spoke (he says) of the prerogative of the Crown, and asked us if it
had lately been extended beyond the bounds prescribed to it by law.
Sir, I will not say that there have been lately any attempts to extend
it beyond the bounds prescribed by law; but I will say that these
bounds have been of late so vastly enlarged that there seems to be no
great occasion for any such attempt. What are the many penal laws made
within these forty years, but so many extensions of the prerogative of
the Crown, and as many diminutions of the liberty of the subject? And
whatever the necessity was that brought us into the enacting of such
laws, it was a fatal necessity; it has greatly added to the power of
the Crown, and particular care ought to be taken not to throw any more
weight into that scale." _Parl. Hist._ ix. 463.

Among the modern statutes which have strengthened the hands of the
executive power, we should mention the riot act (1 Geo. I. stat. 2, c.
5), whereby all persons tumultuously assembled to the disturbance of
the public peace, and not dispersing within one hour after
proclamation made by a single magistrate, are made guilty of a capital
felony. I am by no means controverting the expediency of this law;
but, especially when combined with the aid of a military force, it is
surely a compensation for much that may seem to have been thrown into
the popular scale.

[406] 9 Geo. 2, c. 35, sect. 10, 13; _Parl. Hist._ ix. 1229. I quote
this as I find it: but probably the expressions are not quite correct;
for the reasoning is not so.

[407] Coxe's _Walpole_, i. 296; H. Walpole's Works, iv. 476. The
former, however, seems to rest on H. Walpole's verbal communication,
whose want of accuracy, or veracity, or both, is so palpable that no
great stress can be laid on his testimony. I believe, however, that
the fact of George I. and his minister conversing in Latin may be
proved on other authority.

[408] H. Walpole's _Memoirs of the last Ten Years_; Lord Waldegrave's
_Memoirs_. In this well written little book, the character of George
II. in reference to his constitutional position, is thus delicately
drawn: "He has more knowledge of foreign affairs than most of his
ministers, and has good general notions of the constitution, strength,
and interest of this country; but, being past thirty when the Hanover
succession took place, and having since experienced the violence of
party, the injustice of popular clamour, the corruption of
parliaments, and the selfish motives of pretended patriots, it is not
surprising that he should have contracted some prejudices in favour of
those governments where the royal authority is under less restraint.
Yet prudence has so far prevailed over these prejudices, that they
have never influenced his conduct. On the contrary, many laws have
been enacted in favour of public liberty; and in the course of a long
reign there has not been a single attempt to extend the prerogative of
the Crown beyond its proper limits. He has as much personal bravery as
any man, though his political courage seems somewhat problematical;
however, it is a fault on the right side; for had he always been as
firm and undaunted in the closet as he showed himself at Oudenarde and
Dettingen, he might not have proved quite so good a king in this
limited monarchy,"--P. 5. This was written in 1757.

The real tories, those I mean who adhered to the principles expressed
by that name, thought the constitutional prerogative of the Crown
impaired by a conspiracy of its servants. Their notions are expressed
in some "Letters on the English Nation," published about 1756, under
the name of Battista Angeloni, by Dr. Shebbeare, once a jacobite, and
still so bitter an enemy of William III. and George I. that he stood
in the pillory, not long afterwards, for a libel on those princes
(among other things); on which Horace Walpole justly animadverts, as a
stretch of the law by Lord Mansfield destructive of all historical
truth. _Memoirs of the last Ten Years_, ii. 328. Shebbeare, however,
was afterwards pensioned, along with Johnson, by Lord Bute, and at the
time when these letters were written, may possibly have been in the
Leicester House interest. Certain it is, that the self-interested
cabal who belonged to that little court endeavoured too successfully
to persuade its chief and her son that the Crown was reduced to a
state of vassalage, from which it ought to be emancipated; and the
government of the Duke of Newcastle, as strong in party connection as
it was contemptible in ability and reputation, afforded them no bad
argument. The consequences are well known, but do not enter into the
plan of this work.

[409] Many proofs of this occur in the correspondence published by Mr.
Coxe. Thus Horace Walpole writing to his brother Sir Robert, in 1739,
says: "King William had no other object but the liberties and balance
of Europe; but, good God! what is the case now? I will tell you in
confidence; little, low, partial, electoral notions are able to stop
or confound the best conducted project for the public." _Memoirs of
Sir R. Walpole_, iii. 535. The Walpoles had, some years before,
disapproved the policy of Lord Townshend on account of his favouring
the king's Hanoverian prejudices. _Id._ i. 334. And, in the preceding
reign, both these whig leaders were extremely disgusted with the
Germanism and continual absence of George I. (_Id._ ii. 116, 297),
though first Townshend, and afterwards Walpole, according to the
necessity, or supposed necessity, which controls statesmen (that is,
the fear of losing their places), became in appearance the passive
instruments of royal pleasure.

It is now, however, known that George II. had been induced by Walpole
to come into a scheme, by which Hanover, after his decease, was to be
separated from England. It stands on the indisputable authority of
Speaker Onslow. "A little while before Sir Robert Walpole's fall (and
as a popular act to save himself, for he went very unwillingly out of
his offices and power), he took me one day aside, and said, 'What will
you say, speaker, if this hand of mine shall bring a message from the
king to the House of Commons, declaring his consent to having any of
his family, after his death, to be made, by act of parliament,
incapable of inheriting and enjoying the crown, and possessing the
electoral dominions at the same time?' My answer was, 'Sir, it will be
as a message from heaven.' He replied, 'It will be done.' But it was
not done; and I have good reason to believe, it would have been
opposed, and rejected at that time, because it came from him, and by
the means of those who had always been most clamorous for it; and thus
perhaps the opportunity was lost: when will it come again? It was said
that the prince at that juncture would have consented to it, if he
could have had the credit and popularity of the measure, and that some
of his friends were to have moved it in parliament, but that the
design at St. James's prevented it. Notwithstanding all this, I have
had some thoughts that neither court ever really intended the thing
itself; but that it came on and went off, by a jealousy of each other
in it, and that both were equally pleased that it did so, from an
equal fondness (very natural) for their own native country." _Notes on
Burnet_ (iv. 490, Oxf. edit.). This story has been told before, but
not in such a manner as to preclude doubt of its authenticity.

[410] A bill was brought in for this purpose in 1712, which Swift, in
his _History of the Last Four Years_, who never printed anything with
his name, naturally blames. It miscarried, probably on account of this
provision. _Parl. Hist._ vi. 1141. But the queen, on opening the
session, in April 1713, recommended some new law to check the
licentiousness of the press. _Id._ 1173. Nothing, however, was done in
consequence.

[411] Bolingbroke's letter to the _Examiner_, in 1710, excited so much
attention that it was answered by Lord Cowper, then chancellor, in a
letter to the _Tatler_ (_Somers Tracts_, xiii. 75), where Sir Walter
Scott justly observes, that the fact of two such statesmen becoming
the correspondents of periodical publications shows the influence they
must have acquired over the public mind.

[412] It was resolved, _nem. con._, Feb. 26th, 1729, That it is an
indignity to, and a breach of the privilege of, this house, for any
person to presume to give, in written or printed newspapers, any
account or minutes of the debates, or other proceedings of this house
or of any committee thereof; and that upon discovery of the authors,
etc., this house will proceed against the offenders with the utmost
severity. _Parl. Hist._ viii. 683. There are former resolutions to the
same effect. The speaker having himself brought the subject under
consideration some years afterwards, in 1738, the resolution was
repeated in nearly the same words, but after a debate wherein, though
no one undertook to defend the practice, the danger of impairing the
liberty of the press was more insisted upon than would formerly have
been usual; and Sir Robert Walpole took credit to himself, justly
enough, for respecting it more than his predecessors. _Id._ x. 800;
Coxe's _Walpole_, i. 572. Edward Cave, the well-known editor of the
_Gentleman's Magazine_, and the publisher of another magazine, was
brought to the bar, April 30th, 1747, for publishing the house's
debates; when the former denied that he retained any person in pay to
make the speeches, and after expressing his contrition was discharged
on payment of fees. _Id._ xiv. 57.

[413] Malthus, _Principles of Political Economy_ (1820), p. 279.

[414] Macpherson (or Anderson), _Hist. of Commerce_; Chalmers's
_Estimate of Strength of Great Britain_; Sinclair's _Hist. of
Revenue_, cum multis aliis.

[415] Tindal, apud _Parl. Hist._ xiv. 66. I have read the same in
other books, but know not at present where to search for the passages.
Hogarth's pictures of the election are evidence to the corruption in
his time, so also are some of Smollett's novels. Addison, Swift, and
Pope would not have neglected to lash this vice if it had been glaring
in their age; which shows that the change took place about the time I
have mentioned.

[416] 9 Anne, c. 5. A bill for this purpose had passed the Commons in
1696; the city of London and several other places petitioning against
it. Journals, Nov. 21, etc. The house refused to let some of these
petitions be read; I suppose on the ground that they related to a
matter of general policy. These towns, however, had a very fair
pretext for alleging that they were interested; and in fact a rider
was added to the bill, that any merchant might serve for a place where
he should be himself a voter, on making oath that he was worth £5000.
_Id._ Dec. 19.

[417] 33 G. II. c. 20.

CHAPTER XVII

ON THE CONSTITUTION OF SCOTLAND--INTRODUCTION OF THE FEUDAL SYSTEM

It is not very profitable to enquire into the constitutional
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 era, and greatly similar to those of
Ireland.[418] 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 Norman, 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 civilisation 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.[419]

_Scots parliament._--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.[420] 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
1315.[421] In the ensuing reign of David II., the three estates of the
realm are expressly mentioned as the legislative advisers of the
Crown.[422]

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.[423]
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 voted promiscuously, as
the spiritual and temporal lords in England.

_Power of the aristocracy._--But no distinction between the national
councils of the two kingdoms was more essential than what appears 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.[424] 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.[425] 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 be no reason to infer from
thence that it was not appointed. From the reign of James IV. the
lords of articles are regularly named in the records of every
parliament.[426]

It is said that a Scots parliament, about the middle of the fifteenth
century, consisted of near one hundred and ninety persons.[427] 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 boroughs.[428] 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.[429] 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."[430] This however is an express
recognition of their right, though it might have been set aside by an
irregular exercise of power.

_Royal influence in parliament._--It was a natural result from the
constitution of a Scots parliament, together with the general state of
society in that kingdom, that its efforts were almost uniformly
directed to augment and invigorate the royal authority. Their statutes
afford a remarkable contrast to those of England in the absence of
provisions against the exorbitances of prerogative.[431] Robertson has
observed that the kings of Scotland, from the time at least of James
I., acted upon a steady system of repressing the aristocracy; and
though this has been called too refined a supposition, and attempts
have been made to explain otherwise their conduct, it seems strange to
deny the operation of a motive so natural, and so readily to be
inferred from their measures. The causes so well pointed out by this
historian, and some that might be added; the defensible nature of
great part of the country; the extensive possessions of some powerful
families; the influence of feudal tenure and Celtic clanship; the
hereditary jurisdiction, hardly controlled, even in theory, by the
supreme tribunals of the Crown; the custom of entering into bonds of
association for mutual defence; the frequent minorities of the
reigning princes; the necessary abandonment of any strict regard to
monarchical supremacy, during the struggle for independence against
England; the election of one great nobleman to the Crown and its
devolution upon another; the residence of the two first of the Stuart
name in their own remote domains; the want of any such effective
counterpoise to the aristocracy as the sovereigns of England possessed
in its yeomanry and commercial towns, placed the kings of Scotland in
a situation which neither for their own nor their people's interest
they could be expected to endure. But an impatience of submitting to
the insolent and encroaching temper of their nobles drove James I.
(before whose time no settled scheme of reviving the royal authority
seems to have been conceived), and his two next descendants into some
courses which, though excused or extenuated by the difficulties of
their position, were rather too precipitate and violent, and redounded
at least to their own destruction. The reign of James IV., from his
accession in 1488 to his unhappy death at Flodden in 1513, was the
first of tolerable prosperity; the Crown having by this time obtained
no inconsiderable strength, and the course of law being somewhat more
established, though the aristocracy were abundantly capable of
withstanding any material encroachment upon their privileges.

