Читать книгу The Scottish Parliament Before the Union of the Crowns - Robert S. Rait - Страница 3

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The History of Institutions scarcely requires to-day, the eloquent defence with which the Bishop of Oxford prefaced his great book, almost thirty years ago. His own work has proved more than sufficient defence for his field of labour, and universal assent would now be given to his claim that "nothing in the past is dead to the man who would learn how the present comes to be what it is." Within the last few years, Professor Maitland has shown us the importance of much in the past that was generally regarded as trivial and incidental. He has illumined, with the torch of history, the dungeons of learning which have been generally supposed to form the abode of the antiquary, and, apart from the brilliant results he has personally attained, the present generation of investigators owes to him a clearer conception of the relation that should exist between more purely antiquarian pursuits and wider historical studies.

It is true that the institutions which have provided a theme for Bishop Stubbs and Professor Maitland, have in part survived from the seventh century to the twentieth, and that they still form the basis of the constitutional life of a great people. For a period of a thousand years, historical inquirers have been attempting to discover their origin, and, within the last two centuries, distinguished thinkers and writers have, from time to time, attempted to leave to posterity a worthy record of their history. They have served as models for continents the very existence of which was unknown for centuries after English institutions had assumed a definite shape, and they have proved capable of a development so important that they have become the centre of an empire more than one hundred times the size of the country in which they originated.

Nothing of this description can be written of the history of Scottish institutions. They have, in large measure, disappeared, and it is not always easy to trace any influence in modern life which may fairly be attributed to the fact that they once existed. The constitutional history of Scotland is partially unrecorded and is, in any formal way, wholly unwritten. Of the constitution of the kingdom, as it was when the sixth James took his seat on the throne of Elizabeth, only one portion has survived to our own day. It is a large portion, for it comprises the legal and judicial system which furnishes so great a proof of the wisdom of our ancestors, and which still serves to differentiate a nationality that inventions and commerce have combined to destroy. All else has gone. There is still in Edinburgh "a ghost of speech" which reminds the curious that men once did more in the Scottish capital than merely administer the law; but the "Parliament House" is only a name—vox et praeterea nihil. The system of administration, the methods of finance, the royal prerogative, the Privy Council, the hereditary jurisdictions, have vanished. Local jealousies, clan and family hatreds, the hopes and fears of noble and burgess and peasant have ceased to find a place in the national records. The relations between Church and State, after undergoing numerous transformations, have been decided in accordance with the Revolution Settlement, and have once and again been modified under Queen Anne and under Queen Victoria. The General Assembly still meets, but it is not, and could not be, the General Assembly of John Knox or of Andrew Melville. The Royal Burghs maintain their wonted Conventions, but only to take counsel, and never to act. It is no longer possible to recognize the fabric of the constitution of the kingdom which King James left in 1603.

Such a subject as this must, of necessity, occupy the border between antiquities and history, and it possesses its full share of the difficulties that beset the antiquary more than the historian. The information which it is the antiquary's duty to collect is widely scattered in bounds of space, and is possessed of but a meagre connection in thought. He must be prepared to bring together his material from many different quarters and to find it in many varying forms. Facts that have been preserved because of their local import, and have been buried in local records far from the scene of his interest, rumours and legends that continue to exist in connection with some individual who finds no place in his main theme, casual remarks of accidental observers, inferences deduced from half-forgotten customs and from dying myths, carefully kept records which, either wilfully or by chance, are designed to give a false impression unless read in the light of some apparently irrelevant circumstance—such are the materials on which the antiquary depends. The writer who is bold enough to undertake an investigation into the Scottish Constitution will find the difficulties of the antiquary added to the troubles of the historian. His task is that which, of old, Pharaoh set to the children of Israel—"Go yourselves, get ye straw where ye can ... for there shall no straw be given you, yet shall ye deliver the tale of bricks." The student of the English Constitution can point to a body of documentary evidence such as no other nation can produce. What would not the Scottish student give for the corpus of Anglo-Saxon law, the magnificent record of Domesday Book, the Dialogue concerning the Exchequer, and the Modus Tenendi Parliamentum? Yet these constitute only a small fraction of the material which now lies ready for the beginner in the study of English history, and he may learn more in a month than years of patient labour will yield to the investigator of the origines of Scottish civilization. The Scottish Constitution began to take shape between the reigns of David I and Alexander III, that is, in the twelfth and thirteenth centuries, and the records of these years have been, in large measure, destroyed. The shock of the War of Independence arrested its development, but constitutional movements can again be traced under David II and James I, and for the century which connects their reigns (1329-1437) our information is scattered and meagre. The English historian knows definitely the racial distribution with which he has to deal, and he can disintegrate the influence of Saxon and Dane and Norman. In Scotland, we have to face at the very outset, a racial problem as yet unsolved, and we are called upon to disassociate influences of the origin of which we are ignorant, and whose effects we meet only in the mass.

