Front Page Titles (by Subject) SECTION II: Of the government of Scotland, from the Reign of Malcolm the Second, to the union of its crown with that of England. - An Historical View of the English Government
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SECTION II: Of the government of Scotland, from the Reign of Malcolm the Second, to the union of its crown with that of England. - John Millar, An Historical View of the English Government 
An Historical View of the English Government, From the Settlement of the Saxons in Britain to the Revolution in 1688, in four volumes, edited by Mark Salber Philips and Dale R. Smith, introduction by Mark Salber Philips (Indianapolis: Liberty Fund, 2006).
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Of the government of Scotland, from the Reign of Malcolm the Second, to the union of its crown with that of England.
The same darkness which involves the first period of the Scottish history, and which renders it, in great measure, a field of mere conjecture, hangs over a considerable part of the second. The commencement of the second period, however, is distinguished, according to the testimony of all the historians, by the reduction of the great lords, the remaining allodial proprietors of land, into a state of feudal dependence upon the king; an event similar to that which took place in England at the Norman Conquest; and in France, during the reign of Hugh Capet and his immediate successors. This fact is confirmed by a collection of antient laws, ascribed to king Malcolm the Second, in which it seems to be stated, though in vague and general terms, that this<23> monarch, by a course of transactions with his subjects, became the feudal superior of all the lands in the kingdom.
As the account there given is contrary to the opinion of many British antiquaries concerning the origin of the feudal system, they have generally disputed the authenticity, or at least the date of that antient record. We must acknowledge, that the information which it contains, with respect to an event of such importance, is very lame and unsatisfactory; and that, in many other particulars, it seems to be replete with blunders and inaccuracies. A conjecture has thence been suggested, which is highly probable, that the compilation in question was not made by public authority, in the reign to which it refers; but has been the work of a private individual, in a later age: and contains the ideas of the writer concerning the regulations introduced in the reign of Malcolm the Second. In this view, with all its inaccuracies and defects, it appears entitled to some regard. It may be considered in the light of a very antient and universal tradition, and, when supported by the general testimony of historians, may be held of sufficient weight to counterbalance any slender<24> evidence which can, at this day, be thrown into the opposite scale.*
Concerning the introduction of the feudal tenures into Scotland, there occur two particulars which merit attention. In the first place, it is the uniform doctrine of the antient lawyers and antiquaries who have written upon the subject,7 that the feudal system in Europe arose from the immediate act of the king, who, upon subduing any country, laid hold of the land, and<25> reserving so much of it as he found requisite for his own subsistence, distributed the remainder among his great officers, to be enjoyed by them upon condition of military service. A part of what had thus been bestowed upon these leading persons, was by them distributed, upon similar terms, among their dependants; so that, from one great stock, different orders of vassals, in subordination one to another, sprung up in various ramifications. To this account, when<26> applied to the history of Scotland, it occurs as an insuperable objection, that no such considerable conquest ever took place in the country, as could enable the sovereign to seize and distribute the lands in the manner supposed. There seems, therefore, to be a necessity for admitting, that, in Scotland at least, the feudal system was propagated in a different course; that it began by the occupiers of land bestowing fiefs upon<27> their kindred and followers; that it was extended by the poorer allodial proprietors purchasing the protection, and becoming the vassals of the more opulent; and that it was at length completed by these opulent proprietors falling, in consequence of the numerous quarrels and difficulties in which they were involved, under the immediate vassalage of the crown.
The other circumstance to which I alluded is, that the passage, in this old collection of laws concerning the introduction of the feudal tenures, mentions the vassals of the crown only. We are told that, in the reign of king Malcolm, the great lords became the vassals of the crown; but we have no information as to the period when the inferior military people became the vassals of the great lords. It is natural to conclude, therefore, that the feudal subordination of the inferior people had immemorially existed in the country: for otherwise, had it either immediately preceded or followed the infeudation of the great lords, it would probably have been mentioned in stating that event, with which it was so evidently connected.
It is the opinion of Sir Henry Spelman,8 and has been followed by several respectable authors,<28> that the collection of laws above-mentioned is, by a mistake of the publisher, ascribed to the reign of Malcolm the Second, and belongs in reality to that of Malcolm the Third, about fifty years posterior to the former. According to this conjecture, the feudal system was completed in Scotland about the time of the Norman Conquest, that is about the same time as in England; whereas, by the common account, that event was produced about fifty years earlier. The completion of the feudal structure, by exalting a king to be the feudal superior of all the lands in his dominions, was, in all the countries in Europe, a regular step in the progress of society and government; and that the Scottish nation had become ripe for so great a political change, at an earlier period than the English, is what we should not naturally have supposed. But we seem scarcely entitled, from conjecture alone with respect to a fact of this nature, to set aside the evidence of tradition; more especially when it is considered, that accidental circumstances frequently concur, in particular countries, to retard or accelerate the operation of general causes.9
Malcolm the Second, though the lineal heir<29> of the crown, was obliged to enforce his right by the sword. He was afterwards engaged in fierce and bloody wars with the Danes, at that time masters of England; and, after various success, was at length so fortunate as to drive those formidable invaders out of the kingdom. It is not improbable, therefore, that the losses sustained by the nobility, in this long and obstinate contest, had considerably weakened their power, while the continued military operations in which the people were engaged, together with the splendid victories and complete triumph of the monarch, in a quarrel so national and popular, had, on the other hand, increased the influence of the crown, so as to produce, in the chief proprietors of land, a disposition to purchase the king’s protection by submitting to his feudal authority.
At any rate the alteration contended for does not seem very material. To those who imagine that the feudal tenures were introduced into Scotland merely from an imitation of the practice in England, it must appear necessary to overthrow every monument, or account, which tends to shew their complete establishment in the former country at an earlier period than<30> in the latter. But if we suppose, what is now generally admitted, that those institutions, both in the southern and northern parts of Britain, were derived from the general state of society and manners, though afterwards, perhaps, promoted and modified by imitation, the precise date of their introduction will seem of little moment; and their occurring half a century sooner or later will make no considerable difference in the political history of the country.
