The Early History of the Scottish Union Question / Bi-Centenary Edition

by George W. T. Omond

His first contribution to the cause of the Union was to impress upon the king the exact state of the case, and what were the various points which would have to be decided. The kingdoms were, he showed, already united in religion and in language. No sea rolled between them. The same king reigned over both. But, nevertheless, there were separate Parliaments, separate Councils of State, and separate offices of the Crown. There was one peerage for England, and another for Scotland. There were two very different systems of law, and each country had its own peculiar code of legal procedure. All these various institutions, and, in addition, a mass of minor details of greater or less importance, would have to be considered in adjusting the terms of Union.[47]

On the knotty question of whether there should be an uniformity of laws, Bacon, from the outset, in opposition to the opinion of the judges and of the majority of English lawyers, maintained that, while the public law of the United Kingdoms should be assimilated, the private law of each country should be left untouched; a conclusion which was arrived at a century later, when the Union was actually accomplished. “For,” he said, “that which concerneth private interest of meum and tuum, in my opinion, it is not at this time to be meddled with. Men love to hold their own as they have held, and the difference of this law carrieth no mark of separation.”[48]

But before a single step could be taken, the two Parliaments had to be consulted. James shrewdly calculated that if the Parliament of England could be gained, the Scottish Estates would readily agree to his wishes. He accordingly wrote to the Privy Council of Scotland, in January 1604, informing them that the English Parliament was to meet in March, when the project of an Union would be discussed, and telling them to call the Scottish Parliament together about the end of April; and he gave express commands that no subject except the Union was to be considered. If the Estates agreed, as he assumed they would, to the desirability of an Union, they were to appoint commissioners to meet with commissioners who would, by that time, have been appointed by the Parliament of England.[49]

The English Parliament met on the 19th of March. The speech in which James recommended the Union was long, and had evidently been prepared with great pains. What God had joined, he urged, no man should put asunder. “I am the husband,” he said, “and the whole island is my lawful wife. I am the shepherd, and it is my flock. I hope, therefore, no man will be so unreasonable as to think that I, that am a Christian king under the gospel, should be a polygamist and husband of two wives.” Apart from some grotesque illustrations such as this, the speech was well worthy of the occasion. But the king’s proposals were not cordially received; and it was only under considerable pressure that, at a conference of both Houses, a Commission was appointed. At the head of the Commission was Lord Chancellor Ellesmere; and among the members were Robert Lord Cecil and Sir Francis Bacon. They were empowered to consult with commissioners to be appointed by the Parliament of Scotland concerning an Union of the Kingdoms, and such other matters as, upon mature deliberation, should appear necessary for the honour of his Majesty and the common good of both realms.

The Scottish Parliament, which had been summoned to meet in April in order that it might approve of the Union and appoint commissioners, was prorogued from time to time, and did not meet for business until the beginning of July, when the Estates assembled at Perth.

James had directed the Scottish ministers to make the Union the only subject of deliberation, and had also promised that the expenses incurred by the commissioners from Scotland would be defrayed out of his own purse. The Estates, however, had no sympathy with the policy of the king. The nobles grumbled among themselves, and would fain have resisted. But the royal orders were peremptory; and thirty-two commissioners were appointed to “confer, treat, and consulte upon a perfyte Unioun of the realmes of Scotland and England.”[50] The first name on the Commission was that of John, Earl of Montrose, Lord Chancellor of Scotland; and among his colleagues were a number of distinguished men. Alexander Seton, then known as Lord Fyvie, was afterwards the first Earl of Dunfermline. James Elphinstone, Secretary of State, had recently been raised to the peerage as Lord Balmerino, a title associated, in Scottish history, with a long series of family misfortunes, which culminated in the execution of his descendant, the last lord, after the Rebellion of 1745. Sir Thomas Hamilton, whom James nicknamed “Tam o’ the Cowgate,” was then Lord Advocate, and, after holding almost every great office of State in Scotland, became Earl of Haddington in the reign of Charles the First. Another place in the Commission was occupied by Sir Thomas Craig of Riccarton, author of the Jus Feudale, whose Latin history of the Union, which has never been published, is preserved in the Library of the Faculty of Advocates.

Some of the terms which occur in the Act appointing these commissioners are such as to suggest the idea that James himself had been the draughtsman. The Estates, in language not usually to be found in the statute-book, declare that the Act is passed in order that “as the present age is ravished in admiration with an so fortunate beginning, so that the posterity may rejoice in the fruition of such an effectual Union of two so famous and ancient Kingdoms, miraculously accomplished in the blood and person of so rare a monarch.”

But the Estates, while ready to lavish praise on the king, were determined that the Union was not to interfere with the independence of Scotland. It was noticed that while the English Act for the Union contained a clause declaring that his Majesty had no intention of altering the fundamental laws and customs of England, nothing had been said as to preserving the laws and customs of Scotland. This was regarded as suspicious; and there was inserted in the Scottish Act a provision that the commissioners were to take care that nothing was done which was inconsistent with the ancient rights and liberties of Scotland.[51]

There was also passed, at the same time, a statute which provided that the Commissioners on Union should have no power to treat “in any manner of way that may be hurtful or prejudicial to the religion presently professed in Scotland.”[52]