Constitutional History of England, Henry VII to George II. Volume 3 of 3

by Henry Hallam

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.