It is of importance, however, to observe, that even after the sovereign had thus reduced the great lords of the kingdom into a state of military subordination, his authority was not thence greatly augmented. Although, when exposed to imminent danger, and eager to take vengeance upon their enemies, the barons had sheltered themselves under the protection of the crown, and promised to support its authority; yet no sooner were they relieved from their difficulties, than they naturally forgot their promises, and resumed that independent spirit which was habitual to them. The feudal superiority of the king came, therefore, in many respects, to be more nominal than real; and he<31> often found it extremely difficult, if not impossible, to enforce that submission and obedience which the tenure of a military vassal required. The assistance and protection which he afforded his vassals were understood, in all cases, to be fully compensated by the regular services, and by the incidental emoluments which he drew from them, and the reluctance with which they often performed their ordinary duties, left no room to expect that they would acquiesce in any additional demands. They had not only the right of enjoying their estates during their own life, but that of transmitting them to their heirs; and it was not more their interest to obtain the favour of their superiour, than it was his interest to secure their fidelity and attachment. They were servants, in a word, who punctually obeyed their master when his orders were suited to their own inclinations; but who frequently acquired an extraordinary premium, or inducement, if he wished they should serve him with spirit and alacrity.
From the slightest attention to the political history of England and of Scotland, it will appear that the progress of the regal power was much more slow and gradual in the latter country<32> than in the former, and that the primitive aristocracy gained a more absolute and lasting ascendant. For the slow advancement of monarchy in Scotland, so far as it has not proceeded from accidental occurrences, two great causes may be assigned.
1. The nature of the country, rugged, mountainous, and in many parts hardly accessible, produced a number of separate districts, in which particular barons were enabled to establish and maintain an independent authority.10 Within those natural barriers which divided one territory from another, a great lord easily reduced all the small proprietors into subjection: and, at the same time, residing in the midst of his retainers and followers, was in a good measure secured from any foreign invasion. Landed property was thus quickly accumulated by a few great nobles, whose power over their inferiours, and whose influence in the government, became proportionably extensive. While they lived at home in rustick state and magnificence, they had little temptation to court the favour of the crown, and still less to purchase it by a surrender of their privileges; nor did the sovereign often find it adviseable, however they might<33> incur his displeasure, to run the hazard of marching against them in their fastnesses, and of endeavouring by force to subdue them. In this situation they continued for many centuries to suffer little degradation, either from the immediate power of the most warlike, or from the secret intrigues of the most artful and politic princes.
2. The other cause which operated in retarding the advancement of the crown, though, perhaps, it may be considered as partly arising from the former, was the slow progress of arts and manufactures. From the state of society in most of the countries of modern Europe, the king had usually an interest in protecting the peasantry, as well as the trading part of the nation, and in promoting the extension of their privileges; for in that manner he infallibly weakened their dependence upon their immediate superiors, and of consequence undermined the power of his rivals, the nobility. It was to be expected, also, that when the inferiour orders of the community had, by the encouragement given to their industry, been emancipated from their primitive bondage, and had attained a degree of opulence and considera-<34>tion, they would naturally be prompted to a return of good offices, and induced, by motives of interest, as well as by habitual attachment, to support the dignity of the crown, and to throw their whole weight in opposition to the aristocracy.
But in Scotland the barrenness of the soil and coldness of the climate obstructed the progress of agriculture, and of course chilled the growth of manufactures. The necessaries of life must be had in plenty, before there can be a general demand for its conveniencies. Accordingly, though villages and towns employed in some branches of traffick, arose in different parts of the country, and though these, in conformity to the practice of other European kingdoms, were incorporated by the king, and endowed with various exclusive privileges, yet, in spite of every encouragement, they continued poor and despicable, and were for a long time unable, as political auxiliaries of the crown, to perform any important service.
The Scottish parliament from the time of Malcolm the Second, like that of England from the Norman Conquest, appears to have been composed of all the immediate vassals of the<35> crown; and these were divided into two estates, the one comprehending the ecclesiastical, the other the lay-barons; each of which claimed, at least on some occasions, a separate voice in the assembly. But after the creation of royal boroughs11 the king was induced, from similar circumstances in the northern as in the southern part of the island, to require that these corporations should send deputies for making a general bargain with regard to the taxes or duties demanded from them; and hence those deputies, whose consent was requisite for procuring a part of the national supplies, were by degrees admitted into the national council.
Concerning the time when this change in the government was effected, as it proceeded apparently from no public regulation, but merely from the private interpositions of the sovereign, we have no decisive information. It seems to be admitted, that the representatives of the boroughs were introduced into the national assembly as early as the reign of Robert the First;12 though some authors, with no small degree of probability, have placed this event at an earlier period. But as the number of these representatives was, for a long time, inconsiderable, and as they<36> took little share in the public transactions, their political existence appears to have been in a great measure overlooked.
It is remarkable, however, that notwithstanding the insignificance of the Scottish boroughs, they formed, at an early period, a peculiar court, composed of their own deputies, to which nothing similar occurs in the southern part of the island. Four of those communities, probably the most opulent and flourishing; namely, Edinburgh, Stirling, Berwick, and Roxburgh, were accustomed, by their delegates, to hold meetings for the purposes of reviewing the judicial sentences passed by the magistrates of particular boroughs, and of deliberating upon the concerns of the whole order. A meeting of this kind received the appellation of the Parliament of Boroughs.13 When Berwick and Roxburgh had fallen into the hands of the English, Linlithgow and Lanark were substituted in their place; and we find that, afterwards, all the royal boroughs, to the southward of the Spey, were invited to send representatives to this commercial council.* <37>
Of the circumstances which gave rise to this institution, or the period of its commencement, no account is given by historians. It was natural that the manufacturing and mercantile people, like the clergy, or any other class of men distinguished by their peculiar situation from the rest of the community, should hold consultations for promoting their common interest; but it is difficult to conceive that the towns in Scotland were, at a very remote period, possessed of such weight as could enable them, by their joint meetings, to assume any considerable jurisdiction or privileges. As the ancient parliament of boroughs was called and held by the king’s chamberlain, the officer employed in superintending the royal revenue drawn from that class of the people; it is probable that the authority<38> acquired by this meeting had proceeded from the policy of the sovereign; and that it was calculated to answer the same purpose which he had afterwards in view, by introducing the burgesses into the national assembly. By subjecting the decisions and deliberations of the inhabitants of the towns to a representative court of their own order, he secured a degree of uniformity in their measures; was enabled, with greater facility, to overrule their determinations, more especially with regard to the contributions and duties which he levied from them; and taught them, by the habit of acting in their collective capacity, to discern their common interest in opposing the nobles, by whom they were frequently oppressed, and in supporting the king, by whom they were usually protected.