The student who would attempt such a problem as this must be familiar with the outlines of English constitutional development, but he must also be prepared to banish from his mind all prejudices and prepossessions derived from such knowledge. For he will find here no record of liberty slowly broadening from precedent to precedent, no statesmen kings, surrounded by sagacious advisers, defining the scope and the purpose of a legal system, no patriotic barons, banded together to wrest from an unwilling monarch a power which was not being wielded for the national good, no common aim uniting reformers of the thirteenth century with reformers of the seventeenth. He can name here no great names in the progress of constitutional freedom or in the growth of a consistent system of law; Scotland produced no Henry the Second, no Simon de Montfort, no Edward the First, no Hampden and no Sydney. He must divest himself of the atmosphere of English history and be prepared to find a separate people, affected by influences widely different, and responding to impulses clearly divergent from the familiar movements of English history. The story is not without its heroes, but they are of a wilder and more romantic type than in England. James I, throwing himself bravely and fiercely against the system of abuses which he found in Scotland, and paying with his life for his courage and devotion, is a constitutional hero utterly unlike a Henry or an Edward. This aspect of Scottish history is the less interesting and the less definite because it is so largely impersonal; there are many famous names in the political and in the ecclesiastical story of Scotland, but few indeed lend themselves to brighten the pages that tell of constitutional development. It is, perhaps, for this reason that historians have left it alone. Writers on Scottish history from Boece and Major to Tytler and Hill Burton have ignored its existence; even the learned editors of such constitutional documents as the Privy Council Register and the Treasurer's Accounts have been pre-occupied by the varying scenes of the political drama, and are largely silent on questions relating to the constitution.[1] The conditions of government, justice, and finance before the reign of Malcolm Canmore, and the relations of the king to his seven mormaers or earls, are unexplored mysteries. Not less difficult are the questions that relate to the next period. How did the burghs come into being, and whence did they derive that system of law and custom which was administered by the Four Burghs and the Hanse Burghs, and which even Edward I was unable to ignore? How did the clan-system of the tenth century pass, in the Lowlands, into the family-system of the twelfth? Who were the good men who formed the community of the kingdom, and on whose advice the kings granted charters and liberties? What was the real signification of these charters themselves, and what privileges did they confer? What was the precise nature of the threat implied in the warning that a man who neglected the king's ordinances should lose his court for evermore? All these are as uncertain as are the powers of the Executive, the administration of justice, the police-system outside the towns, or the arrangements for national defence. Even in the centuries of our separate history which are most fully known, the fourteenth, fifteenth, and sixteenth, we are beset by many of the same problems and by others not less obscure. How far was constitutional development in Scotland affected by the short-lived union under Edward I? How far by the three hundred years of alliance with France? Can we infer any connection between the German Diet and the Scottish Estates, between the Lords of the Articles and the Committee by which Richard II attempted to supersede the English Parliament? What is the explanation of the relative position of the Estates of Scotland, and of their seemingly capricious periods of importance under David II and Robert II? Questions like these, to which no answer has yet been attempted, await the student of Scottish institutions, along with the usual problems of finance and justice, the Church, the Crown, and the Legislature.

The present Essay is an attempt to deal, in outline, with a single aspect of this constitutional problem. It is the part of the subject on which most evidence is available, and yet the limits of evidence are such as to render many of the difficulties incapable of solution. Almost our only sources for the earlier period are formal charters and incidental references by chroniclers. The scribes who drew up the formal documents were not concerned with the actual circumstances which had produced these deeds; it was their duty to follow the recognized rules of Diplomatic, rules which had originated in foreign Chanceries and which bore the impress of a different civilization. The technical terms in which they abound are not of Scottish origin, and are frequently used to describe conditions to which, in reality, they are totally inapplicable.[2] The historians often belong to an era much later than that of which they write, and they apply, to questions dealing with origins, the phraseology of a relatively late stage of development. When the records of the Acts of Parliament begin, in the twelfth century, they yield us only incidental enactments mainly relating to police methods, and, as they become more numerous, they retain their characteristic of dealing, almost exclusively, with administrative detail. We possess no writs summoning a Parliament, no report of a debate in the Scottish Estates. The constitution of a valid Parliament, the procedure necessary for prorogation and dissolution, the rights of the burgess members, were never definitely decided. The "three Estates" was a technical term having a different meaning at different times, and the word Parliament was applied to bodies so diverse as the great Council which negotiated the ransom of King David II and the nobles who entered into a hasty consultation with James IV at Twiselhaugh. As English constitutional liberty advanced, phrases borrowed from the English Commons find a place in the Scottish records, but they possess no real significance, and they render more difficult the task of interpreting the Acts. It is only now and again that we can speak with certainty of the membership of Parliament, or of the proportion of burgesses to barons and ecclesiastics. The Acts of the Parliament of Scotland give as little assistance to the historian as it is possible for such documents to yield.