Though subsidies were, of course, occasionally demanded, yet from the
poverty of the realm, and the extensive domains which the Crown
retained, they were much less frequent than in England, and thus one
principal source of difference was removed; nor do we read of any
opposition in parliament to what the Lords of articles thought fit to
propound. Those who disliked the government stood aloof from such
meetings, where the sovereign was in his vigour, and had sometimes
crushed a leader of faction by a sudden stroke of power; confident
that they could better frustrate the execution of laws than their
enactment, and that questions of right and privilege could never be
tried so advantageously as in the field. Hence it is, as I have
already observed, that we must not look to the statute-book of
Scotland for many limitations of monarchy. Even in one of James II.,
which enacts that none of the royal domains shall for the future be
alienated, and that the king and his successors shall be sworn to
observe this law, it may be conjectured that a provision rather
derogatory in semblance to the king's dignity was introduced by his
own suggestion, as an additional security against the importunate
solicitations of the aristocracy whom the statute was designed to
restrain.[432] The next reign was the struggle of an imprudent, and,
as far as his means extended, despotic prince, against the spirit of
his subjects. In a parliament of 1487, we find almost a solitary
instance of a statute that appears to have been directed against some
illegal proceedings of the government. It is provided that all civil
suits shall be determined by the ordinary judges, and not before the
king's council.[433] James III. was killed the next year in attempting
to oppose an extensive combination of the rebellious nobility. In the
reign of James IV., the influence of the aristocracy shows itself
rather more in legislation; and two peculiarities deserve notice, in
which, as it is said, the legislative authority of a Scots parliament
was far higher than that of our own. They were not only often
consulted about peace or war, which in some instances was the case in
England, but, at least in the sixteenth century, their approbation
seems to have been necessary.[434] This, though not consonant to our
modern notions, was certainly no more than the genius of the feudal
system and the character of a great deliberative council might lead us
to expect; but a more remarkable singularity was, that what had been
propounded by the lords of articles, and received the ratification of
the three estates, did not require the king's consent to give it
complete validity. Such at least is said to have been the Scots
constitution in the time of James VI.; though we may demand very full
proof of such an anomaly, which the language of their statutes,
expressive of the king's enacting power, by no means leads us to
infer.[435]

_Judicial power._--The kings of Scotland had always their aula or
curia regis, claiming a supreme judicial authority, at least in some
causes, though it might be difficult to determine its boundaries, or
how far they were respected. They had also bailiffs to administer
justice in their own domains, and sheriffs in every county for the
same purpose, wherever grants of regality did not exclude their
jurisdiction. These regalities were hereditary and territorial; they
extended to the infliction of capital punishment; the lord possessing
them might reclaim or re-pledge (as it was called, from the surety he
was obliged to give that he would himself do justice) any one of his
vassals who was accused before another jurisdiction. The barons, who
also had cognisance of most capital offences, and the royal boroughs,
enjoyed the same privilege. An appeal lay, in civil suits, from the
baron's court to that of the sheriff or lord of regality, and
ultimately to the parliament, or to a certain number of persons to
whom it delegated its authority.[436]

_Court of Session._--This appellant jurisdiction of parliament, as
well as that of the king's privy council, which was original, came, by
a series of provisions from the year 1425 to 1532, into the hands of a
supreme tribunal thus gradually constituted in its present form, the
court of session. It was composed of fifteen judges, half of whom,
besides the president, were at first churchmen, and soon established
an entire subordination of the local courts in all civil suits. But it
possessed no competence in criminal proceedings; the hereditary
jurisdictions remained unaffected for some ages, though the king's two
justiciaries, replaced afterwards by a court of six judges, went their
circuits even through those counties wherein charters of regality had
been granted. Two remarkable innovations seem to have accompanied, or
to have been not far removed in time from, the first formation of the
court of session; the discontinuance of juries in civil causes, and
the adoption of so many principles from the Roman law as have given
the jurisprudence of Scotland a very different character from our
own.[437]

In the reign of James V. it might appear probable that by the
influence of laws favourable to public order, better enforced through
the council and court of session than before, by the final subjugation
of the house of Douglas and of the Earls of Ross in the North, and
some slight increase of wealth in the towns, conspiring with the
general tendency of the sixteenth century throughout Europe, the
feudal spirit would be weakened and kept under in Scotland or display
itself only in a parliamentary resistance to what might become in its
turn dangerous, the encroachments of arbitrary power. But immediately
afterwards a new and unexpected impulse was given; religious zeal, so
blended with the ancient spirit of aristocratic independence that the
two motives are scarcely distinguishable, swept before it in the first
whirlwind almost every vestige of the royal sovereignty. The Roman
catholic religion was abolished with the forms indeed of a parliament,
but of a parliament not summoned by the Crown, and by acts that
obtained not its assent. The Scots church had been immensely rich;
its riches had led, as everywhere else, to neglect of duties and
dissoluteness of life; and these vices had met with their usual
punishment in the people's hatred.[438] The reformed doctrines gained
a more rapid and general ascendancy than in England, and were
accompanied with a more strenuous and uncompromising enthusiasm. It is
probable that no sovereign retaining a strong attachment to the
ancient creed would long have been permitted to reign; and Mary is
entitled to every presumption, in the great controversy that belongs
to her name, that can reasonably be founded on this admission. But,
without deviating into that long and intricate discussion, it may be
given as the probable result of fair inquiry, that to impeach the
characters of most of her adversaries would be a far easier task than
to exonerate her own.[439]

_Power of the presbyterian clergy._--The history of Scotland from the
reformation assumes a character, not only unlike that of preceding
times, but to which there is no parallel in modern ages. It became a
contest, not between the Crown and the feudal aristocracy as before,
nor between the assertors of prerogative and of privilege, as in
England, nor between the possessors of established power and those who
deemed themselves oppressed by it, as is the usual source of civil
discord, but between the temporal and spiritual authorities, the Crown
and the church; that in general supported by the legislature, this
sustained by the voice of the people. Nothing of this kind, at least
in anything like so great a degree, has occurred in other protestant
countries; the Anglican church being, in its original constitution,
bound up with the state as one of its component parts, but subordinate
to the whole; and the ecclesiastical order in the kingdoms and
commonwealths of the continent being either destitute of temporal
authority, or at least subject to the civil magistrate's supremacy.

Knox, the founder of the Scots' reformation, and those who concurred
with him, both adhered to the theological system of Calvin, and to the
scheme of polity he had introduced at Geneva, with such modifications
as became necessary from the greater scale on which it was to be
practised. Each parish had its minister, lay-elder, and deacon, who
held their kirk-session for spiritual jurisdiction and other purposes;
each ecclesiastical province its synod of ministers and delegated
elders presided over by a superintendent; but the supreme power
resided in the general assembly of the Scots' church, constituted of
all ministers of parishes, with an admixture of delegated laymen, to
which appeals from inferior judicatories lay, and by whose
determinations or canons the whole were bound. The superintendents had
such a degree of episcopal authority as seems implied in their name,
but concurrently with the parochial ministers, and in subordination to
the general assembly; the number of these was designed to be ten, but
only five were appointed.[440] This form of church polity was set up
in 1560; but according to the irregular state of things at that time
in Scotland, though fully admitted and acted upon, it had only the
authority of the church, with no confirmation of parliament; which
seems to have been the first step of the former towards the
independency it came to usurp. Meanwhile it was agreed that the Roman
catholic prelates, including the regulars, should enjoy two-thirds of
their revenues, as well as their rank and seats in parliament; the
remaining third being given to the Crown, out of which stipends should
be allotted to the protestant clergy. Whatever violence may be imputed
to the authors of the Scots' reformation, this arrangement seems to
display a moderation which we should vainly seek in our own. The new
church was, however, but inadequately provided for; and perhaps we may
attribute some part of her subsequent contumacy and encroachment on
the state to the exasperation occasioned by the latter's parsimony, or
rather rapaciousness, in the distribution of ecclesiastical
estates.[441]

It was doubtless intended by the planners of a presbyterian model,
that the bishoprics should be extinguished by the death of the
possessors, and their revenues be converted, partly to the maintenance
of the clergy, partly to other public interests. But it suited better
the men in power to keep up the old appellations for their own
benefit. As the catholic prelates died away, they were replaced by
protestant ministers, on private compacts to alienate the principal
part of the revenues to those through whom they were appointed. After
some hesitation, a convention of the church, in 1572, agreed to
recognise these bishops, until the king's majority and a final
settlement by the legislature, and to permit them a certain portion of
jurisdiction, though not greater than that of the superintendent, and
equally subordinate to the general assembly. They were not
consecrated; nor would the slightest distinction of order have been
endured by the church. Yet even this moderated episcopacy gave offence
to ardent men, led by Andrew Melville, the second name to Knox in the
ecclesiastical history of Scotland; and, notwithstanding their
engagement to leave things as they were till the determination of
parliament, the general assembly soon began to restrain the bishops by
their own authority, and finally to enjoin them, under pain of
excommunication, to lay down an office which they voted to be
destitute of warrant from the word of God, and injurious to the
church. Some of the bishops submitted to this decree; others, as might
be expected, stood out in defence of their dignity, and were
supported both by the king and by all who conceived that the supreme
power of Scotland, in establishing and endowing the church, had not
constituted a society independent of the commonwealth. A series of
acts in 1584, at a time when the court had obtained a temporary
ascendant, seemed to restore the episcopal government in almost its
pristine lustre. But the popular voice was loud against episcopacy;
the prelates were discredited by their simoniacal alienations of
church-revenues, and by their connection with the court; the king was
tempted to annex most of their lands to the Crown by an act of
parliament in 1587; Adamson, Archbishop of St. Andrews, who had led
the episcopal party, was driven to a humiliating retractation before
the general assembly; and, in 1592, the sanction of the legislature
was for the first time obtained to the whole scheme of presbyterian
polity; and the laws of 1584 were for the most part abrogated.

The school of Knox, if so we may call the early presbyterian ministers
of Scotland, was full of men breathing their master's spirit; acute in
disputation, eloquent in discourse, learned beyond what their
successors have been, and intensely zealous in the cause of
reformation. They wielded the people at will; who, except in the
Highlands, threw off almost with unanimity the old religion, and took
alarm at the slightest indication of its revival. Their system of
local and general assemblies infused, together with the forms of a
republic, its energy and impatience of exterior control, combined with
the concentration and unity of purpose that belongs to the most
vigorous government. It must be confessed that the unsettled state of
the kingdom, the faults and weakness of the regents Lennox and Morton,
the inauspicious beginning of James's personal administration under
the sway of unworthy favourites, the real perils of the reformed
church, gave no slight pretext for the clergy's interference with
civil policy. Not merely in their representative assemblies, but in
the pulpits, they perpetually remonstrated, in no guarded language,
against the misgovernment of the court, and even the personal
indiscretions of the king. This they pretended to claim as a privilege
beyond the restraint of law. Andrew Melville, second only to Knox
among the heroes of the presbyterian church, having been summoned
before the council in 1584, to give an account of some seditious
language alleged to have been used by him in the pulpit, declined its
jurisdiction, on the ground that he was only responsible, in the first
instance, to his presbytery for words so spoken, of which the king and
council could not judge without violating the immunities of the
church. Precedents for such an immunity it would not have been
difficult to find; but they must have been sought in the archives of
the enemy. It was rather early for the new republic to emulate the
despotism she had overthrown. Such, however, is the uniformity with
which the same passions operate on bodies of men in similar
circumstances; and so greedily do those, whose birth has placed them
far beneath the possession of power, intoxicate themselves with its
unaccustomed enjoyments. It has been urged in defence of Melville,
that he only denied the competence of a secular tribunal in the first
instance; and that, after the ecclesiastical forum had pronounced on
the spiritual offence, it was not disputed that the civil magistrate
might vindicate his own authority.[442] But not to mention that
Melville's claim, as I understand it, was to be judged by his
presbytery in the first instance, and ultimately by the general
assembly, from which, according to the presbyterian theory, no appeal
lay to a civil court; it is manifest that the government would have
come to a very disadvantageous conflict with a man, to whose defence
the ecclesiastical judicature had already pledged itself. For in the
temper of those times it was easy to foresee the determination of a
synod or presbytery.