From the original parliament of boroughs, augmented and modified by the attendance of the delegates from other boroughs throughout the kingdom, was at last suggested the idea of a general meeting, composed of representatives from all the towns under the immediate patronage of the crown, and invested with powers to regulate the concerns of all<39> those trading societies. Such was the convention of the royal boroughs, authorised by an act of the legislature in the reign of James the Third, and confirmed by another statute in the reign of James the Sixth.14 The records of its annual meetings have been preserved from the year 1552; though its constitution and forms of procedure have been somewhat varied by subsequent regulations.
From the spirit and facility with which the individuals who compose the trading part of a nation are apt to unite in maintaining and extending their privileges, it might be expected that this early institution would have bestowed upon them an extensive influence in the government. But while Scotland remained an independent kingdom, the low state of her commerce prevented any combination whatever from raising her merchants to political importance; and in the present century, since, by her union with England, and by our own exertions, her circumstances in this respect have been greatly improved, her opulent mercantile towns no longer think it an object to associate with those inconsiderable corporations which chiefly compose the con-<40>vention of royal boroughs; but rather endeavour, by a voluntary association with the larger commercial societies of Great Britain, and by the formation of numerous committees, or chambers of commerce,15 to inforce their demands, and advance their common interests.
In the English parliament the knights of the shires were introduced about the same time with the burgesses; but in Scotland the greater poverty of the lower classes of the gentry prevented them from aspiring to political importance, and therefore obstructed a similar improvement. It has been mentioned in a former part of this treatise, that James the First,16 about an hundred years after the time of Robert Bruce, having been long detained a prisoner in England, was disposed to imitate the institutions of a country more advanced in regular government than his own: and finding, upon his return home, that many vassals of the crown, from a variety of circumstances which had contributed to dismember their estates, were averse from the expence of attending in parliament; and at the same time observing that these men of<41> narrow fortunes, and of inferior rank, were commonly, from their jealousy of the greater barons, inclined to support the prerogative, he endeavoured, first of all, by an act of the legislature, to enforce their attendance. As this injunction, however, was disregarded, he soon after procured another statute, excusing the small vassals from that duty, but requiring that, in the same manner as in England, they should send representatives. The small vassals of the crown in Scotland, probably less able to bear the expence than the people of the same description in England, laid hold of the dispensation, but neglected to fulfil the conditions; so that before the reign of James the Sixth, that is, a full century after this period, the attendance of the knights of shires17 had not been made effectual.
Thus, during a period of two centuries at least, the national council in Scotland was composed of the barons who sat in their own right, of the dignified clergy, and of a small number of burgesses. In the forms of its procedure it was further distinguished from the correspondent council in England by two remarkable peculiarities.<42>
1. The Scottish parliament was never divided, like that of England, into two houses. In the parliament of England, the knights of shires, and the burgesses, were, each of them, a numerous body, not easily accommodated in one apartment, and deriving suitable consideration and importance from that large proportion of the community which they represented. United, however, by their common character of representatives, they, instead of claiming distinct suffrages in the assembly, were led naturally to act in concert with each other; and, for the convenience of their joint deliberations, were collected in a separate place from the other members. But in the parliament of Scotland there were no knights of shires, and the few burgesses, the only other species of representatives, were too inconsiderable to claim such marks of distinction; and their pretension to sit and vote in a separate house would have been held ridiculous. Thrown into the common mass, they rather found it comfortable to escape observation, and to cover their insignificance; serving only, like the rubbish of a building, to fill a corner unoccupied with more solid materials.<43>
This union of all the different members of parliament in one house had a visible effect upon the government. Though that assembly consisted of three different estates, or orders, who had each a separate interest, yet, in their promiscuous deliberations, it was to be expected that the influence of the nobility would greatly predominate. The ecclesiastical and mercantile orders became unavoidably subordinate to that more powerful body; and their measures were deeply tainted with the prevailing leaven of aristocracy. The delegates of the boroughs were more especially affected by this mode of deliberation. It was in vain to expect that a set of tradesmen, but lately emerged from a servile condition, would lay aside their native habits, and speak or act with firmness and intrepidity. Voting under the immediate eye of the great barons, men whom they had been accustomed to treat with respect and reverence, or whom they still wished to serve in the exercise of their professions, they were not likely to stand forward in maintaining their own opinions, or in pursuing any line of conduct that might expose them to the resentment or displeasure of those eminent personages. To<44> concur in silence with whatever should be proposed by their superiors, or to avoid those meetings which threatened a violent contest, was more agreeable to their circumstances, and to fall in with every prevailing party became naturally their temporizing system of policy. The introduction of those delegates into the legislature was therefore an event of little importance, and, for a long time, unproductive of any interference upon the part of the commons, either for exalting the prerogative, or establishing the rights of the people.
2. Another peculiarity in the procedure of the Scottish parliament consisted in the appointment of a committee, under the name of the Lords of the Articles, for the purpose of preparing and digesting the bills to be laid before that assembly. This institution appears to have arisen from the small number of members who sat in the national council, and their impatience under the delays of business, the consequence of their inexperience, which made it commonly difficult to procure a decently full meeting during the time requisite for the regular discussion of public affairs. To relieve themselves from a tedious and disagreeable at-<45>tendance, they devolved upon a few of their members the burden of putting the business into such a form, that nothing more than the mere assent or dissent of the meeting should be requisite; and that thus, in a day or two at the most, its deliberations might be completely ended.18
This practice, which can be traced no higher than to the reign of David the Second,* and which did not acquire a regular establishment for some time after,† was indirectly favourable to the prerogative; and therefore was, no doubt, secretly promoted by the sovereign, though the lords of the articles appear to have been originally nominated by parliament itself,† the nomination was likely, in most cases, to fall upon those members, who, by their experience in such matters, and by residing about court, were the best qualified for executing the business. Such persons, however, were the usual ministers of the crown, and most commonly devoted to its interest; so that, by their means, the king was<46> frequently enabled to keep out of view all those topics of discussion which he wished to avoid, and to seize a convenient opportunity for introducing those measures which he was eager to carry. It appears, indeed, that the lords of the articles had not an absolute negative upon the deliberations of parliament, but that the members of that assembly were at liberty, of their own proper motion, to suggest whatever subjects they might think proper. But such a mode of proceeding was a deviation from the usual course of business, uniformly discouraged and reprobated by the king and his ministers, and was not likely to be often proposed, or insisted on, by a set of rude barons, more distinguished for valour in the field, than for address and penetration in the senate.