Our information certainly becomes less meagre as time goes on. The publications of the Burgh Records Society are important evidence of the state of administration in the most favourable circumstances. The professed histories become more valuable, and from the beginning of the sixteenth century there is a large amount of contemporary description, mainly incidental. Such references must be collected from the works of historians like Boece and Major; from the writings of controversialists like John Knox, George Buchanan, and James VI; from the diaries of private gentlemen, preserved to us by an unusually benignant fate, or from the reports of ambassadors. We owe more to the intelligent curiosity of Pedro de Ayala (the emissary of Ferdinand and Isabella), and of Thomas Randolph (the agent of Elizabeth), than to many more serious sources. But contemporary evidence of this kind must be subjected to rigid scrutiny. The historian of his own times is seldom free from the taint of political prejudice, and the eyes of controversialists are blinded that they cannot see. The simple diarist is not impressed by the even tenour of life; his pen finds an inspiration only in the unusual and the abnormal, and it is difficult for us to discover the rules when we are given only the exceptions, or to keep a true proportion in our mental vision when we can find no standard of comparison. Least of all can we give implicit trust to the political agent, whose motives are uncertain, and who was himself quite likely to mistake the accidental for the normal. Lastly, there are the formal accounts and the figures, facts, and dates which appear in official records; but such evidence is only of subsidiary importance, and, of itself, can rarely give adequate support to any theory.[3]

The effect of these limits of evidence will be obvious on every page of the present work, and such conclusions as the writer has drawn must, of necessity, be merely tentative. It is, in some respects, unfortunate that these conclusions should be so largely negative in character: that the general effect is, not so much to show what the Parliament was, as to point out what it might have been and was not. One may claim, however, that even these negative conclusions will produce ultimately a positive effect, for the reader must seek out other causes for the results that the Parliament did not achieve, and other means for the training that was not supplied by the Estates; and such an essay as this may serve to warn him from the wrong track. It may also be useful as exemplifying the limitations of the doctrine that national progress can be measured by constitutional advance. It is impossible to question the progress of Scotland between the murder of the first and the death of the fourth James; a comparison of the description of Scotland written by Aeneas Sylvius[4] (Pius II), who visited it about 1438, and the account of the resources of the kingdom supplied by Pedro de Ayala to Ferdinand and Isabella,[5] is a satisfactory object-lesson. The future Pope writes of a poverty-stricken land, with miserable inhabitants, dwelling in wretched houses. The Spaniard found considerable prosperity and increasing commerce, with houses "all built of hewn stone, and provided with doors, glass windows, and chimneys," and Italian and French furniture. But between 1437 and 1513 it is not easy to discover any single token of definite constitutional development, either in the direction of absolute government or in that of popular liberty. Not only does Scotland fail to produce a constitutional movement like that which characterizes the history of England; she does not develop any kind of constitution at all. No absolute monarch, no oligarchical council, no democratic parliament occupies the stage of her history for any length of time, nor does she know any free cities or any independent duchies. This constant condition of unstable equilibrium is not precisely analogous to the history of any other European country, and least of all is it like that of England, where we are apt to judge of national, by constitutional, progress. Yet, advance there certainly was, if not unbroken, still persistent, and persistently unconnected with questions relating to the constitution.