James however and his counsellors were not so feeble as to endure this
open renewal of those extravagant pretensions which Rome had taught
her priesthood to assert. Melville fled to England; and a parliament
that met the same year sustained the supremacy of the civil power with
that violence and dangerous latitude of expression so frequent in the
Scots' statute-book. It was made treason to decline the jurisdiction
of the king or council in any matter, to seek the diminution of the
power of any of the three estates of parliament, which struck at all
that had been done against episcopacy, to utter, or to conceal, when
heard from others in sermons or familiar discourse, any false or
slanderous speeches to the reproach of the king, his council, or their
proceedings, or to the dishonour of his parents and progenitors, or to
meddle in the affairs of state. It was forbidden to treat or consult
on any matter of state, civil or ecclesiastical, without the king's
express command; thus rendering the general assembly for its chief
purposes, if not its existence, altogether dependent on the Crown.
Such laws not only annihilated the pretended immunities of the
church, but went very far to set up that tyranny, which the Stuarts
afterwards exercised in Scotland till their expulsion. These were in
part repealed, so far as affected the church, in 1592; but the Crown
retained the exclusive right of convening its general assembly, to
which the presbyterian hierarchy still gives but an evasive and
reluctant obedience.[443]

These bold demagogues were not long in availing themselves of the
advantage which they had obtained in the parliament of 1592, and
through the troubled state of the realm. They began again to
intermeddle with public affairs, the administration of which was
sufficiently open to censure. This licence brought on a new crisis in
1596. Black, one of the ministers of St. Andrews, inveighing against
the government from the pulpit, painted the king and queen, as well as
their council, in the darkest colours, as dissembling enemies to
religion. James, incensed at this attack, caused him to be summoned
before the privy council. The clergy decided to make common cause with
the accused. The council of the church, a standing committee lately
appointed by the general assembly, enjoined Black to decline the
jurisdiction. The king by proclamation directed the members of this
council to retire to their several parishes. They resolved, instead of
submitting, that since they were convened by the warrant of Christ, in
a most needful and dangerous time, to see unto the good of the church,
they should obey God rather than man. The king offered to stop the
proceedings, if they would but declare that they did not decline the
civil jurisdiction absolutely, but only in the particular case, as
being one of slander, and consequently of ecclesiastical competence.
For Black had asserted before the council, that speeches delivered in
the pulpits, although alleged to be treasonable, could not be judged
by the king, until the church had first taken cognisance thereof. But
these ecclesiastics, in the full spirit of the thirteenth century,
determined by a majority not to recede from their plea. Their contest
with the court soon excited the populace of Edinburgh, and gave rise
to a tumult, which, whether dangerous or not to the king, was what no
government could pass over without utter loss of authority.

It was in church assemblies alone that James found opposition. His
parliament, as had invariably been the case in Scotland, went readily
into all that was proposed to them; nor can we doubt that the gentry
must for the most part have revolted from these insolent usurpations
of the ecclesiastical order. It was ordained in parliament, that every
minister should declare his submission to the king's jurisdiction in
all matters civil and criminal; that no ecclesiastical judicatory
should meet without the king's consent, and that a magistrate might
commit to prison any minister reflecting in his sermons on the king's
conduct. He had next recourse to an instrument of power more
successful frequently than intimidation, and generally successful in
conjunction with it; gaining over the members of the general assembly,
some by promises, some by exciting jealousies, till they surrendered
no small portion of what had passed for the privileges of the church.
The Crown obtained by their concession, which then seemed almost
necessary to confirm what the legislature had enacted, the right of
convoking assemblies, and of nominating ministers in the principal
towns.

_Establishment of episcopacy._--James followed up this victory by a
still more important blow. It was enacted that fifty-one ministers, on
being nominated by the king to titular bishoprics and other prelacies,
might sit in parliament as representatives of the church. This seemed
justly alarming to the zealots of party; nor could the general
assembly be brought to acquiesce without such very considerable
restrictions upon these suspicious commissioners, by which name they
prevailed to have them called, as might in some measure afford
security against the revival of that episcopal domination, towards
which the endeavours of the Crown were plainly directed. But the king
paid little regard to these regulations; and thus the name and
parliamentary station of bishops were restored in Scotland after only
six years from their abolition.[444]

A king like James, not less conceited of his wisdom than full of the
dignity of his station, could not avoid contracting that insuperable
aversion to the Scottish presbytery, which he expressed in his
_Basilicon Doron_, before his accession to the English throne, and
more vehemently on all occasions afterwards. He found a very different
race of churchmen, well trained in the supple school of courtly
conformity, and emulous flatterers both of his power and his wisdom.
The ministers of Edinburgh had been used to pray that God would turn
his heart: Whitgift, at the conference of Hampton Court, falling on
his knees, exclaimed, that he doubted not his majesty spoke by the
special grace of God. It was impossible that he should not redouble
his endeavours to introduce so convenient a system of ecclesiastical
government into his native kingdom. He began, accordingly, to prevent
the meetings of the general assembly by continued prorogations. Some
hardy presbyterians ventured to assemble of their own authority; which
the lawyers construed into treason. The bishops were restored by
parliament, in 1606, to a part of their revenues; the act annexing
these to the Crown being repealed. They were appointed by an
ecclesiastical convention, more subservient to the Crown than
formerly, to be perpetual moderators of provincial synods. The clergy
still gave way with reluctance; but the Crown had an irresistible
ascendancy in parliament; and in 1610 the episcopal system was
thoroughly established. The powers of ordination, as well as
jurisdiction, were solely vested in the prelates; a court of high
commission was created on the English model; and, though the general
assembly of the church still continued, it was merely as a shadow, and
almost mockery, of its original importance. The bishops now repaired
to England for consecration; a ceremony deemed essential in the new
school that now predominated in the Anglican church; and this gave a
final blow to the polity in which the Scottish reformation had been
founded.[445] With far more questionable prudence, James, some years
afterwards, forced upon the people of Scotland what were called the
five articles of Perth, reluctantly adopted by a general assembly held
there in 1617. These were matters of ceremony, such as the posture of
kneeling in the eucharist, the rite of confirmation, and the
observance of certain holidays; but enough to alarm a nation
fanatically abhorrent of every approximation to the Roman worship, and
already incensed by what they deemed the corruption and degradation of
their church.[446]

That church, if indeed it preserved its identity, was wholly changed
in character; and became as much distinguished in its episcopal form
by servility and corruption as during its presbyterian democracy by
faction and turbulence. The bishops at its head, many of them abhorred
by their own countrymen as apostates and despised for their vices,
looked for protection to the sister church of England in its pride and
triumph. It had long been the favourite project of the court, as it
naturally was of the Anglican prelates, to assimilate in all respects
the two establishments. That of Scotland still wanted one essential
characteristic, a regular liturgy. But in preparing what was called
the service book, the English model was not closely followed; the
variations having all a tendency towards the Romish worship. It is far
more probable that Laud intended these to prepare the way for a
similar change in England, than that, as some have surmised, the
Scottish bishops, from a notion of independence, chose thus to
distinguish their own ritual. What were the consequences of this
unhappy innovation, attempted with that ignorance of mankind which
kings and priests, when left to their own guidance, usually display,
it is here needless to mention. In its ultimate results, it preserved
the liberties and overthrew the monarchy of England. In its more
immediate effects, it gave rise to the national covenant of Scotland;
a solemn pledge of unity and perseverance in a great public cause,
long since devised when the Spanish armada threatened the liberties
and religion of all Britain, but now directed against the domestic
enemies of both. The episcopal government had no friends, even among
those who served the king. To him it was dear by the sincerest
conviction, and by its connection with absolute power, still more
close and direct than in England. But he had reduced himself to a
condition where it was necessary to sacrifice his authority in the
smaller kingdom, if he would hope to preserve it in the greater; and
in this view he consented, in the parliament of 1641, to restore the
presbyterian discipline of the Scottish church; an offence against his
conscience (for such his prejudices led him to consider it) which he
deeply afterwards repented, when he discovered how absolutely it had
failed of serving his interests.

_Innovations of Charles I._--In the great struggle with Charles
against episcopacy, the encroachments of arbitrary rule, for the sake
of which, in a great measure, he valued that form of church polity,
were not overlooked; and the parliament of 1641 procured some
essential improvements in the civil constitution of Scotland.
Triennial sessions of the legislature, and other salutary
reformations, were borrowed from their friends and coadjutors in
England. But what was still more important, was the abolition of that
destructive control over the legislature, which the Crown had obtained
through the lords of articles. These had doubtless been originally
nominated by the several estates in parliament, solely to expedite the
management of business, and relieve the entire body from attention to
it. But, as early as 1561, we find a practice established, that the
spiritual lords should choose the temporal, generally eight in
number, who were to sit on this committee, and conversely; the
burgesses still electing their own. To these it became usual to add
some of the officers of state; and in 1617 it was established that
eight of them should be on the list. Charles procured, without
authority of parliament, a further innovation in 1633. The bishops
chose eight peers, the peers eight bishops; and these appointed
sixteen commissioners of shires and boroughs. Thus the whole power
devolved upon the bishops, the slaves and sycophants of the Crown. The
parliament itself met only on two days, the first and last of their
pretended session, the one time in order to choose the lords of
articles, the other, to ratify what they proposed.[447] So monstrous
an anomaly could not long subsist in a high-spirited nation. This
improvident assumption of power by low-born and odious men
precipitated their downfall, and made the destruction of the hierarchy
appear the necessary guarantee for parliamentary independence, and the
ascendant of the aristocracy. But, lest the court might, in some other
form, regain this preliminary or initiative voice in legislation,
which the experience of many governments has shown to be the surest
method of keeping supreme authority in their hands, it was enacted in
1641, that each estate might choose lords of articles or not, at its
discretion; but that all propositions should in the first instance be
submitted to the whole parliament, by whom such only as should be
thought fitting might be referred to the committee of articles for
consideration.

_Arbitrary government._--This parliament, however, neglected to
abolish one of the most odious engines that tyranny ever devised
against public virtue, the Scots law of treason. It had been enacted
by a statute of James I. in 1424, that all leasing-makers, and tellers
of what might engender discord between the king and his people, should
forfeit life and goods.[448] This act was renewed under James II. It
was aimed at the factious aristocracy, who perpetually excited the
people by invidious reproaches against the king's administration. But
in 1584, a new antagonist to the Crown having appeared in the
presbyterian pulpits, it was determined to silence opposition by
giving the statute of leasing-making, as it was denominated, a more
sweeping operation. Its penalties were accordingly extended to such as
should "utter untrue or slanderous speeches, to the disdain, reproach,
and contempt of his highness, his parents and progenitors, or should
meddle in the affairs of his highness or his estate." The "hearers and
not reporters thereof" were subjected to the same punishment. It may
be remarked that these Scots statutes are worded with a latitude never
found in England, even in the worst times of Henry VIII. Lord
Balmerino, who had opposed the court in the parliament of 1633,
retained in his possession a copy of an apology intended to have been
presented by himself and other peers in their exculpation, but from
which they had desisted, in apprehension of the king's displeasure.
This was obtained clandestinely, and in breach of confidence, by some
of his enemies; and he was indicted on the statute of leasing-making,
as having concealed a slander against his majesty's government. A jury
was returned with gross partiality; yet so outrageous was the
attempted violation of justice that Balmerino was only convicted by a
majority of eight against seven. For in Scots juries a simple majority
was sufficient, as it is still in all cases except treason. It was not
thought expedient to carry this sentence into execution; but the
kingdom could never pardon its government so infamous a stretch of
power.[449] The statute itself however seems not to have shared the
same odium; we do not find any effort made for its repeal; and the
ruling party in 1641, unfortunately, did not scruple to make use of
its sanguinary provisions against their own adversaries.[450]

The conviction of Balmerino is hardly more repugnant to justice than
some other cases in the long reign of James VI. Eight years after the
execution of the Earl of Gowrie and his brother, one Sprot, a notary,
having indiscreetly mentioned that he was in possession of letters,
written by a person since dead, which evinced his participation in
that mysterious conspiracy, was put to death for concealing them.[451]
Thomas Ross suffered, in 1618, the punishment of treason for
publishing at Oxford a blasphemous libel, as the indictment calls it,
against the Scots nation.[452] I know not what he could have said
worse than what their sentence against him enabled others to say,
that, amidst a great vaunt of Christianity and civilisation, they took
away men's lives by such statutes, and such constructions of them, as
could only be paralleled in the annals of the worst tyrants. By an act
of 1584, the privy council were empowered to examine an accused party
on oath; and, if he declined to answer any question, it was held
denial of their jurisdiction, and amounted to a conviction of treason.
This was experienced by two jesuits, Crighton and Ogilvy in 1610 and
1615, the latter of whom was executed.[453] One of the statutes upon
which he was indicted contained the singular absurdity of "annulling
and rescinding everything done, or hereafter to be done, in prejudice
of the royal prerogative, in any time bygone or to come."