Notwithstanding this expedient, however, which bestowed upon the sovereign such a manifest advantage in managing the deliberations of parliament, the super-eminent power of the nobility is every where discernable in the proceedings of that assembly, and in all the departments of government.
It was the practice in England, as I had for-<47>merly occasion to observe, that an act of parliament should proceed upon a petition from the two houses to the sovereign, requesting that some grievance might be redressed, or some branch of the public administration altered. This humble and respectful mode of proceeding never had place in Scotland, where we see the national council holding a very different language. They assume a dictatorial tone; avow the enactment of laws by their own authority; and even frequently ordain, without ceremony, that the king shall carry their measures into execution.
Thus, in a statute made in the reign of James the First, it is said, “the parliament has determined and ordained, that our lord the king shall gar (cause to) mend his money, and gar strike it in like weight and fineness to the money of England.”*
In another statute, the parliament ordains, that the king shall command the judges to distribute justice impartially between the poor and the rich, and that he shall rigorously punish those who do otherwise.† <48>
In the reign of James the Second,19the three estates order, that courts shall be held at certain seasons throughout the kingdom; and that the king himself shall be in each town when the court is held, or near it, where his council thinks fit.—The three estates have also concluded, that the king shall ride through the realm when information is received that rebellion, slaughter, or other atrocious crimes, have been committed, and shall cause immediate cognizance thereof to be taken.*
In the reign of James the Third,20 the lords, understanding that there has been great sloth in the execution of the laws relative to bringing in and keeping the bullion, so as to occasion great scarcity thereof, they require, that the king shall put the statutes on that subject sharply in execution, and shall appoint true and able searchers for the time to come.†
The style of the legislature was gradually softened and varied in later times; but the custom of passing statutes in the name of the three estates of parliament is continued occa-<49>sionally through the reigns of James the Third, of James the Fourth, and of James the Fifth.†
The course of parliamentary business in England, by which every bill passed through both houses in the form of a petition to the sovereign, produced, of necessity, a negative in the crown; for a petition would have no force unless when granted by the person to whom it was addressed. But in Scotland, where statutes were enacted by the general authority of parliament, there was no foundation for this controuling power of the monarch. As parliament in that country was not divided into two houses, the king does not appear to have constituted a separate branch of the legislature. He seems to have been originally regarded as the president of that assembly, and his voice to have been included in its general determinations. In the early history of the Scottish parliament, we meet with no traces of the interposition of the royal negative upon bills; the style and tenure of those transactions is, at the same time, utterly repugnant to any such idea; and there occur<50> instances of statutes which are known to have been enacted in direct opposition to the will of the crown. The religious reformation which took place in the reign of Mary,21 derived its authority from an act of the legislature, to which the assent of the queen, or of her husband, the king of France, was never obtained, but which does not appear, either at that time or afterwards, to have been considered, on that account, as defective.§
The Scottish house of parliament had thus the uncontrouled power of legislation. It exercised also the exclusive privilege of imposing taxes, together with that of directing their application to the particular purpose, and of superintending the expenditure of the money. It was accustomed to determine peace and war; to regulate the forces; to appoint governors of the fortresses in the kingdom; and to make provisions for arming the people, and for training them up to the use of arms.* <51>
In most of the European governments the national council was held regularly at particu-<52>lar seasons. It came afterwards to meet more frequently, according to the increase of its business; and the power of calling, or of dismissing their occasional meetings, which were at length substituted altogether in place of the former, was generally assumed by the king. In England this power was uniformly exercised by the crown; and the legislature interfered no farther in that matter than by ordaining that the king should call meetings of parliament once a year, or oftener if the business of the nation should require it. But in Scotland this branch of the prerogative seems to have been treated with little ceremony; and we find the parliament, by its own authority, putting an end to its meetings, and appoint-<53>ing others to be held at particular times and places, either for the determination of particular points, or for the discussion of its ordinary business.*
Even the domestic arrangements of the royal family were not, in Scotland, exempted from the interference of parliament; and the marriages of the sovereign were dictated by such political considerations as had occurred to that assembly. How far it is the duty of a prince to sacrifice his own inclination, in a matter of this kind, to artificial reasons of state, and to convert the most important and agreeable bond of private society into a prostituted and disgusting connection; and how far the alliances derived from such political<54> considerations are likely to be of much national benefit, and worthy the attention of a spirited people, it may, perhaps, be difficult to determine. By the old feudal system, the vassals were obliged to marry with consent of their liege lord; but that the sovereign should be forced in this point to comply with the will of the nobles, the superior to take a wife by the direction of his vassals, may be thought an unusual strain of aristocracy. We find that in England, Queen Elizabeth treated such interpositions of parliament with disdain, and considered them as manifest encroachments upon the prerogative. It must at the same time be acknowledged, that the fetters thus imposed on the sovereign, were probably more vexatious, in those times of simplicity, than they would be in ages of luxury and dissipation, when, from different modes of living, the felicity of persons in high rank is less governed by those principles which affect the condition of their inferiors.
The authority assumed by the Scottish parliament, with relation to the distribution of justice, which was no less extensive than in the other branches of administration, will fall<55> more properly to be considered, in taking a connected view of the judicial establishments of Scotland.
