When the Great Council developed into what we understand by the word "parliament," it took its place as one of a series of competitors for the chief power in the kingdom. The king's prerogative was sufficient to cover everything that he was able to do, and an undefined law of treason[77] gave him a valuable weapon, which he did not fail to use. The most notable danger to the prerogative was the supersession of the royal power by the rise of certain noble families from time to time. The strength of these nobles lay in the number of their retainers, over whom they had absolute power. Most of them were hereditary sheriffs of their own districts, and it was rarely that either king or parliament ventured seriously to interfere with their judicial powers.
The Parliament found an additional rival in the Secret—afterwards called the Privy—Council, which formed the Executive of the realm. Little is known of the early history of this important body. Its origin has generally been ascribed to the Parliament of 1369, which, as we have seen (cf. pp. 40, 41), appointed a Committee to discuss certain matters before they came before Parliament.[78] This, however, refers to the Lords of the Articles, and when the Committee of the Articles was appointed two years later, the precedent of 1369 was avowedly followed. It is not, therefore, possible to identify this body with the king's secret council, mentioned two years later, when urgent private business, relating to the succession, was discussed "in the king's secret chamber in his secret council,"[79] as contrasted with the king's chamber of public Parliament.[80] This allusion to a secret council probably indicates not the origin, but the existence, of such a secret council of royal advisers as must have come into being centuries before. The small place held by the Parliament in the government of the country left the Executive or Secret Council a still more valuable instrument for those in power, and it is impossible that the kings of Scotland did not possess a private council before 1369. The next definite reference is in 1389; when the Duke of Rothesay was appointed regent for Robert III (cf. p. 75), his power was limited by a council, of which eighteen members were appointed by the Estates—probably an enlarged form of the Secret Council.[81] But this was only a temporary arrangement, and it is very doubtful if Mr. Hill Burton is right in treating the King's Secret Council as one of "the three great Committees of Parliament."[82] It is more natural to regard it as analogous to the English Curia Regis, and not ultimately connected with parliamentary institutions. Like the English Curia Regis, it exercised judicial powers from an early period, probably in connection with its general work of administrative order. It is not easy to distinguish between the jurisdiction of the Council, and that of the Lords Auditors, or Committee of Parliament, elected from 1369 onwards,[83] to decide legal cases, and a further complication arises from the additional Committee of the Estates, appointed by James I in 1425.[84] The jurisdiction of the Council in matters of litigation was further defined by James IV, who, in an act of 1503, provided that "there be a council chosen by the King's Highness, which shall sit continually in Edinburgh or where the king makes residence or where he pleases, and decide all manner of summons and civil matters, complaints, and causes, daily, when they shall occur, so that there shall not be so great confusion of summons to call at the session"[85] of the Lords Auditors, or Judicial Committee of the Estates. We are probably right in connecting this council, chosen by the king, with the judicial powers of the Lords of Secret Council, and it may be an imitation of the English Courts of King's Bench and Common Pleas. The special powers of this body came to an end with the establishment of the Court of Session.
The constitution of the Secret Council, as an executive body, was the subject of legislation during the temporary rise of the importance of Parliament in the beginning of the reign of James IV.[86] In 1489 the King's Council was chosen in Parliament. Its numbers were increased, and an act was passed that this council should act as the advisers of the king till the next meeting of Parliament, and should be "responsable and accusable to the king and his Estates." They were appointed to deal, not only with justice, but also with all matters concerning the sovereign or the realm. A quorum consisted of six members, of whom the Chancellor must be one. But there is no second instance of a parliamentary choice of the members of the Secret Council, nor any indication of any control over them, and, as we have just seen, the members of the Secret Council sitting for judicial purpose were, on the creation of the committee in 1503, selected by the king alone. Thus matters continued till the minority of James V, when Council and Parliament alike became the object of the intrigues of the factions who were struggling for power, and the Estates were, as usual, powerless. In 1524 the Lords of the Articles chose the Lords of the Secret Council, and in 1528, when the Earl of Arran was in power, he obtained the election, in Parliament, of a Council to advise the king, and of a smaller Secret Council, from both of which the leader of the opposite party, Archbishop Beaton, was excluded. When the records of the Privy Council begin, in 1545, the council was a small body of advisers of the queen-mother and the regent, and there is no evidence that the Act of 1489 was ever really in operation. The Register shows that the council possessed very full executive powers, and it continued to carry on the real government of the country. Its numbers increased during the minority of James VI, the circumstances of which differed widely from those of any previous minority, and, in 1598, the king succeeded in reducing the number of its members to thirty-one, and in rendering it completely dependent on the Crown, while, at the same time, he made it, as far as he could, the paramount authority in the land, not only in matters pertaining to the Executive, but also in connection with justice. It was in no sense a Court of Appeal; but it not infrequently reversed judgments of the Court of Session, and sometimes dictated their course of action to the judges. Any such interference arose, however, from the plenary powers of the council as an executive body. After James's accession to the English throne, the Privy Council became the mere instrument of the king's will, and dared in no way to oppose him, while he, on his part, treated it with scant respect or courtesy. At the outbreak of the troubles in the reign of Charles I, it was prominent in opposing the king; but it was afterwards eclipsed by the Parliamentary Committees and by the Assembly. After the Restoration it became again an instrument of absolute monarchy, but from the Revolution to the Union of the Parliaments it possessed very important powers.
With this preface, we may proceed to our main issue: what was the influence exerted by the Scottish Parliament, thus constituted, governed by such rules of procedure as we have described, and surrounded by so many powerful rivals? The early laws which have come down to us as illustrating the powers of the Great Council are mainly concerned—like so many later enactments—with matters of administrative detail. The assizes of William the Lion deal largely with merchandise and the rights and obligations of merchants, and scarcely fall within our province. The work of the Great Council, up to the War of Independence, was to deal with police and judicial administration, to settle feudal claims and obligations, and to make grants to the king. We find the council consulted on marriage treaties (e.g. in 1153 and in 1295); but marriage treaties involved expenditure. The task of advising the king and of carrying on the government must have belonged to a select council of which our constitutional documents bear no trace.
