CHAPTER XVII. ON THE CONSTITUTION OF SCOTLAND. Early State of Scotland. Introduction of Feudal System. - Power of the Aristocracy. Royal Influence in Parlia ment. Judicial Power. - Court of Session. Reformation. Their Attempts at Independ Power of the Presbyterian Clergy. - ence on the State. Andrew Melvil. Success of James VI in restraining them. Establishment of Episcopacy. Innovations of Charles I. Arbitrary Government. Civil War. Tyrannical Government of Charles II. Reign of James VII. Revolution and Establishment of Presbytery. — Reign of William IH. · Act of Security. — Union. — Gradual Decline of Jacobitism. -- Ir is not very profitable to inquire into the constitu tional antiquities of a country which furnishes no authentic historian, nor laws, nor charters, to guide our research, as is the case with Scotland before the twelfth century. The latest and most laborious of her antiquaries appears to have proved that her institutions were wholly Celtic until that æra, and greatly similar to those of Ireland'. A total, though probably gradual, change must therefore have taken place in the next age, brought about by means which have not been satisfactorily explained. The crown became strictly hereditary, the governors of districts took the appellation of earls, the whole kingdom was subjected to a feudal tenure, the Anglo-Norman laws, tribunals, local and municipal magistracies were introduced as far as the royal influence could prevail; above all, a surprising number of families, chiefly Nor man, but some of Saxon or Flemish descent, settled upon estates granted by the kings of Scotland, and became the founders of its aristocracy. It was, as truly as some time afterwards in Ireland, the encroachment of a Gothic and feudal polity upon the inferior civilization of the Celts, though accomplished with far less resistance, and not quite so slowly. Yet the Highland tribes long adhered to their ancient usages, nor did the laws of English origin obtain in some other districts two or three centuries after their establishment on both sides of the Forth. ' It became almost a necessary consequence from this adoption of the feudal system, and assimilation to the English institutions, that the kings of Scotland would have their general council or parliament upon nearly the same model as that of the Anglo-Norman sovereigns they so studiously imitated. If the statutes ascribed to William the Lion, contemporary with our Henry II, are genuine, they were enacted, as we should expect to find, with the concurrence of the bishops, abbots, barons, and other good men (probi homines) of the land; meaning doubtless the inferior tenants in capite 2. These laws indeed are questionable, and there is a great want of unequivocal records till almost the end of the thirteenth century. The representatives of boroughs are first distinctly mentioned in 1326, under Robert I; though some have been of opinion that vestiges of their appearance in parliament may be traced higher; but they are not enumerated among the classes present in one held in 13153. Id. 500, et post. Dalrymple's Annals of Scotland, 28. 30, etc. 2 Chalmers, 741. Wight's Law of Election in Scotland, 28. 3 Id. 25. Dalrymple's Annals, i. 139. 235. 283; ii. 55. 116. Chalmers, 743. Wight thinks they might perhaps only have had a voice in the imposition of taxes. In the ensuing reign of David II, the three estates of the realm are expressly mentioned as the legislative advisers of the crown.' A Scots parliament resembled an English one in the mode of convocation, in the ranks that composed it, in the enacting powers of the king, and the necessary consent of the three estates; but differed in several very important respects. No freeholders, except tenants in capite, had ever any right of suffrage; which may, not improbably, have been in some measure owing to the want of that Anglo-Saxon institution, the county court. These feudal tenants of the crown came in person to parliament, as they did in England till the reign of Henry III, and sat together with the prelates and barons in one chamber. A prince arose in Scotland in the first part of the fifteenth century, resembling the English Justinian in his politic regard to strengthening his own prerogative and to maintaining public order. It was enacted by a law of James I, in 1427, that the smaller barons and free tenants "need not to come to parliament, so that of every sheriffdom there be sent two or more wise men, chosen at the head court, to represent the rest. These were to elect a speaker, through whom they were to communicate with the king and other estates 2. This was evidently designed as an assimilation to the English house of commons. But the statute not being imperative, no regard was paid to this permission, and it is not till 1587 that we find the representation of the Scots counties finally established by law; though one important object of James's policy was never attained, the different estates of parliament having always 'Dalrymple, ii. 241. Wight, 26. * Statutes of Scotland, 1427. Pinkerton's History of Scotland, i. 120. Wight, 30. voted promiscuously, as the spiritual and temporal lords in England. But no distinction between the national councils of the two kingdoms was more essential than what seems to have been introduced into the Scots parliament under David II. In the year 1367 a parliament having met at Scone, a committee was chosen by the three estates, who seem to have had full powers delegated to them, the others returning home on account of the advanced season. The same was done in one held next year, without any assigned pretext. But in 1369 this committee was chosen only to prepare all matters determinable in parliament, or fit to be therein treated, for the decision of the three estates on the last day but one of the session'. The former scheme appeared possibly, even to those careless and unwilling legislators, too complete an abandonment of their function. But even modified as it was in 1369, it tended to devolve the whole business of parliament on this elective committee, subsequently known by the appellation of lords of the articles. It came at last to be the general practice, though some exceptions to this rule may be found, that nothing was laid before parliament without their previous recommendation, and there seems reason to think, that in the first parliament of James I, in 1424, such full powers were delegated to the committee as had been granted before in 1367 and 1368, and that the three estates never met again to sanction their resolutions. The preparatory committee is not uniformly mentioned in the preamble of statutes made during the reign of this prince and his two next successors; but there may Dalrymple, ii. 261. Stuart on Public Law of Scotland, 344. Robertson's History of Scotland, i. 84. be no reason to infer from thence that is was not appointed. From the reign of James IV the lords of articles are regularly named in the records of every parliament. ' It is said that a Scots parliament, about the middle of the fifteenth century, consisted of near one hundred and ninety persons. We do not find, however, that more than half this number usually attended. A list of those present in 1472 gives but fourteen bishops and abbots, twenty-two earls and barons, thirty-four lairds or lesser tenants in capite, and eight deputies of boroughs3. The royal boroughs entitled to be represented in parliament were above thirty; but it was a common usage to choose the deputies of other towns as their proxies 4. The great object with them, as well as with the lesser barons, was to save the cost and trouble of attendance. It appears indeed that they formed rather an insignificant portion of the legislative body. They are not named as consenting parties in several of the statutes of James III; and it seems that on some occasions they had not been summoned to parliament, for an act was passed in 1504, "that the commissaries and headsmen of the burghs be warned when taxes or constitutions are given, to have their advice therein, as one of the three estates of the realm 5. This, however, is an express recognition of their right, though it might have been set aside by an irregular exercise of power. " It was a natural result from the constitution of a Scots |