_Civil war._--It was perhaps impossible that Scotland should remain
indifferent in the great quarrel of the sister kingdom. But having set
her heart upon two things incompatible in themselves from the outset,
according to the circumstances of England, and both of them ultimately
impracticable, the continuance of Charles on the throne and the
establishment of a presbyterian church, she fell into a long course of
disaster and ignominy, till she held the name of a free constitution
at the will of a conqueror. Of the three most conspicuous among her
nobility in this period, each died by the hand of the executioner; but
the resemblance is in nothing besides; and the characters of Hamilton,
Montrose, and Argyle are not less contrasted than the factions of
which they were the leaders. Humbled and broken down, the people
looked to the re-establishment of Charles II. on the throne of his
fathers, though brought about by the sternest minister of Cromwell's
tyranny, not only as the augury of prosperous days, but as the
obliteration of public dishonour.

_Tyrannical government of Charles II._--They were miserably deceived
in every hope. Thirty infamous years consummated the misfortunes and
degradation of Scotland. Her factions have always been more
sanguinary, her rulers more oppressive, her sense of justice and
humanity less active, or at least shown less in public acts, than can
be charged against England. The parliament of 1661, influenced by
wicked statesmen and lawyers, left far behind the Royalist Commons of
London; and rescinded as null the entire acts of 1641, on the absurd
pretext that the late king had passed them through force. The Scots'
constitution fell back at once to a state little better than
despotism. The lords of articles were revived, according to the same
form of election as under Charles I. A few years afterwards the Duke
of Lauderdale obtained the consent of parliament to an act, that
whatever the king and council should order respecting all
ecclesiastical matters, meetings, and persons, should have the force
of law. A militia, or rather army, of 22,000 men, was established, to
march wherever the council should appoint, and the honour and safety
of the king require. Fines to the amount of £85,000, an enormous sum
in that kingdom, were imposed on the covenanters. The Earl of Argyle
brought to the scaffold by an outrageous sentence, his son sentenced
to lose his life on such a construction of the ancient law against
leasing-making as no man engaged in political affairs could be sure to
escape, the worst system of constitutional laws administered by the
worst men, left no alternative but implicit obedience or desperate
rebellion.

The presbyterian church of course fell by the act, which annulled the
parliament wherein it had been established. Episcopacy revived, but
not as it had once existed in Scotland; the jurisdiction of the
bishops became unlimited; the general assemblies, so dear to the
people, were laid aside.[454] The new prelates were odious as
apostates, and soon gained a still more indelible title to popular
hatred as persecutors. Three hundred and fifty of the presbyterian
clergy (more than one-third of the whole number) were ejected from
their benefices.[455] Then began the preaching in conventicles, and
the secession of the excited and exasperated multitude from the
churches; and then ensued the ecclesiastical commission with its
inquisitorial vigilance, its fines and corporal penalties, and the
free quarters of the soldiery, with all that can be implied in that
word. Then came the fruitless insurrection, and the fanatical
assurance of success, and the certain discomfiture by a disciplined
force, and the consternation of defeat, and the unbounded cruelties of
the conqueror. And this went on with perpetual aggravation, or very
rare intervals, through the reign of Charles; the tyranny of
Lauderdale far exceeding that of Middleton, as his own fell short of
the Duke of York's. No part, I believe, of modern history for so long
a period, can be compared for the wickedness of government to the
Scots administration of this reign. In proportion as the laws grew
more rigorous against the presbyterian worship, its followers evinced
more steadiness; driven from their conventicles, they resorted,
sometimes by night, to the fields, the woods, the mountains; and, as
the troops were continually employed to disperse them, they came with
arms which they were often obliged to use; and thus the hour, the
place, the circumstance, deepened every impression, and bound up their
faith with indissoluble associations. The same causes produced a dark
fanaticism, which believed the revenge of its own wrongs to be the
execution of divine justice; and, as this acquired new strength by
every successive aggravation of tyranny, it is literally possible that
a continuance of the Stuart government might have led to something
very like an extermination of the people in the western counties of
Scotland. In the year 1676 letters of intercommuning were published; a
writ forbidding all persons to hold intercourse with the parties put
under its ban, or to furnish them with any necessary of life on pain
of being reputed guilty of the same crime. But seven years afterwards,
when the Cameronian rebellion had assumed a dangerous character, a
proclamation was issued against all who had ever harboured or communed
with rebels; courts were appointed to be held for their trial as
traitors, which were to continue for the next three years. Those who
accepted the test, a declaration of passive obedience repugnant to the
conscience of the presbyterians, and imposed for that reason in 1681,
were excused from these penalties; and in this way they were eluded.

The enormities of this detestable government are far too numerous,
even in species, to be enumerated in this slight sketch; and of course
most instances of cruelty have not been recorded. The privy council
was accustomed to extort confessions by torture; that grim divan of
bishops, lawyers, and peers sucking in the groans of each undaunted
enthusiast, in hope that some imperfect avowal might lead to the
sacrifice of other victims, or at least warrant the execution of the
present. It is said that the Duke of York, whose conduct in Scotland
tends to efface those sentiments of pity and respect which other parts
of his life might excite, used to assist himself on these
occasions.[456] One Mitchell having been induced, by a promise that
his life should be spared, to confess an attempt to assassinate Sharp
the primate, was brought to trial some years afterwards; when four
lords of the council deposed on oath that no such assurance had been
given him; and Sharp insisted upon his execution. The vengeance
ultimately taken on this infamous apostate and persecutor, though
doubtless in violation of what is justly reckoned an universal rule of
morality, ought at least not to weaken our abhorrence of the man
himself.

The test above mentioned was imposed by parliament in 1681, and
contained, among other things, an engagement never to attempt any
alteration of government in church or state. The Earl of Argyle, son
of him who had perished by an unjust sentence, and himself once before
attainted by another, though at that time restored by the king, was
still destined to illustrate the house of Campbell by a second
martyrdom. He refused to subscribe the test without the reasonable
explanation that he would not bind himself from attempting, in his
station, any improvement in church or state. This exposed him to an
accusation of leasing-making (the old mystery of iniquity in Scots
law) and of treason. He was found guilty through the astonishing
audacity of the Crown lawyers and servility of the judges and jury. It
is not perhaps certain that his immediate execution would have ensued;
but no man ever trusted securely to the mercies of the Stuarts, and
Argyle escaped in disguise by the aid of his daughter-in-law. The
council proposed that this lady should be publicly whipped; but there
was an excess of atrocity in the Scots on the court side, which no
Englishman could reach; and the Duke of York felt as a gentleman upon
such a suggestion.[457] The Earl of Argyle was brought to the scaffold
a few years afterwards on the old sentence; but after his unfortunate
rebellion, which of course would have legally justified his execution.

The Cameronians, a party rendered wild and fanatical through
intolerable oppression, published a declaration, wherein, after
renouncing their allegiance to Charles, and expressing their
abhorrence of murder on the score of religion, they announced their
determination of retaliating, according to their power, on such privy
counsellors, officers in command, or others, as should continue to
seek their blood. The fate of Sharp was thus before the eyes of all
who emulated his crimes; and in terror the council ordered that
whoever refused to disown this declaration on oath, should be put to
death in the presence of two witnesses. Every officer, every soldier,
was thus entrusted with the privilege of massacre; the unarmed, the
women and children, fell indiscriminately by the sword: and besides
the distinct testimonies that remain of atrocious cruelty, there
exists in that kingdom a deep traditional horror, the record, as it
were, of that confused mass of crime and misery which has left no
other memorial.[458]

_Reign of James VII._--A parliament summoned by James on his
accession, with an intimation from the throne that they were assembled
not only to express their own duty, but to set an example of
compliance to England, gave, without the least opposition, the
required proofs of loyalty. They acknowledged the king's absolute
power, declared their abhorrence of any principle derogatory to it,
professed an unreserved obedience in all cases, bestowed a large
revenue for life. They enhanced the penalties against sectaries; a
refusal to give evidence against traitors or other delinquents was
made equivalent to a conviction of the same offence; it was capital to
preach even in houses, or to hear preachers in the fields. The
persecution raged with still greater fury in the first part of this
reign. But the same repugnance of the episcopal party to the king's
schemes for his own religion, which led to his remarkable change of
policy in England, produced similar effects in Scotland. He had
attempted to obtain from parliament a repeal of the penal laws and the
test; but, though an extreme servility or a general intimidation made
the nobility acquiesce in his propositions, and two of the bishops
were gained over, yet the commissioners of shires and boroughs, who
voting promiscuously in the house, had, when united, a majority over
the peers, so firmly resisted every encroachment of popery, that it
was necessary to try other methods than those of parliamentary
enactment. After the dissolution the dispensing power was brought into
play; the privy council forbade the execution of the laws against the
catholics; several of that religion were introduced to its board; the
royal boroughs were deprived of their privileges, the king assuming
the nomination of their chief magistrates, so as to throw the
elections wholly into the hands of the Crown. A declaration of
indulgence, emanating from the king's absolute prerogative, relaxed
the severity of the laws against presbyterian conventicles, and,
annulling the oath of supremacy and the test of 1681, substituted for
them an oath of allegiance, acknowledging his power to be unlimited.
He promised at the same time that "he would use no force nor
invincible necessity against any man on account of his persuasion, or
the protestant religion, nor would deprive the possessors of lands
formerly belonging to the church." A very intelligible hint that the
protestant religion was to exist only by this gracious sufferance.

_Revolution and establishment of presbytery._--The oppressed
presbyterians gained some respite by this indulgence, though instances
of executions under the sanguinary statutes of the late reign are
found as late as the beginning of 1688. But the memory of their
sufferings was indelible; they accepted, but with no gratitude, the
insidious mercy of a tyrant they abhorred. The Scots' conspiracy with
the Prince of Orange went forward simultaneously with that of England;
it included several of the council, from personal jealousy, dislike of
the king's proceedings as to religion, or anxiety to secure an
indemnity they had little deserved in the approaching crisis. The
people rose in different parts; the Scots' nobility and gentry in
London presented an address to the Prince of Orange, requesting him to
call a convention of the estates; and this irregular summons was
universally obeyed.

The king was not without friends in this convention; but the whigs had
from every cause a decided preponderance. England had led the way;
William was on his throne; the royal government at home was wholly
dissolved; and, after enumerating in fifteen articles the breaches
committed on the constitution, the estates came to a resolution: "That
James VII., being a professed papist, did assume the royal power, and
acted as king, without ever taking the oath required by law, and had,
by the advice of evil and wicked counsellors, invaded the fundamental
constitution of the kingdom, and altered it from a legal limited
monarchy to an arbitrary despotic power, and hath exerted the same to
the subversion of the protestant religion, and the violation of the
laws and liberties of the kingdom, whereby he hath forfaulted
(forfeited) his right to the Crown, and the throne has become vacant."
It was evident that the English vote of a constructive abdication,
having been partly grounded on the king's flight, could not without
still greater violence be applied to Scotland; and consequently the
bolder denomination of forfeiture was necessarily employed to express
the penalty of his mis-government. There was, in fact, a very striking
difference in the circumstances of the two kingdoms. In the one, there
had been illegal acts and unjustifiable severities; but it was, at
first sight, no very strong case for national resistance, which stood
rather on a calculation of expediency than an instinct of
self-preservation or an impulse of indignant revenge. But in the
other, it had been a tyranny, dark as that of the most barbarous ages;
despotism, which in England was scarcely in blossom, had borne its
bitter and poisonous fruits: no word of slighter import than
forfeiture could be chosen to denote the national rejection of the
Stuart line.