The particulars above-mentioned, concerning the aristocratic nature of the government in Scotland, are proved by the most authentic evidence, that of the statutes, collected from the records, and published by authority. It is remarkable, however, that a great part of the statutes referred to, are to be found in the first edition only of that collection, published in the reign of Queen Mary, and, from its being printed in the Saxon character, known by the name of the Black Acts.22 In the reign of James the Sixth, when the prerogative had been greatly extended, a design was formed of concealing, as far as possible, the ancient state of the government; for which purpose an attempt was made to suppress this edition: and another was published, in which those acts which appeared to demonstrate the high powers of parliament were carefully omitted. This mutilated collection is copied in the last edition of the statutes published in the reign of Charles the Second, which is now commonly used. The copies<56> of the Black Acts which remain at present are not numerous, and the peculiar knowledge to be derived from that ancient compilation is, in some degree, limited to those who are conversant in the legal antiquities of Scotland. The glaring imposition upon the public, thus attempted by the authority and direction of the crown, affords a noted example of the unprincipled measures of that reign, and conveys a strong presumption, that the old constitution of Scotland was diametrically opposite to the political views entertained by the sovereign, and to that system of regal power which he was labouring to realize.
Through the whole history of the period now under consideration, we discover numberless events which mark the rivalship between the king and the nobility, as well as the exorbitant power in the hands of the latter. In that famous manifesto drawn up by parliament in 1320, and addressed to the pope,23 they plainly intimate, that by their authority Robert Bruce had been advanced to the throne; and they expressly declare, that if ever he should abandon their cause, and be-<57>tray their privileges, they would expel him as an enemy, and choose another king to rule and protect them.
When the same Robert Bruce had, by his persevering valour and prudence, delivered the country from subjection to the English monarch, and by a train of brilliant exploits, attained universal admiration and popularity, he ventured in parliament, a little inconsiderately, to question some of the nobility, by what title they held their estates? The tendency of this question was immediately perceived; and the memorable answer given unanimously by the barons is known to all the readers of Scottish history. They drew their swords: “By these,” said they, “we have acquired our possessions, and with these we will maintain them.”
A late elegant writer,24 who, in his history of Scotland, unites to the facts collected by former historians such philosophical views and discussions as the diffusion of knowledge in the present age was able to supply, has observed, that the disorders which prevailed in the country, and the disasters which befel so many of its monarchs, from the reign of<58> James the First, to that of James the Fifth, proceeded, in great measure, from the eagerness of those princes to undermine and destroy the exorbitant power of the ancient aristocracy.
James the First,25 a prince of great abilities, and of elegant accomplishments, was led, not only to aim at the introduction of the superior good order and policy which he had observed in England, but also to promote a similar aggrandizement of the crown. For this purpose he endeavoured gradually to weaken the nobility, by seizing the estates of particular barons upon pretence of defects in their titles, and by procuring the condemnation and forfeiture of others, upon a prosecution for crimes. His measures, however, at length produced a general combination against him, and gave rise to an insurrection, in which he was cruelly murdered.
His son, James the Second, prosecuted the same plan of humbling the nobles, but with a brutal impetuosity and fierceness, and with a perfidy which paid no regard to the most sacred engagements. His behaviour soon excited a formidable rebellion; from which he<59> found means to extricate himself by the treachery of some of the rebels, and by the irresolution and weakness of their leader. He had proceeded, for some time, in improving the advantages arising from the discomfiture of his enemies, when a sudden death, by a splinter from the bursting of a cannon, put a stop to his career, and delivered the nobles from so formidable an adversary.
He was succeeded by James the Third, a prince totally destitute of the capacity and vigour requisite for the government of a rude and turbulent people; but who paid some attention to the fine arts, and to frivolous exhibitions of mechanical dexterity. He endeavoured to mortify and depress the nobles by neglect, by excluding them from his councils, and by depriving them of the offices and privileges with which they had formerly been invested; while he suffered himself to be governed by persons of mean birth, and passed his whole time in the company of those favourites, whose petty talents and accomplishments afforded him amusement. The indignation of the nobility was inflamed by finding the favour and confidence of the so-<60>vereign, to which they aspired, and which they considered as their due, bestowed upon such unworthy and contemptible objects. Taking advantage, therefore, of an invasion from England, which required that they should assemble their vassals, they formed a conspiracy to rid themselves of these despicable rivals, broke into the king’s apartment, seized his principal minions, and, without any form of law, hanged them over a bridge near the town of Lauder. The infatuated monarch was not rendered wiser by this humiliating check. Persevering in the same system of favoritism, he afterwards established a body guard, and debarred the nobility from all access to his person. This at length produced a rebellion, in which he was slain at the battle of Bannockburn, and which by its fortunate issue, augmented, for a time, the power of the aristocracy.* <61>
The character of James the Fourth was very different from that of his father; and he experienced a very different fortune. Full of the ideas of chivalry, his great object was military glory; and, instead of entertaining a jealousy of his nobles, he regarded their fidelity and attachment as indispensably necessary for promoting his own greatness, and admited them to that degree of intimacy which the spirit of the feudal system introduced between a military leader and his vassals. Their gratitude and affection corresponded to his open and generous dispositions; and their utmost exertions and services were at his devotion. It is observed, however, in the history of this reign, that they suffered more from attachment to the king, than they had ever suffered, on former occasions, from the jealousy and ma-<62>chinations of the crown. In the fatal field of Flowden, the Scottish nobility, unwilling to desert or to survive their beloved sovereign, received a blow which greatly impaired their strength, and from which, for a long time, they did not perfectly recover.
Of the three estates in parliament, the great superiority of the nobles created in the two others a disposition, so far as they acted from political considerations, to form a league in their own defence, and even to unite their influence with that of the crown. The boroughs were too insignificant to render their aid of much consequence; but the clergy were possessed of great wealth, and many individuals among them, from their education and professional habits, were distinguished by learning, abilities, and political talents. The higher benefices, at the same time, both of the secular and regular clergy, were in the gift of the crown, a circumstance which could hardly fail to conciliate the favour of the church, and to warm and enliven her zeal in supporting the prerogative. James the Fifth, who is represented as a prince of some abilities, but of a gloomy and sullen temper, appears to have<63> been fully sensible of this natural connection, and aware of the advantages to be derived from it. He bestowed his confidence almost exclusively upon ecclesiastics, appointed them to fill the most lucrative offices in the state, and employed them in the chief branches of administration. By their dexterity, prudence, and vigour, the public tranquillity was maintained, and the business of the nation, for some time, prosperously conducted; while the nobles were kept at a distance, and carefully excluded from every situation either of power or emolument. The whole order of the nobility was thus depressed and weakened; at the same time that no opportunity was neglected, by accusations and punishments, to accomplish the ruin of individuals.
