. The ‘difference’ that parliaments made here was developmental, but not comparative; they formalised and elaborated the processes of counsel-giving, negotiation and decision-making among the political community, doing so in ways that were paralleled in all the other kingdoms to which Scotland was related. The second answer, relating to the early modern period, is that Scottish parliaments then made a comparative difference as well as a developmental one. The early modern political classes had to cope with governing the more complex, integrated states that emerged during the period; the usual result was to concentrate political processes at the royal court, with parliaments becoming unnecessary. Scotland saw some of these familiar developments, with kings expanding their courts and becoming reluctant to hold parliaments. Not only did parliament refuse to fade away, however, but it also became the focus for revolutionary movements whose aims required the overthrow of absolute monarchy; and here lies the comparative difference in a European context. Parallel movements occurred in England, and one can see anti-absolutist tendencies at work in many other 273

M2287 - BROWN & MAC TEXT.indd 273

10/08/2010 16:48

p a r l iame nt in c o nte x t , 1 2 3 5– 1 7 0 7 countries too, but both Scotland and England were unusual in having successful seventeenth-century revolutions focused on parliament. Thus, even the end of the Scottish parliament was unusual, not extinguished by an absolute monarchy but merged into a larger parliamentary structure. The Union was certainly ‘political’ in the sense of being negotiated among interest groups; not everyone was satisfied, but that happens in politics. On the whole, Scotland seems to have had the parliament that it deserved.

274

M2287 - BROWN & MAC TEXT.indd 274

10/08/2010 16:48

Index

Aberdeen bishop of, 37, 38, 41, 43 burgh of, 96n, 100, 104, 112–14, 129, 205 Aberdeenshire, 83, 192, 262 absentee monarchy, 14, 18, 21, 72, 84–6, 127, 139 absolute monarchy, 2, 3, 16, 27, 62, 81n, 84, 222, 223, 225, 235–43, 246–8, 251, 261–3, 273–4 Act anent Peace and War (1703), 29 Act of Classes (1649), 64 Act of Security (1703), 29, 150, 260 Act Rescissory (1661), 24, 52, 58, 149, 183 adultery, 61, 190–2, 196, 197, 203, 206, 214–15 Aikenhead, Thomas (d. 1697), 198 Alexander II, king of Scots, 33, 70, 161, 169–71, 199 Alexander III, king of Scots, 4, 5, 35, 70, 171, 217, 218 Alien Act (1705), 29 Altani, Antonio, papal nuncio, 40 Anderson, Andrew, printer, 209 Ane Satyre of the Thrie Estaitis (c.1550), 229 Anne, queen of Scots, 24, 29, 53, 150, 243 Anne, consort of James VI, 99 annual rents (interest), taxation of, 17, 255 Anstruther Easter, 110, 120 Anstruther, Sir John, 120 appeal, rights of, 1, 11, 39, 109, 128, 163, 167, 176–8, 185, 258, 272

Aragon, 98, 141, 143, 225 Arbroath, 99, 106n archery, 199 arson, 206 Articles of Grievance (1689), 27, 242 assizes (juries), 159, 163, 169, 177, 202, 250 Athilmer, John, provost of St Salvator’s college, St Andrews, 42 Atwood, William, pamphleteer, 206 ‘Auchinleck Chronicle’, 133 Avenel, Roger, 4, 33 Ayr, 37, 110, 120n bailies, 109, 111, 196, 197 Balcanquhal, Walter, dean of Rochester, 237 Balfour, Sir James, of Denmilne, lord lyon, 35n, 239n ballads, 271–2 Banff, 103 banishment, 190, 197, 200, 204–7, 210 Bannockburn, battle of (1314), 37, 219 Basel, council of, 40, 41 Beaton, David, cardinal, archbishop of St Andrews, 45, 113 beggars, 210 Bernard, abbot of Arbroath, chancellor, 37 Berwick-upon-Tweed, 96n, 106, 207n Bible, 45, 126, 135 ‘billeting affair’ (1662), 127, 144n, 267 Birgham, 5, 34, 70, 218

275

M2287 - BROWN & MAC TEXT.indd 275

10/08/2010 16:48