_Reign of William III._--A declaration and claim of rights was drawn
up, as in England, together with the resolution that the crown be
tendered to William and Mary, and descend afterwards in conformity
with the limitations enacted in the sister kingdom. This declaration
excluded papists from the throne, and asserted the illegality of
proclamations to dispense with statutes, of the inflicting capital
punishment without jury, of imprisonment without special cause or
delay of trial, of exacting enormous fines, of nominating the
magistrates in boroughs, and several other violent proceedings in the
two last reigns. These articles the convention challenged as their
undoubted right, against which no declaration nor precedent ought to
operate. They reserved some other important grievances to be redressed
in parliament. Upon this occasion, a noble fire of liberty shone forth
to the honour of Scotland, amidst those scenes of turbulent faction or
servile corruption which the annals of her parliament so perpetually
display. They seemed emulous of English freedom, and proud to place
their own imperfect commonwealth on as firm a basis.

One great alteration in the state of Scotland was almost necessarily
involved in the fall of the Stuarts. Their most conspicuous object had
been the maintenance of the episcopal church; the line was drawn far
more closely than in England; in that church were the court's friends,
out of it were its opponents. Above all, the people were out of it,
and in a revolution brought about by the people, their voice could not
be slighted. It was one of the articles accordingly in the declaration
of rights, that prelacy and precedence in ecclesiastical office were
repugnant to the genius of a nation reformed by presbyters, and an
unsupportable grievance which ought to be abolished. William, there is
reason to believe, had offered to preserve the bishops, in return for
their support in the convention. But this, not more happily for
Scotland than for himself and his successors, they refused to give. No
compromise, or even acknowledged toleration, was practicable in that
country between two exasperated factions; but, if oppression was
necessary, it was at least not on the majority that it ought to fall.
But besides this, there was as clear a case of forfeiture in the
Scots' episcopal church, as in the royal family of Stuart. The main
controversy between the episcopal and presbyterian churches was one of
dry antiquarian criticism, little more interesting than those about
the Roman senate, or the Saxon wittenagemot, nor perhaps more capable
of decisive solution; it was at least one as to which the bulk of
mankind are absolutely incapable of forming a rational judgment for
themselves. But, mingled up as it had always been, and most of all in
Scotland, with faction, with revolution, with power and emolument,
with courage and devotion, and fear, and hate, and revenge, this arid
dispute of pedants drew along with it the most glowing emotions of the
heart, and the question became utterly out of the province of
argument. It was very possible that episcopacy might be of apostolical
institution; but for this institution houses had been burned and
fields laid waste, and the gospel had been preached in wildernesses,
and its ministers had been shot in their prayers, and husbands had
been murdered before their wives, and virgins had been defiled, and
many had died by the executioner, and by massacre, and in
imprisonment, and in exile and slavery, and women had been tied to
stakes on the sea-shore till the tide rose to overflow them, and some
had been tortured and mutilated; it was a religion of the boots and
the thumb-screw, which a good man must be very cool-blooded indeed if
he did not hate and reject from the hands which offered it. For, after
all, it is much more certain that the Supreme Being abhors cruelty and
persecution, than that he has set up bishops to have a superiority
over presbyters.

It was, however, a serious problem at that time, whether the
presbyterian church, so proud and stubborn as she had formerly shown
herself, could be brought under a necessary subordination to the civil
magistrate, and whether the more fanatical part of it, whom Cargill
and Cameron had led on, would fall again into the ranks of social
life. But here experience victoriously confuted these plausible
apprehensions. It was soon perceived that the insanity of fanaticism
subsides of itself, unless purposely heightened by persecution. The
fiercer spirit of the sectaries was allayed by degrees; and, though
vestiges of it may probably still be perceptible by observers, it has
never, in a political sense, led to dangerous effects. The church of
Scotland, in her general assemblies, preserves the forms, and affects
the language, of the sixteenth century; but the Erastianism, against
which she inveighs, secretly controls and paralyses her vaunted
liberties; and she cannot but acknowledge that the supremacy of the
legislature is like the collar of the watch-dog, the price of food and
shelter, and the condition upon which alone a religious society can be
endowed and established by any prudent commonwealth.[459] The
judicious admixture of laymen in these assemblies, and, in a far
greater degree, the perpetual intercourse with England, which has put
an end to everything like sectarian bigotry, and even exclusive
communion, in the higher and middling classes, are the principal
causes of that remarkable moderation which for many years has
characterised the successors of Knox and Melville.

The convention of estates was turned by an act of its own into a
parliament, and continued to sit during the king's reign. This, which
was rather contrary to the spirit of a representative government than
to the Scots constitution, might be justified by the very unquiet
state of the kingdom and the intrigues of the jacobites. Many
excellent statutes were enacted in this parliament, besides the
provisions included in the declaration of rights; twenty-six members
were added to the representation of the counties, the tyrannous acts
of the two last reigns were repealed, the unjust attainders were
reversed, the lords of articles were abolished. After some years, an
act was obtained against wrongous imprisonment, still more effectual
perhaps in some respects than that of the habeas corpus in England.
The prisoner is to be released on bail within twenty-four hours on
application to a judge, unless committed on a capital charge; and in
that case must be brought to trial within sixty days. A judge refusing
to give full effect to the act is declared incapable of public trust.

Notwithstanding these great improvements in the constitution, and the
cessation of religious tyranny, the Scots are not accustomed to look
back on the reign of William with much complacency. The regeneration
was far from perfect; the court of session continued to be corrupt and
partial; severe and illegal proceedings might sometimes be imputed to
the council; and in one lamentable instance, the massacre of the
Macdonalds in Glencoe, the deliberate crime of some statesmen
tarnished not slightly the bright fame of their deceived master:
though it was not for the adherents of the house of Stuart, under whom
so many deeds of more extensive slaughter had been perpetrated, to
fill Europe with their invectives against this military
execution.[460] The episcopal clergy, driven out injuriously by the
populace from their livings, were permitted after a certain time to
hold them again in some instances under certain conditions; but
William, perhaps almost the only consistent friend of toleration in
his kingdoms, at least among public men, lost by this indulgence the
affection of one party, without in the slightest degree conciliating
the other.[461] The true cause, however, of the prevalent
disaffection at this period was the condition of Scotland, an ancient,
independent kingdom, inhabited by a proud, high-spirited people,
relatively to another kingdom, which they had long regarded with
enmity, still with jealousy; but to which, in despite of their
theoretical equality, they were kept in subordination by an
insurmountable necessity. The union of the two crowns had withdrawn
their sovereign and his court; yet their government had been national,
and on the whole with no great intermixture of English influence. Many
reasons, however, might be given for a more complete incorporation,
which had been the favourite project of James I., and was discussed,
at least on the part of Scotland, by commissioners appointed in 1670.
That treaty failed of making any progress; the terms proposed being
such as the English parliament would never have accepted. At the
revolution a similar plan was just hinted, and abandoned. Meanwhile,
the new character that the English government had assumed rendered it
more difficult to preserve the actual connection. A king of both
countries, especially by origin more allied to the weaker, might
maintain some impartiality in his behaviour towards each of them. But,
if they were to be ruled, in effect, nearly as two republics; that is,
if the power of their parliaments should be so much enhanced as
ultimately to determine the principal measures of state (which was at
least the case in England), no one who saw their mutual jealousy,
rising on one side to the highest exasperation, could fail to
anticipate that some great revolution must be at hand; and that an
union, neither federal nor legislative, but possessing every
inconvenience of both, could not long be endured. The well known
business of the Darien company must have undeceived every rational man
who dreamed of any alternative but incorporation or separation. The
Scots parliament took care to bring on the crisis by the act of
security in 1704. It was enacted that, on the queen's death without
issue, the estates should meet to name a successor of the royal line,
and a protestant; but that this should not be the same person who
would succeed to the crown of England, unless during her majesty's
reign conditions should be established to secure from English
influence the honour and independence of the kingdom, the authority of
parliament, the religion, trade, and liberty of the nation. This was
explained to mean a free intercourse with the plantations, and the
benefits of the navigation act. The prerogative of declaring peace and
war was to be subjected for ever to the approbation of parliament,
lest at any future time these conditions should be revoked.

_Act of security._--Those who obtained the act of security were partly
of the jacobite faction, who saw in it the hope of restoring at least
Scotland to the banished heir; partly of a very different description,
whigs in principle, and determined enemies of the Pretender, but
attached to their country, jealous of the English court, and
determined to settle a legislative union on such terms as became an
independent state. Such an union was now seen in England to be
indispensable; the treaty was soon afterwards begun, and, after a long
discussion of the terms between the commissioners of both kingdoms,
the incorporation took effect on the 1st of May 1707. It is provided
by the articles of this treaty, confirmed by the parliaments, that the
succession of the united kingdom shall remain to the Princess Sophia,
and the heirs of her body, being protestants; that all privileges of
trade shall belong equally to both nations; that there shall be one
great seal, and the same coin, weights, and measures; that the
episcopal and presbyterian churches of England and Scotland shall be
for ever established, as essential and fundamental parts of the union;
that the united kingdom shall be represented by one and the same
parliament, to be called the parliament of Great Britain; that the
number of peers for Scotland shall be sixteen, to be elected for every
parliament by the whole body, and the number of representatives of the
Commons forty-five, two-thirds of whom to be chosen by the counties,
and one-third by the boroughs; that the Crown be restrained from
creating any new peers of Scotland; that both parts of the united
kingdom shall be subject to the same duties of excise, and the same
customs on export and import; but that, when England raises two
millions by a land-tax, £48,000 shall be raised in Scotland, and in
like proportion.

It has not been unusual for Scotsmen, even in modern times, while they
cannot but acknowledge the expediency of an union, and the blessings
which they have reaped from it, to speak of its conditions as less
favourable than their ancestors ought to have claimed. For this
however there does not seem much reason. The ratio of population would
indeed have given Scotland about one-eighth of the legislative body,
instead of something less than one-twelfth; but no government except
the merest democracy is settled on the sole basis of numbers; and if
the comparison of wealth and of public contributions was to be
admitted, it may be thought that a country, which stipulated for
itself to pay less than one-fortieth of direct taxation, was not
entitled to a much greater share of the representation than it
obtained. Combining the two ratios of population and property, there
seems little objection to this part of the union; and in general it
may be observed of the articles of that treaty, what often occurs with
compacts intended to oblige future ages, that they have rather tended
to throw obstacles in the way of reformations for the substantial
benefit of Scotland, than to protect her against encroachment and
usurpation.

This however could not be securely anticipated in the reign of Anne;
and, no doubt, the measure was an experiment of such hazard that every
lover of his country must have consented in trembling, or revolted
from it with disgust. No past experience of history was favourable to
the absorption of a lesser state (at least where the government
partook so much of the republican form) in one of superior power and
ancient rivalry. The representation of Scotland in the united
legislature was too feeble to give anything like security against the
English prejudices and animosities, if they should continue or revive.
The church was exposed to the most apparent perils, brought thus
within the power of a legislature so frequently influenced by one
which held her not as a sister, but rather a bastard usurper of a
sister's inheritance; and, though her permanence was guaranteed by the
treaty, yet it was hard to say how far the legal competence of
parliament might hereafter be deemed to extend, or at least how far
she might be abridged of her privileges, and impaired in her
dignity.[462] If very few of these mischiefs have resulted from the
union, it has doubtless been owing to the prudence of our government,
and chiefly to the general sense of right, and the diminution both of
national and religious bigotry during the last century. But it is
always to be kept in mind, as the best justification of those who came
into so great a sacrifice of natural patriotism, that they gave up no
excellent form of polity, that the Scots constitution had never
produced the people's happiness, that their parliament was bad in its
composition, and in practice little else than a factious and venal
aristocracy; that they had before them the alternatives of their
present condition, with the prospect of unceasing discontent, half
suppressed by unceasing corruption, or of a more honourable, but very
precarious, separation of the two kingdoms, the renewal of national
wars and border-feuds, at a cost the poorer of the two could never
endure, and at a hazard of ultimate conquest, which, with all her
pride and bravery, the experience of the last generation had shown to
be no impossible term of the contest.