These plans of the monarch had for some time been prosecuted with success, when, from the very system of policy to which he had resorted, he was involved in difficulties which could not easily be surmounted. Henry the Eighth, in his attempts to deliver his dominions from the authority of the Roman pontiff, was naturally desirous of procuring the co-operation and countenance of neighbouring states;<64> and, in particular, had proposed a treaty of alliance with his nephew, the king of Scotland. By this proposal, the bigoted ministers of James, foreseeing that, from an intimate correspondence between the two countries, the spirit of religious innovation was likely to be propagated from the one to the other, were thrown into the utmost consternation. They exerted all their influence to defeat the projected alliance; employed every artifice to prevent a communication with the heretics of England; and were even so far successful as to persuade their master to reject a conference with Henry, to which he had been invited. The consequence of this measure, so contrary to the interest of James and of the nation, but so conformable to the views of the churchmen, whose advice he implicitly followed, was an immediate war with England, which made it necessary to convene the nobles for the purpose of procuring a military force.
James had now the mortification to discover that his prospects were totally blasted, and to find himself without hopes of relief, under the power of those haughty barons, whose jealousy he had excited, and whose indigna-<65>tion and resentment he had incurred. Unable to bear the disappointment, he died of a sort of pet, into which he was thrown by the repeated disobedience of his orders, the contempt shown to his authority, and the insults that were offered to his dignity.
The most important event in the reign of the unfortunate Mary, an event which affected the whole train of her public and private transactions, was the religious reformation. The new system which then took place in Scotland was more democratical than, from the state and circumstances of the country, could, perhaps, be expected. It arose, no doubt, from a variety of causes, among which the great power and influence of the nobles was probably not the least remarkable.
1. The diffusion of knowledge over the countries of modern Europe, and the consequent disposition which appeared in many of them to deliver themselves from the tyranny of the church of Rome, were gradual and progressive. To pass over those theological opinions, which, from their absurdity and pernicious tendency, had given scandal to Christians, and to consider the reformation merely<66> in a political view, it is to be remarked, that the first reformers were content with a total emancipation from the papal power, and with an entire abolition of those monastic orders, the great nurseries of superstition, by which that papal power had been chiefly supported. But, in the course of inquiries, and in the heat of controversy upon that subject, the number and variety of abuses in the old church became gradually more apparent, and the breach between the disputants was widened. The rottenness of the ancient fabrick being more and more laid open, alterations of greater extent and importance were thought necessary for the security of the new edifice. To strike at the root of superstition, and to prevent mankind from being enslaved by their spiritual guides, it appeared proper to many, that the number even of the secular clergy should be reduced; that their opulence ought to be diminished; and that their subordination in rank and authority, by which they were closely combined, and brought under the direction of one, or a few, leaders, should be abolished.
In most of those countries, therefore, in<67> which the people began to think of renouncing the errors of the church of Rome, after they had long been the subject of examination and censure, the ancient hierarchy came to be entirely destroyed, a perfect purity among the clergy introduced, and provision made by the moderation of the livings bestowed upon them, for preventing their future power and grandeur. As the reformation made its way, at a later period, into Scotland than into most other parts of Europe, it was likely to be adopted by the Scottish nation in that higher state, which a long continued ferment in the minds of men had produced, and which coincided with the ardent and exalted spirit of the times. The doctrines and the model of church-government which had been established at Geneva by Calvin,26 the latest apostle of the reformers, were thus imported into Scotland by John Knox and his followers; and being received by the people with a warmth of approbation suitable to the enthusiastic ardour with which they were inculcated, produced an abhorrence of the hierarchy, and of the pompous worship retained in England, scarcely inferior to that which was ex-<68>cited by the gross errors and abuses exhibited by the church of Rome.
2. The manner in which the reformation was effected in Scotland, contributed also to the peculiar modification which it received in that country. As in England, the king was the leading reformer; he, of course, modelled the new system in conformity to the interest of the crown, and carefully preserved that ancient hierarchy which was calculated for supporting the power of the monarch. But in Scotland, the mother of Mary, and her uncles, of the powerful house of Guise,27 were bigoted Roman Catholicks; and, by their authority in the administration, together with their influence over the young queen, gave such a direction and bias to the course of public affairs as produced an uniform and vigorous opposition to every step of the reformation. As the people, therefore, became the reformers, in open defiance of those who conducted the machine of government, they were led to establish a popular system; and, as they had many and great obstacles to surmount before they could accomplish their ultimate object, their enthusiastic notions of religious purity swelled in<69> proportion, and prompted them, by the common animosity which attends every violent contest, to recede so much the farther from the ancient establishment.
3. But the prevalence of aristocracy in Scotland contributed, perhaps, more than any other circumstance, to the destruction of the hierarchy, and to the very limited provision that was made for the ministers of the protestant church.28 As the ignorance and superstition of the Scottish nation was probably not inferior to that of most other European countries, it appears that the property accumulated in the hands of the church, considering the general state of wealth in the country, was not less extensive. It is computed that, immediately before the reformation, the collective body of the secular and regular clergy possessed, in tythes and landed estates, a yearly revenue amounting to a full half of the landed rent in the kingdom.* This opulence presented a rich field of plunder to the nobles, who, at the same time that their political resentment was excited against an order of men which had of late been the great pillar of the crown, had the<70> prospect of stripping the church of her large benefices; and, by their great influence and authority, converting to their own use the greater part of that immense revenue. They united, therefore, most cordially with the populace in promoting the presbyterian system of church government;29 and, from strong motives of interest, adopted the same line of conduct which the latter eagerly pursued from principle.
Thus we find that the nobility took a very active share in the reformation; and having obtained from the crown a great proportion of what was called the spirituality, as well as the temporality, of ecclesiastical benefices, continued afterwards to interest themselves in the new establishment, and particularly to guard against the future designs of the crown for increasing the power and revenue of the church. For this purpose they became members of the general assembly,30 or chief ecclesiastical council; and continued to sit in it for near thirty years after its first institution. When James the Sixth afterwards introduced a sort of episcopal government, they took care to prevent the restitution of any part of those church-revenues<71> which they had appropriated; and when, at a subsequent period, the measures of Charles the First threatened the more complete establishment of the hierarchy in Scotland, they became active in forming with the people that solemn league and covenant,31 by which the whole power of the nation was exerted with the most decisive effect in defeating the measures of that ill-advised and infatuated monarch.