The conclusions here stated with regard to the Scottish Parliament are, however, not entirely negative. The work of the Estates has left some positive and definite results of more than incidental character. The long series of administrative enactments, dealing mainly with police methods and with trade, helped the rise and growth of the Scottish burghs, and, even outside the burghs, they added something to the forces that made for peace and good order. There are occasional measures which found a lasting influence upon the character of the people. The Education Act of 1496, which provided that "all barons and freeholders that are of substance put their eldest sons and heirs to the schools, fra they be aught or nine years of age, to remain at the grammar schools until they be competently founded and have perfect Latin, and thereafter to remain at the schools of art and jure (i.e. the universities), so that they may have knowledge of the laws," forms a fitting conclusion to a century in which the spirit of poetry had deserted England for her northern neighbour, and in which the successors of Chaucer are to be found beyond the Tweed. It was not obeyed in the letter (although we do find the barons of the sixteenth century possessed of clerkly skill), but its influence may be traced in the provision for education made at the Reformation. Even when the definite results were less clearly marked, the existence, in the statute book, of words and phrases to which a constitutional meaning might conceivably be attached (like the existence of parliamentary institutions themselves), served as a rallying cry for men who desired reform, and gave to what was really a new demand the advantage of ancient tradition. As we proceed, we shall note some instances of this. The greatest and most lasting effect of the Scottish Parliament is, however, the judicial system of the country. Alone among European countries, Scotland still possesses a judicature which is the direct descendant of a Committee of the Estates. The College of Justice, which, in its present form, was established in the year 1540, ultimately derives its powers from the Scottish Parliament, which, in 1370, first appointed a small committee to deal with its judicial work. The system of Scots law, which the Senators of the College of Justice are appointed to administer, is, in so far as it differs from the law of England, the product, direct or indirect, of the wisdom of the Scottish Estates, working on the material supplied by the civil and the canon law. In the thirteenth century, the law of Scotland, which had supplanted the ancient customs of the Picts and Scots, was largely based on English law. The Saxon and Norman influences, which had altered the Scottish Church and the Scottish language, had introduced into Scotland many of the leading features of Anglo-Norman law. "It seems clear enough," says Professor Maitland,[6] "that, at the outbreak of the War of Independence, the law of Scotland, or of southern Scotland, was closely akin to English law. That it had been less Romanized than English law had been is highly probable: no Bracton had set it in order.... Romanism must come sooner or later; the later it comes the stronger it will be, for it will have gone half-way to meet the mediæval facts." We find, accordingly, that, later and stronger, the Roman law did come. After the War of Independence, Scottish lawyers borrowed little from England, and, gradually, important differences began to emerge. Mr. Hill Burton has pointed out that the statement, frequently made, that the civil law is part of the law of Scotland, "can only be true of those portions which have from time to time been incorporated with it." The selection of these portions and their local adaptation formed part of the work of the Judicial Committee of the Estates. No attempt was made to codify Scots law for forty years after the Judicial Committee had been constituted as the Court of Session, but, in 1574, a commission was appointed to investigate into the condition of the law and to report on what they considered "meet and convenient to be statute."[7] The source of such additions as those made in accordance with this enactment was the Roman law, and the result has been to produce many discrepancies between Scots and English judicial institutions. The distinction between law and equity, for example, so important in England, is unknown to Scots law, for there never arose in Scotland a separate series of courts to administer a common law differing from the Roman civil law. The fact that the College of Justice was, in theory, a Committee of the Estates, has produced some interesting results. The idea of appeal was unknown in Scotland, or almost so. The records of the Privy Council show that the acts of the Court of Session were sometimes rendered null and void by the Council,[8] but the Council in no way exercised an appellate jurisdiction. In the reign of Charles II, an attempt was made to create the Estates into a Court of Appeal from the College of Justice, and it failed, for the technical and historical reason that the Parliament had already delegated its powers to the Senators. At the Revolution, the Claim of Right demanded the introduction of some process of appeal, but the Union negotiations did not deal with the question, and when, about 1711, in a case between the Presbytery of Edinburgh and an episcopal clergyman, the House of Lords heard an appeal from the Court of Session, they afforded the first instance of an appellate jurisdiction in Scottish causes. It is another consequence of the parliamentary origin of the Courts of Law that the High Court of Justiciary still possesses authority "competently to punish (with the exception of life and limb) every act which is obviously of a criminal nature, though it be such which in times past has never been the subject of prosecution."[9] The English courts have no such powers of "declaring" a crime.

There are also such familiar technical differences as those relating to Conveyancing and the Law of Purchase, and such divergencies from English custom as the number of a Scottish jury, and its power to bring in a verdict which is not unanimous, or the judgment of "Not Proven," which is unknown to English law. But beyond all such debatable issues, there are many important respects in which the law of Scotland is more considerate of the rights of the weak than is the law of England. In questions relating to movable succession, for example, widows and children are protected from the eccentricities of death-bed piety; in cases of legitimacy and marriage the weak can claim privileges refused to them by English law; and with regard to divorce, the rights of husband and wife are equal. The principles of Scots law which protect the lease-holder and the tenant against the caprice of the landlord can be traced to an Act of the Scottish Parliament as far back as 1449. If the general tendency of the Romanization of Scots law has been to render it less harsh, it forms an interesting contrast to the Romanization of German law, which met with strenuous opposition, and which increased the severity of German municipal legislation.

If the production of a legal system forms but a small apologia for a Parliament which existed for several centuries, it nevertheless entitles the Scottish Estates to be reckoned among the forces which have made the nation; and it is legitimate cause of satisfaction that, in spite of all the forces of misgovernment which held sway for so long, the peculiarity of the law of Scotland is its regard for the poor and the weak. If Scottish parliamentary institutions never produced the complacent Whiggism of the triumphant middle class of England, it certainly produced many worse things, and it is pleasant to find some few that are better.