The union closes the story of the Scots constitution. From its own
nature, not more than from the gross prostitution with which a
majority had sold themselves to the surrender of their own legislative
existence, it was long odious to both parties in Scotland. An attempt
to dissolve it by the authority of the united parliament itself was
made in a very few years, and not very decently supported by the whigs
against the queen's last ministry. But, after the accession of the
house of Hanover, the jacobite party displayed such strength in
Scotland, that to maintain the union was evidently indispensable for
the reigning family. That party comprised a large proportion of the
superior classes, and nearly the whole of the episcopal church, which,
though fallen, was for some years considerable in numbers. The
national prejudices ran in favour of their ancient stock of kings,
conspiring with the sentiment of dishonour attached to the union
itself, and jealousy of some innovations which a legislature they were
unwilling to recognise thought fit to introduce. It is certain that
jacobitism, in England little more, after the reign of George I., than
an empty word, the vehicle of indefinite dissatisfaction in those who
were never ready to encounter peril or sacrifice advantage for its
affected principle, subsisted in Scotland as a vivid emotion of
loyalty, a generous promptitude to act or suffer in its cause; and,
even when all hope was extinct, clung to the recollections of the
past, long after the very name was only known by tradition, and every
feeling connected with it had been wholly effaced to the south of the
Tweed. It is believed that some persons in that country kept up an
intercourse with Charles Edward as their sovereign till his decease in
1787. They had given, forty years before, abundant testimonies of
their activity to serve him. That rebellion is, in more respects than
one, disgraceful to the British government; but it furnished an
opportunity for a wise measure to prevent its recurrence, and to break
down in some degree the aristocratical ascendancy, by abolishing the
hereditary jurisdictions which, according to the genius of the feudal
system, were exercised by territorial proprietors under royal charter
or prescription. Much however still remains to be done, in order to
place that now wealthy and well-instructed people on a footing with
the English, as to the just participation of political liberty; but
what would best conform to the spirit of the act of union might
possibly sometimes contravene its letter.

FOOTNOTES:

[418] Chalmers's _Caledonia_, vol. i. _passim_.

[419] _Id._ 500 _et post_; Dalrymple's _Annals of Scotland_, 28, 30,
etc.

[420] Chalmers, 741; Wight's _Law of Election in Scotland_, 28.

[421] _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.

[422] Dalrymple, ii. 241; Wight, 26.

[423] Statutes of Scotland, 1427; Pinkerton's _History of Scotland_,
i. 120; Wight, 30.

[424] Dalrymple, ii. 261; Stuart on _Public Law of Scotland_, 344;
Robertson's _History of Scotland_, i. 84.

[425] Wight, 62, 65.

[426] _Id._ 69.

[427] Pinkerton, i. 373.

[428] _Id._ 360.

[429] _Id._ 372.

[430] Pinkerton, ii. 53.

[431] In a statute of James II. (1440) "the three estates conclude
_that it is speedful_ that our sovereign lord the king ride throughout
the realm incontinent as shall be seen to the council where any
rebellion, slaughter, burning, robbery, outrage, or theft has
happened," etc. Statutes of Scotland, ii. 32. Pinkerton (i. 192),
leaving out the words in italics, has argued on false premises. "In
this singular decree we find the legislative body regarding the king
in the modern light of a chief magistrate, bound equally with the
meanest subject to obedience to the laws," etc. It is evident that the
estates spoke in this instance as counsellors, not as legislators.
This is merely an oversight of a very well-informed historian, who is
by no means in the trammels of any political theory.

A remarkable expression, however, is found in a statute of the same
king, in 1450; which enacts that any man rising in war against the
king, or receiving such as have committed treason, or holding houses
against the king, or assaulting castles or places where the king's
power shall happen to be, _without the consent of the three estates_,
shall be punished as a traitor. Pinkerton i. 213. I am inclined to
think that the legislators had in view the possible recurrence of what
had very lately happened, that an ambitious cabal might get the king's
person into their power. The peculiar circumstances of Scotland are to
be taken into account when we consider these statutes, which are not
to be looked at as mere insulated texts.

[432] Pinkerton, i. 234.

[433] _Statutes of Scotland_, ii. 177.

[434] Pinkerton, ii. 266.

[435] Pinkerton, ii. 400; Laing, iii. 32.

[436] Kaims's _Law Tracts_; Pinkerton, i. 158 _et alibi_; Stuart on
_Public Law of Scotland_.

[437] Kaims's _Law Tracts_; Pinkerton's _Hist. of Scotland_, i. 117,
237, 388, ii. 313; Robertson, i. 43; Stuart on _Law of Scotland_.

[438] Robertson, i. 149; M'Crie's _Life of Knox_, p. 15. At least one
half of the wealth of Scotland was in the hands of the clergy, chiefly
of a few individuals. _Ibid._

[439] I have read a good deal on this celebrated controversy; but,
where so much is disputed, it is not easy to form an opinion on every
point. But, upon the whole, I think there are only two hypotheses that
can be advanced with any colour of reason. The first is, that the
murder of Darnley was projected by Bothwell, Maitland, and some
others, without the queen's express knowledge, but with a reliance on
her passion for the former, which would lead her both to shelter him
from punishment, and to raise him to her bed; and that, in both
respects, this expectation was fully realised by a criminal connivance
at the escape of one whom she must believe to have been concerned in
her husband's death, and by a still more infamous marriage with him.
This, it appears to me, is a conclusion that may be drawn by reasoning
on admitted facts, according to the common rules of presumptive
evidence. The second supposition is, that she had given a previous
consent to the assassination. This is rendered probable by several
circumstances, and especially by the famous letters and sonnets, the
genuineness of which has been so warmly disputed. I must confess that
they seem to me authentic, and that Mr. Laing's dissertation on the
murder of Darnley has rendered Mary's innocence, even as to
participation in that crime, an untenable proposition. No one of any
weight, I believe, has asserted it since his time except Dr. Lingard,
who manages the evidence with his usual adroitness, but by admitting
the general authenticity of the letters, qualified by a mere
conjecture of interpolations, has given up what his predecessors
deemed the very key of the citadel.

I shall dismiss a subject so foreign to my purpose, with remarking a
fallacy which affects almost the whole argument of Mary's most
strenuous advocates. They seem to fancy that, if the Earls of Murray
and Morton, and Secretary Maitland of Lethington, can be proved to
have been concerned in Darnley's murder, the queen herself is at once
absolved. But it is generally agreed that Maitland was one of those
who conspired with Bothwell for this purpose; and Morton, if he were
not absolutely consenting, was by his own acknowledgment at his
execution apprised of the conspiracy. With respect to Murray indeed
there is not a shadow of evidence, nor had he any probable motive to
second Bothwell's schemes; but, even if his participation were
presumed, it would not alter in the slightest degree the proofs as to
the queen.

[440] Spottiswood's _Church History_, 152; M'Crie's _Life of Knox_,
ii. 6; _Life of Melville_, i. 143; Robertson's _History of Scotland_;
Cook's _History of the Reformation in Scotland_. These three modern
writers leave, apparently, little to require as to this important
period of history; the first with an intenseness of sympathy that
enhances our interest, though it may not always command our
approbation; the two last with a cooler and more philosophical
impartiality.

[441] M'Crie's _Life of Knox_, ii. 197 _et alibi_; Cook, iii. 308.
According to Robertson, i. 291, the whole revenue of the protestant
church, at least in Mary's reign, was about 24,000 pounds Scots, which
seems almost incredible.

[442] M'Crie's _Life of Melville_, i. 287, 296. It is impossible to
think without respect of this most powerful writer, before whom there
are few living controversialists that would not tremble; but his
presbyterian Hildebrandism is a little remarkable in this age.

[443] M'Crie's _Life of Melville_; Robertson; Spottiswood.

[444] Spottiswood; Robertson; M'Crie.

[445] M'Crie's _Life of Melville_, ii. 378; Laing's _History of
Scotland_, iii. 20, 35, 42, 62.

[446] Laing, 74, 89.

[447] Wight, 69 _et post_.

[448] _Statutes of Scotland_, vol. ii. p. 8; Pinkerton, i. 115; Laing,
iii. 117.

[449] Laing, _ibid._

[450] Arnot's _Criminal Trials_, p. 122.

[451] The Gowrie conspiracy is well known to be one of the most
difficult problems in history. Arnot has given a very good account of
it (p. 20), and shown its truth, which could not reasonably be
questioned, whatever motive we may assign for it. He has laid stress
on Logan's letters, which appear to have been unaccountably slighted
by some writers. I have long had a suspicion, founded on these
letters, that the Earl of Bothwell, a daring man of desperate
fortunes, was in some manner concerned in the plot, of which the Earl
of Gowrie and his brother were the instruments.

[452] Arnot's _Criminal Trials_, p. 70.

[453] Arnot, pp. 67, 329; _State Trials_, ii. 884. The prisoner was
told that he was not charged for saying mass, nor for seducing the
people to popery, nor for anything that concerned his conscience; but
for declining the king's authority, and maintaining treasonable
opinions, as the statutes libelled on made it treason not to answer
the king or his council in any matter which should be demanded.

It was one of the most monstrous iniquities of a monstrous
jurisprudence, the Scots criminal law, to debar a prisoner from any
defence inconsistent with the indictment; that is, he might deny a
fact, but was not permitted to assert that, being true, it did not
warrant the conclusion of guilt. Arnot, 354.

[454] Laing, iv. 20; Kirkton, p. 141. "Whoso shall compare," he says,
"this set of bishops with the old bishops established in the year
1612, shall find that these were but a sort of pigmies compared with
our new bishops."

[455] Laing, iv. 32. Kirkton says 300. P. 149. These were what were
called the young ministers, those who had entered the church since
1649. They might have kept their cures by acknowledging the authority
of bishops.

[456] Laing, iv. 116.

[457] _Life of James II._, i. 710.

[458] _Cloud of Witnesses_, passim; De Foe's _Hist. of Church of
Scotland_; Kirkton; Laing; Scott's notes in _Minstrelsy of Scottish
Border_, etc., etc.

[459] The practice observed in summoning or dissolving the great
national assembly of the church of Scotland, which, according to the
presbyterian theory, can only be done by its own authority, is rather
amusing. "The moderator dissolves the assembly in the name of the Lord
Jesus Christ, the head of the church; and, by the same authority,
appoints another to meet on a certain day of the ensuing year. The
lord high commissioner then dissolves the assembly in the name of the
king, and appoints another to meet on the same day." Arnot's _Hist. of
Edinburgh_, p. 269. I am inclined to suspect, but with no very certain
recollection of what I have been told, that Arnot has misplaced the
order in which this is done, and that the lord commissioner is the
first to speak. In the course of debate, however, no regard is paid to
him, all speeches being addressed to the moderator.

[460] The king's instructions by no means warrant the execution,
especially with all its circumstances of cruelty, but they contain one
unfortunate sentence: "If Maclean [sic], of Glencoe, and that tribe
can be well separated from the rest, it will be a proper vindication
of the public justice to extirpate that seat of thieves." This was
written, it is to be remembered, while they were exposed to the
penalties of the law for the rebellion. But the massacre would never
have been perpetrated, if Lord Breadalbane and the master of Stair,
two of the worst men in Scotland, had not used the foulest arts to
effect it. It is an apparent great reproach to the government of
William, that they escaped with impunity; but political necessity
bears down justice and honour. Laing, iv. 246; Carstares' _State
Papers_.

[461] Those who took the oaths were allowed to continue in their
churches without compliance with the presbyterian discipline, and many
more who not only refused the oaths but prayed openly for James and
his family. Carstares, p. 40. But in 1693 an act for settling the
peace and quiet of the church ordains, that no person be admitted or
continued to be a minister or preacher unless he have taken the oath
of allegiance, and subscribed the assurance that he held the king to
be _de facto et de jure_, and also the confession of faith; and that
he owns and acknowledges presbyterian church-government to be the only
government of this church, and that he will submit thereto and concur
therewith, and will never endeavour, directly or indirectly, the
prejudice or subversion thereof. _Id._ 715; Laing, iv. 255.