It may here be remarked, that, from a difference of circumstances, the presbyterian religion came to be more deeply rooted, and sprung up with more vigour in some parts of Scotland than in others. In the north, the slower advancement of knowledge and the arts disposed the inhabitants to retain the old superstition, and produced a reluctance to those innovations which were so generally adopted in the other parts of the kingdom. In the neighbourhood of the capital, the influence of the crown was more immediately felt, and counteracted, in some measure, the natural bent of the people, not only towards the reformation in general, but also towards the destruction of the hierarchy in particular. It was in the western coun-<72>ties, at some distance from the seat of government, though not so remote as to preclude a strong tendency to improvement, that the presbyterian religion was embraced with a degree of ardour and enthusiasm which nothing could withstand, and which the most violent persecution, in the reign of Charles the Second, served only to augment. The puritanical principles, and the fanaticism of those counties, became a source of distinction; and the peculiarity of aspect and manners observable in the zealots from this quarter, is said to have procured from the courtly inhabitants of the east the nick-name of whigs,32 a religious appellation, which being afterwards applied to the political opponents of the crown, has had the fortune to spread over the whole island, but which in its original acceptation is still sometimes used in the western parts of Scotland.<73>
[* ]Lord Hales, an author whose acute researches concerning antient facts, and whose extreme caution in advancing any conjecture with respect to their causes, are equally conspicuous, asserts that the collection of old laws ascribed to Malcolm the Second, is a plain and palpable forgery. In proof of this assertion he seems to depend chiefly upon two arguments, 1. The improbability of the fact stated in the collection, viz. That the king gave away the whole land in Scotland to his men. “Dedit, et distribuit totam terram de Scotia hominibus suis, et nihil sibi retinuit in proprietate, nisi regiam dignitatem, et montem Placiti in villa de Scona.” [[“He gave and distributed the whole land of Scotland among his followers, and he kept nothing back for himself as his property except the royal dignity and Moot Hill in the town of Scone.” The quotation is taken from the Laws of King Malcolm the Second, of which the text is in John Skene, Regiam Majestatem Scotiae. Veteres Leges et Constitutiones, ex Archivis Publicis, et Antiquis Libris Manuscriptis Collectae, etc. (Edinburgh, 1609), 1. But it seems evident that the expression here made use of, is not meant to be literally understood. The royal dignity cannot be considered as a piece of land; and yet it is said, that the king gave the whole land, except the royal dignity. By the royal dignity seems in this passage to be meant those royal demesnes by which the dignity of the crown was supported; and probably the lands distributed to his subjects, under the conditions of feudal tenure, were these only which they had previously resigned to the king for that purpose, or which had fallen to him by forfeiture. The moot hill of Scone, the place where the national council held its meetings, is mentioned as distinct from the ordinary demesnes of the crown. 2. The other argument against the authenticity of this antient record is taken from the fees or salaries mentioned as given to certain officers. These the author thinks are in certain cases immoderately high; in others, inconsistent with the respective ranks of those officers. But before any argument from topicks of this kind can have much weight, it will be necessary to show distinctly the rate of money used in Scotland, both during the reign of Malcolm the Second, and of Malcolm the Third, which this learned author appears unable to do. In addition to this remark, it may be proper to subjoin a note, which lord Hales has the candour to insert at the end of his dissertation, and by which it should seem, that his labours upon that subject are in some degree superseded. “A friend of mine,” says he, “distinguished in the literary world, observes, that the Leges Malcolmi are the composition of some private man who meant to describe the great outlines of the laws and customs of his country, which he supposed, or had been told by tradition, were first introduced by some ancient and famous king of the name of Malcolm, either Malcolm Mackenneth, or Malcolm Canmore; the former just as probably as the latter. It does not appear that the author himself ever meant that they should pass for the original statutes of that king. The whole book is a narrative or history of the regulations which he supposed had been made in times that were ancient in comparison of his own. The style is every where not statutary, but historical. He called them the Laws of King Malcolm; because he supposed they had originally been instituted by some king of that name. The supposition of their being the statutes of any king is a blunder, and a very gross one, of later writers, for which the author is not answerable.” [See Lord Hales’ Dissertation on the LL. Malcolmi.]]]
[7. ]For a list of Millar’s principal sources, see appendix 1.
[8. ]Sir Henry Spelman (ca. 1564–1641): English historian and antiquarian who argued that both feudal law and parliament in England date from after the Norman Conquest in 1066. His ideas became influential through Robert Brady (see pp. 212–13, note 12). In Feuds and Tenure by Knight-Service, Spelman discusses the matter of the Leges Malcolmi as belonging to the reign of Malcolm III, not Malcolm II. See The English Works of Sir Henry Spelman (London, 1723), 2:26–28.
[9. ]For Millar’s distinction between accidental and general causes, see for example, Hume’s “Of the Rise and Progress of the Arts and Sciences,” in Essays, Moral, Political, and Literary, ed. Eugene F. Miller (Indianapolis: Liberty Fund, 1985), 111–37.
[10. ]The most famous eighteenth-century advocate of the influence of geography on political development was Montesquieu. See Spirit of the Laws, ed. and trans. Anne Cohler, B. C. Miller, and H. S. Stone (Cambridge: Cambridge University Press, 1989), 285–92.
[11. ]The granting of borough status began in the twelfth century.
[12. ]Robert I (r. 1306–29).
[13. ]The Convention of Royal Burghs was known to have existed in the thirteenth century. It drew up the laws of the Four Burghs (Edinburgh, Stirling, Lanark, and Linlithgow [the latter two replaced Berwick and Roxburgh in 1368]), which applied to all royal burghs throughout the realm. Its formal records began in the middle of the sixteenth century.
[* ]See the treatise intitled curia quatuor burgorum [[the court of the four burghs. Translated from John Skene, Regiam Majestatem Scotiae. Veteres Leges et Constitutiones (Edinburgh, 1609), 154, in the collection of old laws published by Skene. At what time the meeting, called the Parliament of boroughs, was first introduced, it seems impossible to ascertain. That part of the collection above mentioned, intitled consuetudines burgorum the constitution of burghs. Translated from Skene, Regiam Majestatem Scotiae, 132, and supposed by Skene to have been established in the reign of David the First, is conjectured to have arisen from the interpositions of this ancient court. The act of the legislature substituting the boroughs of Lanark and Linlithgow to those of Berwick and Roxburgh, which had fallen into the hands of the English, was passed in the year 1368, in the reign of David the Second.]]