In the reign of Robert the Bruce, as we find the first advance in membership we meet also the first indications of a growth of power. His parliaments took measures for the security and defence of the kingdom; they passed laws regulating the succession; they established the English principle involved in the writs of Novel Disseisin and Mort d'ancestor; they addressed the Pope on the subject of the English claims, and told him of their great deliverance at the hands of King Robert. The great parliament of 1326 made a bargain with the king. In consideration of the "many hardships he had sustained both in person and goods," during his ten years' conflict with the invaders, they granted him "the tenth penny of all their fermes and rents, as well of demesne lands and wards as of their other lands." The collection was to be made by the king's officers; and all who claimed liberties promised faithfully to pay the proper sum to the royal servants. The grant was made only for the king's life, and two conditions were attached to it. Any remission made by the king would invalidate the whole grant. The king must not impose any further taxes (except, of course, the ordinary feudal dues), nor must he take prisage or carriage, except on a journey, and, even then, not without payment. In the last parliament of the reign, the treaty of Northampton, by which England acknowledged the independence of Scotland, was discussed.
The first reign in which the term parliament is really applicable is that of King Robert. At the very beginning of parliamentary history in Scotland, we have, then, distinct precedents for three important constitutional rights—the regulation of the succession, participation in the settlement of foreign affairs, and powers of taxation. If we could regard these as having been claimed by Parliament with consciousness of their full significance, and admitted by the Crown, we might fairly join with the older historians in urging that Scotland can be said to have anticipated the parliamentary institutions of England. The explanation lies in the circumstances of the reign. The king's title consisted in his leadership in his glorious war. The succession was uncertain; the Crown was poor; the nation was loyal. A writer on the English constitution could take these three points of which we have spoken, and trace their history through the centuries. Such a method would be futile here. These rights, and all other rights, stand or fall together. We can scarcely draw the wonted distinction between political and constitutional history. At times, we have neither, in any strict national sense; only family and personal history.
The leprosy-stricken age of King Robert was cheered by two important events—the birth of an heir, and the acknowledgment of the national independence. When he sank into the grave, he left the heritage of the nation's freedom, and the guardianship of his son, to the loyalty of the nobles. It was an opportunity for Parliament to make good its position. But, as we have already seen, the precedent of 1326 was assumed to be valid only for the raising of money, and the "Parliament" was, at first, only the old council. The political events of the beginning of the reign relate chiefly to the attempt made by England to place Edward Balliol on the Scottish throne, as a vassal-king. When that design had been, not without some difficulty, defeated, we find the Parliament, without the burgesses, conducting all the affairs of the kingdom, and acting, for almost the only time in Scottish history, as the executive. It granted lands and charters; passed ordinances regarding the Staple; arranged (with the co-operation of the burghs) the treaty of peace with England and the ransom of the king; settled the privileges of the church and of the burghs, with which the king had been tampering; made provisions for the Highlands and Islands; and decided the mode of succession. This, however, is not parliamentary government, though it is more like it than anything else in Scottish history before the revolution of 1640. The king was at the first an infant, and afterwards a prisoner, and his character was at all times weak and contemptible. The nobles were divided by feuds. Nobody was strong enough to make himself supreme. The country was governed by a committee of the nobles. Still, the reign of David II made two contributions to such constitutional theory as Scotland possessed. One of these is an emphatic reiteration of what had been done in the preceding reign. After his return from England, David, in pursuance of a private agreement with Edward III, attempted to persuade the Estates to acknowledge Prince Lionel of England as his heir. The account given of the affair by Wyntoun[87] is notable as the first report of a debate in the Parliament of Scotland:
"That ilke yere quhen that wes don,
A Parliament gart he hald at Scone.
Thare til the Statis of his land,
That in counsal ware sittand,
He movit and said, He wald that ane
Off the Kyng Edwardis sonnys were tane
To be king in to his sted
Off Scotland, eftyr that he ware dede.
Til that said all his lieges, nay;
Na thair consent wald be na way,
That ony Ynglis mannys sone
In [to] that honour suld be done,
Or succede to bere the Crown,
Off Scotland in successione,
Sine of age and off wertew there
The lauchfull airis apperand ware.
Quhen this denyit was utraly,
The King wes rycht wa and angry;
Bot his yarnyng nevyrtheles
Denyit off al his liegis wes."
The words of the original Act are quite as emphatic.
The Parliament of 1326 had declared that any personal remission of taxation by the king would render the whole grant null and void. The Parliament of 1369 went much further. It enacted that no remission granted by the king to a convicted offender should have any force, and it asserted that any writ of the king was invalid which contradicted any statute or was not in accordance with the common law of the realm. This constitutional statement marks the "highest" doctrine propounded by the Scottish Parliament till the seventeenth century. While it is necessary to guard against laying too much stress on the history of the reign of David II as illustrating the growth of strictly constitutional and parliamentary principles, it would be erring on the other side to deny that here we have a distinct assertion of principle. We have been forced to discount much of the recorded action of Parliament, on the ground that it is merely an instance of a number of nobles uniting to do what none of them was powerful enough to do alone. But the Parliament of 1369 contained burgesses (at least on the roll of its members); and the wording of its resolution is distinctly suggestive of the existence of some constitutional feeling.[88] The weakness and unpopularity of the king must be allowed due weight on the other hand; and the tone of the record suggests a jealous interference with the personal schemes of the king rather than any broader view of rights.