This act seems not to have been strictly insisted upon; and the
episcopal clergy, though their advocates did not forget to raise a cry
of persecution, which was believed in England, are said to have been
treated with singular favour. De Foe challenges them to show any one
minister that ever was deposed for not acknowledging the church, if at
the same time he offered to acknowledge the government and take the
oaths; and says they have been often challenged on this head. _Hist.
of Church of Scotland_, p. 319. In fact, a statute was passed in 1695,
which confirmed all ministers who would qualify themselves by taking
the oaths: and no less than 116 (according to Laing, iv. 259) did so
continue; nay, De Foe reckons 165 at the time of the union. P. 320.

The rigid presbyterians inveighed against any toleration, as much as
they did against the king's authority over their own church. But the
government paid little attention to their bigotry; besides the
above-mentioned episcopal clergymen, those who seceded from the
church, though universally jacobites, and most dangerously so, were
indulged with meeting-houses in all towns; and by an act of the queen
(10 Anne, c. 7) obtained a full toleration, on condition of praying
for the royal family, with which they never complied. It was thought
necessary to put them under some fresh restrictions in 1748, their
zeal for the Pretender being notorious and universal, by an act 21
Geo. II., c. 34; which has very properly been repealed after the
motive for it had wholly ceased, and even at first was hardly
reconcilable with the general principles of religious liberty; though
it ill becomes those to censure it who vindicate the penal laws of
Elizabeth against popery.

[462] Archbishop Tenison said, in the debates on the union, he thought
the narrow notions of all churches had been their ruin, and that he
believed the church of Scotland to be as true a protestant church as
the church of England, though he could not say it was as perfect.
Carstares, 759. This sort of language was encouraging; but the
exclusive doctrine, or _jus divinum_, was sure to retain many
advocates, and has always done so. Fortunately for Great Britain, it
has not had the slightest effect on the laity in modern times.

CHAPTER XVIII

ON THE CONSTITUTION OF IRELAND

_Ancient state of Ireland._--The antiquities of Irish history,
imperfectly recorded, and rendered more obscure by controversy, seem
hardly to belong to our present subject. But the political order or
state of society among that people at the period of Henry II.'s
invasion must be distinctly apprehended and kept in mind, before we
can pass a judgment upon, or even understand, the course of succeeding
events, and the policy of the English government in relation to that
island.

It can hardly be necessary to mention (the idle traditions of a
derivation from Spain having long been exploded) that the Irish are
descended from one of those Celtic tribes which occupied Gaul and
Britain some centuries before the Christian era. Their language
however is so far dissimilar from that spoken in Wales, though
evidently of the same root, as to render it probable that the
emigration, whether from this island or from Armorica, was in a remote
age; while its close resemblance to that of the Scottish Highlanders,
which hardly can be called another dialect, as unequivocally
demonstrates a nearer affinity of the two nations. It seems to be
generally believed, though the antiquaries are far from unanimous,
that the Irish are the parent tribe, and planted their colony in
Scotland since the commencement of our era.

About the end of the eighth century, some of those swarms of
Scandinavian descent which were poured out in such unceasing and
irresistible multitudes on France and Britain, began to settle on the
coasts of Ireland. These colonists were known by the name of Ostmen,
or men from the east, as in France they were called Normans from their
northern origin. They occupied the sea-coast from Antrim easterly
round to Limerick; and by them the principal cities of Ireland were
built. They waged war for some time against the aboriginal Irish in
the interior; but, though better acquainted with the arts of civilised
life, their inferiority in numbers caused them to fail at length in
this contention; and the practical invasions from their brethren in
Norway becoming less frequent in the eleventh and twelfth centuries,
they had fallen into a state of dependence on the native princes.

The island was divided into five provincial kingdoms, Leinster,
Munster, Ulster, Connaught, and Meath; one of whose sovereigns was
chosen king of Ireland in some general meeting, probably of the
nobility or smaller chieftains, and of the prelates. But there seems
to be no clear tradition as to the character of this national
assembly, though some maintain it to have been triennially held. The
monarch of the island had tributes from the inferior kings, and a
certain supremacy, especially in the defence of the country against
invasion; but the constitution was of a federal nature, and each was
independent in ruling his people, or in making war on his neighbours.
Below the kings were the chieftains of different septs or families,
perhaps in one or two degrees of subordination, bearing a relation,
which may be loosely called feudal, to each other, and to the
Crown.[463]

These chieftainships, and perhaps even the kingdoms themselves, though
not partible, followed a very different rule of succession than that
of primogeniture. They were subject to the law of tanistry, of which
the principle is defined to be, that the demesne lands and dignity of
chieftainship descended to the eldest and most worthy of the same
blood; these epithets not being used, we may suppose, synonymously,
but in order to indicate that the preference given to seniority was to
be controlled by a due regard to desert. No better mode, it is
evident, of providing for a perpetual supply of those civil quarrels,
in which the Irish are supposed to place so much of their enjoyment,
could have been devised. Yet, as these grew sometimes a little too
frequent, it was not unusual to elect a tanist, or reversionary
successor, in the lifetime of the reigning chief, as has been the
practice of more civilised nations. An infant was never allowed to
hold the sceptre of an Irish kingdom, but was necessarily postponed to
his uncle or other kinsman of mature age; as was the case also in
England, even after the consolidation of the Anglo-Saxon
monarchy.[464]

The land-owners, who did not belong to the noble class, bore the same
name as their chieftain, and were presumed to be of the same lineage.
But they held their estates by a very different and an extraordinary
tenure, that of Irish gavel-kind. On the decease of a proprietor,
instead of an equal partition among his children, as in the gavel-kind
of English law, the chief of the sept, according to the generally
received explanation, made, or was entitled to make, a fresh division
of all the lands within his district; allotting to the heirs of the
deceased a portion of the integral territory along with the other
members of the tribe. It seems impossible to conceive that these
partitions were renewed on every death of one of the sept. But they
are asserted to have at least taken place so frequently as to produce
a continual change of possession. The policy of this custom doubtless
sprung from too jealous a solicitude as to the excessive inequality of
wealth, and from the habit of looking on the tribe as one family of
occupants, not wholly divested of its original right by the necessary
allotment of lands to particular cultivators. It bore some degree of
analogy to the institution of the year of Jubilee in the Mosaic code,
and what may be thought more immediate, was almost exactly similar to
the rule of succession which is laid down in the ancient laws of
Wales.[465]

_Rude state of society._--In the territories of each sept, judges
called Brehons, and taken out of certain families, sat with primeval
simplicity upon turfen benches in some conspicuous situation, to
determine controversies. Their usages are almost wholly unknown; for
what have been published as fragments of the Brehon law seem open to
great suspicion at least of being interpolated.[466] It is notorious
that, according to the custom of many states in the infancy of
civilisation, the Irish admitted the composition or fine for murder,
instead of capital punishment; and this was divided, as in other
countries, between the kindred of the slain and the judge.

In the twelfth century it is evident that the Irish nation had made
far less progress in the road of improvement than any other of Europe
in circumstance of climate and position so little unfavourable. They
had no arts that deserve the name, nor any commerce, their best line
of sea-coast being occupied by the Norwegians. They had no fortified
towns, nor any houses or castles of stone; the first having been
erected at Tuam a very few years before the invasion of Henry.[467]
Their conversion to Christianity indeed, and the multitude of
cathedral and conventual churches erected throughout the island, had
been the cause, and probably the sole cause, of the rise of some
cities, or villages with that name, such as Armagh, Cashel, and Trim.
But neither the chiefs nor the people loved to be confined within
their precincts, and chose rather to dwell in scattered cabins amidst
the free solitude of bogs and mountains. As we might expect, their
qualities were such as belong to man by his original nature, and which
he displays in all parts of the globe where the state of society is
inartificial: they were gay, generous, hospitable, ardent in
attachment and hate, credulous of falsehood, prone to anger and
violence, generally crafty and cruel. With these very general
attributes of a barbarous people, the Irish character was
distinguished by a peculiar vivacity of imagination, an enthusiasm
and impetuosity of passion, and a more than ordinary bias towards a
submissive and superstitious spirit in religion.

This spirit may justly be traced in a great measure to the virtues and
piety of the early preachers of the gospel in that country. Their
influence, though at this remote age, and with our imperfect
knowledge, it may hardly be distinguishable amidst the licentiousness
and ferocity of a rude people, was necessarily directed to counteract
those vices, and cannot have failed to mitigate and compensate their
evil. In the seventh and eighth centuries, while a total ignorance
seemed to overspread the face of Europe, the monasteries and schools
of Ireland preserved, in the best manner they could, such learning as
had survived the revolutions of the Roman world. But the learning of
monasteries had never much efficacy in dispelling the ignorance of the
laity; and indeed, even in them, it had decayed long before the
twelfth century. The clergy were respected and numerous, the bishops
alone amounting at one time to no less than 300;[468] and it has been
maintained by our most learned writers, that they were wholly
independent of the see of Rome till, a little before the English
invasion, one of their primates thought fit to solicit the pall from
thence on his consecration, according to the discipline long practised
in other western churches.

It will be readily perceived that the government of Ireland must have
been almost entirely aristocratical, and not very unlike that of the
feudal confederacies in France during the ninth and tenth centuries.
It was perhaps still more oppressive. The ancient condition of the
common people of Ireland, says Sir James Ware, was very little
different from slavery.[469] Unless we believe this condition to have
been greatly deteriorated under the rule of their native chieftains
after the English settlement, for which there seems no good reason, we
must give little credit to the fanciful pictures of prosperity and
happiness in that period of aboriginal independence, which the Irish,
in their discontent with later times, have been apt to draw. They had,
no doubt, like all other nations, good and wise princes, as well as
tyrants and usurpers. But we find by their annals that, out of two
hundred ancient kings, of whom some brief memorials are recorded, not
more than thirty came to a natural death;[470] while, for the later
period, the oppression of the Irish chieftains, and of those
degenerate English who trod in their steps, and emulated the vices
they should have restrained, is the one constant theme of history.
Their exactions kept the peasants in hopeless poverty, their tyranny
in perpetual fear. The chief claimed a right of taking from his
tenants provisions for his own use at discretion, or of sojourning in
their houses. This was called coshery, and is somewhat analogous to
the royal prerogative of purveyance. A still more terrible oppression
was the quartering of the lords' soldiers on the people, sometimes
mitigated by a composition, called by the Irish bonaght.[471] For the
perpetual warfare of these petty chieftains had given rise to the
employment of mercenary troops, partly natives, partly from Scotland,
known by the uncouth names of Kerns and Gallowglasses, who proved the
scourge of Ireland down to its final subjugation by Elizabeth.

This unusually backward condition of society furnished but an
inauspicious presage for the future. Yet we may be led by the analogy
of other countries to think it probable that, if Ireland had not
tempted the cupidity of her neighbours, there would have arisen in the
course of time some Egbert or Harold Harfager to consolidate the
provincial kingdoms into one hereditary monarchy; which, by the
adoption of better laws, the increase of commerce, and a frequent
intercourse with the chief courts of Europe, might have taken as
respectable a station as that of Scotland in the commonwealth of
Christendom. If the two islands had afterwards become incorporated
through intermarriage of their sovereigns, as would very likely have
taken place, it might have been on such conditions of equality as
Ireland, till lately, has never known; and certainly without that long
tragedy of crime and misfortune which her annals unfold.