[14. ]See note 25 in this chapter. James VI/I reigned 1567–1625.
[15. ]All major cities and most large towns formed chambers of commerce in the eighteenth and nineteenth centuries to give the business community a forum in which common interests could be identified and strategies pursued. The two most significant for Scotland were those of Glasgow and Edinburgh.
[16. ]On James I and his successors on the Scottish throne, see note 25 in this chapter.
[17. ]See p. 295, note 6.
[18. ]First recorded in the fifteenth century, this was a committee of elected members to draft legislation. Articles were legislative proposals which had to pass through this committee.
[* ]See Annals of Scotland by Sir David Dalrymple. [[David II reigned 1329–71.]]
[† ]See Wight’s Inquiry into the Rise of Parliament.
[† ]Wight’s Inquiry. Ibid.
[* ]Parl. 1. ch. 25. Black Acts.
[† ]Ibid. ch. 49.
[19. ]See note 25 in this chapter.
[* ]Ja. II. ch. 5. and ch. 6. Black Acts.
[20. ]See note 25 in this chapter.
[† ]Ja. III. ch. 80.
[† ]See instances of this, Ja. III. ch. 130. ch. 131. ch. 132. Ja. IV. ch. 37. ch. 82. Ja. V. ch.= 4. ch. 102.
[21. ]See ibid.
[§ ]See the political publications about the time of the Union.
[* ]See particularly a discourse on the Union of Scotland and England, published 1702; also an historical account of the ancient rights of the parliament of Scotland, published 1703.
[* ]Thus by act James I. ch. 125, the parliament which met April 1429, is, by its own consent, adjourned to the Martinmas following. A similar adjournment ch. 145.
[22. ]The name given to an edition, printed in black letter, of Acts of the Scottish Parliament for the period 1535–94.
[23. ]The Declaration of Arbroath, a response to Pope John XXII’s threat of excommunication and supposedly written on 6 April 1320 by the Scottish nobility but in reality expertly drafted by a cleric on their behalf. It was intended to justify Scotland’s struggle for independence.
[24. ]William Robertson (1721–93): Scottish clergyman and historian, leader of the Moderate faction in the Church of Scotland. His reputation as a historian rests on the History of Scotland (1759), the History of the Reign of Charles V (1769), and his unfinished History of America (1777). Millar is here referring to a leading theme in book 1 of the History of Scotland.
[25. ]Millar’s narrative in this section refers to the following events. In 1424, James I (r. 1406–37) returned to Scotland after eighteen years of captivity in England and attempted to reform the Scottish parliament along English lines. In 1437 an aristocratic conspiracy resulted in his murder at Perth. James II (r. 1437–60) killed the leader of the rebellious Douglas family (the eighth earl of Douglas) in 1452, but died himself during the siege of Roxburgh in 1460. James III (r. 1460–88) was betrayed by his own nobility, whose discontent focused on the low-born favorites and courtiers with whom he consorted, many of whom were hanged at Lauder Bridge. He was killed at Sauchieburn near Bannockburn, where his forces were defeated by an opposition led by his son and heir, James, duke of Rothesay, who ascended as James IV (r. 1488–1513). Anglo-Scottish relations deteriorated in 1511, and James IV renewed the “auld alliance” with the French, who were at war with England. James and a good deal of the Scottish nobility were killed fighting the English at Flodden (Northumberland) in 1513. The English tried to woo James V (r. 1513–42) away from French and Catholic influence, but the Scottish clergy prevented this. By 1542 Scotland was again at war with England, and James fell into a state of depression until his death late in the year. Mary, Queen of Scots (1542–87), spent her minority rule in France 1542–61. After the death of her husband, François II (king of France 1559–60), she returned to Scotland in 1561. But in 1559–60, during the regency of her mother, Marie de Guise, the Calvinist reformation under the ideological leadership of John Knox (ca. 1514–72) and his followers succeeded in overthrowing the Catholic establishment in Scotland. This was confirmed by the “Reformation Parliament” of 1560.
[* ]Concerning this prince, there is mentioned an occurrence, which may appear too ludicrous for the gravity of history, and which is too inconsistent with royal dignity to be recorded by later historians. It is said that James, having torn to pieces a charter of the Earl of Morton, on account of the privileges which it contained, the nobility insisted that he should make satisfaction for the outrage, and obliged his majesty, while sitting on the throne, with a needle and thread, to sew together, carefully, the several fragments of the manuscript. There may be some ground to question the authenticity of this anecdote; but it must be evident, that the authority of the monarch could not be very exalted in a country where such a report was believed or circulated. (See a Discourse of the Union, published 1702.)
[26. ]Jean Calvin (1509–64): French theologian and Protestant reformer. After fleeing to Switzerland, he wrote his Christianae Religionis Institutio in 1536. Calvinism exerted a profound influence throughout western Europe from the 1550s. On Knox, see note 25.
[27. ]A ducal family of Lorraine, and the head of the Catholic party in France that sternly repressed Calvinism. Marie de Guise (1515–60) married James V and was the mother of Mary, Queen of Scots. Marie de Guise’s brothers were François, duc de Guise (1519–63), and Charles de Guise (1525–74), who became a cardinal in 1547. The power of the Guise family reached its height during the brief reign of Mary’s husband, François II, as King of France 1559–60. See p. 407, note 1.
[28. ]As a “son of the manse,” Millar understood the relatively poor material conditions of the Scottish clergy, which he attributes here to the power of the aristocracy.
[* ]See Forbes on Tythes.
[29. ]A system of church governance based on the presbytery rather than the authority of a bishop (i.e., episcopacy). The model was Calvin’s Geneva.
[30. ]The governing body of the Scottish Church; since 1560 it has convened annually in Edinburgh.
[31. ]After Charles I attempted to impose the 1637 Prayer Book, most Scottish nobles signed a national covenant to defend the Scottish Church against episcopacy (1638). Its objectives were incorporated in the English Parliament’s alliance with the Scots, the Solemn League and Covenant, in 1643.
[32. ]See p. 440, note 7.