_Invasion of Henry II._--The reduction of Ireland, at least in name,
under the dominion of Henry II. was not achieved by his own efforts.
He had little share in it beyond receiving the homage of Irish
princes, and granting charters to his English nobility. Strongbow,
Lacy, Fitz-Stephen, were the real conquerors, through whom alone any
portion of Irish territory was gained by arms or treaty; and, as they
began the enterprise without the king, they carried it on also for
themselves, deeming their swords a better security than his charters.
This ought to be kept in mind, as revealing the secret of the English
government over Ireland, and furnishing a justification for what has
the appearance of a negligent abandonment of its authority. The few
barons, and other adventurers, who, by dint of forces hired by
themselves, and, in some instances, by conventions with the Irish,
settled their armed colonies in the island, thought they had done
much for Henry II. in causing his name to be acknowledged, his
administration to be established in Dublin, and in holding their lands
by his grant. They claimed in their turn, according to the practice of
all nations and the principles of equity, that those who had borne the
heat of the battle, should enjoy the spoil without molestation. Hence,
the enormous grants of Henry and his successors, though so often
censured for impolicy, were probably what they could scarce avoid;
and, though not perhaps absolutely stipulated as the price of titular
sovereignty, were something very like it.[472] But what is to be
censured, and what at all hazards they were bound to refuse, was the
violation of their faith to the Irish princes, in sharing among these
insatiable barons their ancient territories; which, setting aside the
wrong of the first invasion, were protected by their homage and
submission, and sometimes by positive conventions. The whole island,
in fact, with the exception of the county of Dublin and the maritime
towns, was divided, before the end of the thirteenth century, and most
of it in the twelfth, among ten English families: Earl Strongbow, who
had some colour of hereditary title, according to our notions of law,
by his marriage with the daughter of Dermot, king of Leinster,
obtaining a grant of that province; Lacy acquiring Meath, which was
not reckoned a part of Leinster, in the same manner; the whole of
Ulster being given to De Courcy; the whole of Connaught to De Burgh;
and the rest to six others. These, it must be understood, they were to
hold in a sort of feudal suzerainty, parcelling them among their
tenants of English race, and expelling the natives, or driving them
into the worst parts of the country by an incessant warfare.

_Forms of English constitution established._--The Irish chieftains,
though compelled to show some exterior signs of submission to Henry,
never thought of renouncing their own authority or the customs of
their forefathers; nor did he pretend to interfere with the government
of their septs, content with their promise of homage and tribute,
neither of which were afterwards paid. But in those parts of Ireland
which he reckoned his own, it was his aim to establish the English
laws, to render the lesser island, as it were, a counterpart in all
its civil constitution, and mirror of the greater. The colony from
England was already not inconsiderable, and likely to increase; the
Ostmen, who inhabited the maritime towns, came very willingly, as all
settlers of Teutonic origin have done, into the English customs and
language; and upon this basis, leaving the accession of the aboriginal
people to future contingencies, he raised the edifice of the Irish
constitution. He gave charters of privilege to the chief towns, began
a division into counties, appointed sheriffs and judges of assize to
administer justice, erected supreme courts at Dublin, and perhaps
assembled parliaments.[473] His successors pursued the same course of
policy; the great charter of liberties, as soon as granted by John at
Runnymede, was sent over to Ireland; and the whole common law, with
all its forms of process, and every privilege it was deemed to convey,
became the birthright of the Anglo-Irish colonists.[474]

These had now spread over a considerable part of the island. Twelve
counties appear to have been established by John, comprehending most
of Leinster and Munster; while the two ambitious families of Courcy
and De Burgh encroached more and more on the natives in the other
provinces.[475] But the same necessity, which gratitude for the
services, or sense of the power of the great families had engendered,
for rewarding them by excessive grants of territory, led to other
concessions that rendered them almost independent of the
monarchy.[476] The franchise of a county palatine gave a right of
exclusive civil and criminal jurisdiction; so that the king's writ
should not run, nor his judges come within it, though judgment in its
courts might be reversed by writ of error in the king's bench. The
lord might enfeoff tenants to hold by knight's service of himself; he
had almost all regalian rights; the lands of those attainted for
treason escheated to him; he acted in everything rather as one of the
great feudatories of France or Germany than a subject of the English
Crown. Such had been Chester, and only Chester, in England; but in
Ireland this dangerous independence was permitted to Strongbow in
Leinster, to Lacy in Meath, and at a later time to the Butlers and
Geraldines in parts of Munster. Strongbow's vast inheritance soon
fell to five sisters, who took to their shares, with the same palatine
rights, the counties of Carlow, Wexford, Kilkenny, Kildare, and the
district of Leix, since called the Queen's County.[477] In all these
palatinates, forming by far the greater portion of the English
territories, the king's process had its course only within the lands
belonging to the church.[478] The English aristocracy of Ireland, in
the thirteenth and fourteenth centuries, bears a much closer analogy
to that of France in rather an earlier period than anything which the
history of this island can show.

Pressed by the inroads of these barons, and despoiled frequently of
lands secured to them by grant or treaty, the native chiefs had
recourse to the throne for protection, and would in all likelihood
have submitted without repining to a sovereign who could have afforded
it.[479] But John and Henry III., in whose reigns the independence of
the aristocracy was almost complete, though insisting by writs and
proclamations on a due observance of the laws, could do little more
for their new subjects, who found a better chance of redress in
standing on their own defence. The powerful septs of the north enjoyed
their liberty. But those of Munster and Leinster, intermixed with the
English, and encroached upon from every side, were the victims of
constant injustice; and abandoning the open country for bog and
mountain pasture, grew more poor and barbarous in the midst of the
general advance of Europe. Many remained under the yoke of English
lords, and in a worse state than that of villenage, because still less
protected by the tribunals of justice. The Irish had originally
stipulated with Henry II. for the use of their own laws.[480] They
were consequently held beyond the pale of English justice, and
regarded as aliens at the best, sometimes as enemies, in our courts.
Thus, as by the Brehon customs murder was only punished by a fine, it
was not held felony to kill one of Irish race, unless he had conformed
to the English law.[481] Five septs, to which the royal families of
Ireland belonged, the names of O'Neal, O'Connor, O'Brien,
O'Malachlin, and MacMurrough, had the special immunity of being within
the protection of our law, and it was felony to kill one of them. I do
not know by what means they obtained this privilege; for some of these
were certainly as far from the king's obedience as any in
Ireland.[482] But besides these a vast number of charters of
denization were granted to particular persons of Irish descent from
the reign of Henry II. downwards, which gave them and their posterity
the full birthrights of English subjects; nor does there seem to have
been any difficulty in procuring these.[483] It cannot be said,
therefore, that the English government, or those who represented it in
Dublin, displayed any reluctance to emancipate the Irish from
thraldom. Whatever obstruction might be interposed to this was from
that assembly whose concurrence was necessary to every general
measure, the Anglo-Irish parliament. Thus, in 1278, we find the first
instance of an application from the community of Ireland, as it is
termed, but probably from some small number of septs dwelling among
the colony, that they might be admitted to live by the English law,
and offering 8000 marks for this favour. The letter of Edward I. to
the justiciary of Ireland on this is sufficiently characteristic both
of his wisdom and his rapaciousness. He is satisfied of the expediency
of granting the request, provided it can be done with the general
consent of the prelates and nobles of Ireland; and directs the
justiciary, if he can obtain that concurrence, to agree with the
petitioners for the highest fine he can obtain, and for a body of good
and stout soldiers.[484] But this necessary consent of the aristocracy
was withheld. Excuses were made to evade the king's desire. It was
wholly incompatible with their systematic encroachments on their
Irish neighbours to give them the safeguard of the king's writ for
their possessions. The Irish renewed their supplication more than
once, both to Edward I. and Edward III.; they found the same readiness
in the English court; they sunk at home through the same unconquerable
oligarchy.[485] It is not to be imagined that the entire Irishry
partook in this desire of renouncing their ancient customs. Besides
the prejudices of nationality, there was a strong inducement to
preserve the Brehon laws of tanistry, which suited better a warlike
tribe than the hereditary succession of England. But it was the
unequivocal duty of the legislature to avail itself of every token of
voluntary submission; which, though beginning only with the subject
septs of Leinster, would gradually incorporate the whole nation in a
common bond of co-equal privileges with their conquerors.

_Degeneracy of English settlers._--Meanwhile, these conquerors were
themselves brought under a moral captivity of the most disgraceful
nature; and, not as the rough soldier of Rome is said to have been
subdued by the art and learning of Greece, the Anglo-Norman barons,
that had wrested Ireland from the native possessors, fell into their
barbarous usages, and emulated the vices of the vanquished. This
degeneracy of the English settlers began very soon, and continued to
increase for several ages. They intermarried with the Irish; then
connected themselves with them by the national custom of fostering,
which formed an artificial relationship of the strictest nature;[486]
they spoke the Irish language; they affected the Irish dress and
manner of wearing the hair;[487] they even adopted, in some instances,
Irish surnames; they harassed their tenants with every Irish exaction
and tyranny; they administered Irish law, if any at all; they became
chieftains rather than peers; and neither regarded the king's summons
to his parliaments, nor paid any obedience to his judges.[488] Thus
the great family of De Burgh or Burke, in Connaught, fell off almost
entirely from subjection; nor was that of the Earls of Desmond, a
younger branch of the house of Geraldine or Fitzgerald, much less
independent of the Crown; though by the title it enjoyed, and the
palatine franchises granted to it by Edward III. over the counties of
Limerick and Kerry, it seemed to keep up more show of English
allegiance.

The regular constitution of Ireland was, as I have said, as nearly as
possible a counterpart of that established in this country. The
administration was vested in an English justiciary or lord deputy,
assisted by a council of judges and principal officers, mixed with
some prelates and barons, but subordinate to that of England, wherein
sat the immediate advisers of the sovereign. The courts of chancery,
king's bench, common pleas, and exchequer, were the same in both
countries; but writs of error lay from judgments given in the second
of these to the same court in England. For all momentous purposes, as
to grant a subsidy, or enact a statute, it was as necessary to summon
a parliament in the one island as in the other. An Irish parliament
originally, like an English one, was but a more numerous council, to
which the more distant as well as the neighbouring barons were
summoned, whose consent, though dispensed with in ordinary acts of
state, was both the pledge and the condition of their obedience to
legislative provisions. In 1295, the sheriff of each county and
liberty is directed to return two knights to a parliament held by
Wogan, an active and able deputy.[489] The date of the admission of
burgesses cannot be fixed with precision; but it was probably not
earlier than the reign of Edward III. They appear in 1341; and the
Earl of Desmond summoned many deputies from corporations to his rebel
convention held at Kilkenny in the next year.[490] The Commons are
mentioned as an essential part of parliament in an ordinance of 1359;
before which time, in the opinion of Lord Coke, "the conventions in
Ireland were not so much parliaments as assemblies of great men."[491]
This, as appears, is not strictly correct; but in substance they were
perhaps little else long afterwards.

The earliest statutes on record are of the year 1310; and from that
year they are lost till 1429, though we know many parliaments to have
been held in the meantime, and are acquainted by other means with
their provisions. Those of 1310 bear witness to the degeneracy of the
English lords, and to the laudable zeal of a feeble government for the
reformation of their abuses. They begin with an act to restrain great
lords from taking of prises, lodging, and sojourning with the people
of the country against their will. "It is agreed and assented," the
act proceeds, "that no such prises shall be henceforth made without
ready payment and agreement, and that none shall harbour or sojourn at
the house of any other by such malice against the consent of him which
is owner of the house to destroy his goods; and, if any shall do the
same, such prises, and such manner of destruction, shall be holden for
open robbery, and the king shall have the suit thereof, if others will
not, nor dare not sue. It is agreed also, that none shall keep idle
people nor kearn (foot-soldiers) in time of peace to live upon the
poor of the country, but that those which will have them, shall keep
them at their own charges, so that their free tenants, nor farmers,
nor other tenants, be not charged with them." The statute proceeds to
restrain great lords or others, except such as have royal franchises,
from giving protections, which they used to compel the people to
purchase; and directs that there shall be commissions of assize and
gaol delivery through all the counties of Ireland.[492]

These regulations exhibit a picture of Irish miseries. The barbarous
practices of coshering and bonaght, the latter of which was generally
known in later times by the name of coyne and livery, had been
borrowed from those native chieftains whom our modern Hibernians
sometimes hold forth as the paternal benefactors of their
country.[493] It was the crime of the Geraldines and the De Courcys to
have retrograded from the comparative humanity and justice of England,
not to have deprived the people of freedom and happiness they had
never known. These degenerate English, an epithet by which they are
always distinguished, paid no regard to the statutes of a parliament
which they had disdained to attend, and which could not render itself
feared. We find many similar laws in the fifteenth century, after the
interval which I have noticed in the printed records. And, in the
intervening period, a parliament held by Lionel Duke of Clarence,
second son of Edward III., at Kilkenny, in 1367, the most numerous
assembly that had ever met in Ireland, was prevailed upon to pass a
very severe statute against the insubordinate and degenerate
colonists. It recites that the English of the realm of Ireland were